Mental illness, indigency and lack of family support amount to “particular social group” for purpose of asylum application

The Board of Immigration Appeals (BIA) recently remanded an asylum case to the Immigration Judge with instructions to accept the asserted “particular social group” of individuals suffering from mental illness who are indigent and lack family support.

The respondent’s asylum claim was based upon his fear of persecution in Ghana due to his mental illness, which he described as bipolar disorder.  He contended he would be unable to obtain the necessary medication to control his mental illness.  The Immigration Judge found that the respondent’s bipolar disorder was an immutable characteristic, but that the elements of indigency and lack of family support were not.  The IJ’s findings were contradictory in that he found that individuals with mental illness in Ghana are subjected to abuse that rises to the level of persecution, but that the respondent did not show a reasonable likelihood of suffering from persecution were he to return to Ghana.

 

The BIA remanded with instructions for the IJ to accept the stated particular social group and to allow testimony from the respondent’s psychiatrist and other documentary materials that were relevant to the asylum application.  For more information or to access this unpublished decision, click here.

BIA recognizes same-sex marriages for immigration purposes

The Board of Immigration Appeals (BIA) in Matter of Zeleniak, 26 I. & N. Dec. 158 (BIA July 17, 2013) held that in light of the U.S. Supreme Court’s decision in U.S. v. Windsor, 133 S. Ct. 2675 (2013), Section 3 of the Defense of Marriage Act (DOMA) is no longer an impediment to the recognition of lawful same-sex marriages and the recognition of spouses under the INA if the marriage is valid under the laws of the state where it was celebrated.

The U.S. citizen petitioner, Oleg B. Zeleniak, filed an I-130, Petition for Alien Relative, on behalf of the beneficiary, Serge V. Polajenko, as his (male) spouse on March 10, 2010. USCIS denied the petition on July 27, 2010, and the petitioner appealed the denial to the Board. In its first decision, dated April 18, 2012, the Board remanded the record to the Director with instructions to address two issues: whether the petitioner’s marriage is valid under the applicable state (Vermont) law and whether the marriage would qualifies under the INA absent the requirement of DOMA § 3. On remand, the Director determined that the marriage was valid under Vermont law but declined to consider the issue whether the beneficiary would be a spouse under the INA absent the requirements of DOMA § 3 (the controlling federal statute). Hence the Director once more denied the visa petition. The petitioner once again appealed to the Board.

In its most recent decision, the Board sustained the petitioner’s appeal and again and remanded the record to the Director for further consideration of the sole remaining issue which was whether the petitioner had established that his marriage to the beneficiary was bona fide. 

The Board explained that the Windsor decision removed DOMA § 3 as an impediment to the recognition of lawful same-sex marriages and spouses if the marriage is valid under the laws of the state where it was celebrated and the Court’s decision is applicable to various provisions of the INA, including, but not limited to fiancé and fiancée visas, immigrant visa petitions, refugee and asylee derivative status, inadmissibility and waivers of inadmissibility, removability and waivers of removability, and cancellation of removal. The Board further observed that the issue of the validity of a marriage under state law is generally governed by the law of the place of celebration of the marriage. 

Glickman Turley's Client Gets Promising Ruling in Immigration Appeal

One of our clients came to us when she found out she was facing deportation. After her case was rejected by an immigration judge and the Board of Immigration Appeals, Glickman Turley attorneys filed an appeal in the First Circuit Court of Appeals. We requested a stay of removal for this client, so she could remain in the U.S. while her appeal was pending. The stay was granted, but the court also identified several issues it found relevant to her claims. Specifically, the court requested information on the question of whether there was "substantial evidence" to support the BIA's findings that our client would be able to find work in her home country and that she might have been aware of misconduct by her spouse many years ago. It also questioned the BIA's authority to review credibility findings and whether our client's stated intention to exercise her rights under U.S. law, should she become a citizen, could be held against her. 

Although our client's appeal is not yet decided, this is a promising sign. We will exercise our best efforts to fight for her ability to stay in the U.S.

If you are facing deportation, or if you want to change your immigration status, Glickman Turley can help. Contact us today about your immigration issue.

BIA Deadlines Impacted by Hurricane Sandy

From LexisNexis Immigration Law Community:

"On October 29-30, 2012, the Board of Immigration Appeals (BIA) was closed due to Hurricane Sandy.  The BIA will consider timely filed any filing that meets both of these criteria:

1. the filing was due on a weekday during the week of October 29, 2012; and
2. the BIA received the filing on or before November 5, 2012.

No request or documentation is required for filings that arrive by November 5, 2012.  Filings that arrive after November 5, 2012, are subject to normal filing deadlines.  If weather is an issue for any filings that the BIA receives after November 5, 2012, parties should consult the BIA Practice Manual, Chapter 3.1(b)(v), on page 34 (“Natural or manmade disasters”).  The BIA Practice Manual is available on-line at http://1.usa.gov/Md03oi." -EOIR, Oct. 31, 2012.

For representation on immigration cases, please contact Glickman Turley LLP at 617-399-7770.

Glickman Turley's experienced attorneys represent individuals on a wide range of immigration matters, as well as other legal issues. Please contact our attorneys if you wish to discuss representation on immigration matters, real estate purchase and sales, condominium associations, criminal defense, non-profit law, civil litigation, business litigation, business law, trademark law, probate matters including wills, powers of attorney, health care proxy, same-sex co-parent adoptions, guardianships, animal law, or LGBT legal matters.

BIA Cannot Make Independent Findings of Fact

In the case of Rodriguez v. Holder, the Ninth Circuit United States Court of Appeals held that the Board of Immigration Appeals (BIA) cannot independently engage in fact-finding and may only review the record. When an issue is left unresolved by an immigration judge (IJ), and the BIA wants specific factual findings on said issue, the rules require the BIA to remand the case to the IJ instead of making its own factual conclusions.

Glickman Turley's experienced attorneys represent individuals on a wide range of immigration matters, as well as other legal issues. Please contact our attorneys if you wish to discuss representation on immigration matters, real estate purchase and sales, condominium associations, criminal defense, non-profit law, civil litigation, business litigation, business law, trademark law, probate matters including wills, powers of attorney, health care proxy, same-sex co-parent adoptions, guardianships, animal law, or LGBT legal matters.  

BIA Rules in the In re: Jesus Gaytan-Castro Case

The Board of Immigration Appeals (BIA) held that under the doctrine of res judicata, removal proceedings are barred even if the respondent was erroneously granted adjustment of status in the prior proceedings. The case, In re: Jesus Gaytan-Castro, involved the issue of whether the Gaytan-Castro was eligible for adjustment of status pursuant to his father's visa petition. Gaytan-Castro was granted adjustment of status. 


The BIA reviewed and agreed with the Immigration Judge's decision that the removal proceedings must be terminated because the doctrine of res judicata requires that once a final judgment on the merits of an action is rendered, the parties are barred from relitigating the issues that could have been raised in that action. Therefore, the BIA concluded here that when an erroneous grant of adjustment of status arose, the Department of Homeland Security (DHS) had the option of filing a timely appeal or a motion to reopen and rescind, which it failed to do, and is now barred from proceeding with new termination proceedings. 


Glickman Turley's experienced attorneys represent individuals on a wide range of immigration matters, as well as other legal issues. Please contact our attorneys if you wish to discuss representation on immigration matters, real estate purchase and sales, condominium associations, criminal defense, non-profit law, civil litigation, business litigation, business law, probate matters including wills, powers of attorney, health care proxy, same-sex parent adoptions, guardianships, animal law, or LGBT legal matters.

Fourth Circuit Reverses Silva-Trevino

In a significant immigration ruling, the fourth circuit court of appeals, encompassing Virginia and other Southern states,  ruled today that a rule of the Board of Immigration Appeals permitting immigration judges to examine police reports and other information to evaluate whether a crime was a crime of moral turpitude violates Federal law.   The Court found that the Attorney General's opinion allowing the immigration courts to examine evidence outside the record of criminal conviction "if doing so is necessary and appropriate"  was without legal basis. The First Circuit, including Massachusetts still permits immigration judges to examine police reports and other records.


Glickman Turley's experienced attorneys represent individuals on a wide range of immigration matters, as well as other legal issues. Please contact our attorneys if you wish to discuss representation on immigration matters, real estate purchase and sales, condominium associations, criminal defense, non-profit law, civil litigation, business litigation, business law, probate matters including wills, powers of attorney, health care proxy, same-sex parent adoptions, guardianships, animal law, or LGBT legal matters.