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 Jefferson B. 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)

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BIA Holds That In Deciding On Whether To Consider A Border Or Airport Interview In Making A Credibility Determination, An IJ Should Assess The Accuracy And Reliability Of The Interview Based On The Totality Of The Circumstances, Rather Than Relying On Any One Factor In A List Or On A Mandated Set Of Inquiries.

On February 20, 2018, the Board of Immigration Appeals (BIA or Board) issued a decision dismissing an appeal in a case where the respondent had stated at a border interview that he came to the U.S.  to look for his father and that he did not fear persecution or torture in Mexico; he was subsequently removed. Upon later reentering without inspection, he asserted before the Immigration Judge (IJ) that he feared torture if returned home, testifying that cartel members had kidnapped his father, then kidnapped and threatened him.  Because of the discrepancies between his border statement and his testimony in court, the IJ found respondent lacked credibility and denied his CAT claim. On appeal, the appellant claimed that Government documents considered by the IJ were not reliable and that he had testified credibility.

In its analysis, the BIA first noted that respondent challenged both the reliability of his border interview and its consideration in the adverse credibility finding, stating that courts have upheld the use of these interviews if there were adequate indications of their reliability.  The Board further found that Congress authorized IJs to base an adverse credibility finding on a consideration of the totality of the circumstances and all relevant factors, including the consistency between one’s written and oral statements, as well as “the consistency of such statements with other evidence of record.”  This broad language, the decision stated, encompasses “statements made in border and airport interviews” as long as the IJ takes into account “any issues regarding the circumstances under which they were made.”

Therefore, the preliminary issue, held the BIA, is whether there are persuasive reasons to doubt the applicant’s understanding of the interviewer’s questions.  The “most basic consideration” is whether an interpreter was provided if one was requested. Where the applicant’s interview statements are contrasted with his or her subsequent testimony, the court needs “a detailed and reliable recitation of the questions and answers from the interview.”  The Board therefore concluded that in assessing the interview, the IJ should weigh the totality of the circumstances presented, based on the evidence and arguments of record. Citing to Ramasameachire v. Ashcroft, 357 F.3d 169 (2nd Cir. 2004),  the BIA enumerated four factors to be considered in determining whether an interview was reliable, then noted that other courts of appeal had rejected the adoption of these standards, agreeing that IJs should not be required to determine the reliability of Border Patrol interviews “using specifically enumerated factors”.  Although the Ramasameachire factors are proper considerations, found the opinion, IJs should assess reliability based on the totality of circumstances, rather than relying on any one factor among a list or on a mandated set of inquiries.  

The BIA next noted that here the applicant claimed he had difficulty understanding the officer at his border interview, that he does not recall being asked about his fear of harm if returned to Mexico and that the statement was in English, which he does not read.  However, the Board found that “the record supports the Immigration Judge’s findings to the contrary,” reasoning that the reliability of DHS interviews is a matter of fact to be determined by the IJ and reviewed on appeal for clear error. Because respondent’s interview was conducted in Spanish; the evidence of record shows that specific, detailed questions were asked regarding his past experiences and fear of future harm; and, he presented no other factors that might have affected the reliability of the interview, the BIA concluded that the IJ did not clearly err in finding the interview documents were reliable and therefore could properly be considered as part of his credibility determination.  The adverse determination was not clearly erroneous held the Board, as the IJ had based his credibility ruling on “specific and cogent reasons” involving discrepancies between the applicant’s testimony and the documentary evidence, as well as his implausible explanations for the inconsistencies.

Finally, stated the opinion, the IJ had noted other inconsistencies relating to the injuries respondent claimed to have experienced and to the medical treatment he received after “his purported kidnapping and beating”.  Based on these inaccuracies and unpersuasive testimony, the BIA concluded there was no clear error in the IJ’s adverse credibility finding. Because the applicant lacked credibility and the evidence did not support his claim, he could not satisfy his burden and prove CAT eligibility.  The appeal was thus dismissed. Matter of J-C-H-F-, 27 I&N Dec. 211 (BIA 2018).

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BIA Holds That In Removal Proceedings Arising Within The Jurisdiction Of The Fifth And Ninth Circuits, One Who Was “Waved Through” A Port Of Entry Has Established An Admission “In Any Status” Within The Meaning Of INA §240A(a)(2). Tula-Rubio v. Lynch, 787 F.3d288 (5th Cir. 2015) And Saldivar v. Sessions, 877 F.3d 812 (9th Cir. 2017) Followed In Those Jurisdictions Only. In Proceedings In All Other Circuits, To Establish Continuous Residence In The U.S. For 7 Years, One Must Prove That He Or She Possessed Some Form Of Lawful Immigration Status At Admission.

On January 29, 2018, the Board of Immigration Appeals (BIA or Board) held, in a disputed 2-1 decision, that it would recognize “wave through” entries as evidence of an admission –as per Matter of Quilantan, 25 I&N Dec. 285 (BIA 2010) – “in any status” for purposes of proving eligibility for cancellation of removal under INA §240A(a)(2), i.e., meeting the requirement that an applicant “has resided in the United States continuously for 7 years after having been admitted in any status”, only in cases falling within the U.S. Courts of Appeals for the Fifth and Ninth Circuits.  In proceedings outside these two courts, held the opinion, one must prove that he or she had some type of lawful immigration status at admission to establish the necessary 7 years of continuous residence after admission “in any status,” despite a vociferous concurring and dissenting opinion by Board Member Pawley to the contrary.

The respondent, a Mexican citizen, entered the U.S. in October 1991, adjusted status in April 2003, and was served with a Notice to Appear (NTA) in January 2010 alleging removability under INA §212(a)(6)(E)(i) for smuggling or attempting to smuggle another person into the country.  She applied for cancellation under INA §240A(a); the Immigration Judge (IJ) pretermitted the application on the ground she did not establish continuous residence in the U.S. for 7 years after having been admitted in any status. She claimed a “wave through” entry in 1998, relying on Matter of Quilantan for the proposition that this entry constitutes an admission in any status and that she therefore began to accrue continuous residence under INA §240A(a)(2) after that date.  The IJ disagreed, holding that Quilantan only applies to applications for adjustment of status (AOS), so that her 1998 entry did not equate to an “admission” as contemplated by the cancellation statute.  He further held that she began accruing residence when she adjusted in 2003 and that it was terminated by service of the NTA in January 2010, 3 months short of 7 years.

In initiating its analysis, the BIA first cited to Matter of Quilantan, noting that under that precedent one who enters after having been “waved through” at a port of entry has been “admitted” for purpose of an INA §245(a) AOS application.  Overruling the IJ, the Board agreed that Quilantan governs “admissions” for purposes of §240A(a)(2), finding that respondent had, in fact, been “admitted” under §240A(a)(2).  

The one remaining issue, cotinued the opinion, was whether a “wave through” entry qualifies as an admission “in any status”under INA §240A(a)(2).  Citing to Tula-Rubio v. Lynch, 787 F.3d288 (5th Cir. 2015), respondent argued that the term “status” includes unlawful status and the word “any” should be read broadly to include all who have been admitted.  After oral argument in this case, noted the BIA, the Ninth Circuit, in whose jurisdiction it arises, agreed with Tula-Rubio v. Lynch in Saldivar v. Sessions, 877 F.3d 812 (9th Cir. 2017).  DHS contended that “admitted in any status” requires that one prove not only admission, but “admission attained by means of some lawful status”.

Although both parties argued that §240(a)(2) is unambiguous on the question of whether a “wave through” constitutes admission in any status, the BIA held that it is ambiguous in this regard.  As such, the Board noted that the fact that Congress included the phrase “admitted in any status” in 240A(a)(2) while §245(a) only requires that one be “inspected and admitted”, making no mention of “status”, suggests that it intended to give the statutes different meanings.  Therefore, reading both laws to require only a procedurally regular “admission” would render the phrase “in any status” meaningless; if Congress had intended §240A(a)(2) to only require inspection and admission, “it would have used the same language as section 245(a).” The BIA thus concluded that Congress was signaling that 240A(a)(2) requires something more than a procedurally regular “admission”.

The opinion next analyzed §240A(a)(2)’s predecessor statute, INA §212(c), to garner insight into congressional intent, finding that under all former interpretations of that section relief was only afforded to those who possessed a lawful status at entry.  Additionally, noted the Board, the legislative history of IIRIRA (1996) indicates that Congress intended to limit §240A(a)(2) eligibility to those who had been lawfully admitted, an interpretation confirmed at the time by “Government officials” within the former INS.  The BIA thus held that the phrase “admitted in any status” requires that one have possessed “some form of lawful status at the time of admission”, which prevents possible abuse of this type of relief; respondent’s argument in this regard, stated the decision, would essentially relieve an applicant “of the statutory burden of establishing that he or she has satisfied all the eligibility requirements for cancellation of removal” under §240A(a)(2).

The Board also expressly disagreed with the holding of the Fifth and Ninth Circuits that one can be admitted in an unlawful status, concluding that interpreting “admitted in any status” to require that one be admitted in some form of lawful immigration status does not create the same inconsistencies with other statutory provisions, as noted in Quilantan, because §240A(a)(2)’s language is different from that of §245(a).  It is the view of these two circuits, stated the BIA, that, has created the statutory conflicts or inconsistencies.  The Board further disputed the Fifth and Ninth Circuits‘ holding that the use of “lawfully admitted” in 240(a)(2) but not in 245(a) indicates congressional intent that the latter applies to those admitted in an unlawful status; it merely clarifies that §240A(a)(2) requires than an applicant make a physical admission at a port of entry, but not that he or she obtained the status of “an alien lawfully admitted for permanent residence” at that admission.  Thus, the Board held, it will only adhere to Tula-Rubio and Saldivar in cases arising in those circuits.  Applicants in all other circuits “must show that they possessed some form of lawful immigration status at the time of admission” to establish they were “admitted in any status” under §240A(a)(2).  As a result, because the Ninth Circuit has concluded that a “wave through” entry qualifies as an “admission in any status”, the BIA remanded the record to the IJ for further consideration of respondent’s cancellation eligibility and for entry of a new decision.

In a fairly lengthy and cogently-argued concurring and dissenting opinion, Board Member Pauley concluded that the Fifth and Ninth Circuits had “arrived at the correct result”, agreeing with the majority that a “wave through” admission must result in some lawful status in that no immigration officer intends to grant entry to one he or she believes has no lawful status.  The question for Board Member Pauley was, if the respondent was waved through, whether she was “admitted in any status” for purposes of cancellation eligibility.  Dissenting from the opinion’s holding that in all circuits but the Fifth and Ninth, applicants must prove some lawful status at admission, he termed the majority’s finding “dicta, depending on how one regards it” and stated that it is based on the mistaken premise that such lawful status must be later identified.  Further, the “generous nature” of §240A(a)(2)’s requirements make it unlikely that Congress intended to require the identification of a lawful status at entry; the holding, he also noted, is inconsistent with Quilantan’s primary finding that a “wave through” is an admission under INA §101(a)(13)(A).  Matter of Castillo Angulo, 27 I&N Dec. 194 (BIA 2016).

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In Deciding Whether To Set A Bond, An Immigration Judge Must Consider The Nature And Circumstances Of A Respondent’s Criminal Activity, Such As Arrests And Convictions, To Determine If He Or She Is A Danger To The Community, But Family And Community Ties Will Generally Not Mitigate One’s Dangerousness. Driving Under The Influence Is A Significant Adverse Consideration In Determining If A Respondent Is A Danger To The Community In Bond Proceedings.

On February 2, 2018, the Board of Immigration Appeals (BIA or Board) sustained a Department of Homeland Security (DHS) appeal and ordered a respondent held without bond.  In previous bond proceedings, an Immigration Judge (IJ) had ordered respondent released on $25,000.00 bond; DHS appealed, arguing that he had not met his burden of establishing that he is not a danger to the community.  The record shows the applicant was convicted of driving under the influence (DUI) three times between 2006 – 2007 and had been arrested for a fourth offense in 2017. The BIA’s opinion pointed out that two of the convictions, and the recent charge, involved accidents.

Respondent contended that DUI is not a crime of violence, that it had been a decade since his last conviction, and that he was now receiving treatment for his alcohol problem by a certified naturopathic physician and is actively participating in Alcoholic Anonymous, steps that convinced the IJ to release him on bond.  He also argued that his 2017 DUI arrest is “an aberration that involved mitigating circumstances”, as it happened on the first anniversary of his mother’s death.

Citing to U.S. Supreme Court case law labelling DUI as an “extremely dangerous crime” claiming thousands of lives, injuring many more, and causing billions of dollars in property damage annually, the Board’s opinion pointed out the long-held belief that such crimes present a serious risk of physical injury for others, such that “the dangers of drunk driving are well established.”  The BIA thus held that in bond proceedings, it is proper for the IJ to consider not only the nature of the criminal offense but “the specific circumstances surrounding the [respondent’s] conduct” as well; relevant factors include the extent, recency and seriousness of the applicant’s criminal history. As such, a DUI conviction “is a significant adverse consideration in bond proceedings” and respondent’s recent arrest therefore undercuts his argument that he is rehabilitated and no longer a danger to the community.  Similarly, found the Board, the anniversary of his mother’s death, while a source of sympathy, does not negate the dangerousness of his conduct.

Despite his “significant family ties, including his lawful permanent wife and a United States citizen daughter” – who has filed a visa petition (now approved) on his behalf – and the fact of his “fixed address” and long residence in the U.S., respondent has no legal status and, concluded the decision, was unable to show his history of business ownership, support from his church and involvement in charitable activities mitigate his dangerousness due to his history of drinking and driving.  The Board would merely concede that his family and community ties “may be significant (sic) to whether the respondent is a flight risk”; the BIA concluded that the issue here is whether respondent is a danger to the community and such ties “generally do not mitigate” one’s dangerousness. Thus, under the circumstances, the Board was ultimately not persuaded respondent had not met his burden of proof. The appeal was sustained, the IJ’s order vacated, and respondent ordered held without bond.  Matter of Siniauskas, 27 I&N Dec 207 (BIA 2018).  

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