Wednesday, February 24, 2010

Police Report that Had Been Incorporated into Guilty Plea Was Part of Record of Conviction

In applying the modified categorical approach to assess an alien’s conviction, it is proper to consider the contents of police reports as part of the record of conviction if they were specifically incorporated into the guilty plea or were admitted by the alien during the criminal proceedings.

The Board of Immigration Appeals (BIA or Board) has held that, in applying the modified categorical approach to assess an alien's conviction, it is proper to consider the contents of police reports as part of the record of conviction if they were specifically incorporated into the guilty plea or were admitted by the alien during the criminal proceedings. In the instant case, the respondent was convicted of battery against a spouse, and the issue was whether that conviction amounted to a crime of violence. Matter of Milian-Dubon, 25 I. & N. Dec. 197 (B.I.A. Feb. 19, 2010).

The respondent, a native and citizen of Guatemala, is a lawful permanent resident of the U.S. In 2004, he pled guilty to battery of his spouse in violation of Cal. Penal Code § 243(e)(1). The Department of Homeland Security (DHS) initiated removal proceedings, contending that the respondent's conviction rendered him removable under INA § 237(a)(2)(E)(i) [8 USCA § 1227(a)(2)(E)(i)] for having committed a crime of domestic violence. The immigration judge (IJ), finding that the record of conviction consisted only of the criminal complaint and guilty plea, concluded that the information in the record did not clearly establish that the respondent had been convicted of a crime of domestic violence and terminated the proceedings. DHS appealed the IJ's decision, arguing that the IJ erred by not including the police report in the record of conviction.

In a decision written by Board Member Garry Malphrus, in which Board Members Edward Grant and Neil P. Miller joined, the Board began its analysis by looking at the language of the relevant statutes. It found first that the generic statute holds that a crime of domestic violence is a crime of violence against, among others, a current or former spouse. Further, the generic definition of crime of violence includes, among other things, the use, attempted use, or threatened use of physical force against another person. Turning to the California statutes, the BIA found that the California crime of domestic violence statute punishes battery against certain persons, in this case, the respondent's spouse. The BIA looked at the California definition of “battery,” which is any willful and unlawful use of force or violence upon the person of another, and determined that it did not require a force capable of hurting or causing injury nor did it require violence in the usual sense of the term. Thus, the Board opined, the respondent's crime was not categorically a crime of violence or, by extension, a crime of domestic violence. The Board thus turned to the modified categorical approach outlined by the U.S. Supreme Court in Taylor v. U.S., 495 U.S. 575 (1990).

Under the modified categorical approach as applied in the U.S. Court of Appeal for the Ninth Circuit, the jurisdiction in which the respondent's case is being litigated, only when the particular elements of the crime are broader than the generic crime can the modified categorical approach be used. Further, if the crime of conviction is missing an element of the generic crime, the approach may not be used. The Board opined that battery is an element of the crime that the respondent was convicted of and, thus, the crime of domestic violence is not missing an element of the general crime. The Board concluded that it was therefore free to use the modified categorical approach in the instant matter.

Applying the approach, the Board stated that it “may look beyond the language of the statute of conviction to a specific set of judicially noticeable documents that are part of the record of conviction, including the charging document, the judgment of conviction, jury instructions, a signed guilty plea, the transcript from the plea proceedings, and any explicit factual findings by the trial judge to which the alien assented in the criminal proceedings.” In the instant matter, the relevant conviction documents included the criminal complaint and the respondent's signed guilty plea, which reflects that the respondent pled guilty to Count 2 and stipulated to the police report prepared in connection with his arrest as the factual basis for his guilty plea. The Board stated that, while a police report, standing alone, is not part of the record of conviction,
the fact that the respondent incorporated the police report into the guilty plea made it an “explicit statement ‘in which the factual basis for the plea was confirmed by the [respondent].”’

The Board rejected the respondent's argument that the police report was not admitted into the record and thus should not be considered. The Board opined that, because the plea agreement incorporates the police report, it is indeed considered part of the record. The IJ should have considered the information in the police report, the Board concluded, and remanded that matter to the IJ for further findings consistent with the Board's opinion.

John Richard Smith, San Diego, California, represented the respondent. Megan Berry Oshiro, Assistant Chief Counsel, represented DHS.

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Thursday, February 11, 2010

Illegal immigrant marrying US citizen. Can I apply for residency?

Question: I am an undocumented immigrant was brought to the US when i was about 6yrs old, have lived here ever since, i am going to marry a US citizen. We are trying to figure out what we need to do to make me a resident. Some have told us it would be better to get married in the country i was born in and then apply for residency others say we should get married here in the US and apply for residency???? Need advice please!! Thanks in advance!

Answer: Illegal immigrant marrying US citizen. How can we apply for residency for illegal immigrant?

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Sunday, February 7, 2010

EOIR Immigration Law Advisor

EOIR Virtual Law Library - AG/BIA Precedent Decisions

EOIR has published a monthly internal legal newsletter, the Immigration Law Advisor, since January 2007 summarizing new developments in immigration law. The Immigration Law Advisor includes a feature article about an issue in immigration law, federal court activity (which includes circuit-specific information about appeals and interesting cases), BIA precedent decisions, and a regulatory update.

Volume 4 #1


Seventh Circuit: Milanovic v. Holder, __F.3d__, 2010 WL 22371 (7th Cir. Jan. 6, 2010): The Seventh Circuit affirmed the denial of the Serbian petitioner‚ applications for withholding of removal and protection under the Convention Against Torture. (The petitioner‚ asylum application was dismissed as untimely.) The Immigration Judge found that the petitioner was persecuted when he was beaten by supporters of Slobodan Milosevic. However, relying on the State Department Country Report, the Immigration Judge ruled that DHS rebutted the presumption of future persecution, given that Milosevic is no longer in power. With respect to the petitioner's argument‚that his claim of persecution was based on the actions of a purely local official and thus the ouster of Milosevic could not constitute a change in country conditions sufficient to rebut the presumption of future persecutions, the court ruled this argument was waived because the petitioner did not present it to the Immigration Judge or Board. The court further ruled that, even if the petitioner's argument was not waived, there is adequate evidence to support the Immigration Judge's determination that the removal of Milosevic constituted a change in country conditions sufficient to rebut the presumption of future persecution.

Haile v. Holder, __F.3d__, 2010 WL 22372 (7th Cir. Jan. 6, 2010): The
Seventh Circuit remanded following the denial of the petitioner's application for asylum. The petitioner was born in Ethiopia to parents of Eritrean ethnicity. When Eritrea and Ethiopia separated in 1993, the petitioner's parents renounced their Ethiopian citizenship and became Eritrean citizens, but the petitioner remained in Ethiopia and kept his Ethiopian citizenship. In 1998, when war began between Ethiopia and Eritrea, Ethiopia expelled 75,000 Ethiopian citizens of Eritrean ethnicity. Before he could be expelled from Ethiopia, the petitioner went to the United States and applied for asylum, arguing that Ethiopia's stripping him of citizenship constituted persecution. The Immigration Judge initially denied the application on the grounds that stripping a person of citizenship, without anything more, is not persecution. The Seventh Circuit remanded in Haile v. Gonzales, 421 F.3d 493 (7th Cir. 2005), but the Board subsequently denied the application again. In remanding for a second time with its present decision, the court first agreed with the Board "that not all denationalizations are instances of persecution." However, the court disagreed with the Board's conclusion that even if a person loses his citizenship because of a "A protected ground‚" . . . such a loss of citizenship does not, without more, amount to persecution.‚" In this respect, the court stated that "i]f Ethiopia denationalized the petitioner because of his Eritrean ethnicity, it did so because of hostility to Eritreans . . . and [this] suggest[s] that his denationalization was persecution and created a presumption that he has a well-founded [sic] fear of being persecuted should he be returned to Ethiopia."

Bayo v. Napolitano, __F.3d__, 2010 WL 174231 (7th Cir. Jan. 20, 2010):
The Seventh Circuit denied the petition for review of a citizen of Guinea from the DHS‚ summary order of removal. The petitioner, who entered the United States under the Visa Waiver Program using a stolen Belgian passport, had been ordered removed by DHS without being placed in removal proceedings. The court rejected the petitioner's argument that the VWP provisions could not apply to him as a citizen of Guinea (a non-VWP country) and further found no due process violation based on the petitioner‚ claim that his signing of the waiver of his right to a hearing was not‚ "knowing and voluntary" where he failed to establish that he was prejudiced as a result. The court finally found that the petitioner was precluded from pursuing his adjustment of status application (based on his marriage to a United States citizen) where such petition was filed beyond the 90-day limit for visits allowed under the VWP provisions.

Kucana v. Holder, __S. Ct.__, 2010 WL 173368 (Jan. 20, 2010): The Supreme Court reversed and remanded the decision of the United States Court of Appeals for the Seventh Circuit, which had ruled that it lacked jurisdiction to review the Board's denial of a motion to reopen based on a claim of changed country conditions in Albania. The Court held that the provisions of section 242(a)(2)(B) of the Act prohibit judicial review of matters in which the Attorney General is given discretion by statute, but not to matters in which the Attorney General grants discretion to the Board by regulation.

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Refugee Caselaw Site - Asylum Law - University of Michigan Law School

Refugee Law - Asylum Law - University of Michigan Law School

The Refugee Caselaw Site, directed by Prof. James C. Hathaway, is the world's only collection of carefully selected leading cases which interpret and apply the UN's refugee definition, used as the basis for access to protection in nearly 150 states around the world. It's completely free to use, can be searched via structured and free-text queries, and allows users to download full-text judgments of cases. It's a volunteer effort of academics, judges, and practitioners from nearly 30 countries to share the best of refugee law knowledge with their colleagues.

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Wednesday, February 3, 2010

BIA Holds that Changed Circumstances Do Not Result in Automatic One-Year Extension of Time for Filing for Asylum

The Board of Immigration Appeals (BIA or Board), in Matter of T-M-H- and S-W-C-, 25 I. & N. Dec. 193 (B.I.A. Jan. 29, 2010), held that an alien does not receive an automatic one-year extension in which to file an asylum application following “changed circumstances” under INA § 208(a)(2)(D) [8 USCA § 1158(a)(2)(D)] and that under 8 CFR § 1208.4(a)(4)(ii), the particular circumstances related to delays in filing an asylum application must be evaluated to determine whether the application was filed “within a reasonable period given those ‘changed circumstances.”’ Finding that the immigration judge's (IJ's) decision contained insufficient findings of fact with respect to the respondents' specific circumstances for the Board to determine on appeal the reasonableness of an almost nine-month delay for one respondent and an almost one-year delay for the other, the Board remanded the matter to the IJ for further proceedings.

The respondents are a husband and wife who are natives and citizens of China. In a decision dated January 3, 2008, the IJ granted them asylum and declined to decide their requests for withholding of removal and protection under the Convention Against Torture. The Department of Homeland Security (DHS) appealed, contending that the IJ erred to the extent that he determined that the respondents' applications for asylum, which were filed within one year of the birth of their second child, were filed within a reasonable period given those changed circumstances. DHS conceded the truth of the facts set forth by the respondents in their asylum applications but asserts that, as a matter of law, the Board's decision in Matter of J-W-S-, 24 I. & N. Dec. 185 (B.I.A. 2007), precluded granting the respondents' relief in this case. The respondents countered that one year is a reasonable period within which to file an asylum application based on changed circumstances and that the IJ properly determined, based on the undisputed facts presented in this case, that they have a well-founded fear of persecution as a result of their violation of local Chinese family planning policies.

In an opinion written by Board Member Lauri S. Filppu and joined by Board Members Roger Pauley and Anne J. Greer, the Board first noted that DHS did not identify any clear error in the IJ's findings of fact and that it found none either. However, the Board disagreed with the IJ's legal determination that the respondents satisfy an exception to the one-year asylum filing deadline simply because their applications were filed within one year of changed circumstances that materially affect their eligibility for relief. The Board pointed out that Congress enacted the changed-circumstances exception in conjunction with the one-year asylum application filing deadline in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 but that IIRIRA is silent with respect to precisely when an alien must file an asylum application in relation to materially changed circumstances. However, 8 CFR § 1208.4(a)(4)(ii) provides that such an asylum application must be filed “within a reasonable period given those ‘changed circumstances.”’

While neither the statute nor the regulation defines “reasonable period,” the Board found guidance in the Supplementary Information to the regulations implementing the IIRIRA, which states that an alien in a valid immigration status should apply for asylum as soon as possible after expiration of his or her valid status and failure to do so would result in rejection of the asylum application. That Supplemental Information also states with regard to such an asylum seeker that:

Clearly, waiting six months or longer after expiration or termination of status would not be considered reasonable. Shorter periods of time would be considered on a case-by-case basis, with the decision-maker taking into account the totality of the circumstances.

In addition, the Board noted, the Supplemental Information addressing applications more generally (and not simply those of aliens who had been in valid status) states that:

Although there may be some rare cases in which a delay of one year or more may be justified because of particular circumstances, in most cases such a delay would not be justified. Allowing an automatic one year extension from the date a changed or extraordinary circumstance occurred would clearly exceed the statutory intent that the delay be related to the circumstance. Accordingly, that approach has not been adopted.

The Board recognizes that the Supplemental Information is not binding but found it useful in interpreting the regulation at issue and concluded that the IJ improperly gave the respondents an automatic one-year extension from the date when their second child was born without evaluating their filing delays in relation to the particular circumstances involved. However, the Board declined to decide whether the respondents' delay was reasonable as the IJ's decision did not contain sufficient findings of fact with respect to the respondents' specific circumstances to permit the Board to determine on appeal the reasonableness of their delays in filing their asylum applications. Therefore the matter was remanded for the IJ to make additional findings of fact with respect to the particular circumstances involved.

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Adjudicating Forms I-212 for Aliens Inadmissible after a prior immigration violation or reinstated removal orders

U.S. Citizenship and Immigration Services (USCIS) on January 25, 2010, released a May 19, 2009, memorandum from Acting Deputy Director Michael Aytes to USCIS leadership entitled “Adjudicating Forms I-212 for Aliens Inadmissible Under Section 212(a)(9)(C) or Subject to Reinstatement Under Section 241(a)(5) of the Immigration and Nationality Act in light of Gonzalez v. DHS, 508 F.3d. 1227 (9th Cir. 2007).” The memorandum supersedes and rescinds in its entirety the March 31, 2006, memorandum entitled “Effect of Perez-Gonzalez v. Ashcroft on adjudication of Form I-212 applications filed by aliens who are subject to reinstated removal orders under INA § 241(a)(5).”

Download Memo

INA § 245(a) [8 USCA § 1255(a)] permits certain aliens to adjust their status to that of a lawful permanent resident in the U.S. rather than visa processing abroad; however, aliens who entered the U.S. without being inspected (entries without inspection or EWIs) or who are presently not in a lawful status (present without inspection or PWIs) generally cannot adjust status in the U.S. INA § 245(i) created an exception to these adjustment bars for certain aliens who were the beneficiaries of visa petitions or labor certification applications filed on or before April 30, 2001, if they are admissible to the U.S.

INA § 212(a)(9)(C) [8 USCA § 1182(a)(9)(C)] renders inadmissible any alien who enters or attempts to enter without admission after a prior immigration violation. Under INA § 212(a)(9)(C)(i)(I), an alien is inadmissible if the alien enters or attempts to enter the U.S. without admission after having been unlawfully present in the U.S. for an aggregate period of more than one year. If the alien's entry or attempted entry without admission occurs after the alien has been ordered removed, the alien is inadmissible under INA § 212(a)(9)(C)(i)(II). An alien may be inadmissible under both § 212(a)(9)(C)(i)(I) and (II).

INA § 212(a)(9)(C)(i) provides that any alien who has been ordered removed and who then enters or attempts to reenter without being admitted is permanently barred from admission. However, INA § 212(a)(9)(C)(ii) provides an exception for an alien seeking admission more than 10 years after the date of the alien's last departure from the U.S. if, prior to the alien's reembarkation at a place outside of the U.S. or attempt to be readmitted from a foreign contiguous territory, the Secretary of Homeland Security has consented to the alien's reapplying for admission. Form I-212 is used to request this permission. The Secretary of Homeland Security's authority to grant such permission has been delegated to USCIS.

Prior to the Illegal Reform and Immigrant Responsibility Act of 1996 (IIRIRA), the INS published a regulation at 8 CFR § 212.2(e) that allowed aliens to seek permission to reapply for admission while in the U.S. when the I-212 was filed in conjunction with an adjustment application. In addition, 8 CFR § 212.2(i) provided that any approval of the Form I-212 would be retroactive to the date when the alien departed for the U.S.

INA § 241(a)(5) [8 USCA § 1231(a)(5)] permits the Secretary of Homeland Security to reinstate a prior removal order against an alien who illegally reenters the U.S. after having been removed or having departed voluntarily under an order of removal. The prior order is reinstated from its original date and may not be reopened or reviewed (although the reinstatement order may be reviewed. INA § 241(a)(5) also provides that an alien against whom a removal order has been reinstated may not apply for any relief under the INA.

Courts, including the U.S. Court of Appeals for the Ninth Circuit, that have considered whether an alien whose prior removal order has been reinstated under INA § 241(a)(5) can apply for adjustment of status under INA § 245(i) have held that the alien cannot. However, in Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir. 2004), the Ninth Circuit, contrary to every other circuit and the Board of Immigration Appeals, held that an alien who illegally reenters the U.S. after having been removed could file for adjustment of status (in conjunction with an I-212 application) before the prior removal order is reinstated. Subsequently, the Ninth Circuit overruled its decision in Perez-Gonzalez v. Ashcroft. However, in the interim, USCIS issued the March 31, 2006, policy memorandum providing guidance for USCIS officers adjudicating I-212 petitions in the Ninth Circuit and for those adjudicating such petitions elsewhere. Then, on November 13, 2006, the U.S District Court for the Western District of Washington in Gonzales v. U.S. Dept. of Homeland Sec., 239 F.R.D. 620 (W.D. Wash. 2006), enjoined DHS from following its March 31, 2006 guidance. As a result, USCIS placed a hold on all cases affected by the district court's injunction.

Subsequently the Ninth Circuit, in vacating the district court's order in Gonzales, repudiated its decision in Gonzales v. Department of Homeland Sec., 508 F.3d 1227 (9th Cir. 2007), finding that it must defer to the Board's decision in Matter of Torres-Garcia, 23 I. & N. Dec. 866 (B.I.A. 2006), which held that an alien who reenters the U.S. without admission after having been removed is inadmissible under INA § 212(a)(9)(C)(i)(II). As a result, USCIS has now rescinded its March 31, 2006, memorandum and, in its May 19, 2009, memorandum, provides uniform guidance to all USCIS officers adjudicating I-212 applications.

The May 19, 2009 memorandum, which is reproduced below, directs that all 245(i) cases that were previously placed on hold should now be adjudicated in accordance with the guidance given in the memorandum and current processing guidelines for consent to reapply applications. The memorandum explains that the guidance is prospective and applies to all 245(i) adjustment applications and all § 212(a)(9)(C)(ii) Form I-212s filings that are currently pending or are filed in the future regardless of the circuit in which the case arose or is adjudicated. The new guidance does not affect requests for consent to reapply or adjustment applications that were previously approved based on the 2006 memorandum.

The memorandum explains in detail how to process I-212s from:

• aliens seeking consent to reapply prior to the expiration of the required 10-year period specified under § 212(a)(9)(C)(ii)

• aliens inadmissible under § 212(a)(9)(C)(i) and subject to removal orders reinstated prior to the filing of the I-212

• aliens inadmissible under § 212(a)(9)(C)(i) and subject to removal orders reinstated at the time of adjudication of the I-212 application

• aliens inadmissible under § 212(a)(9)(C)(i)(II) with no reinstatement of a prior removal order at the time of adjudication of the I-212 application

• aliens eligible to file for consent to reapply

• VAWA self-petitioners inadmissible under § 212(a)(9)(C)(i)

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Tuesday, February 2, 2010

Illinois Cell Phone & Highway Safety Driving Laws

The NYT Wheels Blog reports:

Laws banning cellphone use while driving apparently haven’t reduced crashes, according to a study released on Friday that compared the number of total crashes before the ban with the number after. The study found virtually no difference in the numbers, a finding that had the researchers scratching their heads.

“We were very surprised,” said Adrian Lund, the president of the Highway Loss Data Institute that conducted the study and an affiliate of the Insurance Institute for Highway Safety.

The thought was, of course that if law were passed that decreased cellphone use, then there should be fewer crashes. But that was not the case.

“You know that there should be fewer,” he said. “We were looking for that, and we aren’t seeing that pattern,” said Mr. Lund, who is also the insurance institute’s president.

You can see the relevant charts in this document.