All posts by Philip Levin

BIA Holds Conviction For Transporting A Loaded Firearm In Violation Of Oklahoma Statue Title 21, Section 1289.13, Is A Categorical Firearms Offense Under INA §237(a)(2)C) Because That Law Is Broadly Construed To Encompass All Types Of Firearms Offenses, Even Though The Word “Transporting” Is Not Included In The INA.

On March 3, 2017, the Board of Immigration Appeals (BIA or Board) held that the offense of transporting a loaded firearm in violation of Title 21, Section 1289.13 of the Oklahoma Statutes qualifies as a firearms offense per INA §237(a)(2)(C), thus making one convicted  of said crime ineligible for cancellation of removal under INA §240(b)(1)(C).

The BIA began its opinion by noting that §237(a)(2)(C) makes removable one who at any time after admission is convicted under any law of purchasing, selling, offering for sale, exchanging, using, owning, possessing or carrying (or of attempting one of these acts) any firearm or destructive device, while referencing respondent’s contention that because “transporting” does not include “possessing” or “carrying” a firearm, Congress did not intend his crime to fell within the purview of §237(a)(2)(C).

The decision notes the INA’s use of the expansive term “any” and the “comprehensive list” of firearms transactions covered, making it clear Congress intended to embrace all firearms offenses under §237(a)(2)(C), a view – the BIA wrote – that has been upheld repeatedly by the Federal courts of appeal. In this regard, the Board quoted Federal caselaw on to how “possessing” and “possess” in §237(a)(2)(C) include constructive possession of a firearm. In this regard, found the Board, because respondent knowingly transported a firearm in his vehicle, he necessarily had constructive “possession” of it for purposes of the INA. Further, stated the BIA, it is illogical for unlawful possession to fall within §237(a)(2)(C)’s scope but for unlawful transportation of the same loaded weapon to be excluded.

As the Board found that the statute’s legislative history support its conclusion, it held that the crime of transporting a loaded firearm under Oklahoma law is categorically a firearms offense under the INA rendering respondent ineligible for cancellation relief and dismissed the appeal. Matter of Flores-Abarca, 26 I&N Dec. 922 (BIA 2017).


BIA Holds That INA §241(b)(3)B)(i) “Persecutor Bar” Applies To One Who Assists Or Otherwise Participates in Another’s Persecution Because Of That Person’s Race, Religion, Nationality, Membership In A Particular Social Group Or Political Opinion, Without Regard To The Persecutor’s Motivation For Assisting Or Participating.

On May 5, 2017, the Board of Immigration Appeals (BIA or Board) sustained a Department of Homeland Security (DHS) appeal of an Immigration Judge’s (IJ’s) granting of special rule cancellation of removal under Section 3 of the Nicaraguan Adjustment and Central American Relief Act (NACARA) after finding respondent was not subject to the “persecutor bar” of INA §241(b)(3)B)(i). Special rule cancellation under NACARA requires the applicant to prove that he or she is not barred from relief because of having ordered, incited, assisted or otherwise participated in the persecution of another because of that person’s “race, religion, nationality, membership in a particular social group, or political opinion”. The BIA thus noted towards the beginning of its opinion that the only issue here is whether the persecutor bar applies to respondent.

The applicant had served in the Salvadorian National Guard and detained someone who he “delivered to his supervisors for questioning”, then stood guard during the ensuing interrogation when the detainee was “severely mistreated”. The IJ held that while respondent had assisted or otherwise participated in his superiors’ actions, his own acts were a consequence of his military service undertaken to support himself and, as such, he had not imputed a political opinion to the detainee. Because the respondent did not intend to overcome another’s political opinion or other protected characteristic, the IJ concluded he was not subject to the persecutor bar.

Disagreeing, the Board noted that the applicant had “assisted” his superiors and their actions were taken on account of the detainee’s political opinion. Therefore, the BIA found that the “critical inquiry” was whether respondent needed to have a persecutory motive when he assisted in the victim’s persecution in order to be subject to the §241(b)(3)B)(i) prohibition. Quoting a relevant Fifth Circuit Court of Appeals opinion, after noting its “duty to apply the plain language of the Act”, the Board concluded that one’s personal motivation is not relevant to the application of the bar. Thus, held the BIA, when determining whether one has assisted or participated in persecution per §241(b)3(B)(i), the proper focus” is not on the actor’s motives, but “on the intent of the perpetrator of the underlying persecution”. Here, the respondent’s assistance involved the bar, without regard to his motivation, because his superiors’ conduct was based on the victim’s political opinion and he was ordered removed. Matter of Alvarada, 27 I&N Dec. 27 (BIA 2017).

BIA Holds That Sex Offense Violating A Statute Enacted To Protect Children Is A Crime Involving Moral Turpitude (CIMT) Where the Victim Is Particularly Young – Under 14 – Or Is Under 16 And the Age Difference Between the Perpetrator And Victim Is Significant, Or Both, Even Where The Law Does Not Require A Culpable Mental State As to the Child’s Age. As Such, Sexual Solicitation Of A Minor Per Maryland Criminal Law §3-324(b) With Intent To Engage In Unlawful Sexual Conduct In Violation Of §3-§307 Is A Categorical CIMT.

On April 6, 2017, the Board of Immigration Appeals (BIA or Board) held a respondent’s offense to be a categorical crime involving moral turpitude (CIMT) where all violations of the pertinent statute involve either a very young victim (under 14) or a substantial age difference between the adult defendant and a minor victim under 16.

Respondent was convicted of Maryland Criminal Law (MCL) §3-324 (sexual solicitation of a minor) and the Immigration Judge (IJ) had found him removable as, among other grounds, one convicted of a CIMT. On appeal, he argued his conviction did not so qualify. In its initial analysis, the BIA noted that the parties agreed the law is divisible and that respondent had been convicted under §3-324(b), prohibiting knowingly soliciting a minor or law enforcement officer, posing as a minor, with intent to violate MCL §3-307, to engage in acts violative of §3-307. In turn, the Board quoted §3-307(a) in full, which criminalizes sexual conduct with another without his or her consent in a variety of circumstances, including the use of a dangerous weapon; harming or inflicting severe physical injury; threating or placing in fear of  death, harm, or severe physical injury; or, while assisted by another. The section also criminalizes sexual contact with “a mentally defective”, “mentally incapacitated” or “physically helpless” individual where the perpetrator knows or should know of the impairment; sexual contact with one under 14 and the defendant is at least 4 years older; a sex act with a 14 or 15 year-old where the perpetrator is at least 21; and, vaginal intercourse with a 14 or 15 year-old where the defendant is at least 21. Given this, the Board cited Matter of Silva-Trevino, 24 I&N Dec. 286 (BIA 2016) for the general rule that CIMTs require both reprehensible conduct and a culpable mental state. Further, the decision stated that in determining whether an offense is a CIMT, the BIA uses the categorical approach, focusing on the elements of the criminal statute rather than the facts of the particular violation; where the statute is divisible the Board examines the record of conviction to identify the exact provision violated and then considers whether that portion of the statute “is a categorical match to the federal generic definition.”

In finding respondent’s violation to be a categorical CIMT, the BIA first noted that §3-324(b) requires a knowing solicitation of a minor, a culpable mental state fitting a generic CIMT. Additionally, §3-307 involves turpitudiouos sexual contact without consent, as well as intentional sexual acts or conduct with a minor under 16, clearly CIMTs. Responding to respondent’s argument that those parts of the law that do not require a culpable mental state as to the victim’s age do not categorically define a CIMT, the opinion looked to the Third Circuit’s reasoning in Mehboob v. Attorney General of the U.S., 549 F.3d 272 (3d Cir. 2008), which held that strict liability morality offenses like indecent assault are CIMTs “because of the community consensus that such offenses, which are enacted for the protection of the child, are inherently antisocial and depraved.”

Thus, because sex offenses against minors contravene society’s interest in protecting children and any type of sexual misconduct with a child intrudes on the victim’s rights, the BIA held that a sex offense in violation of a law enacted to protect children is a CIMT where the victim is particularly young – under 14 – or is under 16 and the age difference between the perpetrator and victim is significant, or both even though the statute requires no culpable mental state as to the child’s age. The Board collaterally held that where a criminal law prohibiting sexual conduct with a minor involves either a particularly young victim or a significant age differential with the child being younger than 16, the culpable mental state for a CIMT is implicitly satisfied by the commission of the proscribed act. As a result, all parts of §3-307 categorically fit within the generic definition of a CIMT.

The BIA therefore dismissed the appeal and, upon finding respondent had not submitted proof that his voluntary departure bond had been paid as ordered by the IJ, refused to reinstate voluntary departure. Instead, it ordered respondent removed. Matter of Jimenez-Cedillo, 27 I&N Dec. 1 (BIA 2017).

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BIA Holds That A Conviction Under California Penal Code §203 For The Crime Of Mayhem Requires A Malicious Act Resulting In Great Bodily Injury To Another, Therefore The Offense Involves The Use Of Violent Force And Is Thus A Categorical Crime Of Violence Per §18 USC 16(a).

On January 31, 2017, in a densely reasoned opinion, the Board of Immigration Appeals (BIA or Board) held that a conviction under California Penal Code §203 for mayhem qualifies as an aggravated felony crime of violence (COV) under INA §101(a)(43)(F) if the term of imprisonment imposed was at least one year. The appellant had been convicted of mayhem in 2013 and sentenced to 2 years in jail but in subsequent removal proceedings, the Immigration Judge (IJ) determined the offense was not a COV because §203 lacks an explicit element regarding the use, attempted use, or threatened use of violent force against another, as required by 18 USC §16(a), and terminated the proceedings. The government appealed.

Initially, the BIA noted that in determining whether respondent’s §203 conviction renders him removable it uses the categorical approach, comparing the elements of the criminal statute to those of the federal generic definition of a COV, assuming the conviction rested on nothing more than “the least of the acts criminalized”. The Board then noted that §16(a) defines a COV as an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, explaining that the term “use” denotes volition while “physical force” means violent force capable of causing physical pain or injury. As his §203 conviction required a jury to find that respondent 1) committed an unlawful and malicious act 2) resulting in another’s body part being removed, disabled or disfigured, the opinion stated that the IJ’s analysis did not appear to recognize – even without those terms’ inclusion – that the requisite force may be “necessarily involved” in violations of the California statue.

In analyzing the “use” of force component, the BIA noted that §203 requires one to actively use force within the meaning of §16(a) such that mayhem must be committed “maliciously”, which intent may be inferred from actions which result in the listed injuries. As a result, the proscribed conduct must involve a volitional act capable of causing physical pain or injury although not necessarily a specific type of harm. Thus, held the Board, respondent’s offense must have necessarily involved the “use” of physical force suggesting a higher degree of intent than negligent or accidental conduct.

In parsing the “use” of violent physical force, the BIA found that §203 requires one’s malicious act to cause “great bodily injury”, holding that this necessarily involves force capable of causing the required physical pain or injury. The Board also found that there is no realistic probability that §203 would be used to prosecute a mayhem offense involving mere offensive touching and thus held that a violation of §203 is categorically a COV per §16(a), vacated the IJ’s decision, sustained the appeal, reinstated proceedings and remanded the record to the IJ. Matter of Kim, 26 I&N Dec. 912 (BIA 2017).

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In Determining Whether A Statute Is Divisible Per Mathis v. United States, 136 S. Ct. 2243 (2016), Immigration Judges May Consider A Respondent’s Conviction Record Only to Figure Out Whether Statutory Alternatives Define “Elements” or “Means”, Provided The Issue Is Not Resolved By State Law.

On April 24, 2017, the Board of Immigration Appeals (BIA or Board) – in a case that has been before the BIA several times – denied a motion to reconsider filed by the government (“DHS”) in response to a prior opinion of the Board [Matter of Chairez , 26 I&N Dec. 819 (BIA 2016)] holding that DHS had failed to prove the respondent removable for conviction of an aggravated felony crime of violence (COV) per INA §237(a)(2)(A)(iii). (In a footnote the decision noted that the Immigration Judge (IJ) had, in fact, found respondent removable for conviction of a categorical firearms offense per INA §237(a)(2)(C), a finding the Board had previously affirmed.)

In its prior opinion in Chairez the BIA had, in a fairly technical holding, concluded that the section of the Utah Code respondent violated in being convicted of unlawfully discharging a firearm was not a categorical COV because it can include acts committed with a mens rea of recklessness; thus, even though the law included crimes committed intentionally and knowingly, it was not divisible into 3 separate offenses with “distinct mental states (intentional, knowing, and reckless) and therefore a modified categorical approach was not allowed.

The DHS motion had claimed the Board should extend the holding of the U.S. Supreme Court in Voisine v. United States, 136 S. Ct. 2272 (2016) and find that even a reckless firearms discharge is a COV under the Utah statute, despite the decision of the Tenth Circuit Court of Appeals, in whose jurisdiction this case arises, in United States v. Zuniga-Soto, 527 F.3d 1110 (10th Cir. 2008)(reckless conduct does not involve the deliberate “use” of physical force required by a COV). Alternatively, the government argued that, even if the Utah law is not a categorical COV, the BIA had misapplied Mathis v. United States, 136 S. Ct. 2243 (2016), cited as authority by Zuniga-Soto, by both improperly inferring the statute is indivisible and failing to consider respondent’s plea agreement as evidence of the law’s divisibility.

Holding that the DHS motion “does not identify an adequate reason for reconsideration”, the Board initially noted that it cannot extend the rationale of a Supreme Court case in the face of contrary controlling circuit precedent, stating that while Zuniga-Soto remained good law, this was not the proper case to express an opinion on “how the law may or should evolve after Voisine.” As to the contention that the BIA had misapplied Mathis, the opinion found that when state law does not address the distinction between “elements” and “means” as regards a specific criminal law, the Board may seek guidance in cases interpreting statutes with similar language and structure.

Lastly, as to divisibility under Mathis, the decision held that an IJ may consider the respondent’s conviction record for the “sole and limited purpose” of determining whether statutory alternatives define discrete “elements”, i.e., facts that must be proven to a jury beyond a reasonable doubt in order to obtain a conviction. However, as in the instant case, where the admission of a “knowing” mental state in a plea agreement is not “tethered” to any fact charged in an information, that admission cannot establish the divisibility of the particular statute under Mathis. No legal or factual error being found in its prior decision, the BIA denied DHS’ motion to reconsider.

In a concurring opinion, Board Member Garry Malphrus stated an opinion that the approach to divisibility dictated by Mathis “will result in immigration proceedings being terminated for many aliens who had committed serious crimes” in the U.S. Matter of Chairez-Castrejon, 27 N&N Dec. 21 (BIA 2017).

BIA Holds That The Primary Consideration For An Immigration Judge In Ruling On A Motion To Administratively Close Or Recalendar Proceedings Is Whether The Party Opposing Closure Has Provided A Persuasive Reason For The Case To Proceed And Be Resolved On The Merits. In Considering Administrative Closure, The Judge Cannot Review Whether A Respondent Falls Within The DHS Enforcement Priorities, As The Department Of Homeland Security Has Exclusive Jurisdiction Over Prosecutorial Discretion. Matter Of Avetisyan, 25 I&N Dec. 688 (BIA 2012), Clarified.

On April 18, 2017, the Board of Immigration Appeals (BIA or Board) addressed the case where an Immigration Judge (IJ) had granted a DHS motion to administratively close removal proceedings, which had been opposed by respondent who subsequently filed a motion to recalendar. The IJ denied that motion and respondent filed this interlocutory appeal. The BIA initially noted that in Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), the Board had determined for the first time that IJs and the BIA “have the authority to administratively close a case when appropriate, even if a party opposes it” and reiterated the factors set forth in Avetisyan to be evaluated in ruling on a motion for administrative closure.

Here, the Board stated, the IJ denied the motion to recalendar and kept the case closed to reserve the court’s limited resources. However, while the IJ’s concerns as to the most efficient use of court resources were recognized, the opinion held that such matters are secondary to a party’s interest in having a case resolved on the merits. The BIA also noted that Matter of Avetisyan does not list court resources as a cognizable factor to evaluate in determining whether administrative closure is appropriate.

Further, the Board disagreed with the IJ’s conclusion that this matter is not an actual case in dispute, reiterating that one in removal proceedings has a right to seek asylum and related relief. Thus, assuming that his application was properly filed and “he is eligible for the relief sought”, respondent has a right to a hearing on the merits of his claim; that DHS sought administrative closure is not dispositive of whether the case is actually in dispute. The opinion emphasized that DHS’ motion, while perhaps suggesting the case is not an enforcement priority, is not dispositive of whether the matter remains in dispute.

Noting the important public interest in the finality of immigration proceedings and that such interest is “particularly clear” where an appellant opposes administrative closure, the BIA found that unreasonable delays in resolving proceedings may operate to a respondent’s detriment by preventing relief that provides lawful status or thwarts the operation of removal statutes. Thus, the Board held that while Avetisyan sets forth the relevant factors to consider when determining whether to administratively close or recalendar proceedings, it further clarified that decision by stating that the “primary consideration” is whether the party opposing closure has provided a persuasive reason for the case to proceed and be resolved on the merits. The appeal was thus sustained, proceedings reinstated, and the record remanded. Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017).


AAO Adopts Decision Regarding Policy Guidance On Whether And When A Provisional Certificate Issued By A College Or University Confirming One Has Completed All Substantive Requirements For a Degree And That The School Has approved The Degree Is The Equivalent Of Achieving Said Degree For Purposes Of Calculating Post-Baccalaureate Experience.

On April 17, 2017, the Administrative Appeals Office (AAO) designated its opinion in this case as an Adopted Decision, establishing policy guidance binding all USCIS employees. The decision holds that USCIS must conduct a case-specific analysis as to whether, at the time a provisional certificate is issued, a beneficiary has completed all substantive requirements to earn the degree and the college or university has approved the degree. Where the petitioner can establish that, as of the date of the certificate’s issuance, the beneficiary had met all substantive requirements for the degree and the degree was approved, USCIS will use the date of the certificate’s issuance to calculate post-baccalaureate experience.

Initially, the opinion set forth the 3-step process of employment-based immigration: the approval of a labor certification; the filing of the I-140 visa petition by the employer; and, after the petition’s approval, the application for an immigrant visa or adjustment of status. It then noted that advanced degree professionals under the Employment-Based (EB) 2nd preference must show that the labor certification application required an advanced degree “or its equivalent”, stating that a U.S. baccalaureate or foreign equivalent followed by at least 5 years progressive experience shall be equivalent to a master’s degree, e.g., an “advanced degree.” Thus, to be eligible for EB-2 classification solely on the basis of a foreign degree bachelor’s equivalent, the beneficiary “must also possess 5 years of qualifying post-baccalaureate experience.”

In its analysis, the AAO pointed out that the beneficiary had a bachelor’s degree from a technological university in India; the sole issue was when the degree was issued, i.e., after which date her progressive experience in terms of EB-2 qualification may be calculated. The opinion framed the legal question as whether the 5 years of experience is measured from when the beneficiary received the formal diploma or earlier, when she completed all requirements for the degree and received a provisional certificate reflecting that the degree was approved. In this particular case, the AAO concluded, the certificate constitutes an official academic record of her “degree” for purposes of calculating post-graduate experience.

The AAO thus held that USCIS most conduct a case-specific analysis to determine whether, at the time a provisional certificate is issued, the beneficiary has completed all substantive requirements to earn the degree and the school has approved the degree, Evidence regarding the individual nature of each institution’s requirements for the program of study and completion of those requirements must therefore be considered. Further, stated the decision, the burden is on the petitioner to show that the certificate reflects that, at issuance, all substantive requirements for the degree were met and the degree was approved by the responsible college or university body. (A footnote requires that, in such cases, petitioners submit a copy of a beneficiary’s “statement of marks or transcript to demonstrate years of study, and coursework completed, along with a copy of the provisional certificate.”) Because the record confirmed that, as of the date of the certificate’s issuance, the beneficiary had completed all substantive requirements for the degree and the university had approved the degree, and the AACRAO EDGE website confirmed such certificates’ recognition, the AAO found that the beneficiary had obtained the required 5 years experience beginning with issuance of the provisional certificate and had thus established EB-2 qualification, sustaining the appeal. Matter of O-A-, Inc., Adopted Decision 2017-03 (AAO Apr. 17, 2017).

Voluntary Departure from the United States

What if I leave the United States voluntarily when I receive the Notice to Appear?

If someone receives a notice to appear then leaves the U.S., the system may not know that the alien has voluntarily left the United States. What they do know is that you didn’t appear at your hearing. When that occurs, the Judge orders you removed “in absentia.” This is never a good idea. Reopening a

You may also ask that the IJ grant you “voluntary departure.” A voluntary departure is a Judge’s order, and most of time it is preferable to a removal order because when you are ordered removed the burden of coming back is higher.

If you are granted voluntary departure and you do leave the United States within the time granted by the IJ, you don’t have that removal barrier sometimes. This means you may not have to file an I-212. This is a very important point because you haven’t been “deported”.

Voluntary departure is a form of defense. If you are in front of the immigration judge and you really don’t have any mechanisms to apply, you don’t have CAT, you don’t have an asylum application, perhaps at that moment you don’t have a viable spousal case or family-based case to apply for a residency. If you don’t have that, sometimes the best strategy that an immigration attorney will tell you is, “Let’s get you voluntary departure. You have to leave the U.S., but while you are gone, we will be able to work on all these other mechanisms. We can file the I-130 petition to get you back into the U.S. but we don’t have to fight this waiver application process. That’s one way under the voluntary departure.

But, in the instance that the person just takes off, and he’s ordered removed in absentia, he has another higher burden. It doesn’t make sense for a person to just leave the U.S. if there’s a chance they may be removed in absentia, because no matter what, even though he left without attending a court hearing, the judge is still going to have that order, and you are still going to file that I-212, or you are going to fight that in absentia order.

How do I notify the Court that I’m leaving voluntarily?

Generally, there is no set form for this request. A person could file a motion where he or she is essentially asking the judge for prehearing voluntary departure. If you’re granted prehearing voluntary departure, you have to pay a nominal fee, and then, you are given a set amount of time to leave the U.S. Then you can get your “bond” fee back, and you can actually turn around and come back to the United States if you can prove that you’re eligible for an immigrant or nonimmigrant visa.

Two types of Voluntary Departure

There are two types of voluntary departure: The prehearing voluntary departure because you have voluntarily said “I’ll take myself out of the system. Let me leave on my own terms.” And, then, there is post-hearing voluntary departure where the burden gets a little higher. Penalties can start to accrue at a higher rate if you violate the voluntary departure when it is post-hearing.

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BIA Holds That, Under The Adam Walsh Act And INA §204(a)(1)(viii)(I), A Petitioner Is “Convicted” Of An Offense Where A Formal Judgment Of Guilt Is Entered By A Court Or, If Adjudication Of Guilt Was Withheld, Where A Plea, Finding, Or Admission Established His Or Her Guilt And A Judge Ordered Some Form Of Punishment, Penalty, Or Restraint On Petitioner’s Liberty

On January 12, 2017, the Board of Immigration Appeals (BIA or Board) decided the appeal of an I-130 immigrant visa petition denied by the Service Center Director (Director) on the basis that the petitioner is barred from having the case approved by the Adam Walsh Act, noted upholding the Director’s decision and dismissing the appeal. Petitioner had been convicted of California Penal Code §243.4(a), sexual battery by restraint, and the Director found the conviction to be for a “specified offense against a minor” under the Adam Walsh Act, noted that petitioner had not established he poses no risk to the beneficiary (his spouse) and denied the petition. Submitting proof that his conviction had been expunged under California Penal Code §1203.4, petitioner argued he had not been “convicted” but the Director held the post-conviction relief did not overcome the conviction because it was obtained per a rehabilitative statute, rather than as the result of a procedural or substantive defect in the proceedings. Petitioner also argued on appeal that the definition of “conviction” found at INA §101(a)(48)(A) did not apply to U.S. citizens like himself; the BIA requested supplemental briefing on this issue.

Initially, in its analysis, the Board held that the definition of “conviction” found at INA §101(a)(48)(A) applies to lawful permanent residents and U.S. citizens and would therefore be adopted for purposes of INA §204(a)(1)(A)(iii)(I), which states that a U.S. citizen petitioner convicted of a specified offense against a minor may only have a visa petition approved if DHS determines he or she presents “no risk” to the beneficiary. Thus, stated the BIA, a petitioner has been “convicted” where “either a formal judgment of guilt has been entered by a court or, if adjudication of guilt has been withheld, where (1) a plea, finding, or admission of facts established the petitioner’s guilt and (2) a judge ordered some form of punishment, penalty, or restraint on his or her liberty.”

The Board went on to find that the §1203.4 expungement, while releasing the petitioner from the penalties and disabilities of the offense, was actually quite limited and therefore had no effect on his conviction for either Adam Walsh Act or INA §204(a)(1)(A)(iii)(I) purposes. The opinion also rejected petitioner’s argument that his crime did not constitute a specified offense against a minor, finding the BIA’s own precedent – Matter of Inrocaso, 26 I&N Dec. 304 (BIA 2014) – allowed DHS to inquire into the facts and circumstances of the violation to ascertain both the victim’s age and petitioner’s underlying conduct. As such, the Director’s determination that petitioner had not met his burden of establishing he was not convicted of a specified offense against a minor was affirmed and the appeal dismissed. Matter of Calcano De Millan, 26 I&N Dec. 904 (BIA 2017).

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BIA Holds Definition Of Perjury Under INA §101(a)(43)(S) Requires A Knowing Material False Statement Under Oath Where An Oath Is Authorized By Law And, Thus, A Conviction For Perjury In Violation Of California Penal Code §118(a) Qualifies As An Aggravated Felony Per §(a)(43)(S).

On December 29, 2016, in a case remanded by the Ninth Circuit Court of Appeals, the Board of Immigration Appeals (BIA or Board) upheld the decision of the Immigration Judge (IJ) that a conviction for perjury under California Penal Code §118(a) is a categorical aggravated felony per INA §101(a)(43)(S) as an offense relating to perjury where the term of imprisonment is at least one year. Initially, the respondent had conceded removability and applied for various forms of relief but the IJ found him to be an aggravated felon ineligible for relief and the BIA affirmed. After the filing of a petition for review, the Ninth Circuit granted a motion to remand so the Board could consider its previous holding in Matter of Martines-Recinos, 23 I&N Dec. 175 (BIA 2001)(en banc), which found that a violation of §118(a) is a categorical aggravated felony perjury offense by comparing 18 USC §1621, the Federal perjury statute, with the elements of the California statute.

In its analysis, the BIA first noted that the Martinez-Recinos decision had not explained why the Board relied on §1621 for a generic definition of perjury. The BIA then found that “18 USC §1621 alone does not provide the generic definition of perjury for purposes of “INA §101(a)(43)(S), instead adopting a generic definition “based on how the crime of perjury was commonly defined at the time §101(a)(43)(S) was enacted”. Looking to the 1996 definitions of perjury codified in state and Federal law, the Model Penal Code, and scholarly commentary to articulate a uniform definition of perjury, the Board withdrew from Martinez-Recinos to the extent it conflicts with its’ new framework.

The decision’s survey of perjury statutes led the BIA to conclude that when “perjury” was added to (a)(43)(S) in 1996, the majority of states agreed the definition included 1) a material 2) false statement 3) made knowingly or willfully 4) while under oath, affirmation or penalty of perjury, e.g., made at an official proceeding or where an oath was required or authorized by law. This definition, held the Board, also embodies “the level of criminal liability that Congress intended when it added the offense of perjury” to the INA in 1996. Comparing the elements of §118(a) to this definition, the BIA concluded that respondent’s conviction is categorically for an offense relating to perjury under §101(a)(43)(S) as the state law “substantially emulates” the Federal crime proscribed by §1621, which is generally accepted as the acknowledged definition of perjury. In a footnote, the Board agreed with the Ninth Circuit that §118(a) is broader than that common law definition but noted that its analysis concerned the generic definition of the offense when §101(a)(43)(S) was enacted, a definition which may diverge from the common law. As such, the decision concluded that respondent’s conviction was for a categorical aggravated felony rendering him ineligible for relief and dismissed the appeal. Matter of Alvarado, 26 I&N Dec. 895 (BIA 2016).

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