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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PA (BIA, November 27, 2017), to himself for review of the BIA’s decision in that non-presidential (unpublished) decision.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).

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).

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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BIA Clarifies Recent Precedent Decision That Crime Of Aggravated Battery Under The Puerto Rico Penal Code Is Not Categorically A Crime Of Violence Per 18 U.S.C § 16(a), Holding that Controlling Circuit Court Law Must Be Followed On The Question Of Whether The Use or Threatened Use Of Poison To Injure Another Involves Sufficient `Force` To Constitute A Crime Of Violence.

On September 9, 2016, The Board of Immigration Appeals (BIA or Board), readdressing a question that it had confronted earlier this year, issued an opinion clarifying Matter Of Guzman-Polanco, 26 I&N Dec. 713 (BIA 2016), which held that a conviction for aggravated battery in violation of the Puerto Rico Penal Code is not categorically for a crime of violence under 18 U.S.C. §16(a).

Following that decision, the Department of Homeland Security (DHS) had filed a motion for reconsideration arguing initially against the Board’s withdrawal from Matter of Martin, 23 I&N Dec. 491 (BIA 2002) in Guzman-Polanco. Granting the motion so as to address DHS’ concerns and explain its prior decision, the BIA upheld its previous holding that the Puerto Rican simple battery statute is too vague to categorically establish a crime of violence under §16(a) because it only requires that the infliction of “injury to the bodily integrity of another” be “through any means or form”. Again finding that the U.S. Supreme Court’s decision in Johnson V. United States, 559 U.S 133 (2010) (the phrase “physical force” means violent force – force “capable of causing physical pain or injury to another person”) controls its interpretation of §16 (a), the Board stated it was “appropriate” to withdraw from Matter of Martin to the extent that decision is inconsistent with Johnson because it includes within the definition of “crime of violence” offenses that do not require violent force.

As to DHS’ argument that the use of “indirect means” such as poison qualifies as a sufficient “use of force” to qualify under §16(a), the Board recognized that there is currently a circuit split on the issue and ruled that individual circuit law governs unless the Supreme Court  resolves this question. The record was thus remandad to the Immigration Judge for further proceedings and entry of a new decision. Matter of Guzman-Polanco, 26 I&N Dec. 806 (BIA 2016)   

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BIA Holds That “Rape” Under INA § 101(A)(43)(A) Includes An Act Of Vaginal, Anal, Or Oral Intercourse, Or Digital Or Mechanical Penetration, No Matter How Slight.  Perez-Gonzalez V. Holder, 667 F.3d 622 (5th Cir. 2012), Not Followed.  “Rape” Also Requires That The Underlying Sexual Act Be Committed Without Consent, Which May Be Shown By A Statutory Requirement That The Victim’s Ability To Appraise The Nature Of The Conduct Was Substantially Impaired And The Defendant Had A Culpable Mental State As To Such Impairment.

On October 20, 2017, the Board of Immigration Appeals (BIA or Board), in ruling on the appeal of a respondent convicted of aggravated felony rape under INA § 101(a)(43)(A) and ordered removed by the Immigration Judge (IJ), discussed what acts are encompassed by “rape” and whether the “substantial impairment” standard found at § 2907.02(A)(1)(c) of the Ohio Revised Code Annotated is synonymous with an incapacity to consent.  Initially, held the BIA, whether a conviction is for aggravated felony rape under § 101(a)(43)(A) is a question of law the Board reviews de novo.

To begin its analysis, the BIA noted that its inquiry is governed by the categorical approach, which requires an adjudicator to “compare the scope of conduct punished as rape” under Ohio law with the generic definition of “rape” in § 101(a)(43)(A).  The term, explained the opinion, was added to the INA in 1996, but is not defined by the Act or any other provision of federal law.  In the absence of statutory definition, held the BIA, the Board must “define the term according to its ordinary, contemporary meaning in 1996” when “rape” was added to the aggravated felony provisions.  

Respondent argued that the BIA’s inquiry into the ordinary, contemporary meaning of “rape” in 1996 “should be limited to examining the laws of the 23 states that prohibited a crime specifically called ‘rape’ at that time”; as only a minority of such jurisdictions included digital or mechanical penetration in that definition, he claimed that in 1996 the consensus was that this conduct was not rape.  The Board disagreed, finding that many of these States treated such crimes and rape as synonymous and interchangeable – quoting an Illinois Supreme Court decision to point out that the goal of renaming these crimes was to take a “hodgepodge of preexisting statutes” and create one comprehensive law “that reflects the fact that rape encompasses all types of sexual assault”.  Put another way, held the Board, Congress’ “restyling” of “rape” into forms of “sexual abuse” was meant to “remove barriers associated with the traditional understanding of rape and to bring Federal law in line with the growing consensus among the States” that “rape” includes a wider range of unacceptable conduct than coerced sexual intercourse.  

As to the sexual act required for a conviction, the BIA noted that by 1996 the State consensus was that “rape” encompassed not only vaginal, anal, and oral intercourse, but also digital and mechanical penetration as well.  Thus, held the Board, because a majority of States defined rape so as to include these acts, “such offenses are also covered by the definition of ‘rape’ in section 101(a)(43)(A)…”, no matter how slight the penetration.

Regarding the issue of consent, the BIA framed the inquiry as how to define lack of consent generally and where a victim’s mental condition amounts to a “prohibitive condition” that makes an act of sexual penetration unlawful.  Setting forth the Ohio statute under which respondent was convicted as defining “rape” as a sexual act where either 1) the victim’s mental capacity is substantially impaired as the result of an intoxicant administered without consent by the defendant or 2) the victim’s mental capacity is substantially impaired and the defendant knew or had reason to know, the Board found respondent conviction to have been based on the latter circumstance.  Here, the respondent’s argument appeared to highlight the phrase “incapable of giving consent”, so as to attribute to the term “a meaning that requires complete incapacitation, or an inability to vocalize consent”; this interpretation, found the opinion, “is flatly at odds with the consensus in 1996.”  Yet by that time, stated the BIA, the term “incapable” did not denote an absolute inability to consent, merely an inability to give effective or meaningful consent.  In other words, held the Board, the “pivotal question” is whether a victim is substantially able to understand what she was doing; this is “essentially synonymous” with requiring that the impairment be of such a degree “as to deprive the victim of the ability to provide meaningful consent”.  The IJ’s order was therefore affirmed and the appeal dismissed.  Matter of Keely, 27 I&N Dec. 146 (BIA 2017).

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BIA Holds That Criminally Negligent Homicide In Violation Of New York Penal Law § 125.10 Is Categorically Not A Crime Involving Moral Turpitude As It Does Not Require A Defendant To Have A Sufficiently Culpable Mental State.

On October 16, 2017, the Board of immigration Appeals (BIA or Board), in sustaining a respondent’s appeal of an Immigrant Judge’s (IJ’s) order of removal, held that criminally negligent homicide under New York law is not a crime involving moral turpitude (CIMT).  After respondent, a lawful permanent resident, was convicted of criminally negligent homicide and, subsequently, of promoting prostitution, DHS initiated removal proceedings charging him under both INA § 237(a)(2)(A)(i) as one convicted of CIMT within 5 years of Admission and (a)(2)(A)(ii) as one who at any time after admission is convicted for 2 or more CIMT’s not arising out of a single scheme of misconduct.  Initially, the BIA noted that if the homicide conviction is not for a CIMT, proceedings would have to be terminated because neither charge of removability could be sustained.  

Respondent argued on appeal that his first conviction did not render him removable as § 125.10 punishes criminally negligent conduct, which is not morally turpitudinous.  In assessing, whether an offense is a CIMT, the Board stated that it employs the categorical approach by comparing the elements of the state offense to those of the generic crime to determine if there is a categorical match.  Previously, it had held that moral turpitude inheres in crimes involving serious misconduct committed “with at least a culpable mental state of recklessness”, i.e., a conscious disregard of a substantial and unjustifiable risk, citing to Matter of Franklin, 20 I&N Dec. 867 (BIA) 1994) and an earlier precedent Board decision which had found that one acting under this mental state could be convicted of a CIMT because recklessness requires an actual awareness of risk; both BIA cases had been affirmed by the U.S. Courts of Appeal.  In contrast, noted the Board, crimes committed with criminal negligence are usually not morally turpitudinous because neither intent nor a conscious disregard of substantial and unjustifiable risk is required for conviction, thus no sufficiently culpable mental state need be proven.

In parsing the statute of conviction, the BIA found that § 125.10 provides that one is guilty of criminally negligent homicide when, with “criminal negligence”, he causes the death of another while § 15.05(4) defines criminal negligence as the failure to perceive a substantial and unjustifiable risk.  Thus, held the Board, criminal negligence under New York law is materially distinct from the concept of “recklessness” outlined in the above-referenced precedent decisions in that it only requires a perpetrator to fail to perceive such a risk whereas recklessness requires the risk to be consciously disregarded.  Therefore, concluded the decision, the elements of § 125.10 “do not categorically fall within the definition” of a CIMT.  As a result, the IJ was found to have erred in finding the respondent removable, the appeal was sustained and proceedings terminated.  Matter of Tavdidishvili, 27 I&N Dec. 142 (BIA 2017).

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One Has “Previously Been Admitted” To The U.S. “As An Alien Lawfully Admitted For Permanent Residence” Under INA § 212(H) If He Or She Was Inspected, Admitted And Physically Entered The Country As A Lawful Permanent Resident At Any Time In The Past, Even If Such Admission Was Not The Person’s Most Recent Acquisition Of Permanent Resident Status.

On October 3, 2017, the Board of Immigration Appeals (BIA or Board) ruled on the appeal of a respondent held by the Immigration Judge (IJ) to be ineligible for a waiver of inadmissibility under INA § 212(h) and ordered removed.  Respondent had been admitted to the U.S. as a lawful permanent resident (LPR), subsequently convicted of conspiracy to operate an illegal gambling business in violation of federal law, placed into removal proceedings as an aggravated felon, then granted adjustment of status (AOS) by the IJ.  Five and a-half years later, he was convicted of conspiracy to commit extortion (another federal crime), placed back into proceedings, which went up to and were remanded by the BIA, after which DHS lodged the additional charge of having been convicted of conspiracy to commit an aggravated felony theft offense per INA §§ 101(a)(43)(J) and (U).  The IJ found respondent ineligible for a § 212(h) waiver, filed as part of his second AOS application, holding he had “previously been admitted to the United States as an alien lawfully admitted for permanent residence” at his very first admission and subsequently convicted of an aggravated felony.  Respondent argued that the word “previously” in § 212(h) referred only to the most recent time he obtained LPR status.

The BIA initially cited to Dobrova v. Holder, 607 F.3d 297 (2d Cir. 2010) which considered “the ordinary, common meaning” of “previously” in the statute and held that it did not refer to the most recent action, “but to action that has taken place sometime in the indefinite past.”  Applying the Second Circuit’s analysis, the Board concluded that respondent is not eligible for the waiver as he first entered the country as a LPR after inspection and admission following consular processing abroad and was then convicted of aggravated felonies.  He therefore qualified as one who has “previously been admitted” to the U.S. “as an alien lawfully admitted for permanent residence” and subsequently “convicted of an aggravated felony” under INA § 212(h).  His AOS in court, held the BIA, did not preclude this finding of ineligibility.  The appeal was dismissed.  Matter of Vella, 27 I&N Dec. 138 (BIA 2017).

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One Seeking To Qualify For The Inadmissibility Exception To INA § 212(A)(6)(A)(ii) Must Satisfy All 3 Subclauses Of That Section, Including The Requirement That He Or She Be A “VAWA Self-Petitioner.”

On October 6, 2017, the Board of Immigration Appeals (BIA or Board) sustained a DHS appeal of an Immigration Judge’s (IJ’s) termination of removal proceedings in the case of a woman charged under INA § 212(A)(6)(A)(i) as one removable for being present in the U.S. without admission or parole. The IJ had terminated proceedings, holding respondent qualified for the exception to this ground per INA § (a)(6)(A)(ii), which is granted to one who I) is a VAWA self-petitioner; II) a) has been battered or subjected to extreme cruelty by a spouse or parent or member of the spouse’s or parent’s family residing in the applicant’s household and the spouse or parent consented to the battery or cruelty or b) whose child has been battered or subjected to extreme cruelty by a spouse or parent of the applicant (without the applicant’s active participation) or by a member of the spouse’s or parent’s family residing in the applicant’s household when the spouse or parent consented to the battery or cruelty and the applicant did not actively participate in it, and III) there was a substantial connection between the battery or cruelty and the applicant’s unlawful entry into the U.S. The BIA ultimately phrased the issue as whether one who seeks to qualify for the inadmissibility exception of § (A)(6)(A)(ii) must satisfy all 3 subclauses, including the requirement that he or she be a VAWA self-petitioner.

As explained by the Board, the IJ had concluded that the section’s language indicated that Congress only intended applicants to satisfy either subclauses I) or III) or subclauses II) and III), and held that even though respondent is not a VAWA self-petitioner, she had suffered extended domestic abuse by her husband in Guatemala and was entitled to the exception. DHS disagreed and argued respondent is not so qualified.

The decision’s initial analysis focused on the statutory language of 212 § (A)(6)(A)(ii), with the BIA noting that it first looks to the statute’s plain meaning so as to give effect to that meaning when possible; the most natural reading, held the opinion, is that respondent must satisfy subclauses I), II), and III), but subclause III) may be satisfied 2 different ways. However, as III) refer to the first 2 subclauses in the disjunctive, the Board found that the language is ambiguous and the legislative history must be considered.

In parsing the legislative history, the BIA looked to the Immigration Marriage Act Fraud Amendments of 1986, when marriage fraud concerns prompted Congress to create the 2-year conditional residence period which must pass before lawful permanent resident status can be granted to a noncitizen spouse. Because, noted the decision, a U.S. citizen or LPR spouse’s consent and cooperation are required to file a joint petition to remove conditional status, the citizen or LPR gained “considerable leverage over their foreign national spouse.” This, stated the Board, created a situation in which abused foreign national spouses were reluctant to leave the U.S. citizen/LPR spouse “for fear of losing their potential to adjust their status.” In turn, Congress created the battered spouse waiver of the joint petition requirement in 1990, codified at INA § 216(c)(4)(C); its purpose found the BIA , was to ensure that no foreign spouse or child gets trapped in an abusive relationship by the threat of losing legal status.

Next, in its analysis of § 212(a)(6)(A)(ii)’s scope, the opinion found that the most reasonable reading of the section is that an applicant must satisfy all 3 subclauses, as subclause II) reflects a desire by Congress to expand protections to cover abuse not only by U.S. citizen and LPR spouses and parents but also by members of the household where the abuser acts at the direction of the citizen/LPR, e.g., coverage is extended against those who possess “immigration leverage” over a foreign national spouse. While respondent claimed that this interpretation rendered subclause II) superfluous, the Board did not find that argument persuasive, holding that while subclauses I) and II) overlap, there are important differences between them and such overlap reflects Congress’ desire to ensure there is no gap in coverage for those abused by, or with the consent of, a U.S. citizen or LPR spouse or parent. On the other hand, noted the BIA, the IJ’s interpretation would vastly expand the section’s reach by effectively removing the requirement of a U.S. citizen or LPR abuser as it would “apply to any domestic abuse situation in the world” as illustrated by respondent’s complaint of abuse by her spouse in Guatemala. This, found the Board, was not why Congress created such a broad exception to inadmissibility. Furthermore, requiring the satisfaction of only subclauses II) and III) would alleviate respondent’s removability but would leave her with no legal status in the U.S., another result that could not have been intended by Congress. Thus, the more reasonable approach is that all 3 subclauses must be satisfied to qualify for the exception found at INA § 212(a)(6)(A)(ii). The appeal was sustained, proceedings reinstated, and the record remanded to the IJ. Matter of Pangan-Sis, 27 I&N Dec. 130 (BIA 2017).

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When A Petitioner Seeking To Prove A Family Relationship Files A Birth Certificate That Was Not Registered Contemporaneously With The Birth In Question, USCIS Must Consider The Certificate And All Evidence Of Record Including The Circumstances Of The Case, To Determine Whether The Claimed Relationship Has Been Proven By A Preponderance Of The Evidence.

On September 20, 2017, the Board of Immigration Appeals (BIA or Board), ruled on the appeal of a denied Form I-130, Petition for Alien Relative in a situation where the Service Center Director held that the Beneficiary’s Pakistani birth certificate, registered 2 years after his birth, did not sufficiently prove his parentage and thus could not establish he was the Petitioner’s brother. The Director found that Petitioner had not submitted sufficient secondary evidence to support the delayed registered birth certificate.

Initially, in analyzing the application of the preponderance of the evidence standard, the BIA quoted Matter of E-M-, 20 I&N Dec. 77 (Comm. 1989) for the long-held administrative commandment that “when something is to be established by a preponderance of the evidence it is sufficient that the proof only establish that it is probably true.” Thus, in discussing the necessary primary evidence to be filed to prove a family relationship in visa petition proceedings, the Board noted that – in the instant case – such evidence includes birth certificates showing a common parent, citing to 8 C.F.R § 204.2(g)(2)(i).

Historically, noted the opinion, the BIA has been reluctant to accord delayed birth certificates the same weight as those issued at the time of birth on the theory that delayed certificates are less reliable, i.e., that there is a greater opportunity for fraud. Moreover, the Board has previously held that delayed certificates are generally not conclusive evidence and must be evaluated in light of the other evidence of record and “the circumstances of the case”, stating that it has consistently considered the entire record to determine whether there is sufficient evidence of the claimed relationship. Here, the BIA concluded that, in evaluating whether a birth certificate is “delayed” and thus raises fraud concerns, USCIS must consider all record evidence and the circumstances of the case to determine whether sufficient reliable, persuasive evidence has been filed.

Next, in discussing other acceptable evidence, the Board again cited the regulations (8 C.F.R § 103.2(b)(2)) for the proposition that when an adjudicator determines a birth certificate is “not sufficiently reliable to meet the preponderance of the evidence standard” in light of all the circumstances, he or she should require and consider secondary evidence. Such evidence must be evaluated for authenticity and credibility and a Request for Evidence (RFE), providing detailed guidance regarding acceptable secondary forms of evidence, should be issued if it is not initially submitted. Most persuasive is secondary evidence that was created contemporaneously with the birth.

In the instant case, concluded the opinion, the Petitioner filed the I-130 fifty-two years after the Beneficiary’s birth was registered; unlike situations where the birth is registered right before the petition is filed, here the risk of fraud is greatly reduced. Additionally, noted the BIA, the Director had not considered the U.S. Department of State Foreign Affairs Manual (FAM) comments concerning Pakistani birth certificates: The FAM states that certificates for those born before 1947 are often unavailable and even today are not uniformly kept, particularly in rural areas. As such, the case was remanded to the Director to apply the Board’s framework; if USCIS determines that the birth certificate alone is not sufficiently reliable, it must consider whether, in combination with the secondary evidence submitted, it is sufficient to meet the preponderance of the evidence standard. Matter of Rehman, 27 I&N Dec. 124 (BIA 2017).

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BIA Holds A Misrepresentation Is Material Per INA § 212(a)(6)(C)(i) If It Tends To Shut Off A Line Of Inquiry Relevant To Admissibility And Would Predictably Have Disclosed Other Facts Relevant To The Applicant’s Eligibility For A Visa, Other Documentation, Or Admission To The U.S. Forbes v. INS, 48 F.3rd 439 (9th Cir. 1995) Not Followed. Therefore, In Determining Whether One Assisted Or Otherwise Participated In Extrajudicial Killing, An Adjudicator Should Consider 1)The Nexus Between The Applicant’s Role, Acts, Or Inaction And The Killing And 2) His Or Her Prior Or Contemporaneous Knowledge Of The Killing. Miranda Alvarado v. Gonzalez, 449 F.3rd 915 (9th Cir. 2006) Not Followed.

On September 14, 2017 the Board of Immigration Appeals (BIA or Board), in another extremely lengthy opinion, ruled on the appeal of a native of Bosnia-Herzegovina who had been found removable by the Immigration Judge (IJ) both for willful misrepresentation of a material fact under INA § 212(a)(6)(C)(i) for failing to disclose on his refugee application that he was a Special Police officer and Squad/Platoon commander during the Bosnian War and for participating in the extrajudicial killing of Bosnian Muslims, a separate ground under INA § 212(a)(3)(E)(iii)(II).  Initially, the BIA affirmed the IJ’s ruling and remanded the record to allow the respondent to apply for deferral of removal but respondent refused to do so and the IJ certified the case to the Board, which then dismissed the appeal.  Respondent was subsequently removed, but on remand, the Ninth Circuit of Appeals asked for clarification of the BIA’s analysis in finding 1) that respondent’s failure to disclose his service as Serbian Special Police officer on his refugee application was a material misrepresentation and 2) that he assisted in the extrajudicial killing of Bosnian civilians, per Matter of D-R-, 25 I&N Dec. 445 (BIA 2011).  In the instant decision, the BIA reaffirmed its earlier ruling, clarifying its standard for determining if one has “assisted, or otherwise participated in the commission of … any extrajudicial killing.”

Initially, in its analysis, the Board noted that the first question was whether respondent’s omission from his refugee application that he had been a Special Police Officer was a “material” misrepresentation.  Referencing the Ninth Circuit’s opinion in Forbes v. INS, 48 F.3rd 439 (9th Cir. 1995), which defined the materiality of a misrepresentation via two inquiries: 1) whether the concealments have a natural tendency to influence the Government’s decision regarding a respondent’s admission and 2) whether there is sufficient evidence to raise a fair interference that a statutorily disqualifying fact actually existed, the Board upheld the DHS appellate argument that it need not apply the 2nd part of the Forbes test because the term “material” in the Act is ambiguous and, per the tenets of deference set forth in the U.S. Supreme Court cases “Chevron” and “Brand X”,  the BIA may exercise its authority to explain its own construction of the term.  Thus, the Board declined to adopt or apply the Forbes “fair inference” test in questions of admissibility under INA § 212(a)(6)(C)(i), as other circuits differ on whether this part of the test applies to the materiality of a misrepresentation.  Instead, it held that the most reasonable reading is that the “fair reference” test applies to whether one procured an immigration benefit by his misrepresentation, not to whether the misrepresentation is “material”; it therefore adopted the “natural tendency” test as the general standard for determining the materiality of a misrepresentation.  Specifically, held the BIA, it will consider whether the misrepresentation tends to shut off a line of inquiry relevant to admissibility and that would predictably have disclosed other facts relevant to eligibility for a visa, other documentation, or admission to the U.S.

The Board also reaffirmed its conclusion in Matter of Bosuego, 17 I&N Dec. 125 (BIA 1979; 1980) that after DHS meets its burden of proof, the burden shifts to the respondent “to establish that no proper determination of inadmissibility could have been made.”

Next, as to the materiality of respondent’s misrepresentation, the BIA found that the IJ had properly determined that respondent’s service in the Special Police would have a “natural tendency” to influence the asylum officer’s decision on the refugee application, e.g., was an omission that shut off a relevant line of inquiry.  Further, respondent produced no evidence rebutting DHS’s showing of materiality and thus could not establish he would have been admissible had the true facts been disclosed; the Board therefore held that respondent “willfully made a material misrepresentation.”

The BIA then dissected the impact of Miranda Alvarado v. Gonzales, 449 F.3d 915 (9th Cir. 2006) on determining whether one has “assisted” in persecution under the persecutor bar to political asylum, noting that the case holds that in evaluating potentially persecutorial conduct, it is necessary to examine the relation of one’s acts to the persecution itself, including whether one acted in self-defense, how long the actor was involved, and what threats were used to compel assistance.  However, concluded the Board, the phrase “assisted, or otherwise participated in” is ambiguous and under the Chevron and Brand X standards of deference, the BIA need not follow the Miranda Alvarado definition.

Constructing its own standard, the Board began by adopting the “generally accepted premise” that there is a continuum of conduct against which one’s actions must be evaluated to determine whether he assisted or otherwise participated in extrajudicial killing.  Citing to the Attorney General’s decision in Matter of A-H-, 23 I&N Dec. 774 (A.G. 2005), the BIA noted that to “assist” means to “give support or aid: help”, while “to participate” means “to take part in something (as an enterprise or activity)”; that these terms are to be given “broad application”; and, an adjudicator must look at the totality of the relevant conduct to determine whether the persecutor bar applies, i.e., whether respondent’s role was material or integral to the killing.  Further, held the BIA, while mere acquiescence or membership in an organization is insufficient, the evidence need not show that an alleged persecutor “had specific actual knowledge that his actions assisted in a particular act” of extrajudicial killing.  Rather, the accused must have had sufficient knowledge that his actions might assist in such persecution to make such actions culpable.

Because here, the respondent admitted that about 200 men were left with him and his unit before they were loaded onto buses, the IJ found that there is sufficient nexus between his actions and their killings, i.e., the respondent “assisted” in loading them onto the buses having the requisite scienter (prior or contemporaneous knowledge) that the men were being transported to their deaths.  As the Board found no clear error in this determination, the IJ’s decision was reaffirmed and the appeal dismissed.  Matter of D-R-, 25 I&N Dec. 105 (BIA 2017).  

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