Michael Baker-Immigration and Naturalization Law, DUI and Criminal Lawyer, Chicago

Fourth Amendment, GPS Surveillance

2011-11-06T17:07:00.000-06:00

On November 8th, the Supreme Court will hear oral argument in United States v. Jones, the case on whether installation and/or use of a GPS device on a suspect’s car to record the public places the car travels is a Fourth Amendment search or seizure. I wanted to offer my thoughts on the case.

Issue: (1) Whether the warrantless use of a tracking device on respondent's vehicle to monitor its movements on public streets violated the Fourth Amendment; and (2) whether the government violated respondent's Fourth Amendment rights by installing the GPS tracking device on his vehicle without a valid warrant and without his consent.

Plain English Issue: Whether the Constitution allows police to put a tracking device on a car without either a warrant or the owner's permission; and whether the Constitution is violated when police use the tracking device to keep track of the car's whereabouts.

Does GPS Surveillance Justify A Departure from the Knotts/Karo Line?

In Jones, a GPS device was placed on the suspect’s car. The trial court concluded that the evidence of the GPS device in the suspect’s garage had to be suppressed under Karo, but that the evidence of the GPS device in public was permitted under Knotts. Only the latter evidence, the evidence of the location of the car on the public street, is at issue in the Jones case. The basic argument of the defendant-respondent in Jones is that GPS surveillance is different from radio beeper surveillance, and that those differences justify a departure from the Knotts/Karo information-based approach. The gist of the argument is that GPS monitoring is just too invasive to be allowed without judicial oversight — the monitoring is too constant, too easily done, too continuous, and too detailed.

The text of the Fourth Amendment states that the Amendment protects security in “persons, houses, papers, and effects,” and the Fourth Amendment’s prohibition on unreasonable “searches” does so by protecting invasions into those private spaces. Over the years, the Supreme Court has developed a relatively simple line for distinguishing the invasions into persons, houses, papers, and effects that the Fourth Amendment regulates as “searches” from the investigative steps that the Fourth Amendment does not regulate.

Government entry into a home is a search, as is entry into a car, or a sealed package, or a letter, or a person’s pockets. These are all intrusions into persons, houses, papers, and effects. They are all searches. On the other hand, surveillance in public places that does not enter into private spaces, such as watching someone on the street, looking at their faces, examining the outside of their packages, overhearing their voice, or following someone in a store open to the public, is not a search. These are not intrusions into persons, houses papers, or effects, and they are not searches under the Fourth Amendment.

Interestingly, you get these same results regardless of version of the Supreme Court’s doctrine you apply. You get the same results whether you get these results under the “protected areas” test that preceded the 1967 Katz case, or the Katz “reasonable expectation of privacy” test that the Court has adopted since then.

The results are the same: A search occurs when the government intrudes upon a private person, house, paper, or effect, but does not occur when the government merely observes something in a public space or in a space where the government is otherwise entitled to be.

For example, imagine the police approach a home, walk directly up to an open window, press their faces up to the window, and peer in to see what is in the room inside. Technically, that is surveillance from an open space, but functionally it is surveillance of the inside of the home. Is that protected inside surveillance, or unprotected outside surveillance? The Supreme Court has created the distinction between “curtilage” and “open fields” to answer that: The outside area immediately around the home that can be used to peer inside the home is treated as inside surveillance (curtilage) rather than outside surveillance (open fields). See United States v. Dunn. Similarly, imagine the police use a thermal imaging device to determine the exterior temperature of a wall on the home. Is that outside surveillance, as it is only of the outside of the wall exposed to the public, or is that inside surveillance, as it reveals information about the inside of home? It’s a tricky call, as the 5–4 decision in Kyllo v. United States reveals. But the basic point remains: The distinction between inside and outside surveillance is the basic building block of the Supreme Court’s “search” cases.

The Knotts and Karo Precedents from the Radio Beeper Era

How does this distinction apply to the use of government surveillance devices installed to determine the location of property used or controlled by a criminal suspect? The Supreme Court first grappled with this in two cases in the 1980s, United States v. Knotts and United States v. Karo. Both cases involved radio beepers provided by the government that the suspects did not realize were present and broadcasting their location. The technology was crude compared to today’s GPS technology, but it did the job: It enabled the government to know the location of the beepers, and thus, implicitly, the location of the suspects that the police wanted to follow.

Knotts and Karo reasoned that the way to translate the traditional Fourth Amendment protection to the era of high-tech radio beepers was to focus on the information that the surveillance devices revealed. Recall that the traditional Fourth Amendment rule was that the police could always watch a suspect in public (no search), but that they could not enter protected spaces without a warrant or some Fourth Amendment oversight (a search). Knotts and Karo together drew the same line for government-installed location devices: If the device is used to monitor a location in public, then no search occurred (Knotts), but if the device was used to monitor a location inside a protected space, like a home, then a search occurred (Karo).

More Links:

The Government’s Brief in United States v. Jones and the Four Models of Fourth Amendment Protection http://volokh.com/2011/08/11/the-governments-brief-in-united-states-v- jones-and-the-four-models-of-fourth-amendment-protection/

United States v. Jones http://www.scotusblog.com/case-files/cases/united-states-v-jones/

Panel on United States v. Jones, the Fourth Amendment GPS Case: A student event panel (September 13, 2011) on the Supreme Court Case, United States v. Jones ("the GPS case"), focusing on whether the government may attach a GPS to a car without a warrant and whether receiving information from the device is a search.

Featuring Prof. Orin Kerr of George Washington University Law School; Prof. Melanie Wilson of Kansas University School of Law; Steve Leckar of Shainis & Peltzman, Chartered. Moderated by Prof. Paul Marcus of William & Mary School of Law. http://www.youtube.com/watch?v=o7VSHK25IJU

The Nasty Ripple Effects of Alabama’s Immigration Law

2011-11-01T12:10:00.000-05:00

Learn more about Alabama’s Immigration Law from all sides, taking a look at the status of legal challenges, the fear it’s breeding, the anti-immigration activism behind it and similar laws, and the electoral harm it’s likely to inflict on its conservative backers.

Adjustment of Status to Lawful Permanent Resident. Precedent Decisions Pertaining to Adjustment of Status

2011-10-19T16:50:00.001-05:00

Arriving Aliens

Matter of Silitonga, 25 I&N Dec. 89 (BIA 2009)

Under 8 C.F.R. §§ 245.2(a)(1) and 1245.2(a)(1)(ii) (2009), Immigration Judges have no jurisdiction to adjudicate an application filed by an arriving alien seeking adjustment of status, with the limited exception of an alien who has been placed in removal proceedings after returning to the United States pursuant to a grant of advance parole to pursue a previously filed application.

Matter of Yauri, 25 I&N Dec. 103 (BIA 2009)

(1) With a narrow exception not applicable to this case, the United States Citizenship and Immigration Services (“USCIS”) has exclusive jurisdiction to adjudicate an arriving alien’s application for adjustment of status under 8 C.F.R. §245.2(a)(1) (2009) and agrees that it retains jurisdiction to adjudicate the application even where an unexecuted administratively final order of removal remains outstanding.

(2) The Board of Immigration Appeals generally lacks authority to reopen the proceedings of aliens under final orders of exclusion, deportation, or removal who seek to pursue relief over which the Board and the Immigration Judges have no jurisdiction, especially where reopening is sought simply as a mechanism to stay the final order while the collateral matter is resolved by the agency or court having jurisdiction to do so.

(3) With regard to untimely or number-barred motions to reopen, the Board will not generally exercise its discretion to reopen proceedings sua sponte for an arriving alien to pursue adjustment of status before the USCIS.

Child Status Protection Act

Matter of Avila-Perez, 24 I&N Dec. 78 (BIA 2007)

(1) Section 201(f)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1151(f)(1) (Supp. II 2002), which allows the beneficiary of an immediate relative visa petition to retain his status as a “child” after he turns 21, applies to an individual whose visa petition was approved before the August 6, 2002, effective date of the Child Status Protection Act, Pub. L. No. 107-208, 116 Stat. 927 (2002), but who filed an application for adjustment of status after that date.

(2) The respondent, whose visa petition was approved before August 6, 2002, and who filed his adjustment of status application after that date, retained his status as a child, and therefore an immediate relative, because he was under the age of 21 when the visa petition was filed on his behalf.

Matter of Wang, 25 I&N Dec. 28 (BIA 2009)

The automatic conversion and priority date retention provisions of the Child Status Protection Act, Pub L. No. 107-208, 116 Stat. 927 (2002), do not apply to an alien who ages out of eligibility for an immigrant visa as the derivative beneficiary of a fourth preference visa petition, and on whose behalf a second-preference petition is later filed by a different petitioner

Chinese Student Protection Act

Matter of Wang, 23 I&N Dec. 924 (BIA 2006)

(1) An alien who entered the United States without inspection is not eligible for adjustment of status under the Chinese Student Protection Act of 1992, Pub. L. No. 102-404, 106 Stat. 1969 (“CSPA”).

(2) An alien whose CSPA application for adjustment of status was denied as a result of the alien’s entry without inspection may not amend or renew the application in immigration proceedings in conjunction with section 245(i) of the Immigration and Nationality Act, 8 U.S.C. § 1255(i) (2000).

Cuban Refugee Adjustment Act

Matter of Artigas, 23 I&N Dec. 99 (BIA 2001) (superceded by Matter of Martinez-Montalvo, 24 I&N Dec. 778 (BIA 2009)).

An Immigration Judge has jurisdiction to adjudicate an application for adjustment of status under the Cuban Refugee Adjustment Act of November 2, 1966, Pub. L. No. 89-732, 80 Stat. 1161, as amended, when the respondent is charged as an arriving alien without a valid visa or entry document in removal proceedings.

Matter of Martinez-Montalvo, 24 I&N Dec. 778 (BIA 2009)

Under 8 C.F.R. §§ 245.2(a)(1) and 1245.2(a)(1)(ii) (2008), Immigration Judges have no jurisdiction to adjudicate an application filed by an arriving alien seeking adjustment of status under the Cuban Refugee Adjustment Act of November 2, 1966, Pub. L. No. 89-732, 80 Stat. 1161, as amended, with the limited exception of an alien who has been placed in removal proceedings after returning to the United States pursuant to a grant of advance parole to pursue a previously filed application. Matter of Artigas, 23 I&N Dec. 99 (BIA 2001), superseded.

Matter of E-R-M- & L-R-M-, 25 I&N Dec. 520 (BIA 2011)

(1) Section 235(b)(1)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1225(b)(1)(A)(i) (2006), does not limit the prosecutorial discretion of the Department of Homeland Security to place arriving aliens in removal proceedings under section 240 of the Act, 8 U.S.C. § 1229a (2006).

(2) The fact that an Immigration Judge has no jurisdiction over applications for adjustment of status under the Cuban Refugee Adjustment Act of November 2, 1966, Pub. L. No. 89-732, 80 Stat. 1161, as amended, does not negate his or her jurisdiction over the removal proceedings of arriving Cuban aliens under section 240 of the Act.

Eligibility

Matter of L-K-, 23 I&N Dec. 677 (BIA 2004).

(1) Under section 245(c)(2) of the Immigration and Nationality Act, 8 U.S.C. §§ 1255(c)(2) (2000), an alien who has failed to continuously maintain a lawful status since entry into the United States, other than through no fault of his own or for technical reasons, is ineligible for adjustment of status under section 245(a) of the Act.

(2) A failure to maintain lawful status is not “for technical reasons” within the meaning of section 245(c)(2) of the Act and the applicable regulations at 8 C.F.R. §§ 1245.1(d)(2)(ii) (2004), where the alien filed an asylum application while in lawful nonimmigrant status, the nonimmigrant status subsequently expired, and the asylum application was referred to the Immigration Court prior to the time the alien applied for adjustment of status.

Matter of Villareal-Zuniga, 23 I&N Dec. 886 (BIA 2006)

An application for adjustment of status cannot be based on an approved visa petition that has already been used by the beneficiary to obtain adjustment of status or admission as an immigrant.

Matter of Jara Riero and Jara Espinol, 24 I&N Dec. 267 (BIA 2007)

An alien seeking to establish eligibility for adjustment of status under section 245(i) of the Immigration and Nationality Act, 8 U.S.C. § 1255(i) (2000), on the basis of a marriage-based visa petition must prove that the marriage was bona fide at its inception in order to show that the visa petition was “meritorious in fact” pursuant to 8 C.F.R. § 1245.10(a)(3) (2007).

Matter of Briones, 24 I&N Dec. 355 (BIA 2007)

(1) Section 212(a)(9)(C)(i)(I) of the Immigration and Nationality Act, 8 U.S.C. §§ 1182(a)(9)(C)(i)(I) (2000), covers recidivist immigration violators, so to be inadmissible under that section, an alien must depart the United States after accruing an aggregate period of ““unlawful presence”” of more than 1 year and thereafter reenter, or attempt to reenter, the United States without being admitted.

(2) Adjustment of status under section 245(i) of the Act, 8 U.S.C. §§ 1255(i) (2000), is not available to an alien who is inadmissible under section 212(a)(9)(C)(i)(I) of the Act.

Matter of Diaz and Lopez, 25 I&N Dec. 188 (BIA 2010)

An alien who is inadmissible under section 212(a)(9)(C)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(9)(C)(i) (2006), is ineligible for adjustment of status under section 245(i) of the Act, 8 U.S.C. § 1255(i) (2006). Matter of Briones, 24 I&N Dec. 355 (BIA 2007), reaffirmed.

Matter of Castillo-Padilla, 25 I&N Dec. 257 (BIA 2010)

(1) Conditional parole under section 236(a)(2)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1226(a)(2)(B) (2006), is a distinct and different procedure from parole under section 212(d)(5)(A) of the Act, 8 U.S.C. § 1182(d)(5)(A) (2006).

(2) An alien who was released from custody on conditional parole pursuant to section 236(a)(2)(B) of the Act has not been “paroled into the United States” for purposes of establishing eligibility for adjustment of status under section 245(a) of the Act, 8 U.S.C. § 1255(a) (2006).

Matter of Quilantan, 25 I&N Dec. 285 (BIA 2010)

For purposes of establishing eligibility for adjustment of status under section 245(a) of the Immigration and Nationality Act, 8 U.S.C. § 1255(a) (2006), an alien seeking to show that he or she has been “admitted” to the United States pursuant to section 101(a)(13)(A) of the Act, 8 U.S.C. § 1101(a)(13)(A) (2006), need only prove procedural regularity in his or her entry, which does not require the alien to be questioned by immigration authorities or be admitted in a particular status. Matter of Areguillin, 17 I&N Dec. 308 (BIA 1980), reaffirmed.

Fiancees

Matter of SESAY, 25 I&N Dec. 431 (BIA 2011)

(1) Under section 245(d) of the Immigration and Nationality Act, 8 U.S.C. § 1255(d) (2006), a fiancé(e) visa holder can only adjust status based on the marriage to the fiancé(e) petitioner. Matter of Zampetis, 14 I&N Dec. 125 (Reg. Comm’r 1972), superseded.

(2) A fiancé(e) visa holder whose bona fide marriage to the fiancé(e) visa petitioner is more than 2 years old at the time the adjustment application is adjudicated is not subject to the provisions for conditional resident status under section 216 of the Act, 8 U.S.C. § 1186a (2006).

(3) A fiancé(e) visa holder satisfies the visa eligibility and visa availability requirements of section 245(a) of the Act on the date he or she is admitted to the United States as a K-1 nonimmigrant, provided that the fiancé(e) enters into a bona fide marriage with the fiancé(e) petitioner within 90 days.

(4) A fiancé(e) visa holder may be granted adjustment of status under sections 245(a) and (d) of the Act, even if the marriage to the fiancé(e) visa petitioner does not exist at the time that the adjustment application is adjudicated, if the applicant can demonstrate that he or she entered into a bona fide marriage within the 90-day period to the fiancé(e) visa petitioner.

Matter of Le, 25 I&N Dec. 541 (BIA 2011)

A derivative child of a nonimmigrant fiancé(e) visa holder under section 101(a)(15)(K)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(K)(iii) (2006), 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.

Rescission of Adjustment of Status

Matter of Masri, 22 I&N Dec. 1145 (BIA 1999)

(1) The Immigration Judge and the Board of Immigration Appeals have jurisdiction over proceedings conducted pursuant to section 246 of the Immigration and Nationality Act, 8 U.S.C. § 1256 (Supp. II 1996), to rescind adjustment of status granted under section 210 of the Act, 8 U.S.C. § 1160 (1988 & Supp. II 1990).

(2) Information provided in an application to adjust an alien’s status to that of a lawful temporary resident under section 210 of the Act is confidential and prohibited from use in rescission proceedings under section 246 of the Act, or for any purpose other than to make a determination on an application for lawful temporary residence, to terminate such temporary residence, or to prosecute the alien for fraud during the time of application.

Section 245(i) Adjustment

Matter of Fesale, 21 I&N Dec. 114 (BIA 1995)

(1) The remittance required by section 245(i) of the Immigration and Nationality Act, 8 U.S.C. § 1255(i) (1994), added by the Department of Commerce, Justice, and State Appropriations Act for 1995, Pub. L. No. 103-317, 108 Stat. 1724, 1765, equalling five times the processing fee for an application for adjustment of status, is by definition a statutorily mandated “sum,” and a requirement separate and apart from the fee which federal regulations at 8 C.F.R. § 103.7 (1995) require an alien to pay when filing an application for adjustment of status under section 245 of the Act.

(2) The statutorily mandated sum required by section 245(i) of the Act cannot be waived by an Immigration Judge under the “fee waiver” provisions of 8 C.F.R. §§ 3.24 and 103.7 (1995), based on a showing of an alien’s indigency.

Matter of Alania-Martin, 25 I&N Dec. 231 (BIA 2010)

Aliens who are otherwise eligible to adjust status under section 245(i) of the Immigration and Nationality Act, 8 U.S.C. § 1255(i) (2006), are not subject to the unauthorized employment restrictions of sections 245(c) and the exception for such employment in section 245(k) that apply to applications for adjustment of status under section 245(a).

ADMINISTRATIVE CLOSURE OF CASES

Matter of Morales, 21 I&N Dec. 130 (BIA 1995, 1996)

(1) Where an alien in exclusion or deportation proceedings requests administrative closure pursuant to the settlement agreement set forth in American Baptist Churches et al. v. Thornburgh, 760 F. Supp. 797 (N.D.Cal.1991) ("ABC agreement"), the function of the Executive Office for Immigration Review ("EOIR") is restricted to the inquiries required under paragraph 19 of the agreement, i.e., (1) whether an alien is a class member, (2) whether he has been convicted of an aggravated felony, and (3) whether he poses one of the three safety concerns enumerated in paragraph 17.

(2) If a class member requesting administrative closure under the ABC agreement has not been convicted of an aggravated felony and does not fall within one of the three listed categories of public safety concerns under paragraph 17 of the agreement, EOIR must administratively close the matter to afford the alien the opportunity to pursue his rights in a special proceeding before the Immigration and Naturalization Service.

(3) If the applicant is subsequently found ineligible for the benefits of the ABC agreement in the nonadversarial proceeding before the asylum officer, or if he is denied asylum after a full de novo hearing, the Service may reinstitute exclusion or deportation proceedings by filing a motion with the Immigration Judge to recalendar the case, and such motion need only show, through evidence of an asylum officer's decision in the matter, that the class member's rights under paragraph 2 of the agreement have been exercised.

(4) Neither the Board of Immigration Appeals nor the Immigration Judges will review the Service's eligibility determinations under paragraph 2 of the ABC agreement.

Matter of Gutierrez, 21 I&N Dec. 479 (BIA 1996)

(1) Administrative closure of a case is used to temporarily remove the case from an Immigration Judge's calendar or from the Board of Immigration Appeal's docket. A case may not be administratively closed if opposed by either of the parties. Administrative closing of a case does not result in a final order. It is merely an administrative convenience which allows the removal of cases from the calendar in appropriate situations.

(2) The settlement agreement under American Baptist Churches v. Thornburgh, 760 F. Supp. 796 (N.D.Cal.1991) ("ABC"), specifically states that nothing in the agreement shall limit the right of a class member to pursue other legal rights to which he or she might be entitled under the Immigration and Nationality Act. This language is mandatory and does not indicate that such action by an alien would be curtailed by the administrative closing of each class member's case or postponed until the eventual final resolution of each class member's remedies under the settlement agreement itself.

(3) An ABC alien's right to apply for relief from deportation is not prohibited due to the administrative closure of his or her case. Such an alien, therefore, may file a motion to reopen with the administrative body which administratively closed his or her case in order to pursue issues or relief from deportation which were not raised in the administratively closed proceedings. Such motion must comply with all applicable regulations in order for the alien's case to be reopened.

(4) An alien who has had his or her case reopened and who receives an adverse decision from an Immigration Judge in the reopened proceedings must file an appeal of that new decision, in accordance with applicable regulations, in order to vest the Board with jurisdiction to review the Immigration Judge's decision on the issues raised in the reopened proceedings. That appeal would be a separate and independent appeal from any previously filed appeal and would not be consolidated with an appeal before the Board regarding issues which have been administratively closed.

(5) Any appeal pending before the Board regarding issues or forms of relief from deportation which have been administratively closed by the Board prior to the reopening of the alien's proceedings will remain administratively closed. A motion to reinstate an appeal is required before issues which have been administratively closed can be considered by the Board.

ADMISSION / ENTRY

Adjustment of Status

Matter of Koljenovic, 25 I&N Dec. 219 (BIA 2010)

An alien who entered the United States without inspection and later obtained lawful permanent resident status through adjustment of status has “previously been admitted to the United States as an alien lawfully admitted for permanent residence” and must therefore satisfy the 7-year continuous residence requirement of section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h) (2006), to be eligible for a waiver of inadmissibility.

Matter of Quilantan, 25 I&N Dec. 285 (BIA 2010)

Arriving Alien

Matter of Oseiwusu, 22 I&N Dec. 19 (BIA 1998)

(1) An alien who arrives in the United States pursuant to a grant of advance parole is an “arriving alien,” as that term is defined in the federal regulations.

(2) According to the regulations, an Immigration Judge has no authority over the apprehension, custody, and detention of arriving aliens and is therefore without authority to consider the bond request of an alien returning pursuant to a grant of advance parole.

Matter of R-D-, 24 I&N Dec. 221 (BIA 2007)

(1) An alien who leaves the United States and is admitted to Canada to seek refugee status has made a departure from the United States.

(2) An alien returning to the United States after the denial of an application for refugee status in Canada is seeking admission into the United States and is therefore an arriving alien under 8 C.F.R. § 1001.1(q) (2007).

Matter of E-R-M- & L-R-M-, 25 I&N Dec. 520 (BIA 2011)

Cancellation of Removal (Non-LPR)

Matter of Reza-Murillo, 25 I&N Dec. 296 (BIA 2010)

A grant of Family Unity Program benefits does not constitute an “admission” to the United States under section 101(a)(13)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(13)(A) (2006), for purposes of establishing that an alien has accrued the requisite 7-year period of continuous residence after having been “admitted in any status” to be eligible for cancellation of removal under section 240A(a)(2) of the Act, 8 U.S.C. § 1229b(a)(2) (2006).

Claimed Status Review

Matter of Lujan-Quintana, 25 I&N Dec. 53 (BIA 2009)

The Board of Immigration Appeals lacks jurisdiction to review an appeal by the Department of Homeland Security of an Immigration Judge’s decision to vacate an expedited removal order after a claimed status review hearing pursuant to 8 C.F.R. § 1235.3(b)(5)(iv) (2009), at which the Immigration Judge determined the respondent to be a United States citizen.

Nunc Pro Tunc Permission to Reapply

Matter of Garcia, 21 I&N Dec. 254 (BIA 1996)

(1) Nunc pro tunc permission to reapply for admission, an administrative practice not expressly authorized by statute, is available only in the limited circumstances where a grant of such relief would effect a complete disposition of the case, i.e., where the only ground of deportability or inadmissability would be eliminated or where the alien would receive a grant of adjustment of status in conjunction with the grant of any appropriate waivers of inadmissability.

(2) A grant of nunc pro tunc permission to reapply for admission is not available to a respondent who, in spite of such a grant, would remain deportable under sections 241(a)(2)(A)(iii) and (B)(i) of the Immigration and Nationality Act, 8 U.S.C. §§ 1251(a)(2)(A)(iii) and (B)(i) (1994), as a result of a drug-related conviction.

(3) An alien who returned to the United States following deportation with a visa, but without obtaining advance permission to reapply, is not eligible to apply for nunc pro tunc permission to reapply for admission in conjunction with an application for a waiver of inadmissibility under section 212(c) of the Act, 8 U.S.C. § 1182(c) (1994), because he is not independently eligible for the waiver as a result of his unlawful entry.

Returning Lawful Permanent Resident

Matter of Collado, 21 I&N Dec. 1061 (BIA 1998)

(1) A lawful permanent resident of the United States described in sections 101(a)(13)(C)(I)-(vi) of the Immigration and Nationality Act (to be codified at 8 U.S.C. § 1101(a)(13)(C)(i)-(vi)) is to be regarded as “seeking an admission into the United States for purposes of the immigration laws,” without further inquiry into the nature and circumstances of a departure from and return to this country.

(2) The Immigration Judge erred in finding that the Fleuti doctrine, first enunciated by the United States Supreme Court in Rosenberg v. Fleuti, 374 U.S. 449 (1963), requires the admission into the United States of a returning lawful permanent resident alien who falls within the definition of section 101(a)(13)(C)(v) of the Act, if that alien’s departure from the United States was “brief, casual, and innocent.”

Unlawful Reentry

Matter of Torres-Garcia, 23 I&N Dec. 866 (BIA 2006)

1) An alien who reenters the United States without admission after having previously been removed is inadmissible under section 212(a)(9)(C)(i)(II) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(9)(C)(i)(II) (2000), even if the alien obtained the Attorney General’s permission to reapply for admission prior to reentering unlawfully.

(2) An alien is statutorily ineligible for a waiver of inadmissibility under the first sentence of section 212(a)(9)(C)(ii) of the Act unless more than 10 years have elapsed since the date of the alien’s last departure from the United States. Matter of Rodarte, 23 I&N Dec. 905 (BIA 2006)

Matter of Rodarte, 23 I&N Dec. 905 (BIA 2006)

(1) To be rendered inadmissible for 10 years pursuant to section 212(a)(9)(B)(i)(II) of the Immigration and Nationality Act, 8 U.S.C § 1182(a)(9)(B)(i)(II) (2000), an alien must depart the United States after having been unlawfully present in the United States for 1 year or longer.

(2) Pursuant to sections 301(b)(3) and 309(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-578, 309-625, no period of an alien’s presence in the United States prior to April 1, 1997, may be considered “unlawful presence” for purposes of determining an alien’s inadmissibility under section 212(a)(9)(B) of the Act.

Matter of Briones, 24 I&N Dec. 355 (BIA 2007)

(2) Adjustment of status under section 245(i) of the Act, 8 U.S.C. §§ 1255(i) (2000), is not available to an alien who is inadmissible under section 212(a)(9)(C)(i)(I) of the Act.

Matter of Lemus, 24 I&N Dec. 373 (BIA 2007)

(1) An alien who is unlawfully present in the United States for a period of 1 year, departs the country, and then seeks admission within 10 years of the date of his departure from the United States, is inadmissible under section 212(a)(9)(B)(i)(II) of the Immigration and Nationality Act, 8 U.S.C. §§ 1182(a)(2)(B)(i)(II) (2000), even if the alien’’s departure was not made pursuant to an order of removal and was not a voluntary departure in lieu of being subject to removal proceedings or at the conclusion of removal proceedings.

(2) Adjustment of status under section 245(i) of the Act, 8 U.S.C. §§ 1255(i) (2000), is unavailable to an alien who is inadmissible under section 212(a)(9)(B)(i)(II) of the Act.

Withdrawal of Application for Admission

Matter of Sanchez, 21 I&N Dec. 444 (BIA 1996)

(1) under the present statutory and regulatory scheme, an Immigration Judge properly declined to order an alien excluded in absentia where the Immigration and Naturalization Service did not detain or parole the alien at the time he applied for admission to the United States, but instead returned him to Mexico with instructions to appear for an exclusion hearing at a later date.

(2) By directing an applicant for admission to return to Mexico after being served with a Notice to Applicant for Admission Detained for Hearing before an Immigration Judge (Form I-122), the Service in effect consented to the alien's withdrawal of that application when the alien elected not to return to pursue his application for admission to the United States.

AGGRAVATED FELONIES

Accessory After the Fact

Matter of Batista, 21 I&N Dec. 955 (BIA 1997)

(1) The offense of accessory after the fact to a drug-trafficking crime, pursuant to 18 U.S.C. § 3 (Supp. V 1993), is not considered an inchoate crime and is not sufficiently related to a controlled substance violation to support a finding of deportability pursuant to section 241(a)(2)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2)(B)(i) (1994).

(2) The respondent’s conviction pursuant to 18 U.S.C. § 3 establishes his deportability as an alien convicted of an aggravated felony under section 241(a)(2)(A)(iii) of the Act,because the offense of accessory after the fact falls within the definition of an obstruction of justice crime under section 101(a)(43)(S) of the Act, 8 U.S.C.A. § 1101(a)(43)(S) (West Supp. 1997), and because the respondent’s sentence, regardless of any suspension of the imposition or execution of that sentence, “is at least one year.”

Adjustment of Status

Matter of Rosas, 22 I&N Dec. 616 (BIA 1999)

An alien whose conviction for an aggravated felony was subsequent to her adjustment of status to that of a lawful permanent resident is deportable under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (Supp. II 1996), as an alien who was convicted of an aggravated felony “after admission.@

Alien Smuggling

Matter of Alvarado-Alvino, 22 I&N Dec. 718 (BIA 1999)

An alien convicted of an offense described in section 275(a) of the Immigration and Nationality Act, 8 U.S.C. § 1325 (Supp. II 1996), is not convicted of an aggravated felony as that term is defined in section 101(a)(43)(N) of the Act, 8 U.S.C. § 1101(a)(43)(N) (Supp. II 1996), which specifically refers to those offenses relating to alien smuggling described in sections 274(a)(1)(A) and (2) of the Act, 8 U.S.C. § 1324(a)(1)(A) and (2) (Supp. II 1996).

Arson

Matter of Palacios, 22 I&N Dec. 434 (BIA 1998)

An alien who was convicted of arson in the first degree under the law of Alaska and sentenced to 7 years’ imprisonment with 3 years suspended was convicted of a “crime of violence” within the meaning of section 101(a)(43)(F) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(F) (Supp. II 1996), and therefore is deportable under section 237(a)(2)(A)(iii) of the Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (Supp. II 1996), as an alien convicted of an aggravated felony.

Burglary

Matter of Perez, 22 I&N Dec. 1325 (BIA 2000) (Burglary of a Vehicle)

The offense of burglary of a vehicle in violation of section 30.04(a) of the Texas Penal Code Annotated is not a “burglary offense” within the definition of an aggravated felony in section 101(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(G) (Supp. IV 1998).

Commercial Bribery

Matter of Gruenangerl, 25 I&N Dec. 351 (BIA 2010)

The crime of bribery of a public official in violation of 18 U.S.C. § 201(b)(1)(A) (2006) is not an offense “relating to” commercial bribery and is therefore not an aggravated felony under section 101(a)(43)(R) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(R) (2006).

Conspiracy

Matter of Richardson, 25 I&N Dec. 226 (BIA 2010)

(1) The term “conspiracy” in section 101(a)(43)(U) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(U) (2006), is not limited to conspiracies that require the commission of an overt act in furtherance of the conspiracy by one of the conspirators.

(2) An alien who was only convicted of conspiracy to commit an aggravated felony and is removable on the basis of that conviction under section 101(a)(43)(U) of the Act may not also be found removable for the underlying substantive offense, even though the record of conviction shows that the conspirators actually committed the substantive offense.

Controlled Substances

Matter of L-G-, 21 I&N Dec. 89 (BIA 1995) (modified by Matter of Yanez, 23 I&N Dec. 390 (BIA 2002))

(1) A federal definition applies to determine whether or not a crime is a “felony” within the meaning of 18 U.S.C. § 924(c)(2) (1994), and therefore is an “aggravated felony” under section 101(a)(43) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43) (Supp. V 1993).

(2) For immigration purposes, a state drug offense qualifies as a “drug trafficking crime” under 18 U.S.C. § 924(c)(2) if it is punishable as a felony under the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or the Maritime Drug Law Enforcement Act (46 U.S.C. App. 1901 et seq.). Matter of Davis, 20 I&N Dec. 536 (BIA 1992), and Matter of Barrett, 20 I&N Dec. 171 (BIA 1990), reaffirmed.

(3) Although we disagree with the decision of the United States Court of Appeals for the Second Circuit in Jenkins v. INS, 32 F.3d 11 (2d Cir. 1994), which holds that an alien’s state conviction for a drug offense that is a felony under state law, but a misdemeanor under federal law, qualifies as a conviction for an aggravated felony, we will follow this decision in matters arising within the Second Circuit’s jurisdiction.

Matter of K-V-D-, 22 I&N Dec. 1163 (BIA 1999) (overruled by Matter of Yanez, 23 I&N Dec. 390 (BIA 2002))

(1) Where a circuit court of appeals has interpreted the definition of an “aggravated felony” under section 101(a)(43) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43) ( 1994), only for purposes of criminal sentence enhancement, the Board of Immigration Appeals may interpret the phrase differently for purposes of implementing the immigration laws in cases arising within that circuit.

(2) An alien convicted in Texas of simple possession of a controlled substance, which would be a felony under Texas law but a misdemeanor under federal law, is not convicted of an aggravated felony within the meaning of section 101(a)(43)(B) of the Act. Matter of L-G-, 21 I&N Dec. 89 (BIA 1995), affirmed. Matter of Yanez, 23 I&N Dec. 390 (BIA 2002)

The determination whether a state drug offense constitutes a “drug trafficking crime” under 18 U.S.C. § 924(c)(2) (2000), such that it may be considered an “aggravated felony” under section 101(a)(43)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B) (2000), shall be made by reference to decisional authority from the federal circuit courts of appeals, and not by reference to any separate legal standard adopted by the Board of Immigration Appeals. Matter of K-V-D-, 22 I&N Dec. 1163 (BIA 1999), overruled. Matter of L-G-, 21 I&N Dec. 89 (BIA 1995), and Matter of Davis, 20 I&N Dec. 536 (BIA 1992), modified.

Matter of Santos-Lopez, 23 I&N Dec. 419 (BIA 2002)

(1) Under the decisions of the United States Court of Appeals for the Fifth Circuit in United States v. Hernandez-Avalos, 251 F.3d 505 (5th Cir.), cert. denied, 122 S. Ct. 305 (2001), and United States v. Hinojosa-Lopez, 130 F.3d 691 (5th Cir. 1997), a determination whether an offense is a "felony" for purposes of 18 U.S.C. § 924(c)(2) (2000) depends on the classification of the offense under the law of the convicting jurisdiction. Matter of Yanez, 23 I&N Dec. 390 (BIA 2002), followed.

(2) Each of the respondent's two convictions for possession of marihuana is classified as a misdemeanor offense under Texas law; therefore, neither conviction is for a "felony" within the meaning of 18 U.S.C. § 924(c)(2) or an "aggravated felony" within the meaning of section 101(a)(43)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B) (2000).

Matter of Elgendi, 23 I&N Dec. 515 (BIA 2002)

In accordance with authoritative precedent of the United States Court of Appeals for the Second Circuit in United States v. Pornes-Garcia, 171 F.3d 142 (2d Cir. 1999), and United States v. Polanco, 29 F.3d 35 (2d Cir. 1994), an individual who has been convicted twice of misdemeanor possession of marijuana in violation of New York State law has not been convicted of an aggravated felony under section 101(a)(43)(B) of the Immigration and Nationality Act, 8 U.S.C. 1101(a)(43)(B) (2000).>

Matter of Carachuri-Rosendo, 24 I&N Dec. 382 (BIA 2007)

(1) Decisional authority from the Supreme Court and the controlling Federal circuit court of appeals is determinative of whether a State drug offense constitutes an “aggravated felony” under section 101(a)(43)(B) of the Immigration and Nationality Act, 8 U.S.C. §§ 1101(a)(43)(B) (2000), by virtue of its correspondence to the Federal felony offense of “recidivist possession,” as defined by 21 U.S.C. § 844(a) (2000). Matter of Yanez, 23 I&N Dec. 390 (BIA 2002), followed.

(2) Controlling precedent of the United States Court of Appeals for the Fifth Circuit dictates that the respondent’’s Texas conviction for alprazolam possession qualifies as an “aggravated felony” conviction by virtue of the fact that the underlying alprazolam possession offense was committed after the respondent’s prior State “conviction” for a “drug, narcotic, or chemical offense” became “final” within the meaning of 21 U.S.C. § 844(a).

(3) Absent controlling authority regarding the “recidivist possession” issue, an alien’s State conviction for simple possession of a controlled substance will not be considered an aggravated felony conviction on the basis of recidivism unless the alien’’s status as a recidivist drug offender was either admitted by the alien or determined by a judge or jury in connection with a prosecution for that simple possession offense.

Matter of Thomas, 24 I&N Dec. 416 (BIA 2007)

The respondent’s 2003 Florida offense involving the simple possession of marijuana does not qualify as an “aggravated felony” by virtue of its correspondence to the Federal felony of “recidivist possession,” even though it was committed after a prior “conviction” for a “drug, narcotic, or chemical offense” became “final” within the meaning of 21 U.S.C. § 844(a) (2000), because the respondent’s conviction for that 2003 offense did not arise from a State proceeding in which his status as a recidivist drug offender was either admitted or determined by a judge or jury. Matter of Carachuri-Rosendo, 24 I&N Dec. 382 (BIA 2007), followed.

Matter of Aruna, 24 I&N Dec. 452 (BIA 2008)

Absent controlling precedent to the contrary, a State law misdemeanor offense ofconspiracy to distribute marijuana qualifies as an “aggravated felony” under section>101(a)(43)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B) (2000),where its elements correspond to the elements of the Federal felony offense of conspiracy to distribute an indeterminate quantity of marijuana, as defined by 21 U.S.C. §§ 841(a)(1), (b)(1)(D), and 846 (2000 & Supp. IV 2004).

Matter of Sanchez-Cornejo, 25 I&N Dec. 273 (BIA 2010)

The offense of delivery of a simulated controlled substance in violation of Texas law is not an aggravated felony, as defined by section 101(a)(43)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B) (2006), but it is a violation of a law relating to a controlled substance under former section 241(a)(2)(B)(i) of the Act, 8 U.S.C. § 1251(a)(2)(B)(i) (1994).

Crimes of Violence

Matter of Magallanes, 22 I&N Dec. 1 (BIA 1998) (Driving Under the Influence) (overruled by Matter of Ramos, 23 I&N Dec. 336 (BIA 2002)

An alien who was convicted of aggravated driving while under the influence and sentenced to 2½ years in prison was convicted of a “crime of violence” within the meaning of section 101(a)(43)(F) of the Immigration and Nationality Act (to be codified at 8 U.S.C. § 1101(a)(43)(F)), and therefore is deportable under section 241(a)(2)(A)(iii) of the Act, 8 U.S.C. § 1251(a)(2)(A)(iii)(1994), as an alien convicted of an aggravated felony.

Matter of Puente, 22 I&N Dec. 1006 (BIA 1999) (Driving Under the Influence) (overruled by Matter of Ramos, 23 I&N Dec. 336 (BIA 2002)

A conviction for the crime of driving while intoxicated under section 49.04 of the Texas Penal Code, which is a felony as a result of an enhanced punishment, is a conviction for a crime of violence and therefore an aggravated felony under section 101(a)(43)(F) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(F) (Supp. II 1996).

Matter of Herrera, 23 I&N Dec. 43 (BIA 2001) (Driving Under the Influence)

Respondent’s motion for a stay of deportation, pending consideration of his simultaneously filed motion to reopen and reconsider, is granted in light of the decision of the United States Court of Appeals for the Fifth Circuit in United States v. Chapa-Garza, 2001 WL 209468 (5th Cir. 2001), which held that a conviction for driving while intoxicated in violation of section 49.09 of the Texas Penal Code is not a conviction for a crime of violence under section 101(a)(43)(F) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(F) (Supp. V 1999).

Matter of Olivares, 23 I&N Dec. 148 (BIA 2001) (Driving Under the Influence)

Under United States v. Chapa-Garza, 243 F.3d 921 (5th Cir. 2001), and United States v. Hernandez-Avalos, 251 F.3d 505 (5th Cir. 2001), a Texas conviction for felony DWI is not classifiable as a crime of violence conviction under 18 U.S.C. § 16(b) (1994) for purposes of removability in cases arising in the United States Court of Appeals for the Fifth Circuit; accordingly, in cases arising in the Fifth Circuit, Matter of Puente, 22 I&N Dec. 1006 (BIA 1999), will not be applied.

Matter of Sweetser, 22 I&N Dec. 709 (BIA 1999) (Criminally Negligent Child Abuse)

(1) Where the state statute under which an alien has been convicted is divisible, meaning it encompasses offenses that constitute crimes of violence as defined under 18 U.S.C. § 16 (1994) and offenses that do not, it is necessary to look to the record of conviction, and to other documents admissible as evidence in proving a criminal conviction, to determine whether the specific offense of which the alien was convicted constitutes an aggravated felony as defined in section 101(a)(43)(F) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(F) (Supp. II 1996).

(2) for purposes of determining whether an offense is a crime of violence as defined in 18 U.S.C. § 16(b), it is necessary to examine the criminal conduct required for conviction, rather than the consequence of the crime, to find if the offense, 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.”

(3) To find that a criminal offense is a crime of violence under 18 U.S.C. § 16(b), a causal link between the potential for harm and the "substantial risk" of "physical force" being used must be present. Matter of Magallanes, 22 I&N Dec. 1 (BIA 1998), clarified.

(4) An alien convicted of criminally negligent child abuse under sections 18-6-401(1) and (7) of the Colorado Revised Statutes, whose negligence in leaving his stepson alone in a bathtub resulted in the child’s death, was not convicted of a crime of violence under 18 U.S.C. § 16(b) because there was not substantial risk that physical force "would be used in the commission of the crime."

Matter of Aldabesheh, 22 I&N Dec. 983 (BIA 1999) (Criminal Contempt and Forgery)

(1) A conviction for criminal contempt in the first degree, in violation of section 215.51(b)(i) of the New York Penal Law, with a sentence to imprisonment of at least 1 year, is a conviction for a crime of violence as defined under 18 U.S.C. § 16(b) (1994), thus rendering it an aggravated felony under section 101(a)(43)(F) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(F) (Supp. II 1996).

(2) A conviction for forgery in the second degree, in violation of section 170.10(2) of the New York Penal Law, with a sentence to imprisonment of at least 1 year, is a conviction for an aggravated felony under section 101(a)(43)(R) of the Act.

(3) Where an alien has been convicted of two or more aggravated felonies and has received concurrent sentences to imprisonment, the alien’s "aggregate term of imprisonment," for purposes of determining eligibility for withholding of removal under section 241(b)(3) of the Act, 8 U.S.C. § 1231(b)(3) (Supp. II 1996), is equal to the length of the alien’s longest concurrent sentence.

Matter of Ramos, 23 I&N Dec. 336 (BIA 2002)

(1) In cases arising in circuits where the federal court of appeals has not decided whether the offense of driving under the influence is a crime of violence under 18 U.S.C. § 16(b) (2000), an offense will be considered a crime of violence if it is committed at least recklessly and involves a substantial risk that the perpetrator may resort to the use of force to carry out the crime; otherwise, where the circuit court has ruled on the issue, the law of the circuit will be applied to cases arising in that jurisdiction.

(2) The offense of operating a motor vehicle while under the influence of intoxicating liquor in violation of chapter 90, section 24(1)(a)(1) of the Massachusetts General Laws is not a felony 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 and is therefore not a crime of violence. Matter of Puente, 22 I&N Dec. 1006 (BIA 1999), and Matter of Magallanes, 22 I&N Dec. 1 (BIA 1998), overruled.

Matter of Martin, 23 I&N Dec. 491 (BIA 2002)

The offense of third-degree assault in violation of section 53a-61(a)(1) of the Connecticut General Statutes, which involves the intentional infliction of physical injury upon another, is a crime of violence under 18 U.S.C. § 16(a) (2000) and is therefore an aggravated felony under section 101(a)(43)(F) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(F) (2000).

Matter of Vargas, 23 I&N Dec. 651 (BIA 2004

The offense of manslaughter in the first degree in violation of section 125.20 of the New York Penal Law is a crime of violence under 18 U.S.C. § 18(b) (2000) and is therefore an aggravated felony under section 101(a)(43)(F) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(F) (2000).

Matter of Malta, 23 I&N Dec. 656 (BIA 2004)

A stalking offense for harassing conduct in violation of section 646.9(b) of the California Penal Code, which proscribes stalking when there is a temporary restraining order, injunction, or any other court order in effect prohibiting the stalking behavior, is a crime of violence under 18 U.S.C. § 16(b) (2000), and is therefore an aggravated felony under section 101(a)(43)(F) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(F) (2000).

Matter of Perez-Ramirez, 25 I&N Dec. 203 (BIA 2010)

(1) Where a criminal alien’s sentence has been modified to include a term of imprisonment following a violation of probation, the resulting sentence to confinement is considered to be part of the penalty imposed for the original underlying crime, rather than punishment for a separate offense.

(2) An alien’s misdemeanor conviction for willful infliction of corporal injury on a spouse in violation of section 273.5(a) of the California Penal Code qualifies categorically as a conviction for a “crime of violence” within the meaning of 18 U.S.C. § 16(a) (2006).

Matter of Ramon Martinez, 25 I&N Dec. 571 (BIA 2011)

A violation of section 220 of the California Penal Code is categorically a crime of violence under 18 U.S.C. §§ 16(a) and (b) (2006).

Date of Conviction

Matter of Lettman, 22 I&N Dec. 365 (BIA 1998)

An alien convicted of an aggravated felony is subject to deportation regardless of the date of the conviction when the alien is placed in deportation proceedings on or after March 1, 1991, and the crime falls within the aggravated felony definition.

Matter of Truon, 22 I&N Dec. 1090 (BIA 1999)

(1) An alien whose June 8, 1987, conviction for second degree robbery was not, at the time of his conviction, included in the aggravated felony definition was not deportable, even after that offense was included in the aggravated felony definition as a crime of violence under the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978, due to its provisions regarding effective dates; however, the alien became deportable upon enactment of section 321(b) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-628 (enacted Sept. 30, 1996) (“IIRIRA”), because that section established an aggravated felony definition that is to be applied without temporal limitations, regardless of the date of conviction.

(2) The term “actions taken” in section 321(c) of the IIRIRA, 110 Stat. at 3009-628, which limits the applicability of the aggravated felony definition of section 321(b), includes consideration of a case by the Board of Immigration Appeals; therefore that section’s aggravated felony definition is applicable to cases decided by the Board on or after the IIRIRA’s September 30, 1996, enactment date.

(3) The Attorney General’s decision in Matter of Soriano, 21 I&N Dec. 516 (BIA 1996; A.G. 1997), remains binding on the Board, notwithstanding decisions in some courts of appeals that have rejected that decision.

Divisible Statutes

Matter of Sweetser, 22 I&N Dec. 709 (BIA 1999)

(2) For purposes of determining whether an offense is a crime of violence as defined in 18 U.S.C. § 16(b), it is necessary to examine the criminal conduct required for conviction, rather than the consequence of the crime, to find if the offense, 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.”

(3) To find that a criminal offense is a crime of violence under 18 U.S.C. § 16(b), a causal link between the potential for harm and the "substantial risk" of "physical force" being used must be present. Matter of Magallanes, 22 I&N Dec. 1 (BIA 1998), clarified.

(4) An alien convicted of criminally negligent child abuse under sections 18-6-401(1) and (7) of the Colorado Revised Statutes, whose negligence in leaving his stepson alone in a bathtub resulted in the child’s death, was not convicted of a crime of violence under 18 U.S.C. § 16(b) because there was not "substantial risk that physical force" would be used in the commission of the crime.

Firearms

Matter of Vasquez-Muniz, 22 I&N Dec. 1415 (BIA 2000) (overruled by Matter of Vasquez-Muniz, 23 I&N Dec. 207 (BIA 2002))

Possession of a firearm by a felon in violation of section 12021(a)(1) of the California Penal Code is not an aggravated felony under section 101(a)(43)(E) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(E) (1994), because it is not an offense “described in” 18 U.S.C. § 922(g)(1) (1994).

Matter of Vasquez-Muniz, 23 I&N Dec. 207 (BIA 2002)

(1) An offense defined by state or foreign law may be classified as an aggravated felony as an offense "described in" a federal statute enumerated in section 101(a)(43) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43) (1994 & Supp. V 1999), even if it lacks the jurisdictional element of the federal statute.

(2) Possession of a firearm by a felon in violation of section 12021(a)(1) of the California Penal Code is an aggravated felony under section 101(a)(43)(E)(ii) of the Act because it is "described in" 18 U.S.C. § 922(g)(1) (1994). Matter of Vasquez-Muniz, 22 I&N Dec. 1415 (BIA 2000), overruled.

Fraud and Deceit

Matter of Onyido, 22 I&N Dec. 552 (BIA 1999)

An alien who was convicted of submitting a false claim with intent to defraud arising from an unsuccessful scheme to obtain $15,000 from an insurance company was convicted of an “attempt” to commit a fraud in which the loss to the victim exceeded $10,000 within the meaning of section 101(a)(43)(U) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(U) (Supp. II 1996), and therefore is deportable under section 241(a)(2)(A)(iii) of the Act, 8 U.S.C. § 1251(a)(2)(A)(iii) (1994), as an alien convicted of an aggravated felony.

Matter of Babaisakov, 24 I&N Dec. 306 (BIA 2007)

(1) A single ground for removal may require proof of a conviction tied to the statutory elements of a criminal offense, as well as proof of an additional fact or facts that are not tied to the statutory elements of any such offense.

(2) When a removal charge depends on proof of both the elements leading to a conviction and some nonelement facts, the nonelement facts may be determined by means of evidence beyond the limited “record of conviction” that may be considered by courts employing the “categorical approach,” the “modified categorical approach,” or a comparable “divisibility analysis,” although the record of conviction may also be a suitable source of proof, depending on the circumstances.

(3) Section 101(a)(43)(M)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(M)(i) (2000), which defines the term “aggravated felony” to mean “an offense that involves fraud or deceit in which the loss to the victim or victims exceeds $10,000,” depends on proof of both a conviction having an element of fraud or deceit and the nonelement fact of a loss exceeding $10,000 that is tied to the conviction.

(4) Because the phrase “in which the loss to the victim or victims exceeds $10,000” is not tied to an element of the fraud or deceit offense, the loss determination is not subject to the limitations of the categorical approach, the modified categorical approach, or a divisibility analysis and may be proved by evidence outside the record of conviction, provided that the loss is still shown to relate to the conduct of which the person was convicted and, for removal purposes, is proven by clear and convincing evidence.

(5) The Immigration Judge erred in declining to consider a presentence investigation report as proof of victim loss because of his mistaken belief that he was restricted to consideration of the respondent’s record of conviction.

Matter of S-I-K-, 24 I&N Dec. 324 (BIA 2007)

An alien convicted of conspiracy is removable as an alien convicted of an aggravated felony within the meaning of sections 101(a)(43)(M)(i) and (U) of the Immigration and Nationality Act, 8 U.S.C. §§ 1101(a)(43)(M)(i) and (U) (2000), where the substantive crime that was the object of the conspiracy was an offense that involved “fraud or deceit” and where the potential loss to the victim or victims exceeded $10,000.

Misprision of a Felony

Matter of Espinoza, 22 I&N Dec. 889 (BIA 1999)

A conviction for misprision of a felony under 18 U.S.C. § 4 (1994) does not constitute a conviction for an aggravated felony under section 101(a)(43)(S) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(S) (Supp. II 1996), as an offense relating to obstruction of justice. Matter of Batista-Hernandez, 21 I&N Dec. 955 (BIA 1997), distinguished.

Obstruction of Justice

Matter of Batista, 21 I&N Dec. 955 (BIA 1997)

Perjury

Matter of Martinez-Recinos, 23 I&N Dec. 175 (BIA 2001)

A conviction for perjury in violation of section 118(a) of the California Penal Code constitutes a conviction for an aggravated felony under section 101(a)(43)(S) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(S) (Supp. V 1999).

Prostitution for Commercial Advantage

Matter of Gertsenshteyn, 24 I&N Dec. 111 (BIA 2007)

(1) The categorical approach to determining whether a criminal offense satisfies a particular ground of removal does not apply to the inquiry whether a violation of 18 U.S.C. § 2422(a) was committed for “commercial advantage” and thus qualifies as an aggravated felony under section 101(a)(43)(K)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(K)(ii) (2000), where “commercial advantage” is not an element of the offense and the evidence relating to that issue is not ordinarily likely to be found in the record of conviction.

(2) The respondent’s offense was committed for “commercial advantage” where it was evident from the record of proceeding, including the respondent’s testimony, that he knew that his employment activity was designed to create a profit for the prostitution business for which he worked.

Rape

Matter of B-, 21 I&N Dec. 287 (BIA 1996)

The respondent's conviction for second-degree rape under Article 27, section 463(a)(3) of the Annotated Code of Maryland, for which he was sentenced to 10 years' imprisonment, constitutes a "crime of violence" under 18 U.S.C. § 16(b) (1994) and, hence, an "aggravated felony" under section 101(a)(43) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43) (1994).

Robbery

Matter of Truong, 22 I&N Dec. 1090 (BIA 1999)

Section 212(h) Waivers

Matter of Pineda, 21 I&N Dec. 1017 (BIA 1997)

(1) Section 348(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, enacted as Division C of the Departments of Commerce, Justice, and State, and the Judiciary Appropriations Act for 1997, Pub. L. No. 104-208, 110 Stat. 3009, _____ (“IIRIRA”), enacted on September 30, 1996, amended section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h) (1994), to add restrictions precluding a grant of a waiver to any alien admitted as a lawful permanent resident who either has been convicted of an aggravated felony since the date of admission or did not have 7 years of continuous residence prior to the initiation of immigration proceedings.

(2) Section 348(b) of the IIRIRA provides that the restrictions in the amendments to section 212(h) of the Act apply to aliens in exclusion or deportation proceedings as of September 30, 1996, unless a final order of deportation has been entered as of such date.

(3) An aggravated felon who had a final administrative order of deportation as of September 30, 1996, would be subject to the restrictions on eligibility for a section 212(h) waiver if his proceedings were thereafter reopened; therefore, his motion to reopen deportation proceedings to apply for adjustment of status in conjunction with a section 212(h) waiver was properly denied.

Matter of Michel, 21 I&N Dec. 1101 (BIA 1998)

(1) Pursuant to 62 Fed. Reg. 10,312, 10,369 (to be codified at 8 C.F.R. § 240.10(a)(1) (interim, effective Apr. 1, 1997), an Immigration Judge must ascertain whether an alien desires representation in removal proceedings.

(2) An alien who has not previously been admitted to the United States as an alien lawfully admitted for permanent residence is statutorily eligible for a waiver of inadmissibility under section 212(h) of the Immigration and Nationality Act (to be codified at 8 U.S.C. § 1182(h)), despite his conviction for an aggravated felony.

Sentence Enhancement

Matter of K-V-D-, 22 I&N Dec. 1163 (BIA 1999)

Sexual Abuse of a Minor

Matter of Rodriguez-Rodriguez, 22 I&N Dec. 991 (BIA 1999)

The offense of indecency with a child by exposure pursuant to section 21.11(a)(2) of the Texas Penal Code Annotated constitutes sexual abuse of a minor and is therefore an aggravated felony within the meaning of section 101(a)(43)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(A) (Supp. II 1996).

Matter of Crammond, 23 I&N Dec. 38 (BIA 2001) (vacated by Matter of Crammond, 23 I&N Dec. 179 (BIA 2001))

(1) A conviction for “murder, rape, or sexual abuse of a minor” must be for a felony offense in order for the crime to be considered an aggravated felony under section 101(a)(43)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(A) (Supp. V 1999).

(2) In determining whether a state conviction is for a felony offense for immigration purposes, the Board of Immigration Appeals applies the federal definition of a felony set forth at 18 U.S.C. § 3559(a)(5) (1994).

Matter of Small, 23 I&N Dec. 448 (BIA 2002)

A misdemeanor offense of sexual abuse of a minor constitutes an aggravated felony under section 101(a)(43)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(A) (2000).

Matter of V-F-D-, 23 I&N Dec. 859 (BIA 2006)

A victim of sexual abuse who is under the age of 18 is a “minor” for purposes of determining whether an alien has been convicted of sexual abuse of a minor within the meaning of section 101(a)(43)(A) of the Immigration and Nationality Act, 8 U.S.C. §§ 1101(a)(43)(A) (2000).

Theft Offenses

Matter of V-Z-S-, 22 I&N Dec. 1338 (BIA 2000)

(1) A taking of property constitutes a “theft offense” within the definition of an aggravated felony in section 101(a)(43)(G) of the Immigration and Nationality Act (“Act”), 8 U.S.C. § 1101(a)(43)(G) (Supp. IV 1998), whenever there is criminal intent to deprive the owner of the rights and benefits of ownership, even if such deprivation is less than total or permanent.

(2) The respondent’s conviction for unlawful driving and taking of a vehicle in violation of section 10851 of the California Vehicle Code is a “theft offense” under section 101(a)(43)(G) of the Act.

Matter of Bahta, 22 I&N Dec. 1381 (BIA 2000) (Possession of Stolen Property

(1) The respondent’s conviction for attempted possession of stolen property, in violation of sections 193.330 and 205.275 of the Nevada Revised Statutes, is a conviction for an attempted “theft offense (including receipt of stolen property),” and therefore an aggravated felony, within the meaning of sections 101(a)(43)(G) and (U) of the Immigration and Nationality Act, 8 U.S.C. §§ 1101(a)(43)(G) and (U) (Supp. IV 1998).

(2) The Immigration and Naturalization Service retains prosecutorial discretion to decide whether or not to commence removal proceedings against a respondent subsequent to the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546.

Matter of Garcia-Madruga, 24 I&N Dec. 436 (BIA 2008)

(1) A “theft offense” within the definition of an aggravated felony in section 101(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(G) (2000), ordinarily requires the taking of, or exercise of control over, property without consent and with the criminal intent to deprive the owner of the rights and benefits of ownership, even if such deprivation is less than total or permanent. Matter of V-Z-S-, 22 I&N Dec. 1338 (BIA 2000), clarified.

(2) The respondent’s welfare fraud offense in violation of section 40-6-15 of the General Laws of Rhode Island is not a “theft offense” under section 101(a)(43)(G) of the Act.

Matter of CARDIEL, 25 I&N Dec. 12 (BIA 2009)

A conviction for receipt of stolen property under section 496(a) of the California Penal Code, with a sentence of imprisonment of at least 1 year, categorically qualifies as a receipt of stolen property aggravated felony conviction under section 101(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(G) (2006).

Transportation of Undocumented Aliens

Matter of Ruiz, 22 I&N Dec. 486 (BIA 1999)

An alien who is convicted of transporting an illegal alien within the United States in violation of section 274(a)(1)(A)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1324(a)(1)(A)(ii) (1994), was convicted of an aggravated felony as defined in section 101(a)(43)(N) of the Act, 8 U.S.C. § 1101(a)(43)(N) (Supp. II 1996), and is therefore deportable under section 241(a)(2)(A)(iii) of the Act, 8 U.S.C. § 1251(a)(2)(A)(iii) (1994), as an alien convicted of an aggravated felony. Matter of I-M-, 7 I&N Dec. 389 (BIA 1957), distinguished.

(1) Some Precedent Decisions Dealing with General Eligibility for Adjustment of Status to That of Permanent Resident :

• Matter of Egbunine , 19 I. & N. Dec. 478 (BIA, 1987) . An alien may not adjust his status if he seeks to receive an immigrant visa on the basis of a marriage which was entered into while the alien was in immigration proceedings.

• Matter of Arthur , 20 I. & N. Dec. 475 (BIA, 1992) . Alien may adjust status based on a marriage entered into after the commencement of proceedings if the alien establishes "by clear and convincing evidence to the satisfaction of the Attorney General that the marriage was entered into in good faith and ...was not entered into for the purpose of procuring the alien's entry as an immigrant."

• Matter of Ching , 15 I. & N. Dec. 772 (BIA, 1976) . Where a visa petition has not been approved, applicant is statutorily ineligible for section 245 relief.

• Matter of Stockwell , 20 I. & N. Dec. 309 (BIA, 1991) . Section 245(d) of the Act does not prohibit an alien whose conditional permanent resident status has been terminated from adjusting his status under section 245(a).

• Matter of Tabcum , 14 I. & N. Dec. 113 (R.C., 1972) . An alien who is the "accompanying spouse" of an exchange visitor's alien is subject to the foreign residence requirement of section 212(e) and is therefore ineligible for adjustment of status.

• Matter of Davis , 10 I. & N. Dec. 441 (BIA, 1964) . An alien who entered the U.S. as a transit without visa is ineligible for adjustment of status.

• Matter of Loo Bing Sun , 15 I. & N. Dec. 307 (BIA, 1975) . An alien admitted with a nonquota immigrant visa procured by fraud is ineligible for adjustment of status if inadmissible under section 212(a)(19) and ineligible for 212(i) waivers.

• Matter of Monteran , 11 I. & N. Dec. 717 (BIA, 1966) . An alien who (1) was born in the U.S., (2) expatriated abroad, and (3) was paroled into the U.S., is eligible for adjustment of status.

• Matter of Krastman , 11 I. & N. Dec. 720 (BIA, 1966) . An alien who, following lawful admission to the U.S. for permanent residence, became deportable because of conviction for crimes involving moral turpitude, is not precluded from establishing statutory eligibility for adjustment of status.

• Matter of Sanchez-Linn , 20 I. & N. Dec. 362 (BIA, 1991) . An applicant for registry under section 249 of the Act must prove he or she is at present a person of good moral character, and has been such for a reasonable period of time preceding the application.

• Matter of Naulu , 19 I. & N. Dec. 351 (BIA, 1986) . A derivative beneficiary "accompanying or following to join" the principal alien cannot precede the principle. However, once the principal acquires permanent resident status, the spouse and/or child is not barred from adjustment by reason of having preceded him as a nonimmigrant.

(2) Some Precedent Decisions Dealing with Whether an Alien Has Been Inspected and Admitted or Paroled .

• Matter of Areguillin , 17 I. & N. 308 (BIA, 1980) ; Matter of V-Q- , 9 I. & N. Dec. 78 (BIA, 1960) ; Matter of Wong , 12 I. & N. Dec. 733 (BIA, 1968) . Physically presenting oneself for questioning and making no knowing false claim to U.S. citizenship constitutes being inspected and admitted for section 245 purposes.

• Matter of Areguillin , 17 I. & N. Dec. 308 (BIA, 1980) . The alien bears the burden of proving presentation of inspection to establish eligibility for adjustment of status.

• Matter of Wong , 12 I. & N. Dec. 733 (BIA, 1968) ; Matter of Woo , 11 I. & N. Dec. 706 (BIA, 1966) . An alien who gains admission to the U.S. by a knowing false claim to citizenship has not been "inspected and admitted".

• Matter of Robles , 15 I. & N. Dec. 734 (BIA, 1976) . Entry after intentionally evading the inspection required by the immigration laws and regulations is an entry without inspection, and the alien cannot be deemed inspected and admitted.

• Matter of Lim , 10 I. & N. Dec. 653 (BIA, 1963) . An alien who entered as a member of the U.S. Coast Guard is ineligible for adjustment of status, because he was not inspected and admitted, or paroled into the U.S.

(3) Some Precedent Decisions Dealing with Crewman Arriving by or Destined to a Vessel :

• Matter of Rebelo , 13 I. & N. Dec. 84 (BIA, 1968) distinguished; Matter of Campton , 13 I. & N. Dec. 535 (BIA, 1970) . An alien who is a crewman by occupation and whose last entry was sought and gained solely as a crewman is ineligible for adjustment of status notwithstanding an earlier admission as a temporary visitor for pleasure. (What matters is the most recent entry. For example, if an alien who is a crewman by profession last sought entry as a visitor for pleasure and was admitted as such (or paroled), he or she is eligible to apply for adjustment of status.

• Matter of Goncalves , 10 I. & N. Dec. 277 (BIA, 1963) . An alien's entry in transit as a seaman to join a ship and depart constitutes entry as a crewman, and he or she is therefore ineligible to apply for adjustment of status.

• Matter of Quintero-Correa , 11 I. & N. Dec. 343 (BIA, 1964) . Arrival as a "workaway" does not preclude adjustment of status in the case of an alien who has no background as an occupation seaman, who was in possession of a valid unexpired nonimmigrant visa, and who was inspected and admitted as a temporary visitor for pleasure.

(4) Some Precedent Decisions Dealing with Unauthorized Employment :

• Matter of Raol , 16 I. & N. Dec. 466 (BIA, 1978) . An alien's employment is unauthorized unless the Service has specifically approved the employment. A labor certification issued by the Secretary of Labor does not, in itself, authorize an alien's employment in the U.S.

• Matter of Tien , 17 I. & N. Dec. 436 (BIA, 1980) . When the basis for an alien's application for adjustment has ceased to exist (e.g., if the alien no longer intends to work for the employer who obtained his or her labor certification), the application is deemed abandoned, and the alien is no longer exempted from section 245(c) of the Immigration and Nationality Act.

• Matter of Hall , 18 I. & N. Dec. 203 (BIA, 1982) ; A alien who engages in fund-raising activities as part of his missionary work and receives full support is considered to have engaged in unauthorized employment and is therefore barred from adjusting status.

(5) Some Precedent Decisions Dealing with an Alien Who Is Likely to Become a Public Charge :

• Matter of Vindman , 16 I. & N. Dec. 131 (R.C., 1977) . Where the record reflects applicants were receiving public assistance with no prospects for their earning a livelihood or providing self support the application for adjustment of status would be denied.

• Matter of Perez , 15 I. & N. Dec. 136 (BIA, 1974) . The fact that an alien has been on welfare does not, by itself, establish likelihood of becoming a public charge.

• Matter of Harutunian , 14 I. & N. Dec. 583 (R.C., 1974) ; Matter of Vindman , 16 I. & N. Dec. 131 (R.C., 1977). A determination as to the likelihood of becoming a public charge should take into consideration factors such as an alien's age, incapability of earning a livelihood, a lack of sufficient funds for self-support, and lack of a person willing and able to assure that the alien will not need public support.

(6) Some Precedent Decisions Dealing with Discretionary Denials :

• Matter of Marques , 16 I. & N. Dec. 314 (BIA, 1977) . An applicant for adjustment who meets the objective prerequisites is merely eligible for adjustment of status and is in no way entitled to adjustment.

• Matter of Arthur , 20 I. & N. Dec 475 (BIA, 1992) . Motions to reopen for consideration of applications for adjustment of status based upon unadjudicated visa petitions which fall within the ambit of sections 204(g) and 245(e) (married while in proceedings) will not be granted.

• Matter of Lee , 13 I. & N. Dec. 236 (BIA, 1969) ; Matter of Tayeb , 12 I. & N. Dec. 739 (BIA, 1968) . Consideration must be given to an advisory report from the Department of State which indicates the alien's adjustment would have an adverse effect on relations with the applicant's government.

• Matter of Barrios , 10 I. & N. Dec. 172 (BIA, 1963) . The favorable exercise of discretion is warranted when an alien entered the U.S. as a nonimmigrant fully intending to comply with the terms of admission and did not formulate a specific intention to become a permanent resident until after arrival.

• Matter of Francois , 10 I. & N. Dec. 168 (BIA, 1963) ; Matter of Marques , 16 I. & N. Dec. 314 (BIA, 1977) . Good moral character is a factor which must be considered in determining whether discretion should be exercised in a particular case.

• Matter of Khan , 17 I. & N. Dec. 508 (BIA, 1980) . Unauthorized employment alone should not ordinarily result in the discretionary denial of adjustment to those individuals who are statutorily eligible for that relief, no other negative considerations being present.

• Matter of Aguirre , 13 I. & N. Dec. 661 (BIA, 1971) . An officer must make an independent exercise of discretion on all the facts present.

• Matter of Blas , 15 I. & N. Dec. 626 (A.G., 1976) . Although family ties will ordinarily result in favorable exercise of discretion, they neither must nor should be used where it appears that the alien has engaged in a course of deception designed to produce those very ties.

• Matter of Kai Hing Hui , 15 I. & N. Dec. 288 (BIA, 1975) . An alien who gained entry by using a nonresident alien Mexican border crossing card obtained by misrepresentation is excludable under section 212(a)(6)(C)(i), and the case does not merit the favorable exercise of discretion.

• Matter of Tanahan , 18 I. & N. Dec. 339 (R.C., 1981) . Adjustment of status under section 245 was not designed to supersede the regular consular visa-issuing processes or to be granted in non-meritorious cases.

• Matter of Arai , 13 I. & N. Dec. 494 (BIA, 1970) ; Matter of Leung , 16 I. & N. Dec. 12 (DD, 1976) . Where adverse factors are present in a given application for adjustment of status, it may be necessary for the applicant to offset these by a showing of unusual or even outstanding equities. In the absence of adverse factors, adjustment will ordinarily be granted as a matter of discretion.

• Matter of Garcia-Castillo , 10 I. & N. Dec. 516 (BIA, 1964) . Entry as a nonimmigrant with a preconceived intention to remain is a serious adverse factor to be considered.

• Matter of Cavazos , 17 I. & N. Dec. 215 (BIA, 1980) . In the absence of other adverse factors, an application for adjustment by an immediate relative should generally be granted in the exercise of discretion notwithstanding the fact that the applicant entered as a nonimmigrant with a preconceived intention to remain.

• Matter of Ibrahim , 18 I. & N. Dec. 55 (BIA, 1981). The benefits of Matter of Cavazos , supra , are limited to immediate relatives, and an application for adjustment by a fifth preference immigrant with a preconceived intention to remain is properly denied in the exercise of discretion.

• Matter of Baltazar , 16 I. & N. Dec. 108 (BIA, 1977) . Evidence indicating that the alien obtained a sham divorce primarily to obtain immigration benefits is a significant adverse factor bearing on discretion.

• Matter of Ozcan , 15 I. & N. Dec. 301 (BIA, 1975) . An alien who has misstated or at least materially overstated qualifications on an application for a labor certification does not warrant the favorable exercise of discretion.

BIA PRECEDENT TABLE 1995-2010 (Revised 06-18-2010)

2011-10-19T15:09:00.000-05:00

This document compiles headnotes from BIA precedent cases published in volumes 21, 22, 23, 24 and 25 of the Administrative Decisions under the Immigration and Nationality Laws of the United States, organized by topic. As such, it includes all BIA cases published from Matter of Esposito (March 30, 1995) to the present.
http://www.justice.gov/eoir/vll/intdec/precedent_chart/precedent_chart_TOC.html

ADJUSTMENT OF STATUS

Arriving Aliens

Child Status Protection Act

Chinese Student Protection Act

Cuban Refugee Adjustment Act

Eligibility

Rescission of Adjustment of Status

Section 245(i) Adjustment

ADMINISTRATIVE CLOSURE OF CASES

ADMISSION / ENTRY

Adjustment of Status

Arriving Alien

Claimed Status Review

Nunc Pro Tunc Permission to Reapply

Returning Lawful Permanent Resident

Unlawful Reentry

Withdrawal of Application for Admission

AGGRAVATED FELONIES

Accessory After the Fact

Controlled Substances

Misprision of a Felony

Obstruction of Justice

Perjury

Prostitution for Commercial Advantage

Rape

Robbery

Section 212(h) Waivers

Sentence Enhancement

Sexual Abuse of a Minor

Theft Offenses

Transportation of Undocumented Aliens

AIRLINE FINES

AMERICAN BAPTIST CHURCHES (ABC) SETTLEMENT

APPEALS

Factfinding on Appeal

Timeliness

Waiver of Right to Appeal

ASYLUM

Adjustment of Status

Country Conditions

Countrywide Persecution

Credibility and Corroboration

Criminal Activity

Exclusion Proceedings

Firm Resettlement

Frivolous Applications

Jurisdiction of Immigration Judges

North Korean Human Rights Act

One-Year Application Deadline

Particular Social Group

Past Persecution

Persecution - Antisemitism

Persecution - Clan Membership

Persecution - Coercive Population Control

Persecution - Cumulative Discrimination

Persecution - Domestic Violence

Persecution - Drug Informants

Persecution - Extortion

Persecution - Female Genital Mutilation

Persecution - Guerrilla Recruitment

Persecution - Kidnapping

Persecution - Mixed Motives

Persecution - Nonphysical Harm

Persecution - Rape

Persecution - Reasons for Persecution

Persecution - Religion

ATTORNEY GENERAL CERTIFICATION

BACKGROUND AND SECURITY CHECKS

CANCELLATION OF REMOVAL (LAWFUL PERMANENT RESIDENTS)

Continuous Residence

Criminal Convictions

Standards

CANCELLATION OF REMOVAL (NON-LAWFUL PERMANENT RESIDENTS)

Continuous Residence

Criminal Convictions

Exceptional and Extremely Unusual Hardship

Good Moral Character

Ineligible Aliens

Qualifying Relatives

CANCELLATION OF REMOVAL (SPECIAL RULE)

Continuous Physical Presence

Battered Spouse

CHILD PROTECTION ACT

CITIZENSHIP

Acquisition of Citizenship by a Child

Ineligible to Citizenship

CONTINUANCES

CONTROLLED SUBSTANCE DEPORTABILITY

CONVENTION AGAINST TORTURE

Acquiesence of Public Official

Burden of Proof

Definition of Torture

Jurisdiction

CRIMES INVOLVING MORAL TURPITUDE

Assault

Cancellation of Removal Eligibility

Child Pornography

Controlled Substances

Corporal Injury on a Spouse

Date of Admission

Defined

Domestic Battery

Driving Under the Influence

Failure to Register as Sex Offender

Financial Violations

Misprision of a Felony

Money Laundering

Purely Political Offense

Section 212(c) Eligibility

Stalking

Theft

Trafficking in Counterfeit Goods

CRIMINAL CONVICTIONS

Court Martial

Finality

Foreign Convictions

Deferred Adjudication

Naturalization

Pardons

Penalty or Punishment

Records of Conviction

Rehabilitative Statutes

National Security Considerations

Pending Appeals

Standards

Terrorists

Transition Period Custody Rules (TPCR)

EXCLUSION PROCEEDINGS

Adjustment of Status

Asylum

In Absentia Proceedings

Motion to Terminate Proceedings

Parole

EXPEDITED REMOVAL

Claimed Status Review

FIREARMS OFFENSES

FOREIGN POLICY GROUNDS DEPORTABILITY

Adverse Foreign Policy Consequences

Espionage

GOOD MORAL CHARACTER

IN ABSENTIA PROCEEDINGS

Custody

Exceptional Circumstances

Exclusion Proceedings

Immigration Judges

Ineffective Assistance of Counsel

Jurisdiction

Notice to Alien

Section 242(b) Proceedings

Stays

Voluntary Departure

Warnings for Failure to Appear

INADMISSIBILITY

Controlled Substance Violation

Falsely Claiming Citizenship (Section 212(a)(6)(C)(ii))

Prostitution (Section 212(a)(2)(D)

INEFFECTIVE ASSISTANCE OF COUNSEL

Advice to Client

In Absentia Proceedings

Standards

MARRIAGE FRAUD

Marriage During Proceedings

Section 216(c)(4) Hardship Waivers

MINORS

MOTIONS TO RECONSIDER

Affirmances Without Opinion

Time and Number Limits

MOTIONS TO REOPEN

Burden of Proof

Coercive Family Planning Claims

Time and Number Limits

RECOGNITION AND ACCREDITATION

REFUGEES

Date of Admission

Jurisdiction

REINSTATEMENT OF REMOVAL

Alienage and Identity

Prosecutorial Discretion

Refugees

SECTION 209(C) WAIVERS

SECTION 212(C) WAIVERS

Adjustment of Status

Aggravated Felonies

Comparable Grounds of Inadmissibility

Drug Offenses

Factors

Falsification of Documents

Residence and Domicile

Retroactivity

SECTION 212(H) WAIVERS

SECTION 212(I) WAIVERS

SECTION 213 WAIVERS

SECTION 237(A)(1)(H) WAIVERS

SECTION 241(A)(1)(H) WAIVERS

SMUGGLING OF ALIENS

SUSPENSION OF DEPORTATION

Extreme Hardship

Physical Presence

Stop-Time Rule

TEMPORARY PROTECTED STATUS

Pending, Continuance for

Pending, Reopening for

In Absentia Proceedings

Motions to Reopen

Standards

WITHHOLDING OF REMOVAL

Convention Against Torture (CAT) Claims

Particularly Serious Crime

Removal Order Requirement

Stephen H. Legomsky appointed Chief Counsel, U.S. Citizenship and Immigration Services

2011-10-04T21:52:00.000-05:00

My law school professor for Immigration Law, Stephen H. Legomsky, the John S. Lehmann University Professor at the Washington University School of Law, has been appointed Chief Counsel, U.S. Citizenship and Immigration Services, effective October 24, 2011. Steve is an authority on U.S., comparative, and international immigration, refugee, and citizenship law and policy. His book, Immigration and Refugee Law and Policy, has been the required text at 175 law schools since its inception. He has won several awards, including the American Immigration Lawyers Association’s annual award, given to one immigration law professor in the United States, and Washington University’s Arthur Holly Compton Award, given annually to one university faculty member for career accomplishments. He has also been appointed to visiting positions at Oxford University, Cambridge University, and other universities in the United States, Mexico, New Zealand, Europe, Australia, Suriname, Singapore, and Israel.

Jonaitiene v. Holder-7th Circuit

2011-09-30T08:38:00.008-05:00

In 2000 husband and wife, citizens of Lithuania, entered the U.S. with illegally-obtained visas. They have two children born in Lithuania and a third born in the U.S. When the visa fraud was discovered, they cooperated and were sentenced to one year of probation. The government charged them with removability for being inadmissible at the time of entry and for having been convicted of a crime involving moral turpitude. 8 U.S.C. 1227(a)(1)(A), 1182(a)(7)(B)(i)(II), and 1227(a)(2)(A)(i). Petitioners applied for asylum and withholding of removal. The Immigration Judge denied the request for asylum; the Board of Immigration Appeals affirmed. The Seventh Circuit affirmed. The affidavits established, at best, that the government of Lithuania is unstable and does little to protect its citizens. Fear of retribution from co-defendants for an alien's cooperation with the U.S. government, in exchange for a reduced sentence, is not a well-founded fear based on a protected ground.

For the Seventh Circuit

Nos. 10-1100 & 10-1101

RASA JONAITIENE AND MARIUS BUBENAS,

Petitioners,

ERIC H. HOLDER, JR., Attorney General of the United States,

Respondent.

On Petition for Review of the Orders of the Board of Immigration Appeals. Nos. A077-651-529, A077-495-492

ARGUED OCTOBER 28, 2010—DECIDED SEPTEMBER 26, 2011

Before MANION, ROVNER, and SYKES, Circuit Judges.

ROVNER, Circuit Judge. Rasa Jonaitiene and Marius Bubenas were citizens of Lithuania in 2000, when each gained entry into the United States through the use of illegally-obtained visas. They do not dispute that Bubenas, along with Jonaitiene’s brother Daruas Daugela, arranged to obtain a United States visa from a man named Darius Reika. Bubenas used that visa to come to the United States in March 2000, and Jonaitiene followed in July of that year. Bubenas and Jonaitiene have three children together, two born in Lithuania and the third born in the United States.

Eventually, the United States government became aware of the visa fraud scheme that included bribery of a United States Foreign Officer in Lithuania to obtain the visas, and the petitioners were both arrested and charged in three counts of a nineteen-count indictment in federal court. The petitioners agreed to cooperate in the investigation and prosecution of other members of the scheme. Based on that cooperation, the government dismissed two counts of the superceding indictment and filed a substantial assistance motion. Petitioners pled guilty to the remaining count and were sentenced to one year of probation. On June 17, 2008, the Department of Homeland Security initiated removal proceedings against petitioners, charging them with removability for being inadmissible at the time of entry and for having been convicted of a crime involving moral turpitude. 8 U.S.C. § 1227(a)(1)(A), 1182(a)(7)(B)(i)(II), and 1227(a)(2)(A)(i). The petitioners conceded their removability, but sought relief from removal through applications for asylum and withholding of removal.

Petitioners contend that they are fearful of returning to Lithuania because of threats from Darius Reika, who resides there, and because the Lithuanian government is either unwilling or unable to protect them. In their written statements as well as their testimony at the hearing, the petitioners detailed threatening phone calls made to them by Reika after their arrest.

Jonaitiene’s brother, who had arranged for the payments to Reika for the visas and who also resides in the United States, received threats from Reika as well, and ultimately committed suicide. The petitioners also introduced evidence that the Lithuanian newspapers had published articles detailing their cooperation in the government investigation into the visa fraud scheme. They asserted that because of that cooperation, they would be in danger from Reika if returned to Lithuania. They also asserted that they would be considered traitors in their country, but could not explain upon questioning why a cooperating witness in a criminal case would be considered a traitor, nor how such cooperation in identifying fraud in the American embassy would be considered a traitorous act against Lithuania.

In addition to the threats from Reika, the petitioners provided evidence that after Jonaitiene’s threatening calls, the door to Jonaitiene’s mother’s apartment was set on fire in Lithuania. The petitioner’s children were staying with Jonaitiene’s mother at that time. In response to that fire, the United States government brought the children and Jonaitiene’s mother to the United States temporarily under Significant Public Benefit Parole. The fire department investigated the blaze, but according to the petitioners the police did not do so.

The only evidence presented relating to the Lithuanian government was their inadequate response with respect to Reika and the fire. When the visa fraud scheme was first revealed, Reika was detained by the Lithuanian police for two weeks but then released. No charges were filed against Reika. Moreover, as was noted, the petitioners argue that the police failed to investigate the fire at the apartment.

The Immigration Judge (IJ) denied the request for asylum, and the Board of Immigration Appeals (BIA) affirmed in a separate opinion. The IJ held that the harm that the petitioners feared in Lithuania was not on account of a protected ground, and that no competent evidence was presented to support the contention that the government was complicit in the visa fraud or would be supportive of the persons such as Reika that the petitioners feared. The BIA echoed those holdings in its separate opinion. It agreed that the petitioners had failed to provide evidence of government complicity, and noted that a personal dispute cannot support a claim of asylum. Relying on our decision in Jun Ying Wang v. Gonzales, 445 F.3d 993, 999 (7th Cir. 2006), the BIA noted that the fear of retribution from co-defendants for an alien’s cooperation with the United States government, in exchange for a reduced sentence, is not a well-founded fear based on a protected ground. Accordingly, the BIA held that the petitioners failed to establish a nexus between the feared persecution and a protected ground.

Where the BIA adopts the decision of the IJ and supplements that decision with its own reasoning, we review the IJ’s decision as supplemented. Kaharudin v. Gonzales, 500 F.3d 619, 622 (7th Cir. 2007). Under the substantial evidence test, we affirm the denial of asylum and of withholding of removal by the IJ and BIA if it is “‘supported by reasonable, substantial and probative evidence on the record considered as a whole.’ ” Wang, 445 F.3d at 997, quoting INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992); Gjerazi v. Gonzales, 435 F.3d 800, 807 (7th Cir. 2006).

In order to obtain asylum, the petitioners must establish that they are refugees, which is defined as persons unable or unwilling to return to their country “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 USC § 1101(a)(42)(A); Wang, 445 F.3d at 997; Hernandez-Baena v. Gonzales, 417 F.3d 720, 722-23 (7th Cir. 2005). The first part of that definition may be problematic for the petitioners but we need not tarry long there because the latter part is insurmountable.

The first obstacle that petitioners face is that persecution under that definition does not encompass purely private actions. In order to demonstrate persecution or a well-founded fear of persecution, the petitioners must demonstrate that the threatening conduct is by the government, or that it is by private persons whom the government is unwilling or unable to control. Tapiero de Orejuela v. Gonzales, 423 F.3d 666, 672 (7th Cir. 2005); Galina v. I.N.S., 213 F.3d 955, 958 (7th Cir. 2000). The petitioners have presented very little evidence of such government complicity or inability. We have only allegations that Reika was not prosecuted by the Lithuanian government for the visa fraud scheme, and that the police did not investigate the fire at the apartment. Missing is any indicator as to why those decisions were made, and whether they constituted a deviation from standard operating procedures. We do not know, for instance, whether the investigation of fires is normally left to the fire department, which did investigate the incident, nor do we know whether the Lithuanian government was presented with sufficient evidence to prosecute Reika but chose not to do so. Nevertheless, even if the allegations here were sufficient to demonstrate persecution, petitioners do not even allege that it is on account of one of the protected grounds.

The petitioners assert in a conclusory manner that they were members of a particular social group, but provide no identification of that alleged group other than to identify themselves as informants whose cooperation was induced by the government through promises of protection. Rather than explain how that constitutes a “social group” under the refugee definition, they argue that the United States government created a dangerous condition by inducing their cooperation, and therefore had an affirmative duty to protect them from that danger.

We have rejected a similar argument in Wang v. Gonzales, 445 F.3d 993 (7th Cir. 2006). Jun Ying Wang, a native of China, was present in the United States unlawfully having overstayed her visitor’s visa, when she was arrested for her part in a scheme to obtain Social Security cards using fraudulent documents. Id. at 994. Wang cooperated with the government’s investigation and in turn received a more lenient sentence. Id. She applied for asylum based on her fear that she would be attacked by her codefendants, who were in China and sought retribution for her cooperation against them. Id. We rejected the asylum claim, holding that Wang had failed to demonstrate that the persecution she feared was on account of one of the five statutorily-protected grounds. Wang did not explain how her claim fit within one of the protected grounds, choosing instead to argue that the term “refugee” should not be interpreted too rigidly and that she should be eligible because her persecution stemmed from her assistance to the United States government. Id. at 997. The petitioners mirror those arguments in their briefs to this court. We rejected that argument in Wang, holding that we are bound by the language of the statute, and that fear of persecution as a result of a personal dispute rather than on account of a person’s membership in a protected group fails to satisfy the definition of refugee. Id. at 998; Marquez v. I.N.S., 105 F.3d 374, 380 (7th Cir. 1997).

A “social group” under the Act is one ‘whose members share “common characteristics that members of the group either cannot change, or should not be required to change because such characteristics are fundamental to their individual identities.’” Ramos v. Holder, 589 F.3d 426, 428 (7th Cir. 2009), quoting In re Kasinga, 21 I. & N. Dec. 357, 366 (BIA 1996); see also Poroj-Mejia v. Holder, 397 Fed.Appx. 234, 237, 2010 WL 4102295, 2 (7th Cir. 2010). The social group, however, cannot be defined merely by the fact of persecution. See Castillo-Arias v. U.S. Atty. Gen., 446 F.3d 1190, 1198 (11th Cir. 2006) (“The risk of persecution alone does not create a particular social group within the meaning of the INA . . .”) Nor may a social group be defined solely by the shared characteristic of facing dangers in retaliation for actions they took against alleged persecutors. Wang v. Gonzales, 445 F.3d 993, 998 (7th Cir. 2006); Pavlyk v. Gonzales, 469 F.3d 1082, 1088-89 (7th Cir. 2006); Poroj-Mejia, 397 Fed.Appx. at 237, 2010 WL 4102295 at 2. The petitioners have not attempted to distinguish their claim from those precedents, and in fact have made no argument as to how they constitute a protected group under the Act. They rely instead on their generalized assertion that the government must grant asylum because it placed them in danger by inducing their cooperation in the criminal case. That argument suffers from the glaring problem that they chose to cooperate in return for the benefit of a lesser sentence, and that the choice to place themselves in that danger was theirs not that of the government. More fundamentally, petitioners fail to identify any legal authority for granting asylum on that basis. As we noted in Wang, “there are legal alternatives for an alien placed in danger by virtue of her cooperation with the government. . . . [T]he government may seek an ‘S-visa’ on behalf of an alien cooperating in a criminal investigation.” Wang, 445 F.3d at 999 n.2, citing 8 U.S.C. § 1101(a)(15)(S)(I) and United States v. Zendeli, 180 F.3d 879, 881 (7th Cir. 1999). In this case as in Wang, the government has chosen not to pursue that option for reasons not clear on the record. The S-visa, not asylum, is the avenue by which the petitioners could lawfully remain in the United States, but that is not a hand that this court can force. Because the petitioners have failed to demonstrate a well-founded fear of persecution on account of a protected ground for purposes of asylum, they cannot meet the more stringent standards of withholding of removal which require a showing of a clear probability of persecution. Toure v. Holder, 624 F.3d 422, 428 (7th Cir. 2010); Kaharudin v. Gonzales, 500 F.3d 619, 623 (7th Cir. 2007).

The remaining arguments are similarly unavailing. The petitioners contest the denial of their request for a continuance of the hearing, asserting that it denied them due process because their counsel was not able to adequately develop their case. An immigration court’s denial of an alien’s request for a continuance is reviewable for abuse of discretion, but the petitioners have failed to demonstrate any abuse of discretion here. Vahora v. Holder, 626 F.3d 907, 915, 919 (7th Cir. 2010); Kucana v. Holder, 130 S. Ct. 827, 839-40 (2010). To the extent that they are claiming a due process violation, they fail for the additional reason that they have not adequately alleged prejudice from the denial of the continuance. Even before this court, they still have not identified what evidence they hoped to obtain by that continuance. A due process claim cannot succeed absent concrete evidence that the due process violation had the potential to affect the outcome of the hearing. Ambati v. Reno, 233 F.3d 1054, 1061 (7th Cir. 2000). Where a petitioner does not “set forth any evidence that would have been presented or arguments that would have been made had his counsel been given additional time to prepare his case,” the petitioner has failed to demonstrate that the alleged violation potentially impacted the outcome of the hearing, and therefore the due process claim must be rejected. Id. at 1062; Kuciemba v. INS, 92 F.3d 496, 501 (7th Cir.1996.)

Moreover, the petitioners complain of the denial of their motion to remand, but again fail to allege with any specificity what evidence could have been obtained on that remand. The affidavits in support of that motion appear to establish at best that the government of Lithuania is unstable and does little to protect its citizens, but that helps the petitioners only if the actions against them by the private actor—Reika—were on account of one of the five protected grounds. They have failed to even argue that. The potential for private violence based on personal grudges, and the inability of a country to protect its citizens from such unlawfulness, is not a basis for asylum. As we noted, the government could have avoided this result by seeking an “S-visa” on behalf of the petitioners, but it did not do so. The asylum and withholding of removal limitations handcuff our ability to provide any relief here. The decision of the IJ and BIA is AFFIRMED.

White House and Department of Homeland Security (DHS) Take Action to Ease Deportation Policies

2011-08-24T13:53:00.001-05:00

On August 18, 2011, the White House and Department of Homeland Security (DHS) Secretary Janet Napolitano announced steps that the Administration is taking to focus its efforts on removing criminal and other “high-risk” individuals and not “low-priority cases,” such as students, military veterans, and spouses of active-duty military personnel.

In a blog posting on the White House Web page, Cecilia Muoz expressed President Barack Obama's “deep commitment to fixing our immigration laws” and stated:

"As he focuses on building a new 21st century immigration system that meets our nation's economic and security needs, the President has a responsibility to enforce the existing laws in a smart and effective manner. This means making decisions that best focus the resources that Congress gives the Executive Branch to do this work. There are more than 10 million people who are in the U.S. illegally; it's clear that we can't deport such a large number. So the Administration has developed a strategy to make sure we use those resources in a way that puts public safety and national security first. ... Under the President's direction, for the first time ever the Department of Homeland Security has prioritized the removal of people who have been convicted of crimes in the United States."

The blog goes on to laud the announcement, also made on August 18, 2011, that DHS is strengthening its ability to target criminals by making sure that it is not focusing resources on deporting people who are low priorities, including young people who were brought to this country as small children and who know no other home and military veterans and the spouses of active-duty military personnel. Rather, DHS will focus its resources on more serious concerns, such as individuals who have been convicted of serious crimes.

The White House further announced that DHS, along with the Department of Justice (DOJ), will be reviewing the current deportation caseload to (1) clear out low-priority cases on a case-by-case basis and make more room to deport people who have been convicted of crimes or pose a security risk and (2) keep low-priority cases out of the deportation pipeline, using common-sense guidelines, such as a person's ties and contributions to the community, their family relationship, and military service record. The White House sees this as “the smartest way to follow the law while we stay focused on working with the Congress to fix it.”

In a letter to Assistant Majority Leader Dick Durbin (D-IL) and 21 other senators written in response to Sen. Durbin's letter to President Obama regarding the Administration's immigration-enforcement policies and the Development, Relief, and Education for Alien Minors (DREAM) Act [FN1] sponsored by Sen. Durbin, DHS Secretary Janet Napolitano announced that the Administration has established a new process for handling the deportation cases of DREAM Act students and other sympathetic individuals. In lauding this action, Sen. Durbin stated that, “[i]f fully implemented, the new process should stop virtually all DREAM Act deportations.”

In her letter, Secretary Napolitano points out that, over the past two years, DHS has established “clear and well-reasoned” priorities to govern how DHS uses its immigration-enforcement resources and to focus those resources on enhancing border security and identifying and removing criminal aliens, those who pose a threat to public safety and national security, repeat immigration law violators, and other individuals prioritized for removal. Initially set forth in a March 2010 memorandum from U.S. Immigration and Customs Enforcement (ICE) Director John Morton, these priorities were recently reiterated and clarified in Director Morton's June 17, 2011, memorandum regarding the exercise of prosecutorial discretion by ICE personnel. Secretary Napolitano restated the President's position that enforcement resources should be focused on those who pose a danger to the U.S. and pledged that the June 17, 2011, prosecutorial discretion memorandum is being implemented to ensure that resources are uniformly focused on our highest priorities.

Secretary Napolitano explained that DHS and the DOJ together have initiated an interagency working group to (1) execute a case-by-case review of all individuals currently in removal proceedings to ensure that they constitute the highest priorities and (2) to ensure that new cases placed in removal proceedings also meet these priorities. In addition, the working group will issue guidance on how to provide for appropriate discretionary consideration to be given to compelling cases involving a final order of removal. Further, she stated, DHS will work to ensure that the resources saved as a result of the efficiencies generated through this process are dedicated to further enhancing the identification and removal of aliens who pose a threat to public safety.

In closing, Secretary Napolitano observed that this process will not provide categorical relief for any group and therefore will not obviate the need for passage of the DREAM Act or for more comprehensive immigration reform.

In response to this letter, Sen. Durbin issued a statement lauding the initiative and observing that:

"Under the new process, a Department of Homeland Security (DHS) and Department of Justice (DOJ) working group will develop specific criteria to identify low-priority removal cases that should be considered for prosecutorial discretion. These criteria will be based on “positive factors” from the Morton Memo, which include individuals present in the U.S. since childhood (like DREAM Act students), minors, the elderly, pregnant and nursing women, victims of serious crimes, veterans and members of the armed services, and individuals with serious disabilities or health problems. The working group will develop a process for reviewing cases pending before immigration and federal courts that meet these specific criteria."

On a regular basis, ICE attorneys will individually review every case scheduled for a hearing within the next 1-2 months to identify those cases that meet these specific criteria. These cases will be closed except in extraordinary circumstances, in which case the reviewing attorney must receive the approval of a supervisor to move forward. DHS will also begin reviewing all 300,000 pending cases to identify those that meet these specific criteria. These cases will be closed except in extraordinary circumstances, in which case the reviewing attorney must receive the approval of a supervisor to move forward. Individuals whose cases are closed will be able to apply for certain immigration benefits, including work authorization. All applications for benefits will be reviewed on a case-by-case basis.

Reaction from immigration advocates was mostly positive, though some expressed skepticism that U.S. Immigration and Customs Enforcement or U.S. Customs and Border Protection are capable of making this shift and urged additional administrative action, such as permitting spouses of U.S. citizens who are eligible for green cards and waivers of undocumented presence to apply for those waivers in the U.S. Others continue to urge more comprehensive reform.

Illinois Governor signed into law the Illinois DREAM Act

2011-08-04T15:46:00.003-05:00

On August 1, 2011, Illinois Governor Pat Quinn signed into law S.B. 2185, the Illinois DREAM Act, which among other things adds new 110 Ill. Comp. Stat. Ann. 947/67 to create a privately funded scholarship program for high-school graduates from immigrant families who wish to attend college:
Sec. 67. Illinois DREAM Fund Commission.

(a) The Illinois Student Assistance Commission shall establish an Illinois DREAM Fund Commission. The Governor shall appoint, with the advice and consent of the Senate, members to the Illinois DREAM Fund Commission, which shall be comprised of 9 members representing the geographic and ethnic diversity of this State, including students, college and university administrators and faculty, and other individuals committed to advancing the educational opportunities of the children of immigrants.

(b) The Illinois DREAM Fund Commission is charged with all of the following responsibilities:

(1) Administering this Section and raising funds for the Illinois DREAM Fund.

(2) Establishing a not-for-profit entity charged with raising funds for the administration of this Section, any educational or training programs the Commission is tasked with administering, and funding scholarships to students who are the children of immigrants to the United States.

(3) Publicizing the availability of scholarships from the Illinois DREAM Fund.

(4) Selecting the recipients of scholarships funded through the Illinois DREAM Fund.

(5) Researching issues pertaining to the availability of assistance with the costs of higher education for the children of immigrants and other issues regarding access for and the performance of the children of immigrants within higher education.

(6) Overseeing implementation of the other provisions of this amendatory Act of the 97th General Assembly.

(7) Establishing and administering training programs for high school counselors and counselors, admissions officers, and financial aid officers of public institutions of higher education. The training programs shall instruct participants on the educational opportunities available to college-bound students who are the children of immigrants, including, but not limited to, in-state tuition and scholarship programs. The Illinois DREAM Fund Commission may also establish a public awareness campaign regarding educational opportunities available to college bound students who are the children of immigrants. The Illinois DREAM Fund Commission shall establish, by rule, procedures for accepting and evaluating applications for scholarships from the children of immigrants and issuing scholarships to selected student applicants.

(c) To receive a scholarship under this Section, a student must meet all of the following qualifications:

(1) Have resided with his or her parents or guardian while attending a public or private high school in this State.

(2) Have graduated from a public or private high school or received the equivalent of a high school diploma in this State.

(3) Have attended school in this State for at least 3 years as of the date he or she graduated from high school or received the equivalent of a high school diploma.

(4) Have at least one parent who immigrated to the United States.

(d) The Illinois Student Assistance Commission shall establish an Illinois DREAM Fund to provide scholarships under this Section. The Illinois DREAM Fund shall be funded entirely from private contributions.

University of Illinois President Michael Hogan said, “The Illinois DREAM Act is a crucial step in the right direction, ensuring that worthy students are no longer denied the life-changing opportunity of college simply because their immigration status puts needed financial aid out of reach. I'm grateful to our legislators and Governor Quinn for supporting the shared vision that bright minds are our most precious resource and must be cultivated, not thwarted by outdated immigration laws.”

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)

2011-07-28T11:16:00.004-05:00

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

2011-07-28T10:51:00.000-05:00

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

2011-07-24T17:38:00.003-05:00

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.

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

2011-07-24T17:11:00.004-05:00

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

2011-07-24T17:00:00.002-05:00

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.

2011-07-24T16:54:00.002-05:00

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)

2011-07-24T16:49:00.000-05:00

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

2011-07-24T16:47:00.003-05:00

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

2011-07-24T16:45:00.000-05:00

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

2011-07-24T16:35:00.004-05:00

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

2011-07-24T16:30:00.000-05:00

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

2011-07-24T16:26:00.000-05:00

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

2011-07-24T14:48:00.000-05:00

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)

2011-07-22T21:09:00.002-05:00

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

2011-07-22T14:58:00.002-05:00

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)

2011-07-22T14:47:00.000-05:00

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.

ABRAHAM v. HOLDER, Seventh Circuit: Asylum/withholding of removal/lack of jurisdiction

2011-06-16T20:58:00.003-05:00

ABRAHAM v. HOLDER-No. 10–2256. -- June 1, 2011

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Petitioner, a native of Syria, entered the U.S. on a fiance visa, but did not marry within 90 days. More than a year after her visa expired, she conceded removability and sought asylum as a Christian, subject to persecution in a Muslim country. The immigration judge denied the petition as untimely and found that she did not establish a clear probability that she would be persecuted; the BIA dismissed an appeal. The Seventh Circuit dismissed for lack of jurisdiction. An alien must apply for asylum within one year of arrival unless the alien demonstrates to the satisfaction of the Attorney General either changed circumstances which materially affect eligibility for asylum or extraordinary circumstances relating to the delay in filing, 8 U.S.C. 1158(a); courts have no jurisdiction to review the Attorney General's determination. The denial of the petition to withhold removal was supported by substantial evidence.

"Almas Abraham petitions for review of a decision of the Board of Immigration Appeals (“BIA” or “Board”) denying her application for asylum and withholding of removal. Because we lack jurisdiction to review the Board's denial of her application for asylum in the circumstances presented here, we dismiss her petition with respect to asylum. We deny her petition with respect to her application for withholding of removal.

I.

Abraham is a native and citizen of Syria. She is also a Christian in a country where the vast majority of citizens are Muslims.2 Abraham entered the United States on May 17, 2004, at Chicago, with a K–1 nonimmigrant visa, which is also known as a “fiancé visa.” A fiancé visa permits a foreign citizen fiancé of a U.S. citizen to travel to the United States to marry his or her citizen sponsor within ninety days of arrival. See 8 U.S.C. 1101(a)(15)(K)(i). Abraham did not marry her citizen sponsor within ninety days. She also failed to depart from the United States at the end of the ninety-day period. After overstaying her visa for more than a year, she filed an application for asylum on November 5, 2005.3 Abraham was served with a Notice to Appear charging that she was removable from the United States because she had remained longer than was permitted. She conceded that she was removable, and her application for asylum and withholding of removal proceeded to a full hearing before an Immigration Judge (“IJ”).

Abraham's testimony before the IJ was riddled with inconsistencies. She testified, for example, that she lived with her parents until she moved to Damascus, but she also testified that she spent a month living with Al–Deri's family after her family forced her to move out and before she moved to Damascus. She said that she began her relationship with Al–Deri in 2002 and that it went on for six or seven months before ending in June 2003. She later testified that the relationship began in 2001 and ended in August 2002. She told the IJ that she moved to Damascus in 2003 and became engaged to Dawood in April 2003, a time line that overlaps with her testimony that she broke off her relationship with Al–Deri in June 2003. She testified that she knew Dawood for only one week before becoming engaged to him and traveling to the United States, but she came to the United States in 2004, approximately one year after she claimed the engagement occurred. She testified that she lived with Dawood's aunt and his first cousin's family in Damascus and that the aunt introduced her to Dawood. But she also said that she lived in a church building that served as a refuge for people from Iraq, and that Dawood's aunt was the only member of his family living in the church. She testified that, except for the letter from her uncle, she had no contact with any members of her family after moving to Damascus, but she also submitted to the IJ a photocopy of a permanent resident card for one of her brothers who was living in the United States. And after telling the IJ she had no contact with her family after leaving for Damascus, she also told the IJ that “of course” her parents knew she was coming to the United States in 2004 because she had to gather all of her documents and papers in order to file the forms to come to the United States. She testified alternately that her family first learned of her relationship with Al–Deri in 2002 and in 2003.

She testified consistently that after moving to Damascus, she suffered no more abuse from her family or Al–Deri. She conceded that she never reported any abuse from her family or from Al–Deri to the police because she did not want anyone to know what had happened and because the police do not help in these cases. The Human Rights Report confirms that the police are rarely contacted and are not helpful when a report of domestic violence is lodged.5

When asked what would happen if she returned to Syria, Abraham testified, “Either they would shun me and because I wouldn't have any life to live there, I probably might kill myself.” R. at 129. She also testified that she feared harm from her family if she returned to Syria. Abraham also presented testimony from a cousin residing in the United States to corroborate her concern that her family might harm her if she returned to Syria. Her cousin testified that he believed Abraham would be the victim of an honor killing if she returned to Syria. He noted that he had a friend who served only three days in jail for killing his sister after she dishonored the family. The Human Rights Report also confirms that, until very recently, judges were allowed to waive or reduce punishment for perpetrators of honor killings. The law now stipulates a mandatory two-year minimum sentence for anyone convicted in an honor killing, but at the time Abraham left, a family member who killed her was unlikely to face significant legal sanctions. See Human Rights Report.

The IJ found that Abraham's asylum application was not timely filed and that she did not meet any of the exceptions for extending the time to file. The IJ concluded that Abraham did not meet the standards to qualify for withholding of removal or for relief under the Convention Against Torture, and therefore denied her application in its entirety. The IJ first noted that Abraham had failed to file her application for asylum within one year of arriving in the United States. Under 8 U.S.C. § 1158(a)(2)(B), a claim for asylum not filed within a year of arrival in the United States will be denied unless it meets one of the exceptions contained in the statute. The IJ rejected Abraham's argument that the letter from her uncle satisfied the only applicable exception for changed circumstances. See 8 U.S.C. § 1158(a)(2)(D) (permitting consideration of a late-filed application for asylum “if the alien demonstrates to the satisfaction of the Attorney General either the existence of changed circumstances which materially affect the applicant's eligibility for asylum or extraordinary circumstances relating to the delay in filing an application within the [one-year] period”). The IJ found that the letter did not meet the materiality requirement of the statute because the letter only repeated a threat to Abraham's safety that existed when she left Syria. Because those same circumstances existed when Abraham first arrived in the United States, the IJ found that she should be held to the one-year limit for filing claims for asylum. The IJ also noted that Abraham provided no information regarding the timing of her breakup with Dawood and thus it was impossible to determine whether she filed within a reasonable time after her nonimmigrant status expired. The IJ therefore denied the application for asylum as untimely.

The IJ then considered whether Abraham was eligible to be considered for withholding of removal. In order to qualify for withholding of removal, an applicant must demonstrate a clear probability that she will suffer persecution on account of race, religion, nationality, membership in a particular social group, or political opinion if she returns to her country of origin. See 8 U.S.C. § 1231(b)(3)(A). The IJ found that Abraham failed to demonstrate a “clear probability” that she would be persecuted on her return to Syria because her testimony was not credible, not persuasive, and not detailed enough to meet the standard of proof required. The IJ noted the multiple inconsistencies in Abraham's testimony and found that, absent corroboration, Abraham had not shown that it was more likely than not that she would be persecuted. The IJ also found that Abraham had failed to establish that she had been persecuted in the past on account of one of the protected grounds in the statute. Again finding that Abraham's testimony was not credible, the IJ also noted that the incidents of abuse she described were not severe, caused no injuries and required no medical treatment. Moreover, the IJ found that Abraham's stated intent to return to Syria even though these incidents occurred undermined her claim that she had been persecuted in Syria. The IJ also noted that Abraham was able to live in Damascus for some period of time without any further abuse from either her family or Al–Deri. The IJ therefore concluded that Abraham would not be seriously harmed if she returned to Syria. Finally, the IJ concluded that Abraham had also failed to establish that any abuse she suffered was due to one of the protected grounds in the statute.

Abraham appealed to the BIA. The BIA first agreed with the IJ that Abraham's claim for asylum was statutorily barred because it was untimely. The BIA then considered Abraham's claim for withholding of removal and concluded that she failed to present sufficient corroborating evidence of critical elements of her claim. After noting that Abraham could have obtained corroboration from her brother living in the United States, the people with whom she lived in Damascus, her uncle, or anyone else who knew her in Syria, the BIA adopted and affirmed the IJ's denial of relief. Abraham's appeal was therefore dismissed.

II.

On appeal here, Abraham argues that the IJ and the BIA applied an incorrect legal standard to her application for asylum. She also asserts that the BIA's decision is not supported by substantial evidence. Finally, she contends that we should reverse the decision denying her withholding of removal because the IJ and BIA ignored corroborating evidence that she provided and failed to forewarn her that they required additional corroborating evidence.

A.

Section 1158(a)(2) provides that an alien must apply for asylum within one year of the date of the alien's arrival in the United States unless “the alien demonstrates to the satisfaction of the Attorney General either the existence of changed circumstances which materially affect the applicant's eligibility for asylum or extraordinary circumstances relating to the delay in filing an application within the period specified[.]” 8 U.S.C. § 1158(a)(2)(B) and (D). Section 1158 also provides that “[n]o court shall have jurisdiction to review any determination of the Attorney General under paragraph (2).” 8 U.S.C. § 1158(a)(3). Therefore, in general, we lack jurisdiction to review the Attorney General's rejection of an untimely request for asylum. Restrepo v. Holder, 610 F.3d 962, 964 (7th Cir.2010). Notwithstanding that limitation on our jurisdiction, we retain authority to review constitutional claims and questions of law. 8 U.S.C. § 1252(a)(2)(D).

In order to get around the limit on our jurisdiction, Abraham attempts to characterize her claim as one involving a question of law. A review of her brief, however, reveals that she simply disagrees with the IJ's conclusions regarding the facts of the case. In particular, she contests the IJ's conclusion that she did not present evidence of a “material” change in circumstances. The IJ's conclusion that Abraham lacked sufficient credible evidence to meet the materiality standard is not a question of law. Restrepo, 610 F.3d at 964–65 (noting that our circuit limits § 1252(a)(2)(D) to strictly legal controversies, and so we are not authorized to review applications of law to facts); Khan v. Filip, 554 F.3d 681, 687–89 (7th Cir.2009), cert. denied, 130 S.Ct. 1049 (2010) (concluding that our review under § 1252(a)(2)(D) is limited to “pure” questions of law); Vasile v. Gonzales, 417 F.3d 766, 768–69 (7th Cir.2005) (holding that the agency's determination that an alien failed to file his asylum claim within one year and failed to qualify for an extension of time was an unreviewable question of fact and exercise of discretion). We therefore lack jurisdiction to consider Abraham's petition as it relates to her claim for asylum and dismiss that part of her petition.

B.

We turn next to Abraham's petition for review of the decision of the IJ and the BIA to deny her application for withholding of removal. Where the BIA's order adopts and supplements the IJ's decision, we review both. Surganova v. Holder, 612 F.3d 901, 904 (7th Cir.2010); Milanouic v. Holder, 591 F.3d 566, 570 (7th Cir.2010); Krishnapillai v. Holder, 563 F.3d 606, 615 (7th Cir.2009); Khan, 554 F.3d at 690. We examine the IJ's factual findings deferentially and uphold them so long as they are supported by substantial evidence. Krishnapillai, 563 F.3d at 615; Khan, 554 F.3d at 690; Balogun v. Ashcroft, 374 F.3d 492, 498 (7th Cir.2004). Under the substantial evidence test, we must uphold the IJ's findings if they are supported by reasonable, substantial, and probative evidence on the record considered as a whole. Balogun, 374 F.3d at 498. We may reverse the IJ's determinations only if the evidence compels a different result. Balogun, 374 F.3d at 498.

Credibility determinations are questions of fact subject to this standard of review. Balogun, 374 F.3d at 498. See also Krishnapillai, 563 F.3d at 617 (holding that only in extraordinary circumstances will this court overturn an IJ's credibility assessment). The Immigration and Nationality Act (“INA”), as amended by the REAL ID Act of 2005, sets forth the parameters for the Immigration Judge's credibility determinations:

Considering the totality of the circumstances, and all relevant factors, a trier of fact may base a credibility determination on the demeanor, candor, or responsiveness of the applicant or witness, the inherent plausibility of the applicant's or witness's account, the consistency between the applicant's or witness's written and oral statements (whenever made and whether or not under oath, and considering the circumstances under which the statements were made), the internal consistency of each such statement, the consistency of such statements with other evidence of record (including the reports of the Department of State on country conditions), and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant's claim, or any other relevant factor․

8 U.S.C. § 1158(b)(1)(B)(iii). The REAL ID Act also modified the INA to allow immigration judges substantial discretion “to demand corroboration of an asylum applicant's allegations whether or not the judge finds the applicant credible.” Krishnapillai, 563 F.3d at 618. “Only if such evidence is beyond the reasonable ability of the immigrant to obtain is the judge precluded from demanding corroboration.” Krishnapillai, 563 F.3d at 618; 8 U.S .C. § 1252(b)(4); Eke v. Mukasey, 512 F.3d 372, 381 (7th Cir.2008).

In this case, the IJ expressly found that Abraham's testimony was not credible. That finding was well-supported by the numerous internal inconsistencies in her testimony. As we noted above, she testified inconsistently on a number of issues including: (1) her living situation after Al–Deri told her family about the relationship; (2) the time line for her relationship with Al–Deri, her move to Damascus, and her engagement to Dawood; (3) whether she had any contact with her family after moving to Damascus; and (4) whether her relationship with Al–Deri was consensual or forced upon her. We will not disturb the IJ's credibility finding because it is supported by substantial evidence.

Nor is there any reason to overturn the decision of the IJ or the BIA requiring that Abraham produce corroboration of her claims. We cannot say that it would have been unreasonable in these circumstances to require corroboration because Abraham had contacts in Damascus who could verify her story, and also appears to have been in contact with her uncle and with a brother in the United States. Abraham complains that if the IJ wished for her to produce corroborative evidence, she should have been given notice of this requirement. But the REAL ID Act:

clearly states that corroborative evidence may be required, placing immigrants on notice of the consequences for failing to provide corroborative evidence. See 8 U.S.C. § 1158(b)(1)(B)(ii) (“Where the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence.”). To hold that a petitioner must receive additional notice from the IJ and then an additional opportunity to provide corroborative evidence before an adverse ruling, would necessitate two hearings—the first to decide whether such corroborating evidence is required and then another hearing after a recess to allow the alien more time to collect such evidence. This would add to the already overburdened resources of the DHS, and such an approach would seem imprudent where the law clearly notifies aliens of the importance of corroborative evidence.

Raphael v. Mukasey, 533 F.3d 521, 530 (7th Cir.2008). There is therefore no need for additional notice. Abraham notes that the IJ and BIA did not address the testimony given by her cousin that she would be the victim of an honor killing on her return to Syria. That testimony did corroborate that honor killings occur in Syria and that punishment for the killers is virtually nonexistent. The cousin also stated his opinion that Abraham would be the victim of an honor killing if she returned to Syria. Although the IJ and BIA did not expressly mention this testimony, the IJ did not dispute that honor killings occurred in Syria and agreed that they are a “terrible problem” there. Oral Decision of the IJ (August 7, 2008), at 13. But the IJ found that, in light of all of the evidence, and because Abraham's family and former boyfriend did not disturb her after she moved to Damascus, it was unlikely that they would harm her if she returned to Syria. Having reviewed the short and conclusory testimony of Abraham's cousin, we conclude that no further analysis by the IJ or the BIA was necessary. It is clear from the record and from the IJ's decision that the IJ understood all of the evidence presented and still found Abraham's proof lacking. See Kiorkis v. Holder, 634 F.3d 924, 928–29 (7th Cir.2011) (recognizing that it is impossible for immigration courts to write an exegesis on every contention an applicant raises).

In short, the IJ found that Abraham did not produce sufficient credible evidence that she had suffered past persecution or would suffer persecution on her return to Syria. The IJ and BIA concluded that Abraham also failed to provide corroborating evidence of her claim in circumstances where it was not unreasonable to require her to produce corroboration. Because the decisions of the IJ and BIA are supported by substantial evidence, Abraham's petition regarding withholding of removal is denied.

Dismissed in Part and Denied in Part."

FOOTNOTES

2.  Seventy-four percent of Syrians are Sunni Muslims. Christians comprise approximately 10% of the Syrian population. See United States Department of State, Background Note: Syria, http:// www.state.gov/r/pa/ei/bgn/3580.htm (last visited May 10, 2011) (hereafter “State Dept. Report”).

3.  An application for asylum is automatically considered a request for withholding of removal. See 8 C.F.R. § 208.3(b) (“An asylum application shall be deemed to constitute at the same time an application for withholding of removal, unless adjudicated in deportation or exclusion proceedings commenced prior to April 1, 1997.”).

4.  Like much of Abraham's testimony, her account of her relationship with Al–Deri contains a number of seeming inconsistencies. She twice described the relationship as a “dating relationship,” but also said it was “forced” and “not voluntary.” R. at 125, 132–33. At one point, she testified, “It was like he fall [sic] in love with me and he wanted me and I couldn't do anything about it.” R. at 124. She also said that Al–Deri blamed her for starting the relationship and that for a time, she also blamed herself. R. at 132–33.

5.  According to the Human Rights Report, “The law does not specifically prohibit domestic violence, and violence against women occurred during the year. A 2006 study reported that as many as one in four women surveyed had been victims of domestic violence. The majority of domestic violence and sexual assault cases went unreported; victims have traditionally been reluctant to seek assistance outside the family for fear of social stigmatization. Observers reported that when some abused women tried to file a police report, the police did not respond to their claims aggressively, if at all. Women reported incidents at police stations of sexual harassment, verbal abuse, hair pulling, and slapping by police officers when attempting to file police reports, particularly at the criminal security branch at Bab Musallah in Damascus. Victims of domestic violence have the legal right to seek redress in court, but few did so because of the social stigma attached to such action.”