On September 18, 2018, Attorney General Jeff Sessions issued Matter of S-O-G & F-D-B, 27 I & N Dec. 462 (A.G. 2018), the latest in a trifecta of cases curtailing the authority of immigration judges. Under this new ruling, judges are strictly prohibited from terminating or dismissing cases "for reasons other than those expressly set out in the relevant regulations or where DHS has failed to sustain the charges of removability." As it stands, the regulations set out only a limited number of circumstances under which the court may dismiss proceedings. On motion by DHS government counsel, a judge may dismiss proceedings where
The Board of Immigration Appeals recently issued an important decision that should be of interest to any individual charged with domestic violence, contempt of court, and violating a restraining order in NJ. One common New Jersey statute implicated includes NJSA 2C:29-9b. In Matter of Medina-Jimenez, 27 I & N Dec. 399 (BIA 2018), the court held that the categorical approach does not apply when considering whether violating a restraining order disqualifies a person from applying for cancellation of removal, one of the most sought-after forms of relief in immigration court. Instead, an Immigration Judge is allowed to consider any probative and reliable evidence in connection with what the prosecuting authority has found about the individual's violation. The court must only find two things: one, that the offense resulted in a conviction under INA 101(a)(48)(A); and two, whether the State court that heard the matter determined that "the alien engaged in conduct that violates the portion of a protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury to the person or persons for whom the protection ordered was issued." In short, the court need not engage in a strict categorical analysis to determine whether the elements of the offense in question match the federal rubric under INA 240A(b)(1)(C). As long as the immigration court is reasonably satisfied that there was a finding or admission of guilt along with some measure of punishment, and the "conviction" was based on conduct that violated a restraining order, the individual will not be eligible for cancellation of removal. What the court is essentially saying is that since the deportability section regarding restraining orders does not require a conviction, it would not make sense to require a conviction for cancellation of removal purposes.
Over the Labor Day weekend, the Board of Immigration Appeals (BIA) quietly released an important decision that has a significant impact on individuals hoping to file "Pereira motions." In Matter of Bermudez-Cota, 27 I & N Dec. 441 (BIA 2018), the court held that a Notice to Appear that does not specify the time and place of a person's initial removal hearing does not divest an Immigration Judge of jurisdiction so long as a Notice of Hearing specifying this information is later sent to the individual. In the case at hand, the respondent filed a Motion to Terminate arguing that his case should be dismissed in light of the Supreme Court's decision in Pereira v. Sessions, in which the highest court in the land declared that a Notice to Appear lacking the required information (as to date, time, and place) does not stop the clock for purposes of calculating physical presence eligibility for cancellation of removal. After the decision came out, many attorneys also extrapolated from the Court's clear language that such Notices to Appear were, in effect, not only defective for cancellation of removal purposes but defective per se. This gave birth to "Pereira motions" which have seen mixed results in New Jersey, with some judges granting and others, denying.
Most people are aware that a criminal record may complicate and sometimes pose a bar to citizenship. However, having a clean record does not necessarily ensure that a naturalization application will be approved. Interestingly, there are several types of acts or conduct that USCIS may consider conditional bars to citizenship if they occur within the "statutory period" under evaluation (five years prior to the N-400 application, for most applicants). Under the Immigration and Nationality Act ("INA") and Code of Federal Regulations ("CFR"), officers are entitled to evaluate and determine whether certain specified acts, offenses, activities, or circumstances reflect poorly on or militate against an applicant's "good moral character," which is a fundamental requirement for citizenship.