BIA decision vacated and matter be remanded to the Board to make such findings as may be necessary to determine whether and how the constitutionality of DOMA is presented in this case, including, but not limited to: 1) whether respondent’s same-sex partnership or civil union qualifies him to be considered a “spouse” under New Jersey law; 2) whether, absent the requirements of DOMA, respondent’s same-sex partnership or civil union would qualify him to be considered a “spouse” under the Immigration and Nationality Act; 3) what, if any, impact the timing of respondent’s civil union
should have on his request for that discretionary relief; and 4) whether, if he had a “qualifying relative,” the respondent would be able to satisfy the exceptional and unusual hardship requirement for cancellation of removal.

http://www.justice.gov/eoir/vll/intdec/vol25/3712.pdf

The applicant has established that ChevronTexaco qualifies as an “American firm or corporation” under section 316(b) of the Act. The fact that a firm is incorporated under the laws of a State of the United States does not necessarily determine that it is an American firm or corporation. However, given the difficulty of tracing the nationalities and ownership interests of modern public corporations, it is reasonable to presume that a publicly held corporation meets the definition of “American firm or corporation” for section 316(b) purposes if the applicant demonstrates that the employer is both incorporated in the United States and trades its stock exclusively on U.S. stock markets. In the present matter, the evidence contained in the record establishes that ChevronTexaco is incorporated in the United States and that it is a publicly held corporation whose stock is exclusively sold on United States stock exchange markets.

In addition, the applicant has established that Saudi Arabia Texaco (“SAT”) qualifies as a “subsidiary” of ChevronTexaco under section 316(b) of the Act. Although the applicant could have submitted more probative evidence to establish that SAT is a subsidiary of ChevronTexaco, such as direct evidence of the ownership of SAT stock, the AAO finds that the SEC Form 10-K and the letter written by his employer are sufficient to establish by a preponderance of evidence that SAT is a wholly owned subsidiary of ChevronTexaco.7 Except where a different standard is specified by law, a petitioner or applicant in administrative immigration proceedings must prove by a preponderance of evidence that he or she is eligible for the benefit sought. Even if the director has some doubt as to the truth, if the petitioner submits relevant, probative, and credible evidence that leads the director to believe that the claim is “more likely than not” or “probably” true, the applicant or petitioner has satisfied the standard of proof. Accordingly, the applicant meets the requirements for preservation of his residence for naturalization purposes pursuant to INA section 316(b).

http://www.justice.gov/eoir/vll/intdec/vol25/3700.pdf

Pursuant to the statutory framework for the granting of immigrant status, any United States employer desiring and intending to employ an alien “entitled” to immigrant classification under the Act “may file” a petition for classification. However, section 204(b) of the Act mandates that USCIS approve that petition only after investigating the facts in each case, determining that the facts stated in the petition are true and that the alien is eligible for the requested classification, and consulting with the Secretary of Labor when required. Congress specifically granted USCIS the sole authority to approve an immigrant visa petition; an alien may not adjust status or be granted immigrant status by the Department of State until USCIS “approves” the petition. Therefore, to be considered “valid” in harmony with the thrust of the related provisions and with the statute as a whole, the petition must have been filed for an alien who is “entitled” to the requested classification and that petition must have been “approved” by a USCIS officer pursuant to his or her authority under the Act. Contrary to the applicant’s assertions, a petition is not made “valid” merely through the act of filing the petition with USCIS or through the passage of 180 days. Here, the petition was filed on behalf of the respondent who was not “entitled” to the classification and the petition was ultimately denied. Section 106(c) of AC21 does not repeal or modify section 204(b) or section 245 of the Act, which require USCIS to approve a petition prior to granting immigrant status or adjustment of status. Accordingly, this petition cannot be deemed to have been “valid” for purposes of section 106(c) of AC21.

http://www.justice.gov/eoir/vll/intdec/vol25/3699.pdf

Substantial evidence supports the BIA’s finding that Barrera-Cruz did not establish past persecution because the 1995 break-in incident and the death and beating of her cousins were not on account of a protected ground, and the threats from the gang member known as “Shaggy” did not rise to the level of persecution.  Substantial evidence also supports the BIA’s finding that Barrera-Cruz did not establish a clear probability of future persecution, particularly because her similarly-situated family members remain in El Salvador unharmed.

http://www.ca9.uscourts.gov/datastore/memoranda/2010/07/30/08-73149.pdf

Assuming (as the parties do) that Or. Rev. Stat. § 164.325 does not categorically qualify as a crime of violence, Tang’s conviction for first degree arson constituted an aggravated felony under the modified categorical approach. The judgment makes clear that Tang was found guilty of the crime in Count 1 of the indictment, which mirrors subsection 1(a) of § 164.325. This means the cour tfound that by starting the fire, Tang intentionally damaged the property of someone else. This constitutes a crime of violence under 18 U.S.C. § 16.

http://www.ca9.uscourts.gov/datastore/memoranda/2010/07/21/09-71507.pdf

Ye filed a motion to reopen based on the birth of two children in the United States. The BIA did not abuse its discretion in denying Ye’s motion to reopen as untimely because she filed it 11 years after the BIA issued its final order, and Ye failed to demonstrate changed circumstances in China to qualify for the regulatory exception to the time limit for filing motions to reopen.

http://www.ca9.uscourts.gov/datastore/memoranda/2010/07/19/07-73284.pdf

Substantial evidence does not support the agency’s denial of petitioners’ withholding of removal claim because Feng Min established that she suffered a forced abortion when she was coerced into having an abortion to keep her job. Further, the agency improperly required corroboration after finding Feng Min credible.

http://www.ca9.uscourts.gov/datastore/memoranda/2010/07/19/07-72515.pdf