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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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