CSPA “Effective Date” includes all beneficiaries of previously approved visa petitions except those with applications adjudicated prior to the CSPA's enactment. Arobelidze v. Holder (7th Circuit)

On August 6, 2002 President Bush signed the Child Status Protection Act. This law addresses the problem of minor children losing their eligibility for certain immigration benefits as a result of UCIS processing delays. (when children of U.S. citizens turn 21 years of age, they "age-out" of their immediate relative status to the status of family-first preference: the Fl category.) Public Law (P.L. 107-208), 08/06/02.

Prior to CSPA, once a child turned 21 years of age, he or she “aged-out” and was no longer able to immigrate (or adjust status) along with his or her family. CSPA eliminates this problem by “freezing the age” of immediate relative children when their petitioning U.S. citizen parent submits a visa petition on their behalf; when a petitioning permanent resident parent naturalizes; or when a married son or daughter who has been petitioned by a U.S. citizen parent becomes divorced or widowed.

CSPA also creates a mathematical formula which allows the amount of time that a visa petition was pending to be subtracted from a child’s age.

CSPA is applicable to most persons who had visa petitions submitted on their behalf prior to August 6, 2002.

In Nino Arobelidze v. Eric Holder, Jr, decided July 27, 2011, the 7th Circuit concluded that the CSPA applies to Nino because her mother's classification petition was approved prior to the CSPA's enactment, and neither of Nino's adjustment applications were decided prior to the CSPA's enactment.

10-2986 : Nino Arobelidze v. Eric Holder, Jr.

1	05/02/2011	05/02/2011	Oral Argument
2	07/27/2011	07/27/2011	Opinion  (KANNE)

Petitioner, age 14, and her mother, a biomedical researcher, entered the U.S. from Georgia on temporary visas in 1998. While their applications for permanent residency were pending, the mother violated the terms of her temporary visa by continuing to work after the visa expired. Both applications for residence were denied in light of the oversight. After the mother obtained a new temporary visa and reapplied for permanent residence, DHS determined that petitioner, who had turned 21 was no longer a derivative beneficiary of her mother and no longer eligible to apply for residence. When removal proceedings began, petitioner claimed that the Child Status Protection Act, 116 Stat. 930, operated to freeze her age as of the date of her mother’s original visa classification petition. The immigration judge and the Board of Immigration Appeals rejected the claim. The Seventh Circuit reversed. The CSPA applies to petitioner because her mother’s classification petition was approved prior to its enactment, and neither of her adjustment applications were decided prior to the enactment. The court noted that it is unclear whether the CSPA will help petitioner attain permanent residency.



AROBELIDZE v. HOLDER


Nino AROBELIDZE, Petitioner, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

No. 10–2986.

Argued May 2, 2011. -- July 27, 2011
Before POSNER, KANNE, and TINDER, Circuit Judges.

Nino Arobelidze and her mother entered the United States on temporary visas in 1998. The two went on to apply for permanent residence. While their applications were pending, Nino's mother violated the terms of her temporary visa by continuing to work in the United States after the visa had expired. Both applications for residence were denied in light of Nino's mother's oversight. After Nino's mother obtained a new temporary visa and reapplied for permanent residence, Nino again applied for residence as well. The rub was that Nino turned twenty-one during the bureaucratic process. Based on Nino's change in age, the Department of Homeland Security concluded that Nino was no longer a derivative beneficiary of her mother and thus no longer eligible to apply for residence under the provision she invoked. When removal proceedings began, Nino claimed that the Child Status Protection Act (CSPA) operated to freeze her age as of the date of her mother's original visa classification petition, meaning that she was still a beneficiary of her mother as of her second application. Both the immigration judge and the Board of Immigration Appeals were unconvinced, the latter holding that the CSPA did not even apply to Nino in light of its effective date section. Nino now petitions for review of the Board's determination, claiming that its interpretation of the effective date section is incorrect. Because we agree with Nino that the Board's interpretation is unpersuasive, we grant the petition, vacate the Board's opinion, and remand the case for further proceedings.

I. Background

Nino came to the United States in 1998 at the age of fourteen. She arrived from Georgia with her mother, Dr. Rusodan Kotaria. Dr. Kotaria, a biomedical researcher, was granted a temporary visa permitting her to live and work in the United States for a brief period. As her dependant child, Nino was granted a temporary visa to accompany her.

Over the course of three years, Dr. Kotaria's star rose within the scientific community. In 2001, the Chicago Medical School filed a visa classification petition for Dr. Kotaria, labeling her an outstanding researcher. The Department of Homeland Security approved the petition in June 2002. The newly-approved petition allowed Dr. Kotaria to do two things: to convert her status so as to legally work in the United States until March 8, 2003, and to apply for permanent residence (an “adjustment of status”). As her dependant, Nino was permitted to convert her status so as to remain with her mother and—more importantly—was able to apply for permanent residence alongside her.

Nino and Dr. Kotaria applied for adjustment of status in August 2002. Both applications were still pending with the Department in March 2003, when Dr. Kotaria's temporary visa expired. Dr. Kotaria continued working beyond March 2003, in violation of her visa. In light of that error, the Department denied Dr. Kotaria's application for adjustment of status in December 2004. Nino's application was denied at the same time—as a derivative beneficiary, Nino could only obtain an adjustment if her mother's application succeeded.

Dr. Kotaria's problem was easily rectified; Nino's, as it would turn out, was not. Dr. Kotaria returned to Georgia, obtained a new temporary visa from the United States Embassy located there, and returned to the United States in mid–2005. She then applied for permanent residence, which was granted in March 2006.

Nino remained in the United States during her mother's sojourn to Georgia. Once her mother returned, Nino filed a second application for adjustment of status. The problem was that, around the time that her first application was denied, Nino had turned twenty-one. Given her change in age, the Department denied her second application for adjustment of status, reasoning that she was no longer a derivative beneficiary of her mother as of her second application and thus could not obtain an adjustment through her.

Removal proceedings for Nino commenced on February 10, 2006. At the removal hearing, Nino contested the denial of her second adjustment-of-status application. She argued that the substantive part of the CSPA operated to freeze her age at the date of her mother's initial classification petition, meaning that she was still the derivative beneficiary of her mother as of her second application for adjustment of status. The immigration judge disagreed, ruling on policy grounds that the CSPA was meant to protect children who age out during the processing of their application. It was not, according to the immigration judge, meant to assist parties whose applications were denied on other grounds. The Board affirmed in a non-precedential opinion, agreeing with the reasoning of the immigration judge.

Nino brought her case to this court on a petition for review, claiming again that the plain language of the CSPA dictated that she was still a child for adjustment purposes. We referred the case to mediation, after which the parties filed a motion with the Board to reopen the case. The Board agreed to reopen, but permitted very limited briefing, foreclosing a reply brief from Nino. The Board then issued another non-precedential opinion, again denying Nino's appeal. This time the Board relied on the effective date section of the CSPA, ruling that Nino did not qualify for any of the CSPA's benefits.

Nino again petitions this court for review.

II. Analysis

Nino's single claim in her petition for review is that the Board erred in its reading of the CSPA's effective date section. The government's response is two-fold: first, it claims that Nino did not exhaust her remedies before the Board; and second, it argues that the CSPA does not apply to Nino because she does not fall within the Act's effective date section.

A. Administrative Exhaustion

We take up the alleged failure to exhaust first. The government points out that Nino made no argument regarding the effective date provision and thus did not exhaust her administrative remedies. Nino concedes as much. She faults the limited briefing schedule imposed on the parties by the Board when the case was reopened. That schedule, Nino complains, impeded her from replying to the government's eleventh-hour argument regarding the effective date provision, an issue that no one—not the Board, the government, or Nino—raised prior to the reopening.

As the government correctly observes, an immigration petitioner must exhaust all available administrative remedies before seeking review in this court. 8 U.S.C. § 1252(d)(1). That obligation usually forecloses a petitioner from raising an issue in federal court that was not raised before the immigration tribunal. Aguilar–Mejia v. Holder, 616 F.3d 699, 704 (7th Cir.2010). We say “usually” because there are a number of exceptions to this rule. First, and less relevant here, are the exceptions that flow from the fact that the general exhaustion requirement is not “a jurisdictional rule in the strict sense that the Supreme Court has emphasized we must follow.” Issaq v. Holder, 617 F.3d 962, 968 (7th Cir.2010). Because the rule is non-jurisdictional, it is subject to waiver, forfeiture, and other discretionary considerations. Juarez v. Holder, 599 F.3d 560, 564 n. 3 (7th Cir.2010); Korsunskiy v. Gonzales, 461 F.3d 847, 849 (7th Cir.2006). Second, and more germane to this case, is the exception for issues that are not raised by the parties but instead addressed by the administrative agency itself. MBH Commodity Advisors, Inc. v. Commodity Futures Trading Comm'n, 250 F.3d 1052, 1060 n. 3 (7th Cir.2001); Watson v. Henderson, 222 F.3d 320, 322 (7th Cir.2000). This latter exception recognizes that once the Board addresses an issue on its own, the issue is “exhausted to the extent it could be,” even if it was not raised by the parties. See Nazarova v. INS, 171 F.3d 478, 489 (7th Cir.1999) (Manion, J., dissenting).

Practical considerations undergird this second exception. The exhaustion requirement serves a number of goals: it gives the Board an opportunity to apply its specialized knowledge and experience to the matter, it provides the petitioner with the relief requested in the first instance, and it provides us with reasoning to review. See Padilla v. Gonzales, 470 F.3d 1209, 1213 (7th Cir.2006); Gonzalez v. O'Connell, 355 F.3d 1010, 1017–18 (7th Cir.2004). When the Board addresses an issue on its own, all of these concerns are satisfied, and it therefore makes little sense to deem an issue not raised by the parties unreviewable.

The parties argue needlessly over whether we can set aside Nino's failure to bring up the effective date section, ignoring the fact that the Board exhausted the matter. In its most recent order, the Board departed from its prior reason for denying Nino's appeal. Rather than continue to rely on the policy of the CSPA, the Board ruled that Nino did not fall within the effective date section of the Act. In doing so, the Board applied its knowledge and expertise to the issue, analyzing the reach of the effective date section and providing us with reasoning to review. Exhaustion satisfied, we can proceed to Nino's claim.

B. The Effective Date Section of the CSPA

Nino primarily argues that the Board's reading of the effective date section is at odds with the text, purpose, and legislative history of that section. For its part, the government responds that Nino clearly falls outside of the plain text of the effective date section. In the alternative, the government submits that, even if the text of the effective date section is ambiguous, the Board's interpretation of it was a reasonable one to which we should defer.

The CSPA's effective date section provides:

The amendments made by this Act shall take effect on the date of the enactment of this Act and shall apply to any alien who is a derivative beneficiary or any other beneficiary of—

(1) a petition for classification under section 204 of the Immigration and Nationality Act (8 U.S.C. 1154) approved before such date but only if a final determination has not been made on the beneficiary's application for an immigrant visa or adjustment of status to lawful permanent residence pursuant to such approved petition;

(2) a petition for classification under section 204 of the Immigration and Nationality Act (8 U.S.C. 1154) pending on or after such date; or

(3) an application pending before the Department of Justice or the Department of State on or after such date.

Child Status Protection Act of 2006, Pub.L. No. 107–208, § 8, 116 Stat. 930 (2006). The single member of the Board who heard the case viewed subsection (1) as imposing two requirements: a visa petition must have been approved prior to the CSPA's enactment, and there must not have been a final determination on a beneficiary's application at any time afterwards. Dr. Kotaria's petition was approved on June 27, 2002, almost a year before the CSPA was enacted, so Nino cleared the first hurdle. But because Nino had a final determination on one application for adjustment of status, the Board concluded that she tripped over the second requirement. The Board determined that neither of the other subsections applied to Nino, and thus Nino was not covered under the CSPA.

We review issues of law—including challenges to the Board's interpretation of the Immigration and Nationality Act (INA)—de novo. Kiorkis v. Holder, 634 F.3d 924, 928 (7th Cir.2011). Our analysis begins with the statute's language. Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450 (2002). Where Congress's intent is clear from that language, it must be given effect—neither the agency nor this court may deviate from it. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984). Where the statute is ambiguous, however, we owe some deference to the interpretation advanced by the agency assigned to administer the statute. White v. Scibana, 390 F.3d 997, 1000 (7th Cir.2004).

Each party begins by arguing that the text of the effective date section is unambiguous and militates in its favor. We disagree. The Board has already determined, in a previous opinion, that the language of subsection (1) is unclear, see In re Avila–Perez, 24 I. & N. Dec. 78, 83 (BIA 2007), and we are similarly perplexed by it. The “before such date” language might be reasonably understood as applying only to the text preceding it—a reading the Board adopted and the government argues for today. Under that reading, subsection (1) would not apply to beneficiaries of petitions approved prior to the effective date if they had a final decision on an application at any time after that point—including any time after the statute was enacted. That reading is consistent with the text of subsection (1), but it infringes on the overall structure of the effective date section, whose other subsections expressly deal with conduct occurring after the CSPA's enactment. On the other hand, the “before such date” language could be rationally read to apply to the entirety of subsection (1)—a reading advanced by Nino. Under that reading, subsection (1) would cover all beneficiaries of petitions approved before the statute was enacted, removing from the CSPA's coverage only those beneficiaries who had a final adjudication on an application prior to the CSPA's enactment. That reading would better serve the overall structure of the effective date section, but it is not, on its face, a more natural reading of subsections (1)' s text. When, as here, “there are two plausible but different interpretations of statutory language, there is ambiguity.” Khan v. United States, 548 F.3d 549, 556 (7th Cir.2008).1

Anticipating this ambiguity, the government urges us to apply Chevron deference to the Board's nonprecedential interpretation of the effective date section. If Chevron deference applied, it would require us to adopt the Board's interpretation of the statute unless its construction was unreasonable. See Chevron, 467 U.S. at 842–43, 845. We note, however, that Chevron deference is not triggered in all cases. “Even when we are talking about interpretations of statutes [like the INA], not everything that an agency produces is entitled to the strongest form of deference.” Joseph v. Holder, 579 F.3d 827, 831 (7th Cir.2009).

The Supreme Court clarified Chevron's reach in United States v. Mead Corp., 533 U.S. 218 (2001). In Mead, the Court was tasked with determining the level of deference owed to letters issued by the United States Customs Service. The letters—which instructed parties on their tariff classifications—were binding only on the party at issue, were not subject to notice and comment, and could be modified largely without notice. Id. at 223. The Court held that “administrative implementation of a particular statutory provision qualifies for Chevron deference when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority.” Id. at 226–27. Because the letters did not have the force of law, Chevron deference did not apply. Id. at 231–32.

Our task, in light of Mead, is to determine what proclamations by the Board carry the force of law, as only those proclamations are entitled to Chevron deference. Decisions by a three-member panel of the Board obviously carry the force of law, as the Board's regulations make clear that those decisions have precedential value and are binding on the Board when it decides future cases. See 8 C.F.R. § 1003.1(e)(6); Joseph, 579 F.3d at 832. Similarly, non-precedential Board decisions that themselves rely on applicable Board precedent would also carry the force of law, as the non-precedential disposition is merely applying reasoning that already carries precedential weight. See Lagunas–Salgado v. Holder, 584 F.3d 707, 711 (7th Cir.2009); Ali v. Mukasey, 521 F.3d 737, 739 (7th Cir.2008).

The question remains whether non-precedential Board opinions that do not rely on binding Board precedent are deserving of Chevron deference. Relying on Mead, all of our sister circuits to address the issue have concluded these non-precedential opinions—which by the Board's regulations do not carry the force of law—are not analyzed under Chevron. Rotimi v. Gonzales, 473 F.3d 55, 57–58 (2d Cir.2007) (per curiam); Garcia–Quintero v. Gonzales, 455 F.3d 1006, 1013–14 (9th Cir.2006); Carpio v. Holder, 592 F.3d 1091, 1097 (10th Cir.2010); Quinchia v. U.S. Att'y Gen., 552 F.3d 1255, 1258 (11th Cir.2008). Another circuit dodged the question but gave us a peek at its hand, a peek that similarly swings against Chevron deference for non-precedential opinions. De Leon–Ochoa v. Att'y Gen. of U.S., 622 F.3d 341, 350–51 (3d Cir.2010). The remaining circuits have ducked the question entirely. Vasquez v. Holder, 635 F.3d 563, 567 n. 6 (1st Cir.2011); Cervantes v. Holder, 597 F.3d 229, 233 n. 5 (4th Cir.2010); Mushtaq v. Holder, 583 F.3d 875, 877 (5th Cir.2009); Japarkulova v. Holder, 615 F.3d 696, 700–01 (6th Cir.2010); Godinez–Arroyo v. Mukasey, 540 F.3d 848, 850–51 (8th Cir.2008).

Out of all of the circuits to address the question, we are the only one to go the other way. In Gutnik, we determined that these streamlined, non-precedential opinions are given Chevron deference so long as the Board provides us with some reasoning to review. Gutnik v. Gonzales, 469 F.3d 683, 690 (7th Cir.2006). In doing so, we relied on the Supreme Court's general statement in Aguirre–Aguirre that “ ‘[j]udicial deference to the Executive Branch is especially appropriate in the immigration context.’ “ Id. (quoting INS v. Aguirre–Aguirre, 526 U.S. 415, 416 (1999)). But Mead came after Aguirre–Aguirre, and it made clear that the sine qua non of Chevron deference is an agency statement carrying the force of law. Mead, 533 U.S. at 226–27. It is for that reason that we have expressed doubts about Gutnik's vitality. See, e.g., Chen v. Holder, 607 F.3d 511, 514 (7th Cir.2010); Ghani v. Holder, 557 F.3d 836, 840 (7th Cir.2009); Joseph, 579 F.3d at 833. Today we hold that non-precedential Board decisions that do not rely on binding Board precedent are not afforded Chevron deference. To the extent that Gutnik is inconsistent with this, it is overruled.2

Just because Chevron deference does not apply does not mean that we owe no deference to the Board's interpretation. Skidmore deference still applies to less formal statements by an agency, see Mead, 533 U.S. at 234–35, and non-precedential opinions by the Board certainly fall within that group, see Carpio, 592 F.3d at 1098. Under Skidmore deference, the Board's interpretation is “ ‘entitled to respect’—but only to the extent that [it has the] ‘power to persuade.’ “ Bailey v. Pregis Innovative Packaging, Inc., 600 F.3d 748, 751 (7th Cir.2010) (quoting Christensen v. Harris Cnty., 529 U.S. 576, 587 (2000)). To assess the persuasive power of the Board's decision, we examine “the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944).

We cannot say that the Board's interpretation of subsection (1), which led it to hold that Nino fell outside of the CSPA's coverage, is persuasive. For one, the Board's consideration is far from thorough-its effective date analysis occupied all of a paragraph of thought. The Board made no effort to consider how its interpretation of subsection (1) harmonized (or failed to harmonize) with the other effective date subsections. Moreover, the Board did not address the legislative history of subsection (1) or the tension between the Board's reading and the fact that the CSPA was meant to be an ameliorative statute, applying to as many parties as practicable. These are proper inquiries that the Board ignored.

The Board's analysis also fails to address reasoning it employed in a prior, precedential opinion. In Avila–Perez, the Board was tasked with determining whether the CSPA applied to a petitioner who had been the derivative beneficiary of a petition for classification, but had not filed an application for adjustment of status before the statute was enacted. In re Avila–Perez, 24 I. & N. Dec. at 80. That question required the Board to explore subsection (1), a subsection it deemed ambiguous. In analyzing the effective date section's legislative history, the Board determined that subsection (1) was “intended to expand the coverage of the statute beyond those individuals whose visa petitions and applications were pending on the date of the CSPA to also protect those individuals whose visa petitions were approved before the effective date, but only if their applications had not already been finally adjudicated.” Id. at 85 (emphasis added). This observation clashes with the Board's conclusion here, and the Board made no effort to address the inconsistency.

The Board's opinion suffers from another, related problem: it ignores directly relevant legislative history. Because subsection (1) is ambiguous, its legislative history serves as a valid interpretive tool. See Khan, 548 F.3d at 556–57. That history recounts the purpose of what is now subsection (1), and it cuts against the Board's reasoning. Originally, the CSPA was to apply to all beneficiaries of visa petitions, whether the petitions were filed before or after the CSPA's enactment. See Padash v. INS, 358 F.3d 1161, 1171–72 (9th Cir.2004) (recounting the history of subsection (1)). The Department of Justice expressed discomfort with such wide-reaching retroactivity. It noted that unlimited retroactivity would force it to reopen cases as old as 1952, imposing records problems and creating administrative backlog. H.R.Rep. No. 107–45, 6–7 (2001), reprinted in 2002 U.S.C.C.A.N. 640, 644, 2001 WL 406244. The end result was subsection (1), which was seemingly designed to solve the Department's concerns over reviving cases long disposed of. See Padash, 358 F.3d at 1172; Avila–Perez, 24 I. & N. Dec. at 85. Nino's reading of the subsection satisfies the Department's concern without removing a large segment of intended beneficiaries from the Act's coverage. The Board's reading, however, would go too far—there should be no records headache for matters still pending before the Department when the CSPA became effective.

It is for all of these reasons that we find the Board's reading of subsection (1) unpersuasive. More to the point, we are convinced that Nino's reading is correct: subsection (1) includes all beneficiaries of previously approved visa petitions except those with applications adjudicated prior to the CSPA's enactment. This reading is more consistent with the legislative history of the CSPA, harmonizes with the “longstanding principle of construing any lingering ambiguities in deportation statutes in favor of the alien,” INS v. Cardoza–Fonseca, 480 U.S. 421, 449 (1987), and meshes with the Board's earlier interpretation of subsection (1), see Avila–Perez, 24 I. & N. Dec. at 85. Finally, this reading satisfies the Department of Justice's concerns over administrative backlog. (We are confident that the Department will be thrilled that it got what it asked of Congress.)

Applying subsection (1), we conclude that the CSPA applies to Nino: her mother's classification petition was approved prior to the CSPA's enactment, and neither of Nino's adjustment applications were decided prior to the CSPA's enactment. Whether the CSPA will help Nino to attain permanent residency is another question, one that will depend on the actual text of the Act's substantive sections. That issue has not yet been fully addressed, and we accordingly leave it to the proper administrative body on remand.

III. Conclusion

For the foregoing reasons, we Grant the petition for review, VACATE the Board's decision, and Remand the case for further proceedings consistent with this opinion.

FOOTNOTES

1. The presence of an ambiguity here should hardly be a surprise to the government. The web site for the United States Citizenship and Immigration Services, the division of the Department of Homeland Security that oversees lawful immigration to the United States, provides an explanation for the CSPA's eligibility requirements. The site states that a party is covered under the CSPA if they are “the beneficiary of a pending or approved visa petition on or after August 6, 2002,” they have not “had a final decision on an application for adjustment of status ․ before August 6, 2002,” and they “ ‘seek to acquire’ permanent residence within 1 year of a visa becoming available.” United States Citizenship and Immigration Services, Child Status Protection Act, http:// www.uscis.gov/portal/site/uscis/ menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1/? vgnextoid= 1f0c0a5659083210VgnVCM100000082ca60aRCRD & vgnextchan nel=1f0c0a5659083210VgnVCM100000082ca60aRCRD (last visited July 20, 2011). The site goes on to remind parties that they may be eligible if they “had not received a final decision on an application for permanent residence ․ prior to August 6, 2002.” Id. While statements on the USCIS's website are not dispositive, the fact that the USCIS read the statute in a way that is in tension with the government's reading suggests that the section is indeed ambiguous.

2. This opinion has been circulated among all judges of this court in regular active service pursuant to Circuit Rule 40(e). No judge favored a rehearing en banc on the question of overruling the relevant part of Gutnik v. Gonzales.

KANNE, Circuit Judge.

BIA Finds California Assault with Intent to Commit a Felony Is a Crime of Violence

The Board of Immigration Appeals (BIA or Board) held in Matter of Ramon Martinez, 25 I. & N. Dec. 571 (B.I.A. July 15, 2011), that a violation of § 220 of the California Penal Code (assault with intent to commit a felony) is categorically a crime of violence under 18 USCA § 16(a) and (b) (2006). Cite as 25 I&N Dec. 571 (BIA 2011)

The respondent, a native and citizen of Honduras, was admitted to the U.S. on April 26, 1991, as an immigrant. On March 7, 1994, he was convicted of assault with intent to commit a felony in violation of Cal. Penal Code § 220. Based on this conviction, removal proceedings against the respondent were initiated, charging that he is removable under INA § 237(a)(2)(A)(iii) [8 USCA § 1227(a)(2)(A)(iii)] (2006) as an alien convicted of an aggravated felony.

In 1994, when the respondent committed his offense, Cal. Penal Code § 220 provided that:

Every person who assaults another with intent to commit mayhem, rape, sodomy, oral copulation, or any violation of Section 264.1 [acting in concert with another person to commit, by force or violence, rape or penetration of genital or anal openings by foreign object, etc.], 288 [lewd or lascivious acts with a child under age 14] or 289 [penetration of genital or anal openings by foreign object, etc.] is punishable by imprisonment in the state prison for two, four, or six years.

The immigration judge (IJ) found that the respondent was convicted of assault with intent to commit rape, a *1757 crime of violence under 18 USCA § 16 for which the term of imprisonment was at least one year and hence an aggravated felony under INA § 101(a)(43)(F) [8 USCA § 1101(a)(43)(F)]. Consequently, the IJ ordered the respondent removed to Honduras. The respondent appealed to the Board, contending that his conviction was not for a crime of violence.

In an opinion delivered by Board Member Edward Grant for the panel, which included Board Members Neil P. Miller and Garry D. Malphrus, the Board found that it was unclear from the conviction records whether the respondent was, in fact, convicted of assault with intent to commit rape as opposed to one of the other offenses enumerated in § 220 and that the respondent's plea was obtained pursuant to People v. West, 477 P.2d 409 (Cal. 1970), which meant that he admitted a violation of § 220 but did not specify which predicate offense he intended to commit. However, the Board concluded that, even if the record did not establish that the respondent was convicted of assault with intent to commit rape, his conviction under § 220 was nevertheless for a categorical “crime of violence” in its own right under both 18 USCA § 16(a) and 18 USCA § 16(b).

The Board explained that, under 18 USCA § 16(a), an offense is deemed to be a “crime of violence” if it “has as an element the use, attempted use, or threatened use of physical force against the person or property of another,” that the phrase “use of physical force” means the use of violent force, and that Cal. Penal Code § 220 requires that an assault be committed with a specific intent to use whatever force is necessary to complete the object offense against the will of the victim. [FN80] The Board also pointed out that, because the accused must intend to accomplish the object offense against the will of the victim, § 220 does not cover instances in which the victim “consents” in some sense to physical contact; rather, the statute encompasses only those offenses in which the victim's will is overcome. Moreover, the Board stressed, the statute punishes “assault with intent to commit” one of the listed offenses, which “clearly does not describe a consensual act.” The Board conceded that, because some victims may prove unable to effectively resist the offender, § 220 could be violated without actual violent force being used, but declared that every violation of § 220 has as an element at least the “attempted” or “threatened” use of such force against the victim, which are alternative elements to the actual use of force under 18 USCA § 16(a). Thus, the Board concluded, a violation of § 220 is categorically a crime of violence under 18 USCA § 16(a).

For similar reasons, the Board found that a violation of Cal. Penal Code § 220 is also a crime of violence under 18 USCA § 16(b), which encompasses “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense,” that is, “that the use of physical force against another might be required in committing the crime.” Since the offense under § 220 (a felony under both California and federal law) requires an assault coupled with the specific intent to use whatever force is necessary to complete the object offense against the will of the victim, it always entails a “substantial risk” that its consummation may involve the intentional use of violent physical force against the victim, either to accomplish the initial assault or to overcome the victim's will or both. Therefore, the Board held, a violation of § 220 is a categorical crime of violence under 18 USCA § 16(b).

Having concluded that the respondent's conviction was for an aggravated felony under INA § 101(a)(43)(F), the Board found him removable as charged and ineligible for a waiver under INA § 212(c) [8 USCA § 1182(c)] because the crime of violence aggravated felony category has no statutory counterpart in the grounds of inadmissibility under INA § 212(a) [8 USCA § 1182(a)]. Further, the Board found the respondent ineligible for voluntary departure because he is deportable under INA § 237(a)(2)(A)(iii) [8 USCA § 1227(a)(2)(A)(iii)] as an alien convicted of an aggravated felony, INA § 240B(b)(1)(C) [8 USCA § 1229c(b)(1)(C)]. Consequently, the respondent's appeal was dismissed.

See Matter of Velasquez, 25 I. & N. Dec. 278, 282 (B.I.A. 2010) (following Johnson v. U.S., 130 S. Ct. 1265, 1271 (2010)). Matter of Velasquez is examined in 87 Interpreter Releases 1474 (July 26, 2010). Johnson v. U.S. is examined in 87 Interpreter Releases 643 (Mar. 22, 2010).

See People v. Maury, 68 P.3d 1, 44 (Cal. 2003); People v. Davis, 896 P.2d 119, 143 (Cal. 1995); People v. Dillon, 95 Cal. Rptr. 3d 449, 459 (1st Dist. 2009) (stating that § 220 requires “not only the specific intent to commit the underlying sexual act, but a specific intent to commit that act without the consent of the victim”); People v. Soto, 141 Cal. Rptr. 343, 349 (1st Dist. 1977) (noting that a conviction requires proof of “the assault and an intent on the part of defendant to use whatever force is required to complete the sexual act against the will of the victim”).

See People v. Dillon, 95 Cal. Rptr. 3d at 459.

Leocal v. Ashcroft, 543 U.S. 1, 10 (2004).

BIA Finds § 212(h) Waiver Not Available to Overcome Bar to Cancellation of Removal

Matter of BUSTAMANTE, 25 I&N Dec. 564 (BIA 2011)

The bar to cancellation of removal in section 240A(b)(1)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(1)(C) (2006), which precludes an alien who has been convicted of an offense under section 212(a)(2) of the Act, 8 U.S.C. § 1182(a)(2) (2006), from establishing eligibility for relief, may not be overcome by a waiver under section 212(h) of the Act.

The BIA concluded that INA §212(h) cannot waive the effect of a conviction for a controlled substance violation to overcome the bar to cancellation of removal under §240A(b)(1)(C), and dismissed the appeal.
Tweet

The Board of Immigration Appeals (BIA or Board) has held, in Matter of Bustamante, 25 I. & N. Dec. 564 (B.I.A. July 13, 2011), that the bar to cancellation of removal in INA § 240A(b)(1)(C) [8 USCA § 1229b(b)(1)(C)] (2006), which precludes an alien who has been convicted of an offense under INA § 212(a)(2) [8 USCA § 1182(a)(2)] (2006) from establishing eligibility for relief, may not be overcome by a waiver under INA § 212(h) [8 USCA § 1182(h)]. The respondent is a native and citizen of Mexico who entered the U.S. without having been admitted or paroled. In April 2008, he was convicted of possession of not more than 20 grams of marijuana in violation of Fla. Stat. § 893.13(6)(b). Removal proceedings were initiated against the respondent, charging him under INA § 212(a)(6)(A)(i) as an alien who is present in the U.S. without having been admitted or paroled. At a hearing before an immigration judge (IJ), the respondent conceded that he is removable and sought to apply for cancellation of removal under INA § 240A(b). The Department of Homeland Security (DHS) argued that the respondent was ineligible for that relief because he was barred under INA § 240A(b)(1)(C) as a result of his conviction for a controlled substance violation, which was an offense under INA § 212(a)(2)(A)(i)(II). The respondent requested a waiver under INA § 212(h) to overcome the statutory bar. The IJ determined that a waiver under INA § 212(h) would not eliminate the legal effect of the conviction for purposes of INA § 240A(b)(1)(C). The IJ found the respondent ineligible for cancellation of removal and ordered him removed from the U.S. The respondent has appealed, arguing that the IJ erred in denying the application for cancellation of removal. The respondent asserted that because cancellation of removal is a form of adjustment of status, an INA § 212(h) waiver should remove the legal effect of his conviction in the same manner that it waives a ground of inadmissibility that would otherwise render an alien ineligible for adjustment of status under INA § 245 [8 USCA § 1255] (2006).

In an opinion written by Board Member Linda S. Wendtland, in which Board Members Roger Pauley and Anne J. Greer joined, the Board began its analysis by setting out the relevant statutory provisions. It noted that INA § 240A(b)(1) states: The Attorney General may cancel removal of, and adjust to the status of an alien lawfully admitted for permanent residence, an alien who is inadmissible or deportable from the United States if the alien-- (C) has not been convicted of an offense under section 212(a)(2), 237(a)(2), or 237(a)(3) of the Act Additionally, the Board set out the relevant language for INA § 212(a)(2)(A)(i): [A]ny alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of-- (II) a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. [§ ] 802)), is inadmissible.

The Board also made note of INA § 212(h), in relevant part: The Attorney General may, in his discretion, waive the application of subparagraphs (A)(i)(I), (B), (D), and (E) of subsection (a)(2) and subparagraph (A)(i)(II) of such subsection insofar as it relates to a single offense of simple possession of 30 grams or less of marijuana... (Emphasis added by the Board.)

The Board found that while INA § 212(h) is ambiguous with regard to its inadmissibility waiver provision, INA § 240A(b)(1)(C) was quite clear, requiring that an applicant demonstrate he was not convicted of an offense under INA § 212(a)(2). The Board opined that “while section 240A(b)(1)(C) clearly references the fact of a conviction, we conclude that section 212(h) is properly interpreted as not waiving the fact of a conviction, but instead as waiving only grounds of inadmissibility arising from a conviction, as well as from other actions involving criminal conduct.” The Board reasoned that it has historically held that INA § 212(h) has applied to overcoming grounds of inadmissibility that would otherwise preclude an alien from obtaining admission or adjustment of status under INA § 245. The Board also observed that, in contrast to this language, Congress has specifically exempted persons with convictions under INA § 212(a)(2) from being eligible for cancellation of removal by the language it used in crafting INA § 240A(b)(1)(C). The Board opined that the language “indicates that the bar does not depend in any way on a determination of inadmissibility or removability or ‘the application of’ a ground of inadmissibility. Instead, it directly references only convictions that are covered within the cross-referenced provisions.”

The Board also found support for its position in the fact that Congress used different language in another cancellation of removal provision, that found in INA § 240A(b)(2)(A)(iv), relating to the eligibility requirements for cancellation of removal for a battered spouse or child. There, Congress included language that related to inadmissibility and deportability, unlike in the provision at issue in this case.

Additional support for its position was found in a recent decision by the U.S. Court of Appeals for the Seventh Circuit, Barma v. Holder, 640 F.3d 749 (7th Cir. 2011). In Barma, the Seventh Circuit found that, based on language in INA § 240A(b)(1)(C), “the alien, who was convicted of possession of drug paraphernalia, was convicted of an offense under section 212(a)(2) and was therefore ineligible for cancellation of removal based on his conviction.” That court concluded that the waiver in § 212(h) was applicable to grounds of inadmissibility but not to cancellation of removal. The Seventh Circuit relied in part on a decision by the U.S. Court of Appeals for the Ninth Circuit, Sanchez v. Holder, 560 F.3d 1028, 1032 (9th Cir. 2009), which concluded that “[a] statute giving the Attorney General discretion to grant relief from inadmissibility does not give the Attorney General discretion to grant relief from removal.”

The Board concluded that the provisions for cancellation of removal require that the seeker be free from one of the enumerated convictions and that the convictions are not waivable. Further, it found that § 212(h)'s waiver applies only to waive the inadmissibility, not the actual conviction. The Board concluded:

"As an alien who was convicted of a controlled substance violation, the respondent has been “convicted of an offense under” section 212(a)(2)(A)(i)(II) of the Act. He is therefore barred from establishing eligibility for cancellation of removal under section 240A(b)(1)(C) of the Act. We agree with the Immigration Judge that a section 212(h) waiver is not available to overcome that bar. Accordingly, the respondent's appeal will be dismissed. Given our disposition, we need not address the remaining arguments presented on appeal."

BIA Addresses K-2 Age Out Eligibility for Adjustment of Status: K-2s Don't Age Out

A derivative child of a nonimmigrant fiancé(e) visa holder under section 101(a)(15)(K)(iii) of the INA is not ineligible for adjustment of status simply by virtue of having turned 21 after admission to the United States on a K-2 nonimmigrant visa. Matter of Le, 25 I&N Dec. 541 (BIA 2011)

The Board’s long-awaited ruling favorably resolves the issue of whether  the child of a fiancée of a U.S. citizen (a K-2 visa holder), who  legally entered the U.S. when under age 21, is eligible for adjustment  of status even after turning age 21. The Board concluded that the age of  the child is “fixed” at the time the child is admitted to the United  States. In doing so, it rejected the Department of Homeland Security’s  position that a K-2 visa holder is eligible only if he or she is under  21 at the time the adjustment of status application is adjudicated. The Board’s decision is consistent with the position that the American  Immigration Council and the American Immigration Lawyers Association  advocated in amicus briefs submitted to the Board in approximately a  half dozen other cases where the child turned 21 after being admitted to  the United States. The noncitizens in these and the many other cases  before both Immigration Judges and U.S. Citizenship and Immigration  Services offices throughout the country now will be able to become  lawful permanent residents as Congress intended.              

USCIS’s approach  was  fundamentally unfair.  For example, under the  USCIS approach, even an individual who obtained a K-2 visa and applied  for adjustment of status several years before his or her twenty-first  birthday would have no way of knowing whether the entire lengthy process  might be wasted because of the time that the application “languished in  the agency’s filing cabinet.”  Congress could not and did not intend  for such an unfair practice. It denied K2 adjustments because alien was was deemed to  have "aged out", meaning he had already reached the age of 21 before the  adjudication of his AOS application was accomplished.

Under Matter of Le,  an applicant, who entered the U.S. on a K-2 visa and  turned 21 before filing for adjustment of status based on her mother’s  marriage to the petitioning U.S. citizen, is nonetheless eligible for  adjustment.

The BIA held that an alien who enters on a K-1 visa and timely enters  into a bona fide marriage with the petitioning spouse, remains eligible  to adjust status under INA §245(a) despite termination of the marriage. Matter of Sesay, 25 I&N Dec. 431 (BIA 2011)

USCIS Policy Memo on Requests to Expedite Adjudication of Form I-601

USCIS 5/9/11 policy memo on how USCIS processes requests to expedite the adjudication of Forms I-601, Application for Waiver of Grounds of Inadmissibility, filed by individuals outside of the U.S.

USCIS Fact Sheet on National Initiative to Combat Immigration Services Scams: The wrong help can hurt.

USCIS fact sheet on the national, multi-agency initiative to combat immigration scams involving the unauthorized practice of immigration law that was launched by DHS, DOJ, and the FTC on 6/9/11.

Many people offer help with immigration services. Unfortunately, not all are authorized to do so. While many of these unauthorized practitioners mean well, all too many of them are out to rip you off. This is against the law and may be considered an immigration service scam.

If you need help filing an application or petition with USCIS, be sure to seek assistance from the right place, and from people that are authorized to help. Going to the wrong place can:

• Delay your application or petition
• Cost you unncessary fees
• Possibly lead to removal proceedings

Joint DHS, DOJ, and FTC press release on the 6/9/11 launch of a national initiative designed to stop immigration scams that involve the unauthorized practice of immigration law, through enforcement, education, and continued collaboration

ICE Revised Immigration Detainer Form I-247 (6/11)

ICE revised immigration detainer Form I-247, issued in June 2011. The form instructs that state and local authorities are not to detain an individual for more than 48 hours, excluding weekends and holidays, and requires local law enforcement to provide a copy to detainees.

ICE Memo on Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities

Memorandum by Director John Morton issuing guidance to ICE personnel on the exercise of prosecutorial discretion. The memo also sets forth which agency employees may exercise prosecutorial discretion and what factors should be considered. ICE 6/17/11

Here is a June 17, 2011 memo from Morton on on "Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens."   The memo emphasizes that "ICE officers, agents, and attorneys should always consider prosecutorial discretion on a case-by-case basis. The decisions should be based on the totality of the circumstances, with the goal of conforming to ICE's enforcement priorities."

Below are certain classes of individuals that, according to the Morton memo, warrant particular care.

"The following positive factors should prompt particular care and consideration:
• veterans and members ofthe U.S. armed forces;
• long-time lawful permanent residents;
•. minors and elderly individuals;
• individuals present in the United States since childhood;
• pregnant or nursing women;
• victims ofdomestic violence; trafficking, or other serious crimes;
• individuals who suffer from a serious mental or physical disability; and
• individuals with serious health conditions."
The memo further states that, in exercising prosecutorial discretion, "the following negative factors should also prompt particular care and consideration by ICE officers, agents, and attorneys:
• individuals who pose a clear risk to national security;
• serious felons, repeat offenders, or individuals with a lengthy criminal record of any kind;
• known gang members or other individuals who pose a clear danger to public safety; and
• individuals with an egregious record ofimmigration violations, including those with a record ofillegal re-entry and those who have engaged in immigration fraud."

Importantly, the memo states that, "[w]hile ICE may exercise prosecutorial discretion at any stage of an enforcement proceeding, it is generally preferable to exercise such discretion as early in the case or proceeding as possible in order to preserve government resources that would otherwise be expended in pursuing the enforcement proceeding."

ICE Memo on Prosecutorial Discretion Regarding Certain Victims, Witnesses, and Plaintiffs

ICE 6/17/11 memo from Director John Morton setting policy on the exercise of prosecutorial discretion in removal cases involving victims and witnesses of crime, including domestic violence, and individuals involved in non-frivolous efforts related to civil rights protection.

OCAHO Says Reporting Unauthorized Workers Is Not Protected Under INA §274B

The Office of the Chief Administrative Hearing Officer (OCAHO) found that there is no cause of action under INA §274B(a)(5), where the employee alleges retaliation for reporting the presence of undocumented workers or other violations that fall under INA §274A. (Cavazos v. Wanxiang, 4/27/11).

OCAHO says reporting unauthorized workers is not protected under INA §274B (5/13/2011) OCAHO found that there is no cause of action under INA §274B(a)(5), where the employee alleges retaliation for reporting the presence of undocumented workers or other violations that fall under INA §274A.

The Seventh Circuit, in which this case arises, has construed the statute the same way without reference to our case law, noting that § 1324b(a)(5) “does not cover all activities that implicate any provision of the immigration laws; it is limited to complaints and charges regarding discrimination based on national origin and citizenship . . . .” Arres v. IMI Cornelius Remcor, Inc., 333 F.3d 812, 814 (7th Cir. 2003), aff’g No. 00 C 6542, 2002 WL 1888489 (N.D. Ill. Aug. 15, 2002). The Arres court, while affirming the district court on other grounds, found it was error for the lower court to award summary judgment to the defendant Remcor based on the mistaken view that § 1324b(a)(5) provided a remedy for individuals who filed a charge or complaint about violations of immigration law. Id. at 813. The court observed that even had there been a federal remedy for Arres, such remedy would not automatically have precluded a state claim for retaliatory discharge. Id. at 813-14. See also, Tiengkham v. Electronic Data Sys. Corp., 551 F. Supp. 2d 861, 871 (S.D. Iowa 2008) (agreeing with Arres about the limited nature of the cause of action contained in § 1324b(a)(5), and finding that plaintiff’s state action for retaliatory discharge for reporting the presence of illegal aliens at the plant was not preempted because it did “not come within ‘the preemptive scope’ of 8 U.S.C. § 1324b”).

The Office of the Chief Administrative Hearing Officer (OCAHO) is headed by a Chief Administrative Hearing Officer who is responsible for the general supervision and management of Administrative Law Judges who preside at hearings which are mandated by provisions of law enacted in the Immigration Reform and Control Act of 1986 (IRCA (PDF)) and the Immigration Act of 1990 (PDF). These acts, among others, amended the Immigration and Nationality Act of 1952 ( INA).

Administrative Law Judges hear cases and adjudicate issues arising under the provisions of the INA relating to (1) knowingly hiring, recruiting, or referring for a fee or the continued employment of unauthorized aliens, and failure to comply with employment verification requirements in violation of section 274A of the INA (employer sanctions); (2) immigration-related unfair employment practices in violation of section 274B of the INA; (3) immigration-related document fraud in violation of 274C of the INA; and (4) failure to comply with the information dissemination provisions for international match making organizations in violation of 8 U.S.C. 1375a. Complaints are brought by the Department of Homeland Security, the Office of Special Counsel for Immigration-Related Unfair Employment Practices in the Department of Justice, or private individuals as prescribed by statute.

Hearings are conducted under applicable laws and regulations, as well as the general requirements of the Administrative Procedure Act. Employer sanctions and document fraud cases are subject to administrative review by the Chief Administrative Hearing Officer. All final agency decisions are subject to review in federal courts.

BIA Finds Conviction for Violating Kansas No-Contact Provision Is a Removable Offense

A conviction for violation of the no-contact provision of a protection order issued under the Kansas Protection from Abuse Act constitutes a removable offense under INA §237(a)(2)(E)(ii). Matter of Strydom, 25 I&N Dec. 507 (BIA 2011).

The Board held that a conviction under section 21-3843(a)(1) of the Kansas Statutes Annotated for telephoning a person protected by the order constitutes a deportable offense under section 237(a)(2)(E)(ii) of the Immigration and Nationality Act.  Section 237(a)(2)(E)(ii) provides that an alien admitted to the U.S. who violates “the portion of a protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury to the person or persons for whom the protection order was issued is deportable.”

Contacting the subject of a protection order by telephone made the respondent deportable even if the call did not involve threats or repeated harassment. It reasoned that the no-contact portion of a protection order (as opposed to portions concerning attending counseling or paying costs) involved protection from credible threats, repeated harassment, or bodily injury because a court would only issue it if there had been past abuse or threats and the no-contact order protects the victim from being victimized again.

The Board did not discuss the potential significance of the fact that the case involved a temporary protection order, which typically is issued before the court determines if credible threats of violence, repeated harassment, or bodily injury actually had occurred.  Indeed, the telephone call in this case occurred twenty days before the hearing on the restraining order.  The temporary restraining order thus apparently was based only on the woman’s unproven allegations.

The Board’s construction gives no effect to the statutory language that seems to require a determination that the threats, repeated harassment, or bodily injury had occurred and that any threats were credible.  A better construction would require, at least in the case of unproven ex parte temporary restraining orders, that the immigration judge actually find that the violation did involve such conduct.

BIA Says Arriving Aliens Subject to Expedited Removal May Be Placed in §240 Proceedings

DHS has the discretion to place arriving aliens in removal proceedings under INA §240, even if they may also be subject to expedited removal under INA §235(b)(1)(A)(i). Matter of E-R-M- & L-R-M, 25 I&N Dec. 520 (BIA 2011)

Cancellation of Removal/Break in Continuous Physical Presence Based on Execution of Form I-826 and Voluntary Return

In Reyes-Sanchez v. Holder, 2011 WL 2725813 (7th Cir. 2011), the U.S. Court of Appeals for the Seventh Circuit denied a petition for review filed by a citizen of Mexico whose application for cancellation of removal under INA § 240A(b) [8 USCA § 1229b(b)], applicable to nonlawful permanent resident aliens, was denied by the IJ and the BIA. The circuit court agreed with the government that the petitioner's apprehension by the U.S. Border Patrol and her formalized agreement to return to her native Mexico rather than to opt for an immigration court hearing interrupted her statutorily required 10-year period of continuous physical presence, thus rendering her ineligible to qualify for cancellation relief. The Seventh Circuit affirmed the agency’s determination that petitioner was ineligible for Cancellation of Removal because her voluntary return (Form I-826) after a brief visit to Mexico was under threat of prosecution and thus was sufficient to break her continuous presence in the United States.

The petitioner entered the U.S. without inspection in 1987. She subsequently married and raised three children in the U.S. She returned briefly to Mexico in 2001 and reentered the U.S. in August 2001 without being admitted or paroled. Upon her apprehension by the Border Patrol and placement into custody, she executed the Spanish version of Form I-826, Notice of Rights and Request for Disposition. It offered her three options: (1) hearing before IJ, (2) asylum hearing, or (3) acknowledgement of unlawful presence and agreement to return to native country as soon as arrangements can be made for departure. The petitioner chose the third option and was immediately returned to Mexico. In May 2003, she was apprehended in the U.S. by Immigration and Customs Enforcement (ICE) agents who were looking for her nephew, and she was placed into removal proceedings, charged under INA § 212(a)(6)(A)(i) [8 USCA § 1182(a)(6)(A)(i)] with being present in the U.S. without having been admitted or paroled.

Before the IJ, her counsel conceded the petitioner's removability and opted not to ask for cancellation due to the break in residence. The IJ refused to grant a continuance pending the results of the petitioner's legalization application but granted voluntary departure (VD) relief. While her case was pending before the BIA, the Eighth Circuit issued a decision, Ortiz-Cornejo v. Gonzales, 400 F.3d 610 (8th Cir. 2005), which held that merely being turned back at the border without any threat of deportation does not constitute a break in continuous physical presence for purposes of cancellation relief. Consequently, the Board returned Reyes-Sanchez's case to the IJ for fact finding on the “break” issue. The IJ then proceeded to hold that the petitioner's return to Mexico pursuant to the I-826 process was a response to a threat of removal and therefore broke her continuous U.S. presence. The BIA affirmed this result and did not extend her VD as she failed to post the required bond. In upholding the Board's decision, it deferred to its precedent decision in Matter of Romalez-Alcaide, 23 I. & N. Dec. 423 (B.I.A. 2002) (en banc), which held that, in addition to the departures exceeding the specified durations under the statute, a departure under a threat of deportation also constitutes a break in the accrual of continuous physical presence for cancellation purposes. The Board characterized acceptance of voluntary departure under the prior regime as a “plea bargain” and remarked that this type of enforced departure should create no legitimate expectation by either of the parties that an alien could illegally reenter the U.S. and resume a period of continuous physical presence.

The court contrasted the situation where an alien is merely just turned around at the border without any particular process, noting that in its prior decision, Morales-Morales v. Ashcroft, 384 F.3d 418 (7th Cir. 2004), it deemed this type of return not to break the continuous presence as it could not be equated with a formal voluntary departure or departure under an order of removal or deportation. The court also cited to Matter of Avilez-Nava, 23 I. & N. Dec. 799 (B.I.A. 2005) (en banc), which recognized that a mere refusal to admit an alien at the border does not constitute a break in continuous physical presence as this does not involve a formal documented process pursuant to which the alien was determined to be inadmissible to the U.S. In that case, the Board outlined what might constitute a formal process, keying in on production of official forms and processes accompanying return of the alien to his or her native country.

The court outlined the process involved in Reyes's case and deemed it to be sufficiently formalized. It considered that Reyes's use of a fictitious name to sign the Form I-826 suggested that she understood the form did indeed carry legal consequences. The court rejected the counterarguments advanced by the petitioner, including that the use of the phrase “voluntary return” on the form was not the equivalent of “voluntary departure.” It pointed out that the use of different words in this context is not central to the law as interpreted by the Board in Romalez, supra, and that this understanding has been endorsed by every circuit court to consider this issue. The court noted that, at oral argument, petitioner's counsel argued that the form was insufficient because it did not go the extra step of informing Ms. Reyes that she might have been eligible for cancellation of removal based on her 10 years of continuous residence from 1987 to 2001 but would have to request a hearing. In rejecting this argument, the court remarked that, given the myriad of circumstances that those apprehended at the border face, the brevity of Form I-826 may well have been preferable to providing each detainee a denser explanation of the relevant law. The court was satisfied that the BIA and IJ correctly determined that the petitioner's continuous physical presence in the U.S. was interrupted when she chose to return to Mexico in a formal documented process while facing the threat of removal.

BIA Addresses Whistleblowing as a Basis for Asylum: Matter of N-M-, 25 I&N Dec. 526 (BIA 2011)

The BIA found that retaliation for opposition to state corruption may form the basis for a claim based on political opinion if, post-REAL ID, the actual or imputed anti-corruption belief was one central reason for the harm. Matter of N-M-, 25 I&N Dec. 526 (BIA 2011)

Matter of N-M-, which arose within the jurisdiction of the U.S. Court of Appeals for the Ninth Circuit, involved a Colombian woman who had worked in a state-run agency where she was pressured to falsify information and hire contractors outside of the official hiring process.  When she refused to do so and voiced concerns about the corruption, she was transferred to a different position and threatened.  The immigration judge granted the woman asylum, the Department of Homeland Security appealed, and the BIA sustained the appeal and remanded the case for further fact finding.

In its decision, the BIA noted that in some circumstances, opposition to state corruption may demonstrate the respondent's political opinion or give a persecutor reason to impute such political opinion" to the respondent, particularly where the opposition involved participating in "classic political activities" or exposing the corruption to other authorities.  Id. at 528.  However, when determining whether the respondent was persecuted on account of that actual or imputed political opinion, the BIA held that the respondent must provide some direct or circumstantial evidence that the persecutor targeted the respondent because of her political beliefs. Id.  Moreover, for cases arising under the REAL ID Act of 2005, the respondent must demonstrate that her actual or imputed political opinion was 'one central reason' for the persecution.  Id. at 532.  As a result, evidence simply showing the respondent was harmed in retaliation for exposing corruption linked to a political system is insufficient to prove that the respondent's anti-corruption beliefs were 'one central reason' for her persecution. Id.

Finally, the BIA provided three factors that an adjudication "may find useful" when examining an asylum claim based on opposition to state corruption.  First, the adjudicator 'may consider whether and to what extent the alien engaged in activities that could be perceived as expressions of anti-corruption beliefs.  Id. Second, the adjudicator should consider any direct or circumstantial evidence that the alleged persecutor was motivated by the alien's perceived or actual anti-corruption beliefs.  Id.  Finally, the adjudicator should consider 'evidence regarding the pervasiveness of governmental corruption's and 'whether there are direct ties between the corrupt elements and higher level officials.  Id. at 533.  On the third point, the BIA noted that where a respondent threatens to expose corruption by rogue officials acting without the support of the government, "it seems less likely that the act would be perceived as politically motivated or threatening."  Id.  Similarly, whether the government itself, and not just the corrupt individuals, retaliates against the respondent is relevant to this issue.  Id.

The U.S. Court of Appeals for the Seventh Circuit has issued several decisions regarding corruption or whistle-blower's-based asylum claims. See e.g., Musabelliu v. Gonzalez, 442 F.3d 991 (7th Cir. 2006). The BIA's discussion of Elias-Zacarias, 502 U.S. 478 (1992), in N-M- seems inconsistent with recent Seventh Circuit's decisions regarding political opinion-based asylum claims.  Compare N-M- at 529 (asserting that the majority [in Elias-Zacarias] did not adopt the dissent's argument that an inquiry into the individual persecutor's motivation is unnecessary so long as an alien demonstrates that the persecution occurred in response to an act manifesting a political opinion) (internal citations omitted) with Martinez-Buendia v. Holder, 616 F.3d 711, 718 (7th Cir. 2010) (stating, "if political opposition is the reason an individual refuses to cooperate with a guerrilla group, and that individual is persecuted for his refusal to cooperate, logic dictates that the persecution is on account of the individual's political opinion.").

BIA Finds Driving with Wanton or Willful Disregard for Lives or Property to Elude Police is a CIMT

The BIA held in Matter of Ruiz-Lopez, 25 I.&N. Dec. 551 (B.I.A. June 3, 2011) that (1) the offense of driving a vehicle in a manner indicating a wanton or willful disregard for the lives or property of others while attempting to elude a pursuing police vehicle in violation of Wash. Rev. Code § 46.61.024 is a crime involving moral turpitude (CIMT) and (2) the maximum sentence possible for an offense, rather than the standard range of sentencing under a state's sentencing guidelines, determines an alien's eligibility for the “petty offense” exception under INA § 212(a)(2)(A)(ii)(II) [8 USCA § 1182(a)(2)(A)(ii)(II)] (2006).

The respondent, a native and citizen of Mexico, entered the U.S. without having been admitted or paroled. On December 29, 1997, he was convicted of attempting to elude a pursuing police vehicle in violation of Wash. Rev. Code § 46.61.024, for which he was sentenced to 40 days confinement. Subsequently, the Department of Homeland Security (DHS) charged that the respondent was inadmissible because he was convicted of a CIMT and was present in the U.S. without having been admitted or paroled. The immigration judge (IJ) sustained both charges. In addition, the IJ determined that the respondent's conviction rendered him statutorily ineligible for cancellation of removal under INA § 240A(b) [8 USCA § 1229b(b)] (2006). The IJ ordered him removed from the U.S. and the respondent appealed to the BIA, contending that his conviction was not for a CIMT and that, even if it was, the “petty offense” exception under INA § 212(a)(2)(A)(ii)(II) applies so that he remains eligible for cancellation of removal.

At the time of the respondent's conviction, Wash. Rev. Code § 46.61.024 provided, in pertinent part, that:

"Any driver of a motor vehicle who wilfully fails or refuses to immediately bring his vehicle to a stop and who drives his vehicle in a manner indicating a wanton or wilful disregard for the lives or property of others while attempting to elude a pursuing police vehicle, after being given a visual or audible signal to bring the vehicle to a stop, shall be guilty of a class C felony. The signal given by the police officer may be by hand, voice, emergency light, or siren. The officer giving such a signal shall be in uniform and his vehicle shall be appropriately marked showing it to be an official police vehicle."

The respondent contended that his conviction was not for a CIMT because (1) pursuant to the holding in Matter of Khourn, 21 I. & N. Dec. 1041, 1046 (B.I.A. 1997), an evil intent is required for a finding of moral turpitude and although “a wanton or wilful disregard for the lives or property of others” must be established for a conviction under the Washington statute, no showing of evil intent is necessary; (2) although his attempt to elude a police officer was a willful act, it was not committed with the evil intent generally associated with other crimes found to involve moral turpitude, such as the offense of aggravated fleeing discussed in Mei v. Ashcroft, 393 F.3d 737 (7th Cir. 2004); and (3) “wanton disregard” equates to recklessness, which, under Matter of Fualaau, 21 I. & N. Dec. 475 (B.I.A. 1996), must be coupled with the infliction of serious bodily injury for a finding of moral turpitude, and under Wash. Rev. Code § 46.61.024 a person may be convicted based on a showing of wanton disregard for only property, without any serious bodily harm, and further, under the Board's decisions in Matter of M-, 2 I. & N. Dec. 686 (C.O., B.I.A. 1946) (involving damage to railway telegraph property), and Matter of B-, 2 I. & N. Dec. 867 (C.O., B.I.A. 1947) (involving willful damage to mail boxes and other property), such reckless harm to property has not been considered to be morally turpitudinous. Therefore, he contended, the offense of attempting to elude a pursuing police vehicle under the Washington statute is not categorically a CIMT.

The Board, in an opinion written by Board Member Linda S. Wendtland for the panel which included Board Members Lauri S. Filppu and Roger Pauley, rejected each of these contentions. The Board noted that judicial and administrative precedents have recognized that “reckless disregard” can constitute the requisite “evil intent” for a CIMT under at least some circumstances. In rejecting the respondent's reliance on Matter of Fualaau for the proposition that in order to involve moral turpitude, an offense with a mens rea of recklessness must be coupled with the infliction of serious bodily injury, the Board pointed out that (1) in Matter of Medina, 15 I. & N. Dec. 611, 613-14 (B.I.A. 1976), [FN6] aff'd sub nom. Medina-Luna v. INS, 547 F.2d 1171 (7th Cir. 1977) which involved aggravated assault, it concluded that moral turpitude inhered in criminally reckless conduct with the use of a deadly weapon as an aggravating factor, but with no serious bodily injury, and (2) whenever it has held that a “recklessness” mens rea requires either serious bodily injury or some other aggravating factor to establish moral turpitude, it has been in the specific context of assault offenses. Since the respondent's offense did not involve assault, the Board found his argument in this regard unpersuasive. Moreover, the Board pointed out that, as a general rule, “the seriousness of a criminal offense . . . is [not] determinative of whether a crime involves moral turpitude,” Matter of Sejas, 24 I. & N. Dec. 236, 237 (B.I.A. 2007).

Turning to the offense for which the respondent was convicted, the Board explained that three elements are required to support a conviction of attempting to elude a pursing police officer under Wash. Rev. Code § 46.61.024: (1) a uniformed police officer whose vehicle is appropriately marked must give the driver of a motor vehicle a visual or audible signal to bring the vehicle to a stop; (2) the driver must willfully fail or refuse to immediately bring his vehicle to a stop; and (3) while attempting to elude a pursuing police vehicle, the driver must drive his or her vehicle in a manner indicating a wanton or willful disregard for the lives or property of others. The Board noted that, in construing this last element, the Supreme Court of Washington has stated that “[t]he statute is absolutely clear that at the very least the manner in which one drives must indicate wanton and willful disregard” and concluded that this “crime of felony flight” “[o]bviously ... does contain culpable mental elements.” State v. Sherman, 653 P.2d 612, 615-16 (Wash. 1982) (en banc). Moreover, Washington courts have found that the usual meaning of “willful,” “wanton,” or “reckless” is that the actor “has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow, and which thus is usually accompanied by a conscious indifference to the consequences, State v. Brown, 697 P.2d 583, 586 (Wash. Ct. App. 1985) (quoting W. Prosser & W. Keeton, Torts § 34, at 213 (5th ed. 1984)) (emphasis added).

The Board also pointed out that the U.S. Court of Appeals for the Seventh Circuit, in Mei v. Ashcroft, held that the Illinois offense of aggravated fleeing from a police officer--which involved the willful failure to obey a police officer's order to stop, with the aggravating circumstance that the offender was driving at 21 or more miles per hour above the speed limit--is a CIMT. The court stated that “a person who deliberately flees at a high speed from an officer who, the fleer knows, wants him to stop, thus deliberately flouting lawful authority and endangering the officer, other drivers, passengers, and pedestrians, is deliberately engaged in seriously wrongful behavior.” Mei v. Ashcroft, 393 F.3d at 742. The Seventh Circuit pointed out that, while the driver may not want to endanger anyone, he has to know that he is greatly increasing the risk of an accident as a consequence of his deliberate and improper decision to ignore a lawful order of the police. Id. The Board noted further that, while Mei v. Ashcroft did not involve an offense containing an element of willful disregard for lives or property, the Seventh Circuit cited to a case that did: People v. Dewey, 49 Cal. Rptr. 2d 537, 541 (Cal. Ct. App. 1996), which held that California's felony offense of fleeing or attempting to elude a pursuing peace officer by driving in willful or wanton disregard for the safety of persons or property was a CIMT and which specifically rejected the contention that the offense could not involve moral turpitude because an individual eluding a police officer might only be acting with the requisite disregard for the safety of property.

The Board found little distinction between the respondent's offense and those considered in Mei v. Ashcroft and People v. Dewey as the respondent's conduct was similar to that involved in those cases in that he willfully failed or refused to immediately bring his vehicle to a stop after a uniformed police officer in an appropriately marked vehicle gave him a signal to stop his motor vehicle and, while attempting to elude the pursuing police vehicle, drove his vehicle in a manner indicating a wanton and/or willful disregard for the risk of injury to another person or to property. Assuming arguendo that there is a “realistic probability” of prosecution under the Washington statute where the offense of attempting to elude a pursuing police vehicle was committed with a reckless disregard for only property, the Board found that moral turpitude necessarily inheres in such a crime given the combination of circumstances involved. The Board concluded that when a person deliberately flouts lawful authority and recklessly endangers the officer, other drivers, passengers, pedestrians, or property, he or she is “engaged in seriously wrongful behavior” that violates the accepted rules of morality and the duties owed to society. Thus the respondent's conviction was for a CIMT.

The Board also found that the respondent was not eligible for the “petty offense” exception under INA § 212(a)(2)(A)(ii)(II) because the maximum penalty for the crime of which he was convicted is five years of imprisonment. The Board rejected the respondent's assertion that he was eligible for this exception because the standard range of sentencing for his offense was from 0 to 60 days under the State of Washington's Sentencing Guidelines, noting that the presumptive sentence is not the maximum sentence possible and that, although the respondent was only sentenced to a term of imprisonment of 40 days, the judgment and sentence stated that the maximum term of imprisonment for the crime to which he pled guilty was five years. Accordingly, the Board held that, because the respondent's conviction for a CIMT does not come within the “petty offense” exception, he was convicted of an offense described under INA § 212(a)(2) and is therefore ineligible for cancellation of removal under INA § 240A(b)(1)(C). Accordingly, the appeal was dismissed.

As a side note, the BIA provided a paragraph detailing the proper analysis to use to determine whether a crime involves moral turpitude under Matter of Silva-Treviño, 24 I&N Dec. 687, 688-89 (A.G. 2008). 

The BIA explained,

“Pursuant to Matter of Silva-Trevino, the first stage of the analysis employs a categorical approach, under which the criminal statute at issue is examined to ascertain whether moral turpitude is intrinsic to all offenses that have a ‘realistic probability’ of being prosecuted under that statute. If the issue cannot be resolved under the categorical approach, the second stage involves a modified categorical inquiry, which requires inspection of specific documents comprising the alien’s record of conviction to discern the nature of the underlying conviction. Finally, if the record of conviction is inconclusive, the Attorney General has held that because moral turpitude is not an element of an offense, evidence beyond the record of conviction may be considered when evaluating whether an alien’s crime involved moral turpitude.”

Matter of Ruiz-Lopez, 25 I&N Dec. at 553. Silva-Treviño, the BIA suggests, requires a linear analysis: only use step two (the modified categorical approach) if step one does not answer the question; only use step three (the anything-goes prong) if step two does not answer the question. 

Withholding of Removal, Macedonia Stanojkova v. Holder (7th Cir. 2011)

No. 10-3327 Decision Date: July 14, 2011 Petition granted

http://www.ca7.uscourts.gov/fdocs/docs.fwx?submit=showbr&shofile=10-3327_002.pdf (PDF)

Record failed to support Bd.'s denial of application for withholding of removal by aliens (native of Macedonia) alleging that they were persecuted by members of paramilitary police in native country because of their sympathetic views of Albanian minority within native country. While Bd. believed that aliens' 10-minute confrontation with paramilitary police was insufficient to establish persecution claim, evidence was sufficient where: (1) alien claimed that police entered his home, rendered his parents unconscious, held gun to his head, and sexually assaulted his pregnant wife while accusing him of being against Macedonia; and (2) actual police were unwilling to arrest assailants. On remand, though, Bd. may consider improved conditions in Macedonia when evaluating alien's claim.

In Stanojkova v. Holder, 2011 WL 2725850 (7th Cir. 2011), the U.S. Court of Appeals for the Seventh Circuit granted a petition for review filed by a Macedonian couple who claimed that they were victimized by rogue police officers, called “Lions,” on account of the male petitioner's refusal to report for duty with the Macedonia army due to his disapproval with his country's suppression of the Albanian minority. In remanding the matter back to the BIA to reassess whether the petitioners qualified for withholding of removal, the court took issue with the IJ's and the Board's prior determination that the mistreatment that they suffered, including a sexual assault of the wife-petitioner, constituted mere harassment as opposed to persecution. The court also pointed out that changed country conditions and the risk of future persecution were not addressed by the IJ or the Board in their prior deliberations, so those issues remained for consideration on remand.

Judge Richard Posner, writing for the court's three-judge panel, started his opinion by providing the historical context and demographics, noting that Macedonia emerged as a country after the breakup of Yugoslavia and is mostly Slavic with about a quarter of the population being of Albanian ethnicity. He observed that Albanian extremists began an insurrection in January 2001, but it “petered out” after the “Ohrid Framework Agreement” was negotiated in August 2001 to grant greater rights to the Albanian minority. During that time period, the male petitioner declined to report for military duty. Consequently, in 2002 three armed and masked men broke into the petitioners' home. They rendered the male petitioner's parents unconscious with a chemical spray and then proceeded to menace the male petitioner with a gun to his head, accusing him of being a “betrayer of Macedonians” for not participating in the war (against the Albanian minority). One of the assailants sexually assaulted his wife, who was pregnant at the time, and when the husband intervened, he was beaten on his head and back with a gun. The attackers left because of the wife's loud screams, and no actual rape occurred. Upon reporting this incident to the police, the petitioners were informed that the assailants were “Lions,” i.e., paramilitary police officers, with an implication that “ordinary” officers would not be able to afford protection. Consequently, the petitioners left their country.

They eventually came to the U.S. but without visas. In removal proceedings, they asked for asylum and related relief, but the IJ denied any relief, and the BIA, in a single-member decision, perfunctorily affirmed the IJ's removal order. As explained by Judge Posner, the petitioners missed the one-year filing deadline to be considered for asylum but remained eligible for withholding of removal (under INA § 241(b)(3) [8 USCA § 1231(b)(3)]. They did not press a CAT claim before the court. He further explained that to obtain withholding requires a demonstration that the applicant will more likely than not be subjected to persecution if removed from the U.S. and that a finding of past persecution creates a rebuttable presumption of future persecution pursuant to 8 CFR § 1208.16(b)(1)(i). He pointed out that the IJ, seconded by the BIA, ruled that the presumption was inapplicable because of their conclusion that the petitioners had not been persecuted.

Judge Posner described the IJ's decision as “garbled” on the issue of political motivation and criticized the IJ's statement that there was no evidence of human rights abuses by the Macedonian army in 2001 as ignoring the State Department's Country Report. He noted that the Board member found that the petitioners were credible but reasoned that the harm that they suffered during the home invasion did not rise to the level of persecution. He observed that neither the Board member nor the IJ made any effort to specify the amount of harm required to rise to the level of persecution and intimated that the court could not find a useful definition of persecution by the Board or the courts, although the importance of distinguishing between harassment and persecution has been noted. He remarked that “in terms of outcome the cases are all over the lot” and cited to an article by Jaya Ramji-Nogales et al., “Refugee Roulette: Disparities in Asylum Adjudication and Proposals for Reform” (2009), documenting this phenomenon. He referred to the Board's attempted definition of persecution in Matter of Acosta, 19 I. & N. Dec. 211 (B.I.A. 1985), as “harm or suffering that is inflicted upon an individual for possessing a belief or characteristic a persecutor seeks to overcome.” However, he described this definition as “vacuous with regard to the minimum amount of harm required.” He lamented the fact that “responsibility on this point of law has, by default, devolved on the courts, yet only provisionally - only until the Board assumes the responsibility - to try to create some minimum coherence in the adjudication of claims of persecution, as [the Seventh Circuit has] tried to do in the [instant]opinion.” He suggested that, in light of the current situation in Macedonia, there may well be less than a 50% probability that the petitioners would be persecuted if returned to Macedonia, which is the ultimate issue in a withholding case, but that this was a matter to be addressed by the Board or the IJ on remand.