We begin a regular review at what’s happened and happening at the BIA.

Matter of Gamero, 25 I&N Dec. 164 (BIA 2010) (Jan. 13, 2010)

Has voluntary departure gotten complicated enough for you? Well, the BIA has added another chapter to the Vol. Dep. Book now with this decision. The BIA has determined that voluntary departure may only be reinstated by the Board if the Respondent provides proof of the posting a voluntary departure bond with the notice of appeal. As Gamero was not on notice of this requirement and the Immigration Judge failed to provide warnings of the need to provide proof of the voluntary departure bond with the notice of appeal, the case was remanded to permit warnings to be given. Presumably the Board is also allowing Gamero to comply with this new requirement.

Matter of Diaz and Lopez, 25 I&N Dec. 188 (BIA 2010)(Jan. 27, 2010)

Just when you thought it was safe to live in the 9th Circuit, the BIA comes back with another repudiation of 9th Circuit precedent. The legal issue at hand is whether or not INA §254(i) trumps the permanent bar on admission found in INA §212(a)(9)(C)(i)(I)? Previously in Acosta v. Gonzales, 4329 F.3d 580 (9th Cir. 2006) determined that §245(i) did trump the permanent bar.

Since that time, however, the BIA directly addressed the question of the interplay between the two statutes and in Matter of Briones, 24 I&N Dec. 355 (BIA 2007) found the opposite of the 9th Circuit. The Board found the §212(a)(9)(C)(i) could not be overcome, even through adjustment under §245(i).

Both cases, now consolidated by the BIA, arose in the 9th Circuit and the Board directly challenges the Circuit’s previous finding and urges the Circuit to adopt the Board’s administrative interpretation of the two statutes pursuant to Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005) and Chevron, USA., Inc. V. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). The Board points out in its decision that the Second, Sixth and Seventh Circuits have given deference under Chevron to the BIA’s interpretation of the two statutes.

Additionally, the BIA pointed out that the 9th Circuit had recently adopted it’s interpretation of the interaction between INA §§245(i) and 212(a)(9)(C)(i)(II) by giving deference to the Board because of the ambiguity of the statutes and in the process overturning prior 9th Circuit precedent.

In it’s analysis, the Board rejected the argument that it was bound by Mercado-Zzueta v. Holder, 580 F.3d 1102 (9th Cir. 2009) that precludes an agency from “repeatedly putting forward an interpretation . . .” that has already been rejected as unreasonable. Diaz & Lopez at 190. The BIA says “take THAT 9th Circuit.”

Matter of Neto, 25 I&N Dec. 169 (BIA 2010).

The on-going saga of INA §204(j) and Matter of Perez-Vargas, 23 I&N Dec. 829 (BIA 2005) may be finally coming to a close. Under Perez-Vargas, the Board had determined that an Immigration Judge lacked jurisdiction to determine whether an employment-based visa petition remained valid under §204(j). The decision caused great confusion and a few Circuit Court cases as well. Three circuits, including the Fourth, Fifth and Sixth rejected the Board’s analysis after Perez-Vargas. As a result, the Board adopted the Circuit Courts’ interpretations and explicitly recognizes the Board’s and Immigration Judge’s authority to determine whether, despite a change of employment, an employment-based visa petition remains valid.

Sanity has now been restored—at least on this issue.

Matter of T-M-H- & S-W-C-, 25 I&N Dec. 193 (BIA 2010).

A husband and wife, natives and citizens of China were granted asylum under INA §208. Their asylum applications were filed within one year following the birth of their second child. The Court determined that applicants are not allowed a year to file asylum following “changed circumstances.” The BIA points out that the regulations require such applications to be filed “within a reasonable period . . ..” T-M-H- & S-W-C- at 194, citing 8 C.F.R. §1208.4(a)(4)(ii).

The BIA refers to prior decisions and Supplementary Information included with the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), that states that a person whose immigration status is terminated or expired is generally required to file for asylum within a “reasonable period,” which has been determined to be less than six months. T-M-H- & S-W-C- at 195.

The case is remanded to determine whether the 9 month delay by the female respondent in filing for asylum and a one-year delay in filing by the male respondent following the birth of their second child is reasonable. The IJ has been instructed to make additional findings of fact “with respect to the particular circumstances involved in the delay[s] . . ….” T-M-H- & S-W-C- at 196.

Matter of Morales, 25 I&N Dec. 186 (BIA 2010).

Respondent had filed for cancellation of removal for non-permanent residents pursuant to INA §240A(b). The Immigration Judge (“IJ”) denied the application and granted voluntary departure.

The IJ had failed to consider Respondent’s step-father as a qualifying relative in determining whether the requisite hardship standard had been met. The Board points out that the definition of “parent” under the INA includes step-parents who meet particular requirements and moreover, Board cases had recognized step-parents ahs visa petitioners for many years.

The BIA found that a step-parent meeting the definition of “parent” under INA§101(b)(2) and must be considered in making a hardship determination under INA §240A(b)(1)(D).

When this decision came out, it seemed unnecessary, but apparently at least one judge in Los Angeles, CA was unable to properly evaluate the meaning of “parent” pursuant to the Immigration Laws. Another positive step forward for the Board.

Matter of Rose, 25 I&N Dec. (BIA 2010).

Ms. Rose was married to a United States citizenship and received conditional permanent resident status through her husband’s petition on her behalf. Unfortunately, he died prior to the removal of conditions on Ms. Rose’s permanent resident status. The Respondent, Ms. Rose, filed a petition to remove the conditions on her residence, but the case was denied and the Respondent’s status was terminated.

The IJ reviewed the Service’s decision and likewise denied it because the I-751 Petition to Remove Conditions was not filed jointly and there was no determination that Respondent was eligible for a waiver. A direct appeal was dismissed and a motion to reconsider was filed.

In consideration of the issue before it, the BIA determined that the death of a spouse during the two-year conditional period waives the need to file a joint petition, but the surviving spouse need not file a separate waiver if the initial petition is filed timely and the Respondent appears for an interview.

The Board determined that INA §216(c)(1)(A) and (B) exempts windows and widowers from having to file a joint petition and attend an interview. Therefore, it was an error for the Service and the IJ to deny the case for failure to make a waiver claim. The BIA also reiterates that it is the Services’ burden of proving “by a preponderance of the evidence,” that the Respondent is removable. Matter of Rose, at 185. The record was remanded.

– blogging by Kerry Doyle, AILA Amicus Committee member.

In Matter of Neto, 25 I&N Dec 169, the Board vacated an earlier decision, Matter of Perez-Vargas, 23 I&N Dec. 829 (2006), and held that Immigration Judges and the Board have jurisdiction to determine whether a job is “portable” under INA 204(j). There are good reasons that the Board reversed Matter of Perez-Vargas, including the fact that every court of appeals to consider the question had rejected their reasoning after finding that the statute unambiguously made the 204(j) determination part of the adjustment adjudication and not that of the visa petition. The Board had scheduled oral argument on the case, but after DHS weighed in & agreed that Matter of Perez-Vargas was wrongly decided, oral argument was canceled.

We aren’t sure what to make of Neto just yet. Sure, it reached the right result thanks to some excellent advocacy work by the petitioner’s counsel and a strongly written amicus brief by AIC and AILA (drafted by Mary Kenney & Trina Realmuto). But there are still some analytical oddities in the reasoning of the majority opinion. Amici AIC and AILA argued that the statute was plain and, therefore, the case is resolved at Chevron step-one. That’s not so, Board Member Filppu, writing for the majority explained. Eschewing a statutory interpretation analysis, he explained that the statute isn’t so plainly written. Over four pages of decision, he offers a mode of analysis that Harry Truman might find meaningful: no one else will make the 204(j) determination and the Circuit Courts won’t let us off the hook either, therefore, someone’s gotta do it and so we will because the buck stops here. What this has to do with what the statutory language means is a point lost on us.