Whether The Violation Of A Protective Order Makes One Removable Per INA § 237(A)(2)(E)(Ii) Is Not Controlled The Categorical Or Modified Categorical Approaches, Even Where A Conviction Underlies The Charge. Instead, An Immigration Judge Should Consider The Probative And Reliable Evidence Regarding What A State Court Has Determined About The Respondent’s Violation. Matter Of Strydom, 25 I&N Dec. 507 (BIA 2011) Clarified.

On November 17, 2017, the Board of Immigration Appeals (BIA or Board) ruled on a DHS appeal of an Immigration Judge (IJ) order terminating removal proceedings after holding the respondent was not removable under INA § 237(a)(2)(E)(ii) as one who had violated a protective order.  Respondent had been convicted of criminal contempt per section 215.5(b)(iii) of the New York Penal Law for violating a protective order issued by a State court, requiring him to stay away from a woman and her family.  As a result, DHS initiated proceedings charging him with removability per § 237(a)(2)(E)(ii), submitting documents that included a presentence report, a probation violation report, a prosecutor’s letter and sworn victims’ statements.  Because these materials are not part of the record of conviction, the IJ found they could not be considered in analyzing respondent’s removability under the categorical and modified categorical approaches, and held that, under either of these analyses, the statute of conviction is overbroad and he is therefore not removable under the INA section charged.

On appeal, DHS argued the IJ should have used the ‘circumstance-specific” approach in analyzing removability per 237(a)(2)(E)(ii).  The BIA began its analysis by noting that the plain language of this section of the Act makes clear that a “conviction” is not required to establish removability and framed the issue as whether the fact of a conviction “requires the application of the categorical and modified categorical approaches in determining removability under section 237(a)(2)(E)(ii)” even though the statutory language does not make a conviction necessary to removability.

Finding that the categorical approach is rooted in Congress’ specification that a conviction, not conduct, is “the trigger for immigration consequences”, the Board held that the legislative branch did not intend removability per 237(a)(2)(E)(ii) to be analyzed under either the categorical or modified categorical approach.  Support for this conclusion was found in multiple circuit court of appeals decisions.  However, the BIA did not agree with the DHS claim that it must apply the “circumstance-specific” approach in this case, stating that this approach “only applies when a portion of a criminal ground of removability is not subject to the categorical approach.”  (Emphasis in original.)  Here, the entire ground of removability is not subject to a categorical analysis and the Board therefore found that the plain language of 237(a)(2)(E)(ii) limits its analysis regarding removability to what a court has “determined” about a respondent’s protective order violation; this may be established “through any reliable evidence.”

The BIA thus held whether the violation of a protective order renders one removable per § 237(a)(2)(E)(ii) is not governed by the categorical approach, even if a conviction underlies the charge.  Instead, the IJ must consider “the probative and reliable evidence regarding what a State court has determined” about a respondent’s violation.  Further, concluded the opinion, the IJ should decide 1) whether a State court determined that one has engaged in conduct that violates the portion of a protective order that involved protection against credible threats of violence, repeated harassment or bodily injury and 2) whether the order was issued for the purpose of preventing violent or threatening acts of domestic violence.

In reaching this conclusion, the Board clarified its decision in Matter of Strydom, 25 I&N Dec. 507 (BIA 2011) in which it had presumed that the categorical approach applied in a similar case and found the appellant removable under 237(a)(2)(E)(ii); it now concluded that “this approach is not applicable” where removability under that section of the INA must be determined and held that it will no longer apply the categorical approach in cases involving a § 237(a)(2)(E)(ii) removability analysis.  

The IJ’s decision was vacated, the appeal sustained, proceedings reinstated and the record remanded for a new decision.  Matter of Obshatko, 27 I&N Dec. 173 (BIA  2017).

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BIA Clarifies Recent Precedent Decision That Crime Of Aggravated Battery Under The Puerto Rico Penal Code Is Not Categorically A Crime Of Violence Per 18 U.S.C § 16(a), Holding that Controlling Circuit Court Law Must Be Followed On The Question Of Whether The Use or Threatened Use Of Poison To Injure Another Involves Sufficient `Force` To Constitute A Crime Of Violence.

On September 9, 2016, The Board of Immigration Appeals (BIA or Board), readdressing a question that it had confronted earlier this year, issued an opinion clarifying Matter Of Guzman-Polanco, 26 I&N Dec. 713 (BIA 2016), which held that a conviction for aggravated battery in violation of the Puerto Rico Penal Code is not categorically for a crime of violence under 18 U.S.C. §16(a).

Following that decision, the Department of Homeland Security (DHS) had filed a motion for reconsideration arguing initially against the Board’s withdrawal from Matter of Martin, 23 I&N Dec. 491 (BIA 2002) in Guzman-Polanco. Granting the motion so as to address DHS’ concerns and explain its prior decision, the BIA upheld its previous holding that the Puerto Rican simple battery statute is too vague to categorically establish a crime of violence under §16(a) because it only requires that the infliction of “injury to the bodily integrity of another” be “through any means or form”. Again finding that the U.S. Supreme Court’s decision in Johnson V. United States, 559 U.S 133 (2010) (the phrase “physical force” means violent force – force “capable of causing physical pain or injury to another person”) controls its interpretation of §16 (a), the Board stated it was “appropriate” to withdraw from Matter of Martin to the extent that decision is inconsistent with Johnson because it includes within the definition of “crime of violence” offenses that do not require violent force.

As to DHS’ argument that the use of “indirect means” such as poison qualifies as a sufficient “use of force” to qualify under §16(a), the Board recognized that there is currently a circuit split on the issue and ruled that individual circuit law governs unless the Supreme Court  resolves this question. The record was thus remandad to the Immigration Judge for further proceedings and entry of a new decision. Matter of Guzman-Polanco, 26 I&N Dec. 806 (BIA 2016)   

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BIA Holds That “Rape” Under INA § 101(A)(43)(A) Includes An Act Of Vaginal, Anal, Or Oral Intercourse, Or Digital Or Mechanical Penetration, No Matter How Slight.  Perez-Gonzalez V. Holder, 667 F.3d 622 (5th Cir. 2012), Not Followed.  “Rape” Also Requires That The Underlying Sexual Act Be Committed Without Consent, Which May Be Shown By A Statutory Requirement That The Victim’s Ability To Appraise The Nature Of The Conduct Was Substantially Impaired And The Defendant Had A Culpable Mental State As To Such Impairment.

On October 20, 2017, the Board of Immigration Appeals (BIA or Board), in ruling on the appeal of a respondent convicted of aggravated felony rape under INA § 101(a)(43)(A) and ordered removed by the Immigration Judge (IJ), discussed what acts are encompassed by “rape” and whether the “substantial impairment” standard found at § 2907.02(A)(1)(c) of the Ohio Revised Code Annotated is synonymous with an incapacity to consent.  Initially, held the BIA, whether a conviction is for aggravated felony rape under § 101(a)(43)(A) is a question of law the Board reviews de novo.

To begin its analysis, the BIA noted that its inquiry is governed by the categorical approach, which requires an adjudicator to “compare the scope of conduct punished as rape” under Ohio law with the generic definition of “rape” in § 101(a)(43)(A).  The term, explained the opinion, was added to the INA in 1996, but is not defined by the Act or any other provision of federal law.  In the absence of statutory definition, held the BIA, the Board must “define the term according to its ordinary, contemporary meaning in 1996” when “rape” was added to the aggravated felony provisions.  

Respondent argued that the BIA’s inquiry into the ordinary, contemporary meaning of “rape” in 1996 “should be limited to examining the laws of the 23 states that prohibited a crime specifically called ‘rape’ at that time”; as only a minority of such jurisdictions included digital or mechanical penetration in that definition, he claimed that in 1996 the consensus was that this conduct was not rape.  The Board disagreed, finding that many of these States treated such crimes and rape as synonymous and interchangeable – quoting an Illinois Supreme Court decision to point out that the goal of renaming these crimes was to take a “hodgepodge of preexisting statutes” and create one comprehensive law “that reflects the fact that rape encompasses all types of sexual assault”.  Put another way, held the Board, Congress’ “restyling” of “rape” into forms of “sexual abuse” was meant to “remove barriers associated with the traditional understanding of rape and to bring Federal law in line with the growing consensus among the States” that “rape” includes a wider range of unacceptable conduct than coerced sexual intercourse.  

As to the sexual act required for a conviction, the BIA noted that by 1996 the State consensus was that “rape” encompassed not only vaginal, anal, and oral intercourse, but also digital and mechanical penetration as well.  Thus, held the Board, because a majority of States defined rape so as to include these acts, “such offenses are also covered by the definition of ‘rape’ in section 101(a)(43)(A)…”, no matter how slight the penetration.

Regarding the issue of consent, the BIA framed the inquiry as how to define lack of consent generally and where a victim’s mental condition amounts to a “prohibitive condition” that makes an act of sexual penetration unlawful.  Setting forth the Ohio statute under which respondent was convicted as defining “rape” as a sexual act where either 1) the victim’s mental capacity is substantially impaired as the result of an intoxicant administered without consent by the defendant or 2) the victim’s mental capacity is substantially impaired and the defendant knew or had reason to know, the Board found respondent conviction to have been based on the latter circumstance.  Here, the respondent’s argument appeared to highlight the phrase “incapable of giving consent”, so as to attribute to the term “a meaning that requires complete incapacitation, or an inability to vocalize consent”; this interpretation, found the opinion, “is flatly at odds with the consensus in 1996.”  Yet by that time, stated the BIA, the term “incapable” did not denote an absolute inability to consent, merely an inability to give effective or meaningful consent.  In other words, held the Board, the “pivotal question” is whether a victim is substantially able to understand what she was doing; this is “essentially synonymous” with requiring that the impairment be of such a degree “as to deprive the victim of the ability to provide meaningful consent”.  The IJ’s order was therefore affirmed and the appeal dismissed.  Matter of Keely, 27 I&N Dec. 146 (BIA 2017).

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Comments Off on BIA Holds That “Rape” Under INA § 101(A)(43)(A) Includes An Act Of Vaginal, Anal, Or Oral Intercourse, Or Digital Or Mechanical Penetration, No Matter How Slight.  Perez-Gonzalez V. Holder, 667 F.3d 622 (5th Cir. 2012), Not Followed.  “Rape” Also Requires That The Underlying Sexual Act Be Committed Without Consent, Which May Be Shown By A Statutory Requirement That The Victim’s Ability To Appraise The Nature Of The Conduct Was Substantially Impaired And The Defendant Had A Culpable Mental State As To Such Impairment.

BIA Holds That Criminally Negligent Homicide In Violation Of New York Penal Law § 125.10 Is Categorically Not A Crime Involving Moral Turpitude As It Does Not Require A Defendant To Have A Sufficiently Culpable Mental State.

On October 16, 2017, the Board of immigration Appeals (BIA or Board), in sustaining a respondent’s appeal of an Immigrant Judge’s (IJ’s) order of removal, held that criminally negligent homicide under New York law is not a crime involving moral turpitude (CIMT).  After respondent, a lawful permanent resident, was convicted of criminally negligent homicide and, subsequently, of promoting prostitution, DHS initiated removal proceedings charging him under both INA § 237(a)(2)(A)(i) as one convicted of CIMT within 5 years of Admission and (a)(2)(A)(ii) as one who at any time after admission is convicted for 2 or more CIMT’s not arising out of a single scheme of misconduct.  Initially, the BIA noted that if the homicide conviction is not for a CIMT, proceedings would have to be terminated because neither charge of removability could be sustained.  

Respondent argued on appeal that his first conviction did not render him removable as § 125.10 punishes criminally negligent conduct, which is not morally turpitudinous.  In assessing, whether an offense is a CIMT, the Board stated that it employs the categorical approach by comparing the elements of the state offense to those of the generic crime to determine if there is a categorical match.  Previously, it had held that moral turpitude inheres in crimes involving serious misconduct committed “with at least a culpable mental state of recklessness”, i.e., a conscious disregard of a substantial and unjustifiable risk, citing to Matter of Franklin, 20 I&N Dec. 867 (BIA) 1994) and an earlier precedent Board decision which had found that one acting under this mental state could be convicted of a CIMT because recklessness requires an actual awareness of risk; both BIA cases had been affirmed by the U.S. Courts of Appeal.  In contrast, noted the Board, crimes committed with criminal negligence are usually not morally turpitudinous because neither intent nor a conscious disregard of substantial and unjustifiable risk is required for conviction, thus no sufficiently culpable mental state need be proven.

In parsing the statute of conviction, the BIA found that § 125.10 provides that one is guilty of criminally negligent homicide when, with “criminal negligence”, he causes the death of another while § 15.05(4) defines criminal negligence as the failure to perceive a substantial and unjustifiable risk.  Thus, held the Board, criminal negligence under New York law is materially distinct from the concept of “recklessness” outlined in the above-referenced precedent decisions in that it only requires a perpetrator to fail to perceive such a risk whereas recklessness requires the risk to be consciously disregarded.  Therefore, concluded the decision, the elements of § 125.10 “do not categorically fall within the definition” of a CIMT.  As a result, the IJ was found to have erred in finding the respondent removable, the appeal was sustained and proceedings terminated.  Matter of Tavdidishvili, 27 I&N Dec. 142 (BIA 2017).

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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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