Matter of Graciela Quilantan (PUB)
**AOS/245(a), entry/procedural regularity**
For purposes of establishing eligibility for adjustment of status under INA section 245(a), a respondent seeking to show that she has been “admitted” to the United States pursuant to INA section 101(a)(13)(A) need only prove procedural regularity in her entry, which does not require her to be questioned by immigration authorities or be admitted in a particular status. Here, the Respondent physically presented herself for questioning, which constitutes an inspection, even though she volunteered no information and was not actually questioned by the immigration authorities. The 1960 amendment to INA section 245(a) replaced the requirement that the respondent be admitted as a bona fide nonimmigrant, i.e., that the respondent’s admission be substantively lawful, with a requirement that the respondent simply be inspected and admitted, i.e., that his or her admission be procedurally regular. Matter of Areguillin, 17 I&N Dec. 308 (BIA 1980) (interpreting the term “admitted” to denote only procedural regularity, not compliance with substantive legal requirements) presented a factual scenario nearly identical to the one in this case. This interpretation remains valid–INA section 101(a)(13)(A), as enacted by the IIRIRA, does not abrogate the holding in Matter of Areguillin. A contrary interpretation would attribute to Congress an intent to reinstate an additional requirement of substantive legal compliance for adjustment of status under section 245(a), despite the absence of any evidence of such congressional intent. In addition, the waiver of inadmissibility under section 212(h) would potentially become available to those who had procured lawful permanent residence by fraud and misrepresentation.
Concurring, Lauri Steven Filppu:This construction of the terms “admission” and “admitted” to demand only a procedurally lawful entry gives limited meaning to the word “lawful,” but it is the interpretation most in keeping with the overall structure and sound operation of the statute as a whole.
Soria Vega v. Holder (PUB)
Soria Vega’s argument that his motion to reopen was timely because it was filed within 90 days of the BIA’s denial of his motion to reconsider fails. A “final administrative order of removal “ is not defined by the statute. While he maintains that the denial of the motion to reconsider qualifies as “a final administrative order of removal,” only an order of removal entered upon a decision by the BIA on the merits of the alien’s case is a “final administrative order of removal.” This definition excludes a denial of a motion to reconsider.
http://www.ca9.uscourts.gov/datastore/opinions/2010/07/19/07-72618.pdf
Matter of Velasquez
**Assault & battery/COV/crime of domestic violence, 18.2-57.2(A) of the Virginia Code Annotated**
The misdemeanor offense of assault and battery against a family or household member in violation of section 18.2-57.2(A) of the Virginia Code Annotated is not categorically a crime of violence under 18 U.S.C. § 16(a) (2006) and therefore not categorically a crime of domestic violence. In regard to crimes against the person, the “physical force” necessary to establish that an offense is a “crime of violence” for purposes of the INA must be “violent” force– force capable of causing physical pain or injury to another person. The key inquiry is not the alien’s intent for purposes of assault, but rather whether battery, in all cases, requires the intentional use of “violent force.” An offense cannot therefore be classified as a “categorical” crime of violence unless it includes as an element the actual, attempted, or threatened use of violent force that is capable of causing pain or injury. The crime of assault and battery in Virginia does not contain such a requirement.
Matter of Sanchez-Cornejo
**Simulated controlled substance violation, Section 482.001(4) of the Texas Health and Safety Code**
The offense of delivery of a simulated controlled substance in violation of Texas law is not an aggravated felony, as defined but it is a violation of a law relating to a controlled substance under former INA section 241(a)(2)(B)(i). State drug offense qualifies as a drug trafficking crime under 18 U.S.C. § 924(c) (2006) and, by extension, an aggravated felony under section 101(a)(43)(B) of the Act, if the offense would have been punishable as a felony under the CSA. The delivery of a simulated controlled substance is not an offense that is punishable under the CSA. Section 482.001(4) of the Texas Health and Safety Code defines a “simulated controlled substance” as one “that is purported to be a controlled substance, but is chemically different from the controlled substance it is purported to be.” Respondent has not disputed the IJ’s finding that his conviction is a violation of a law relating to a controlled substance– a conviction for distribution of a look-alike substance constitutes a conviction relating to controlled substances.
Matter of Garcia Arreola
**Mandatory detention**
Section 236(c) of the Immigration and Nationality Act requires mandatory detention of a criminal alien only if he or she is released from non-DHS custody after the expiration of the Transition Period Custody Rules (“TPCR”) and only where there has been a post- TPCR release that is directly tied to the basis for detention under sections 236(c)(1)(A)–(D) of the Act. Matter of Saysana, 24 I&N Dec. 602 (BIA 2008), overruled.
Matter of Interiano-Rosa
**Timely filed app/supporting docs**
When an application for relief is timely filed but supporting documents are not submitted within the time established, the IJ may deem the opportunity to file the documents to be waived but may not deem the application itself abandoned.
Matter of Luis Castillo-Padilla (6/18)
** Conditional parole under 236(a)(2)(B), AOS**
Conditional parole under INA section 236(a)(2)(B) is a distinct and different procedure from parole under INA section 212(d)(5)(A). A respondent who was released from custody on conditional parole pursuant to section 236(a)(2)(B) of the Act has not been “paroled into the United States” for purposes of establishing eligibility for adjustment of status under section 245(a) of the Act. Under section 245(a) of the Act, adjustment of status is available only to aliens who were “inspected and admitted or paroled into the United States.” It is true that section 236(a)(2)(B) uses the phrase “conditional parole,” but that is not the phrase used in section 245(a). Section 245(a) uses the phrase “paroled into the United States,” which is identical to the language used in section 212(d)(5)(A) of the Act. Moreover, even if the statutory provisions at issue here were considered ambiguous, we would reach the same conclusion, because interpreting a release from custody under section 236(a) to be the equivalent of “parole into the United States” under section 212(d)(5)(A) would create conflicts within the regulatory and statutory schemes. Additionally, the regulations relating to parole under section 212(d)(5)(A) of the Act provide different standards from those in the regulations regarding conditional parole.
Furthermore, while respondent was issued an I-94, it does not contain the stamp, as required by regulation, indicating that the respondent was granted parole under section 212(d)(5)(A) of the Act, but rather contains a stamp that explicitly states that the respondent was released from custody after posting a $12,000 bond. Finally, even if internal memoranda could be relied on as support for the respondent’s interpretation of the statute, a 2007 DHS memorandum entitled “Clarification of the Relation Between Release Under Section 236 and Parole Under Section 212(d)(5) of the Immigration and Nationality Act” expressly superseded the paragraph in the 1998 memorandum that could be read as equating conditional parole under section 236(a)(2) with parole under section 212(d)(5)(A).
Matter of Mendez-Orellana (6/9)
Matter of Monges-Garcia
**Motion to reopen in absentia deportation orders, AOS, 5-year limitation on discretionary relief for failure to appear**
The 90-day time limitation for filing a motion to reopen in 8 C.F.R. § 1003.23(b)(1) (2010) applies to motions to reopen in absentia deportation orders for the purposeof adjusting status, whether filed before or after the 1996 promulgation of the regulations. The respondent is subject to the current version of the regulation at 8 C.F.R. § 1003.23(b)(1), which required her to file her motion to reopen before the IJ by September 30, 1996, because her in absentia deportation order was issued on October 28, 1994. Because her motion was not submitted until April 7, 2003, it was untimely filed. Further, there is no conflict between former section 242B(e)(1) of the Act and 8 C.F.R. § 1003.23(b)(1). Specifically, the 5-year limitation on discretionary relief for failure to appear at deportation proceedings under former INA section 242B(e)(1) is not in conflict with, and does not provide an exception to, the 90-day deadline for filing a motion to reopen in 8 C.F.R. § 1003.23(b)(1). The 5-year bar is applicable only to respondents who failed to appear for a hearing, including those who left the United States and subsequently returned. The general time limitation on filing a motion in 8 C.F.R. § 1003.23(b)(1) is an independent provision that applies to any respondent who has been ordered excluded, deported, or removed. These provisions have separate restrictions for different purposes and are not at odds with one another.
Matter of B-Y- (5/6)
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