N-A-M v. Holder, Nos. 07-9580 and 08-9527 (10th Cir. Nov. 20, 2009).

Under 8 U.S.C. § 1231(b)(3)(A), the Attorney General may not remove an alien to a country if the Attorney General decides that the alien’s life or freedom would be threatened in that country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.

However, § 1231(b)(3)(B)(ii) provides an exception to withholding of removal if the Attorney General decides that the alien, having been convicted by a final judgment of a particularly serious crime is a danger to the community of the United States. An alien who has been convicted of an aggravated felony (or felonies) for which the alien has been sentenced to an aggregate term of imprisonment of at least 5 years shall be considered to have committed a particularly serious crime. This shall not preclude the Attorney General from determining that, notwithstanding the length of sentence imposed, an alien has been convicted of a particularly serious crime.

An alien who is described in 8 U.S.C. § 1227(a)(4)(B) shall be considered to be an alien with respect to whom there are reasonable grounds for regarding as a danger to the security of the United States.

Under 8 U.S.C. § 1252(a)(2), a court of appeals has jurisdiction to review constitutional challenges and questions of law raised in a petition for review from a BIA decision. This court reviews the petitioner’s statutory challenge and her due process claim de novo.

Consistent with the rule in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984), the BIA is entitled to deference in interpreting ambiguous provisions of the INA under the specific facts of this case.

This court refuses to adopt the petitioner’s suggestion that the BIA’s construction of “particularly serious crime” should be limited to aggravated felonies as adopted by the Third Circuit. The BIA has developed administrative standards for determining what constitutes a particularly serious crime. In judging the seriousness of a crime, the BIA looks to such factors as the nature of the conviction, the circumstances and underlying facts of the conviction, the type of sentence imposed, and, most importantly, whether the type and circumstances of the crime indicate that the alien will be a danger to the community. This court agrees that apart from the designation of certain aggravated felonies as “particularly serious” offenses, the statute contains no limiting language restricting the Attorney General’s discretion to label other crimes as “particularly serious.” And, the long history of case-by-case determination of ‘particularly serious’ crimes” counsels against the petitioner’s attempt to craft a bright-line rule. Furthermore, Congress’s use of two different terms–“particularly serious” crime and “aggravated felony”– is additionally indicative of substantively distinct meanings. Given these somewhat open-ended definitions, the BIA or the Attorney General is authorized to develop a reasonable construction § 1231 to which this court defers under Chevron.

Section 1231(b)(3)(b)(ii) empowers the Attorney General to deny withholding to alien petitioners upon a determination that the petitioner having been convicted by a final judgment of a particularly serious crime is a danger to the community of the United States. The BIA construes this provision as requiring only an inquiry into whether the alien has committed a particularly serious crime. Once an alien is found to have committed a particularly serious crime, the BIA no longer engages in a separate determination to address whether an alien is a danger to the community.

The petitioner’s argument that the BIA’s omission of an inquiry into whether the facts and circumstances of her felony menacing conviction warranted a finding that she is a danger to the community constitutes a misapplication of the legal standard as articulated in 8 U.S.C. § 1231 is without success. The petitioner and the distinguished amici make strong arguments that the BIA is not accurately interpreting the statute and its treaty-based under-pinnings. However, this court is bound by its precedent to hold otherwise. In Al-Salehi v. INS, 47 F.3d 390, 393 (10th Cir. 1995), as conceded by Amicus Curiae United Nations High Commissioner for Refugees, this court affirmed the BIA’s interpretation of 8 U.S.C. § 1231, holding that no separate danger-to-the community assessment is required under the statute. And, as the Second Circuit noted in Ahmetovic v. INS, 62 F.3d 48 (2d Cir. 1995), this interpretation conflating the two requirements has been accepted by every circuit that has considered the issue. This court abides by our rule in Al-Salehi and affirm the BIA’s construction of § 1231 here; indeed, the court reminds amici that a panel of this court cannot overturn the decision of a previous panel absent a change in the law.

The petitioner’s contention that the BIA’s reliance on a Statement in Support of Warrantless Arrest (“the Statement”), which reflects hearsay allegations of sexual misconduct for which she received no criminal sanction, in its “particularly serious crime” analysis violated her due process rights is without merit. When facing removal, aliens are entitled only to procedural due process, which provides the opportunity to be heard at a meaningful time and in a meaningful manner. The evidentiary rules are not so strictly applied in immigration hearings. The test for admissibility of evidence in a deportation hearing is whether the evidence is probative and its use is fundamentally fair. Under its precedent dictating the evidentiary rules for immigration proceedings, this court finds no fundamental unfairness in the BIA’s use of the Statement; the petitioner was free to contest the statement with her own evidence. Accordingly, this court rejects the petitioner’s contention that the BIA’s reliance on the statement denied her due process. The BIA’s reasonable construction of 8 U.S.C. § 1231 is entitled to this court of appeals’ deference, and the petitioner suffered no deprivation of her due process rights. Accordingly, this court affirms the decision of the BIA.

Times Square

Matter of Velasco Lopez, [Unpublished] (BIA 11/17/2009).

Where the Board had granted the respondent’s first motion to reopen and remanded the case for further proceedings, there was no final order until the Immigration Judge’s decision rendered as a result of the further proceedings. Therefore, a new motion filed subsequent to the Immigration Judge’s new decision on remand was the first motion filed after the final administrative order pursuant to 8 CFR Sec. 1003.2(c)(2).

Under Dada v. Mukasey, 128 S.Ct. 2307, 2319 (2008), the respondents have a unilateral right to withdraw their application for voluntary departure within the voluntary departure time granted, and the Board concludes that the respondents implicitly exercised their right to withdraw their voluntary departure request when they filed their timely motion to reopen.

Matter of Velasco, 25 I&N Dec. 143 (BIA 2009).

The Supplementary Information at 73 Fed. Reg.76,936 published with the final voluntary departure rule clearly states that its provisions are prospective only. Some confusion may arise, however, from the language stating that this rule will apply to all cases pending before EOIR, or adjudicated by EOIR, on the effective date of this rule and any cases that later come before it. Cases on appeal to the Board are “pending before EOIR.” The Supplementary Information states, however, that an alien who receives a decision by an Immigration Judge granting voluntary departure on or after the effective date of this rule will be subject to the voluntary departure bond provisions of this rule as well as all other applicable provisions. In view of this language, the Board concludes that the reversal of Matter of Diaz-Ruacho, 24 I&N Dec. 47 (BIA 2006) was not given retroactive effect and that the previous regulatory provisions, as interpreted by that decision, still govern cases in which an Immigration Judge granted an alien voluntary departure prior to the effective date of the new rule. The Board notes that this ruling eliminates any unfairness to an alien who, prior to the regulatory change, chose not to post a voluntary departure bond because the Board had ruled in Matter of Diaz-Ruacho that failing to post the bond would automatically vacate the grant of voluntary departure, rather than exercise his or her unilateral right to withdraw the voluntary departure request before the expiration of the voluntary departure period.

Because the Immigration Judge granted voluntary departure to the respondent in the instant case prior to the effective date of the new rule, and because that grant was vacated under the prior regulatory scheme, as interpreted by Matter of Diaz-Ruacho, 24 I&N Dec. 47 (BIA 2006), when the respondent failed to post the required bond, there was no voluntary departure order for the Board to reinstate when it dismissed the respondent’s appeal. Therefore, the Board finds that voluntary departure should not have been reinstated in the prior decision of the instant case. Accordingly, the Board vacates that portion of its February 18, 2009 order reinstating the 60-day voluntary departure period.

Further, because the respondent’s situation was controlled by the Board’s decision in Matter of Diaz-Ruacho, 24 I&N Dec. 47 (BIA 2006), she is not subject to the penalty provisions of section 240B(d)(1) of the Act. Given the effective date of the new rule, its provisions, which obligate an alien who fails to pay the voluntary departure bond to nevertheless depart within the voluntary departure period or suffer the penalties for failing to do so, do not apply to her. 8 C.F.R. § 1240.26(c)(4). The motion to reconsider is therefore granted. The Board’s February 18, 2009, order reinstating the Immigration Judge’s grant of voluntary departure is vacated, which leaves the alternate order of removal to Colombia in effect.

MongKok

Photograph from National Geographic Society

Mongkok (early 1970s?)

Der Ring des Nibelungen: Die Walküre

Metropolitan Opera-1991

Matter of Urena, 25 I&N Dec. 140 (BIA 2009).

Where the Immigration Judge determined that the respondent presents a potential danger to the community based on his criminal history, which includes a conviction and several arrests for offenses with the potential for violent harm to persons, and where the respondent failed to establish on appeal that the Immigration Judge’s conclusion is without a reasonable foundation, the Board finds that there is no error in the Immigration Judge’s determination that the respondent presents a potential danger to the community.

An Immigration Judge may properly consider any unfavorable evidence of an alien’s conduct, including arrests that did not ultimately result in conviction in determining whether the respondent presents a potential risk to the community. On the other hand, arguments and assertions of fact made by the respondent concerning the hardship of his detention are not relevant to the custody determination hearing.

However, the Board finds it necessary to remand the record to the Immigration Judge for clarification of his finding that the respondent presents a “potential” danger. Dangerous aliens are properly detained without bond. In this regard, dangerous aliens have no constitutional right to be at liberty in the United States pending the completion of proceedings to remove them from the country. An Immigration Judge should only set a bond if he first determines that the alien does not present a danger to the community. The alien bears the burden of proving that his release would not pose a danger to property or persons. Only if an alien demonstrates that he does not pose a danger to the community should an Immigration Judge continue to a determination regarding the extent of flight risk posed by the alien. In this regard, the setting of bond is designed to ensure an alien’s presence at proceedings and is not properly utilized where an alien presents a danger to the community.


If an Immigration Judge concluded that the respondent presented a “potential” danger to the community, the respondent would be required, pursuant to that determination, to remain in custody without bond. Conversely, if the Immigration Judge found that despite the potential of danger, the respondent has met his burden of proving that his release would not pose a danger to property or persons, then it would be appropriate to consider the other factors relevant to determining the amount of bond necessary to ensure the respondent’s presence at further proceedings, including his criminal record as it relates to the likelihood that he will appear at future hearings.

Accordingly, the Board will remand the record for the Immigration Judge to clarify his determination that the respondent presents a potential danger to the community. A precise finding whether the respondent has demonstrated that he would not pose a danger to property or persons is required, and if the respondent has failed to meet his burden of proof in that regard, then any release on bond is inappropriate. Only if the respondent has established that he would not pose a danger to property or persons should the Immigration Judge decide the amount of bond necessary to ensure the respondent’s presence at proceedings to remove him from the United States. The record is remanded to the Immigration Judge for further proceedings and for the entry of a new decision.

Kerr v. Holder, No. 08-60020 (5th Cir. Nov. 10, 2009).

The court of appeals lacks jurisdiction to review a removal order based on an alien’s commission of an aggravated felony. However, the court retains jurisdiction to review constitutional claims and questions of law raised in a petition for review. Because the question of whether an offense constitutes an aggravated felony is a purely legal one, the court has jurisdiction to review the petition for appeal. Moreover, the court also has jurisdiction to determine its own jurisdiction, i.e., to determine whether the conviction qualifies as an aggravated felony.

With respect to determining whether a prior conviction falls within a provision of the INA, the court accords substantial deference to the BIA’s interpretation of the INA’ itself and definitions and phrases within it. The court reviews de novo whether the particular statute that the prior conviction is under falls within the relevant INA definition.

Any alien who is convicted of an aggravated felony at any time after admission is deportable Section 101(a)(43) of the INA defines “aggravated felony” to include, inter alia, a crime of violence (as defined in section 16 of title 18, but not including a purely political offense) for which the term of imprisonment is at least one year. Title 18 of the United States Code, Section 16, in turn defines the phrase “crime of violence” to mean, inter alia, any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

This court agrees that the BIA erred in its application of the categorical approach and, because it did not apply the modified categorical approach, this court concludes that remand is appropriate for the agency to make the initial determination on that issue.

To determine whether an alien’s guilty plea conviction constitutes an aggravated felony for removal purposes, this court applies a ‘categorical approach,’ under which this court refers only to the statutory definition of the crime for which the alien was convicted and ask whether that legislatively-defined offense necessarily fits within the INA definition of an aggravated felony.
Accordingly, the court focuses on the statutory element of the offense and not on the actual facts underlying the conviction.

Section 16(b) defines a “crime of violence” as any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” The Supreme Court interpreted § 16(b) in Leocal v. Ashcroft, 543 U.S. 1 (2004), explaining that § 16(b) covers offenses that naturally involve a person acting in disregard of the risk that physical force might be used against another in committing an offense. Stated differently, the reckless disregard in § 16 relates not to the general conduct or to the possibility that harm will result from a person’s conduct, but to the risk that the use of physical force might be required in committing a crime. Moreover, § 16(b) requires a higher mens rea than merely accidental or negligent conduct.

The Florida false imprisonment offense, Fla. Stat. Sec. 787.02, is not categorically a “crime of violence” under § 16(b) because, in addition to forcible imprisonments, the statute also punishes “confinement” of a child without the consent of his or her legal guardian, even if the child acquiesces or consents in fact to the confinement. Other circuits have held that the false imprisonment of a child due only to a lack of consent by the child’s legal guardian does not involve a substantial risk that physical force will be used to commit the offense. The Florida offense of false imprisonment can be committed upon a child who acquiesces or consents in fact to the confinement. There is certainly a possibility that physical force might result from a parent whose child is confined without the parent’s consent (an upset parent scenario), but such force is not necessarily required to commit the offense—rather, it is merely a harm that might result from the commission of the offense. Accordingly, imprisonment of a willing child does not present a substantial risk of using physical force against another. This court therefore holds that the Florida offense of false imprisonment, Fla. Stat. § 787.02, is not categorically a crime of violence under § 16(b). The BIA, in concluding otherwise, misapplied the categorical approach to order petitioner’s removal.

Courts are authorized to apply a modified categorical approach when a statute is divisible in that it defines multiple offenses, at least one of which constitutes an aggravated felony. The modified categorical approach allows the court to examine certain additional documents to determine whether the conviction was ‘necessarily’ for a particular crime defined by the statute that meets the aggravated felony criteria. When the conviction was the product of a guilty plea, these additional documents are the charging document, the written plea agreement, transcript of the plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented. The petitioner thus prevails if the additional documents are insufficient to establish that petitioner was necessarily convicted of an aggravated felony.

Remand is generally appropriate where the BIA has not yet considered an issue. Federal courts are not generally empowered to conduct initial inquiries into matters that statutes place primarily in agency hands. In such cases, the agencies perform the role of initial factfinders; federal courts may only properly involve themselves after the agencies have first considered the underlying merits of the claim, and then only in an appellate review fashion. Because the BIA has not yet applied the modified categorical approach in this matter, this court remands this petition to the BIA for its application of the modified categorical approach to determine whether petitioner’s conviction under Florida’s false imprisonment offense was a “crime of violence” for purposes of § 16(b). Accordingly, the court grants the petition for review and remands for further proceedings.

[Unpublished decision], (BIA, Oct. 8, 2009).

It is undisputed that in the jurisdiction of the United States Court of Appeals for the Ninth Circuit as elsewhere, res judicata applies in immigration proceedings. The criteria for the application of res judicata are that there be a final judgment, rendered on the merits in a separate action. Res judicata bars the government from bringing a second case based on evidence that it could have presented in the first case.

Where the prior removal proceedings were dismissed in response to the respondent's unopposed motion to terminate contending that the sole charge of removability in the previous Notice to Appear was not supported by the facts alleged therein, the Board finds no legal authority or persuasive factual circumstances in the instant case to support the proposition presented in the Immigration Judge's decision that such a dismissal should be deemed "without prejudice" in the absence of an explicit determination regarding an alien's removability, particularly when there is no question that the Immigration Judge's dismissal of the prior proceedings is a final judgment in a separate action, and when the respondent’s conviction was extant for over 9 months during the prior removal proceedings such that it could have been alleged as a factual predicate for a removal charge at that time.

Therefore, the Board reverses the Immigration Judge's determination and finds the previous dismissal order, which does not state otherwise, to be a decision "on the merits." Furthermore, the Board agrees with the respondent that under the law of the Ninth Circuit, within whose jurisdiction this case arises, res judicata precludes DHS from pursuing the sole charge filed in the current proceedings, which is predicated on a conviction extant during prior proceedings that were dismissed as a result of the respondent's unopposed motion to terminate. The appeal will be sustained and removal proceedings will be terminated.

Matter of Rajah, 25 I&N Dec. 127 (BIA 2009).

In providing a reasoned set of standards explicating when continuances for labor certifications are within the range of permissible decisions available to an Immigration Judge, and when they are not, the Board should take into account: (a) the intent of Congress in creating a mechanism for adjusting status based on labor certification and visa eligibility, as expressed in 8 U.S.C. § 1255(i), (b) the lengthy delays and uncertainties caused by the implementation of this mechanism, and (c) the effect, if any, in a given case, of a labor certification being approved after the agency has acted, but while the case is still sub judice; (d) the effect, if any, of waiting for an application for an employment-based visa,as opposed to a labor certification, to be processed, and (e) the effect, if any, of an employment-based visa being denied after the agency has acted, but while the case is still pending.

Immigration Judges derive their broad discretionary authority over continuances from the regulations, which state that the Immigration Judge may grant a motion for continuance for good cause shown.

The Board examined factors that may be considered in determining whether to continue proceedings to afford the DHS’s United States Citizenship and Immigration Services (“USCIS”) the opportunity to adjudicate a Petition for Alien Relative (Form I-130), a family-based visa petition which, if approved, would render the respondent prima facie eligible for adjustment of status. The Board held that the Immigration Judge and the Board may consider a variety of factors in evaluating the propriety of a continuance, including but not limited to: (1) the DHS response to the motion; (2) whether the underlying visa petition is prima facie approvable; (3) the respondent’s statutory eligibility for adjustment of status; (4) whether the respondent’s application for adjustment merits a favorable exercise of discretion; and (5) the reason for the continuance and other procedural factors.

Matter of Hashmi, 24 I&N Dec. 785, 788 (BIA 2009), provides a framework to analyze whether good cause exists to continue proceedings to await adjudication by the USCIS or the DOL. In determining whether good cause exists for a continuance, the Immigration Judge should first determine the respondent’s place in the employment-based adjustment of status process and then consider and balance the Hashmi factors, if applicable, and any other relevant considerations. While all these factors may be relevant in a given case, the focus of the inquiry is the likelihood of success on the adjustment application.

In general, the adjustment of status process under sections 203(b)(1), (4), and (5) of the Act is similar to the two-stepfamily-based adjustment of status process described in Hashmi, while a three-step adjustment process underlies the employment-based classifications described at sections 203(b)(2) and (3) of the Act. First, an alien’s employer or prospective employer in the United States files a labor certification with the DOL on the alien’s behalf. The DOL approves a labor certification only if it is established that there are not sufficient United States workers “able, willing, qualified . . . and available” to perform the job and that the employment of the alien will not adversely affect similarly situated United States workers. Generally, before filing the labor certification, an employer is required to conduct a recruitment campaign to test the affected local labor market to determine whether there are minimally qualified United States workers for the position. Once the required recruitment process is complete, the employer files the labor certification declaring, inter alia, that the job opportunity has been and is clearly open to any United States worker and that United States workers who applied for the job opportunity were rejected for lawful job-related reasons. The labor certification is valid for 180 days from the date the DOL certifies the application. Second, if the labor certification is approved, the employer files a Form I-140 (Immigrant Petition for Alien Worker) with the USCIS pursuant to sections 203(b)(2) and (3) and 204(a)(1)(F) of the Act, 8 U.S.C. § 1154(a)(1)(F) (2006). The I-140 must be filed with the USCIS within the labor certification’s 180-day validity period. Along with the labor certification, the employer must provide evidence showing that at the time the labor certification was filed, the employer had the ability to pay the offered wage and the alien possessed the required education and experience for the job offered. If the USCIS approves the I-140, it also determines the alien’s preference classification under section 203(b)(2) or (3) of the Act, depending on the minimum job requirements for the certified job. Third, if the USCIS approves the I-140 and a visa is immediately available, the alien may apply for adjustment of status under section 245(a) of the Act, 8 U.S.C. § 1255(a) (2006). Aliens in removal proceedings, other than certain arriving aliens, file their Application to Register Permanent Residence or Adjust Status (Form I-485) with the Immigration Judge. The burden is on the respondent to establish his adjustment eligibility. To establish eligibility for adjustment of status under section 245(a) of the Act, the respondent must demonstrate that he has been inspected and admitted or paroled into the United States; is eligible to receive an immigrant visa and the visa is immediately available; is not statutorily barred from adjustment; and is admissible to the United States within the meaning of section 212(a) of the Act, or, if inadmissible, is eligible for a waiver of inadmissibility. The respondent must also demonstrate that adjustment should be granted in the exercise of discretion. If an adjustment application is approved, the alien is accorded lawful permanent residence in the United States. At the time of adjustment of status, the alien must show the continued existence of an offer of employment, as set forth in the labor certification and I-140, and must demonstrate an intent to accept the offer of employment. An alien is not required to have been employed by the certified employer prior to adjustment of status; nor is an alien required to establish an intent to remain at the certified job indefinitely.

Many close family members of aliens who legalized under section 245A of the Act, 8 U.S.C. § 1255a (2006), were unable to adjust status in the United States pursuant to section 245(a) because they had not been inspected and admitted into this country, or they were barred under section 245(c) of the Act. Consequently, they had to leave the United States and apply for an immigrant visa abroad. This placed a significant burden on aliens who were required to travel abroad to apply for an immigrant visa and on the Department of State, which was responsible for processing the visa applications.

Congress responded by adding section 245(i) to the Act, which authorized aliens present in the United States without inspection and admission, or who were otherwise barred from adjustment under section 245(c), to adjust their status upon the payment of a surcharge, provided they met the other statutory and regulatory requirements for adjustment. As originally enacted, section 245(i) was scheduled to sunset after 3 years on October 1, 1997. Congress later enacted a grandfather clause, which allows certain aliens to continue to benefit from the provision.

For section 245(i) eligibility purposes, a grandfathered alien is the beneficiary (including certain family members if they are eligible to receive a visa under section 203(d) of the Act) of a visa petition or labor certification that was (1) filed on or before April 30, 2001, (2) properly filed, and (3) approvable when filed. See section 245(i)(1) of the Act; 8 C.F.R. § 1245.10(a) (2009). “Approvable when filed” means a visa petition or labor certification that was “properly filed, meritorious in fact, and non-frivolous.”

A labor certification is considered properly filed when it was “properly filed and accepted pursuant to the regulations of the Secretary of Labor, 20 CFR 656.21.” An alien relying on a visa petition or labor certification filed after January 14, 1998, must also establish that he or she was physically present in the United States on December 21, 2000.
The fact that an alien is grandfathered for section 245(i) purposes does not entitle the alien to adjust status or to remain in the United States while seeking adjustment of status. To adjust status under section 245(i) of the Act, a grandfathered alien must also be eligible to receive an immigrant visa, be admissible to the United States, and demonstrate that an immigrant visa is immediately available. A grandfathered alien must also establish that adjustment is warranted in the exercise of discretion.

Whether an alien is seeking adjustment of status under section 245(a) or (i) of the Act, there may be lengthy delays and uncertainties resulting from the multi-step adjudication process. The underlying two-step process discussed in Hashmi for family-based petitions (which also relates to certain employment-based categories) and the three-step process for employment-based categories, which require labor certifications, must be followed, irrespective of whether an alien is applying for adjustment under section 245(a) or (i) of the Act. The only difference is that grandfathered aliens are exempt from both the inspection and admission requirement for adjustment at 245(a) and the statutory bars to adjustment set forth at section 245(c) of the Act. Because grandfathered aliens can adjust their status when other aliens would be precluded from adjusting, the Immigration Judges should specifically consider an alien’s eligibility for section 245(i) treatment when considering a motion to continue.

The Board has long held that the Immigration Judge may, in the exercise of discretion, grant a continuance pending the final adjudication of a visa petition. The Board now holds that an Immigration Judge should consider the applicable factors identified in Matter of Hashmi, 24 I&N Dec. 785, and any other relevant considerations when deciding whether to continue removal proceedings to await adjudication by the USCIS or the DOL. Immigration Judges should not rely upon their completion goals when determining whether good cause exists for a continuance.

As in Matter of Hashmi, the focus of the inquiry is the likelihood of success on the adjustment application. A respondent who has a prima facie approvable I-140 and adjustment application may not be able to show good cause for a continuance because visa availability is too remote. Nonetheless, the Immigration Judge must evaluate the individual facts and circumstances relevant to each case. The Immigration Judge needs some basis to examine the merits of the adjustment application. Therefore, the respondent may be required to submit evidence of his adjustment eligibility, including the adjustment
application, relevant supporting documentation, and USCIS fee receipts.

Several circuits, including the Second Circuit, have followed the Eleventh Circuit’s finding in Zafar v. U.S. Att’y Gen., 461 F.3d 1357, that an alien lacks good cause for a continuance based on a pending labor certification because without a prima facie approvable visa petition, eligibility for adjustment is too remote. These cases support the proposition that continuances should not ordinarily be granted based solely on a pending labor certification. We agree that the pendency of a labor certification generally would not be sufficient to grant a continuance in the absence of additional persuasive factors, such as the demonstrated likelihood of its imminent adjudication or DHS support for the motion. When further analysis is warranted because of such additional factors, the Immigration Judge should also consider any indications that the labor certification is not facially legitimate, i.e., that it does not appear to be an application made in good faith by the employer and the respondent. If needed, the respondent may submit evidence that the application has been filed with the DOL, that the employer is prepared to file the I-140 within the 180-day validity period, and that the offer of employment, as prescribed in the labor certification, remains available. Documentation establishing that the relevant DOL processing times are imminent may also be submitted.

In evaluating good cause for the continuance premised on a pending labor certification or I-140, all the factors relevant to the alien’s adjustment eligibility should be considered and articulated. Where applicable, the Immigration Judge should specifically acknowledge and consider the respondent’s status as a grandfathered alien for section 245(i) eligibility purposes.

Finally, the effect, if any, in a given case, of a labor certification being approved after the agency has acted, but while the case is subject to judicial review, should be considered at the direction of the court.

To decide whether a continuance is warranted in this case, the Board employ the Hashmi analysis: first, determining the respondent’s place in the employment-based adjustment process; and, second, articulating, balancing, and explaining the Hashmi factors and any other relevant considerations.

The governing regulations at 8 C.F.R. § 1003.1(d)(3)(iv) provide that a party asserting that the Board cannot properly resolve an appeal without further fact-finding must file a motion for remand. The respondent’s submission of new evidence on appeal is not styled as such a motion. Nevertheless, the Board will determine whether a remand to consider the new evidence is appropriate in the exercise of our discretion. The requirements for a motion to remand are essentially the same as the requirements for a motion to reopen.

A remand is not warranted where the respondent’s labor certification, although once approved, is now invalid. The Board agrees that the approved but now expired labor certification application makes him a grandfathered alien who could potentially be eligible for section 245(i) treatment. However, the respondent does not currently have a pending labor certification. He has not yet begun the lengthy three-step process, starting with the filing of a labor certification. To adjust status, a grandfathered alien must also demonstrate that he is eligible to receive an immigrant visa, that he is admissible to the United States, and that an immigrant visa is immediately available. The respondent has not established prima facie eligibility for adjustment of status. Based on this new evidence the Board finds no reason to remand this case. The appeal is dismissed and the motion to remand is denied.

三字經

民國重定版


人之初　性本善　性相近　習相遠 苟不教　性乃遷 教之道　貴以專
昔孟母　擇鄰處 子不學　斷機杼 荀季和　有義方　教八子　名俱揚
養不教　父之過　教不嚴　師之惰 子不學　非所宜　幼不學　老何為
玉不琢　不成器　人不學　不知義 為人子　方少時　親師友　習禮儀
香九齡　能溫席　孝於親　所當執 融四歲　能讓梨　弟於長　宜先知
首孝弟　次見聞　知某數　識某文 一而十　十而百　百而千　千而萬
三才者　天地人　三光者　日月星 三綱者　君臣義　父子親　夫婦順
曰春夏　曰秋冬　此四時　運不窮 曰南北　曰西東　此四方　應乎中
曰水火　木金土　此五行　本乎數 十干者　甲至癸　十二支 子至亥
曰黃道　日所躔 曰赤道 當中權 赤道下 溫暖極 我中華 在東北
寒燠均 霜露改 右高原 左大海 曰江河 曰淮濟 此四瀆 水之紀
曰岱華 嵩恆衡 此五岳 山之名 古九州 今改制 稱行省 二十二
曰士農 曰工商 此四民 國之良 醫卜相 皆方技 星堪輿 小道泥
地所生 有草木 此植物 遍水陸 有蟲魚 有鳥獸 此動物 能飛走
稻粱菽　麥黍稷　此六穀　人所食 馬牛羊　雞犬豕　此六畜　人所飼
曰喜怒　曰哀懼　愛惡欲　七情具 曰仁義　禮智信　此五常　不容紊
青赤黃 及白黑 此五色 目所識 酸苦甘 及辛咸 此五味 口所含
膻焦香 及腥朽 此五臭 鼻所嗅 宮商角 及徵羽 此五音 耳所取
匏土革　木石金　與絲竹　乃八音 曰平上 曰去入 此四聲 宜調協
九族者 序宗親 高曾祖　父而身　身而子　子而孫 自子孫　至玄曾
五倫者 始夫婦 父子先 君臣後 次兄弟 及朋友 當順敘 勿違負
有伯叔 有舅甥 婿婦翁 三黨名 斬齊衰 大小功 至緦麻 五服終
凡訓蒙　須講究 詳訓詁　名句讀 禮樂射 御書數 古六藝 今不具
惟書學 人共遵 既識字 講說文 有古文 大小篆 隸草繼 不可亂
若廣學 懼其繁 但略說 能知原 為學者　必有初 小學終　至四書
論語者　二十篇 群弟子　記善言 孟子者　七篇是 辨王霸　說仁義
中庸者　子思筆　中不偏　庸不易 大學者　學之程 自修齊 至治平
此二篇 在禮記 今單行 本元晦 四書通　孝經熟　如六經　始可讀
六經者 統儒術 文周作 孔子述 易詩書　禮春秋 樂經亡 餘可求
有連山　有歸藏　有周易　三易詳 有典謨　有訓誥　有誓命　書之奧
有國風 有雅頌 號四詩　當諷詠 周禮者 著六官 儀禮者 十七篇
大小戴 集禮記 述聖言 禮法備 王跡熄 春秋作 寓褒貶　別善惡
三傳者　有公羊　有左氏　有穀梁 爾雅者 善辨言 求經訓 此莫先
注疏備 十三經 惟大戴 疏未成 左傳外 有國語 合群經 數十五
經既明　方讀子　撮其要　記其事 古九流 多亡佚 取五種 備文質
五子者　有荀楊　文中子　及老莊 經子通　讀諸史　考世系　知終始
自羲農　至黃帝 並頊嚳 在上世 堯舜興 禪尊位 號唐虞 為二帝
夏有禹　商有湯　周文武　稱三王 夏傳子　家天下　四百載　遷夏社
湯伐夏　國號商　六百載　至紂亡 周武王　始誅紂 八百載　最長久
周共和 始紀年 歷宣幽 遂東遷 周道衰　王綱墮　逞干戈　尚遊說
始春秋　終戰國　五霸強　七雄出 嬴秦氏　始兼并　傳二世　楚漢爭
高祖興　漢業建　至孝平　王莽篡 光武興　為東漢　四百年　終於獻
魏蜀吳　爭漢鼎 號三國　迄兩晉 宋齊繼　梁陳承　為南朝　都金陵
北元魏　分東西 宇文周　與高齊 迨至隋　一土宇　不再傳　失統緒
唐高祖　起義師　除隋亂　創國基 二十傳　三百載　梁滅之　國乃改
梁唐晉 及漢周 稱五代 皆有由 趙宋興　受周禪　十八傳　南北混
遼與金　皆夷裔　元滅金 絕宋世 蒞中國 兼戎狄 九十年 反沙磧
太祖興　稱大明　紀洪武　都南京　迨成祖　遷宛平 十六世　至崇禎
權閹肆 流寇起 自成入 神器毀　清太祖　興遼東　金之後 受明封
至世祖 乃大同 十二世 清祚終 凡正史 廿四部 益以清 成廿五
史雖繁 讀有次 史記一 漢書二 後漢三 國志四 此四史 最精緻
先四史 兼證經 參通鑑 約而精 歷代事 全在茲 載治亂　知興衰
讀史書　考實錄　通古今　若親目 漢賈董 及許鄭 皆經師 能述聖
宋周程 張朱陸 明王氏 皆道學 屈原賦 本風人 逮鄒枚 暨卿雲
韓與柳 並文雄 李若杜 為詩宗 凡學者 宜兼通 翼聖教 振民風
口而誦　心而維　朝於斯　夕於斯 昔仲尼　師項橐　古聖賢　尚勤學
趙中令　讀魯論　彼既仕　學且勤 披蒲編　削竹簡　彼無書　且知勉
火焠掌　錐刺股 彼不教　自勤苦 如囊螢　如映雪　家雖貧　學不輟
如負薪　如掛角　身雖勞　猶苦卓 蘇明允　二十七　始發憤　讀書籍
彼既老　猶悔遲　爾小生　宜早思 若荀卿 年五十 遊稷下 習儒業
彼既成 眾稱異　爾小生　宜立志 瑩八歲　能詠詩　泌七歲　能賦棋
彼穎悟　人稱奇　爾幼學　當效之 蔡文姬　能辨琴　謝道韞　能詠吟
彼女子　且聰敏　爾男子　當自警 唐劉晏　方七歲　舉神童　作正字
彼雖幼　身己仕　爾幼學　勉而致 犬守夜　雞司晨　苟不學　曷為人
蠶吐絲　蜂釀蜜　人不學　不如物 幼習業　壯致身 上匡國　下利民
揚名聲　顯父母　光於前　裕於後 人遺子　金滿籯　我教子　惟一經
勤有功　戲無益　戒之哉　宜勉力

Japanese TV Shows That Were Broadcasted on Hong Kong TVB in 1980s

学生公主


吾妻十八岁


排球女将


赤的疑惑


阿信的故事


跳驹

Street Arts

Ang Sang Suu Kyi


The Eye

Japanese TV Shows That Were Broadcasted on Hong Kong TVB in 1970s

網球雙鳳 (Unable to locate video clips)






(Unable to locate video clips)


春風桃李

Clips of Old Hong Kong 香港 1960s

香港 Hong Kong (The Fragrant Harbour).

Ghazali v. Holder, No. 08-4229 (6th Cir. Oct. 29, 2009).

The Immigration and Nationality Act strips federal courts of jurisdiction to review decisions “specified under 8 U.S.C. §§ 1151-1381 to be in the discretion of the Attorney General,” except for asylum determinations. Even if this court accepts for the sake of argument (though not argued by either party) that 8 U.S.C. § 1252 applies to motions for reconsideration, that would not preclude review of the instant case as the petition before this court raises a question of law, a statutory exception to the jurisdiction-stripping provision.

This court finds that when an immigration judge determines that an asylum application is time barred, it does not preclude the judge from also finding that the same application is frivolous.

Nothing in 8 U.S.C. § 1158(d)(6) says that an immigration judge may enter a frivolousness finding only when the application is timely filed or otherwise free of statutory bars. All it says is that an immigration judge may find an application frivolous upon determining that an alien, on notice of the consequences of making a frivolous filing, knowingly made a frivolous application for asylum. The statute does not contain an inflexible order of battle—to the effect that immigration judges must address the statutory bars first and, once they do, may no longer make a frivolousness finding if a statutory bar applies. The statute, indeed, does not confine the judge’s authority to make a frivolousness finding only to the merits of the application, as opposed to the procedural hurdles that an applicant must clear before the agency will consider his application. So far as the words of the statute are concerned, they permit the immigration judge to make a frivolousness finding about the merits of the asylum application (because the applicant, say, falsely claims that he has a well-founded fear of persecution in his home country) and about the timeliness of it (because the applicant, say, falsely claims that country conditions have changed, which would otherwise excuse the one-year filing requirement).

Nor is the time-bar provision akin to a restriction on subject matter jurisdiction that might require the immigration judge to address the procedural and substantive claims in a prescribed sequence.

There is nothing in the statute that prohibits the judge from reaching the merits of the asylum application in part as an alternative ground for decision or for that matter from ruling on the merits rather than on a time-bar question if the merits offer a more straightforward ground for decision. While federal judges generally may not assume away a difficult question of subject matter jurisdiction in order to reach an easy merits-determination, the immigration statutes place no comparable constraint on an immigration judge.

It is true that the statute at 8 U.S.C. § 1158(a)(2)(D) says that time-barred applications may be considered if the alien shows changed circumstances, and that of course suggests, in the absence of the exception, that the time bar applies. But that is not the same as stripping the agency of jurisdiction to exercise its authority in a variety of ways: to issue alternative rulings, to reach the merits question first or to make a frivolousness finding with respect to a time-bar argument itself. Indeed, to treat the time bar as jurisdictional in the instant case seems particularly odd given that the immigration judge plainly had jurisdiction to reach the merits of the petitioner’s withholding-of-removal and CAT claims.


The implementing regulations at 8 C.F.R. § 1208 also fail to place any such restriction on the immigration judge. They likewise say that an applicant is subject to a frivolousness determination upon a specific finding that the alien knowingly filed a frivolous asylum application. An asylum application is frivolous if any of its material elements is deliberately fabricated.

So far as the regulations are concerned, an immigration judge may make this finding whenever an alien files a frivolous application, regardless of whether the judge ultimately denies the application on statutory-bar or substantive grounds. The judge simply needs to ensure that the finding relates to a “material” element of the application, one that was material at the time the application was “made.”

Principles of administrative deference re-enforce this conclusion. It is well settled that Chevron deference applies to the Board’s interpretations of the Immigration and Nationality Act, as it gives ambiguous statutory terms concrete meaning through a process of case-by-case adjudication.

Invoking the Attorney General’s authority to provide “controlling” answers to “questions of law” arising under the Act, 8 U.S.C. § 1103(a)(1), the Board in the instant case expressly determined that an immigration judge could make a frivolousness finding with respect to a time-barred application. The BIA concluded that nothing in the statutory or regulatory regime divests an immigration judge’s authority to make a finding of “frivolousness” on a statutorily barred application, and that an asylum application is subject to a bar does not mean that a deliberately fabricated element of the claim is not ‘material’ within the meaning of 8 C.F.R. § 1208, particularly since the fabricated material element could also influence a grant of withholding of removal or protection under the Convention Against Torture.

The BIA’s first explanation is entitled to Chevron deference, as it reflects the BIA’s reasonable construction of a statute that Congress empowered the agency authoritatively to construe. The BIA’s second explanation is entitled to near-conclusive Seminole Rock deference as it reflects the BIA’s construction of its own regulations, namely the meaning of “material” elements of a claim.

Not only is the BIA’s position entitled to Chevron and Seminole Rock deference, but it also has the virtue of being consistent with a premise of related case law in our circuit. In the past, this court of appeals has upheld frivolousness findings even after the petitioner offered to withdraw an application voluntarily. The absence of an application does not obviate the need for the IJ to determine whether his false application should be deemed “frivolous.”

This court of appeals does not agree with the Third Circuit’s findings in Luciana v. Att’y Gen. of the U.S., 502 F.3d 273 (3d Cir. 2007) that it is far from clear whether 8 U.S.C. § 1158 provides authority for an immigration judge to issue a frivolousness finding in the context of an untimely asylum application, and that any deliberate fabrications that go to the merits of the application are not “material” because they cannot influence the disposition of an asylum application already barred by statute. The Third Circuit did not consider a dispositive ground for embracing the Board’s decision—agency deference—and may not even have had a BIA determination on the issue in front of it. By contrast, in the instant case, the BIA expressly rejected the Third Circuit’s reasoning which is in tension with related case law of this circuit, finding nothing in the statutory or regulatory regime that supports its position.

The Third Circuit’s reasoning is faulty. If the Third Circuit is right that a frivolousness finding is no longer “material” once the immigration judge decides that it is time barred, the same would be true if the judge decided that the application failed on a distinct merits ground, whether related to the underlying frivolousness finding or not. For once that other ruling is a possibility, the same potential lack-of-materiality problem raises its head. But immigration judges frequently offer a host of merits-related grounds for rejecting an asylum application, and they should be permitted to do so without compromising their authority to make a frivolousness finding when appropriate.

The time-bar provision, it is true, does not disclaim the possibility that the statutory bars are jurisdictional. But neither does it say they are. The immigration judge plainly had jurisdiction over the merits of the asylum application at the time it was filed. And the reality that the judge identified a time bar did not prohibit it from reaching the frivolousness question any more than it would have prevented the judge from issuing an alternative merits ruling in the event his time-bar ruling was incorrect.

There is nothing gratuitous in imposing the penalty of filing a frivolous asylum application in addition to denying it on the ground of time barred. A petitioner who filed an untimely frivolous application should not be treated better than an applicant who filed a timely frivolous application. However, to say that immigration judges may make a frivolousness finding in the context of a time-barred application is not to say that they should. The finding has serious consequences for the applicant, and there is reason to worry that applicants (and their lawyers) may not defend themselves as well as they should in the context of an application that already is going nowhere.

Matter of MORENO-ESCOBOSA, 25 I&N Dec. 114 (BIA 2009).

The BIA reviews the findings of fact made by the Immigration Judge to determine whether they are clearly erroneous. There is clear error in a factual finding when the reviewing body is left with the definite and firm conviction that a mistake has been committed. The BIA reviews de novo all other questions of law, discretion, and judgment, including the question whether the parties have met the relevant burden of proof.

Since the respondent’s request for relief was filed after May 11, 2005, these proceedings are governed by the provisions of the REAL ID Act of 2005, Division B of Pub. L. No. 109-13, 119 Stat. 302.

The Board agrees with the respondent’s contentions that his case is covered by INS v. St. Cyr, 533 U.S. 289 (2001), in which the United States Supreme Court determined that although section 212(c) was repealed in 1996, the waiver remains available to aliens whose convictions were obtained through plea agreements and who would have been eligible for relief at the time of their plea, and that he is eligible for a waiver because he entered a guilty plea on July 21, 1991, even though he was not sentenced until October 26, 2005. It is, therefore, the date of an alien’s plea agreement, rather than the date of sentencing, that controls in determining whether the alien is eligible for a section 212(c) waiver. This is so because the Supreme Court was concerned with an alien’s reliance on the availability of section 212(c) relief when he agreed to plead guilty.

The Board agrees with both the respondent and the Department of Homeland Security that Abebe v. Mukasey, 554 F.3d 1203 (9th Cir. 2009) (en banc) does not foreclose a section 212(c) waiver simply because an alien is charged with a ground of deportability rather than a ground of inadmissibility. The regulations at 8 C.F.R. § 1212.3 (2009) authorize an alien in removal proceedings or in former exclusion or deportation proceedings (i.e., either an alien who is seeking admission at the border or one who is inside the United States) to apply for section 212(c) relief before an Immigration Judge. Ordinarily, the Board is bound to apply the regulations. An exception to this rule may be made when a regulation is contrary to circuit court precedent, but this is not the case before the Board. Because the regulation is not limited to aliens who are at the border seeking to waive a ground of inadmissibility, the Board concludes that the respondent is eligible to apply for a section 212(c) waiver. It is important to note that nothing in this decision is intended to cast doubt on our prior holdings where the Board articulated the “statutory counterpart” rule that an alien seeking to waive a deportation ground must establish that there is a comparable ground of inadmissibility in section 212(a) of the Act.

Ordinarily, when an Immigration Judge erroneously pretermits an application for relief, the remedy is to remand the case for full consideration of the application. This case is unusual in that the factors considered in an application for section 212(c) relief are essentially the same as those considered in adjudicating an application for cancellation of removal under section 240A(a) of the Act. Indeed, in cases where an alien is eligible for both forms of relief the Board would not expect an Immigration Judge to hold separate or bifurcated evidentiary hearings on the section 212(c) application and the cancellation of removal application. The Board could therefore rely on the Immigration Judge’s discretionary decision on the respondent’s cancellation of removal application to decide whether to grant his section 212(c) waiver. However, given the confusion associated with the availability of section 212(c) relief and the respondent’s separate claim that the Immigration Judge did not give adequate consideration to all of his equities, including his significant employment history and his volunteer and civic activities, the better course is to remand for a full and complete decision on both the section 212(c) application and the application for cancellation of removal. On remand, the Immigration Judge should weigh all of the positive and negative factors presented.

The Duellists Revisited

Here is what I think: First, the civilian tried to execute a prise de fer of seconde, but failed because Gabriel Féraud executed a disengagement. Then, he swung his blade back to execute a prise de fer of prime. Again, Féraud execute a disengagement and evaded his preparation of attack.

They broke and then started again. This time Féraud attacked and the civilian executed ceding parries of seconde and prime. Both parries were wild. Féraud must have realized by now that his opponent's skills were inadequate when compared to his and this embolden him.

The next attack initiated by Féraud was simple attacks almost aimed to toy with his oppoenent. Féraud executed a cut to cheek then changed to a low line attack of octave, then he disengaged to attack on septime. They broke again and renewed.

This time Féraud made a small feint thrust (more a provocation than a real attack as it was not even threating) at octave and the civilian panicked and made two circular parries (to seconde and then prime) and again both were wild and he broke away. It was really all over by now as it was abundently clear that the civilian has nothing more up his sleeves.

Féraud now executed a cut to head or cheek more as a feint than an attack, then he changed to the low line attack of octave and then changed back up to the high line attack at tierce.

Féraud now taunted the civilian with a beat on his blade. This is not a prepration of attack as there was no attack following. It was a taunt--a gesture of contempt. This provoked the civilian and he took the bait and attacked. He made a simple straight thrust at Féraud and Féraud execute a circular parry and riposte to septime. The civilain tried to catch Féraud's blade with his non-weapon hand and got slashed. He's now even more frustrated and upset. He renewed his attack with a low thrust at septime. Féraud caught his blade with a circular parry while retreating to keep his distance. Féraud made what I think a horizontal cut from the high line to the low septime. The executed a parry of prime and then a parry to seconde, before a riposite to to tierce with a simple thrust which ran through the civilian.

3rd Dueling Movie: The Sovereign's Servant

A fight between a left handed duellist and a right handed duellist is always a tough fight with the advantage going to the left handed duellist. First moves: Attack from the right, parry septime from the left. Then after both sustained a cut, when they begin again, you can see the right handed duellist executes a beat attack (attack on blade). Finally, before the right handed duellist received a hit with a thrust at his tierce, he was executing several circular parries in retreat, trying to catch the left handed duellist's blade with the parries, but failed.

2nd Dueling Movie: Rob Roy

This is a scene in which Rob Roy dueled Archibald Cunningham. Watch the first move from Cunningham at the beginning of the duel. He began with a prises de fer in a forward prime towards either the head or chest. And look how Cunningham "danced" around Roy. In the scene, there are a few feint left go right moves which are just beautiful.

The Duellists: Two Hussars Duelling on Horsebacks

This is one of the best movies depicting the Napoleonic era and was based on Joseph Conrad's novel Point of Honor. The scene below is a duel on horseback between Armand d'Hubert and Gabriel Féraud. I have not read the novel, but am trying to decipher from the movie the regiments and the ranks of the two duellists.

Armand d'Hubert is dressed in the grey hussar uniform with a colback which means that he must be in the the Third Regiment as only the Third dressed in Argentina Grey. It looks like he has two stripes on his sleeves (see 0.08) which indicates his rank as Lieutenant. As an officer, he is permitted to wear a colback instead of a shako and his horse has a cloth shabrack.

Gabriel Féraud has a green dolman and pelisse on with red breeches. He also has a colback on his head and a cloth shabrack for his horse. I cannot see clearly his collar and his sabretache has a metal eagle plate on it. So, it could be either the 7th or 8th regiment. His sleeves also has two stripes which indicate ranking as Lieutenant.

However, as far as I know, the feud between the two started when both were Lietenants and this duel on horseback is their third duel, so they could have both advanced further in career by this time. It is possbile that both should be captians instead of lieutenants and there should be three strips on their sleeves instead of two.