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Category: Relief & Bars to Relief

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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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The introductory paragraph to this decision--and the court staff's summary--are misleading, they suggest that an immigrant is not eligible for 212(c) relief if he is an aggravated felon who filed his application for relief after November 29, 1990. The case actually holds, however, that only aggravated felon immigrants who served a sentence of "over 5 years" in prison for the aggravated felony are ineligible for 212(c) (assuming the conviction occurred before April 30, 1997) (see page 4 of the opinion). Of course, this actual holding is not entirely accurate either because the statute says "at least 5 years," not "over 5 years."

All this doesn't inspire a lot of confidence, but the actual holding of the case is consistent with previous interpretations of six other circuits. The court rejected the petitioner's argument that the bar on aggravated felons only applied if the immigrant had an "admission" after November 29, 1990. And "admission" in the sense of reentering the U.S. at a port of entry from abroad. (Lawrence was admitted in 1987.) Instead, the court deferred to the agency's longstanding interpretation that the filing of the application for relief is the "admission," at least for applicants who have not departed the U.S. and sought readmission after conviction. That may not correspond to the statutory language, but Lawrence would not even be eligible for 212(c) if the court hewed closely to 212(c)'s statutory language, which requires the immigrant to depart the U.S. and seek readmission after the conviction (since he did not seek readmission after his conviction in 1992).

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The Ninth Circuit held that INA § 101(f)(7) (8 U.S.C. § 1101(f)(7)), which establishes an irrebuttable presumption that an individual lacks good moral character if he has been incarcerated for an aggregate period of 180 days or more during the relevant period, is constitutional.

The petitioner in this case served approximately 8 months in prison for vehicular manslaughter. As a result, the IJ found that he lacked good moral character under § 101(f)(7) and therefore denied his applications for cancellation of removal and voluntary departure. The petitioner argued that § 101(f)(7) is unconstitutional because Congress may not use length of time served in custody as a proxy for seriousness and must instead specify the criminal offenses which trigger the presumption that an individual lacks good moral character. The court applied rational-basis review and rejected the argument. The court agreed that § 101(f)(7) might produce disparate outcomes based on variations in state sentencing schemes and might prove over- or under-inclusive in individual cases but held that it was nevertheless rational for Congress to conclude that most aliens who have been convicted of crimes serious enough to warrant 6 months of imprisonment will lack good moral character.

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The Ninth Circuit held that admission to criminal conduct (here, an adult having consensual sex with a minor) could be used to deny pre-completion voluntary departure even if the conduct did not result in a conviction. The court supported that conclusion with a citation to a 1999 decision by the Board of Immigration Appeals (Matter of Arguelles-Campos, 22 I&N Dec. 811 (BIA 1999), which noted in passing that "other evidence of bad character or the undesirability of the applicant as a permanent resident" could be considered even though pre-completion voluntary departure does not require a showing of good moral character.

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The Ninth Circuit held that an aggravated felony conviction entered on or after November 29, 1990, permanently prohibits a permanent resident from establishing good moral character for naturalization, even if an immigration judge has granted 212(c) relief from removal. The applicant for naturalization here had been convicted in 1991 of assault with intent to commit rape in violation of section 220 of the California Penal Code.

The Ninth Circuit rejected the argument that the Supreme Court's decision INS v. St. Cyr prohibited the attachment of that new penalty to an offense that was not defined as an aggravated felony at the time of conviction. It reasoned that, unlike removal proceedings where the government must prove removability, in naturalization proceedings the applicant bears the burden of establishing eligibility and no potential applicant could have a settled expectation that a conviction for assault with intent to commit rape would not affect the requirement of proving good moral character.

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This case clarifies the law regarding the particularly serious crime (PSC) bar to asylum and withholding of removal for cases arising in the jurisdiction of the Third Circuit Court of Appeals.

In Alaka v. Attorney General, 456 F.3d 88 (3d Cir. 2006), the Third Circuit held that an offense must be an aggravated felony to be a PSC for purposes of withholding of removal. However, the Board reached the opposite conclusion the following year in Matter of N-A-M-, 24 I&N Dec. 336 (BIA 2007). Four federal circuit courts, including the Ninth, have deferred to N-A-M- after finding ambiguity in the statutory language of the PSC-bar to withholding.

In this case, the Board considered the question whether it would continue to follow Alaka in cases arising within the Third Circuit. The answer is no: the Board concluded that because the Third Circuit did not hold in Alaka that the statutory language in section 241(b)(3)(B) is ambiguous, the circuit court is required to defer to the Board’s interpretation of the statute in N-A-M-. Thus, in all circuits, an individual need not have been convicted of an aggravated felony to be subject to the PSC-bars for asylum and withholding of removal.

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In assessing whether an applicant is barred from asylum or withholding removal because there are serious reasons to believe that the applicant has committed a serious nonpolitical crime before arriving in the U.S., the Board held that the seriousness of the criminal acts should be balanced against their political aspect.

E-A- participated in an attempt to discredit an opposition political party by committing acts of vandalism, assault, and intimidation, including burning buses and destroying merchandise, during the opposition party's events. The Board held that there was a political character to the activities, but that the attempts to discredit were not entitled to as much weight as actions in direct opposition to a party or government. On the other hand, the Board found the activities to involve serious criminality, particularly the arson of the buses. Even though the applicant testified that no one was hurt, it is dangerous to burn buses in the street after forcing the passengers out. Further, the crimes were directed at civilians, not the applicant's political opponents. The Board concluded that on balance the criminal conduct was disproportionate to its political nature, and thus barred asylum and withholding.

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In this case, the Ninth Circuit provided an important interpretation of the "necessarily rested" limitation in last year's en banc decision in Aguila Montes de Oca. It first, unsurprisingly, held that a conviction for sexual battery under California Penal Code section 243.4(a) is not categorically an aggravated felony for sexual abuse of a minor. Obviously, PC 243.4(a) may be committed against an adult. More importantly, though, it found the conviction was not for sexual abuse of a minor under the modified categorical approach either, despite an allegation in the charging document that the victim was a minor.

Under the modified categorical approach, a court may review record of conviction documents to determine whether an overbroad offense has been narrowed to match a generic federal aggravated definition. Aguila Montes de Oca held that alleged facts in a charging document, or other evidence of the prosecution's theory of the offense, may be used if the eventual conviction "necessarily rested" on them.

In this case, the charging document alleged the victim's date of birth, which would make her a minor at the time of the offense. Sanchez-Avalos pled no contest to the offense and was later put in removal proceedings upon return from a trip to Mexico. The immigration judge found him inadmissible for a crime involving moral turpitude and denied his application for a 212(h) waiver of inadmissibility. The Board dismissed his appeal of the decision, holding that the conviction was an aggravated felony for sexual abuse of a minor that disqualified him from 212(h).

The Ninth Circuit, however, held that the conviction could not have "necessarily rested" on the date of birth allegation in the charging document because the victim's age is irrelevant to the sexual battery charge. It could have obtained a conviction at trial even if the birth date contained a typo and the victim was actually an adult. Thus, this conviction is not an aggravated felony under the modified categorical analysis.

Finally, this decision requires a shout out to the attorney for the immigrant, rock star criminal immigration attorney Michael Mehr.

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Relief under former section 212(c) is unavailable for a permanent resident who has served a "term of imprisonment" of more than 5 years for conviction of an aggravated felony, but what if part of that was credited for time spent in civil psychiatric pre-trial confinement pending a determination of competence to stand trial? In an unpublished 1 member decision, the Board held that the entire 392 days that Corpuz spent in that civil confinement does count, which pushed him over 5 years.

The Ninth Circuit disagreed. It found that the common meaning of imprisonment does not include civil confinement, but it declined to entirely disregard Corpuz's time in civil psychiatric confinement because Corpuz did receive credit from the sentencing judge for that time. The court found that counting all of it, though, would be unfair because there is no credit for good conduct and the confinement can last a long time compared to typical pre-trial confinement. The court thus attempted to achieve what it determined was the statutory purpose by holding that the immigration judge should determine how long the confinement would have been if there was good time credit. It called this constructive good time credit.

Something tells me there will be a petition for rehearing in this case, although grant of en banc rehearing seems unlikely given Corpuz's situation would seem to be rare and there is no conflicting precedent.

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