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Matthew Kolken on Deportation And Removal

Two New Board of Immigration Appeals Precedent Decisions

Rating: 3 votes, 5.00 average.

The Board of Immigration Appeals has just issued a precedent decision, Matter of G-D-M-, Interim Decision #3655, 25 I&N Dec. 82 (BIA 2009), that involves a 46-year-old native and citizen of the lace w:st="on">Philippineslace> who was lawfully admitted as on June 17, 1994, as a crewman.  The Respondent has lived in the United States since his 1994 arrival, and has a 10-year-old lace w:st="on">United Stateslace> citizen daughter. 


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Immigration Court proceedings were instituted against Respondent ten years after his arrival and he was charged with removal for failing to depart the United States after the completion of his authorized period of admission.  At his removal hearing in 2006 the Respondent stated that he was never employed as a crewman and applied for a form of relief called cancellation of removal that requires a showing that his removal will cause an exceptional and extremely unusual hardship to his United States Citizen daughter.


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The Immigration Judge found that the Respondent was statutorily ineligible for cancellation of removal under section  240A(c)(1), which states that cancellation of removal is not available to "[a]n alien who entered the United States as a crewman subsequent to June 30, 1964" Matter of Goncalves, 10 I&N Dec. 277 (BIA 1963).


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The Respondent appealed the Immigration Court's conclusion that he was a crewman arguing that although he was admitted to the United States with a C1/D visa indicating he was a crewman, that he should not be formally classified as a crewman because he did not enter the lace w:st="on">United Stateslace> with current employment aboard a ship.


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The Board of Immigration Appeals dismissed his appeal ruling that an alien who enters the United States pursuant to a crewman's visa for the purpose of obtaining employment as a crewman, even though they did not actually obtain such employment is statutorily ineligible for cancellation of removal under section 240A(c)(1) of the Immigration and Nationality Act, 8 U.S.C. § 229b(c)(1) (2006).


 


In another case, Matter of Silitonga, Interim Decision #3656, 25 I&N Dec. 89 (BIA 2009), the Board has ruled that under 8 C.F.R. §§ 245.2(a)(1) and 1245.2(a)(1)(ii) (2009), Immigration Judges have no jurisdiction to adjudicate an application filed by an arriving alien seeking adjustment of status, with the limited exception of an alien who has been placed in removal proceedings after returning to the United States pursuant to a grant of advance parole to pursue a previously filed application.

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