BIA Holds That A Conviction Under California Penal Code §203 For The Crime Of Mayhem Requires A Malicious Act Resulting In Great Bodily Injury To Another, Therefore The Offense Involves The Use Of Violent Force And Is Thus A Categorical Crime Of Violence Per §18 USC 16(a).

On January 31, 2017, in a densely reasoned opinion, the Board of Immigration Appeals (BIA or Board) held that a conviction under California Penal Code §203 for mayhem qualifies as an aggravated felony crime of violence (COV) under INA §101(a)(43)(F) if the term of imprisonment imposed was at least one year. The appellant had been convicted of mayhem in 2013 and sentenced to 2 years in jail but in subsequent removal proceedings, the Immigration Judge (IJ) determined the offense was not a COV because §203 lacks an explicit element regarding the use, attempted use, or threatened use of violent force against another, as required by 18 USC §16(a), and terminated the proceedings. The government appealed.

Initially, the BIA noted that in determining whether respondent’s §203 conviction renders him removable it uses the categorical approach, comparing the elements of the criminal statute to those of the federal generic definition of a COV, assuming the conviction rested on nothing more than “the least of the acts criminalized”. The Board then noted that §16(a) defines a COV as an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, explaining that the term “use” denotes volition while “physical force” means violent force capable of causing physical pain or injury. As his §203 conviction required a jury to find that respondent 1) committed an unlawful and malicious act 2) resulting in another’s body part being removed, disabled or disfigured, the opinion stated that the IJ’s analysis did not appear to recognize – even without those terms’ inclusion – that the requisite force may be “necessarily involved” in violations of the California statue.

In analyzing the “use” of force component, the BIA noted that §203 requires one to actively use force within the meaning of §16(a) such that mayhem must be committed “maliciously”, which intent may be inferred from actions which result in the listed injuries. As a result, the proscribed conduct must involve a volitional act capable of causing physical pain or injury although not necessarily a specific type of harm. Thus, held the Board, respondent’s offense must have necessarily involved the “use” of physical force suggesting a higher degree of intent than negligent or accidental conduct.

In parsing the “use” of violent physical force, the BIA found that §203 requires one’s malicious act to cause “great bodily injury”, holding that this necessarily involves force capable of causing the required physical pain or injury. The Board also found that there is no realistic probability that §203 would be used to prosecute a mayhem offense involving mere offensive touching and thus held that a violation of §203 is categorically a COV per §16(a), vacated the IJ’s decision, sustained the appeal, reinstated proceedings and remanded the record to the IJ. Matter of Kim, 26 I&N Dec. 912 (BIA 2017).

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In Determining Whether A Statute Is Divisible Per Mathis v. United States, 136 S. Ct. 2243 (2016), Immigration Judges May Consider A Respondent’s Conviction Record Only to Figure Out Whether Statutory Alternatives Define “Elements” or “Means”, Provided The Issue Is Not Resolved By State Law.

On April 24, 2017, the Board of Immigration Appeals (BIA or Board) – in a case that has been before the BIA several times – denied a motion to reconsider filed by the government (“DHS”) in response to a prior opinion of the Board [Matter of Chairez , 26 I&N Dec. 819 (BIA 2016)] holding that DHS had failed to prove the respondent removable for conviction of an aggravated felony crime of violence (COV) per INA §237(a)(2)(A)(iii). (In a footnote the decision noted that the Immigration Judge (IJ) had, in fact, found respondent removable for conviction of a categorical firearms offense per INA §237(a)(2)(C), a finding the Board had previously affirmed.)

In its prior opinion in Chairez the BIA had, in a fairly technical holding, concluded that the section of the Utah Code respondent violated in being convicted of unlawfully discharging a firearm was not a categorical COV because it can include acts committed with a mens rea of recklessness; thus, even though the law included crimes committed intentionally and knowingly, it was not divisible into 3 separate offenses with “distinct mental states (intentional, knowing, and reckless) and therefore a modified categorical approach was not allowed.

The DHS motion had claimed the Board should extend the holding of the U.S. Supreme Court in Voisine v. United States, 136 S. Ct. 2272 (2016) and find that even a reckless firearms discharge is a COV under the Utah statute, despite the decision of the Tenth Circuit Court of Appeals, in whose jurisdiction this case arises, in United States v. Zuniga-Soto, 527 F.3d 1110 (10th Cir. 2008)(reckless conduct does not involve the deliberate “use” of physical force required by a COV). Alternatively, the government argued that, even if the Utah law is not a categorical COV, the BIA had misapplied Mathis v. United States, 136 S. Ct. 2243 (2016), cited as authority by Zuniga-Soto, by both improperly inferring the statute is indivisible and failing to consider respondent’s plea agreement as evidence of the law’s divisibility.

Holding that the DHS motion “does not identify an adequate reason for reconsideration”, the Board initially noted that it cannot extend the rationale of a Supreme Court case in the face of contrary controlling circuit precedent, stating that while Zuniga-Soto remained good law, this was not the proper case to express an opinion on “how the law may or should evolve after Voisine.” As to the contention that the BIA had misapplied Mathis, the opinion found that when state law does not address the distinction between “elements” and “means” as regards a specific criminal law, the Board may seek guidance in cases interpreting statutes with similar language and structure.

Lastly, as to divisibility under Mathis, the decision held that an IJ may consider the respondent’s conviction record for the “sole and limited purpose” of determining whether statutory alternatives define discrete “elements”, i.e., facts that must be proven to a jury beyond a reasonable doubt in order to obtain a conviction. However, as in the instant case, where the admission of a “knowing” mental state in a plea agreement is not “tethered” to any fact charged in an information, that admission cannot establish the divisibility of the particular statute under Mathis. No legal or factual error being found in its prior decision, the BIA denied DHS’ motion to reconsider.

In a concurring opinion, Board Member Garry Malphrus stated an opinion that the approach to divisibility dictated by Mathis “will result in immigration proceedings being terminated for many aliens who had committed serious crimes” in the U.S. Matter of Chairez-Castrejon, 27 N&N Dec. 21 (BIA 2017).

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BIA Holds That The Primary Consideration For An Immigration Judge In Ruling On A Motion To Administratively Close Or Recalendar Proceedings Is Whether The Party Opposing Closure Has Provided A Persuasive Reason For The Case To Proceed And Be Resolved On The Merits. In Considering Administrative Closure, The Judge Cannot Review Whether A Respondent Falls Within The DHS Enforcement Priorities, As The Department Of Homeland Security Has Exclusive Jurisdiction Over Prosecutorial Discretion. Matter Of Avetisyan, 25 I&N Dec. 688 (BIA 2012), Clarified.

On April 18, 2017, the Board of Immigration Appeals (BIA or Board) addressed the case where an Immigration Judge (IJ) had granted a DHS motion to administratively close removal proceedings, which had been opposed by respondent who subsequently filed a motion to recalendar. The IJ denied that motion and respondent filed this interlocutory appeal. The BIA initially noted that in Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), the Board had determined for the first time that IJs and the BIA “have the authority to administratively close a case when appropriate, even if a party opposes it” and reiterated the factors set forth in Avetisyan to be evaluated in ruling on a motion for administrative closure.

Here, the Board stated, the IJ denied the motion to recalendar and kept the case closed to reserve the court’s limited resources. However, while the IJ’s concerns as to the most efficient use of court resources were recognized, the opinion held that such matters are secondary to a party’s interest in having a case resolved on the merits. The BIA also noted that Matter of Avetisyan does not list court resources as a cognizable factor to evaluate in determining whether administrative closure is appropriate.

Further, the Board disagreed with the IJ’s conclusion that this matter is not an actual case in dispute, reiterating that one in removal proceedings has a right to seek asylum and related relief. Thus, assuming that his application was properly filed and “he is eligible for the relief sought”, respondent has a right to a hearing on the merits of his claim; that DHS sought administrative closure is not dispositive of whether the case is actually in dispute. The opinion emphasized that DHS’ motion, while perhaps suggesting the case is not an enforcement priority, is not dispositive of whether the matter remains in dispute.

Noting the important public interest in the finality of immigration proceedings and that such interest is “particularly clear” where an appellant opposes administrative closure, the BIA found that unreasonable delays in resolving proceedings may operate to a respondent’s detriment by preventing relief that provides lawful status or thwarts the operation of removal statutes. Thus, the Board held that while Avetisyan sets forth the relevant factors to consider when determining whether to administratively close or recalendar proceedings, it further clarified that decision by stating that the “primary consideration” is whether the party opposing closure has provided a persuasive reason for the case to proceed and be resolved on the merits. The appeal was thus sustained, proceedings reinstated, and the record remanded. Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017).

 

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AAO Adopts Decision Regarding Policy Guidance On Whether And When A Provisional Certificate Issued By A College Or University Confirming One Has Completed All Substantive Requirements For a Degree And That The School Has approved The Degree Is The Equivalent Of Achieving Said Degree For Purposes Of Calculating Post-Baccalaureate Experience.

On April 17, 2017, the Administrative Appeals Office (AAO) designated its opinion in this case as an Adopted Decision, establishing policy guidance binding all USCIS employees. The decision holds that USCIS must conduct a case-specific analysis as to whether, at the time a provisional certificate is issued, a beneficiary has completed all substantive requirements to earn the degree and the college or university has approved the degree. Where the petitioner can establish that, as of the date of the certificate’s issuance, the beneficiary had met all substantive requirements for the degree and the degree was approved, USCIS will use the date of the certificate’s issuance to calculate post-baccalaureate experience.

Initially, the opinion set forth the 3-step process of employment-based immigration: the approval of a labor certification; the filing of the I-140 visa petition by the employer; and, after the petition’s approval, the application for an immigrant visa or adjustment of status. It then noted that advanced degree professionals under the Employment-Based (EB) 2nd preference must show that the labor certification application required an advanced degree “or its equivalent”, stating that a U.S. baccalaureate or foreign equivalent followed by at least 5 years progressive experience shall be equivalent to a master’s degree, e.g., an “advanced degree.” Thus, to be eligible for EB-2 classification solely on the basis of a foreign degree bachelor’s equivalent, the beneficiary “must also possess 5 years of qualifying post-baccalaureate experience.”

In its analysis, the AAO pointed out that the beneficiary had a bachelor’s degree from a technological university in India; the sole issue was when the degree was issued, i.e., after which date her progressive experience in terms of EB-2 qualification may be calculated. The opinion framed the legal question as whether the 5 years of experience is measured from when the beneficiary received the formal diploma or earlier, when she completed all requirements for the degree and received a provisional certificate reflecting that the degree was approved. In this particular case, the AAO concluded, the certificate constitutes an official academic record of her “degree” for purposes of calculating post-graduate experience.

The AAO thus held that USCIS most conduct a case-specific analysis to determine whether, at the time a provisional certificate is issued, the beneficiary has completed all substantive requirements to earn the degree and the school has approved the degree, Evidence regarding the individual nature of each institution’s requirements for the program of study and completion of those requirements must therefore be considered. Further, stated the decision, the burden is on the petitioner to show that the certificate reflects that, at issuance, all substantive requirements for the degree were met and the degree was approved by the responsible college or university body. (A footnote requires that, in such cases, petitioners submit a copy of a beneficiary’s “statement of marks or transcript to demonstrate years of study, and coursework completed, along with a copy of the provisional certificate.”) Because the record confirmed that, as of the date of the certificate’s issuance, the beneficiary had completed all substantive requirements for the degree and the university had approved the degree, and the AACRAO EDGE website confirmed such certificates’ recognition, the AAO found that the beneficiary had obtained the required 5 years experience beginning with issuance of the provisional certificate and had thus established EB-2 qualification, sustaining the appeal. Matter of O-A-, Inc., Adopted Decision 2017-03 (AAO Apr. 17, 2017).

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Voluntary Departure from the United States

What if I leave the United States voluntarily when I receive the Notice to Appear?

If someone receives a notice to appear then leaves the U.S., the system may not know that the alien has voluntarily left the United States. What they do know is that you didn’t appear at your hearing. When that occurs, the Judge orders you removed “in absentia.” This is never a good idea. Reopening a

You may also ask that the IJ grant you “voluntary departure.” A voluntary departure is a Judge’s order, and most of time it is preferable to a removal order because when you are ordered removed the burden of coming back is higher.

If you are granted voluntary departure and you do leave the United States within the time granted by the IJ, you don’t have that removal barrier sometimes. This means you may not have to file an I-212. This is a very important point because you haven’t been “deported”.

Voluntary departure is a form of defense. If you are in front of the immigration judge and you really don’t have any mechanisms to apply, you don’t have CAT, you don’t have an asylum application, perhaps at that moment you don’t have a viable spousal case or family-based case to apply for a residency. If you don’t have that, sometimes the best strategy that an immigration attorney will tell you is, “Let’s get you voluntary departure. You have to leave the U.S., but while you are gone, we will be able to work on all these other mechanisms. We can file the I-130 petition to get you back into the U.S. but we don’t have to fight this waiver application process. That’s one way under the voluntary departure.

But, in the instance that the person just takes off, and he’s ordered removed in absentia, he has another higher burden. It doesn’t make sense for a person to just leave the U.S. if there’s a chance they may be removed in absentia, because no matter what, even though he left without attending a court hearing, the judge is still going to have that order, and you are still going to file that I-212, or you are going to fight that in absentia order.

How do I notify the Court that I’m leaving voluntarily?

Generally, there is no set form for this request. A person could file a motion where he or she is essentially asking the judge for prehearing voluntary departure. If you’re granted prehearing voluntary departure, you have to pay a nominal fee, and then, you are given a set amount of time to leave the U.S. Then you can get your “bond” fee back, and you can actually turn around and come back to the United States if you can prove that you’re eligible for an immigrant or nonimmigrant visa.

Two types of Voluntary Departure

There are two types of voluntary departure: The prehearing voluntary departure because you have voluntarily said “I’ll take myself out of the system. Let me leave on my own terms.” And, then, there is post-hearing voluntary departure where the burden gets a little higher. Penalties can start to accrue at a higher rate if you violate the voluntary departure when it is post-hearing.

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