Category Archives: Department of Homeland Security

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 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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Inadmissable Conditions for E, L and H Visas

The Immigration Act is a series of lists and one of the lists is who cannot come into the U.S.; in other words, people who are “inadmissible.” The list of people who are inadmissible to get E, L, and H Visas, definitely includes people with felony convictions, although they can obtain waivers, as can certain people with prior negative interactions with the Department of Homeland Security (DHS), e.g., say, those who have previously committed fraud. Those people also can get waivers in the nonimmigrant categories. The waivers are much more difficult to obtain in the immigrant categories.

That is, when you are applying for an E, H, or L Visa, you may be able to get what’s called a §212(d)(3) waiver for prior problems with DHS or criminal concerns.

Those waivers are very difficult to get for people who are applying for immigrant visas or (green cards). They often require that the applicant have a relative who is a U.S. citizen or a lawful permanent resident, and that some level of hardship be shown to that person if foreign national cannot get the green card and live in the U.S. or continue to live in the U.S.

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