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Legal Citations Generally When filing papers before EOIR, parties should keep in mind that accurate and complete legal citations strengthen the argument made in the submission. This Appendix provides guidelines for frequently cited sources of law. EOIR generally follows A Uniform System of Citation (also known as the “Blue Book”) but diverges from that convention in certain instances. EOIR appreciates but does not require citations that follow the examples used in this Appendix. Note that, for the convenience of filing parties, some of the citation formats in this Appendix are less formal than those used in the published cases of the BIA. Once a source has been cited in full, the objective is brevity without compromising clarity. This Appendix concerns the citation of legal authority. For guidance on citing to the record and other sources, see ICPM, Chapter 3.3(e) (Source Materials), Chapter 4.19(f) (Citation); BIA PM Chapter 3.3(e) (Source Materials), Chapter 4.6(d) (Citation). As a practice, EOIR prefers italics in case names and publication titles, but underlining is an acceptable alternative. Abbreviations in Case Names As a general rule, well-known agency abbreviations (e.g., DHS, INS, FBI, DOJ) may be used in a case name, but without periods. If an agency name includes reference to the “United States,” it is acceptable to abbreviate it to “U.S.” However, when the “United States” is named as a party in the case, do not abbreviate “United States.” For example: DHS v. Smith not D.H.S. v. Smith; U.S. Dep’t of Justice v. Smith not United States Department of Justice v. Smith; United States v. Smith not U.S. v. Smith. Short Form of Case Names After a case has been cited in full, a shortened form of the name may be used thereafter, with a reference to the specific page number that is cited. For example: INS v. Phinpathya, 464 U.S. 183 (1984); Phinpathya, 464 U.S. at 185; Matter of Nolasco, 22 I&N Dec. 632 (BIA 1999); Nolasco, 22 I&N Dec. at 635. Citations to a Specific Point ****Citations to a specific point should include the precise page number(s) on which the point appears. For example: Matter of Artigas, 23 I&N Dec. 99, 100 (BIA 2001). Citations to a Dissent or Concurrence Citations to a dissent or concurrence should be indicated in a parenthetical notation. For example: Matter of Artigas, 23 I&N Dec. 99, 109-110 (BIA 2001) (dissent). Board of Immigration Appeals Decisions Published Decisions Precedent decisions by the BIA are binding on the immigration courts, unless modified or overruled by the Attorney General or a federal court. All precedent BIA decisions are available on the EOIR website. Precedent decisions should be cited in the “I&N Dec.” form illustrated below. The citation must identify the adjudicator (BIA, A.G., etc.) and the year of the decision. Note that there are no spaces in “I&N” and that only “Dec.” has a period. For example: Matter of Balsillie, 20 I&N Dec. 486 (BIA 1992). “Matter of” not “In re” All precedent decisions should be cited as “Matter of.” The use of “In re” is disfavored. For example: Matter of Yanez, not In re Yanez. Unpublished Decisions Citation to non-precedent Board cases by parties not bound by the decision is discouraged. When it is necessary to refer to an unpublished decision, the citation should include the initials of the respondent’s full name separated by hyphens, the A-number with all but the last three digits of the number replaced with X’s, and a parenthetical containing the abbreviation “BIA” as the adjudicating body, as well as an abbreviation of the month as part of the precise date of the decision. Because the Board uses “Matter of” as a signal for a published or precedent case, do not use “Matter of.” When citing to an Unpublished BIA decision, a full copy of the unpublished decision should be provided as an attachment to the brief/motion if possible. Unpublished BIA Decisions from the EOIR FOIA Reading Room Where an unpublished Board decision is obtained from EOIR’s FOIA Reading Room, the citation should be placed within a parenthetical containing the assigned Folder Name (also known as Title or File number assigned to Download Folder), the abbreviation “BIA” as the adjudicating body, and an abbreviation of the month as part of the precise date of the decision. As noted above, because the Board uses “Matter of” of as a signal for published or precedent case, do not use “Matter of.” Interim decisions While the BIA still assigns precedent decisions an interim decision number for administrative reasons, the proper citation is always to the volume and page number of the bound volume – the I&N Decision citation. Attorney General Decisions Precedent decisions by the Attorney General are binding on the immigration court and the BIA and should be cited in accordance with the rules for precedent decisions by the BIA. All precedent decisions by the Attorney General are available on the EOIR website. Matter of Y-L-, 23 I&N Dec. 270 (AG 2002). Federal and State Courts Generally Federal and state court decisions should generally be cited according to the standard legal convention, as set out in the latest edition of A Uniform System of Citation (also known as the “Blue Book”). For example: Taylor v. United States, 495 U.S. 575 (1990); Singh v. Holder, 749 F.3d 622 (7th Cir. 2014); Velasquez-Escovar v. Holder, F.3d, No. 10-73714 (9th Cir. 2014); United States v. Madera, 521 F. Supp. 2d 149 (D. Conn. 2007). U.S. Supreme Court The Supreme Court Reporter citation (“S. Ct.”) should be used only when the case has not yet been published in the United States Reports (“U.S.”). Unpublished Cases Citation to unpublished state and federal court cases is discouraged. When citation to an unpublished decision is necessary, a copy of the decision should be provided, and the citation should include the docket number, court, and precise date. Parties are also encouraged to provide the LexisNexis or Westlaw number. For example: Bratco v. Mukasey, No. 04-726367, 2007 WL 4201263 (9th Cir. Nov. 29, 2007) (unpublished). Precedent Cases Not Yet Published When citing to recent precedent cases that have not yet been published in the Federal Reporter or other print format, parties should provide the docket
On July 29, 2024, a new Executive Office of Immigration Review (EOIR) Final Rule, Efficient Case and Docket Management in Immigration Proceedings, went into effect. The rule codifies the authority of immigration judges (IJ) and the Board of Immigration Appeals (BIA) to administratively close and terminate removal proceedings. The new rule can be found in its entirety in the Federal Register available online at https://www.govinfo.gov/content/pkg/FR-2024-05-29/pdf/2024-11121.pdf. The rule includes three major changes: (1) Immigration Judges’ Authority to Administratively Close Proceedings; (2)the authority for an Immigration Judge to terminate proceedings in their discretion and sets forth the factors that should be considered in those circumstances; (3) Rules for Retroactive Application of Law for Post Conviction Relief; (4) The Rule Restores Important Procedural Safeguards That the Trump Rule Had Eliminated; (5) The Rule Gives the BIA Expanded Authority to Grant Voluntary Departure Rather than Remand; and (6) Changes some language to be more appropriate. 1. Immigration Judges’ Authority to Administratively Close Proceedings The Final Rule codifies IJs’ and the BIA’s administrative closure authority and provides a list of factors for deciding whether to administratively close a case or recalendar a previously administratively closed case. 8 CFR §§ 1003.18(c); 1003.1(l). The rule generally mandates administrative closure if based on a joint motion or a motion led by one party where the other party “has affirmatively indicated its non-opposition.” 8 CFR §§ 1003.18(c)(3); 1003.1(l)(3). In all other situations, the IJs and the BIA may grant administrative closure orrecalendar a case if they deem it warranted, even if a party opposes. However, IJs and the BIA must consider the “totality of the circumstances” including the following non-exclusive factor (A) The reason administrative closure is sought;(B) The basis for any opposition to administrative closure;(C) Any requirement that a case be administratively closed in order for a petition,application, or other action to be led with, or granted by, DHS;(D) The likelihood the noncitizen will succeed on any petition, application, or otheraction that the noncitizen is pursuing, or that the noncitizen states in writing or onthe record at a hearing that they plan to pursue, outside of proceedings before;(E) The anticipated duration of the administrative closure;(F) The responsibility of either party, if any, in contributing to any current or anticipated delay;(G) The ultimate anticipated outcome of the case pending before; and(H) The ICE detention status of the noncitizen.” Codified at 8 CFR §§ 1003.18(c)(3)(i); 1003.1(l)(3)(i). The regulation also species that a noncitizen does not need to have an action pending outside of EOIR proceedings to present an appropriate case for administrative closure. 8 CFR §§ 1003.18(c)(3); 1003.1(l)(3). The Final Rule is nearly identical to identical to the proposed rule, with the addition of the noncitizen’sICE detention status as an administrative closure factor. Many of the factors listed in the rule are similar to those previously outlined in leading BIA administrative closure cases, see Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012); Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017), but motions for administrative closure filed now should be sure to cite to the new regulation. The Board’s holding in Matter of W–Y–U– that ‘‘the primary consideration . . . in determining whether to administratively close or recalendar proceedings is whether the party opposing administrative closure has provided a persuasive reason for the case to proceed and be resolved on the merits,’’ id., is inconsistent with the unweighted, ‘‘totality-of-the-circumstances’’ standard implemented by this rule, Matter of W–Y–U–, 27 I&N Dec. 17, is superseded.”). See 89 Fed. Reg. at 46753. 2. Codifying Immigration Judges’ Authority to Terminate Proceedings in Their Discretion 8 CFR § 1239.2(b) ORDERING TERMINATION OR DISMISSAL (b) Ordering termination or dismissal. After commencement of proceedings, an immigration judge or Board member shall have authority to resolve or dispose of a case through an order of dismissal or an order of termination. An immigration judge or Board member may enter an order of dismissal in cases where DHS moves for dismissal pursuant to paragraph (c) of this section. A motion to dismiss removal proceedings for a reason other than those authorized by paragraph (c) of this section shall be deemed a motion to terminate and adjudicated pursuant to 8 CFR 1003.1(m), pertaining to cases before the Board, or 8 CFR 1003.18(d), pertaining to cases before the immigration court, as applicable. 8 CFR 1003.1(m) TERMINATION Mandatory Termination Under the mandatory termination category, IJs and the BIA are required to terminate proceedings if any of the below circumstances are present: ▹ The removal charge(s) cannot be sustained;▹ Termination is otherwise required by law;▹ Fundamentally fair proceedings are not possible because the noncitizen is mentallyincompetent and adequate safeguards are unavailable;▹ The noncitizen obtained U.S. citizenship after removal proceedings started;▹ The noncitizen has obtained one of the following statuses and would not have beenremovable as charged if they had obtained such status before the initiation ofproceedings: LPR status, refugee status, asylee status, U nonimmigrant status, Tnonimmigrant status, or S nonimmigrant status;▹ The noncitizen meets the regulatory standard for termination after NACARAadjustment, see 8 CFR § 1245.13(l); or▹ The parties led a joint motion to terminate, or “one party led a motion to terminate and the other party affirmatively indicated its non-opposition, unless the [IJ] articulates unusual, clearly identified, and supported reasons for denying the motion.” Codified at 8 CFR §§ 1003.18(d)(1)(i); 1003.1(m)(1)(i). Discretionary termination In removal, deportation, or exclusion proceedings, the Board may, in the exercise of discretion, terminate the case upon the motion of a party where at least one of the requirements listed in paragraphs (m)(1)(ii)(A) through (F) of this section is met. The Board shall consider the reason termination is sought and the basis for any opposition to termination when adjudicating the motion to terminate. (A) The noncitizen has filed an asylum application with USCIS pursuant to section 208(b)(3)(C) of the Act pertaining to unaccompanied children, as defined in 8 CFR 1001.1(hh). (B) The noncitizen is prima facie eligible for naturalization, relief from removal, or a lawful status; USCIS has jurisdiction to adjudicate the associated petition, application,
An in absentia order is an order that is entered by the Judge in your absence (in absentia). If you are not present in Court the Judge may enter an order against you if she believes that you were given proper notice of the hearing and should have been there. If this happens you can file a motion to reopen the case. Typically such a motion much be filed within 180 days according to the regulations but there is an exception if it was an in absentia order and the reason you were not there was because you did not receive notice of the hearing i.e. no one informed you that you had a hearing that day. If you missed your hearing and you are trying to file a motion to reopen pro se (without a lawyer) then you should read this article about filing a motion to reopen pro se and take a look at the EOIR template MTRO for non-represented respondents. You should also read the blog post, What if I Missed my Hearing and Was Ordered Removed. This article contains the Regulations, Statutes, Court Rules, and Case Law relating to Motions to Reopen In Absentia Orders. REGULATIONS 8 CFR § 1003.23 8 CFR § 1003.23 – Reopening or reconsideration before the immigration court 8 CFR §1003.23(b)(4)(iii) (iii) Order entered in absentia in deportation or exclusion proceedings. (A) An order entered in absentia in deportation proceedings may be rescinded only upon a motion to reopen filed: (1) Within 180 days after the date of the order of deportation if the alien demonstrates that the failure to appear was because of exceptional circumstances beyond the control of the alien (e.g., serious illness of the alien or serious illness or death of an immediate relative of the alien, but not including less compelling circumstances); or (2) At any time if the alien demonstrates that he or she did not receive notice or if the alien demonstrates that he or she was in federal or state custody and the failure to appear was through no fault of the alien. STATUTES 8 U.S.C. §1229a(b)(5)(C)(i) In absentia removal order may be rescinded upon a motion to reopen if the noncitizen demonstrates that the failure to appear at the removal hearing was because of “exceptional circumstances.” 8 U.S.C. §1229a(b)(5)(C)(i). That term refers to circumstances beyond the noncitizen’s control, such as “serious illness or death” of the noncitizen’s spouse, child, or parent, but does not include “less compelling circumstances.” 8 U.S.C. §1229a(e)(1). The panel explained that, in making the exceptional circumstances determination, the IJ and BIA must look to the totality of the circumstances and must consider certain relevant factors. INA §240(e)(1) INA §240(e)(1) Exceptional Circumstances beyond the alien’s control INA §240(b)(5)(C)(ii) INA §240(b)(5)(C)(ii) Lack of Notice EOIR Practice Manual https://www.justice.gov/eoir/reference-materials/ic/chapter-5/9 (a) In General — A motion to reopen requesting that an in absentia order be rescinded asks the immigration judge to consider the reasons why the respondent did not appear at the respondent’s scheduled hearing. See Chapter 4.17 (In Absentia Hearing). … **(1) Content — A motion to reopen to rescind an in absentia order must demonstrate that: the failure to appear was because of exceptional circumstances; the failure to appear was because the respondent did not receive proper notice; or the failure to appear was because the respondent was in federal or state custody and the failure to appear was through no fault of the respondent. INA § 240(b)(5)(C), 8 C.F.R. § 1003.23(b)(4)(ii). The term “exceptional circumstances” refers to exceptional circumstances beyond the control of the respondent (such as battery or extreme cruelty to the respondent or any child or parent of the respondent, serious illness of the respondent or serious illness or death of the spouse, child, or parent of the respondent, but not including less compelling circumstances). INA § 240(e)(1). **(2) Time limits — (A) Within 180 days — If the motion to reopen to rescind an in absentia order is based on an allegation that the failure to appear was because of exceptional circumstances, the motion must be filed within 180 days after the in absentia order. See INA § 240(b)(5)(C), 8 C.F.R. § 1003.23(b)(4)(ii). (B) At any time — If the motion to reopen to rescind an in absentia order is based on an allegation that the respondent did not receive proper notice of the hearing, or that the respondent was in federal or state custody and the failure to appear was through no fault of the respondent, the motion may be filed at any time. See INA § 240(b)(5)(C), 8 C.F.R. § 1003.23(b)(4)(ii). (C) Responses — Responses to motions to reopen to rescind in absentia orders are due within ten (10) days after the motion was received by the immigration court, unless otherwise specified by the immigration judge. **(3) Number limits — The respondent is permitted to file only one motion to reopen to rescind an in absentia order. 8 C.F.R. § 1003.23(b)(4)(ii). **(4) Automatic stay — The removal of the respondent is automatically stayed pending disposition by the immigration judge of the motion to reopen to rescind an in absentia order in removal proceedings. See INA § 240(b)(5)(C), 8 C.F.R. § 1003.23(b)(4)(ii) BIA CASE LAW Matter of Haim, 19 I&N Dec. 641, 642 (BIA 1988) Matter of M-R-A-, 24 I&N Dec. 665 (BIA 2008) Matter of C-R-C-, 24 I&N Dec. 677 (BIA 2008). In determining whether the respondent has overcome this presumption, the immigration judge must consider both circumstantial and corroborating evidence, and may consider a variety of factors, including (but not limited) to: CIRCUIT COURT CASE LAW MONTEJO-GONZALEZ V. GARLAND, No. 21-304 (9th Cir. 2024) A mother and her two minor children, who entered the United States seeking asylum, were scheduled for an initial hearing before an immigration judge (IJ) in Seattle, Washington. On their way to the hearing, they encountered two major car accidents, causing them to be two hours late. Upon arrival, they attempted to have their case heard but were unsuccessful. The IJ ordered them removed in absentia. They promptly moved to reopen the case, arguing that exceptional circumstances justified their late arrival. The Ninth Circuit reviewed the case. The court held that the IJ and BIA abused
RIGHT TO A FULL & FAIR HEARING An alien who faces removal is entitled to a full and fair removal hearing under both the Act and the Due Process Clause of the Fifth Amendment. See Santos-Alvarado v. Barr, 967 F.3d 428, 439 (5th Cir. 2020) (“The Fifth Amendment’s Due Process Clause protects individuals in removal proceedings.” (citation omitted)); Vetcher v. Barr, 953 F.3d 361, 370 (5th Cir. 2020) (stating that “removal proceedings must be conducted according to standards of fundamental fairness”), petition for cert. filed (U.S. June 26, 2020) (No. 19-1437); Matter of M-A-M-, 25 I&N Dec. 474, 479 (BIA 2011) (“Included in the rights that the Due Process Clause requires in removal proceedings is the right to a full and fair hearing.”); see also section 240(b)(4)(B) of the Act, 8 U.S.C. § 1229a(b)(4)(B) (2020) (providing that “the alien shall have a reasonable opportunity to examine the evidence against the alien, to present evidence on the alien’s own behalf, and to cross-examine witnesses presented by the Government”). ESTABLISHING VIOLATION OF DUE PROCESS To establish that due process rights were violated, the respondent must prove that there was a deficiency or violation and that he was prejudiced by it. See Okpala v. Whitaker, 908 F.3d 965, 971 (5th Cir. 2018) (“To prevail on a claim regarding an alleged denial of due process rights, an alien must make an initial showing of substantial prejudice.”); Matter of D-, 20 I&N Dec. 827, 831 (BIA 1994) (per curiam) (noting that an alien has been denied a fair hearing “only if he has been prejudiced by some deficiency so as to deprive him of due process”); Matter of Santos, 19 I&N Dec. 105, 107 (BIA 1984) (stating that “an alien must demonstrate that he has been prejudiced by a violation of a procedural rule or regulation before his deportation proceeding will be invalidated”). The respondent has not shown that his rights were violated or that he suffered prejudice in his removal proceedings. Matter of E-F-H-L-, 26 I&N Dec. 319 (BIA 2014) In Matter of E-F-H-L-, 26 I&N Dec. 319 (BIA 2014) the BIA decided on June 12, 2014 that an alien must have a full and fair hearing, introducing testimony, before an immigration judge could make a decision on his application for asylum, withholding of removal or deferral of removal. The case arose out of a application for asylum before an immigration judge in Texas. In that case, the immigration judge denied the respondent’s applications for asylum and withholding of removal without first holding a individual hearing. Instead, the immigration judge found that the respondent’s written asylum application as submitted to the court and the alien’s pre-hearing brief in support of his petition did not demonstrate the alien’s prima facie (Latin for “first look at” – or “first sight”) for relief. Therefore, simply on the basis of his first impressions, the immigration judge determined that the alien was not entitled to a hearing on the merits of his applications and denied his applications for relief. The Board struck down the immigration judge’s decision. In its holding in E-F-H-L-, the Board referenced its prior holding in Matter of Fefe, 20 I&N Dec., 116 (BIA 1989). The Board held that even though the immigration judge has the authority to control the scope of an evidentiary hearing in the interest of efficiency, such authority must, at a minimum include an opportunity for the applicant to present evidence and witnesses in his or her own behalf. In Matter of Fefe, the Board found that “an essential aspect of the asylum adjudication process” required a full oral examination of the applicant. This was necessary to protect the integrity of the asylum process itself, and provide fairness to the parties. In addition, a 9th Circuit case, Oshodi v. Holder, 729 F.3d 883 (9th Cir. 2013) (en banc – Latin for “before the entire court”) held that an alien’s fifth amendment due process right to a full and fair hearing was violated when the immigration judge denied relief solely on an adverse credibility finding after refusing to allow the alien to testify to the content of his applications. Under E-F-H-L-, and the prior Board decision in Matter of Fefe, as cited above, any move by the immigration judge to cut short a removal proceeding should be strongly and vigorously questioned and objections placed on the record for appeal. This includes an immigration judge’s decision to deny an applicant a full and fair hearing with presentation of witnesses and evidence, and an opportunity to present the applicant’s story, and be subject to direct and cross examination. The immigration judge cannot simply reject an applicant’s application based on an analysis that the applicant has not made a prima facie case for the relief sought. Such reasoning is in violation of the immigration statute, applicable BIA precedential case law, and contrary to the due process protections in the United States Constitution. VIRTUAL PROCEEDINGS DO NOT VIOLATE DUE PROCESS The Act and its implementing regulations specifically provide for hearings via video conference. See section 240(b)(2)(A)(iii) of the Act (providing that a removal “proceeding may take place . . . through video conference”); 8 C.F.R. § 1003.25(c) (2020) (“An Immigration may conduct hearings through video conference to the same extent as he or she may conduct hearings in person.”). This authority has been consistently recognized by the courts of appeals. See Vilchez v. Holder, 682 F.3d 1195, 1199 (9th Cir. 2012) (recognizing that video conference hearings are explicitly authorized by statute); Aslam v. Mukasey, 537 F.3d 110, 114 (2d Cir. 2008) (per curiam) (acknowledging that the statutory authority accorded to Immigration Judges to conduct hearings via video conference includes taking the testimony of witnesses); Rapheal v. Mukasey, 533 F.3d 521, 531 (7th Cir. 2008) (stating that “Congress specifically authorized proceedings by means of a video conference” and rejecting the alien’s challenge to the constitutionality of the implementing regulation).
Aggravated felonies are defined at 8 USC § 1101(a)(43), which lists dozens of common-law terms and references to federal statutes. Aggravated felonies (“AF”) are the convictions with the most serious immigration consequences for a noncitizen. Noncitizens who have been convicted of an AF are prohibited from receiving most forms of relief from deportation, including asylum, and from being readmitted to the United States at any time in the future. A noncitizen who is convicted of an aggravated felony, deported or removed, and then returns to the U.S. without permission faces a tough federal prison sentence under 8 USC §1326(b)(2). Mandatory Detention for Aggravated Felonies Federal immigration authorities are required to detain any immigrant convicted of an “aggravated felony” upon his or her release from criminal custody. To obtain bond from an immigration judge, LPRs who are detained following a conviction of a potential “aggravated felony” must demonstrate with substantial likelihood that the crime in question does not qualify as an “aggravated felony. Aggravated Felony Bars Relief LPR Cancellation of Removal LPRs who have been convicted of an aggravated felony cannot receive 42A LPR cancellation of removal. Asylum Particularly serious crimes bar asylum relief and a conviction for any aggravated felony is considered a particularly serious crime in asylum determinations, regardless of the term of criminal incarceration. In addition, for purposes of asylum, additional crimes may be defined as “particularly serious crimes” or “serious nonpolitical crimes” by regulation. See 8 USC § 1158(b)(2)(B)(i). Further, courts have held that the Attorney General may designate a specific offense as a “particularly serious crime” through case-by-case adjudication. See 8 U.S.C. § 1158(b)(2)(B)(ii). Waivers Certain LPRs may not obtain a waiver of inadmissibility under Section 212(h) of the INA if they were convicted of an AF. A 212(h) waiver can waive criminal offenses that make a noncitizen inadmissible and allow for them to be admitted to the United States. Voluntary Departure An immigrant convicted of an aggravated felony is ineligible for voluntary departure. Voluntary departure is a discretionary form of relief allowing a deportable noncitizen to leave the country at their own expense in place of formal deportation. Permanent Inadmissibility Following Departure from the United States A noncitizen removed from the United States after being convicted of an aggravated felony (or who leaveswhile an order of removal is outstanding) is permanently inadmissible. To lawfully reenter the United States, such an immigrant must receive a special waiver from USCIS, in addition to meeting all other grounds of admissibility. Deportation without a Removal Hearing Certain noncitizens convicted of an aggravated felony are provided fewer legal protections than otherimmigrants. Any noncitizen convicted of an aggravated felony who is not a lawful permanent resident (LPR) may be administratively removed/deported from the United States without a formal hearing before anImmigration Judge. See INA § 238, 8 U.S.C. § 1228. What is an Aggravated Felony Statute – INA § 101(a)(43) (43) The term “aggravated felony” means- (A) murder, rape, or sexual abuse of a minor; (B) illicit trafficking in a controlled substance (as defined in section 802 of title 21), including a drug trafficking crime (as defined in section 924(c) of title 18); See section 802 of Title 21 here. (C) illicit trafficking in firearms or destructive devices (as defined in section 921 of title 18) or in explosive materials (as defined in section 841(c) of that title); (D) an offense described in section 1956 of title 18 (relating to laundering of monetary instruments) or section 1957 of that title (relating to engaging in monetary transactions in property derived from specific unlawful activity) if the amount of the funds exceeded $10,000; (E) an offense described in- (i) section 842(h) or (i) of title 18, or section 844(d), (e), (f), (g), (h), or (i) of that title (relating to explosive materials offenses); (ii) section 922(g)(1), (2), (3), (4), or (5), (j), (n), (o), (p), or (r) or 924(b) or (h) of title 18 (relating to firearms offenses); or (iii) section 5861 of title 26 (relating to firearms offenses); (F) a crime of violence (as defined in section 16 of title 18, but not including a purely political offense) for which the term of imprisonment at 5 least one year; (G) a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment at 5 least one year; (H) an offense described in section 875, 876, 877, or 1202 of title 18 (relating to the demand for or receipt of ransom); (I) an offense described in section 2251, 2251A, or 2252 of title 18 (relating to child pornography); (J) an offense described in section 1962 of title 18 (relating to racketeer influenced corrupt organizations), or an offense described in section 1084 (if it is a second or subsequent offense) or 1955 of that title (relating to gambling offenses), for which a sentence of one year imprisonment or more may be imposed; (K) an offense that- (i) relates to the owning, controlling, managing, or supervising of a prostitution business; (ii) is described in section 2421, 2422, or 2423 of title 18 (relating to transportation for the purpose of prostitution) if committed for commercial advantage; or (iii) is described in any of sections 1581–1585 or 1588–1591 of title 18 (relating to peonage, slavery, involuntary servitude, and trafficking in persons); (L) an offense described in- (i) section 793 (relating to gathering or transmitting national defense information), 798 (relating to disclosure of classified information), 2153 (relating to sabotage) or 2381 or 2382 (relating to treason) of title 18; (ii) section 3121 of title 50 (relating to protecting the identity of undercover intelligence agents); or (iii) section 3121 of title 50 (relating to protecting the identity of undercover agents); (M) an offense that- (i) involves fraud or deceit in which the loss to the victim or victims exceeds $10,000; or (ii) is described in section 7201 of title 26 (relating to tax evasion) in which the revenue loss to the Government exceeds $10,000; (N) an offense described in paragraph (1)(A) or (2) of section 1324(a) of this title (relating to alien smuggling), except in the case of a first offense for which the alien has affirmatively shown that the alien committed the
The Circuit Court with jurisdiction over the geographical location of the Immigration Court will control. See Matter of Garcia, 28 I&N Dec. 693 (BIA 2023). For choice of law purposes, the controlling circuit law in Immigration Court proceedings is the law governing the geographic location of the Immigration Court where venue lies, namely where jurisdiction vests and proceedings commence upon the filing of a charging document, and will only change if an Immigration Judge subsequently grants a change of venue to another Immigration Court. Matter of R-C-R-, 28 I&N Dec. 74 (BIA 2020), clarified.
DEFINITION OF ARRIVING ALIEN The regulations define “arriving alien” at 8 CFR §1001.1(q): The term arriving alien means an applicant for admission coming or attempting to come into the United States at a port-of-entry, or an alien seeking transit through the United States at a port-of-entry, or an alien interdicted in international or United States waters and brought into the United States by any means, whether or not to a designated port-of-entry, and regardless of the means of transport. An arriving alien remains an arriving alien even if paroled pursuant to section 212(d)(5) of the Act, and even after any such parole is terminated or revoked. However, an arriving alien who was paroled into the United States before April 1, 1997, or who was paroled into the United States on or after April 1, 1997, pursuant to a grant of advance parole which the alien applied for and obtained in the United States prior to the alien’s departure from and return to the United States, will not be treated, solely by reason of that grant of parole, as an arriving alien under section 235(b)(1)(A)(i) of the Act. See 8 C.F.R. §§ 1.2, 1001.1(q) Arriving Alien vs. Applicant for Admission While the term “applicant for admission” is not defined in the Immigration and Nationality Act (INA), the statute broadly identifies those who fall within the term’s parameters as any noncitizen who: is present in the United States who has not been admitted or who arrives in the United States (whether or not at a designated port of arrival and including a[] [noncitizen] who is brought to the United States after having been interdicted in international or United States waters). See 8 U.S.C. § 1225(a)(1); see also 8 C.F.R. § 235.1(f)(2) (discussing noncitizens present without admission or parole and those who enter without inspection), (f)(3) (explaining that noncitizens interdicted at sea are applicants for admission); but see 8 C.F.R. § 235.1(f)(4) (clarifying that a stowaway is not an applicant for admission). As such, someone classified as an “arriving [noncitizen]” also is an applicant for admission. However, the latter category is broader than the former so not all applicants for admission are arriving noncitizens. That is, while individuals who enter the United States without inspection are considered applicants for admission, they are not arriving noncitizens as they did not seek admission at a port-of-entry. A noncitizen who was admitted after inspection is neither an applicant for admission nor an arriving noncitizen, even if that person subsequently falls out of status. Arriving Aliens in Removal Proceedings § 1240.8 Burdens of proof in removal proceedings. (b) Arriving aliens. In proceedings commenced upon a respondent’s arrival in the United States or after the revocation or expiration of parole, the respondent must prove that he or she is clearly and beyond a doubt entitled to be admitted to the United States and is not inadmissible as charged. Arriving aliens in expedited removal proceedings are subject to mandatory detention, pending a credible fear determination, and if no credible fear, until removed. See INA § 235(b)(1)(B)(i)(IV). Generally, arriving aliens placed in 240 proceedings, shall also be detained. See INA § 235(b)(2)(A). An alien “shall be detained pending determination and removal” while inadmissibility is being considered under 8 C.F.R. § 235.3. Mandatory Detention Arriving aliens in expedited removal proceedings are subject to mandatory detention, pending a crediblefear determination, and if no credible fear, until removed. INA § 235(b)(1)(B)(i)(IV). Generally, arriving aliens placed in 240 proceedings, shall also be detained. INA § 235(b)(2)(A). An alien “shall be detained pending determination and removal” while inadmissibility is being considered under 8 C.F.R. § 235.3. ARRIVING ALIEN CASE LAW Failure to check the box indicating the respondent is an arriving alien is not grounds for termination of proceedings. Matter of Jonathan Said HERRERA-VASQUEZ, 27 I&N Dec. 825 (BIA 2020) An alien that is transferred from expedited removal proceedings to full removal proceeding after establishing a credible fear, remains ineligible for bond. Matter of M-S-, 27 I&N Dec. 509 (A.G. 2019). Matter of M-S- overrules overruled Matter of X-K-, 23 I&N Dec. 731 (BIA 2005). Arriving Aliens and Adjustment of Status The regulations detail which agency (USCIS or EOIR) has jurisdiction over an adjustment application filed by an arriving noncitizen who is in removal proceedings. With respect to USCIS, 8 C.F.R. § 245.2(a)(1) specifies that it has jurisdiction over the adjustment application of any noncitizen “unless the immigration judge has jurisdiction to adjudicate the application under 8 C.F.R. § 1245.2(a)(1).” Thus, USCIS has jurisdiction over all adjustment applications except those over which an immigration judge has jurisdiction. In turn, 8 C.F.R. § 1245.2(a)(1) states that an immigration judge does not have jurisdiction over an adjustment application of an “arriving [noncitizen]” in removal proceedings, with one exception. Under this exception, an immigration judge has jurisdiction over the adjustment application of an arriving noncitizen in removal proceedings if: Does USCIS have jurisdiction to decide an adjustment application if the arriving noncitizen is under a final order of removal? Yes, USCIS has jurisdiction over the adjustment application of an arriving noncitizen even when a removal order has become administratively final, as long as the order has not been executed— that is, as long as the individual has not departed, whether voluntarily or not, after the removal order was issued. See 8 U.S.C. § 1101(g) (specifying that a noncitizen who departs the United States while under an order of removal “shall be considered to have been deported or removed”). Under 8 U.S.C. § 1255(a), a noncitizen must be admissible to the United States to adjust status.Significantly, as explained in a USCIS memorandum, “[t]he removal order, itself, does not makethe [noncitizen] inadmissible until it is executed.”20 Thus the removal order is not a bar toadjustment. However, practitioners still must consider whether the underlying ground uponwhich the removal order is based renders the noncitizen inadmissible and therefore ineligible foradjustment and, if it does, whether a waiver is available. For example, where the removal order isbased on 8 U.S.C. § 1182(a)(7)—the inadmissibility ground for individuals who did not have avalid visa or
Administrative Closure Administrative closure can be requested by either the government or the respondent. It may be offered by the government when they prefer not to take testimony or where there potential issued regarding whether someone should receive asylum or another form of relief. This may occur if there are issues with jurisdiction, timeliness, or other procedural matters. When administratively closed, your case technically remains “pending” with the immigration court and can be re-opened at any time by either party or the judge. The greatest benefit of administrative closure is that employment authorization remains valid and can continue to be renewed since the underlying application for relief is still pending, although there are no future hearing dates being scheduled and that application will not ever be adjudicated unless things change. When a case is administratively closed a person remains in removal proceedings. It is essentially just removing the case from the Court’s calendar so there are no more future hearing dates, but the case is still before the Court. If the respondent wants to pursue relief before USCIS they would need to dispose of the case before the Court first since jurisdiction is still vested with the Court. For the same reason the respondent cannot leave the country without “self-deporting.” DHS used to agree to administrative closure as a matter of PD more often than they do now. Dismissal is now the much preferred way of exercising PD.
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