In determining whether an alien’s convictions for two or more crimes involving moral turpitude arose out of a “single scheme of criminal misconduct” within the meaning of INA section 237(a)(2)(A)(ii), the Board will uniformly apply its interpretation of that phrase in all circuits. Matter of Adetiba, 20 I&N Dec. 506 (BIA 1992), followed.  The phrase “single scheme of criminal misconduct” is a quintessentially ambiguous term. It is therefore within the Board’s province to provide a reasonable interpretation of the phrase. In light of Chevron and Brand X, as well as the majority of Federal appellate court decisions that have given deference to Matter of Adetiba, the Board respectfully concludes that its analysis is controlling and should now be uniformly applied in all circuits throughout the country.

Where the respondent was convicted in two counties of forgery and possession of stolen property based on his use of multiple stolen credit or debit cards to obtain items of value from several retail outlets on five separate occasions over the course of a day, his crimes did not arise out of a “single scheme of criminal misconduct.”  The fact that the respondent traveled to different venues to obtain additional items of value with the stolen credit cards supports the Immigration Judge’s determination that the respondent’s crimes, while occurring in a single day, did not arise from a “single scheme” of criminal misconduct.

http://www.justice.gov/eoir/vll/intdec/vol25/3733.pdf

Because solicitation to commit a “crime of violence” is itself a crime of violence under 18 U.S.C. § 16(b) (2006), a felony conviction for solicitation to commit assault with a dangerous weapon in violation of section 11-1-9 of the General Laws of Rhode Island is for a crime of violence and therefore an aggravated felony under section 101(a)(43)(F) of the Act, where a sentence of 1 year or more has been imposed. However, the offense of solicitation is not an aggravated felony under section 101(a)(43)(U) of the Act because it is not an attempt or conspiracy.

http://www.justice.gov/eoir/vll/intdec/vol25/3732.pdf

1. In order to establish that a returning lawful permanent resident alien is to be treated as an applicant for admission to the United States, DHS has the burden of proving by clear and convincing evidence that one of the six exceptions to the general rule for lawful permanent residents set forth at section 101(a)(13)(C) of the Immigration and Nationality Act. Here, the Immigration Judge properly allocated the burden of proof to the DHS in this matter and correctly employed a “clear and convincing” legal standard.

2. The offense of accessory after the fact is a crime involving moral turpitude, but only if the underlying offense is such a crime.

http://www.justice.gov/eoir/vll/intdec/vol25/3731.pdf

Attempted arson in the third degree in violation of sections 110 and 150.10 of the New York Penal Law is an aggravated felony even though the State crime lacks the jurisdictional element in the applicable Federal arson offense (an essential element of the Federal crime involves a finding that the property damaged was used in interstate commerce). In addition, while the respondent also argues that the term “maliciously,” included in each Federal provision, requires greater culpability than a specific intent to damage or destroy property and thus goes beyond the mens rea requirement of the New York statute, the Third Circuit, in whose jurisdiction this matter arises, has stated that the term “maliciously,” as used in § 844(f)(1), means “intentionally or with willful disregard of the likelihood that damage or injury will result.” Because the term “maliciously” includes destruction of property undertaken intentionally, the “intentional” mens rea of section 150.10 of the New York Penal Law is covered by the term “maliciously” in § 844(i).

http://www.justice.gov/eoir/vll/intdec/vol25/3730.pdf

An individual who is older than 21 years of age on the date of his or her parent’s naturalization cannot qualify as an immediate relative– under section 201(f)(2) of the Act, the child’s age on the date of his or her parent’s naturalization is controlling for purposes of determining immediate relative status. Because Respondent was 22 years old on July 24, 2009, the date of his mother’s naturalization, he is not a “child” of a United States citizen and is unable to adjust his status as an immediate relative. In addition, section 203(h)(1) of the Act does not apply to determinations of immediate relative status. By its terms, section 203(h)(1) is limited to calculating the adjusted age of aliens in the 2A-preference category and derivative beneficiaries.

Pursuant to 8 C.F.R § 204.2(i)(3), when his mother naturalized on July 24, 2009, the respondent’s preference status automatically converted to the first-preference category. An individual cannot retain preference status as the child of a lawful permanent resident upon the naturalization of his or her parent. Neither section 204(k)(2) of the Act nor the USCIS memorandum allows an individual to elect to remain in the 2A-preference category upon the petitioner’s naturalization where the alien is biologically over the age of 21 but would remain legally a “child” by applying the formula in section 203(h)(1) of the Act.

http://www.justice.gov/eoir/vll/intdec/vol25/3729.pdf

Because INA section 246(a) relates only to proceedings to rescind lawful permanent resident status acquired through adjustment of status, the 5-year statute of limitations in that section is not applicable to bar the removal of an alien who was admitted to the United States with an immigrant visa.

http://www.justice.gov/eoir/vll/intdec/vol25/3728.pdf

When an application for Temporary Protected Status that has been denied by USCIS is renewed in removal proceedings, the IJ may consider any material and relevant evidence, regardless of whether the evidence was previously considered in proceedings before the USCIS.

http://www.justice.gov/eoir/vll/intdec/vol25/3727.pdf

When a respondent in removal proceedings seeks “review” of the Department of Homeland Security’s (“DHS”) denial of a waiver under INA section 216(c)(4) of the requirement to file a joint petition to remove the conditional basis of lawful permanent resident status, he or she may introduce, and the IJ should consider, any relevant evidence without regard to whether it was previously submitted or considered in proceedings before the DHS.

The scope of the review authority provided in 8 C.F.R. § 1216.5(f) (2011) is coterminous with the IJ’s ordinary powers and duties in removal proceedings– the promulgators of the regulation did not intend to exempt section 216(c)(4) waiver applications from the broadly applicable procedures for gathering and receiving evidence in removal proceedings generally.

http://www.justice.gov/eoir/vll/intdec/vol25/3726.pdf

Until a respondent who is arrested without a warrant is placed in formal proceedings by the filing of an NTA, the regulation at 8 C.F.R. § 287.3(c) (2011) does not require immigration officers to advise that individual that he or she has a right to counsel and that any statements made during interrogation can subsequently be used against the alien. The respondent’s statements were made before the initiation of formal removal proceedings and were therefore not obtained in violation of 8 C.F.R. § 287.3(c). Consequently, in the decision on March 2, 2007, the IJ properly determined that the Form I-213 containing the respondent’s statements was admissible and established his removability.

http://www.justice.gov/eoir/vll/intdec/vol25/3725.pdf

When an application for Temporary Protected Status that has been denied by USCIS is renewed in removal proceedings, the Immigration Judge may, in the appropriate circumstances, require the Department of Homeland Security to provide the application that the applicant filed with the USCIS. The regulations that permit an applicant to renew his application for TPS in removal proceedings before an IJ do not specify whether doing so imposes on the applicant or the DHS the responsibility for the production of documents. Likewise, similar regulations that permit the renewal of an application for other benefits in removal proceedings do not specify the respective responsibilities of the parties in this regard. However, there is no language in the applicable TPS regulations that may reasonably be construed as requiring an applicant to file a new application before the Immigration Judge rather than to rely on the application filed with the USCIS. Indeed, the very term “renew” implies a procedure that contemplates production of the previous application. Construing the regulations to require the DHS to provide the application documents ensures that, at a minimum, the IJ has access to the documents the TPS applicant already filed with the Government. When, for example, an applicant has not retained a copy of the application or is unable to produce a complete copy, it is not inappropriate or otherwise outside the IJ’s authority to require the DHS to provide the Immigration Court with the applicant’s TPS application, as it is defined by regulation.

http://www.justice.gov/eoir/vll/intdec/vol25/3724.pdf