In an unnecessary and disingenuous decision, the Ninth Circuit held in Torres-Valdivias v. Holder that the Board of Immigration Appeals correctly applied the heightened discretionary standard of Matter of Jean to deny adjustment of status to an immigrant convicted of misdemeanor sexual battery, even though the immigrant was not inadmissible for the conviction.
The Jean heightened discretionary standard requires a showing of extraordinary circumstances before granting a waiver of inadmissibility to an alien who has committed a violent or dangerous offense. Matter of Jean, 23 I&N Dec. 373 (A.G. 2002). Jean was a refugee who had been convicted of manslaughter for shaking a baby to death. When the former INS put her in removal proceedings, she applied for adjustment of status as a refugee. She did not dispute that she was inadmissible to adjust status, but requested a discretionary 209(c) waiver to forgive her inadmissibility. The immigration judge denied the waiver in the exercise of discretion. The Board reversed and granted the waiver and adjusted her to permanent resident status. The Attorney General at the time, John Ashcroft, disagreed with the Board and overruled it in a published opinion. He established a new discretionary standard, which headnote 4 of the decision summarizes:
Aliens who have committed violent or dangerous crimes will not be granted a discretionary waiver to permit adjustment of status from refugee to lawful permanent resident pursuant to section 209(c) of the Act except in extraordinary circumstances, such as those involving national security or foreign policy considerations, or cases in which an alien clearly demonstrates that the denial of status adjustment would result in exceptional and extremely unusual hardship. Depending on the gravity of the alien’s underlying criminal offense, such a showing of exceptional and extremely unusual hardship might still be insufficient.
Matter of Jean, 23 I&N Dec. 373 (A.G. 2002). Thus, if you have committed a violent or dangerous crime, the agency will not grant you a discretionary waiver to adjust from refugee status to permanent resident status without extraordinary circumstances (and even then may not). A later decision, Matter of K-A-, 23 I&N Dec. 661 (BIA 2004), applied the same standard to asylees who apply to adjust from asylum status to permanent resident status. No published Board decision, though, has ever applied the Jean standard to other types of applicants for adjustment of status, such as family-based or employment-based applicants. Those applicants adjust pursuant to section 245 of the Immigration and Nationality Act, rather than section 209.
In an unpublished decision, however, the Board applied Jean to deny Torres-Valdivias's family-based application to adjust status. It found that his misdemeanor conviction for sexual battery was a violent and dangerous crime that triggered the heightened discretionary standard, even though it did not make him inadmissible. Torres-Valdivias was not inadmissible because his crime qualified for the petty offense exception--it was a misdemeanor with a sentence to imprisonment of not more than six months. The Ninth Circuit affirmed the Board's decision.
The Board's unprecedented borrowing of a standard is dubious enough in an unpublished decision, but applying the Jean standard to an immigrant who was not inadmissible for his crime was even more questionable. Remember the language of Jean? It explicitly applied only to a "discretionary waiver" for inadmissibility (and then only for a refugee). Torres-Valdivias did not require a waiver, so Jean should not apply.
The heightened standard that does apply to family-based immigrants like Torres-Valdivias is nearly identical to Jean, but by its own terms only applies where the immigrant is inadmissible for a crime and thus requires a waiver of inadmissibility under 212(h). See 8 C.F.R. 212.7(d). The regulation that contains this standard provides,
The Attorney General, in general, will not favorably exercise discretion under section 212(h)(2) of the Act (8 U.S.C. 1182(h)(2)) to consent to an application or reapplication for a visa, or admission to the United States, or adjustment of status, with respect to immigrant aliens who are inadmissible under section 212(a)(2) of the Act in cases involving violent or dangerous crimes, except in extraordinary circumstances, such as those involving national security or foreign policy considerations, or cases in which an alien clearly demonstrates that the denial of the application for adjustment of status or an immigrant visa or admission as an immigrant would result in exceptional and extremely unusual hardship. Moreover, depending on the gravity of the alien's underlying criminal offense, a showing of extraordinary circumstances might still be insufficient to warrant a favorable exercise of discretion under section 212(h)(2) of the Act.
8 C.F.R. 212.7(d). Thus, only immigrants who require a 212(h) waiver for criminal inadmissibility are subject to the heightened standard under 212.7(d). And note that part 212.7(d) was issued under the same Attorney General--John Ashcroft--that decided Matter of Jean, and it was issued after the decision in Jean. See 67 Fed. Reg. 45402, 45404 (Jul. 9, 2002) (proposed rule). Indeed, the agency stated in the Federal Register that 212.7(d) was intended to codify Jean. Id.
The Ninth Circuit blithely ignored all of this and affirmed the Board's unpublished decision. In doing so, it effectively rendered 212.7(d) moot in the Ninth Circuit. Under Torres-Valdivias, an immigrant may be denied adjustment of status under the heightened standard even where he is not inadmissible, while 212.7(d) only applies if the immigrant is inadmissible for a crime. If Attorney General Ashcroft intended the interpretation of Jean adopted by the Ninth Circuit, why did he later promulgate a more narrow regulation at 212.7(d)? The answer is that he did not intend the Ninth Circuit's interpretation.
At the beginning of this article, I made the inflammatory comment that the panel decision in Torres-Valdivias is not only wrong, but disingenuous, so I'll tell you why. After the initial decision in the case, published on September 5, 2014, the American Immigration Council and the Immigrant Legal Resource Center filed amicus briefs in support of rehearing, and they were both represented by very able attorneys. I am certain those attorneys raised the arguments summarized above, and perhaps even better ones. Yet the amended opinion issued nine months later still asserted that Jean and K-A- compelled the decision, when in fact they don't and the implication of 212.7(d) is that the decision is entirely wrong. I expect the panel ignored the arguments because of the bad facts in this case (the victim of Torres-Valdivias's sexual battery was his step-sister, who was four years younger than him).
I would say the opinion is results-oriented, except that this bad law was unnecessary. There already was and still is a discretionary standard of long pedigree that applies to adjustment applications by all immigrants, admissible and inadmissible: the Board's published decision in Matter of Arai, 13 I&N Dec. 494 (BIA 1970). Arai held, "Where adverse factors are present in a given application for adjustment of status under section 245, Immigration and Nationality Act, as amended, it may be necessary for the applicant to offset these by a showing of unusual or even outstanding equities." In other words, the favorable discretionary factors must outweigh the negative factors. This standard is more flexible and carries less of a presumption toward denial, but it is more than adequate to support the denial of adjustment where appropriate. In other words, the Board could have denied Torres-Valdivias adjustment under either standard, so the use of the wrong one may have caused no harm here.
Although the panel's decision may not have prejudiced Torres-Valdivias, the problem is that it turned the Board's minor error into a rule of law that will be applied to other cases throughout the Ninth Circuit. And it is hard to see why it did so. The prudent course would have been to remand the case to the Board for a reconciliation of Jean, Arai, and 212.7(d). That is the Board's job, not the Ninth Circuit's.
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