Tag: Board of Immigration Appeals

Guess What? Country Reports are Not Dispositive in Future Fear Determinations (Just Like We Have Been Saying)

Just like every immigration practitioner has been arguing for a long time, the Eleventh Circuit recently ruled that the State Department’s country reports are not dispositive on future fear determinations. The Petitioner in the case was denied his asylum claim before the immigration judge and the Board of Immigration Appeals. Both had ruled that he could not show that he faces any prospects of future persecution. He had argued that he faces such prospects because he had applied for asylum and his application was denied. The immigration judge had denied his claim since the State Department’s 2011 country report was silent regarding the persecution of failed asylum seekers.

The court ruled that the State Department’s report is not exhaustive and can not rebut a specific applicant’s claim without specifically commenting on that case. The court granted the petition for review and remanded the case to the Board.

I ¬†have argued on several occasions that these reports were unreliable. I also argue that the client has a right to confront the report’s author. I applaud the case. If you would like to read it, visit this link.

How to Apply the Board’s Grant of Asylum for Domestic Violence to the Middle East

In recent post I discussed the Board’s decision to allow Guatemalan women to apply for asylum based on a history of domestic violence in their country. As I discussed in that post, the Board left the door open to asylum claims to victims from any country that fails to protect victims of domestic violence because of state inability to protect or inaction. The history of domestic violence in Guatemala in staggering, with the United Nations reporting that 2 women are killed every day because of domestic violence in the country.
Although these numbers are mind-numbing, the numbers in the Middle East are more staggering. These numbers how that, for example, in Lebanon 88% of women were subject to some form of abuse. The question will be whether, on a case by case basis, the abuse will rise to the level of persecution under asylum law. These high numbers of domestic violence cases and the lack of protections for victims opens the door to asylum cases from the Middle East. I know that these cases will come up through the system and I hope that USCIS will grant them because I know that these women deserve protections.

Seventh Circuit Rules that BIA Erred in Relying on Unsupported Police Reports

In a decision dated last month, the Seventh Circuit ruled that the Board of Immigration Appeals erred in relying on uncorroborated police reports to deny 212(c) relief. The Petitioner in the case was convicted in 1990 of a domestic abuse charge. He was subsequently arrested several times but was never convicted of anything else.  The immigration judge ruled that he was credible but denied his request for relief since he did not show that he was rehabilitated. The BIA affirmed the immigration judge’s decision reasoning that even though the case was a “close call”, the Respondent did not show that he was rehabilitated. The court, in reversing the BIA’s decision, reasoned that the Board did not follow its own binding decision in Arreguin, 21 I&N Dec. 38 (BIA 1995) and thus the case was denied improperly. The court ruled that since the police reports were uncorroborated, they should not have been used as a basis to deny relief in the case. The case is Avila-Ramirez v. Holder

Eleventh Circuit Denies Stand Alone 212(h) Waiver

The Eleventh Circuit ruled today that a Respondent can not file a stand alone 212(h) waiver without an accompanying application for adjustment of status application.  Rivas applied for a waiver of inadmissibility nunc pro tunc after being placed in removal proceedings. He had applied for naturalization, but his application was denied since he had two larceny convictions in Florida. The immigration judge granted the waiver application and the Service appealed. The Board reversed the immigration judge’s decision reasoning that statutory revisions such is IIRIRA precluded nunc pro tunc waiver applications. The Eleventh Circuit upheld the Board’s decision on the same reasoning. The court also ruled that Congress had several rational basis to disallow  nunc pro tunc waivers. To read the decision click here.


BIA Issues Three Decisions Dealing with the Adam Walsh Act

The Board of Immigration Appeals issued three decision dealing with issues related to the Adam Walsh Act. The Adam Walsh Act prevents USCIS from approving any visa petition filed by a United States citizen if the Petitioner was convicted of a charge relating to the abuse of a minor. The Service could approve the petition if the Petitioner proves that he poses no risk to the beneficiary. The standard used for this discretionary decision is very unclear and convoluted. The decisions clarified nothing.

Unlike other immigration laws, the Adam Walsh Act does not seek to prevent an immigrant from receiving an immigration benefit but prevents a United States citizen from ever moving past a mistake he has committed. Despite the numerous arguments made by advocates to limit the law’s interpretation, the Board decided that the law was retroactive, meaning it applies to cases with convictions before its enactment. The Board also refused to delineate the standard of proof the Petitioner must meet to show that he poses “no risk” to the beneficiary, and in the third case, the Board ruled the the Petitioner bore the burden of proof in showing that his conviction is not a “specified offense against a minor”. The latter allowed the Service to use a case-by-case analysis, and permitted the Service to abdicate the long-standing categorical approach in analyzing such offenses.

As I argued before, there are several constitutional problems with the law. The Board can not rule on constitutional challenges to the laws which it applies. The task of determining the constitutionality of these laws falls on circuit and district courts around the nation. I look forward to the constitutional challenges that advocates will bring forward against this injurious law.

To read the three decision visit here.