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Two Recent BIA Decisions of Note

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By Nadine Wettstein

A recent BIBA decision held that the government bears the burden of proving, by clear and convincing evidence, that a returning lawful permanent resident is to be regarded as an applicant for admission under INA §§ 240(c)(2)(A) and 101(a)(13)(C), and is therefore subject to the inadmissibility ground for removal.  The regulatory presumption benefitting LPRs who present a valid unexpired Permanent Resident Card (Form I-551) after a temporary absence of less than one year also supports this holding.  8 CFR § 211.1(a)(2).  Also, a conviction of accessory after the fact is a crime involving moral turpitude if the underlying or substantive crime is itself a crime involving moral turpitude. Matter of Rivens, 25 I&N Dec. 623 (BIA Oct. 19, 2011)

In a second case, the BIA held that even if a Notice to Appear (NTA), Form I-862, fails to provide the time and date of the hearing, personal service of the NTA on the respondent terminates the accrual of continuous residence under the “stop time” rule of INA § 240(A)(d)(1). 

This is so even though the statute, INA § 239(a)(1)(G), specifies that the NTA must include the “time and place at which the proceedings will be held.”  This provision is “simply definitional,” the BIA said.  The best reading of the statute as a whole is that Congress intended to specify the document that DHS must serve on the person to trigger the “stop-time” rule.  [But see, Dababneh v. Gonzales, 471 F.3d 806, 809-10 (7th Cir, 2006), distinguished by the BIA, which said that the “stop-time” rule cut off the accrual of physical presence once the DHS served him with both the NTA and the notice of hearing]. Matter of Camarillo, 25 I&N Dec. 644 (BIA Dec. 2, 2011).