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Catholic Legal Immigration Network, Inc. On Immigration Law

by Charles Wheeler, Jill Sheldon, et al.

Editor's Note: The following are the materials for this seminar.

Citations for ILW.COM's Seminar
"Solving Today's PERM Puzzle"

For more info, or to signup online, click here.
For more info, or to signup by fax, click here.

From Lori A. Pinjuh

Definition of child - INA 101(b) explains child, step-child, legitimated child, out-of-wedlock child, adopted child, and orphan.

Because I made an error when speaking, I want to clarify that "child" definition for step-child purposes is recognized if the marriage of one parent occurs when the natural child is under 18. Whereas for adoption purposes, the adoption must occur while the child is under 16, for the "child" definition to be met.

Public Law 106-139, signed on Dec 7, 1999, affecting the age of a "child" under INA definition for natual siblings who are adopted by same parent(s), age 16 is the normal adoption requirement, but if natural sibling also adopted, under age 18 will be considered child (see attached)

FAM 42.21 notes 12 and 13 - absolute necessity for anyone considering international adoptions (explains process)

Child Citizenship Act 2000 - adopted children who enter as LPR (IR3 or IR7) are automatic US citizens upon entry so long as at least one parent is USC, child under 18, adoption is full and final, child is "admitted" into the US (attached info); CAREFUL - those who enter as LPR's but require adoption to be completed in US (IR4 and IR8) do not gain this benefit until adoption is completed in full and if all other requirements are met

Humanitarian grounds to not revoke I-130 when death of sponsor Family Sponsor Immigration Act 2001 - ability to use other than original sponsor's I-864 Aff of support, allows alternative close famly sponsor to provide I-864 (attached material)

TSC answered the jurisdictional question of who has right to accept humanitarian applications for I-130's not to be revoked (answer: place that adjudicated the I-130), AILA Infonet 03100141 (Posted Oct 1, 2003)

Also, question posed by one of the other speakers, would adopted child of alien be considered step-child of USC spouse? I would have to amend my answer from yes, to yes only if the adopted child meets the definition of child (2 yrs legal and physical custody) where child fully adopted outside US.

From Mary Holper

NA 240(c)(3)(A); 8 C.F.R. 1240.8(a)(burden of proof to show by clear and convincing evidence that person is deportable is on ICE)

8 C.F.R. 1240.8(d)(burden of proof on the respondent to show eligibility for relief)

Shepard v. U.S., 125 S. Ct. 1254 (2005); Matter of Texeira, 21 I&N Dec. 316 (BIA 1996)(police reports are not part of the record of conviction)

INA 240(c)(3)(B); 8 C.F.R. 1003.41 (what is part of the record of conviction)

Cruz-Garza v. BICE, 396 F.3d 1125 (10th Cir. 2005)(burden on ICE to show the conviction was vacated for immigration purposes only when ambiguout record of vacatur)

Matter of Cota, 23 I&N Dec. 849 (BIA 2005)(sentence can be reduced for immigration purposes only, even though conviction can't be vacated for immigration reasons only)

Matter of Luna, A74-317-521 (BIA Index Dec. 2000) (ICE has burden of showing returning LPR is seeking admission under INA 101(a)(13)(C) because he or she has been convicted of an offense described in INA 212(a)(2)) (I-213 record of inadmissible/deportable alien was insufficient evidence without bringing INS officer in to testify)

From Paromita Shah

The Real ID Act changed section INA 240(c) - adds new section making it INA Sec. 240(c)(4)

Effective dates:
New credibility and corroboration stds apply to all applications filed on or after May 11, 2005. (judicial review standards effective May 11, 2005- See practice advisories)


  • See Sylla v. INS, 388 F.3d 924 (6th Cir. 2004)(holding adverse credibility findings must be based on issues that go to heart of claim, not irrelevant consistencies), Rodriguez-Galicia v. Gonzales, 422 F.3d 529 (7th Cir. 2005)(adverse credibility finding must be based on specific, cogent reasons and bear a legitimate nexus to the finding), also Uribe v. U.S. AG, 2005 U.S. App. LEXIS 7956 (11th Cir. 2005), Gao v. Ashcroft, 299 F.3d 266 (3d Cir. 2002)(holding that adverse credibility findings must be based on substantial evidence, not speculation and conjecture) Secaida-Rosales v. INS, 331 F.3d 297 (2d Cir. 2003)(holding that where the principal source of evidence is applicant's testimony, credibility determinations based on appropriate factors is critical), Kaur v. Gonzales, 418 F.3d 1061 (9th Cir. 2005) (holding that inconsistencies should not be viewed in isolation, but rather considered in light of all the evidence presented), Guan v. U.S.A.G. 2005 U.S. App. LEXIS 1840, (5th Cir. 2005) (credibility determinations cannot be arbitrary)
  • Totality of the circumstances is an existing standard that courts and agencies apply in a variety of contexts. See e.g. U.S. v. Arvizu, 534 US 266 (2002) (determining whether a vehicle stop was reasonable) - criminal case but it is illustrative of one "totality of the circumstances" test


  • Matter of S-M-J, 21 I&N Dec. 722 (BIA 1997) - See Conference Committee Report for Real ID (Public law 109-72)
2d, 3d, 5th, 6th, 7th & 8th Circuits follow S-M-J.
Dorosh v. Ashcroft, 398 F.3d 379 (6th Cir. 2004), El-Sheik v. Ashcroft, 388 F.3d 643 (8th Cir. 2004), Diallo v. INS, 232 F.3d 279 (2d Cir. 2000), Abdulai v. Ashcroft, 239 F.3d 342 (3d. Cir. 2001), Mutagwanya v. Gonzales, 2005 U.S. App. LEXIS 7583 (5th Cir. 2005)
BUT see Balogun v. Ashcroft, 375 F.3d 492 (7th Cir. 2004) - grave concerns about S-M-J
9th Circuit rejected S-M-J,
Ladha v. INS, 215 F.3d 889 (9th Cir. 2000)

Non-asylum 9th Circuit cases: Vera-Villegas v. INS, 330 F.3d 1222 (9th Cir. 2003). See also Lopez-Alvarado v. Ashcroft, 381 F.3d 847 (9th Cir. 2004)


About The Author

Charles Wheeler, Jill Sheldon, et al. are the speakers for the Catholic Legal Immigration Network, Inc. On Immigration Law seminar.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.