An Asylee Who Adjusts Status Per INA § 209(b) Transitions to Lawful Permanent Resident, Thus Terminating His Or Her Asylee Status. Therefore, The Restrictions Of INA § 208(c)(1)(A), Which Prohibit The Removal Or Return Of Nationality Or Last Habitual Residence, Do Not Apply To Such A Respondent. Matter of C-J-H, 26 I&N Dec. 284 (BIA 2014) Clarified.

On August 3, 2017, the Board of Immigration Appeals (BIA or Board), on remand from the Fifth Circuit, held that a respondent’s asylee status was terminated when he adjusted status to lawful permanent resident (LPR).  Respondent had been convicted in Texas of a controlled substance offense 11 years after being granted asylum, and subsequently adjusting his status.  His new applications for asylum, withholding and CAT relief were denied by the Immigration Judge (IJ) and he appealed to the BIA claiming his asylum status had not been terminated.   The Board remanded to the IJ and later held in Matter of C-J-H, 26 I&N Dec. 284 (BIA 2014) that one who is granted asylum but later adjusts status is no longer an asylee.

The IJ, using Matter of C-J-H, found respondent’s asylee status terminated by his adjustment and certified the record to the BIA, which affirmed.  Respondent’s petition for review to the Fifth Circuit argued (among other points) that he was still an asylee and therefore could not be removed until that status was terminated.   The Court of Appeals vacated and remanded, instructing the Board to fully consider the language and legislative history of the statute and issue a new decision.

The BIA did not back down, concluding that “the statutory language, as well as the relevant regulatory provisions, case law, and legislative history” mandate a finding that an asylee who adjusts loses the status of one granted asylum and thus the restrictions of INA § 208(c)(1)(A), which protect asylees from return to their original country of nationality or last residence, no longer apply to such person.  The Board specifically found that adjustment of status “extinguishes…asylee status”, buttressing this view by noting that § 208(c)(2) expressly states that a grant of asylum “does not convey a right to remain permanently” in the U.S.  It thus followed, held the BIA, that if any asylee who adjusts no longer has the status of one granted asylum, he or she is no longer protected by § 208(c)(1)(A)’s bars to removal.  The appeal was accordingly dismissed.  Matter of N-A-I-, 27 § I&N Dec. 72 (BIA 2017).

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Bipartisan Dream Act Introduced in Senate

On July 20, 2017, Senators Dick Durbin (D-Ill.) and Lindsey Graham (R-S.C.) introduced the Dream Act, a bill to allow young people who have lived in the U.S. since childhood to become lawful permanent residents if they meet certain standards, including graduating high school or obtaining a GED; pursuing higher education working; lawfully for at least 3 years or serving in the armed forces; passing security clearances and paying a reasonable fee; demonstrating proficiency in English and U.S. history; and not having committed a felony or other serious crimes and not posing a threat to the U.S.

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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).

 

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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).

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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).

Learn more about the immigration attorneys at Philip Levin & Associates.

 

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