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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One Seeking Asylum Or Withholding Of Removal Based On Membership In A Particular Social Group (PSF) Must Clearly Delineate The Proposed Group On The Record Before The Immigration Judge (IJ). The BIA Will Generally Not Address A Newly Articulated PSG On Appeal If It Was Not Advanced Before The IJ.

On January 19, 2018, the Board of Immigration Appeals (BIA or Board), in dismissing the appeal of a Honduran citizen, issued a decision which arguably adds to the burden of proof a respondent in removal proceedings who files for political asylum and/or withholding of removal has historically faced.  The instant applicant had entered the U.S. without inspection and before the Immigration Judge (IJ) sought asylum and withholding based on membership in a particular social group (PSG), in this case, single Honduran women aged 14 – 30 who are victims of sexual abuse within the family and cannot turn to the government.

The IJ found this PSG was not cognizable under the law and denied the claim.  On appeal, respondent conceded that her original PSG was not a valid social group but asserted eligibility under a new formulation, articulated for the first time on appeal as “Honduran women and girls who cannot sever family ties.”

In the beginning of its analysis the BIA, in noting that its function is to “review, not to create, a record”, cited to the well-established axiom that it will generally not consider an argument that could have been, but was not, advanced before the IJ.  The decision reiterated that it is an applicant’s burden to establish a claim for relief on the record before the IJ and affirmed that one must therefore “clearly indicate” (on the record before the IJ) what enumerated grounds he or she is relying on; where a respondent raises membership in a PSG as the enumerated ground, stated the Board, he or she has the burden to clearly indicate the exact delineation of any claimed group.

Further, concluded the opinion, the “importance of articulating the contours of any proposed social group” before the IJ is emphasized by the “inherently factual nature” of the court’s social group analysis.  Thus, where as here, an applicant delineates a PSG for the first time on appeal, the IJ will never have had an opportunity to make the necessary factual findings, which the BIA will not do in the first instance.  Further, the new PSG articulated in this appeal is substantially different from that delineated before the IJ, who “did not have the opportunity to make the underlying findings of fact that are necessary to” the Board’s analysis; again, such findings cannot be made for the first time on appeal.

The BIA thus declined to remand proceedings to the IJ for factual findings on the new PSG, affirmed the denial of the applications below and dismissed the appeal.  Matter of W-Y-C- & H-O-B-, 27 I&N Dec. 189 (BIA 2018).

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Attorney General Sessions Refers BIA Decision To Himself To Review Issues Relating To The Authority Of Both Immigration Judges And The Board Of Immigration Appeals To Administratively Close Immigration Proceedings.

On January 4, 2018, U.S. Attorney General Jefferson Sessions issued an order directing the Board of Immigration Appeals (BIA or Board) to refer Matter of Castro-Tum, A206842910-Philadelphia, PA (BIA, November 27, 2017), to himself for review of the BIA’s decision in that non-presidential (unpublished) decision.  The DHS had appealed from an IJ’s decision administratively closing removal proceedings of a Guatemalan minor who had been designated an unaccompanied alien child (UAC) and provided DHS an address given by the U.S. Department of Health and Human Service’s Office of Refugee Resettlement (HHS-ORR).  Respondent had failed to appear for a removal hearing in April 2016, and DHS had requested that an in absentia removal order be issued. The IJ declined to enter an in absentia order and instead administratively closed the proceedings over DHS objections.

On appeal, the BIA sustained the DHS argument and directed that the order administratively closing the proceedings be vacated.  The BIA decision explained that the INA provides that one who, after being provided written notice does not attend immigration proceedings, shall be ordered removed in absentia if DHS establishes by clear, unequivocal and convincing evidence that written notice of the hearing date was provided.  In the instant matter, the administrative record contained evidence that the respondent had been personally served with the NTA, which included warnings that it was his responsibility to provide an updated mailing address to DHS and that, if he failed to appear, a removal order could be entered in his absence.  Additionally, after the NTA was issued, HHS-ORR issued a Release Notification that certified that respondent and his sponsor were notified that they must inform the immigration court of any address change.  The address in this document was the address used for the Hearing Notice.  Upon considering his experience in other cases, the IJ expressed doubts about how the respondent’s address was secured by HHS-ORR and administratively closed the removal proceeding.

The Board noted that in reviewing the credibility of an address, “each case must be evaluated on its own particular circumstances and facts” and applied the “presumption of regularity” to the official acts of public officers, concluding that in the absence of clear evidence to the contrary, the court must presume that public officers have properly discharged their official duties.  Thus, where there is no evidence that government documents, including those from HHS-ORR, are not reliable the presumption of regularity must apply.  Under the circumstances, the BIA vacated the administrative closure order and remanded the record for further proceedings.

In the instant order, Attorney General Sessions referred the Board decision to himself to review whether IJ’s and the BIA even have authority to administratively close a removal case.  Thus, the parties were invited to submit briefs on the following four points:

  1. Whether Immigration Judges and the Board have the authority, under any statute, regulation or delegation of authority from the Attorney General, to order administrative closure in a case and, if so, whether the BIA’s decisions in Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012) and Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017) articulate the appropriate standard for administrative closure;
  2. Whether, if he determines that IJ’s and the Board lack the authority to order administrative closure, the Attorney General should delegate such authority and, alternatively, if he determines that IJ’s and the BIA currently possess that authority, should he withdraw it;
  3. Given the fact that the regulations governing removal proceedings were promulgated for “the expeditious, fair and proper resolution of matters coming before Immigration Judges”, whether there are any circumstances where a docket management device other than administrative closure-including a continuance for good cause shown, dismissal without prejudice, or termination without prejudice-would be inadequate to promote that objective and whether there should be different legal consequences, such as eligibility to apply for a provisional waiver of certain grounds of inadmissibility or for benefits under federal or state programs where a case has been administratively closed rather than continued; and, If Attorney General Sessions determines that there is no authority to order administrative closure and that such power is unwarranted or unavailable, what actions should be taken regarding cases that are already administratively closed.  The parties’ briefs, not to exceed 15,000 words, are to be filed on or before February 2, 2018.  Amici briefs, not to exceed 9000 words, must be filed on or before February 9, 2018.  The parties may submit reply briefs, not to exceed 6000 words, on or before February 20, 2018.  Matter of Castro-Tum, 27 I&N Dec. 187 (A. G. 2018).

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DHS Is Not Precluded By Res Judicata From Initiating New Removal Proceedings Against One Convicted Of An Aggravated Felony Burglary Offense Per INA § 101(A)(43)(G) Based On The Same Conviction That Supported An Aggravated Felony Crime Of Violence Charge Per INA §(101)(A)(43)(F) In A Prior Matter. Home Invasion In The First Degree Under Michigan Compiled Laws §750.11a(2) Is A Categorical Burglary Offense Per INA § 101(A)(43)(G). Bravo-Pedroza V. Gonzalez, 475 F.3d 1358 (9th Cir. 2007), Not Followed.

On December 29, 2017, the Board of Immigration Appeals (BIA or Board) issued a decision denying the appeal of a respondent who had been charged with removability and placed into proceedings as one convicted of an aggravated felony crime of violence per INA §101(a)(43)(F) and ordered removed by the Immigration Judge (IJ).  Respondent appealed and the BIA remanded to the IJ in light of an intervening Sixth Circuit Court of Appeals (in whose jurisdiction this case arises) opinion holding 18 U.S.C. §16(b) unconstitutionally vague; as a result, the IJ terminated proceedings.  DHS then issued a 2nd NTA, charging respondent with removability under INA §101(a)(43)(G) as one convicted of an aggravated felony burglary offense; he filed a motion to terminate on the grounds that 1) the offense is not an aggravated felony and 2) further removal proceedings are barred by res judicata.  The IJ denied the motion, found the respondent removable under § 101(a)(43)(G) and this opinion addressed the respondent’s appeal, essentially the same arguments made to the IJ in the motion.

At the outset of its analysis, the Board noted that the res judicata “is a common law principle that provides that ‘a final judgment on the merits bars a subsequent action between the same parties over the same cause of action’”.  Because the doctrine is applied more flexibly in the administrative law context, the Board concluded that the IJ had properly held that res judicata does not bar these proceedings; the “underlying basis” for each charge is different, held the BIA, in that the proof required to establish whether an offense is a “crime of violence” or a “burglary offense” is not the same.  

Further, found the opinion, the IJ had properly sustained the crime of violence charge under the applicable precedent at that time per 18 U.S.C. § 16(b), a decision only rendered invalid by the Sixth Circuit’s intervening finding in Shuti v. Lynch, 828 F.rd 440 (6th Cir. 2016).  When the first NTA was filed, added the Board, no court had yet found § 16(b) void for vagueness, so Shuti constitutes “a circumstance that the DHS could not have legitimately anticipated”.  The BIA also found that requiring DHS to anticipate “every possible turn of events” and charge a respondent with all conceivable grounds would inhibit the very judicial economy that is a “fundamental goal of res judicata”.   Similarly, it would not be practical to mandate that DHS present “all possible bases for removal in a single proceeding”.   

As to the perceived tension herein between the public’s interest in administrative finality and Congress’s “clear intent” to remove criminals from the U.S., the Board noted that “the latter controls”.  Thus, concluded the BIA, res judicata should not apply here; a contrary holding would leave certain respondents in a legal limbo-ineligible to adjust status but not removable if new proceedings could not be initiated.  In view of this, the Board respectfully disagreed with the Ninth Circuit precedent, Bravo-Pedroza v. Gonzalez, 475 F.3d 1358 (9th Cir. 2007), which found that the principle bars DHS from issuing a second NTA based on a conviction it could have presented in the first case.  Contrary to the Ninth Circuit’s interpretation of 8 C.F.R. § 1003.30 (2017), the BIA did not understand that regulation, which allows the bringing of additional or substituted charges at any time during the same proceeding, to address the issue of res judicata at all.  The Board disagreed with respondent’s contention that “this aspect of the res judicata doctrine is dispositive in immigration proceedings where the grounds of removability charged are criminal in nature”, concluding that DHS is not precluded by res judicata from initiating a separate removal proceeding against the respondent because of his aggravated felony burglary offense per INA § 101(a)(43)(G), based on the same conviction that supported the prior proceeding.

Lastly, the BIA agreed with the IJ’s finding that home invasion in the first degree under Michigan Compiled Laws § 750.110a(2) is categorically a burglary aggravated felony per INA § 101(a)(43)(G), holding that the added elements to the crime’s definition under the Michigan statute, in fact, narrowed the scope of the statute’s definition rather than expanding it to include conduct outside of the generic definition.  The entirety of the Michigan law, found the opinion, falls within the generic burglary definition which does not require intent at entry; the requisite intent can be developed while “remaining in” a dwelling without permission.  The appeal was thus dismissed.  Matter of Jasso Arangurre, 27 I&N Dec. 178 (BIA 2017).

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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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Comments Off on 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.