All posts by Philip Levin

Attorney General Sessions Holds 1) Matter of A-R-C-G-, 26 I&N Dec. 338 (BIA 2014) Was Wrongly Decided And Is Overruled; 2) One Seeking To Establish Persecution On Account Of Membership In A “Particular Social Group” (PSG) Must Prove a) Membership In A Group Composed Of Members Who Share A Common Immutable Characteristic, Is Defined With Particularity, And Is Socially Distinct Within The Applicable Society And b) That Membership In The Group Is A Central Reason For Her Persecution. If The Persecutor Is Unaffiliated With The Government, The Applicant Must Also Show That Her Home Government Is Unwilling Or Unable To Protect Her; 3) An Asylum Applicant Must Prove Eligibility For Asylum By Presenting Facts That Establish Each Element Of The Standard And The Adjudicator Has a Duty To Determine Whether The Facts Satisfy All Of These Elements; 4) If An Asylum Application Is Fatally Flawed In One Respect, The Adjudicator Need Not Examine The Claim’s Remaining Elements; 5) That A Country May Have Problems Effectively Policing Certain Crimes Or If Certain Populations Are More Likely To Be Crime Victims Cannot Itself Establish An Asylum Claim; 6) To Be Cognizable, A Particular Social Group Must Exist Independently Of The Harm Asserted In The Asylum Application; 7) An Asylum Applicant Basing Her Claim On The Violent Conduct Of A Private Actor Must Prove More Than Government Difficulty Controlling Private Behavior. She Must Show That The Government Condoned The Private Actions Or Demonstrated An Inability To Protect The Victims; 8) One Seeking Asylum Based On PSG Membership Must Clearly Indicate On The Record The Exact Delineation Of Any Proposed PSG; and, 9) All Adjudicators Must Consider, Consistent With The Regulations, Whether Internal Relocation In The Applicant’s Home Country Presents A Reasonable Alternative Before Granting Asylum.

On June 11, 2018, Attorney General (AG) Jefferson Sessions, in an exceedingly long opinion, decided a case he had directed the Board of Immigration Appeals (BIA or Board) to refer to him for his review, ultimately vacating the BIA’s previous decision in remanding to the Immigration Judge (IJ) for further proceedings. Initially, the AG noted that asylum applicants seeking to establish persecution on account of membership in a particular social group (PSG) must prove both that a) membership in the group – which is composed of members who share a common immutable characteristic – is defined with particularity and is socially distinct within the society in question and b) membership in that group is a central reason for her persecution. Additionally, when the alleged persecutor is unaffiliated with the government, “the applicant must show that flight from her country is necessary because her home government is unwilling or unable to protect her.” Further, held AG Sessions, PSG asylum seekers “must establish membership in a particular and socially distinct group that exists independently of the alleged underlying harm,” prove that they were persecuted “on account of” their PSG membership and not for “personal reasons,” and establish that government protection in their home country “is so lacking that their persecutors’ actions can be attributed to the government.” Because, stated the AG, a prior Board precedent, Matter of A-R-C-G-, 26 I&N Dec. 338 (BIA 2014), had recognized a new PSG “without correctly applying these standards,” he overruled that case and other decisions inconsistent with the instant opinion.

In his discussion of A-R-C-G-,AG Sessions noted that the decision had recognized “married women in Guatemala who are unable to leave the relationship” as a PSG, “without performing the rigorous analysis required by the Board’s precedents.” Instead, the BIA had accepted concessions by DHS that the respondent had suffered harm “rising to the level of past persecution,” that she was a member of a qualifying PSG, and that her membership therein was a central reason for her persecution. The AG found that A-R-C-G-had not correctly applied the Board’s precedents and thus overruled it. That opinion had caused confusion, he stated, because it “recognized an expansive new category” of PSG based on “private violence.” In the instant matter, citing to A-R-C-G-,the BIA had failed to meaningfully consider whether the respondent was a member of a qualifying PSG or whether her persecution “was on account of her membership in that group,” giving “insufficient deference” to the IJ’s factual findings. Thus, AG Sessions vacated the Board’s decision here and remanded to the IJ for further proceedings “consistent with this opinion.” In setting out his view on the topic, the AG held that, generally, asylum claims “pertaining to domestic violence and gang violence perpetrated by nongovernmental actors will not qualify for asylum.” Further, noted the opinion, while the AG did not decide that violence by nongovernmental actors may neverserve as the basis for an asylum claim based on PSG membership, “such claims are unlikely to satisfy the statutory grounds for proving group persecution that the government is unable or unwilling to address.” That a country may have issues with policing certain criminal acts, e.g., domestic and gang violence, or that certain populations are more likely to be victimized, does not by itself establish an asylum claim.

Emphasizing these central points, towards the end of the opinion, the AG specifically found that A-R-C-G-was “wrongly decided and should not have been issued as a precedential decision,” stating that, to the extent the Board in that decision had examined the pertinent legal questions (as outlined above) its analysis “lacked rigor” and broke with established precedents. Such cases had defined “persecution” as having three elements: 1) an intent to target a belief or characteristic, 2) a “severe” level of harm, and 3) suffering inflicted “either by the government of a country or laypersons or an organization that the government was unable or unwilling to control.” Therefore, one seeking to establish persecution based on the violent conduct of private actors must prove more than “difficulty…controlling private behaviors”; the applicant must show that the government condoned the private actions or at least demonstrated complete helplessness in protecting the victims. In other words, respondents need not merely prove the crime has gone unpunished, but that “the government is unwilling or unable to prevent it.” Similarly, in domestic violence cases like R-A- and A-R-C-G-, found AG Sessions, the BIA had cited to no evidence that respondent’s ex-husband had attacked her because he was aware of, and hostile to, married women in Guatemala who are unable to leave the relationship. Instead, “he attacked her because of his pre-existing personal relationship with the victim.”

After pointing out numerous errors by the Board in disagreeing with the IJ’s legal and factual findings, as well as in finding respondent had established the required nexus between her harm and her group membership, the AG reminded all adjudicators of asylum claims to “consider the following points”: those seeking asylum based on PSG membership “must clearly indicate, on the record before the immigration judge, the exact delineation of any” proposed PSG; consistent with the applicable regulations, “whether internal relocation in the…home country presents a reasonable alternative” before granting an asylum claim; and, that “alternative proper and legal channels” exist for those seeking admission to the U.S. “other than entering the country illegally and applying for asylum” in removal proceedings. As to the second point, AG Sessions specifically noted that when one has suffered “personal harm” by “only a few specific individuals,” internal relocation is the option that “would seem more reasonable than if the applicant were persecuted broadly by her country’s government.” A-R-C-G- was therefore overruled along with all other opinions inconsistent with the analysis in this opinion, the BIA’s decision was vacated, and the case remanded to the IJ. Matter of A-B-, 27 I&N Dec. 316 (BIA 2018).

 

BIA Holds That Providing “Material Support” To A Terrorist Organization Involves An Act That Has A Logical And Reasonably Foreseeable Tendency To Promote, Sustain, Or Maintain The Organization, Even If Only To A De Minimis Degree. Respondent Afforded Material Support To El Salvadorean Guerrillas Because The Forced Labor She Provided By Cooking, Cleaning, And Washing Clothes Aided The Organization In Continuing Its Mission Of Armed And Violent Oppression To The Salvadorean Government

On June 6, 2018, in a 2-1 decision dismissing respondent’s cross-appeal and remanding the record to the Immigration Judge (IJ), the Board of Immigration Appeals (BIA or Board) defined “material support” to a terrorist organization. Board Member Wendtland issued a dissenting opinion.

The opinion initially sets forth a complicated factual and procedural background: Respondent, a native and citizen of El Salvador, had been granted Temporary Protected Status (TPS), departed the U.S. on advance parole, and sought admission on her return. She was placed into proceedings as removable for not having a valid entry document and applied for cancellation of removal. DHS argued she was ineligible for relief “based on her undisputed testimony that she was kidnapped by guerrillas in El Salvador…and was coerced into undergoing weapons training and performing forced labor in the form of cooking, cleaning, and washing their clothes.” The IJ initially found her removable but granted her cancellation application and DHS appealed; the BIA held she was ineligible for cancellation, finding her inadmissible for having received weapons training from the guerrillas – a terrorist organization. The Board also concluded that there is no self-defense or duress exception to the “material support bar” of INA §212(a)(3)(B), sustained the appeal and remanded to the IJ for consideration of any other forms of relief.

On remand, respondent applied for asylum, withholding of removal and CAT protection, with DHS conceding that, although she is ineligible for cancellation because of her military/weapons training, she could seek asylum. The IJ then denied asylum and withholding because of the material support bar but noted “the horrific harm she experienced from the guerrillas in El Salvador because, in addition to being kidnapped and required to perform cooking and cleaning…under threat of death, the respondent was forced to witness her husband, a sergeant in the Salvadoran Army, dig his own grave before being killed.” The IJ granted deferral of removal under the CAT. The issue on appeal here was whether respondent is subject to the material support bar, specifically “if the statutory definition of ‘material support’ has any limitation based on the extent and type of support rendered.”

At the beginning of its lengthy analysis, the BIA noted that INA §208(b)(2)(A)(v) bars asylum to certain applicants, a list that includes those who, per §241(b)(3)(B), have engaged in any terrorist activity (INA §237(a)(4)(B)) and are therefore regarded as dangers to U.S security. Further, stated the Board, INA §212(a)(3)(B)(iv)(VI) provides that one engages in terrorist activity when she commits an act that she knows, or reasonably should know, affords material support to a terrorist organization, the sole exception to the bar being “a showing by clear and convincing evidence that the actor did not know, and should not reasonably have known, that the organization was of that character.” If the evidence indicates the bar applies, held the BIA, the applicant has the burden of proving by a preponderance that “the bar is not applicable.”In this regard, respondent claimed that the IJ had erred by finding her subject to the support bar because any assistance she provided was de minimisand therefore not “material.” She further averred that even if the bar applies, she is entitled to a duress exception. However, noted the Board, a prior precedent – Matter of M-H-Z-, 26I&N Dec. 757 (BIA 2016) – had held that there is no duress exception to the material support bar. As the Second Circuit, which has jurisdiction over the instant matter, has already deferred to this interpretation, the opinion did “not address that issue further.” Still, stated the BIA, it had to decide whether material support “contains a quantitative requirement,” i.e., whether insignificant, de minimissupport provided to a terrorist organization would not equate to “material” support, as argued by respondent and the dissent. The Board held that no such limitation exists in the bar. In support of this position, the decision noted that it is unlikely that Congress intended to impose the bar on one who was coerced into providing material support but to exempt one “who willingly provided such assistance, even if it was small in degree.”

Additionally, stated the BIA, “material support” is a term of art relating to the type of aid provided, e.g., support of a material and tangible nature, and it is not quantitative. The Third Circuit has defined it as anything with a “logical connection” to the aims of a terrorist organization, although the act need not be done for the specific purpose of aiding terrorism. Thus, concluded the Board, one provides the requisite support, regardless of whether it was intended to aid the terrorist organization, “if the act has a logical and reasonably foreseeable tendency to promote, sustain, or maintain the organization, even if only to a de minimis degree.” Further, emphasized the opinion, if providing an insignificant level of support did not constitute “material support,” DHS would not have promulgated a waiver for this type of circumstance: “The fact that the waiver covers such situations is clear evidence that the DHS regards the bar as extending to the provision of even ‘insignificant support,’ contrary to the contention of the respondent and the dissent.”

The BIA went on to find that despite the sympathetic facts of a particular case, it could find no support for concluding that Congress intended “a quantitative exclusion” from the bar, holding that respondent afforded material support when she aided guerrillas in continuing their mission of armed and violent opposition to the Salvadorean Government. Because several Federal courts of appeal have found material support in all types of activities, such as providing food and shelter and performing physical labor, the bar applies here and respondent’s cross-appeal on this point was dismissed, the BIA agreeing with the IJ that, but for the support bar, respondent would have been eligible for asylum on humanitarian grounds per Matter of Chen, 20 I&N Dec. 16 (BIA 1989).

 As to the CAT claim, the decision briefly noted that DHS claimed the IJ erred by granting deferral of removal under CAT because respondent had not demonstrated it is more likely than not she will be tortured if returned to El Salvador. The Board agreed that the IJ’s opinion had not provided sufficient fact-finding and analysis, preventing it from meaningfully addressing DHS’s arguments. It was also unclear, held the BIA, that the IJ had applied the correct legal standard in assessing respondent’s CAT claim; her analysis was “conclusory, stating only that the respondent met her burden to show that she was subject to torture and that deferral of removal was warranted.” The record was thus ordered remanded so the IJ could provide the necessary analyses and the parties could supplement the record.

In her dissent, Board Member Wendtland concurred with the majority to the extent it held that a remand for further proceedings was in order concerning respondent’s eligibility for CAT relief but would not join the other two Members’ conclusion that respondent is subject to the material support bar and would have sustained her cross-appeal. To the dissent, the main issue is “whether the respondent’s activities are of the kind and magnitude that would meet the threshold requirement of ‘material.’”

According to Board Member Wendtland, had Congress intended the word “material to add little or nothing to the threshold requirement, it would presumably have simply prohibited “support” to a terrorist organization. While the dissent admitted that the list of examples of material support found at INA §212(a)(3)(B)(iv)(VI) is not exhaustive, the acts mentioned clearly “imply that certain kinds and levels of support are required”; the “menial and incidental tasks that the respondent performed” are not of the “same class” as those mentioned in the statute, which all involve items that either can directly be used to plan or carry out terrorist activities or, as with funds, are liquid and fungible and therefore readily diverted to such use. Respondent’s services “cannot validly be placed in the same category.”

Further, the dissent could not conclude that the incidental assistance respondent provided the guerrillas afforded them “material” support in the logical sense of “having at least some importance to promoting, sustaining, or maintaining the organization’s goals,” citing to Ninth Circuit case law. Contrary to the majority’s findings, Board Member Wendtland could not conclude that Congress intended for any support, no matter how small or immaterial, to implicate the bar to asylum. This interpretation, she warned, would “lead to absurd results,” citing to the majority opinion. Nor did Board Member Wendtland believe that one who, like respondent, did not render material support to a terrorist group, should be relegated to the statutory waiver process of INA §212(d)(3)(B)(i), which applies only to “those individuals whose support did meet the threshold materiality requirement.” Given this view, she did not reach the question whether respondent reasonably should have known that the guerrillas were a terrorist organization. Matter of A-C-M-, 27 I&N Dec. 303 (BIA 2018).

Attorney General Sessions Holds That Immigration Judges And The Board of Immigration Appeals Have No General Authority To Suspend Indefinitely Immigration Proceedings Via Administrative Closure

Attorney General Sessions Holds That Immigration Judges And The Board of Immigration Appeals Have No General Authority To Suspend Indefinitely Immigration Proceedings Via Administrative Closure But MAY Only Administratively Close Where A Previous Regulation Or Judicially Approved Settlement Expressly Authorizes Such Action. Otherwise, Where A Case Has Been Administratively Closed, The Judge Or Board Shall Recalendar On Motion of Either Party. Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017) Expressly Overruled.

On May 17, 2018, Attorney General Jefferson Session decided a matter he had directed the Board of Immigration Appeals (BIA or Board) to refer for his review. He had previously requested the parties and interested Amici to submit briefs.

In his lengthy decision, the Attorney General (AG) initially noted the dramatic growth of the practice of administrative closure as “the Board has made [it] easier to obtain.” For decades, stated the AG, IJs could grant administrative closure only if both parties agreed, however, Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012) authorized the practice even over a party’s objection. More recently, the BIA in Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017) had clarified that the deciding factor should be “whether the party opposing administrative closure has provided a persuasive reason for the case to proceed and be resolved on the merits.” In affirming the Board’s order in the instant case vacating the IJ’s administrative closure order and remand, the AG held that “there is no general authority for administrative closure, as IJs can only exercise the authority provided by statute or delegated by his office. Because 1) Congress has never authorized the practice in a statute, 2) the Department of Justice (DOJ) only permits administrative closure in “specific categories of cases,” and 3) the AG has never delegated the general authority to do so and declines to do so, the decision ordered that cases administratively closed without “a specific authorizing regulatory provision or judicially approved settlement” be “recalendared upon motion by either party and overruled “all Board precedents inconsistent with” the instant opinion.

The AG began his analysis with a lengthy history of administrative closure, emphasizing that until Avetisyan in 2012, an IJ could only grant closure where both parties supported the request; the Avetisyan decision “significantly expanded the practice.” Thus, until early 2017, DHS used administrative closure decline to expend manpower on the prosecution of low priority cases without formally terminating them. However, last year revised guidance from DHS ended the practice of exempting classes of removable respondents from potential enforcement. Collaterally, noted Sessions, between 1998 and 2003, DHS “promulgated regulations requiring administrative closure in certain cases where [respondents] pursue statutory procedures to avoid removal.” The end result was a series of rules limiting closure to specific categories of cases, but no delegation to IJs of the general authority to authorize administrative closure.

The AG next addressed the complicated procedural history of the instant case, noting that at respondent’s fifth hearing, the IJ administratively closed respondent’s case and 10 others where the respondent had failed to appear, claiming that addresses from the Department of Health and Human Services’ Office of Refugee Resettlement (HHS-ORR) were not reliable. DHS had countered that “HHS-OOR had obtained the relevant address from the respondent in multiple forms, and provided additional proof that the mailing address did not contain errors.” Yet the IJ ordered the case administratively closed. The BIA vacated and remanded but a little over one month later, the AG certified the case for review.

Finding that IJs and the Board “lack a general authority to grant administrative closure,” as such “broad authority” has never been delegated and legal/policy arguments “do not justify it,” the AG held that IJs and the BIA only possess such authority where a previous regulation or settlement agreement expressly provides for it. Sessions found that no regulation – specifically citing to 8 C.F.R. §§1003.1(d)(1)(ii), 1003.10(b) – confers the authority to grant administrative closure. Similarly, he ruled that 8 C.F.R. §1240.1(a) (relied upon by Avetisyan), which states that IJs may take any action consistent with applicable law as may be appropriate, “does not concern the authority to make procedure rulings within the proceeding, such as the granting of administrative closure.“ Similarly, §1240.1(c), which recognizes that IJs may “otherwise regulate the course of the hearing” does not grant such authority, per the AG.

Additionally, the regulations that allow the Chief Immigration Judge and the Chairman of the BIA the authority to manage dockets (8 C.F.R. §§1003.1(a)(2)(i)(A), 1003.10(b)(1)) “grant no express authority to administratively close cases” and cannot reasonably be seen as implicitly delegating such authority, either. In fact, held Session, as no federal court has analyzed these regulations, those Court of Appeals decisions that have relied on Avetisyan or other circuit precedent to assume that IJs and the Board have closure authority neither conflict with, nor diminish, his authority to interpret the rules here. Such interpretations, found the decision, would also make the specific delegations of authority AGs have previously made in this area superfluous and would conflict with policies in place that obligate IJs and the BIA “to resolve immigration matters expeditiously.”

Further along these lines, Sessions noted that previous “instances of limited, express authority” by the AG confirm that there has been no broad delegation of closure authority; in such instances, the provision that IJs “may” administratively close specific cases further proves they do not already possess the discretionary power to do so. Again, interpreting the regulations to authorize general closure authority conflicts with current policies mandating that IJs and the Board proceed expeditiously to resolve cases since DHS has initiated proceedings. As in the instant case involving in absentia proceedings, INA §240(b)(5) imposes “an obligation” to order a noncitizen removed if the requisite evidence supports the charge. Lastly, that IJs and the BIA have continuously used administrative closure since the 1980s does not establish the existence of that authority; they “cannot arrogate power to themselves by seizing it,” concluded the opinion, in effect relying on the AG’s lack of specific disapproval.

Thus, Sessions ordered that all cases currently administratively closed “may remain closed unless DHS or the respondent requests recalendaring” and, upon motion of either party, the case shall be recalendared. The Board’s decision was affirmed and the case remanded for the IJ to issue a new Notice of Hearing within 14 days; the court was expressly ordered to proceed in absentia if respondent again fails to appear. Matter of Castro-Tum, 27 I&N Dec. 271 (BIA 2018).

BIA Holds That The Term “Prostitution” Is Not Limited to Crimes Involving Sexual Intercourse

BIA Holds That The Term “Prostitution” As Used In INA §101(a)(43)(K)(i), Which Provides That An Offense Relating To Owning, Controlling, Managing, or Supervising A Prostitution Business Is An Aggravated Felony, Is Not Limited to Crimes Involving Sexual Intercourse But Is Defined As Engaging In, Or Agreeing Or Offering To Engage In, Sexual Conduct For Anything Of Value. Therefore The Offense Of Keeping A Place Of Prostitution In Violation of §944.34(1) Of The Wisconsin Statutes Is Categorically An Aggravated Felony Per §101(a)(43)(K)(i).

On May 21, 2018, the Board of Immigration Appeals (BIA or Board), in a 2-1 precedent decision, upheld a DHS appeal of an Immigration Judge (IJ) order terminating proceedings and finding respondent not removable as an aggravated felon under INA §101(a)(43)(K)(i). Respondent, a lawful permanent resident, had been convicted of violating Wisconsin Statutes §944.34(1), which provides that one who intentionally keeps a place of prostitution is guilty of a felony. The IJ had relied on prior BIA precedent, Matter of Gonzalez-Zoquiapan, 24 I&N Dec. 549 (BIA 2008), which found that for purposes of INA §212(a)(2)(I)(ii), the term “prostitution” means “engaging in promiscuous sexual intercourse for hire,” a definition he found limited the term to acts involving sexual intercourse. Because the Wisconsin law included additional sex acts in its definition of “prostitution,” the IJ concluded it is overbroad relative to §101(a)(43)(K)(i), citing Second Circuit case law.

In its initial analysis, the Board noted that the DHS appeal “pointed out that only a handful of States limited the definition of prostitution to acts involving sexual intercourse” in 1994, when this aggravated felony section was enacted; the majority of States employed a definition including broad terms and/or listed multiple specific sex acts. The decision thus disagreed with the IJ and the case law he relied upon, claiming that the term “prostitution” as used in §101(a)(43)(K)(i) “does not necessarily have the same meaning as it does in the inadmissibility provision” at INA §212(a)(2)(D)(ii). Additionally, noted the BIA, Congress may have intended the term as used in §212(a) to have a “narrower scope” than when used in §101(a)(43)(K)(i), in that the former applies to those potential entrants who engage in prostitution or procure or import prostitutes while the latter applies to those convicted of an offense that relates to the operation of “a prostitution business.”

The Board then held that §101(a)(43)(K)(i) “should not be so narrowly construed as to exclude most States’ statutes proscribing the operation of a prostitution business from serving as predicates for removal.” The opinion went on to announce that “prostitution” is not generally limited to offenses involving sexual intercourse but is now defined as “engaging in, or agreeing or offering to engage in sexual conduct for anything of value.” As §101(a)(43)(K)(i) does not proscribe merely engaging in prostitution, it necessarily reaches “offenses of a commercial nature” relating to the owning, controlling, managing or supervising of a prostitution business. Therefore, concluded the Board, respondent’s conviction is categorically for an aggravated felony and she is removable. The decision of the IJ was vacated and the record remanded for further proceedings and entry of a new decision.

In a dissenting opinion, Board Member Cole agreed with the IJ that respondent’s conviction is not for an aggravated felony “under the existing Federal definition” of prostitution. She noted that Gonzalez-Zoquiapan limits “prostitution” to acts involving sexual intercourse. Where the majority found that the difference between the inadmissibility and aggravated felony removability grounds supported its conclusion that a different definition of prostitution is unwarranted here, Board Member Cole found this distinction to be insufficient to create a different definition for purposes of §101(a)(43)(K)(i). Moreover, she concluded, the IJ properly applied the canon of statutory interpretation employed in the Seventh Circuit (where this case arose), namely, the presumption that identical words used in different parts of the same statute should carry the same meaning – a rule followed by the Second Circuit as well. The dissent agreed with respondent that Congress should provide any new definition of “prostitution” because “neither the legislative history of the term nor the aggravated felony ground” supports the new definition. Matter of Ding, 27 I&N Dec. 295 (BIA 2018).

AAO Designates Adopted Decision, Clarifying That A Beneficiary Who Worked Abroad For A Qualifying Multinational Organization For At Least One Year, But Left Its Employ For A Period Of More Than 2 Years After Being Admitted To The U.S. As A Nonimmigrant, Does Not Satisfy The One-In-Three Year Foreign Employment Requirement

AAO Designates Adopted Decision, Clarifying That A Beneficiary Who Worked Abroad For A Qualifying Multinational Organization For At Least One Year, But Left Its Employ For A Period Of More Than 2 Years After Being Admitted To The U.S. As A Nonimmigrant, Does Not Satisfy The One-In-Three Year Foreign Employment Requirement For EB-1 Classification As A Multinational Manager Or Executive. To Cure The Interruption, The Beneficiary Needs An Additional Year Of Qualifying Employment Abroad.

On March 19, 2018, the Administration Appeals Office (AAO) designated this opinion as an Adopted Decision, establishing policy guidance for USCIS personnel. Petitioner had filed an EB-1C I-140 seeking to classify an employee as a multinational manager or executive, i.e., an executive or managerial capacity employee who had worked abroad for one year in the three years preceding the filing of the petition or the employee’s admission to work for the Petitioner as a nonimmigrant.

The Nebraska Service Center (NSC) denied the I-140 on the ground that the Petitioner had not employed the Beneficiary abroad for at least one of the three years preceding his nonimmigrant entry into the U.S. to work for the Petitioner. The NSC cited an interruption of four years between “the Beneficiary’s foreign employment with the Petitioner’s affiliate and his U.S. employment with the Petitioner,” refusing to consider the three year period preceding the Beneficiary’s earlier entry to work for the Petitioner, because he had subsequently worked for an unrelated U.S. employer for several years before returning to Petitioner.

Petitioner appealed to the AAO, claiming that the Beneficiary had performed qualifying work for its overseas affiliate before initially entering the U.S. to work for Petitioner years before, maintaining that “the regulations do not preclude a post-entry interruption in employment as long as the Beneficiary is working for the Petitioner as a nonimmigrant at the time of filing the EB-1 petition.”

Initially, the AAO noted that in the I-140 context under INA §203 (b)(1)(C), if a beneficiary is outside the U.S. at the time of filing, the petitioner must demonstrate that his or her one year of qualifying foreign employment occurred within the three years immediately preceding the filing of the petition; where the beneficiary is already working for the petitioner or a related qualifying entity in the U.S at the time of filing, stated the decision, the petitioner must prove that the one year of foreign employment occurred in the three years preceding his or her entry as a nonimmigrant.

Here, the Beneficiary had been working for Petitioner in the U.S. in L-1A status and Petitioner therefore had to show that Beneficiary’s foreign employment occurred in the three years preceding his entry into the country. The issue is whether USCIS should look at the three years preceding his initial entry to work for Petitioner or the three-year period preceding his entry to work for Petitioner “after an extended period of employment with a different U.S. employer.”

The Beneficiary had worked abroad for Petitioner’s affiliate for over one year, then entered the U.S. in January 2008 to work for Petitioner, a job he left in September 2010. He then worked with an unrelated U.S. employer from April 2011 to July 2014, departed the U.S., and returned in September 2014 to his current job with Petitioner, who filed the I-140 two months later.

The NSC found that “Petitioner did not establish that the Beneficiary had been employed abroad for at least one year during the three years preceding his entry to the United States to commence employment with the Petitioner in September 2014, because of the intervening years spent working for an unrelated company.”

The AAO disagreed with the Petitioner’s assertion that the relevant three year period was prior to the Beneficiary’s 2008 entry, stating that under this interpretation anyone who had worked as a manager or executive for a qualifying entity abroad for one year during the three years preceding entry would remain eligible indefinitely for EB-1C classification “as long as he or she was initially admitted to work for the multinational organization and eventually returned to its employ prior to filing the immigrant petition.” The statute and regulations, held the AAO, sever eligibility for such classification for one who is outside of the U.S. if there was an interruption in employment with the qualifying organization “for more than two years during the three years prior to filing” the I-140.

Thus, concluded the AAO, one who worked as a manager or executive for a qualifying multinational entity for at least one year but then left the organization for more than two years, is ineligible for EB-1C classification; to cure the interruption, he or she would need an additional year of qualifying employment abroad. Although the AAO agreed with the Petitioner that work with a different U.S. employer would not automatically disqualify such a beneficiary, a break in qualifying employment of over two years interrupts the continuity of employment with the petitioner’s organization. As the Beneficiary was not employed for at least one year abroad by a qualifying entity between September 2011 and September 2014, he is ineligible for EB-1C classification and the appeal was dismissed. Matter of S-P-, Inc., Adopted Decision 2018-01 (AAO Mar. 19, 2018).

BIA Holds That DHS Has Authority To File A Motion to Reconsider In Immigration Court And An Applicant In Withholding Of Removal-Only Proceedings Who Is Subject To A Reinstated Order of Removal Under INA §241 (a)(5) Is Ineligible for Asylum.

On April 27, 2018, the Board of Immigration Appeals (BIA or Board) sustained a DHS appeal of the denial by an Immigration Judge (IJ) of a Department motion to reconsider (MTR) regarding a grant of asylum to respondent. The DHS motion had argued that the IJ’s grant was impermissible because respondent was subject to a reinstated order of removal per INA §241 (a)(5). The IJ had declined to address the motion’s merits, ruling that DHS had no ability to file a MTR and that the regulation which allows the Court to accept an MTR from DHS is inconsistent with the Act. The IJ, therefore, found that DHS does not have the statutory authority to file such as motion; in the alternative, the IJ held the DHS motion barred by res judicata.

At the beginning of its analysis, the BIA noted that an IJ has no authority to disregard the regulations which give DHS authority to seek reconsideration and reopening (8 C.F.R. § 1003.23 (b)(1)), which “have the force and effect of law.” Further, the express limitations on a respondent’s right to file motions “do not necessarily indicate that only the [respondent] has that right,” citing to INA §240 (c)(6)(A); the Board thus found the language of this statutory section to be ambiguous.

The BIA next found that the legislative history does not support the IJ’s conclusion that §240 (c)(6) was intended to provide rights solely to respondents while limiting DHS’s ability to file motions: after publications of the interim regulations, several commenters had argued that the time and numerical limitation on motion filings apply to all parties. Yet the Legacy-INS had rejected that argument, concluding that Congress had imposed limits on motions to reopen where none had existed before and imposed those limits only on respondents. As a result, stated the Board, the time and number limits do not apply to Government motions. As such, the BIA found “no logical rationale for concluding that only one party is permitted to seek the correction of a defective decision” and held that the INA does not preclude DHS from filing an MTR before the IJ. Additionally, because withholding of removal-only proceedings are subject to a timely MTR, “the administrative process provided by the regulations has not been completed, so the doctrine of res judicata does not apply.”

Finally, the BIA held that the IJ erred in granting asylum to respondent, who is subject to a reinstated order of removal under INA §241 (a)(5) and is thus properly placed in withholding of removal-only proceedings. Because this is clear from the applicable regulations (8 C.F.R. §1208.31 (e)), respondent “is ineligible for asylum in these proceedings.” The IJ’s order granting asylum was thus vacated, the record remanded to consider respondent’s requests for relief, and the appeal sustained. Matter of L-M-P-, 27I&N Dec. 265 (BIA 2018).

BIA Holds That Conviction For Stalking Under California Penal Code §646.9 Is Not “A Crime Of Stalking” Per INA §237(A)(2)(E)(i), Overruling Matter Of Sanchez-Lopez, 26 I&N Dec. 71 (BIA 2012).

On April 20, 2018, the Board of Immigrations (BIA or Board), in yet another lengthy and densely-reasoned decision, ruling on remand from the Ninth Circuit Court Of Appeals, sustained a respondent’s appeal and terminated removal proceedings over a dissenting opinion.  Respondent had been convicted under California Penal Code (CPC) §646.9 of stalking and placed into removal proceedings by DHS, charged as deportable per INA §237(A)(2)(E)(i). The Immigration Judge (IJ) found respondent removable, a holding upheld by the BIA in a published decision, Matter Of Sanchez-Lopez, 26 I&N Dec. 71 (BIA 2012), which specifically ruled that a conviction under §646.9 qualifies as a “crime of stalking” per the INA.

On initial remand from the Ninth Circuit (based on DHS’ unopposed motion), the Board upheld its previous decision; a second remand (following a second DHS motion) resulted in the instant reconsideration of the prior precedent.  On remand, respondent contended that his §646.9 conviction did not qualify as a stalking offense under the INA.

At the beginning of its analysis, the BIA noted that §237(A)(2)(E)(i) states that one is deportable if “at any time after admission” he or she is convicted of a “crime of stalking”, observing that the first Sanchez-Lopez decision defined “a crime of stalking” under the Act as an offense containing the following elements: 1) conduct engaged in on more than a single occasion 2) directed at a specific individual 3) with the intent to cause that individual or a member of his or her immediate family to be placed in fear of bodily injury or death.  In its second unopposed remand motion, DHS had asked the Board to reconsider “whether there is a ‘realistic probability’ that California would apply section 646.9 to conduct committed with the intent ‘to cause and [which] causes a victim to fear safely in a non-physical cause’”. The BIA thus looked at U.S. Supreme Court jurisprudence, noting that to find that a state statute creates a crime outside the generic definition of the federal offense, there must be “a realistic probability, not a theoretical possibility” that the state would actually prosecute conduct that falls outside the generic definition.

Because no California case was found that could definitively settle whether there is a realistic probability §646.9 would be applied to a stalking offense committed with the intent to cause a victim to fear non-physical injury, the Board examined whether the language of the statute is “overly inclusive”.  On this point, because in 1994 the California Legislature had amended 646.9 to require a victim need only fear for his or her safety or that of his or her family, while deleting the requirement that the threat be against the life of, or threaten great bodily injury to, the victim, the Board concluded that the state had broadened the statute to encompass fear of a non-physical injury and therefore § 646.9’s text now “establishes that there is a ‘realistic probability’ that California would apply the statute to conduct falling outside the definition of the ‘crime of stalking’”.  As such, the appeal was sustained and proceedings ordered terminated.

In dissent, Board Member Malphrus expressed frustration with the majority’s refusal to define the generic definition of stalking to include the California statute at issue here.  He found that the generic definition used by the Board in the 2012 Sanchez-Lopez precedent decision was not substantially different from the “fear for one’s safety” standard incorporated by California, claiming that such a reasonable fear should be read into the generic definition of stalking found at §237(A)(2)(E)(i).  The dissenting opinion concluded by noting that this case illustrates the limitations of the categorical approach as now imposed by U.S. Supreme Court jurisprudence citing to (Descamps and Mathis) which now prevents those convicted of stalking from being removed, a result not intended by Congress.

Board of Immigration Appeals

On April 6, 2018, the Board of Immigration Appeals (BIA or Board) sustained a respondent’s appeal, wherein DHS and appellant had filed a joint brief in support of the appeal, and remanded the record to the Immigration Judge (IJ).  Respondent had been convicted of a theft offense in Texas but that case had been dismissed upon the state’s request after a motion for new trial. Before the IJ, respondent conceded removability and requested cancellation of removal, counsel and DHS filing a joint brief claiming the conviction had been vacated because of a substantive defect in the underlying criminal proceeding and was therefore no longer a “conviction” for immigration purposes.  However, the IJ found respondent statutorily ineligible for relief and pretermitted the application, finding the conviction still qualified as an offense under INA §212(a)(2)(A)(i)(I), relying on Renteria-Gonzalez v. INS, 322 F.3d 804 (5th Cir. 2002) for the conclusion that vacated convictions remain valid for immigration purposes “regardless of the reason for the vacatur.”

The BIA first noted that, subsequent to Renteria-Gonzalez V. INS, it had issued its decision in Matter Of Pickering, 23 I&N Dec. 621 (BIA 2003), rev’d on other grounds, Pickering V. Gonzalez, 465 F.3d 263 (6th Cir. 2006), in which the Board had held that if a court vacates on a conviction because of a procedural or substantive defect, rather than for rehabilitation or immigration hardship purposes, the conviction is deemed eliminated; the BIA quoted its prior holding that where a court with jurisdiction vacates a conviction based on a defect in the underlying criminal proceedings, respondent no longer has a “conviction” within the meaning of INA §101(a)(48)(A).  The Board then pointedly stated that, with the exception of the Fifth Circuit, its interpretation of the term “conviction” and approach to determining whether a vacated conviction remains valid for immigration purposes had been “adopted by every court that has addressed the issue.”

The BIA also noted that in a request for rehearing en banc in Discipio v. Ashcroft, 369 F.3d 472 (5th Cir. 2004), vacated on reh’g, 417 F.3d 448 (5th Cir. 2005), the Government had advised the Court of Appeals that it was prepared to modify its position, apply Pickering and terminate proceedings because the underlying conviction “was undisputedly vacated for procedural and substantive defects.”  Yet, stated the Board, because the Fifth Circuit had not overruled or modified its holding in Renteria-Gonzalez v. INS, the danger of inconsistent decision continues to persist.

Finally, citing to its usual recitation of the requirement that where a statute is silent or ambiguous, the agency’s permissible interpretation should be given deference, as found in Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984), as later modified to include those situations where a court has previously issued a contrary decision but the administrative interpretation is reasonable (Nat’l Cable & Telecomms. Ass’n. v. Brand X Internet Servs., 545 U.S. 967 (2005)), the BIA held that §101(a)(48)(A) is silent regarding the effect of a vacated conviction and reaffirmed its holding in Pickering.  To promote national uniformity, Pickering will now be applied on a nationwide basis.  The appeal was sustained and the record remanded to the IJ for consideration of respondent’s applications for relief.  Matter of Marquez Conde, 27 I&N. Dec. 251 (BIA 2018).

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Attorney General Sessions Denies Request Of DHS That He Suspend Briefing Schedules And Clarify Question Presented And Grants, In Part, Parties Request For Extension Of Deadline For Submitting Briefs.

On March 30, 2018, Attorney General Sessions issued an order addressing requests from both parties in a case he had previously referred to himself for review. The parties had been asked to submit briefs and schedules for initial, amici and reply briefs had been set.

However, respondent requested an extension of the deadline for submitting initial briefs and, 3 days later, DHS moved to: 1)suspend the briefing schedules to allow the Board of Immigration Appeals (BIA or Board) to rule on the certification order of the Immigration Judge (IJ), 2)clarify the question presented, and 3)extend the deadline for submitting its initial brief.  Respondent then filed a request for the same relief.

In his order, the Attorney General (AG) first stated that certification from the IJ was “not properly pending before the Board”, claiming the IJ had not acted within his authority as delineated by the controlling regulations as he had not issued a “decision” on remand that could be certified to the BIA.

The AG also denied DHS’s request to clarify the question presented, stating that he had requested briefing on whether, and under what circumstances, being a victim of private criminal activity constitutes a cognizable “particular social group” (PSG) for asylum or withholding of removal purposes.  Noting that he had invited the parties and interested amici to brief the relevant points, the AG declared that if being a victim of private criminal activity qualifies one as a PSG member, “the briefs should identify such situations” or explain why such situations do not exist. Observing that DHS was requesting clarification because “this question has already been answered at least in part, by the Board”, AG Sessions held that “Board precedent…does not bind my ultimate decision in this matter”, citing to INA §103(a)(1).  He then gave new duties for the filing of initial, amici, and reply briefs, holding that no further requests for extensions would be granted.

Matter of A-B-, 27 I&N 247 (A.G. 2018)

BIA Holds That The Offense Of Attempted Voluntary Manslaughter Under California Penal Code Sections 192(A) And 664, Which Requires The Specific Intent To Cause Another Person’s Death, Is Categorically An Aggravated Felony Crime Of Violence Per INA § 101(A)(43)(F), Despite The Fact That The Completed Offense Of Voluntary Manslaughter Itself Is Not Such An Aggravated Felony.

On March 15, 2018 the Board of Immigration Appeals (BIA or Board), sustained the appeal of a decision of the Immigration Judge (IJ) terminating removal proceedings on the ground that the respondent is not deportable under INA § 237(a)(2)(A)(iii) for having been convicted of an aggravated felony.  Respondent had been convicted of both voluntary manslaughter in violation of California Penal Code (CPC) section 192(a) and attempted voluntary manslaughter under CPC sections 192(a) and 664. The initial Notice to Appear (NTA) charged him with removability under INA § 237(a)(2)(A)(iii) on the basis of her CPC section 192(a) conviction, claiming that offense constitutes an aggravated felony per INA § 101(a)(43)(F).  

However, as the Board explained, “DHS subsequently conceded that voluntary manslaughter under California law is not a crime of violence and lodged an additional charge that the respondent’s conviction for attempted voluntary manslaughter in violation of sections 192(a) and 664 is a conviction for a crime of violence (COV) under sections 101(a)(43)(F) and an attempt to commit an aggravated felony under section 101(a)(43)(U).”

The IJ found section 192(a) indivisible and overbroad relative to 101(a)(43)(F), concluding that attempted manslaughter is not an aggravated felony COV or an attempt offense under 101(a)(43)(U), that respondent was therefore not removable as charged, and terminated proceedings.  On appeal, DHS contended that a conviction under 192(a) and 664 is an aggravated felony COV, even if the completed offense of voluntary manslaughter under § 192(a) is not.

The BIA began its analysis by stating that in determining whether one is removable under § 237(a)(2)(A)(iii), it uses the categorical approach, focusing on the elements of the crime, not the case’ s particular facts; this approach asks whether the state statute of conviction fits within the generic federal definition of a corresponding aggravated felony.  As a result, the Board must compare the elements of CPC 192(a) and 664 with the Federal generic definition of a COV found at § 101(a)(43)(F). If the elements of the state crime are the same or narrower than those of the Federal offense, noted the opinion, “the state crime is a categorical match and every conviction under that statute qualifies as an aggravated felony.”

In finding that California manslaughter is not a categorical COV, the IJ relied on a Ninth Circuit case, Quijado-Aguilar v. Lynch, 799 F.3d 1303 (9th Cir. 2015), which held that because one may be convicted under section 192(a) for reckless conduct, a conviction is not a categorical COV under the applicable Federal law, 18 U.S.C. § 16(a), which requires the intentional use of force.

The BIA then found that section 192(a) is not a categorical COV “because it encompasses both intentional and reckless acts”, but concluded that the offense of attempted voluntary manslaughter under the CPC “is not similarly overboard relative to § 16(a)”.  In fact, one who violates sections 192(a) and 664 must act with “the specific intent to kill another person.” The Board thus held that, unlike voluntary manslaughter, the attempted crime under sections 192(a) and 664 requires a specific intent to kill, necessarily involving the volitional “use” of force required by § 16(a).

Finally, held the decision, although counterintuitive, respondent’s conviction for attempted voluntary manslaughter under 192(a) and 664 is categorically a COV under § 16(a), under the completed crime of a voluntary manslaughter, which encompasses reckless conduct and is therefore not a categorical COV under Ninth Circuit law.  The appeal was sustained, the IJ’s decision vacated and removal proceedings reinstated with the record remanded to the Immigration Court. Matter of Cervantez Nunez, 27 I&N Dec.238 (BIA 2018).