The BIA doesn’t issue that many published decisions, but this week it issued four. They’re all important and worth a read.

1. Matter of Ibarra, 26 I&N Dec. 809 (BIA 2016) ID 3872 (PDF)

In this decision, written by Board member Roger Pauley (who seems to be handling most of the tough crimmigration issues lately) the Board stretches the definition of “theft offense” to include extortion and other thefts by coercion. This is a bizarre decision, because the definition of “theft” has been around for several centuries. It is odd to see an administrative agency redefine theft to include things that do not fit within the traditional common law definition.

I would be surprised if the Ninth Circuit doesn’t reverse this decision, as the BIA’s decision does not seem consistent with the way the Ninth Circuit and the Supreme Court have defined the phrase “theft offense.”

2. Matter of Guzman-Polanco,  26 I&N Dec.  806 (BIA 2016) ID 3871 (PDF)

Another surprise written by Roger Pauley. This is actually the second iteration of “Matter of Guzman-Polanco.” Previously the Board had held that state offenses for assault that don’t actually require violent force are not “crimes of violence.” To explain, the Board had offered a few examples where “assault” might not actually require any force (such as poisoning, for example).

Here the BIA maintains that rule but says if there is contrary circuit court authority, such authority will control the decision.  This decision is a bit of a surprise, because there was no reason for the Board to issue it. The Board has authority to overrule Circuit Court authority if it is interpreting vague terms in the statute (like the term “crime of violence”) so it isn’t clear why the Board didn’t just invoke that authority. At any rate, don’t be shocked if this isn’t the last we hear of this issue, given that the question of whether the “crime of violence” definition is unconstitutionally vague is currently pending before the Supreme Court.

3. Matter of Khan,  26 I&N Dec. 797 (BIA 2016) ID 3870 (PDF)

Here the BIA said that Immigration Judges aren’t authorized to grant waivers of inadmissibility under section 212(d)(3)(A)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1182(d)(3)(A)(ii) (2012).  That waiver is for nonimmigrants and is usually granted at the consulate before a person comes to the United States.  But people applying for U Visas also often need nonimmigrant waivers and most of those people apply for them here.

The conflict has arisen where USCIS says it doesn’t want to grant the 212(d)(3)(A)(ii) and the applicant is in removal proceedings. A few curious people started asking “why can’t an Immigration Judge adjudicate such a waiver request?” The Seventh Circuit had agreed in a decision last year, which held that Immigration Courts do have authority to grant these waivers. But this week the BIA said they don’t.

This decision is a good example of the BIA doing what I mentioned above – using its authority to overrule contrary circuit precedent when interpreting a vague statute. So, why didn’t the Board do it in Matter of Guzman-Polanco? Your guess is as good as mine.

4. Matter of Chairez and Sama, 26 I&N Dec. 796 (A.G. 2016) ID 3869 (PDF)

This is a short decision by the Attorney General (not the Board), lifting the stay on this decision and sending the cases back to the Board of Immigration Appeals to issue a new decision.