BIA Opinions

BIA Decisions

Matter of Lozada, 19 I&N Dec. 637 (BIA 1988): Claims of ineffective assistance of counsel must include a description of the agreement; proof that former counsel was informed of the complaint and given an opportunity to respond; and proof that a report was made to a disciplinary board (or reasons given why not). (Word Doc Summary) (PDF Summary)

Matter of Rainford, 20 I&N Dec. 598 (BIA 1992): LPR adjusts status again as form of relief from removal [deportation]. Quirky bit in INA about how some crimes are a bar to admissibility and others make a noncitizen vulnerable to deportation. Court holds that the noncitizen who can adjust status won’t be immediately deportable for past crime. (Word Doc Summary) (PDF Summary)

In re J-J-, 1 I&N Dec. 976 (BIA 1997) (en banc): The exception to the time and number limits on MTRs depends on a claim for asylum / WH / CAT that offers evidence of materially changed country conditions that could not have been known before. Also, in order for the Board / IJ to exercise their sua sponte authority to reopen a case, the circumstances must be “exceptional.” (Word Doc Summary) (PDF Summary)

In re S-M-J-, 21 I&N Dec. 722 (BIA 1997) (en banc): foundational for testimony and corroboration in asylum cases, especially regarding country conditions. Where corroborating evidence would be reasonably expected, it should be there, or else there should be a good explanation for why it isn’t. (Word Doc Summary) (PDF Summary)

In re M-S-, 22 I&N Dec. 349 (BIA 1998): Recission of in absentia deportation removal order is not a prerequisite for reopening a respondent’s case. Here, respondent wanted to reopen to consider her application for AOS, which she could not do if she also had to rescind (not having the excuse for failure to appear of exceptional circumstances / incarceration / lack of service). (Word Doc Summary) (PDF Summary)

In re G-D-, 22 I&N Dec. 1132 (BIA 1999): The BIA won’t be persuaded to reopen a case on their sua sponte authority despite an untimely MTR unless the circumstances are extremely compelling, such as a dramatic change in the law. (Incremental changes aren’t enough.) (Word Doc Summmary) (PDF Summary)

In re. Rojas [  (2001)]

Matter of Monreal, 23 I&N Dec. 56 (BIA 2001) (en banc): cancellation of removal, “exceptional and extremely unusual hardship standard” not met by the rather ordinary hardships of removal from the country on USC kids. (Word Doc Summary) (PDF Summary)

In re G-Y-R-, 23 I&N Dec. 181 (BIA 2001) (en banc): If the record reflects that the respondent never received mailed service of the NTA with its advisals about address changes, then the respondent cannot be charged with receiving notice and cannot be removed in absentia. However, a respondent can be charged with receiving notice even if she did not personally see the NTA that was mailed to her address. (Word Doc Summary) (PDF Summary)

Matter of Andazola, 23 I&N Dec. 319 (BIA 2002) (en banc): Early discussion of “exceptional and extremely unusual” hardship standard for cancellation of removal. Not successful in this case, but spawned two vigorous dissents about what constitutes “E&EU” hardship. (Word Doc Summary) (PDF Summary)

Matter of Ramos, 23 I&N Dec. 336 (BIA 2002) (en banc): Motion to Reconsider. DUI is not a “crime of violence” under 18 U.S.C. § 16(b) for purposes of INA § 101(a)(43)(F) / 8 U.S.C. 1101(a)(43)(F) (aggravated felony list) because drunk driving does not involve a mens rea above negligence. (Crime of violence requires “use” of force in the commission of a crime, which implies intentionality.) (Word Doc Summary) (PDF Summary)

Matter of Recinas, 23 I&N Dec. 467 (BIA 2002) (en banc): Cancellation of removal for non-LPR, exceptional and extremely unusual hardship to USC children. Mother was sole parent, kids didn’t speak Spanish, no extended family around. Based firmly on Matter of Monreal and Matter of Andazola(Word Doc Summary) (PDF Summary)

In re J-E-, 23 I&N Dec. 291 (BIA 2002) (en banc): CAT claim and definition of torture. Haitian respondents claimed they would be tortured if returned to Haiti because prison conditions were abysmal. This didn’t count as torture because not intentional. (Word Doc Summary) (PDF Summary)

In re C-A-, 23 I&N Dec. 951 (BIA 2006): Seminal PSG case (although decided before W-R-G- so “social visibility” sounds like “ocular visibility”). The group of “Former noncriminal drug informants working against the Cali drug cartel” is not cognizable as a PSG because not particular or socially visible. Immutability of past experiences. (Word Doc Summary) (PDF Summary)

Matter of T-Z-, 24 I&N Dec. 163 (BIA 2007): persecution need not be physical. Economic sanctions, if severe enough, can count as persecution. Chinese forced abortion case. (Word Doc Summary) (PDF Summary)

In Re N-A-M-, 24 I&N Dec. 336 (BIA 2007): A crime need not be an aggravated felony to be deemed a Particularly Serious Crime. If elements of offense bring the crime into the ambit of a PSC, all reliable information may be considered. (Word Doc Summary) (PDF Summary)

Matter of Solon, 24 I&N Dec. 239 (BIA 2007): A crime of moral turpitude generally inheres when the specific intent to accomplish a base act is an element of the offense. (246) (Word Doc Summary) (PDF Summary)

In re J-B-N- & S-M-, 24 I&N Dec. 2008 (BIA 2007): Affirmed by Ndayshimiye v. A.G., 557 F.3d 124 (3d Cir. 2009) (except for the adjective”subordinate”).  Good intro to REAL ID Act of 2005 expectation for proving persecution: a protected ground must be at least one central reason for the alleged persecution. Mixed motives are acceptable, but the persecution on a protected ground must not be incidental, tangential, superficial, or subordinate compared to other reasons for harm. (Word Doc Summary) (PDF Summary)

In re J-Y-C-, 24 I&N Dec. 260 (BIA 2007): Adverse credibility determination based on REAL ID Act of 2005 (does not need to get to the heart of the matter). Demeanor, plausibility, inconsistencies. (Word Doc Summary) (PDF Summary)

Matter of A-M-E- & J-G-U-, 24 I&N Dec. 69 (BIA 2007): PSG of affluence or wealth is not a cognizable group without something else. (Word Doc Summary) (PDF Summary)

Matter of M-F-W- & L-G-, 24 I&N Dec. 633 (BIA 2008): Family planning in China. Insertion of an IUD does not constitute persecution unless there are aggravating circumstances. Resistance to this population control measure has to result in persecution on account of that resistance. (Word Doc Summary) (PDF Summary)

Matter of S-E-G-, 24 I&N Dec. 579 (BIA 2008): PSG and gang resistance: not cognizable groups because not “particular” or “socially visible. Political opinion regarding gang persecution. (Word Doc Summary) (PDF Summary)

“Matter of T-M-H- & S-W-C-, 25 I&N Dec. 193 (BIA 2010): If asylum applicant claims “changed circumstances” that justify missing the one-year application deadline, this does NOT grant an automatic one-year extension; a “reasonable” period of time after the materially changed circumstances is probably < 6 months. (Word Doc Summary) (PDF Summary)

Matter of N-M-, 25 I&N Dec. 526 (BIA 2011): [INA Sec. 208(b)(1)(B)(i) / 8 U.S.C. Sec. 1158(b)(1)(B)(i)] Primer on post-REAL ID Act mixed motives analysis for whistleblowing / anti-corruption. Political opinion asylum case based on employee’s protesting against state-sponsored agency’s practices. (Word Doc Summary) (PDF Summary)

Matter of J-G-, 26 I&N Dec. 161 (BIA 2013): Respondent does not need to rescind an in absentia removal order in order to reopen it to address changed country conditions. There is no number or time limit on MTRs that involve applying for asylum based on changed country conditions. (Word Doc Summary) (PDF Summary)

Matter of L-E-A-, 27 I&N Dec. 40 (BIA 2017): (<–Summary) Family membership can be a cognizable particular social group; must also prove nexus between membership & persecution for asylum.

Matter of Obshatko, 27 I&N Dec. 173 (BIA 2017): Alien is disqualified from discretionary cancellation of removal due to violation of a PFA, regardless of whether they were actually convicted of anything. (Word Doc Summary) (PDF Summary)

Matter of Medina Jimenez (2018): Re. violation of protection order and removal proceedings for non-lawful permanent residents. (Summary)

Matter of Miranda-Cordiero, 27 I&N Dec. 551 (BIA 2019): MTR in absentia order. Pereira was narrowly decided and does not apply to notice or jurisdiction; it’s also not an extraordinary circumstance warranting sua sponte reopening. (Word Doc Summary) (PDF Summary)

Matter of Mendoza-Hernandez and Capula-Cortes, 27 I&N Dec. 520 (BIA 2019) (en banc), superseded by Niz-Chavez v. Garland (US 2021): Overruled: a subsequent Hearing Notice cures or perfects a defective NTA for purposes of the stop-time rule. Still intact: jurisdiction vests in the IJ even if the NTA was defective. (Word Doc Summary) (PDF Summary)

Matter of J-J-G-, 27 I&N Dec. 808 (BIA 2020) [March 31, 2020]: Cancellation of removal only granted if circumstances are truly “exceptional and extremely unusual.” (Word Doc Summary) (PDF Summary)

Matter of K-S-E-, 27 I&N Dec. 818 (BIA 2020) [April 10, 2020]: Firm resettlement bar applies even if host country has made an offer of permanent residence and the individual has chosen not to accept the offer. (Word Doc Summary) (PDF Summary)

Matter of E-R-A-L-, 27 I&N Dec. 767 (BIA 2020):Landowners” will only count as a PSG if there is something immutable about the ownership. It’s also more likely to fly if it’s tied to political opinion. If drug cartels are just motivated by greed for land, it doesn’t count as persecution of landowners. (Word Doc Summary) (PDF Summary)

Matter of D-G-C-, 28 I&N Dec. 297 (BIA 2021): The mere continuation of an activity in the U.S. (like proselytizing in home country through mail / email) doesn’t constitute a “changed circumstances” that would excuse missing the one-year deadline for asylum, if this is the same activity that the alleged persecution targeted. (Word Doc Summary) (PDF Summary)

Matter of Viera-Garcia, 28 I&N Dec. 223 (BIA 2021): [8 U.S.C. §1229c(d)(1) / INA §240A(d)(1)] Defective NTAs, Periera, and Post-Conclusion Voluntary Departure stop-time rule (1 year of physical presence). Defective NTA does not trigger stop-time rule for PCVD either. This case was decided between Bermudez-Cota (BIA 2018) and Niz-Chavez (U.S. April 28, 2021), so it still holds that a subsequent Hearing Notice can cure a defective NTA and thus interrupt the accrual of 1 year of physical presence for PCVD. Incidental detail: factual difference between “I paid the smuggler” and “my mother paid” for discretionary analysis (may depend on respondent’s knowledge of the fee). (Word Doc Summary) (PDF Summary)

Matter of S-L-H- & L-B-L-, 28 I&N Dec. 18 (BIA 2021): [8 U.S.C. §1229a(b)(5)(C)(i) / INA §240(b)(5)(C)(i), 240(e)(1)] Exceptional circumstances excusing a failure to appear on time at an immigration proceeding must be corroborated by sufficient documentary evidence. Court should consider totality of circumstances of the case to determine whether noncitizen had an intention & incentive to arrive on time. Respondent hired a driver but was caught in sudden snow and traffic and arrived 40 mins late. (Word Doc Summary) (PDF Summary)

Matter of M-F-O-, 28 I&N Dec. 408 (BIA 2021): [INA §239(a); §240B(b)] A defective NTA does not stop the accrual of physical presence for purposes of Post-Conclusion Voluntary Departure and cannot be cured by a subsequent Notice of Hearing. Follows 9th Circuit’s Possos-Sanchez v. Garland, 3 F.4th 1176 (9th Cir. 2021) and partially overrules BIA’s own Matter of Viera-Garcia and Ordonez-Viera, 28 I&N Dec. 223 (BIA 2021) (which saw the connection with PCVD but said that a subsequent notice could cure the defective NTA). (Word Doc Summary) (PDF Summary)