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Category: BIA

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The Board held that the Nevada offense of attempted violation of NRS 205.273 (possession of a stolen vehicle) was not a categorical aggravated felony theft offense under the law of the Ninth Circuit. NRS 205.273 may be satisfied by possessing, receiving, or transferring a stolen vehicle with either knowledge that it was stolen or reason to believe that it was stolen. However, the generic definition of an aggravated felony theft offense, according to the Ninth Circuit's en banc decision in U.S. v. Corona-Sanchez, requires "the criminal intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less than total or permanent.” The Board appropriately recognized that a conviction does not require that intent if it is based on what a reasonable person should have known, rather than what the defendant actually knew. Therefore, a conviction under NRS 205.273 does not categorically meet the theft definition.

The Board declined to decide whether NRS 205.273 is divisible into two separately enumerated crimes, possession with knowledge and possession with reason to believe. Since both alternatives are listed in the statute, it would seem to be divisible and thus susceptible to the modified categorical approach. I do not know much about Nevada law, though, so perhaps there is an argument against divisibility. It did not matter in this case because the record did not indicate whether the conviction was for knowledge or reason to believe.

The Board also explicitly reserved the question of whether receipt of stolen property with reason to believe it was stolen would meet the generic definition of a theft offense absent controlling circuit precedent. It noted that many jurisdictions, although not most, included receipt with reason to believe in theft statutes at the time Congress enacted the theft aggravated felony definition.

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The Board held that a permanent resident who adjusted to that status from asylee status pursuant to section 209(b) of the INA cannot readjust on that basis as relief from removal. It noted the explicit prohibition on readjustment for residents who adjusted from refugee status and reasoned there was no reason to treat residents who adjusted from asylee status differently, despite the silence of the statute regarding asylees. On the contrary, I would have thought Congress' omission of an explicit prohibition on readjustment for asylees would carry some significance--particularly since the procedures for refugees and asylees were created by the same legislation.

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The Board held that an adjustment of status by a respondent who entered the U.S. without inspection was an "admission" and the respondent therefore was deportable for conviction of an aggravated felony "after admission." It disagreed with and distinguished the precedent on 212(h) eligibility, where circuit courts have held an aggravated felony does not disqualify a permanent resident unless he or she was admitted to the U.S. as a permanent resident (not where he or she adjusted to permanent resident status). The Board found it would be absurd to interpret the statute to entirely exempt immigrants who adjusted status from the grounds of deportability, which only apply to persons in and admitted to the U.S.

The Board further found that a sentence enhancement specified in the Manual for Courts-Martial that must be pleaded and proved beyond a reasonable doubt is an "element" that may be examined under the categorical analysis for immigration purposes.

In this case, the Board held a sodomy sentence enhancement for sodomy committed "by force and without the consent of the other person" categorically satisfies the crime of violence aggravated felony definition (if the sentence is to one year or more). It found the conviction satisfied both subsection (a) and subsection (b) of 18 U.S.C. 16. It found it satisfied subsection (a) because it held the conviction had as an element the use, attempted use, or threatened use of physical force against the person or property of another. It also found the offense satisfied subsection (b) because sodomy by force, which requires physical force and lack of the victim’s consent for a conviction, by its nature involves a substantial risk that the perpetrator will resort to intentional physical force in the course of committing the crime.

Interestingly, in a portion of the decision not digested by the Board at the beginning of the case, the Board rejected without much analysis the respondent's argument that he did not receive a sentence to one year or more for any single one of his three sodomy convictions. Apparently, he received a sentence to 18 months on the three counts and it was not clear whether this was a single concurrent sentence (i.e., 18 months on each conviction with the period of imprisonment to run at the same time) or three consecutive sentences (say, three sentences to 6 months each). The Board characterized the sentence as a "general sentence" and cited a 66 year-old Board opinion to find it satisfied the crime of violence aggravated felony definition's requirement of a sentence to one year or more. Due to the paucity of the Board's analysis, though, it is hard to know whether the respondent's argument had any merit. This is unfortunate in a published decision.

Finally, the Board rejected respondent's claim to eligibility for a "stand alone" 212(h) waiver. It held 212(h) is not available unless the applicant is an arriving alien seeking to waive a charge of inadmissibility or an applicant to adjust (or readjust) status to permanent residence. See Matter of Rivas, 26 I&N Dec. 130,
132, 134 (BIA 2013).

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The Board of Immigration Appeals finally has declared surrender on the issue of 212(c) relief after decades of litigation. With its decision in this case, it has adopted the position urged by the amicus curiae brief of the American Immigration Lawyers Association to return to its position in Matter of Hernandez-Casillas, 20 I&N Dec. 262 (BIA 1990), before the Attorney General overruled it.

The Board held 212(c) is available to waive all grounds of deportability except those comparable to the grounds of excludability (inadmissibility) excluded from 212(c) by its text (relating to terrorists, saboteurs, and war criminals). 212(c) thus is available to waive even convictions that would not make an immigrant inadmissible for a crime involving moral turpitude or controlled substance offense. It found this was the only option offered by the parties and amici that would fulfill the Supreme Court's mandate in Judulang to avoid mechanical distinctions in 212(c) eligibility criteria that do not rationally relate to an immigrant's fitness to remain in the U.S.

The Board further held that proof of reliance on the possibility of 212(c) relief was not necessary to establish eligibility and that 212(c) was available to immigrants convicted after trial, not just pursuant to a plea. This was not necessary to resolve Abdelghany's case, but the Board nonetheless seems to have wanted to settle all of the 212(c) issues once and for all. Moreover, the conclusion was all but compelled by the Supreme Court's retroactivity holding on the continued vitality of the Fleuti exception in Vartelas.

Likewise, the Board held that 212(c) eligibility also does not hinge on whether the conviction actually made the immigrant deportable at the time of the conviction. Again, the focus is on whether a new law imposes a disability on a past action, not on whether there was reliance--as Vartelas teaches. The Board buttressed that conclusion by quoting the double bulwark language of United States v. Leon-Paz, 340 F.3d 1003, 1006−07 (9th Cir. 2003). The Ninth Circuit held Leon-Paz “had two bulwarks to protect himself against attacks on his residence in this country.” "The first was the fact that he had pled to a crime that was below the aggravated felony threshold, and the second was § 212(c) itself in case the definition of aggravated felony changed as it often had and has.”

Nonetheless, some limitations on 212(c) relief remain related to the statutory history. An immigrant is not eligible if: (1) the applicant’s removal or deportation proceedings commenced on or after April 24, 1996, and the conviction renders the applicant removable or deportable under one or more of the deportability grounds enumerated in section 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, 1277 (as amended); or (2) the applicant is subject to the grounds of inadmissibility under sections 212(a)(3)(A), (B), (C), or (E), or (10)(C) of the Act; or (3) the applicant has served an aggregate term of imprisonment of at least 5 years as a result of one or more aggravated felony convictions entered between November 29, 1990, and April 24, 1996.

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The Board held that a conviction for unlawful possession of ammunition by a felon in violation of 18 U.S.C. § 922(g)(1) was categorically an aggravated felony. The Immigration and Nationality Act makes a conviction under “section 922(g)(1)... of title 18, United States Code (relating to firearms offenses)” an aggravated felony. The respondent had argued the parenthetical "relating to firearms offenses" limited the definition to firearms and thus excluded ammunition offenses. The Board rejected that argument. It noted that parentheticals have often been found to be merely descriptive and that the language of this particular parenthetical does not indicate Congress intended it to have a limiting effect.

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The Board of Immigration Appeals held that a conviction for 18 U.S.C. § 1001(a)(2) (2002), making a materially false, fictitious, or fraudulent statement or representation to a government official (here to obtain a U.S. passport) is a crime involving moral turpitude (CIMT). It distinguished earlier decisions that found this was not necessarily the case because the earlier version of the statute did not always require materiality. The current version does. The Board therefore upheld the finding that the noncitizen was ineligible for cancellation of removal under section 240A(b) of the Immigration and Nationality Act (INA) due to having a felony CIMT.

The Board also reaffirmed that entry on a false claim to U.S. citizenship is not an inspection and admission for purposes of the INA and denied voluntary departure in the exercise of discretion.

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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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The Board held that the offense of traveling in interstate commerce with the intent to distribute the proceeds of a drug enterprise in violation of 18 U.S.C. § 1952(a)(1)(A) was not a drug trafficking aggravated felony under 101(a)(43)(B) of the Immigration and Nationality Act (INA).

The Board held that the offense did not meet either test for that definition. First, it is not a drug trafficking crime as defined by 18 U.S.C. § 924(c) because that subsection is limited to conduct 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 chapter 705 of title 46,” which does not include distribution of proceeds under 18 U.S.C. § 1952(a)(1)(A). Second, it is not a generic offense of "illicit trafficking" in a substance listed under the federal Controlled Substances Act because the offense does not involve trading or dealing. See Matter of Davis, 20 I&N Dec. 536 (BIA 1992).

Section 1952(a)(1)(A) thus is potentially a good plea for an immigrant facing serious federal drug charges because it avoids an aggravated felony. However, the immigrant would remain inadmissible and deportable for conviction of an offense involving a controlled substance.

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The Board first held that an immigration judge must first determine whether to terminate an asylee's asylum status before adjudicating charges of inadmissibility or deportability. The Board remanded because the immigration judge did not do that here. Before remanding, however, the Board addressed whether he was properly charged with inadmissibility and issues regarding V-X-'s guilty plea to charges that he delivered marijuana, conspired to deliver marijuana, and knowingly kept a vehicle for the purpose of keeping or selling controlled substances in violation of sections 333.7401(2)(d)(iii), 750.157a, and 333.7405(1)(d) of the Michigan Compiled Laws, respectively.

The Board rejected V-X-'s argument that as a person granted asylum he is not subject to charges of inadmissibility under section 212 of the Immigration and Nationality Act (INA), but rather must be charged with deportability under section 237. He had entered the U.S. on parole and obtained asylum in the U.S. The Board held that neither parole nor grant of asylum amount to an admission to the United States, which it has held is limited to inspection and admission at a port of entry or adjustment to permanent resident status. Since he was not "admitted to" the U.S., the Board held the grounds of inadmissibility applied.

The Board next rejected V-X-'s argument that being designated a "youthful trainee" under section 762.11 of the Michigan Compiled Laws was not a conviction and thus did not make him inadmissible for conviction of a crime involving moral turpitude or a controlled substance offense. It held the youthful trainee designation did not correspond to a civil determination of juvenile delinquency under the Federal Juvenile Delinquency Act (FJDA), so the guilty plea amounted to a conviction under the INA. Unfortunately for a published decision like this one, though, the Board did not explain why the youthful trainee designation did not correspond to the FJDA. It just cited Uritsky v. Gonzales, 399 F.3d 728, 734–35 (6th Cir. 2005). The explanation would not have taken to long; it is simply this: a youthful trainee has a conviction until it is vacated after a period of good behavior and rehabilitation, while a juvenile delinquent under the FJDA never has a criminal conviction because it is a civil status finding.

The Board also noted the potential applicability of the recent Supreme Court decision in Moncrieffe to the immigration judge's finding that V-X- was ineligible for asylum or withholding of removal for conviction of an aggravated felony and particularly serious crime. Specifically, V-X-'s conviction would not be an aggravated felony if the statutes he was convicted of violating potentially could involve gratuitous distribution of a small amount of marijuana.

Interestingly, the Board also noted that Moncrieffe should be considered in assessing whether V-X- would be eligible for adjustment of status as an asylee under INA section 209(b) with a section 209(c) waiver of inadmissibility. An asylee is not eligible to adjust if he is inadmissible under section 212(a)(2)(C) for reason to believe he has been involved in drug trafficking, which does not require a conviction. Thus, the Board is indicating that gratuitous distribution of a small amount of marijuana may not trigger 212(a)(2)(C) inadmissibility.

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The Board of Immigration Appeals held that a stand-alone 212(h) waiver is not available to a lawful permanent resident unless he is an applicant for admission or files a concurrent application to adjust status. It rejected the immigration judge's decision to grant 212(h) nunc pro tunc to the date of a prior admission to the United States.

Rivas was admitted to permanent resident status in 1998 and then received two separate petty theft convictions in 2001. He traveled abroad on several occasions and was readmitted to the U.S. each time despite his inadmissibility for having two convictions for crimes involving moral turpitude. He later was put in removal proceedings as a deportable alien for having two convictions for crimes involving moral turpitude. He applied for 212(h) as discretionary relief from removal and the immigration judge granted it. DHS appealed and the Board sustained the appeal.

Rivas pointed out DHS should have put him in removal proceedings when he previously applied for admission to the U.S. after travel abroad--at which point he undisputably would meet the eligibility criteria. To now hold that he is ineligible for that form of relief (since he apparently did not have a basis to readjust) based on the fortuitous circumstance that DHS was negligent in allowing him back into the U.S. makes no sense. So, the appropriate remedy, as indicated by an earlier Board decision in Matter of Sanchez, 17 I&N Dec. 218 (BIA 1980), is to back-date the grant of the waiver to the date of his earlier erroneous admission.

The Board disagreed, finding that the statute requires the immigrant be an applicant for admission or an applicant for adjustment and that nunc pro tunc relief would impermissibly sidestep that requirement. It said it has to abide by this statutory language to give effect to the clear intent of Congress. The Board described nunc pro tunc relief as a means only to fill a gap in the statutory criteria.

The Board's rationale, however, fails to recognize that the clear intent of Congress is for DHS to put inadmissible immigrants in removal proceedings when they seek admission from abroad. If DHS had done that, Rivas would be eligible for 212(h). Allowing nunc pro tunc relief fills the unanticipated gap of what to do if DHS fails to do its job. Further, permitting a nunc pro tunc 212(h) waiver does not sidestep the statutory language because Rivas was at one point an inadmissible applicant for admission. This is not the case of someone who did not depart the U.S. after becoming deportable.

Of course, the Board's unstated motivation for this decision was likely to avoid setting up an equal protection argument like the one that resulted in Francis extending 212(c) to immigrants who never departed the U.S. The rationale for that decision was that it was unfair to treat immigrants who have departed the U.S. more favorably than immigrants who have not. By holding that neither group is eligible for 212(h) unless they are put in proceedings at the border or apply for adjustment, perhaps the Board hoped to prevent a court decision finding a denial of equal protection. If so, I think it failed. Treating immigrants differently based on the fortuitous circumstance of whether an immigration inspector properly put them in proceedings upon their last arrival to the U.S. or not is just as unfair.

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