Wednesday, April 20, 2011

Matter of Ahortalejo-Guzman, 25 I. & N. Dec. 465 (B.I.A. April 19, 2011). Board Finds Record of Conviction Clear on Issue Relating to CIMT and Rejects IJ's Use of Third Prong of Matter of Silva-Trevino

The Board of Immigration Appeals (BIA or Board) has followed the Attorney General's precedent decision Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. 2008), in holding that evidence outside of an alien's record of conviction may properly be considered in determining whether the alien has been convicted of a crime involving moral turpitude (CIMT) only where the conviction record itself does not conclusively demonstrate whether the alien was convicted of engaging in conduct that constitutes a CIMT. Matter of Ahortalejo-Guzman, 25 I. & N. Dec. 465 (B.I.A. April 19, 2011).

The respondent is a native and citizen of Mexico who unlawfully entered the U.S. In September 1999, the respondent was convicted of assault in Texas based on his guilty plea to the crime. The Department of Homeland Security (DHS) filed a notice to appear in June 2009, charging the respondent with removability based on his unlawful presence in the U.S. At removal proceedings, the respondent conceded removability and applied for cancellation of removal for nonpermanent residents. The immigration judge (IJ) found that the respondent's assault offense involved domestic violence and was therefore a CIMT. The IJ thus concluded that the respondent was ineligible for cancellation of removal because his conviction was for an offense included in INA § 240A(b)(1)(C) [8 USCA § 1229b(b)(1)(C)]. The respondent appealed the IJ's decision, arguing that he was not convicted of assault involving family violence but was, instead, convicted only of simple assault, which is not a CIMT.

Board Member Roger Pauley wrote the opinion for the panel, which also included Board Members Patricia A. Cole and Anne J. Greer. He noted that, in order to resolve the matter, the Board needed to “address an aspect of the Attorney General's decision in Matter of Silva-Trevino” to wit: whether, given the information in the record of conviction, the decision permits an IJ to consider evidence that is outside of the record of conviction to, in this case, determine whether the victim was the respondent's common-law spouse.

The Board began its analysis by noting that cancellation of removal may be granted under § 240A(b)(1)(C) if, among other things, the alien has not been convicted of a CIMT under either INA § 212(a)(2)(A)(i)(I) [8 USCA § 1182(a)(2)(A)(i)(I)] or INA § 237(a)(2)(A)(i) [8 USCA 1227(a)(2)(A)(i)]. With regard to assault convictions, the Board noted that, while simple assault or battery is generally not considered to involve moral turpitude for purposes of immigration laws, an assault or battery that necessarily involves some aggravating factor that indicates the perpetrator's moral depravity does in fact implicate moral turpitude for immigration purposes. Among these aggravating factors is the fact that the victim is the actor's domestic partner.

DHS asserted that the victim in the instant matter was in fact the respondent's common-law wife. To prove this, and in turn prove that the respondent's conviction was for a CIMT, DHS submitted, among other things, a police department report of the incident, which indicated that the respondent was charged with assault pursuant to § 22.01 of the Texas Penal Code and that the victim of the assault was the respondent's common-law wife. The IJ based his decision that the respondent had been convicted of CIMT on this document as well as testimony from the respondent that the victim was his common-law wife. Neither of these pieces of evidence were part of the record of conviction, the Board noted.

The Board then turned to Matter of Silva-Trevino to determine whether consideration of these pieces of evidence was in fact permissible. In that case, the Attorney General “established a new methodology for making determinations regarding crimes involving moral turpitude.” The case marked a departure from previous approaches with regard to this type of evidence, and the Attorney General stated that, “[i]n my view, when the record of conviction fails to show whether the alien was convicted of a crime involving moral turpitude, immigration judges should be permitted to consider evidence beyond that record if doing so is necessary and appropriate to ensure application of the Act's moral turpitude provisions.” The Board observed that the record of conviction in this matter was silent with regard to the victim's status and further that the “judgment and sentence specifically states, ‘The Court finds that this offense did not involve family violence.”’ The Board found that the record of conviction was thus not unclear about whether the conviction was for domestic assault and thus a CIMT.

The Board found that the IJ erred in examining documents beyond those in the record of conviction. It determined that the Attorney General in Silva-Trevino “adopted a hierarchical or sequential approach to the consideration of evidence in determining whether an alien has been convicted of a crime involving moral turpitude,” to wit:

In short, ... adjudicators should: (1) look first to the statute of conviction under the categorical inquiry ...; (2) if the categorical inquiry does not resolve the question, look to the alien's record of conviction ...; and (3) if the record of conviction does not resolve the inquiry, consider any additional evidence the adjudicator determines is necessary or appropriate to resolve accurately the moral turpitude question. The Board opined that the third stage outlined in Silva-Trevino is only appropriate “where the record of conviction does not itself resolve the issue, that is, where the record does not conclusively demonstrate whether an alien was convicted of engaging in conduct that constitutes a crime involving moral turpitude.” As the record of conviction in this matter did resolve the issue, the IJ was not permitted to rely on evidence beyond the record of conviction, the Board concluded. It remanded the matter with instructions for the IJ to further consider the respondent's application for cancellation of removal.

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Friday, April 8, 2011

Chinese asylum, Christian faith, past persecution. Ni v. Holder (7th Cir., March 25, 2011)

Bd. did not err in denying asylum request by alien (native of China) after finding that alien had failed to establish that he had personally been victim of past persecution on basis of his Christian religion or that he was exposed to individualized risk of future persecution. Alien typically cannot establish past persecution claim based upon persecution of third-party, and instant alien failed to show that physical beating of his parents due to their Christian religion was meant as act to injure him. Moreover, alien failed to establish well-founded fear of future persecution where: (1) persecution of parents occurred over 20 years ago; (2) record failed to show that Chinese officials have continued to target his family; and (3) alien failed to present evidence about conditions in area of China to which he would return.

Chinese petitioner appeals the BIA’s denial of his asylum claim on account of his Christian faith.  The Petitioner’s claim is premised principally on persecution that his parent’s suffered in 1982.  The Seventh Circuit affirmed the agency’s dismissal, finding the petitioner did not establish past persecution or a well-founded fear of future persecution.
Read the opinion here.
FLAUM, Evans, McCuskey (distct)

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Non-LPR cancellation & possession of drug paraphernalia. Barma v. Holder (7th Cir., April 5, 2011)

Bd. did not err in finding that alien (native of Canada) was subject to removal based on his presence in US beyond his 6-month visa, and that alien did not qualify for cancellation of removal under 8 USC section 1182(a)(2) where alien had prior conviction on charge of possession of drug paraphernalia. Bd. could properly view prior conviction as one relating to controlled substance, which precluded any attempt by alien to cancel his removal, and Ct. rejected alien's claim that he was eligible to have said disqualifying offense waived under section 1182(h).

Petitioner, who has a conviction for possession of drug paraphernalia, appeals the agency’s determination that he was ineligible for Non-LPR Cancellation of Removal under 8 U.S.C. § 1229b(b)(1) on the grounds that he was convicted of a crime under 8 U.S.C. § 1182(a)(2).  Petitioner argues that he is eligible for a waiver under 8 U.S.C. § 1182(h) for his drug paraphernalia offense making him thus eligible for Non-LPR cancellation.  The Seventh Circuit affirmed the agency’s determination finding that the statutory provisions for Non-LPR cancellation expressly did not incorporate the waiver provision under 8 U.S.C. § 1182(h) in consideration of eligibility for Non-LPR cancellation.
Read the opinion here.
ROVNER, Easterbrook, Posner

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Reinstatement removal order: Tapia-Lemos v. Holder (7th Cir., April 7, 2011)

The Seventh Circuit dismissed petitioner’s petition for review from a reinstatement removal order finding that petitioner had failed to file within the statutorily required 30 days after the reinstatement was entered. 8 U.S.C. § 1252(b)(1).  The Court rejected petitioner’s argument that the 30 days should run from the date the removal order was received.  The Court further rejected petitioner’s arguments that the Court’s denial of a stay on January 18, 2011 be treated as either a new removal order or as a denial of a motion to reopen, triggering a new filing deadline.

Read the opinion here.
EASTERBROOK, Coffey, Rovner

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