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Philip Levin & Associates

Immigration Law

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BIA Holds That An Interpol Red Notice May Constitute Reliable Evidence Indicating That The Serious Nonpolitical Crime Bar To Asylum And Withholding Of Removal Applies To An Applicant. Here, Respondent’s Violation Of Article 345 Of The Salvadoran Penal Code, Which Procribes Participation In An Illicit Organization Whose Purpose Is The Commission Of Crimes, Was “Serious” Within The Meaning Of The Nonpolitical Crime Bar.

May 12, 2020 Philip Levin

On March 6, 2020, the Board of Immigration Appeals (BIA or Board) dismissed the appeal of an applicant whose requests for asylum, withholding of removal, and protection under the Convention Against Torture (CAT) were denied by the Immigration Judge (IJ), who found serious reasons to believe that Respondent had committed a serious nonpolitical crime prior to entering the United States. On appeal, Respondent did not challenge the IJ’s denial of his CAT claim, so that issue was not before the BIA. 

A native and citizen of El Salvador, Respondent had been placed into removal proceedings by DHS, which charged him with removability under INA §212(a)(6)(A)(i) for having entered without inspection. He conceded removability and applied for the above-referenced forms of relief. During proceedings, DHS submitted an Interpol Red Notice, showing that a warrant has been issued by the Magistrate Court of San Salvador for Respondent’s arrest regarding a violation of Article 345 of the Salvadoran Penal Code, which proscribes participation in an “illicit organization.” The Red Notice indicated that an investigation had previously been conducted and Respondent found to be a “gatillero” or “hitman” for the MS-13 gang. The IJ thus found that there are serious reasons to believe that Respondent had committed a serious nonpolitical crime before entering the U.S. and further concluded that Respondent had not met his burden of proving by a preponderance of the evidence “that the serious nonpolitical crime statutory bar does not apply to him.” Accordingly, the IJ found Respondent ineligible for the requested relief. 

Further, in deciding that there are “serious reasons for believing” Respondent had committed a serious nonpolitical crime, the BIA concluded that, as he was seeking relief from removal, Respondent “has the burden to establish that he satisfies the applicable eligibility requirements” of his applications. As the commission of such a crime is a mandatory bar to relief, the regulations require that once DHS establishes that the evidence indicates that one or more grounds for mandatory denial exist, the applicant has the burden of “proving by a preponderance of the evidence that such ground does not apply.” 8 C.F.R.§1240.8(d). As to the Red Notice submitted by DHS, the IJ had noted that it could only be published “if it fulfills all conditions for processing information, which included the criteria that the offense concerned is a serious ordinary law crime and, if the person is sought, the conduct constituting an offense must be punishable by a maxim deprivation of liberty of at least two years.” 

The IJ also found that DHS has contacted Interpol, which had confirmed that a match existed between the Red Notice and Respondent and that the Notice was active. The IJ indicated that the Form I-213 indicated that biographical information in the Notice matched the Respondent’s full name, date of birth, and place of birth, and it contained a photograph of the Respondent, identical to one on his El Salvadoran ID card. 

The Respondent argued that the Red Notice did not have any probative value because the Notice is insufficient to establish probable cause for an arrest in the U.S. under the Fourth Amendment, but the BIA disagreed. In fact, the opinion pointed out, the IJ had found the Notice to be reliable for what it purported to be: a request by a member country to provisionally arrest a specific person pending extradition based on a valid national arrest warrant for a nonpolitical crime. The Board, therefore, affirmed the IJ’s determination that on this record, DHS had met its burden to show that the serious nonpolitical crime bar may apply to Respondent. 

Additionally, Respondent had submitted a letter from an El Salvadoran attorney which indicated that the charges stemming from this incident were dismissed, but the IJ found the letter standing alone insufficient to show that the criminal charges had been dismissed; the IJ noted Respondent had not submitted official court documents confirming the dismissal. The IJ also found the Notice to be still active and the information on DHS’s Form I-213 presumptively trustworthy. 

In analyzing the issue of a “serious nonpolitical crime”, the BIA first noted that Respondent had conceded that “his crime in El Salvador” was nonpolitical so it did not need to review the violation’s political nature. The only remaining issue was whether the crime qualified as “serious” under the INA. The IJ had concluded that a violation under Article 345 of the Salvadoran Penal Code “involved a substantial risk of violence and harm to persons.” Finding no clear error in this factual finding, the Board affirmed the IJ’s conclusion that Respondent’s crime was “serious”, that he was barred from asylum, withholding, and CAT relief, and dismissed the appeal. Matter of W-E-R-B-, 27 I&N Dec. 795 (BIA 2020). 

Filed Under: BIA, Blog

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TN

The TN nonimmigrant classification allows qualified Canadian and Mexican citizens to enter the U.S. and engage in professional business activities. PL&A will help you navigate through the TN application process by evaluating your eligibility, preparing supporting documentation for your application, and ultimately filing your application. 

B-1

PL&A will guide you through the consular process to receive a B-1 visa for specific short-term business purposes ranging from contract negotiations to seminars and conferences.

O-1

O-1 visas are for persons of extraordinary ability in the sciences, arts, education, business or sports. 

J-1

Administered by the Department of State, the J-1 visa is for students, trainees, academics, researchers, professionals or experts participating in an approved Exchange Visitor program. PL&A will assist you and your sponsor with preparing the necessary paperwork and the consular process so you can begin your program at ease. 

E-1 & E-2

E-1 visas and E-2 visas are for nationals of countries with which the United States has a treaty of friendship, commerce and navigation (FCN) or bilateral investment treaty (BIT). If you are a nonimmigrant trader or investor seeking to conduct business operations or develop a new enterprise in the U.S., we will help you file for the appropriate visa. As a recognized expert in this area, Mr. Levin will provide experienced and dependable assistance with E-1 or E-2 visa applications. 

  • E-1: If you are a national of a country that conducts a significant volume of trade with the U.S. (or if you intend to develop trade between the U.S. and your home country) you might be eligible for entry under an E-1 visa. 
  • E-2: The E-2 visa allows investors from treaty countries to enter the U.S. for purposes of directing and developing a business, with all the commitments and risks implicit in entrepreneurial activity. 
L-1

The L-1 visa category is for executives, managers or professionals employed by foreign affiliates of U.S companies. The L-1 visa is divided into two classifications:

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H-1B

Many companies in the United States find themselves increasingly dependent on the talent, experience and energy of foreign national workers in professional, technical or specialized occupational fields. These employees typically enter the U.S. on nonimmigrant H-1B visas for “specialty occupations.” 

With extensive experience in business immigration, you can count on PL&A to guide your company or Human Resources department in preparing and filing an H-1B visa petition.

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Family preservation and reunification is a priority for our firm. Our attorneys have advised and assisted families from all over the world with entry visas, adjustment of status, and other immigration problems. 

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  • Family-Based Preference: If your relative is a U.S. citizen or lawful permanent resident, we can assist you with your green card application through one of the family based preference categories.
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If you are a U.S. citizen and your fiancé/fiancée or spouse is overseas, our office will assist you to navigate the CIS requirements and regulations to have the case approved and then prepare you and your spouse for the interview at the U.S. Embassy. PL&A will also help you find the best ways to resolve any problems you encounter if a waiver is required in your case.

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Immigration through marriage is a common means of obtaining permanent residence in the U.S.  Since 1991, Philip Levin & Associates has helped hundreds of couples immigrate to the U.S. and build their lives together. 

  • I-130 Petition and Adjustment of Status: If you are married to a U.S. citizen, present in the U.S. and eligible to do so, our attorneys will assist you in preparing and filing the necessary I-130 petition and I-485 adjustment of status application in the U.S.
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