Skip to content

Category: BIA

Published on

Definitively answering a long-standing question, the Board held the government bears the burden of proving that a permanent resident returning to the U.S. after travel abroad should be treated as an "applicant for admission." Permanent residents generally are not considered applicants for admission unless one of the exceptions at INA 101(a)(13)(C) applies. If an exception applies, then the permanent resident is subject to additional stricter grounds for removal than would otherwise apply. For example, a single conviction for a crime involving moral turpitude might not make a permanent resident removable unless he is considered an applicant for admission.

The allocation of the burden of proof can be determinative because whether a crime involves moral turpitude often is not clear from the record of conviction. If the noncitizen bore the burden of proof, an inconclusive record of conviction might make him removable. By placing the burden on the government, of clear and convincing evidence no less, Rivens protects permanent residents from loss of their status and removal based on inconclusive evidence.

In a second holding, the Board found that the crime of being an accessory after the fact, 18 U.S.C. § 3, is a crime involving moral turpitude only if the underlying offense involved moral turpitude. The Board found that helping someone after he commits a crime is turpitudinous (base, vile, or depraved) if the crime committed was turpitudinous. This contrasts with the Ninth Circuit's decision in Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir. 2007) (en banc), overruled on other grounds by United States v. Aguila-Montes de Oca, No. 05-50170, 2011 WL 3506442 (9th Cir. Aug. 11, 2011), although the Board suggested otherwise.

The Board's holding does not stand to reason, though, since an accessory after the fact does not participate in the underlying crime. Rather, being an accessory after the fact is a completely separate crime that should not depend on the nature of the underlying offense.

For example, being an accessory after the fact would include giving your son $100 when you know he is on the run from the police. Does giving your son the money become more or less turpitudinous depending on whether the police are after him for grand theft (a crime of moral turpitude) or possessing an unregistered firearm (not a crime of moral turpitude)? No, in either case the mother is not helping her son commit the crime; she is helping him to avoid standing trial for it. This is a crime and bad parenting, but not vile or depraved.

Read the opinion at http://www.justice.gov/eoir/vll/intdec/vol25/3731.pdf

Published on

The Board of Immigration Appeals determined that a New York attempted arson offense was an aggravated felony under INA 101(a)(43)(E) as an offense described in 18 U.S.C. § 844(i). It found the New York statute's lack of the federal jurisdictional element of interstate commerce was not significant.

The Board reached this conclusion because the aggravated felony definition has a clause that provides, “the crimes specified are aggravated felonies regardless of whether they fall within the jurisdiction of the federal government, a state, or, in certain cases, a foreign country.” Since virtually all state (and foreign) crimes lack a federal jurisdictional element, a contrary conclusion would render this clause meaningless.

The Board also noted a provision for the early removal of nonviolent offenders that included an exception for offenders in state custody for this particular aggravated felony, which likewise would be superfluous if section 101(a)(43)(E) did not cover state offenses.

Read the opinion at http://www.justice.gov/eoir/vll/intdec/vol25/3730.pdf.

Published on

The Board held that grant of an INA 212(h) waiver for an offense listed under section 212(a)(2) would not remove the bar to section 240A(b) cancellation of removal for a non-permanent resident who has a conviction for a 212(a)(2) offense.

The Board reached this conclusion based on the statutory language of 240A(b), which requires that the noncitizen “has not been convicted of an offense under section 212(a)(2).” The Board determined that this language referred to actual convictions, not to whether an applicant was "inadmissible" for such a conviction. In contrast, other portions of the Act (including VAWA cancellation) refer to "inadmissibility" or "deportability." Since 212(h) waives only inadmissibility, but does not affect the existence of the conviction, it does not eliminate a conviction for purposes of eligibility for cancellation.

Read the decision at http://www.justice.gov/eoir/vll/intdec/vol25/3722.pdf

Published on

The Board held that a conviction under California Penal Code section 220 (1994) with a sentence to a year or more is a categorical aggravated felony as a crime of violence under both 18 U.S.C. 16(a) and (b). PC 220 penalizes assault (creating an apprehension of imminent battery) with intent to commit mayhem, rape, or certain other sex offenses.

Even if the assault does not result in an actual application of violent force, the Board found that it is a categorical crime of violence under 18 U.S.C. 16(a) as an offense that has as "an element the use, attempted use, or threatened use of [violent] physical force against the person or property of another." The Board found that the intent, as interpreted by the California Supreme Court, requires the specific intent to use whatever level of violent force is required to complete the object of the offense. Since the intent is to complete the object of the assault (mayhem, rape, etc.), the Board held that every assault under PC 220 required at least attempted use or threatened use of violent force against another.

The Board also held that PC 220 is a categorical crime of violence under 18 U.S.C. 16(b) too, 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.”

Read the decision at http://www.justice.gov/eoir/vll/intdec/vol25/3723.pdf

Published on

The Board held that recklessness is a sufficiently culpable level of scienter for a crime to involve moral turpitude, at least where it involves an intentional act done with unreasonable disregard of risk to life or property. In this case, the offense was driving a vehicle in a manner indicating a wanton or willful (i.e., reckless) disregard for the lives or property of others while attempting to elude a pursuing police vehicle in violation of section 46.61.024 of the Revised Code of Washington (1997). The Board rejected the respondent's argument that reckless disregard of the danger to property would not involve moral turpitude and held that the offense categorically was a CMT.

Read the opinion at http://www.justice.gov/eoir/vll/intdec/vol25/3720.pdf

Published on

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."

The Board concluded that 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.

In reaching that conclusion, 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.

Read the opinion at http://www.justice.gov/eoir/vll/intdec/vol25/3714.pdf.

Published on

The Board held that immigration judges may NOT go beyond the record of conviction to determine whether a crime involves moral turpitude if the record of conviction conclusively establishes it did not.  This is an often overlooked corollary of the Attorney General's decision in Silva-Trevino.  (See my post at http://crimeandimmigrationlawyer.com/blog/2011/03/01/matter-of-samuel-esaul-guevara-alfaro/.)

In Ahortalejo-Guzman, the respondent was convicted of simple assault, and the criminal court specifically noted that the conviction did not involve family violence.  Simple assault is not a crime of moral turpitude.  The immigration judge, however, went beyond the conviction documents to consider police reports and testimony.  The police reports and testimony indicated the respondent committed a crime of domestic violence.  The IJ found that the domestic violence involved moral turpitude and denied the respondent relief from removal based on that.

The Board held the IJ erred.  It cited Silva-Trevino, which stated that an IJ could consider evidence outside the record of conviction only after determining that the record of conviction documents were ambiguous as to whether the offense involved moral turpitude. It noted that this sequential, hierarchical approach "serves the important function of recognizing and preserving the results of a plea bargain, where the parties, with the consent of a trial judge, agree to allow the defendant to plead to a less serious crime."

This case is a bit unusual, however, since the criminal court specifically found that the offense did not involve family violence.  It remains to be seen whether something this explicit is necessary, although it certainly should be considered a best practice in making a plea now.

Read the opinion at http://www.justice.gov/eoir/vll/intdec/vol25/3709.pdf.

Published on

The Board of Immigration Appeals held that the crime of moral turpitude ground of deportability, INA 237(a)(2)(A), encompasses a conviction for attempt if the attempt is to commit a crime that involves moral turpitude.  In this case, the respondent had a conviction for attempted grand theft.  The Board found that this conviction, along with another conviction for grand theft, made him deportable for having two convictions for crimes of moral turpitude after admission.

The Board rejected the respondent's argument that conviction for attempt to commit a crime of moral turpitude should not trigger deportability because INA 237(a)(2)(A) does not explicitly include attempt, while the ground of inadmissibility at INA 212(a)(2)(A)(i)(I) does include the inchoate offenses of attempt and conspiracy.

The Board noted a Ninth Circuit decision, Barragan-Lopez v. Mukasey, 508 F.3d 899, 903 (9th Cir. 2007), which concluded that this meant the deportation ground was broader (rather than narrower) than the inadmissibility ground.  The Ninth Circuit reasoned the listing of only two inchoate offenses in the inadmissibility ground narrowed the ground to exclude other inchoate offenses such as solicitation or facilitation, while the lack of any references to inchoate offenses in the deportability ground meant it was expansive enough to cover all inchoate crimes.

The Board cited, but did not quite adopt the Ninth Circuit's analysis (given it may have wished to leave room to find that the inadmissibility ground covers inchoate offenses other than attempt and conspiracy).  It offered its own justification for the listing of attempt and conspiracy in the inadmissibility ground but not the deportability ground: Congress may have been just trying to be clear that the former covered attempt and conspiracy without implying anything about the coverage of the latter, particularly since the Congress drafted them at different times.  This belt-and-suspenders-argument overlooks the fact that Congress presumably knows how it drafted other parts of the Act and strives for consistency in its language.

Read the opinion at http://www.justice.gov/eoir/vll/intdec/vol25/3706.pdf.

Published on

The Board in Guevara-Alfaro returned to the same issues decided by former Attorney General Mukasey in Matter of Silva-Trevino, 24 I&N Dec. 687 (AG 2008).

It first held that any intentional sexual contact between an adult and a child of less than 16 years of age involves moral turpitude if the adult knew or should have known the child was under 16. Thus, it held that a conviction under California Penal Code 261.5(d) (sexual intercourse between 21+ adult and minor under 16) may involve moral turpitude.

It acknowledged, however, that 261.5(d) did not categorically involve moral turpitude because the offense does not require that the perpetrator knew or reasonably should have known that the victim was less than 16 years of age.

In reaching this conclusion, the Board cited Brand-X to assert that the Ninth Circuit had to defer to this interpretation despite its decision in Quintero-Salazar v. Keisler, 506 F.3d 688 (9th Cir. 2007).  It noted the Ninth Circuit ruled in Marmolejo-Campos v. Holder, 558 F.3d 903 (9th Cir.2009) (en banc) that the definition of a  crime of moral turpitude is quintessentially ambiguous, so the the court must defer to the Board's interpretation.

Quintero-Salazar had held that 261.5(d) would not involve moral turpitude if, for example, the relationship was between a high school junior of 15 years and 11 months and a college student of 21 years.  It noted that the conduct involved, consensual sex, would be legal if the two were married.  Marriages between 21 year-olds and 15 year-olds may not be as common as they once were in the U.S., but are legally possible in some states with parental consent.

Guevara Alfaro disagreed, holding that intentional sexual contact between a 15 year-old and a 21 year-old would involve moral turpitude, if the 21 year-old knew or reasonably should have known the victims age.  It did not explain how this could be a crime of moral turpitude if the two were legally married.

The Board next held it should use the process enunciated by Silva-Trevino to determine whether the offense actually involved moral turpitude (i.e., whether the perpetrator knew or reasonably should have known the victims age).  It held that since 261.5(d) did not categorically involve moral turpitude, it had to examine the record of conviction documents and, if the record of conviction is inconclusive, it had to review other probative evidence to determine if the offense involved moral turpitude.  This would include, in this case, the testimony of the respondent.

The important caveat that both Silva-Trevino and Guevara Alfaro included, but which immigration judges may overlook, is that they may proceed to the third step of examining other probative evidence only if the record of conviction documents are "inconclusive."  This should mean that an IJ may not look at other evidence if the record of conviction documents clearly show that the offense did not involve moral turpitude.  Thus, where state law permits such a conviction, a guilty plea that stipulates the defendant "did not know and had no reasonable basis for knowing the victim was under 16" should prevent inquiry by the IJ beyond the record of conviction.  The record of conviction in such a case would be conclusive.  Whether the Board actually adheres to this aspect of Silva-Trevino, however, remains to be seen.

Read the opinion at http://www.justice.gov/eoir/vll/intdec/vol25/3705.pdf.

Published on

The Board held that, if the seven year period of continuous residence stops for 240A(a) cancellation of removal, it does not restart again based merely on a departure from and reentry to the U.S.  A key fact in this case, however, is that the conviction that stopped Nelson's period of continuous residence also made him inadmissible at the time of his reentry to the U.S.  There also was no claim that he obtained a waiver of that inadmissibility.  The Board reserved deciding whether the result would have been the same if he had been readmitted with a waiver.  The Board also attached some significance to the fact that the conviction was charged as a basis for removability (in addition to other grounds of removability), although it did not explain the exact relevance of this fact.

Read the opinion at http://www.justice.gov/eoir/vll/intdec/vol25/3704.pdf

510-835-1115