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).

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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.

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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 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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