Adjustment of status under INA section 245(i) is unavailable to a respondent who is inadmissible under section 212(a)(9)(B)(i)(II) of the Act,  absent a waiver.  Matter of Lemus, 24 I&N Dec. 373 (BIA 2007), clarified.

http://www.justice.gov/eoir/vll/intdec/vol25/3745.pdf

A criminal statute is divisible, regardless of its structure, if, based on the elements of the offense, some but not all violations of the statute give rise to grounds for removal or ineligibility for relief.

Here, section 120.14(1) of the New York Penal Law is itself divisible because the “deadly weapon” may or may not be a firearm under 18 U.S.C. § 921(a). The statute contains an element—use of a “deadly weapon”—that could be satisfied by removable conduct—that is, possession or carrying of “any loaded weapon from which a shot . . . may be discharged.” However, it also contains elements that are satisfied by conduct that would not render the respondent removable. For example, the use of a knife or some forms of a “dangerous instrument,” such as a vehicle, to commit a violation would not be a removable offense because the use of a firearm, as defined in 18 U.S.C. § 921(a), is not involved. Moreover, the use of “what appears to be a pistol” to commit a violation would also not be a removable offense under section 237(a)(2)(C), because a plastic water pistol, for example, is not a firearm under 18 U.S.C. § 921(a). Because section 120.14(1) can result in a categorical match or mismatch of elements when compared with section 237(a)(2)(C) of the Act, it is divisible, regardless of the fact that not one of the three subdivisions standing alone is categorically a firearms offense under section 237(a)(2)(C).

http://www.justice.gov/eoir/vll/intdec/vol25/3744.pdf

For a respondent to independently qualify for adjustment of status under INA section 245(i) as a derivative grandfathered individual, the principal beneficiary of the qualifying visa petition must satisfy the requirements for grandfathering, including the physical presence requirement of section 245(i)(1)(C) of the Act, if applicable.

http://www.justice.gov/eoir/vll/intdec/intdec/vol25/3743.pdf

An asylum applicant who has established past persecution but no longer has a well-founded fear of persecution may nevertheless warrant a discretionary grant of humanitarian asylum based not only on compelling reasons arising out of the severity of the past persecution, but also on a “reasonable possibility that he or she may suffer other serious harm” upon removal to his or her country under 8 C.F.R. § 1208.13(b)(1)(iii)(B) (2011).   “Other serious harm” may be wholly unrelated to the applicant’s past harm and need not be inflicted on account of race, religion, nationality, membership in a particular social group, or political opinion, but the harm must be so serious that it equals the severity of persecution. In determining whether an applicant has established a “reasonable possibility” of “other serious harm,” adjudicators should focus on current conditions that could severely affect the applicant, such as civil strife and extreme economic deprivation, as well as on the
potential for new physical or psychological harm that the applicant might suffer.

http://www.justice.gov/eoir/vll/intdec/vol25/3742.pdf

A respondent convicted of possession of marijuana with intent to distribute under State law has the burden to show that the offense is not an aggravated felony because it involved a “small amount of marihuana for no remuneration” within the meaning of 21 U.S.C. § 841(b)(4) (2006), which the respondent may establish by presenting evidence outside of the record of conviction.

Here, the respondent was convicted of possession of less than one-half ounce of marijuana and that he credibly testified regarding his acquisition of the marijuana at a party for $100. Considering this evidence, the Immigration Judge determined that the respondent had shown that he was convicted of possessing a “small” amount of marijuana “for no remuneration,” which would be a misdemeanor under the CSA. However, the respondent bears the burden of proving a lack of intent to distribute the marijuana for remuneration. Although the respondent’s conviction requires a finding of an intent to either distribute or give the marijuana to others, the record contains no clear indication whether the intended distribution was for remuneration or not. Tellingly, the respondent never was asked about, nor did he testify regarding, his intent to give or distribute the marijuana to others without payment. Remanded.

http://www.justice.gov/eoir/vll/intdec/vol25/3741.pdf

Pursuant to the authority delegated by the Attorney General and the responsibility to exercise that authority with independent judgment and discretion, the Immigration Judges and the Board may administratively close removal proceedings, even if a party opposes, if it is otherwise appropriate under the circumstances. Matter of Gutierrez, 21 I&N Dec. 479 (BIA 1996), overruled. In determining whether administrative closure of proceedings is appropriate, an IJ or the Board should weigh all relevant factors, including but not limited to: (1) the reason administrative closure is sought; (2) the basis for any opposition to administrative closure; (3) the likelihood the respondent will succeed on any petition, application, or other action he or she is pursuing outside of removal proceedings; (4) the anticipated duration of the closure; (5) the responsibility of either party, if any, in contributing to any current or anticipated delay; and (6) the ultimate outcome of removal proceedings (for example, termination of the proceedings or entry of a removal order) when the case is recalendared before the IJ or the appeal is reinstated before the Board.

Here, the record shows that the respondent is the beneficiary of a prima facie approvable visa petition filed by her now United States citizen spouse, who is the father of her United States citizen child. The DHS objected to administrative closure of the proceedings only because that visa petition had not yet been adjudicated. However, despite the numerous continuances granted by the Immigration Judge, and through no apparent fault of the respondent or her petitioner husband, the visa petition has been pending before the DHS for a significant and unexplained period of time. The DHS has not identified any obvious impediment to the approval of the visa petition or to the respondent’s ability to successfully apply for adjustment of status once the visa petition is approved. Her adjustment of status would warrant termination of these proceedings. The circumstances in this case support the administrative closure of proceedings.

http://www.justice.gov/eoir/vll/intdec/vol25/3740.pdf

Conviction records that were submitted by electronic means are conclusively admissible as evidence of a criminal conviction in immigration proceedings if they are authenticated in the manner specified by section 240(c)(3)(C) of the Act and 8 C.F.R. § 1003.41(c), but those methods of authentication, which operate as “safe harbors,” are not mandatory
or exclusive, and documents that are authenticated in other ways may be admitted if they are found to be reliable.
A document that requires authentication but that is not authenticated is not admissible as “other evidence that reasonably indicates the existence of a criminal conviction” within the meaning of 8 C.F.R. § 1003.41(d).

http://www.justice.gov/eoir/vll/intdec/vol25/3739.pdf

A decision by a Federal court of appeals reversing a precedent decision of the Board of Immigration Appeals is not binding authority outside the circuit in which the case arises.

A stalking offense for harassing conduct in violation of section 646.9(b) of the California Penal Code is a crime of violence under and therefore an aggravated felony.  Matter of Malta, 23 I&N Dec. 656 (BIA 2004), reaffirmed. Malta-Espinoza v. Gonzales, 478 F.3d 1080 (9th Cir. 2007), followed in jurisdiction only.

http://www.justice.gov/eoir/vll/intdec/vol25/3738.pdf

A facially valid permit to reside in a third country constitutes prima facie evidence of an offer of firm resettlement pursuant to INA section 208(b)(2)(A)(vi) even if the permit was fraudulently obtained.  Where an asylum applicant who has resettled in a third country travels to the United States or the country of claimed persecution and then returns to the country
of resettlement, he or she has not remained in that country “only as long as was necessary to arrange onward travel” for purposes of establishing an exception to firm resettlement pursuant to 8 C.F.R. § 1208.15(a) (2011).

http://www.justice.gov/eoir/vll/intdec/vol25/3737.pdf

The respondent’s conviction for possession of child pornography in violation of CPC section 311.11(a) is an aggravated felony and a particularly serious crime, based on the nature of the offense and the specific facts and circumstances of the crime.  Child pornography is an intrinsically serious offense that is directly related to the sexual abuse of children.  Because of the nature of the offense, the Respondent has contributed to the sexual abuse of children by downloading child pornography for his own use. “[P]ossessing child pornography . . . fuels the demand for the creation and distribution of child pornography.” In addition, the nature of the respondent’s crime is so condemnable that the length of the sentence is less significant to the analysis. Also, as a result of his conviction, the respondent was required to register as a sex offender.

http://www.justice.gov/eoir/vll/intdec/vol25/3736.pdf