Category Archives: Appeal

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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BIA Holds That An Immigration Judge May Make Reasonable Inferences From Direct And Circumstantial Evidence Of Record In Determining Whether Respondent Presents A Danger To The Community, Including Considering Concerns Regarding National Security And The Likelihood Of Respondent Absconding, And Thus Should Or Should Not Be Released On Bond.

On August 3, 2016, the Board of Immigration Appeals (BIA or Board) dismissed the appeal of a respondent denied release on bond. The Appellant, a conditional resident, had come to DHS attention after information was received that his Syrian passport was fraudulent. Initially, he told Homeland Security that his father had procured the document for him but, after returning from a trip to Turkey, he changed his story, admitting “that he obtained the passport in an improper manner through unofficial channels”.

A Notice To Appear (NTA) was issued charging respondent as removable under INA §237(a)(1)(A) as inadmissible at the time of adjustment of status; he requested a bond hearing.

The Immigration Judge (IJ), using DHS forensic lab evidence, found the document was a “stolen blank” that had come from a series of Syrian passports stolen by operatives of the Islamic State in Iraq and Syria. The IJ also held that respondent knew the document was not legitimately procured and had made misrepresentations to DHS about it. Thus, bond was denied under INA 236(a) because, the IJ found, he is a danger to the community and a flight risk. Respondent argued on appeal to the Board that the information relied upon by the IJ was insufficient to support a bond denial.

The BIA decision first noted the general rule that one seeking a change in custody status must establish that he or she is not a threat to national security, a danger to the community at large, likely to abscond, or otherwise a poor bail risk; additionally, found the BIA, national security concerns are fundamental to such adjudications, as are considerations of dangerousness in the criminal context.

The Board’s opinion also emphasized that in determining whether to set bond, the IJ may rely on any evidence in the record that is probative and specific. Here, the BIA minimized respondent’s arguments that there is no evidence that he knew the passport was stolen by terrorists nor are there any known links between him and a terrorist organization; the decision held that circumstances surrounding respondent’s use of this passport gave the IJ ample reason to deny the bond request. The Board also found that the “added dimension” of the involvement of a terrorist organization raised the issue of respondent posing a national security risk. Finally, in upholding the IJ’s determination that the evidence is insufficient to show that, based on the totality of facts and circumstances, respondent is not a danger to the community, the Board held that here the circumstantial evidence, combined with respondent’s fraud, raises significant safety and security concerns justifying continued detention. Matter of Fatahi, 26 I&N Dec. 791(BIA 2016).

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BIA Holds That A Failure To Appear To Serve A Sentence Aggravated Felony Offense Under INA § 101 (a)(43)(Q) Merely Requires That The Underlying Offense Be “Punishable By” Imprisonment For A Term Of 5 Years Or More, Regardless Of The Sentence Respondent Is Actually Ordered To Serve.

On March 17, 2016, The Board of Immigration Appeals (BIA or Board) ruled on the appeal of a respondent convicted of possessing stolen mailbox keys, a Federal felony punishable by a maximum term of imprisonment of 10 years, although the appellant was only sentenced to 2 years. However, he absconded before being taken into custody and was later apprehended and convicted of escape and failing to surrender for service of sentence. The Immigration Judge (IJ) found this latter conviction to be an aggravated felony per INA § 101(a)(43)(Q) as an offense relating to failure to appear for service of sentence.

On appeal, respondent conceded that his conviction related to a failure to appear for service of a sentence but claimed it was not an aggravated felony per (a)(43)(Q) because the underlying offense, possession of stolen mailbox keys, was not “punishable by imprisonment for a term of 5 years or more”, i.e., that although the maximum penalty was 10 years imprisonment, the term by which his offense was “punishable” was the 2 years he was ordered to serve, noting that (a)(43)(Q) is the only aggravated felony definition judging a term of imprisonment by what amount of time sentenced is “punishable” while all others look to the sentence that “may be imposed”.

Initially, the BIA parsed the plain meaning of the term “punishable” which, it stated , refers to any punishment capable of being imposed and held that “punishable by” denotes a focus on the maximum penalty that may be imposed for the offense, rather than on the sentence actually imposed, citing to several Ninth Circuit cases (the jurisdiction where their matter arose). Similarly, the Board found respondent’s reading of the term inconsistent with the U.S. Supreme Court’s line of decisions which culminated in Moncrieffe v. Holder, 133 S. Ct. 1678 (2013) and signified that the Court found “punishable by” to refer to the maximum possible sentence that may be imposed, not the punishment actually ordered.

Finding no sufficient reason to deviate from the ordinary meaning of “punishable by”, the BIA held respondent had indeed been convicted of an aggravated felony under INA § 101(a)(43)(Q), using the maximum possible penalty for his Federal felony, and dismissed the appeal. Matter of Adeniye, 26 I&N Dec. 726 (BIA 2016).

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