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BIA Holds That DHS Has Authority To File A Motion to Reconsider In Immigration Court And An Applicant In Withholding Of Removal-Only Proceedings Who Is Subject To A Reinstated Order of Removal Under INA §241 (a)(5) Is Ineligible for Asylum.

June 29, 2018 Philip Levin

On April 27, 2018, the Board of Immigration Appeals (BIA or Board) sustained a DHS appeal of the denial by an Immigration Judge (IJ) of a Department motion to reconsider (MTR) regarding a grant of asylum to respondent. The DHS motion had argued that the IJ’s grant was impermissible because respondent was subject to a reinstated order of removal per INA §241 (a)(5). The IJ had declined to address the motion’s merits, ruling that DHS had no ability to file a MTR and that the regulation which allows the Court to accept an MTR from DHS is inconsistent with the Act. The IJ, therefore, found that DHS does not have the statutory authority to file such as motion; in the alternative, the IJ held the DHS motion barred by res judicata.

At the beginning of its analysis, the BIA noted that an IJ has no authority to disregard the regulations which give DHS authority to seek reconsideration and reopening (8 C.F.R. § 1003.23 (b)(1)), which “have the force and effect of law.” Further, the express limitations on a respondent’s right to file motions “do not necessarily indicate that only the [respondent] has that right,” citing to INA §240 (c)(6)(A); the Board thus found the language of this statutory section to be ambiguous.

The BIA next found that the legislative history does not support the IJ’s conclusion that §240 (c)(6) was intended to provide rights solely to respondents while limiting DHS’s ability to file motions: after publications of the interim regulations, several commenters had argued that the time and numerical limitation on motion filings apply to all parties. Yet the Legacy-INS had rejected that argument, concluding that Congress had imposed limits on motions to reopen where none had existed before and imposed those limits only on respondents. As a result, stated the Board, the time and number limits do not apply to Government motions. As such, the BIA found “no logical rationale for concluding that only one party is permitted to seek the correction of a defective decision” and held that the INA does not preclude DHS from filing an MTR before the IJ. Additionally, because withholding of removal-only proceedings are subject to a timely MTR, “the administrative process provided by the regulations has not been completed, so the doctrine of res judicata does not apply.”

Finally, the BIA held that the IJ erred in granting asylum to respondent, who is subject to a reinstated order of removal under INA §241 (a)(5) and is thus properly placed in withholding of removal-only proceedings. Because this is clear from the applicable regulations (8 C.F.R. §1208.31 (e)), respondent “is ineligible for asylum in these proceedings.” The IJ’s order granting asylum was thus vacated, the record remanded to consider respondent’s requests for relief, and the appeal sustained. Matter of L-M-P-, 27I&N Dec. 265 (BIA 2018).

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TN

The TN nonimmigrant classification allows qualified Canadian and Mexican citizens to enter the U.S. and engage in professional business activities. LPPC will help you navigate through the TN application process by evaluating your eligibility, preparing supporting documentation for your application, and ultimately filing your application. 

B-1

LPPC will guide you through the consular process to receive a B-1 visa for specific short-term business purposes ranging from contract negotiations to seminars and conferences.

O-1

O-1 visas are for persons of extraordinary ability in the sciences, arts, education, business or sports. 

J-1

Administered by the Department of State, the J-1 visa is for students, trainees, academics, researchers, professionals or experts participating in an approved Exchange Visitor program. LPPC will assist you and your sponsor with preparing the necessary paperwork and the consular process so you can begin your program at ease. 

E-1 & E-2

E-1 visas and E-2 visas are for nationals of countries with which the United States has a treaty of friendship, commerce and navigation (FCN) or bilateral investment treaty (BIT). If you are a nonimmigrant trader or investor seeking to conduct business operations or develop a new enterprise in the U.S., we will help you file for the appropriate visa. As a recognized expert in this area, Mr. Levin will provide experienced and dependable assistance with E-1 or E-2 visa applications. 

  • E-1: If you are a national of a country that conducts a significant volume of trade with the U.S. (or if you intend to develop trade between the U.S. and your home country) you might be eligible for entry under an E-1 visa. 
  • E-2: The E-2 visa allows investors from treaty countries to enter the U.S. for purposes of directing and developing a business, with all the commitments and risks implicit in entrepreneurial activity. 
L-1

The L-1 visa category is for executives, managers or professionals employed by foreign affiliates of U.S companies. The L-1 visa is divided into two classifications:

  • L-1A Intracompany Transferee Executive or Manager
  • L-1B Intracompany Transferee Specialized Knowledge
H-1B

Many companies in the United States find themselves increasingly dependent on the talent, experience and energy of foreign national workers in professional, technical or specialized occupational fields. These employees typically enter the U.S. on nonimmigrant H-1B visas for “specialty occupations.” 

With extensive experience in business immigration, you can count on LPPC to guide your company or Human Resources department in preparing and filing an H-1B visa petition.

Green Card

Family preservation and reunification is a priority for our firm. Our attorneys have advised and assisted families from all over the world with entry visas, adjustment of status, and other immigration problems. 

  • Immediate Relatives: If you are the spouse, child, or parent of a U.S. citizen, we can help you obtain a green card through an Immediate Relative petition. 
  • Family-Based Preference: If your relative is a U.S. citizen or lawful permanent resident, we can assist you with your green card application through one of the family based preference categories.
Fiances

If you are a U.S. citizen and your fiancé/fiancée or spouse is overseas, our office will assist you to navigate the CIS requirements and regulations to have the case approved and then prepare you and your spouse for the interview at the U.S. Embassy. LPPC will also help you find the best ways to resolve any problems you encounter if a waiver is required in your case.

Marriage

Immigration through marriage is a common means of obtaining permanent residence in the U.S.  Since 1991, Philip Levin & Associates has helped hundreds of couples immigrate to the U.S. and build their lives together. 

  • I-130 Petition and Adjustment of Status: If you are married to a U.S. citizen, present in the U.S. and eligible to do so, our attorneys will assist you in preparing and filing the necessary I-130 petition and I-485 adjustment of status application in the U.S.
  • Immigrant Visa Consular Processing: If you are married to a U.S. citizen and reside abroad, we will assist you in preparing and filing the IV petition with an Embassy or Consulate-General in your native country. 
  • I-751, Remove Conditions on Residence: If you have been married less than two years at the time your green card was initially approved, our office will help you in the joint petition process to become a permanent resident.