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Category: Other Deportability / Inadmissibility

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In Matter of Alcibiades Antonio Pena, the Board of Immigration Appeals held that a permanent resident returning to the United States may not be charged with being an inadmissible arriving alien unless one of the exceptions at INA 101(a)(13)(C) apply--even if the government alleges the permanent resident was not eligible for his status at the time he received it.

Customs and Border Protection treated Alcibiades Antonio Pena, a foreign national admitted to lawful permanent resident status, as an arriving alien and charged him with inadmissibility for misrepresentation, false claim of U.S. citizenship, and no valid admission document. It charged him with these grounds based on an investigation by the U.S. Department of State that occurred prior to his receipt of permanent resident status (and that was known by USCIS when it granted him permanent resident status). Essentially, CBP alleged that Mr. Pena was inadmissible because he was not eligible to obtain permanent resident status--it disagreed with USCIS's decision to grant the application. (Unfortunately, CBP far too often attempts to interpret the documents in a resident's A-file to see if USCIS made a mistake. It can be hard to defend against these post hoc reviews if USCIS does not fully document the basis for the decision in the A-file.)

The Board held that charging Mr. Pena with inadmissibility was not proper. A foreign national may be charged with a ground of inadmissibility only if one of the 101(a)(13)(C) exceptions apply, which include permanent residents who: have abandoned or relinquished that status, been absent from the U.S. for a continuous period of more than 180 days, engaged in illegal activity after departing the U.S., departed while under removal or extradition proceedings, committed an inadmissible criminal offense, or who is attempting to enter (or has entered) without inspection and admission. None of these exceptions apply to Mr. Pena's scenario. Therefore, the government instead should have admitted him to the U.S. It could, however, then charge him with deportability for not being admissible at the time of admission to lawful permanent resident status.

Note that the difference between a charge of inadmissibility and a charge of deportability is important, since an arriving alien charged with inadmissibility is not eligible to obtain an immigration judge's review of a bond decision. A permanent resident treated as an arriving alien also is not eligible to apply for readjustment of status before the immigration judge, and instead would have to make that application to USCIS without the benefit of appellate review. There also is the open question, so far as the Board is concerned, as to which party bears the burden of proof if the returning resident is (properly) charged with inadmissibility. Must the government prove inadmissibility or must the returning resident prove he is not inadmissible? On the other hand, for a charge of deportability (as the Board held applies to Mr. Pena) the government always bears the burden of proof. The determination of who carries the burden of proof often determines who will win the case, so Pena is a very important decision.

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The Board issued its first published decision giving meaning to section 237(a)(4)(A)(ii) of the INA, the removal ground for engaging in “criminal activity which endangers public safety or national security.”

The respondent was convicted under 18 USC § 32(a)(5), the federal statute penalizing interference with the operation of an aircraft with either the intent to endanger the safety of any person or a reckless disregard for the safety of human life. He obtained the conviction after intentionally pointing a laser at the pilot of a Philadelphia Police Department helicopter, causing the pilot momentarily to lose control of the helicopter as it flew over the city.

In assessing whether this crime made the respondent removable, the Board first noted that § 237(a)(4)(A)(ii) requires “criminal activity” but not a conviction. On that basis, the Board held that the categorical approach does not apply to § 237(a)(4)(A)(ii). It relegated this controversial holding to a footnote with only a general citation to the Supreme Court's decision in Nijhawan.

From there, the Board concluded that the phrase “endangers the public safety” must be narrowly construed and does not include typical “single-victim crimes,” regardless of their seriousness. Rather, the phrase is limited to actions that place a large segment of the general population at risk. Having sidestepped the categorical approach, the Board held that the “totality of the circumstances,” including the extent and character of the potential harm and the facts of the underlying activity, could be considered. Because the respondent’s underlying activity endangered public safety by creating the risk of a helicopter crash over a major city, the Board found him removable.

Finally, although DHS also charged the respondent with removability for an aggravated felony crime of violence, the Board held that his crime was not an aggravated felony because it did not involve physical force or a substantial risk that such force would be used against the person or property of another.

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This case supplies a definition for the phrase “crime of stalking” under INA § 237(a)(2)(E)(i). Although the phrase is not defined by the Act, the Board held that it should be given its “ordinary, contemporary, and common meaning,” which is: (1) conduct that was engaged in on more than a single occasion, (2) which was directed at a specific individual, (3) with intent to cause that individual or a member of his or her immediate family to be placed in fear of bodily injury or death. (The Board left open the question whether, to qualify as a crime of stalking, there must also be a fourth requirement that the conduct actually caused the victim to be placed in fear of bodily injury or death.)

Applying this definition, the Board held that California Penal Code § 646.9 is a crime of stalking under § 237(a)(2)(E)(i) because it requires proof that the defendant “willfully, maliciously, and repeatedly follow[ed] or willfully and maliciously harasse[d] another person and . . . ma[de] a credible threat with the intent to place that person in reasonable fear for his or her own safety, or the safety of his or her immediate family,” thereby satisfying all three elements of the generic crime.

Notably, the Board commented in a footnote that at least one California Court of Appeal decision holds that the term “safety” in Penal Code § 646.9 includes “endangerment or hazard” in addition to physical safety. This leaves open potential arguments that the statute is not a categorical match with INA § 237(a)(2)(E)(i). Nevertheless, the Board noted that in this particular case the respondent had not argued, nor was there any evidence, that the fear experienced by his victim was anything other than a fear of physical safety.

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In this opinion, the Ninth Circuit explains the evidentiary standard for inadmissibility under INA § 212(a)(2)(C) for being an alien who the consular officer or the Attorney General knows or has reason to believe . . . is or has been an illicit trafficker in any controlled substance or in any listed chemical (as defined in section 802 of Title 21), or is or has been a knowing aider, abettor, assister, conspirator, or colluder with others in the same. The question is who must have the necessary “reason to believe” and at what time.

The court held that the reason to believe must be collectively known by the officials adjudicating the question of admissibility. At the time of entry, that would be the CBP inspector and any other appropriate officials within one of the DHS agencies. If the inspector does not admit the noncitizen and instead puts him or her into removal proceedings for inadmissibility, then the immigration judge (or BIA, once on appeal) is the official that must have reason to believe. In the latter situation, the IJ and BIA are not limited to the facts known at the time the noncitizen's inspection at the port of entry. Later obtained evidence, the respondent's testimony, and even expert testimony may be considered. The court then will review the decision of the IJ and the BIA for substantial evidence.

The court also found that, although the credibility of the noncitizen was important, it did not need to deem the testimony credible in the absence of an explicit adverse credibility finding.

Read the decision at http://www.ca9.uscourts.gov/datastore/opinions/2011/07/14/06-70635.pdf

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