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10th Circuit Joins the Crowd: Another Rejection of the BIA’s 212(h) Aggravated Felony Bar

Carlos Jovany Medina-Rosales is an LPR who obtained his residency through adjustment of status in 2001.  Twelve years later, in 2013, he was convicted of grand larceny and was placed in removal proceedings in Tulsa, OK, charged with deportability for an aggravated felony offense.   Conceding the charge, Mr. Medina-Rosales sought to re-adjust, and to waive his inadmissibility under INA § 212(h). The immigration judge, however, found him ineligible for relief based on the Board's decision in In re Rodriguez, 25 I&N Dec.

Children under 15 Too Young to Commit Fraud

The DOS has amended the Foreign Affairs Manual to clarify that children under the age of 15 cannot act “willfully” and therefore cannot be found inadmissible for committing fraud or misrepresentation pursuant to INA § 212(a)(6)(C)(i). 9 FAM 40.63 N5.3 Minors. For aliens between the ages of 15 to 16, the consular officer will need to determine if the child was acting at the direction of an adult or whether the child was acting on their own. Aliens aged 17 and over are presumed to act willfully unless they can establish a lack of knowledge or capacity.

BIA Addresses Statutory Rape as Sexual Abuse of a Minor

By Susan Schreiber

Under California Penal Code § 261.5, a person who has sexual intercourse with someone who is at least three years younger and under age 18 commits the offense of unlawful intercourse.  This means, for example, that a 20-year-old who has consensual sex with his 17-year-old girlfriend may be prosecuted under this statute.  In this type of offense, commonly referred to as statutory rape, lack of consent is presumed where there is sexual intercourse with a minor under the age of consent specified in the statute.

BIA Concludes “Deadly Conduct” is a CIMT

By Sarah Bronstein

On January 8, 2015, the Board of Immigration Appeals issued a decision in Matter of O.A. Hernandez, 26 I&N Dec. 464 (BIA 2015), finding that the offense of “deadly conduct” under the Texas Penal Code is a crime involving moral turpitude (CIMT).  The analysis of CIMTs is an area of the law that has evolved significantly in the last few years.  This decision gives us one more indication of how the Board of Immigration Appeals is viewing CIMTs.