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In Matter of Iris Introcaso, the Board held that a petitioner has the burden of proving that he is not ineligible to petition for a relative due to a conviction for a specified offense against a minor under the Adam Walsh Child Protection and Safety Act of 2006 ("Adam Walsh Act").  It further held "the language and structure of the Adam Walsh Act invite a circumstance-specific inquiry into both the age of the victim and the conduct underlying the offense." In other words, the inquiry purportedly is not limited to the categorical approach.

The Board justified examining facts outside of the elements of conviction to determine the victim's age because the list of disqualifying convictions includes offenses that are not specific to minors (kidnapping, false imprisonment, solicitation to engage in sexual conduct, etc.).  It is hard to argue with that, so I won't.

The rationale for examining non-elements to determine the nature of the conduct underlying the offense, however, is far more dubious.  The Board notes that the list of specified offenses against a minor include "criminal sexual conduct involving a minor..." and "any conduct that by its nature is a sex offense against a minor."  The Board suggests that this focus on the conduct permits an examination of the alleged facts of the offense, rather than the offense of conviction.  In doing so, it disregards the requirement that the petitioner be "convicted of" a specified offense.  How can a petitioner be convicted of conduct that is not an element of the conviction?  This is precisely the issue addressed in the Supreme Court's decision in Descamps, but the Board did not even attempt to distinguish Descamps and instead focuses myopically on the Supreme Court's earlier decision in Nijhawan.

Arguably, though, Board's assertion that an adjudicator can engage in a circumstance-specific inquiry into the conduct underlying the offense is dicta.  It is dicta because the Board did not examine facts or circumstances of the offense in this case to determine whether it was a disqualifying offense.  It did not need to.  The offense was endangering the welfare of children under section 2C:24-4(a) of the New Jersey Statutes Annotated.  The Board held that offense is divisible and that the portion the petitioner was convicted of--engages in sexual conduct which would impair or debauch the morals of the child--is a specified offense under the Adam Walsh Act.  It reached that conclusion based on the statutory language and petitioner's inability to provide an example that would be outside the scope of the Adam Walsh Act.  In other words, it applied the categorical approach--not the circumstance-specific approach.

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In  Matter of Tatiana Aceijas-Quiroz, USCIS denied the U.S. citizen petitioner's immigrant petition for his wife.  This the first of three Board of Immigration Appeals decisions issued on May 20, 2014, that concern the immigration consequences of convictions for U.S. citizens.  Under the Adam Walsh Child Protection and Safety Act of 2006 ("Adam Walsh Act"), certain convictions will disqualify a citizen from petitioning for an immigrant family member.

USCIS found, and the petitioner did not dispute, that his prior convictions for sexual abuse and for contributing to the sexual delinquency of a minor were "specified offenses against a minor" under the Adam Walsh Act.  He therefore was ineligible to petition for his wife unless he could demonstrate that despite those convictions he posed "no risk" to her.  USCIS denied the petition because it was not satisfied that he posed no risk to her.  In doing so, it required him to show "beyond a reasonable doubt" that he posed no risk.  This standard, which typically does not apply in civil immigration proceedings, does not appear in the statute or regulations.  It was imposed by USCIS memo.

The petitioner appealed to the Board, arguing that the heightened beyond a reasonable doubt standard of proof should not apply.  The Board, however, determined that it did not have jurisdiction to review the question because it found the Adam Walsh Act gave USCIS sole authority to determine whether a petitioner posed no risk to a beneficiary and that includes sole authority to determine the standard of proof for that issue.

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In a matter of first impression in this circuit, the Ninth Circuit found that the BIA could consider a sentence enhancement in determining whether a non-aggravated felony conviction was nonetheless a particularly serious crime that would bar withholding of removal.  Konou had argued it could not because Ninth Circuit precedent holds a sentencing enhancement cannot be considered when determining if a conviction is an aggravated felony.  The court pointed out that a conviction does not need to meet the aggravated felony definition in order to be deemed particularly serious.  The particularly serious crime determination is a discretionary case-by-case determination.

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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 Ninth Circuit assumed without deciding that a grant of temporary resident status pursuant to the legalization provision at INA 245A amounted to an "admission." It held, however, that a termination of the temporary resident status (in this case for convictions) returns an alien to the unlawful status held before the grant of temporary resident status. 8 C.F.R. § 245a.2(u)(4). In this case, Hernandez-Arias previously held the status of an alien present without admission or parole. The court held the termination thus returned him to an unadmitted status, which made him vulnerable to removal for being present without admission or parole.

The court rejected Hernandez-Arias' argument that this return to an unadmitted status would result in a "rescission," which the regulations say is not required for termination of status and which did not occur in his case. The court distinguished a rescission from a termination. Using divorce and annulment as a comparison, it held rescission would result in him never having had temporary resident status and deprive him of any benefits of having had that status. Termination simply ends the status and returns him to the status he had before.

As an alien not admitted or paroled (and apparently not eligible for 245(i) adjustment), the court held Hernandez-Arias was not eligible for a 212(h) waiver of inadmissibility for his criminal convictions. It held he therefore was not prejudiced by the failure of the immigration judge in the removal proceedings to advise him of potential eligibility for 212(h). It therefore upheld his conviction in this case for illegal reentry after removal.

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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 Ninth Circuit held that the aggravated felony bar to a 212(h) waiver of inadmissibility does not apply to a permanent resident who was admitted to the U.S. from abroad as something other than a permanent resident and then later adjusted status to permanent residence. It, like all of the other circuit courts to have reviewed the question, found this result compelled by the plain language of the statute. Thus, the petitioner here was not barred from seeking a 212(h) waiver of inadmissibility for her crime involving moral turpitude because she entered on a B-2 visitor visa and then adjusted to permanent resident status.

A person who was admitted on an immigrant visa, however, would not be eligible for 212(h) to waive a later criminal ground of inadmissibility. The court also recognized that an adjustment of status would count for the purpose of the 212(h) aggravated felony ground of ineligibility if the person was not inspected and admitted and admitted from abroad--i.e., where the person entered without inspection. It found the language of the statute did not preclude the interpretation of the Board of Immigration Appeals in this circumstance.

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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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