One Has “Previously Been Admitted” To The U.S. “As An Alien Lawfully Admitted For Permanent Residence” Under INA § 212(H) If He Or She Was Inspected, Admitted And Physically Entered The Country As A Lawful Permanent Resident At Any Time In The Past, Even If Such Admission Was Not The Person’s Most Recent Acquisition Of Permanent Resident Status.

On October 3, 2017, the Board of Immigration Appeals (BIA or Board) ruled on the appeal of a respondent held by the Immigration Judge (IJ) to be ineligible for a waiver of inadmissibility under INA § 212(h) and ordered removed.  Respondent had been admitted to the U.S. as a lawful permanent resident (LPR), subsequently convicted of conspiracy to operate an illegal gambling business in violation of federal law, placed into removal proceedings as an aggravated felon, then granted adjustment of status (AOS) by the IJ.  Five and a-half years later, he was convicted of conspiracy to commit extortion (another federal crime), placed back into proceedings, which went up to and were remanded by the BIA, after which DHS lodged the additional charge of having been convicted of conspiracy to commit an aggravated felony theft offense per INA §§ 101(a)(43)(J) and (U).  The IJ found respondent ineligible for a § 212(h) waiver, filed as part of his second AOS application, holding he had “previously been admitted to the United States as an alien lawfully admitted for permanent residence” at his very first admission and subsequently convicted of an aggravated felony.  Respondent argued that the word “previously” in § 212(h) referred only to the most recent time he obtained LPR status.

The BIA initially cited to Dobrova v. Holder, 607 F.3d 297 (2d Cir. 2010) which considered “the ordinary, common meaning” of “previously” in the statute and held that it did not refer to the most recent action, “but to action that has taken place sometime in the indefinite past.”  Applying the Second Circuit’s analysis, the Board concluded that respondent is not eligible for the waiver as he first entered the country as a LPR after inspection and admission following consular processing abroad and was then convicted of aggravated felonies.  He therefore qualified as one who has “previously been admitted” to the U.S. “as an alien lawfully admitted for permanent residence” and subsequently “convicted of an aggravated felony” under INA § 212(h).  His AOS in court, held the BIA, did not preclude this finding of ineligibility.  The appeal was dismissed.  Matter of Vella, 27 I&N Dec. 138 (BIA 2017).

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One Seeking To Qualify For The Inadmissibility Exception To INA § 212(A)(6)(A)(ii) Must Satisfy All 3 Subclauses Of That Section, Including The Requirement That He Or She Be A “VAWA Self-Petitioner.”

On October 6, 2017, the Board of Immigration Appeals (BIA or Board) sustained a DHS appeal of an Immigration Judge’s (IJ’s) termination of removal proceedings in the case of a woman charged under INA § 212(A)(6)(A)(i) as one removable for being present in the U.S. without admission or parole. The IJ had terminated proceedings, holding respondent qualified for the exception to this ground per INA § (a)(6)(A)(ii), which is granted to one who I) is a VAWA self-petitioner; II) a) has been battered or subjected to extreme cruelty by a spouse or parent or member of the spouse’s or parent’s family residing in the applicant’s household and the spouse or parent consented to the battery or cruelty or b) whose child has been battered or subjected to extreme cruelty by a spouse or parent of the applicant (without the applicant’s active participation) or by a member of the spouse’s or parent’s family residing in the applicant’s household when the spouse or parent consented to the battery or cruelty and the applicant did not actively participate in it, and III) there was a substantial connection between the battery or cruelty and the applicant’s unlawful entry into the U.S. The BIA ultimately phrased the issue as whether one who seeks to qualify for the inadmissibility exception of § (A)(6)(A)(ii) must satisfy all 3 subclauses, including the requirement that he or she be a VAWA self-petitioner.

As explained by the Board, the IJ had concluded that the section’s language indicated that Congress only intended applicants to satisfy either subclauses I) or III) or subclauses II) and III), and held that even though respondent is not a VAWA self-petitioner, she had suffered extended domestic abuse by her husband in Guatemala and was entitled to the exception. DHS disagreed and argued respondent is not so qualified.

The decision’s initial analysis focused on the statutory language of 212 § (A)(6)(A)(ii), with the BIA noting that it first looks to the statute’s plain meaning so as to give effect to that meaning when possible; the most natural reading, held the opinion, is that respondent must satisfy subclauses I), II), and III), but subclause III) may be satisfied 2 different ways. However, as III) refer to the first 2 subclauses in the disjunctive, the Board found that the language is ambiguous and the legislative history must be considered.

In parsing the legislative history, the BIA looked to the Immigration Marriage Act Fraud Amendments of 1986, when marriage fraud concerns prompted Congress to create the 2-year conditional residence period which must pass before lawful permanent resident status can be granted to a noncitizen spouse. Because, noted the decision, a U.S. citizen or LPR spouse’s consent and cooperation are required to file a joint petition to remove conditional status, the citizen or LPR gained “considerable leverage over their foreign national spouse.” This, stated the Board, created a situation in which abused foreign national spouses were reluctant to leave the U.S. citizen/LPR spouse “for fear of losing their potential to adjust their status.” In turn, Congress created the battered spouse waiver of the joint petition requirement in 1990, codified at INA § 216(c)(4)(C); its purpose found the BIA , was to ensure that no foreign spouse or child gets trapped in an abusive relationship by the threat of losing legal status.

Next, in its analysis of § 212(a)(6)(A)(ii)’s scope, the opinion found that the most reasonable reading of the section is that an applicant must satisfy all 3 subclauses, as subclause II) reflects a desire by Congress to expand protections to cover abuse not only by U.S. citizen and LPR spouses and parents but also by members of the household where the abuser acts at the direction of the citizen/LPR, e.g., coverage is extended against those who possess “immigration leverage” over a foreign national spouse. While respondent claimed that this interpretation rendered subclause II) superfluous, the Board did not find that argument persuasive, holding that while subclauses I) and II) overlap, there are important differences between them and such overlap reflects Congress’ desire to ensure there is no gap in coverage for those abused by, or with the consent of, a U.S. citizen or LPR spouse or parent. On the other hand, noted the BIA, the IJ’s interpretation would vastly expand the section’s reach by effectively removing the requirement of a U.S. citizen or LPR abuser as it would “apply to any domestic abuse situation in the world” as illustrated by respondent’s complaint of abuse by her spouse in Guatemala. This, found the Board, was not why Congress created such a broad exception to inadmissibility. Furthermore, requiring the satisfaction of only subclauses II) and III) would alleviate respondent’s removability but would leave her with no legal status in the U.S., another result that could not have been intended by Congress. Thus, the more reasonable approach is that all 3 subclauses must be satisfied to qualify for the exception found at INA § 212(a)(6)(A)(ii). The appeal was sustained, proceedings reinstated, and the record remanded to the IJ. Matter of Pangan-Sis, 27 I&N Dec. 130 (BIA 2017).

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When A Petitioner Seeking To Prove A Family Relationship Files A Birth Certificate That Was Not Registered Contemporaneously With The Birth In Question, USCIS Must Consider The Certificate And All Evidence Of Record Including The Circumstances Of The Case, To Determine Whether The Claimed Relationship Has Been Proven By A Preponderance Of The Evidence.

On September 20, 2017, the Board of Immigration Appeals (BIA or Board), ruled on the appeal of a denied Form I-130, Petition for Alien Relative in a situation where the Service Center Director held that the Beneficiary’s Pakistani birth certificate, registered 2 years after his birth, did not sufficiently prove his parentage and thus could not establish he was the Petitioner’s brother. The Director found that Petitioner had not submitted sufficient secondary evidence to support the delayed registered birth certificate.

Initially, in analyzing the application of the preponderance of the evidence standard, the BIA quoted Matter of E-M-, 20 I&N Dec. 77 (Comm. 1989) for the long-held administrative commandment that “when something is to be established by a preponderance of the evidence it is sufficient that the proof only establish that it is probably true.” Thus, in discussing the necessary primary evidence to be filed to prove a family relationship in visa petition proceedings, the Board noted that – in the instant case – such evidence includes birth certificates showing a common parent, citing to 8 C.F.R § 204.2(g)(2)(i).

Historically, noted the opinion, the BIA has been reluctant to accord delayed birth certificates the same weight as those issued at the time of birth on the theory that delayed certificates are less reliable, i.e., that there is a greater opportunity for fraud. Moreover, the Board has previously held that delayed certificates are generally not conclusive evidence and must be evaluated in light of the other evidence of record and “the circumstances of the case”, stating that it has consistently considered the entire record to determine whether there is sufficient evidence of the claimed relationship. Here, the BIA concluded that, in evaluating whether a birth certificate is “delayed” and thus raises fraud concerns, USCIS must consider all record evidence and the circumstances of the case to determine whether sufficient reliable, persuasive evidence has been filed.

Next, in discussing other acceptable evidence, the Board again cited the regulations (8 C.F.R § 103.2(b)(2)) for the proposition that when an adjudicator determines a birth certificate is “not sufficiently reliable to meet the preponderance of the evidence standard” in light of all the circumstances, he or she should require and consider secondary evidence. Such evidence must be evaluated for authenticity and credibility and a Request for Evidence (RFE), providing detailed guidance regarding acceptable secondary forms of evidence, should be issued if it is not initially submitted. Most persuasive is secondary evidence that was created contemporaneously with the birth.

In the instant case, concluded the opinion, the Petitioner filed the I-130 fifty-two years after the Beneficiary’s birth was registered; unlike situations where the birth is registered right before the petition is filed, here the risk of fraud is greatly reduced. Additionally, noted the BIA, the Director had not considered the U.S. Department of State Foreign Affairs Manual (FAM) comments concerning Pakistani birth certificates: The FAM states that certificates for those born before 1947 are often unavailable and even today are not uniformly kept, particularly in rural areas. As such, the case was remanded to the Director to apply the Board’s framework; if USCIS determines that the birth certificate alone is not sufficiently reliable, it must consider whether, in combination with the secondary evidence submitted, it is sufficient to meet the preponderance of the evidence standard. Matter of Rehman, 27 I&N Dec. 124 (BIA 2017).

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BIA Holds A Misrepresentation Is Material Per INA § 212(a)(6)(C)(i) If It Tends To Shut Off A Line Of Inquiry Relevant To Admissibility And Would Predictably Have Disclosed Other Facts Relevant To The Applicant’s Eligibility For A Visa, Other Documentation, Or Admission To The U.S. Forbes v. INS, 48 F.3rd 439 (9th Cir. 1995) Not Followed. Therefore, In Determining Whether One Assisted Or Otherwise Participated In Extrajudicial Killing, An Adjudicator Should Consider 1)The Nexus Between The Applicant’s Role, Acts, Or Inaction And The Killing And 2) His Or Her Prior Or Contemporaneous Knowledge Of The Killing. Miranda Alvarado v. Gonzalez, 449 F.3rd 915 (9th Cir. 2006) Not Followed.

On September 14, 2017 the Board of Immigration Appeals (BIA or Board), in another extremely lengthy opinion, ruled on the appeal of a native of Bosnia-Herzegovina who had been found removable by the Immigration Judge (IJ) both for willful misrepresentation of a material fact under INA § 212(a)(6)(C)(i) for failing to disclose on his refugee application that he was a Special Police officer and Squad/Platoon commander during the Bosnian War and for participating in the extrajudicial killing of Bosnian Muslims, a separate ground under INA § 212(a)(3)(E)(iii)(II).  Initially, the BIA affirmed the IJ’s ruling and remanded the record to allow the respondent to apply for deferral of removal but respondent refused to do so and the IJ certified the case to the Board, which then dismissed the appeal.  Respondent was subsequently removed, but on remand, the Ninth Circuit of Appeals asked for clarification of the BIA’s analysis in finding 1) that respondent’s failure to disclose his service as Serbian Special Police officer on his refugee application was a material misrepresentation and 2) that he assisted in the extrajudicial killing of Bosnian civilians, per Matter of D-R-, 25 I&N Dec. 445 (BIA 2011).  In the instant decision, the BIA reaffirmed its earlier ruling, clarifying its standard for determining if one has “assisted, or otherwise participated in the commission of … any extrajudicial killing.”

Initially, in its analysis, the Board noted that the first question was whether respondent’s omission from his refugee application that he had been a Special Police Officer was a “material” misrepresentation.  Referencing the Ninth Circuit’s opinion in Forbes v. INS, 48 F.3rd 439 (9th Cir. 1995), which defined the materiality of a misrepresentation via two inquiries: 1) whether the concealments have a natural tendency to influence the Government’s decision regarding a respondent’s admission and 2) whether there is sufficient evidence to raise a fair interference that a statutorily disqualifying fact actually existed, the Board upheld the DHS appellate argument that it need not apply the 2nd part of the Forbes test because the term “material” in the Act is ambiguous and, per the tenets of deference set forth in the U.S. Supreme Court cases “Chevron” and “Brand X”,  the BIA may exercise its authority to explain its own construction of the term.  Thus, the Board declined to adopt or apply the Forbes “fair inference” test in questions of admissibility under INA § 212(a)(6)(C)(i), as other circuits differ on whether this part of the test applies to the materiality of a misrepresentation.  Instead, it held that the most reasonable reading is that the “fair reference” test applies to whether one procured an immigration benefit by his misrepresentation, not to whether the misrepresentation is “material”; it therefore adopted the “natural tendency” test as the general standard for determining the materiality of a misrepresentation.  Specifically, held the BIA, it will consider whether the misrepresentation tends to shut off a line of inquiry relevant to admissibility and that would predictably have disclosed other facts relevant to eligibility for a visa, other documentation, or admission to the U.S.

The Board also reaffirmed its conclusion in Matter of Bosuego, 17 I&N Dec. 125 (BIA 1979; 1980) that after DHS meets its burden of proof, the burden shifts to the respondent “to establish that no proper determination of inadmissibility could have been made.”

Next, as to the materiality of respondent’s misrepresentation, the BIA found that the IJ had properly determined that respondent’s service in the Special Police would have a “natural tendency” to influence the asylum officer’s decision on the refugee application, e.g., was an omission that shut off a relevant line of inquiry.  Further, respondent produced no evidence rebutting DHS’s showing of materiality and thus could not establish he would have been admissible had the true facts been disclosed; the Board therefore held that respondent “willfully made a material misrepresentation.”

The BIA then dissected the impact of Miranda Alvarado v. Gonzales, 449 F.3d 915 (9th Cir. 2006) on determining whether one has “assisted” in persecution under the persecutor bar to political asylum, noting that the case holds that in evaluating potentially persecutorial conduct, it is necessary to examine the relation of one’s acts to the persecution itself, including whether one acted in self-defense, how long the actor was involved, and what threats were used to compel assistance.  However, concluded the Board, the phrase “assisted, or otherwise participated in” is ambiguous and under the Chevron and Brand X standards of deference, the BIA need not follow the Miranda Alvarado definition.

Constructing its own standard, the Board began by adopting the “generally accepted premise” that there is a continuum of conduct against which one’s actions must be evaluated to determine whether he assisted or otherwise participated in extrajudicial killing.  Citing to the Attorney General’s decision in Matter of A-H-, 23 I&N Dec. 774 (A.G. 2005), the BIA noted that to “assist” means to “give support or aid: help”, while “to participate” means “to take part in something (as an enterprise or activity)”; that these terms are to be given “broad application”; and, an adjudicator must look at the totality of the relevant conduct to determine whether the persecutor bar applies, i.e., whether respondent’s role was material or integral to the killing.  Further, held the BIA, while mere acquiescence or membership in an organization is insufficient, the evidence need not show that an alleged persecutor “had specific actual knowledge that his actions assisted in a particular act” of extrajudicial killing.  Rather, the accused must have had sufficient knowledge that his actions might assist in such persecution to make such actions culpable.

Because here, the respondent admitted that about 200 men were left with him and his unit before they were loaded onto buses, the IJ found that there is sufficient nexus between his actions and their killings, i.e., the respondent “assisted” in loading them onto the buses having the requisite scienter (prior or contemporaneous knowledge) that the men were being transported to their deaths.  As the Board found no clear error in this determination, the IJ’s decision was reaffirmed and the appeal dismissed.  Matter of D-R-, 25 I&N Dec. 105 (BIA 2017).  

Comments Off on BIA Holds A Misrepresentation Is Material Per INA § 212(a)(6)(C)(i) If It Tends To Shut Off A Line Of Inquiry Relevant To Admissibility And Would Predictably Have Disclosed Other Facts Relevant To The Applicant’s Eligibility For A Visa, Other Documentation, Or Admission To The U.S. Forbes v. INS, 48 F.3rd 439 (9th Cir. 1995) Not Followed. Therefore, In Determining Whether One Assisted Or Otherwise Participated In Extrajudicial Killing, An Adjudicator Should Consider 1)The Nexus Between The Applicant’s Role, Acts, Or Inaction And The Killing And 2) His Or Her Prior Or Contemporaneous Knowledge Of The Killing. Miranda Alvarado v. Gonzalez, 449 F.3rd 915 (9th Cir. 2006) Not Followed.

Deportations and Voluntary Departures

Do you ever advise people to go with a voluntary removal?

Yes. If the person has the ability to return to the U.S. through sponsorship it is often better to proceed with voluntary departure. By departing voluntarily, the noncitizen may be able to come back after a shorter period of time.

It is generally agreed by most experienced immigration attorneys to consider voluntary departure first especially if the attorney believes the application for relief is not as strong. Once the individual calendar hearing is held there is a chance the Immigration Judge will simply order the person deported or removed rather than permitting voluntary departure.

 Is there ever an instance where a person facing deportation will go against your best advice and fight it?

Generally, people listen to our advice. I suppose there might be people who will disagree with us and talk with another lawyer. I certainly have had individuals say they want to make an attempt to fight it.

People listen to our advice and we educate them by advising what is happening, and what could happen, so that they will go into the process knowing all of the likely outcomes.

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