Category Archives: BIA

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 Whether A State Offense Is Punishable As A Felony Under The Federal Controlled Substances Act (CSA) And Is Thus An Aggravated Felony Drug Trafficking Crime Per INA §101(A)(43)(B), IJ’s Need Not Look Solely To The CSA Provision Most Similar To The State Statute Of Conviction.  Respondent’s Conviction Under §2C:35-7 Of The New Jersey Statutes For Possession With Intent To Distribute Cocaine Within 1,000 Feet Of School Property Is An Aggravated Felony Drug Trafficking Crime Because The State Offense Satisfies All Of The Elements Of 21 U.S.C. §841(A)(1) Of The CSA And Would Be Punishable Under That Provision.

On March 14, 2018, the Board of Immigration Appeals (BIA or Board) sustained the DHS appeal of an Immigration Judge (IJ) finding that respondent was not removable per INA §237(a)(2)(A)(ii) as one convicted of an aggravated felony drug trafficking crime under INA §101(a)(43)(B), granting his application for cancellation of removal.  DHS argued that the IJ erroneously granted the application as respondent’s violation of New Jersey Statutes §2C:35-7 constitutes an aggravated felony per (a)(43)(B). Whether a state drug offense qualifies as an aggravated felony is a question of law reviewed de novo, held the opinion.  

The BIA’s analysis began with the decision noting that, as an “aggravated felony” under §101(a)(43)(B) encompasses illicit trafficking in a controlled substance and the term “drug trafficking crime” means any felony punishable under the CSA, a state drug conviction constitutes an aggravated felony drug trafficking crime if it would be punishable under the CSA.  Further, stated that the Board, because an offense can be an aggravated felony if it is punishable as a felony under any provision of the CSA, DHS correctly argued on appeal that the crime defined by §2C:35-7 “is punishable as a felony under 21 U.S.C. §841(a)(1)(2012), which is also an appropriate Federal analogue to the State statute”.

In turn, the decision agreed with DHS that this approach is allowable and that §884(a)(1) is “an appropriate Federal analogue” to §2C:35-7, finding that the IJ’s conclusion that respondent’s state offense was not an aggravated felony drug trafficking crime because it would not be punished as a felony under 21 U.S.C. §860(2012) was “unreasonably limited”.  The Board further concluded that the only difference between §2C:35-7 and §841 is that the New Jersey offense criminalizes a narrower subset of controlled substance offenses within the border universe of those encompassed by §841.

Clearly, held the Board, finding that §860 is the only appropriate analogue to §2C:35-7 would lead to absurd results, i.e., a holding that possession of cocaine with the intent to dispense it is a §101(a)(43)(B) aggravated felony but the same crime committed within proximity to a school is not.  The BIA therefore concluded that respondent’s conviction for possession with intent to distribute cocaine within 1,000 feet of school property is an aggravated felony drug trafficking crime because it satisfies all the elements of §841(a)(1) and would be punishable as a felony under that provision.  The Government’s appeal was sustained and the IJ’s cancellation grant vacated; respondent was ordered removed.

In a concurring opinion, Board Member O’Connor noted what he termed “the absurdity of the legal manipulations we must go through to reach this common sense conclusion, which seems to be a reoccurring sentiment expressed by adjudicators everywhere”.  He found that the “proper inquiry” was whether all violations of §2C:35-7 are punished as felonies under the CSA as a whole.  By looking at the law in its entirety, he wrote, “we see that all violations of section 2C:35-7 would be punished as felonies under that Federal law”.  Matter of Rosa, 27 I&N Dec. 228 (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 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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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 In Removal Proceedings Which Involve Issues Of A Respondent’s Mental Competency, The Immigration Judge Has Discretion To Consider And Apply Safeguards To Allow The Case To Go Forward And The Board Reviews The Adequacy Of The Judge’s Decision De Novo.

On June 29, 2016, the Board of Immigration Appeals (BIA or Board) ruled on the DHS appeal of an Immigration Judge’s (IJ’s) termination of removal proceedings without prejudice, where the IJ found the respondent not competent and held that adequate procedural safeguards were unavailable.

Charged with removal due to an aggravated felony conviction, respondent engaged in obstructive behavior, which caused the case to be continued for a psychiatric evaluation; venue was then changed to a mental health docket. After attending one hearing, respondent refused to attend any further hearings and, in his absence, the IJ concluded he was not competent based on record evidence, including a psychological evaluation and an ICE Form IHSC-883 Mental Health Review.

Finding the safeguards thus far implemented (evaluations, venue changes, continuances) insufficient to ensure fair proceedings, the IJ concluded that even added safeguards (attorney representation and administrative closure) would be ineffective and terminated proceedings without prejudice. DHS appealed, requesting a remand so the IJ could clarify his competency determination and consider other safeguards, including re-service of the Notice To Appear (NTA).

The BIA initially noted that IJs have discretion to determine appropriate safeguards “under the circumstances of a particular case.” Because the IJ’s determination in this regard is discretionary, the Board held it reviews such decisions de novo. Here, the BIA concluded that the question had become “whether sufficient relevant information can otherwise [i.e., in respondent’s absence] be obtained to allow challenges to removability and claims for relief to be presented”. Because in such situations, the parties can explore various alternatives with the IJ, the Board found it was improper for the court to have determined that no adequate safeguards were available without first attempting to take other steps, like pursuing the safeguard of legal representation, that would allow the case to continue.

Holding that counsel could interact with respondent, communicate with his family and caregivers, and speak to witnesses, the BIA remanded the record to the IJ to reassess the safeguard afforded by counsel and consider additional options in an effort to advance the case. Matter of M-J-K, 26 I&N Dec. 773 (BIA 2016).

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BIA Holds One Cannot Establish Good Moral Character Per INA §101(f)(6) If, During The Required Period, He or She Gives False Testimony Under Oath In Immigration Court Intending To Obtain An Immigration Benefit.

On June 27, 2016, the Board of Immigration Appeals (BIA or Board) held that a Mexican citizen who knowingly lied about his criminal history before the Immigration Judge (IJ) in an attempt to obtain cancellation of removal [INA §240(A)(b)(1)] or voluntary departure cannot show good moral character (GMC) under INA §101(f)(6), dismissed his appeal and denied his motion to reopen and remand. (The BIA also noted in a footnote that, subsequent to filing the appellate brief, respondent’s attorney had moved to withdraw; the Board also denied that motion because no adequate reason to permit withdrawal had been given.)

In his cancellation application, respondent stated he had only one criminal conviction but, in Immigration Court, testified initially that he had never been convicted, only correcting himself upon being reminded by his attorney; he then denied any other arrests or convictions. Yet on cross-exam inaction, after first reaffirming this claim, he was confronted by DHS with a series of dates and offenses, eventually admitting five additional incidents. The IJ found respondent had given false testimony which affected his credibility, concluding he lacked GMC and was therefore statutorily ineligible for cancellation or voluntary departure.

The BIA, in a fairly lengthy analysis, first noted that to qualify for cancellation, a respondent must establish, among other things, GMC for at least ten years immediately preceding the date of the application. INA §101(f)(6) states that no one can show GMC if, during the required period, he or she gives false testimony (oral statement under oath) for the purpose of obtaining immigration benefits. The Board noted the misrepresentation need not be material. Citing to several 9th Circuit appellate court opinions and its own precedent decision, Matter of Barcenas, 19 I&N Dec. 609 (BIA 1988), the opinions reiterated that fake statements under oath in Immigration Court may run afoul of INA §(f)(6).

Stating that truthful testimony is critical to the effective operation of the immigration court system, the Board found that respondent had been given ample opportunity to disclose all arrests and convictions, understood the questions, and had not shown there had been faulty interpretation or objected to the interpreter’s performance. Nor had he made a timely recantation of his false testimony. The BIA could only conclude that respondent had lied to hide his criminal history from the IJ, e.g., made false statements with a subjective intent to deceive the court. Thus, the Board held, the respondent was properly precluded from establishing GMC under §101(f)(6) and is statutorily ineligible for cancellation of removal and voluntary departure. Additionally, weighing his equities, the Board agreed respondent did not merit a favorable exercise of discretion.

Finally, the Board denied the motion to remand based on in effective assistance of counsel because respondent had not substantially complied with the procedural requirements of Matter of Lozada; had failed to present a clear and obvious case of such ineffective assistance; or, shown his first attorney’s performance was deficient. (Respondent had lied to his attorney about his criminal history.) Matter of Gomez-Beltran, 26 I&N Dec. 765 (BIA 2016).

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BIA Holds A Conviction For Endangering The Welfare Of a Child Under Section 260.10(1) Of The New York Penal Law, Which Requires Knowingly Acting In A Manner Likely To Be Injurious To The Physical, Mental Or Moral Welfare Of A Child, Categorically Qualifies As A ‘Crime Of Child Abuse, Child Neglect, Or Child Abandonment” Per INA § 237(a)(2)(E)(i).

On February 9, 2016, the Board of Immigration Appeals (BIA or Board) dismissed the appeal of a respondent found removable under INA § 237(a)(2)(E)(i) as one convicted of a “crime of child abuse, child neglect, or child abandonment”, finding no weight to his argument that his violation of the offense of endangering the welfare of a child per section 260.10(1) of the New York Penal Law was for a crime broader than that defined as “child abuse” in previous BIA decisions.

Initially citing to Matter of Velazquez-Herrera, 24 I&N Dec. 503 (BIA 2008), the Board noted its interpretation of the term “crime of child abuse” to mean any offense involving an intentional, knowing, reckless, or criminally negligent act or omission that constitutes maltreatment of a child or that impairs a child’s physical or mental well-being. This definition, the BIA stated, was later clarified in Matter of Soram, 25 I&N Dec. 378 (BIA 2010) as specifically not limited to offenses that require proof of actual harm to a child such that crimes of neglect and abandonment are included in the Board’s understanding of “child abuse”.

As to the crime at bar, the applicable section of 260.10(1) involved “taking action that is likely to be harmful to a child’s welfare”. Respondent argued that his New York conviction was not categorically a child abuse crime because the state statute was overbroad, encompassing conduct falling outside of the sphere of that contemplated by Velazquez-Herrera and Soram. Utilizing the categorical approach of Moncrieffe v. Holder, 133 S. Ct. 1678 (2013), the Board looked to whether the state crime categorically fit within the federal definition of the corresponding offense, holding that the respondent must do more than just invoke the statute’s breadth; he must show there is a “realistic probability” that the statute is applied to punish conduct that does not qualify as child abuse under the INA. As the appellant failed to cite any case where the New York statute criminalized conduct outside the BIA’s child abuse definition and none of the cases he did cite resulted in a successful prosecution, the Board found that section 260.10(1) only criminalized conduct a defendant knew would pose a substantial risk of harm to a child under the totality of the circumstances, requiring as an element of the crime a sufficiently high risk of harm to a child. Thus, held the BIA, while there are some child endangerment statutes that do not meet its definition, section 260.10(1) is not one of them. Matter of Mendoza Osorio, 26 I&N Dec. 703 (BIA 2016).

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BIA Holds That A Witness Testifying About Events He Or She Has Experienced Has Personal Knowledge Of The Matters Addressed And The Federal Rules Of Evidence Requirements Regarding The Admission Of Expert And Lay Testimony Do Not Apply. Additionally, Conduct By An Immigration Judge (IJ) That Is Bullying Or Hostile To A Witness Is Inappropriate, Particularly When It Involves A Minor, And May Result In A Remand To a New IJ.

On November 23, 2015, the Board of Immigration Appeals (BIA or Board) vacated a decision of the Immigration Judge (IJ) denying a 15 year-old’s request for withholding of removal and CAT relief, remanded the record to the Immigration Court, and ordered assignment to a new IJ. When respondent’s attorney had attempted to question him in court on how his experiences in Guatemala (extortion of his family, threats to kill him and his relatives, assault by armed men) had affected him in terms of “psychological issues” such as nightmares, the IJ initially insisted on qualifying the boy as an expert witness, asking if he had ever “lectured on a professional level on psychology”. Despite counsel’s objections that he wasn’t trying to qualify respondent as an expert, the IJ refused to allow the boy “to testify as to vague psychological problems”, claiming he could only testify as a lay witness and could not be asked about the psychological impact of his experiences.

In its opinion, the BIA concluded the IJ erred in suggesting the boy needed to be qualified as an expert, explaining that under the Federal Rules of Evidence (FRE), a lay witness cannot give an opinion based on scientific or specialized knowledge. However, the FRE is not binding in immigration proceedings where the proper test of admissibility is whether the evidence is probative and its admission fundamentally fair. When respondent had personal knowledge of the matters addressed and was not offering opinion testimony, this test was met.

More significantly, the Board held that the IJ’s treatment of respondent could not be condoned, stating that conduct by the IJ which can be perceived as bullying or hostile can have a chilling effect on testimony and this limit the court’s ability to fully develop the facts. The BIA added that such behavior creates the appearance the IJ is not a neutral fact-finder and raises questions whether respondent received a full and fair hearing. Because the hearing was not conducted in a manner that meets the expected standards, the IJ’s decision was vacated and the record remanded to a new IJ to ensure fairness and the appearance of impartiality. Matter of Y-S_L-C- 26 I.&N. Dec. 688 (BIA 2015).

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