BIA Vacates Prior Decision in Matter of Crammond

IMMIGRATION LAW & POLICY

Removal Issues Concerning Criminal Convictions

BIA VACATES PRIOR DECISION IN MATTER OF CRAMMOND
Immigrants' Rights Update, Vol. 15, No. 7, Nov. 16, 2001

The Board of Immigration Appeals has issued a precedent decision vacating its previous decision in Matter of Crammond, 23 I. & N. Dec. 9 (BIA 2001). In that decision the BIA granted the respondent's motion to reopen, finding that he was no longer convicted of an aggravated felony because his state conviction for sexual intercourse with a minor had been reduced to a misdemeanor by the state criminal court (for details, see "BIA: State Conviction for Unlawful Sexual Intercourse with a Minor That Has Been Reduced to a Misdemeanor Is Not an 'Aggravated Felony,'" Immigrants' Rights Update, May 10, 2001, p. 6). The BIA has now granted the motion for reconsideration of the Immigration and Naturalization Service and vacated the prior decision.

This action does not reflect a reconsideration of the merits of the decision but rather was taken because the INS brought to the attention of the BIA the fact that the respondent left the U.S. prior to the BIA's ruling. Under the regulations (8 C.F.R. § 3.2(d)), any departure from the U.S. after a motion to reopen or to reconsider has been filed constitutes a withdrawal of the motion. Because the motion was withdrawn, the BIA had no jurisdiction to rule on it, and for this reason the BIA is now vacating the decision.

Matter of Crammond, 23 I. & N. Dec. 179, Int. Dec. #3457 (BIA Oct. 16, 2001).