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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BIA Holds That, Under The Adam Walsh Act And INA §204(a)(1)(viii)(I), A Petitioner Is “Convicted” Of An Offense Where A Formal Judgment Of Guilt Is Entered By A Court Or, If Adjudication Of Guilt Was Withheld, Where A Plea, Finding, Or Admission Established His Or Her Guilt And A Judge Ordered Some Form Of Punishment, Penalty, Or Restraint On Petitioner’s Liberty

On January 12, 2017, the Board of Immigration Appeals (BIA or Board) decided the appeal of an I-130 immigrant visa petition denied by the Service Center Director (Director) on the basis that the petitioner is barred from having the case approved by the Adam Walsh Act, noted upholding the Director’s decision and dismissing the appeal. Petitioner had been convicted of California Penal Code §243.4(a), sexual battery by restraint, and the Director found the conviction to be for a “specified offense against a minor” under the Adam Walsh Act, noted that petitioner had not established he poses no risk to the beneficiary (his spouse) and denied the petition. Submitting proof that his conviction had been expunged under California Penal Code §1203.4, petitioner argued he had not been “convicted” but the Director held the post-conviction relief did not overcome the conviction because it was obtained per a rehabilitative statute, rather than as the result of a procedural or substantive defect in the proceedings. Petitioner also argued on appeal that the definition of “conviction” found at INA §101(a)(48)(A) did not apply to U.S. citizens like himself; the BIA requested supplemental briefing on this issue.

Initially, in its analysis, the Board held that the definition of “conviction” found at INA §101(a)(48)(A) applies to lawful permanent residents and U.S. citizens and would therefore be adopted for purposes of INA §204(a)(1)(A)(iii)(I), which states that a U.S. citizen petitioner convicted of a specified offense against a minor may only have a visa petition approved if DHS determines he or she presents “no risk” to the beneficiary. Thus, stated the BIA, a petitioner has been “convicted” where “either a formal judgment of guilt has been entered by a court or, if adjudication of guilt has been withheld, where (1) a plea, finding, or admission of facts established the petitioner’s guilt and (2) a judge ordered some form of punishment, penalty, or restraint on his or her liberty.”

The Board went on to find that the §1203.4 expungement, while releasing the petitioner from the penalties and disabilities of the offense, was actually quite limited and therefore had no effect on his conviction for either Adam Walsh Act or INA §204(a)(1)(A)(iii)(I) purposes. The opinion also rejected petitioner’s argument that his crime did not constitute a specified offense against a minor, finding the BIA’s own precedent – Matter of Inrocaso, 26 I&N Dec. 304 (BIA 2014) – allowed DHS to inquire into the facts and circumstances of the violation to ascertain both the victim’s age and petitioner’s underlying conduct. As such, the Director’s determination that petitioner had not met his burden of establishing he was not convicted of a specified offense against a minor was affirmed and the appeal dismissed. Matter of Calcano De Millan, 26 I&N Dec. 904 (BIA 2017).

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BIA Holds Definition Of Perjury Under INA §101(a)(43)(S) Requires A Knowing Material False Statement Under Oath Where An Oath Is Authorized By Law And, Thus, A Conviction For Perjury In Violation Of California Penal Code §118(a) Qualifies As An Aggravated Felony Per §(a)(43)(S).

On December 29, 2016, in a case remanded by the Ninth Circuit Court of Appeals, the Board of Immigration Appeals (BIA or Board) upheld the decision of the Immigration Judge (IJ) that a conviction for perjury under California Penal Code §118(a) is a categorical aggravated felony per INA §101(a)(43)(S) as an offense relating to perjury where the term of imprisonment is at least one year. Initially, the respondent had conceded removability and applied for various forms of relief but the IJ found him to be an aggravated felon ineligible for relief and the BIA affirmed. After the filing of a petition for review, the Ninth Circuit granted a motion to remand so the Board could consider its previous holding in Matter of Martines-Recinos, 23 I&N Dec. 175 (BIA 2001)(en banc), which found that a violation of §118(a) is a categorical aggravated felony perjury offense by comparing 18 USC §1621, the Federal perjury statute, with the elements of the California statute.

In its analysis, the BIA first noted that the Martinez-Recinos decision had not explained why the Board relied on §1621 for a generic definition of perjury. The BIA then found that “18 USC §1621 alone does not provide the generic definition of perjury for purposes of “INA §101(a)(43)(S), instead adopting a generic definition “based on how the crime of perjury was commonly defined at the time §101(a)(43)(S) was enacted”. Looking to the 1996 definitions of perjury codified in state and Federal law, the Model Penal Code, and scholarly commentary to articulate a uniform definition of perjury, the Board withdrew from Martinez-Recinos to the extent it conflicts with its’ new framework.

The decision’s survey of perjury statutes led the BIA to conclude that when “perjury” was added to (a)(43)(S) in 1996, the majority of states agreed the definition included 1) a material 2) false statement 3) made knowingly or willfully 4) while under oath, affirmation or penalty of perjury, e.g., made at an official proceeding or where an oath was required or authorized by law. This definition, held the Board, also embodies “the level of criminal liability that Congress intended when it added the offense of perjury” to the INA in 1996. Comparing the elements of §118(a) to this definition, the BIA concluded that respondent’s conviction is categorically for an offense relating to perjury under §101(a)(43)(S) as the state law “substantially emulates” the Federal crime proscribed by §1621, which is generally accepted as the acknowledged definition of perjury. In a footnote, the Board agreed with the Ninth Circuit that §118(a) is broader than that common law definition but noted that its analysis concerned the generic definition of the offense when §101(a)(43)(S) was enacted, a definition which may diverge from the common law. As such, the decision concluded that respondent’s conviction was for a categorical aggravated felony rendering him ineligible for relief and dismissed the appeal. Matter of Alvarado, 26 I&N Dec. 895 (BIA 2016).

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