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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 On Whether To Consider A Border Or Airport Interview In Making A Credibility Determination, An IJ Should Assess The Accuracy And Reliability Of The Interview Based On The Totality Of The Circumstances, Rather Than Relying On Any One Factor In A List Or On A Mandated Set Of Inquiries.

On February 20, 2018, the Board of Immigration Appeals (BIA or Board) issued a decision dismissing an appeal in a case where the respondent had stated at a border interview that he came to the U.S.  to look for his father and that he did not fear persecution or torture in Mexico; he was subsequently removed. Upon later reentering without inspection, he asserted before the Immigration Judge (IJ) that he feared torture if returned home, testifying that cartel members had kidnapped his father, then kidnapped and threatened him.  Because of the discrepancies between his border statement and his testimony in court, the IJ found respondent lacked credibility and denied his CAT claim. On appeal, the appellant claimed that Government documents considered by the IJ were not reliable and that he had testified credibility.

In its analysis, the BIA first noted that respondent challenged both the reliability of his border interview and its consideration in the adverse credibility finding, stating that courts have upheld the use of these interviews if there were adequate indications of their reliability.  The Board further found that Congress authorized IJs to base an adverse credibility finding on a consideration of the totality of the circumstances and all relevant factors, including the consistency between one’s written and oral statements, as well as “the consistency of such statements with other evidence of record.”  This broad language, the decision stated, encompasses “statements made in border and airport interviews” as long as the IJ takes into account “any issues regarding the circumstances under which they were made.”

Therefore, the preliminary issue, held the BIA, is whether there are persuasive reasons to doubt the applicant’s understanding of the interviewer’s questions.  The “most basic consideration” is whether an interpreter was provided if one was requested. Where the applicant’s interview statements are contrasted with his or her subsequent testimony, the court needs “a detailed and reliable recitation of the questions and answers from the interview.”  The Board therefore concluded that in assessing the interview, the IJ should weigh the totality of the circumstances presented, based on the evidence and arguments of record. Citing to Ramasameachire v. Ashcroft, 357 F.3d 169 (2nd Cir. 2004),  the BIA enumerated four factors to be considered in determining whether an interview was reliable, then noted that other courts of appeal had rejected the adoption of these standards, agreeing that IJs should not be required to determine the reliability of Border Patrol interviews “using specifically enumerated factors”.  Although the Ramasameachire factors are proper considerations, found the opinion, IJs should assess reliability based on the totality of circumstances, rather than relying on any one factor among a list or on a mandated set of inquiries.  

The BIA next noted that here the applicant claimed he had difficulty understanding the officer at his border interview, that he does not recall being asked about his fear of harm if returned to Mexico and that the statement was in English, which he does not read.  However, the Board found that “the record supports the Immigration Judge’s findings to the contrary,” reasoning that the reliability of DHS interviews is a matter of fact to be determined by the IJ and reviewed on appeal for clear error. Because respondent’s interview was conducted in Spanish; the evidence of record shows that specific, detailed questions were asked regarding his past experiences and fear of future harm; and, he presented no other factors that might have affected the reliability of the interview, the BIA concluded that the IJ did not clearly err in finding the interview documents were reliable and therefore could properly be considered as part of his credibility determination.  The adverse determination was not clearly erroneous held the Board, as the IJ had based his credibility ruling on “specific and cogent reasons” involving discrepancies between the applicant’s testimony and the documentary evidence, as well as his implausible explanations for the inconsistencies.

Finally, stated the opinion, the IJ had noted other inconsistencies relating to the injuries respondent claimed to have experienced and to the medical treatment he received after “his purported kidnapping and beating”.  Based on these inaccuracies and unpersuasive testimony, the BIA concluded there was no clear error in the IJ’s adverse credibility finding. Because the applicant lacked credibility and the evidence did not support his claim, he could not satisfy his burden and prove CAT eligibility.  The appeal was thus dismissed. Matter of J-C-H-F-, 27 I&N Dec. 211 (BIA 2018).

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BIA Holds That In Removal Proceedings Arising Within The Jurisdiction Of The Fifth And Ninth Circuits, One Who Was “Waved Through” A Port Of Entry Has Established An Admission “In Any Status” Within The Meaning Of INA §240A(a)(2). Tula-Rubio v. Lynch, 787 F.3d288 (5th Cir. 2015) And Saldivar v. Sessions, 877 F.3d 812 (9th Cir. 2017) Followed In Those Jurisdictions Only. In Proceedings In All Other Circuits, To Establish Continuous Residence In The U.S. For 7 Years, One Must Prove That He Or She Possessed Some Form Of Lawful Immigration Status At Admission.

On January 29, 2018, the Board of Immigration Appeals (BIA or Board) held, in a disputed 2-1 decision, that it would recognize “wave through” entries as evidence of an admission –as per Matter of Quilantan, 25 I&N Dec. 285 (BIA 2010) – “in any status” for purposes of proving eligibility for cancellation of removal proceedings under INA §240A(a)(2), i.e., meeting the requirement that an applicant “has resided in the United States continuously for 7 years after having been admitted in any status”, only in cases falling within the U.S. Courts of Appeals for the Fifth and Ninth Circuits.  In proceedings outside these two courts, held the opinion, one must prove that he or she had some type of lawful immigration status at admission to establish the necessary 7 years of continuous residence after admission “in any status,” despite a vociferous concurring and dissenting opinion by Board Member Pawley to the contrary.

The respondent, a Mexican citizen, entered the U.S. in October 1991, adjusted status in April 2003, and was served with a Notice to Appear (NTA) in January 2010 alleging removability under INA §212(a)(6)(E)(i) for smuggling or attempting to smuggle another person into the country.  She applied for cancellation under INA §240A(a); the Immigration Judge (IJ) pretermitted the application on the ground she did not establish continuous residence in the U.S. for 7 years after having been admitted in any status. She claimed a “wave through” entry in 1998, relying on Matter of Quilantan for the proposition that this entry constitutes an admission in any status and that she therefore began to accrue continuous residence under INA §240A(a)(2) after that date.  The IJ disagreed, holding that Quilantan only applies to applications for adjustment of status (AOS), so that her 1998 entry did not equate to an “admission” as contemplated by the cancellation statute.  He further held that she began accruing residence when she adjusted in 2003 and that it was terminated by service of the NTA in January 2010, 3 months short of 7 years.

In initiating its analysis, the BIA first cited to Matter of Quilantan, noting that under that precedent one who enters after having been “waved through” at a port of entry has been “admitted” for purpose of an INA §245(a) AOS application.  Overruling the IJ, the Board agreed that Quilantan governs “admissions” for purposes of §240A(a)(2), finding that respondent had, in fact, been “admitted” under §240A(a)(2).  

The one remaining issue, cotinued the opinion, was whether a “wave through” entry qualifies as an admission “in any status”under INA §240A(a)(2).  Citing to Tula-Rubio v. Lynch, 787 F.3d288 (5th Cir. 2015), respondent argued that the term “status” includes unlawful status and the word “any” should be read broadly to include all who have been admitted.  After oral argument in this case, noted the BIA, the Ninth Circuit, in whose jurisdiction it arises, agreed with Tula-Rubio v. Lynch in Saldivar v. Sessions, 877 F.3d 812 (9th Cir. 2017).  DHS contended that “admitted in any status” requires that one prove not only admission, but “admission attained by means of some lawful status”.

Although both parties argued that §240(a)(2) is unambiguous on the question of whether a “wave through” constitutes admission in any status, the BIA held that it is ambiguous in this regard.  As such, the Board noted that the fact that Congress included the phrase “admitted in any status” in 240A(a)(2) while §245(a) only requires that one be “inspected and admitted”, making no mention of “status”, suggests that it intended to give the statutes different meanings.  Therefore, reading both laws to require only a procedurally regular “admission” would render the phrase “in any status” meaningless; if Congress had intended §240A(a)(2) to only require inspection and admission, “it would have used the same language as section 245(a).” The BIA thus concluded that Congress was signaling that 240A(a)(2) requires something more than a procedurally regular “admission”.

The opinion next analyzed §240A(a)(2)’s predecessor statute, INA §212(c), to garner insight into congressional intent, finding that under all former interpretations of that section relief was only afforded to those who possessed a lawful status at entry.  Additionally, noted the Board, the legislative history of IIRIRA (1996) indicates that Congress intended to limit §240A(a)(2) eligibility to those who had been lawfully admitted, an interpretation confirmed at the time by “Government officials” within the former INS.  The BIA thus held that the phrase “admitted in any status” requires that one have possessed “some form of lawful status at the time of admission”, which prevents possible abuse of this type of relief; respondent’s argument in this regard, stated the decision, would essentially relieve an applicant “of the statutory burden of establishing that he or she has satisfied all the eligibility requirements for cancellation of removal” under §240A(a)(2).

The Board also expressly disagreed with the holding of the Fifth and Ninth Circuits that one can be admitted in an unlawful status, concluding that interpreting “admitted in any status” to require that one be admitted in some form of lawful immigration status does not create the same inconsistencies with other statutory provisions, as noted in Quilantan, because §240A(a)(2)’s language is different from that of §245(a).  It is the view of these two circuits, stated the BIA, that, has created the statutory conflicts or inconsistencies.  The Board further disputed the Fifth and Ninth Circuits‘ holding that the use of “lawfully admitted” in 240(a)(2) but not in 245(a) indicates congressional intent that the latter applies to those admitted in an unlawful status; it merely clarifies that §240A(a)(2) requires than an applicant make a physical admission at a port of entry, but not that he or she obtained the status of “an alien lawfully admitted for permanent residence” at that admission.  Thus, the Board held, it will only adhere to Tula-Rubio and Saldivar in cases arising in those circuits.  Applicants in all other circuits “must show that they possessed some form of lawful immigration status at the time of admission” to establish they were “admitted in any status” under §240A(a)(2).  As a result, because the Ninth Circuit has concluded that a “wave through” entry qualifies as an “admission in any status”, the BIA remanded the record to the IJ for further consideration of respondent’s cancellation eligibility and for entry of a new decision.

In a fairly lengthy and cogently-argued concurring and dissenting opinion, Board Member Pauley concluded that the Fifth and Ninth Circuits had “arrived at the correct result”, agreeing with the majority that a “wave through” admission must result in some lawful status in that no immigration officer intends to grant entry to one he or she believes has no lawful status.  The question for Board Member Pauley was, if the respondent was waved through, whether she was “admitted in any status” for purposes of cancellation eligibility.  Dissenting from the opinion’s holding that in all circuits but the Fifth and Ninth, applicants must prove some lawful status at admission, he termed the majority’s finding “dicta, depending on how one regards it” and stated that it is based on the mistaken premise that such lawful status must be later identified.  Further, the “generous nature” of §240A(a)(2)’s requirements make it unlikely that Congress intended to require the identification of a lawful status at entry; the holding, he also noted, is inconsistent with Quilantan’s primary finding that a “wave through” is an admission under INA §101(a)(13)(A).  Matter of Castillo Angulo, 27 I&N Dec. 194 (BIA 2016).

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In Deciding Whether To Set A Bond, An Immigration Judge Must Consider The Nature And Circumstances Of A Respondent’s Criminal Activity, Such As Arrests And Convictions, To Determine If He Or She Is A Danger To The Community, But Family And Community Ties Will Generally Not Mitigate One’s Dangerousness. Driving Under The Influence Is A Significant Adverse Consideration In Determining If A Respondent Is A Danger To The Community In Bond Proceedings.

On February 2, 2018, the Board of Immigration Appeals (BIA or Board) sustained a Department of Homeland Security (DHS) appeal and ordered a respondent held without bond.  In previous bond proceedings, an Immigration Judge (IJ) had ordered respondent released on $25,000.00 bond; DHS appealed, arguing that he had not met his burden of establishing that he is not a danger to the community.  The record shows the applicant was convicted of driving under the influence (DUI) three times between 2006 – 2007 and had been arrested for a fourth offense in 2017. The BIA’s opinion pointed out that two of the convictions, and the recent charge, involved accidents.

Respondent contended that DUI is not a crime of violence, that it had been a decade since his last conviction, and that he was now receiving treatment for his alcohol problem by a certified naturopathic physician and is actively participating in Alcoholic Anonymous, steps that convinced the IJ to release him on bond.  He also argued that his 2017 DUI arrest is “an aberration that involved mitigating circumstances”, as it happened on the first anniversary of his mother’s death.

Citing to U.S. Supreme Court case law labelling DUI as an “extremely dangerous crime” claiming thousands of lives, injuring many more, and causing billions of dollars in property damage annually, the Board’s opinion pointed out the long-held belief that such crimes present a serious risk of physical injury for others, such that “the dangers of drunk driving are well established.”  The BIA thus held that in bond proceedings, it is proper for the IJ to consider not only the nature of the criminal offense but “the specific circumstances surrounding the [respondent’s] conduct” as well; relevant factors include the extent, recency and seriousness of the applicant’s criminal history. As such, a DUI conviction “is a significant adverse consideration in bond proceedings” and respondent’s recent arrest therefore undercuts his argument that he is rehabilitated and no longer a danger to the community.  Similarly, found the Board, the anniversary of his mother’s death, while a source of sympathy, does not negate the dangerousness of his conduct.

Despite his “significant family ties, including his lawful permanent wife and a United States citizen daughter” – who has filed a visa petition (now approved) on his behalf – and the fact of his “fixed address” and long residence in the U.S., respondent has no legal status and, concluded the decision, was unable to show his history of business ownership, support from his church and involvement in charitable activities mitigate his dangerousness due to his history of drinking and driving.  The Board would merely concede that his family and community ties “may be significant (sic) to whether the respondent is a flight risk”; the BIA concluded that the issue here is whether respondent is a danger to the community and such ties “generally do not mitigate” one’s dangerousness. Thus, under the circumstances, the Board was ultimately not persuaded respondent had not met his burden of proof. The appeal was sustained, the IJ’s order vacated, and respondent ordered held without bond.  Matter of Siniauskas, 27 I&N Dec 207 (BIA 2018).  

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

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

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

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

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

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

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

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

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

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

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

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Whether The Violation Of A Protective Order Makes One Removable Per INA § 237(A)(2)(E)(Ii) Is Not Controlled The Categorical Or Modified Categorical Approaches, Even Where A Conviction Underlies The Charge. Instead, An Immigration Judge Should Consider The Probative And Reliable Evidence Regarding What A State Court Has Determined About The Respondent’s Violation. Matter Of Strydom, 25 I&N Dec. 507 (BIA 2011) Clarified.

On November 17, 2017, the Board of Immigration Appeals (BIA or Board) ruled on a DHS appeal of an Immigration Judge (IJ) order terminating removal proceedings after holding the respondent was not removable under INA § 237(a)(2)(E)(ii) as one who had violated a protective order.  Respondent had been convicted of criminal contempt per section 215.5(b)(iii) of the New York Penal Law for violating a protective order issued by a State court, requiring him to stay away from a woman and her family.  As a result, DHS initiated proceedings charging him with removability per § 237(a)(2)(E)(ii), submitting documents that included a presentence report, a probation violation report, a prosecutor’s letter and sworn victims’ statements.  Because these materials are not part of the record of conviction, the IJ found they could not be considered in analyzing respondent’s removability under the categorical and modified categorical approaches, and held that, under either of these analyses, the statute of conviction is overbroad and he is therefore not removable under the INA section charged.

On appeal, DHS argued the IJ should have used the ‘circumstance-specific” approach in analyzing removability per 237(a)(2)(E)(ii).  The BIA began its analysis by noting that the plain language of this section of the Act makes clear that a “conviction” is not required to establish removability and framed the issue as whether the fact of a conviction “requires the application of the categorical and modified categorical approaches in determining removability under section 237(a)(2)(E)(ii)” even though the statutory language does not make a conviction necessary to removability.

Finding that the categorical approach is rooted in Congress’ specification that a conviction, not conduct, is “the trigger for immigration consequences”, the Board held that the legislative branch did not intend removability per 237(a)(2)(E)(ii) to be analyzed under either the categorical or modified categorical approach.  Support for this conclusion was found in multiple circuit court of appeals decisions.  However, the BIA did not agree with the DHS claim that it must apply the “circumstance-specific” approach in this case, stating that this approach “only applies when a portion of a criminal ground of removability is not subject to the categorical approach.”  (Emphasis in original.)  Here, the entire ground of removability is not subject to a categorical analysis and the Board therefore found that the plain language of 237(a)(2)(E)(ii) limits its analysis regarding removability to what a court has “determined” about a respondent’s protective order violation; this may be established “through any reliable evidence.”

The BIA thus held whether the violation of a protective order renders one removable per § 237(a)(2)(E)(ii) is not governed by the categorical approach, even if a conviction underlies the charge.  Instead, the IJ must consider “the probative and reliable evidence regarding what a State court has determined” about a respondent’s violation.  Further, concluded the opinion, the IJ should decide 1) whether a State court determined that one has engaged in conduct that violates the portion of a protective order that involved protection against credible threats of violence, repeated harassment or bodily injury and 2) whether the order was issued for the purpose of preventing violent or threatening acts of domestic violence.

In reaching this conclusion, the Board clarified its decision in Matter of Strydom, 25 I&N Dec. 507 (BIA 2011) in which it had presumed that the categorical approach applied in a similar case and found the appellant removable under 237(a)(2)(E)(ii); it now concluded that “this approach is not applicable” where removability under that section of the INA must be determined and held that it will no longer apply the categorical approach in cases involving a § 237(a)(2)(E)(ii) removability analysis.  

The IJ’s decision was vacated, the appeal sustained, proceedings reinstated and the record remanded for a new decision.  Matter of Obshatko, 27 I&N Dec. 173 (BIA  2017).

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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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