BIA Precedent Decisions Volume 27 (3887 – ) Executive Office for Immigration Review 2017-

BERMUDEZ-COTA, 27 I&N Dec. 441 (BIA 2018) ID 3935 (PDF)

A notice to appear that does not specify the time and place of an alien’s initial removal hearing vests an Immigration Judge with jurisdiction over the removal proceedings and meets the requirements of section 239(a) of the Immigration and Nationality Act, 8 U.S.C. § 1229(a) (2012), so long as a notice of hearing specifying this information is later sent to the alien. Pereira v. Sessions, 138 S. Ct. 2105 (2018), distinguished.


J. M. ACOSTA, 27 I&N Dec. 420 (BIA 2018) ID 3934 (PDF)

(1) A conviction does not attain a sufficient degree of finality for immigration purposes until the right to direct appellate review on the merits of the conviction has been exhausted or waived.

(2) Once the Department of Homeland Security has established that a respondent has a criminal conviction at the trial level and that the time for filing a direct appeal has passed, a presumption arises that the conviction is final for immigration purposes, which the respondent can rebut with evidence that an appeal has been filed within the prescribed deadline, including any extensions or permissive filings granted by the appellate court, and that the appeal relates to the issue of guilt or innocence or concerns a substantive defect in the criminal proceedings.

(3) Appeals, including direct appeals, and collateral attacks that do not relate to the underlying merits of a conviction will not be given effect to eliminate the finality of the conviction.

L-A-B-R- et al., 27 I&N Dec. 405 (A.G. 2018) ID 3933 (PDF)

(1) An immigration judge may grant a motion for a continuance of removal proceedings only “for good cause shown.” 8 C.F.R. § 1003.29.

(2) The good-cause standard is a substantive requirement that limits the discretion of immigration judges and prohibits them from granting continuances for any reason or no reason at all.

(3) The good-cause standard requires consideration and balancing of multiple relevant factors when a respondent alien requests a continuance to pursue collateral relief from another authority—for example, a visa from the Department of Homeland Security. See Matter of Hashmi, 24 I&N Dec. 785, 790 (BIA 2009).

(4) When a respondent requests a continuance to pursue collateral relief, the immigration judge must consider primarily the likelihood that the collateral relief will be granted and will materially affect the outcome of the removal proceedings.

(5) The immigration judge should also consider relevant secondary factors, which may include the respondent’s diligence in seeking collateral relief, DHS’s position on the motion for continuance, concerns of administrative efficiency, the length of the continuance requested, the number of hearings held and continuances granted previously, and the timing of the continuance motion.


MEDINA-JIMENEZ, 27 I&N Dec. 399 (BIA 2018)

ID 3932 (PDF)

The categorical approach does not govern whether violating a protection order under 237(a)(2)(E)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(ii) (2012), renders an alien ineligible for cancellation of removal under section 240A(b)(1)(C) of the Act, 8 U.S.C. § 1229b(b)(1)(C) (2012); instead, Immigration Judges need only decide whether the alien has been convicted within the meaning of the Act and whether that conviction is for violating a protection order under section 237(a)(2)(E)(ii). Matter of Obshatko, 27 I&N Dec. 173 (BIA 2017), followed.


ORTEGA-LOPEZ, 27 I&N Dec. 382 (BIA 2018)

ID 3931 (PDF)

(1) The offense of sponsoring or exhibiting an animal in an animal fighting venture in violation of 7 U.S.C. § 2156(a)(1) (2006) is categorically a crime involving moral turpitude. Matter of Ortega-Lopez, 26 I&N Dec. 99 (BIA 2013), reaffirmed.

(2) An alien is ineligible for cancellation of removal under section 240A(b)(1)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(1)(C) (2012), for having “been convicted of an offense under” section 237(a)(2)(A)(i) of the Act, 8 U.S.C. § 1227(a)(2)(A)(i) (2012), irrespective of both the general “admission” requirement in section 237(a) and the temporal (within 5 years of admission) requirement in section 237(a)(2)(A)(i)(I). Matter of Cortez, 25 I&N Dec. 301 (BIA 2010), reaffirmed.


NEGUSIE, 27 I&N Dec. 347 (BIA 2018) ID 3930 (PDF)

(1) An applicant who is subject to being barred from establishing eligibility for asylum or withholding of removal based on the persecution of others may claim a duress defense, which is limited in nature.

(2) To meet the minimum threshold requirements of the duress defense to the persecutor bar, an applicant must establish by a preponderance of the evidence that (1) he acted under an imminent threat of death or serious bodily injury to himself or others; (2) he reasonably believed that the threatened harm would be carried out unless he acted or refrained from acting; (3) he had no reasonable opportunity to escape or otherwise frustrate the threat; (4) he did not place himself in a situation in which he knew or reasonably should have known that he would likely be forced to act or refrain from acting; and (5) he knew or reasonably should have known that the harm he inflicted was not greater than the threatened harm to himself or others.

A-B-, 27 I&N Dec. 316 (A.G. 2018) ID 3929 (PDF)

(1)Matter of A-R-C-G-, 26 I&N Dec. 338 (BIA 2014) is overruled. That decision was wrongly decided and should not have been issued as a precedential decision.

(2)An applicant seeking to establish persecution on account of membership in a “particular social group” must demonstrate: (1) membership in a group, which is composed of members who share a common immutable characteristic, is defined with particularity, and is socially distinct within the society in question; and (2) that membership in the group is a central reason for her persecution. When the alleged persecutor is someone unaffiliated with the government, the applicant must also show that her home government is unwilling or unable to protect her.

(3)An asylum applicant has the burden of showing her eligibility for asylum. The applicant must present facts that establish each element of the standard, and the asylum officer, immigration judge, or the Board has the duty to determine whether those facts satisfy all of those elements.

(4)If an asylum application is fatally flawed in one respect, an immigration judge or the Board need not examine the remaining elements of the asylum claim.

(5)The mere fact that a country may have problems effectively policing certain crimes or that certain populations are more likely to be victims of crime, cannot itself establish an asylum claim.

(6)To be cognizable, a particular social group must exist independently of the harm asserted in an application for asylum.

(7)An applicant seeking to establish persecution based on violent conduct of a private actor must show more than the government’s difficulty controlling private behavior. The applicant must show that the government condoned the private actions or demonstrated an inability to protect the victims.

(8)An applicant seeking asylum based on membership in a particular social group must clearly indicate on the record the exact delineation of any proposed particular social group.

(9)The Board, immigration judges, and all asylum officers must consider, consistent with the regulations, whether internal relocation in the alien’s home country presents a reasonable alternative before granting asylum.


A-C-M-, 27 I&N Dec. 303 (BIA 2018) ID 3928 (PDF)

(1) An alien provides “material support” to a terrorist organization if the act has a logical and reasonably foreseeable tendency to promote, sustain, or maintain the organization, even if only to a de minimis degree.

(2) The respondent afforded material support to the guerillas in El Salvador in 1990 because the forced labor she provided in the form of cooking, cleaning, and washing their clothes aided them in continuing their mission of armed and violent opposition to the Salvadoran Government.


DING, 27 I&N Dec. 295 (BIA 2018) ID 3927 (PDF)

(1) The term “prostitution” in section 101(a)(43)(K)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(K)(i) (2012), which provides that an offense relating to the owning, controlling, managing, or supervising of a prostitution business is an aggravated felony, is not limited to offenses involving sexual intercourse but is defined as engaging in, or agreeing or offering to engage in, sexual conduct for anything of value.

(2) The offense of keeping a place of prostitution in violation of section 944.34(1) of the Wisconsin Statutes is categorically an aggravated felony under section 101(a)(43)(K)(i) of the Act.


CASTRO-TUM, 27 I&N Dec. 271 (A.G. 2018) ID 3926 (PDF)

(1) Immigration judges and the Board do not have the general authority to suspend indefinitely immigration proceedings by administrative closure. To the extent the Board’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), are inconsistent with this conclusion, those decisions are overruled.

(2) Immigration judges and the Board may only administratively close a case where a previous regulation or a previous judicially approved settlement expressly authorizes such an action.

(3) Neither 8 C.F.R. § 1003.10(b) nor 8 C.F.R. § 1003.1(d)(1)(ii) confers the authority to grant administrative closure. Grants of general authority to take measures “appropriate and necessary for the disposition of . . . cases” would not ordinarily include the authority to suspend cases indefinitely. Additionally, 8 C.F.R. § 1240.1(a)(1), which authorizes immigration judges to take actions that “may be appropriate” in removal proceedings, and 8 C.F.R. § 1240.1(c), which empowers immigration judges to “otherwise regulate the course of the hearing,” do not entail an authority to grant indefinite suspensions. Finally, regulations empowering the Chief Immigration Judge and the Chairman of the Board to manage dockets—8 C.F.R. § 1003.9(b)(1) and 8 C.F.R. § 1003.1(a)(2)(i)(A)—grant no express authority to administratively close cases, and cannot reasonably be interpreted to implicitly delegate such authority.

(4) Under the Immigration and Nationality Act, the Department of Homeland Security has the exclusive authority to decide whether and when to initiate proceedings. Once the Department of Homeland Security initiates proceedings, immigration judges and the Board must proceed “expeditious[ly]” to resolve the case. 8 C.F.R. § 1003.12.

(5) For cases that truly warrant a brief pause, the regulations expressly provide for continuances. 8 C.F.R. § 1003.29.

(6) The Immigration and Nationality Act unambiguously states that, with respect to in absentia proceedings, so long as the Department of Homeland Security adequately alleges that it provided legally sufficient written notice to an alien, the alien “shall be ordered removed in absentia if [the Department of Homeland Security] establishes by clear, unequivocal, and convincing evidence that the written notice was so provided and that the alien is removable.” INA § 240(b)(5)(A), 8 U.S.C. § 1229a(b)(5)(A). The Immigration and Nationality Act thus imposes an obligation to proceed expeditiously to determine whether the requisite evidence supports the removal charge.

(7) Where a case has been administratively closed without the requisite authority, the immigration judge or the Board, as appropriate, shall recalendar the case on the motion of either party.


L-M-P-, 27 I&N Dec. 265 (BIA 2018) ID 3925 (PDF)

(1) The Department of Homeland Security has the authority to file a motion to reconsider in Immigration Court.

(2) An applicant in withholding of removal only proceedings who is subject to a reinstated order of removal pursuant to section 241(a)(5) of the Immigration and Nationality Act, 8 U.S.C. § 1231(a)(5) (2012), is ineligible for asylum.


SANCHEZ-LOPEZ, 27 I&N Dec. 256 (BIA 2018) ID 3924 (PDF)

The offense of stalking in violation of section 646.9 of the California Penal Code is not “a crime of stalking” under section 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2012). Matter of Sanchez-Lopez, 26 I&N Dec. 71 (BIA 2012), overruled.


MARQUEZ CONDE, 27 I&N Dec. 251 (BIA 2018) ID 3923 (PDF)

The Board of Immigration Appeals’ holding in Matter of Pickering, 23 I&N Dec. 621 (BIA 2003), rev’d on other grounds, Pickering v. Gonzales, 465 F.3d 263 (6th Cir. 2006), regarding the validity of vacated convictions for immigration purposes, is reaffirmed, and the decision is modified to give it nationwide application. Renteria-Gonzalez v. INS, 322 F.3d 804 (5th Cir. 2002), not followed.


A-B-, 27 I&N Dec. 247 (A.G. 2018) ID 3922 (PDF)

The Attorney General denied the request of the Department of Homeland Security that the Attorney General suspend the briefing schedules and clarify the question presented, and he granted, in part, both parties’ request for an extension of the deadline for submitting briefs in this case.


L-A-B-R- et al., 27 I&N Dec. 245 (A.G. 2018) ID 3921 (PDF)

The Attorney General referred the decisions of the Board of Immigration Appeals to himself for review of issues relating to when there is “good cause” to grant a continuance for a collateral matter to be adjudicated, ordering that the cases be stayed during the pendency of his review.


CERVANTES NUNEZ, 27 I&N Dec. 238 (BIA 2018)

ID 3920 (PDF)

The crime of attempted voluntary manslaughter in violation of sections 192(a) and 664 of the California Penal Code, which requires that a defendant act with the specific intent to cause the death of another person, is categorically an aggravated felony crime of violence under section 101(a)(43)(F) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(F) (2012), notwithstanding that the completed offense of voluntary manslaughter itself is not such an aggravated felony.


ROSA, 27 I&N Dec. 228 (BIA 2018)

ID 3919 (PDF)

(1) In deciding whether a State offense is punishable as a felony under the Federal Controlled Substances Act and is therefore an aggravated felony drug trafficking crime under section 101(a)(43)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B) (2012), adjudicators need not look solely to the provision of the Controlled Substances Act that is most similar to the State statute of conviction.

(2) The respondent’s conviction under section 2C:35-7 of the New Jersey Statutes for possession with intent to distribute cocaine within 1,000 feet of school property is for an aggravated felony drug trafficking crime because his State offense satisfies all of the elements of 21 U.S.C. § 841(a)(1) (2012) and would be punishable as a felony under that provision.


A-B-, 27 I&N Dec. 227 (A.G. 2018)

ID 3918 (PDF)

The Attorney General referred the decision of the Board of Immigration Appeals to himself for review of issues relating to whether being a victim of private criminal activity constitutes a cognizable “particular social group” for purposes of an application for asylum and withholding of removal, ordering that the case be stayed during the pendency of his review.


E-F-H-L-, 27 I&N Dec. 226 (A.G. 2018) ID 3917 (PDF)

The Attorney General referred the decision of the Board of Immigration Appeals in Matter of E-F-H-L-, 26 I&N Dec. 319 (BIA 2014), to himself for review and vacated that decision.


MENDEZ, 27 I&N Dec. 219 (BIA 2018)

ID 3916 (PDF)

Misprision of felony in violation of 18 U.S.C. § 4 (2006) is categorically a crime involving moral turpitude. Matter of Robles, 24 I&N Dec. 22 (BIA 2006), reaffirmed. Robles-Urrea v. Holder, 678 F.3d 702 (9th Cir. 2012), followed in jurisdiction only.


J-C-H-F-, 27 I&N Dec. 211 (BIA 2018)

ID 3915 (PDF)

When deciding whether to consider a border or airport interview in making a credibility determination, an Immigration Judge should assess the accuracy and reliability of the interview based on the totality of the circumstances, rather than relying on any one factor among a list or mandated set of inquiries.


SINIAUSKAS , 27 I&N Dec. 207 (BIA 2018)

ID 3914 (PDF)

(1) In deciding whether to set a bond, an Immigration Judge should consider the nature and circumstances of the alien’s criminal activity, including any arrests and convictions, to determine if the alien is a danger to the community, but family and community ties generally do not mitigate an alien’s dangerousness.

(2) Driving under the influence is a significant adverse consideration in determining whether an alien is a danger to the community in bond proceedings.


CASTILLO ANGULO, 27 I&N Dec. 194 (BIA 2018)

ID 3913 (PDF)

(1) In removal proceedings arising within the jurisdiction of the United States Courts of Appeals for the Fifth and Ninth Circuits, an alien who was “waved through” a port of entry has established an admission “in any status” within the meaning of section 240A(a)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(a)(2) (2012). Tula-Rubio v. Lynch, 787 F.3d 288 (5th Cir. 2015), and Saldivar v. Sessions, 877 F.3d 812 (9th Cir. 2017), followed in jurisdiction only.

(2) In removal proceedings arising outside the Fifth and Ninth Circuits, to establish continuous residence in the United States for 7 years after having been “admitted in any status” under section 240A(a)(2), an alien must prove that he or she possessed some form of lawful immigration status at the time of admission.


W-Y-C-& H-O-B-, 27 I&N Dec. 189 (BIA 2018)

ID 3912 (PDF)

(1) The Department of Homeland Security is not precluded by res judicata from initiating a separate proceeding to remove an alien as one convicted of an aggravated felony burglary offense under section 101(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(G) (2012), based on the same conviction that supported a crime of violence aggravated felony charge under section 101(a)(43)(F) in the prior proceeding. Bravo-Pedroza v. Gonzales, 475 F.3d 1358 (9th Cir. 2007), not followed.

(2) The Board of Immigration Appeals generally will not address a newly articulated particular social group that was not advanced before the Immigration Judge.


CASTRO-TUM, 27 I&N Dec. 187 (A.G. 2018)

ID 3911 (PDF)

The Attorney General referred the decision of the Board of Immigration Appeals to himself for review of issues relating to the authority to administratively close immigration proceedings, ordering that the case be stayed during the pendency of his review.


JASSO ARANGURE, 27 I&N Dec. 178 (BIA 2017)

ID 3910 (PDF)

(1) The Department of Homeland Security is not precluded by res judicata from initiating a separate proceeding to remove an alien as one convicted of an aggravated felony burglary offense under section 101(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(G) (2012), based on the same conviction that supported a crime of violence aggravated felony charge under section 101(a)(43)(F) in the prior proceeding. Bravo-Pedroza v. Gonzales, 475 F.3d 1358 (9th Cir. 2007), not followed.

(2) Home invasion in the first degree in violation of Michigan Compiled Laws section 750.110a(2) is a categorical burglary offense under section 101(a)(43)(G) of the Act.


J-A-B- & OBSHATKO, 27 I&N Dec. 173 (BIA 2017)

ID 3909 (PDF)

Whether a violation of a protection order renders an alien removable under section 237(a)(2)(E)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(ii)(2012), is not governed by the categorical approach, even if 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 alien’s violation. Matter of Strydom 25 I&N Dec. 507 (BIA 2011), clarified.


J-A-B- & I-J-V-A-, 27 I&N Dec. 168 (BIA 2017)

ID 3908 (PDF)

An Immigration Judge does not have authority to terminate removal proceedings to give an arriving alien an opportunity to present an asylum claim to the Department of Homeland Security in the first instance.


KEELEY, 27 I&N Dec. 146 (BIA 2017)

ID 3907 (PDF)

(1) The term “rape” in section 101(a)(43)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(A) (2012), encompasses 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.


TAVDIDISHVILI, 27 I&N Dec. 142 (BIA 2017)

ID 3906 (PDF)

Criminally negligent homicide in violation of section 125.10 of the New York Penal Law is categorically not a crime involving moral turpitude, because it does not require that a perpetrator have a sufficiently culpable mental state.


VELLA, 27 I&N Dec. 138 (BIA 2017)

(PDF)

An alien “has previously been admitted to the United States as an alien lawfully admitted for permanent residence” within the meaning of section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h) (2012), 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 alien’s most recent acquisition of lawful permanent resident status.

PANGAN-SIS, 27 I&N Dec. 130 (BIA 2017)

ID 3904 (PDF)

An alien seeking to qualify for the exception to inadmissibility in section 212(a)(6)(A)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(A)(ii) (2012), must satisfy all three subclauses of that section, including the requirement that the alien be “a VAWA self-petitioner.”


REHMAN, 27 I&N Dec. 124 (BIA 2017)

ID 3903 (PDF)

Where a petitioner seeking to prove a familial relationship submits a birth certificate that was not registered contemporaneously with the birth, an adjudicator must consider the birth certificate, as well as all the other evidence of record and the circumstances of the case, to determine whether the petitioner has submitted sufficient reliable evidence to demonstrate the claimed relationship by a preponderance of the evidence.


D-R-, 27 I&N Dec. 105 (BIA 2017)

ID 3902 (PDF)

(1) A misrepresentation is material under section 212(a)(6)(C)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(C)(i) (2012), when it tends to shut off a line of inquiry that is relevant to the alien’s admissibility and that would predictably have disclosed other facts relevant to his eligibility for a visa, other documentation, or admission to the United States. Forbes v. INS, 48 F.3d 439 (9th Cir. 1995), not followed.

(2) In determining whether an alien assisted or otherwise participated in extrajudicial killing, an adjudicator should consider (1) the nexus between the alien’s role, acts, or inaction and the extrajudicial killing and (2) his scienter, meaning his prior or contemporaneous knowledge of the killing. Miranda Alvarado v. Gonzales, 449 F.3d 915 (9th Cir. 2006), not followed.


DELGADO, 27 I&N Dec. 100 (BIA 2017)

ID 3901 (PDF)

Robbery under section 211 of the California Penal Code, which includes the element of asportation of property, is categorically an aggravated felony theft offense under section 101(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(G) (2012), regardless of whether a violator merely aided or abetted in the asportation of property stolen by a principal.

MOHAMED, 27 I&N Dec. 92 (BIA 2017)

ID 3900 (PDF)

Entry into a pretrial intervention agreement under Texas law qualifies as a “conviction” for immigration purposes under section 101(a)(48)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(48)(A) (2012), where (1) a respondent admits sufficient facts to warrant a finding of guilt at the time of his entry into the agreement, and (2) a judge authorizes an agreement ordering the respondent to participate in a pretrial intervention program, under which he is required to complete community supervision and community service, pay fees and restitution, and comply with a no-contact order.

(2)The restrictions on removal in section 208(c)(1)(A) of the Act, 8 U.S.C. § 1158(c)(1)(A) (2012), do not apply to an alien granted asylum whose status is adjusted to that of an alien lawfully admitted for permanent residence pursuant to section 209(b) of the Act.

J-G-D-F-,, 27 I&N Dec. 82 (BIA 2017)

ID 3899 (PDF)

Burglary of a dwelling in violation of section 164.225 of the Oregon Revised Statutes is a crime involving moral turpitude, even though the statute does not require that a person be present at the time of the offense, provided that the dwelling is at least intermittently occupied.

(2)The restrictions on removal in section 208(c)(1)(A) of the Act, 8 U.S.C. § 1158(c)(1)(A) (2012), do not apply to an alien granted asylum whose status is adjusted to that of an alien lawfully admitted for permanent residence pursuant to section 209(b) of the Act.

N-A-I-, 27 I&N Dec.72 (BIA 2017)

ID 3898 (PDF)

1) An alien who adjusts status under section 209(b) of the Immigration and Nationality Act, 8 U.S.C. § 1159(b) (2012), changes his or her status from that of an alien granted asylum to that of an alien lawfully admitted for permanent residence, thereby terminating the alien’s asylee status. Matter of C-J-H-, 26 I&N Dec. 284 (BIA 2014), clarified.

(2)The restrictions on removal in section 208(c)(1)(A) of the Act, 8 U.S.C. § 1158(c)(1)(A) (2012), do not apply to an alien granted asylum whose status is adjusted to that of an alien lawfully admitted for permanent residence pursuant to section 209(b) of the Act.

IZAGUIRRE, 27 I&N Dec. 67 (BIA 2017)

ID 3897 (PDF)

An offense may be a “specified offense against a minor” within the meaning of section 111(7) of the Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, 120 Stat. 587, 592, even if it involved an undercover police officer posing as a minor, rather than an actual minor.

DEANG, 27 I&N Dec. 57 (BIA 2017)

ID 3896 (PDF)

An essential element of an aggravated felony receipt of stolen property offense under section 101(a)(43)(G) of the Act, 8 U.S.C. § 1101(a)(43)(G) (2012), is that an offender must receive property with the “knowledge or belief” that it has been stolen, and this element excludes a mens rea equivalent to a “reason to believe.

A conviction for receipt of a stolen motor vehicle under section 32-4-5 of the South Dakota Codified Laws categorically does not define an aggravated felony receipt of stolen property offense under section 101(a)(43)(G) of the Act because it is indivisible with respect to the necessary mens rea and only requires, at a minimum, that an offender have a “reason to believe” that the vehicle received was stolen.

FALODUN, 27 I&N Dec. 52 (BIA 2017)

ID 3895 (PDF)

Unlike a Certificate of Naturalization, a certificate of citizenship does not confer United States citizenship but merely provides evidence that the applicant previously obtained citizenship status.


ALDAY-DOMINGUEZ, 27 I&N Dec. 48 (BIA 2017)

ID 3894 (PDF)

The aggravated felony receipt of stolen property provision in section 101(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(G) (2012), does not require that unlawfully received property be obtained by means of common law theft or larceny.


L-E-A-, 27 I&N Dec. 40 (BIA 2017)

ID 3893 (PDF)

(1) Whether a particular social group based on family membership is cognizable depends on the nature and degree of the relationships involved and how those relationships are regarded by the society in question.

(2) To establish eligibility for asylum on the basis of membership in a particular social group composed of family members, an applicant must not only demonstrate that he or she is a member of the family but also that the family relationship is at least one central reason for the claimed harm.


M-B-C-, 27 I&N Dec. 31 (BIA 2017)

ID 3892 (PDF)

Where the record contains some evidence from which a reasonable factfinder could conclude that one or more grounds for mandatory denial of an application for relief may apply, the alien bears the burden under 8 C.F.R. § 1240.8(d) (2016) to prove by a preponderance of the evidence that such grounds do not apply.


J.M. ALVARADO, 27 I&N Dec. 27 (BIA 2017)

ID 3891 (PDF)

The persecutor bar in section 241(b)(3)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1231(b)(3)(B)(i) (2012), applies to an alien who assists or otherwise participates in the persecution of an individual because of that person’s race, religion, nationality, membership in a particular social group, or political opinion, without regard to the alien’s personal motivation for assisting or participating in the persecution.


CHAIREZ, 27 I&N Dec. 21 (BIA 2017)

ID 3890 (PDF)

In determining whether a statute is divisible under Mathis v. United States, 136 S. Ct. 2243 (2016), Immigration Judges may consider or “peek” at an alien’s conviction record only to discern whether statutory alternatives define “elements” or “means,” provided State law does not otherwise resolve the question.


W-Y-U-, 27 I&N Dec. 17 (BIA 2017)

ID 3889 (PDF)

(1) The primary consideration for an Immigration Judge in evaluating whether to administratively close or recalendar proceedings is whether the party opposing administrative closure has provided a persuasive reason for the case to proceed and be resolved on the merits. Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), clarified.

(2) In considering administrative closure, an Immigration Judge cannot review whether an alien falls within the enforcement priorities of the Department of Homeland Security, which has exclusive jurisdiction over matters of prosecutorial discretion.


WU, 27 I&N Dec. 8 (BIA 2017) ID 3888 (PDF)

Assault with a deadly weapon or force likely to produce great bodily injury under California law is categorically a crime involving moral turpitude. Ceron v. Holder, 747 F.3d 773 (9th Cir. 2014) (en banc), distinguished.


JIMENEZ-CEDILLO, 27 I&N Dec. 1 (BIA 2017) ID 3887 (PDF)

(1) A sexual offense in violation of a statute enacted to protect children is a crime involving moral turpitude where the victim is particularly young—that is, under 14 years of age—or is under 16 and the age differential between the perpetrator and victim is significant, or both, even though the statute requires no culpable mental state as to the age of the child. 26 I&N Dec. 826 (BIA 2016), clarified.

(2) Sexual solicitation of a minor under section 3-324(b) of the Maryland Criminal Law with the intent to engage in an unlawful sexual offense in violation of section 3-307 is categorically a crime involving moral turpitude.


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Recent Cases United States Court of Appeals for the 7th Circuit (October 2017-December 2018. CA7)

Alvarenga-Flores v. Sessions

Citation Case Number: No. 17-2920
Decision Date: August 28, 2018
Federal District: Petition for Review, Order of Bd. of Immigration
Appeals Holding: Petition denied

Record contained sufficient evidence to support IJ’s denial of
application for asylum relief, as well as withholding of removal and CAT
relief by alien-citizen of El Salvador, even though alien asserted that
he had fear of future torture and persecution by gang members if forced
to return to El Salvador. IJ could properly find that alien was not
credible regarding his claims of future persecution, where IJ could find
that alien was not credible with respect to two alleged incidents that
formed basis of his claims for relief based on alien’s inconsistent
versions of said alleged incidents. Also, alien failed to explain said
inconsistencies when given opportunity to do so at hearing. Moreover,
alien tendered written statements in English from his parents in attempt
to corroborate alien’s version of events that he gave at hearing under
circumstances where parents could not speak English. (Partial dissent
filed.)

Alvarenga-Flores, apprehended crossing the U.S. border, gave a “credible
fear” interview while he was detained, stating that he was afraid to
return to El Salvador, where he is a citizen, because after witnessing a
friend’s murder, he received threats from the gang members responsible.
Alvarenga applied for asylum, withholding of removal, and protection
under the Convention Against Torture. The IJ denied all of relief based
on an adverse credibility finding; he also found that Alvarenga’s asylum
application was time-barred. The IJ cited inconsistencies in Alvarenga’s
testimony about his escapes from gang members who attacked him in a taxi
and from gang members who approached him on a bus. Alvarenga had
submitted affidavits from his parents; both were written in English,
although neither parent speaks English. Alvarenga’s parents lacked
firsthand knowledge of the events and “restate[d] things that they can
only have heard from [Alvarenga].” The IJ further noted that Alvarenga’s
parents could have testified telephonically but did not. The BIA found
the discrepancies sufficient to sustain an adverse credibility finding,
8 U.S.C. 1229a(c)(4)(C). The BIA affirmed. The Seventh Circuit denied a
petition for review. Substantial evidence supports the decisions of the
immigration judge and the Board, and the record does not compel a
contrary conclusion.

__________________________________________
Rivas-Pena v. Sessions

Citation Case Number: No. 18-1183
Decision Date: August 21, 2018
Petition for Review, Order of Bd. of Immigration Appeals
Holding: Petition granted

Record failed to contain sufficient evidence to support IJ’s denial of
application for relief under Convention Against Torture, where alien
(citizen of Mexico) sought deferral of his removal that was based on
state-court conviction on drug trafficking offense, where said
application was based on claim that return to Mexico would subject alien
to torture from Los Zetas drug cartel members, who considered him
responsible for loss of drugs and currency worth more than $500,000.
Alien submitted report from expert who stated that lost drug contraband
that was attributed to Los Zetas cartel at issue in alien’s state-court
conviction could be valued up to $900,000, that said cartel would hold
alien responsible for said loss, and that there was high certainty that
cartel would torture and kill alien as result of said loss. Remand was
required, because IJ, in finding that claims of potential torture were
too speculative, improperly failed to address expert’s contrary claim of
harm, and reasonable fact-finder would not dismiss as merely speculative
alien’s fear of harm under instant record.

ivas-Pena, now 44 years old, entered the U.S. as a lawful permanent
resident in 1996. He was convicted of drug-related crimes in 1997 and
2017. For the 2017 conviction for possession of cocaine with intent to
distribute, he was sentenced to eight years in prison. He was released
on parole the same day that he was sentenced because he had accumulated
substantial good-time credit during three and a half years of pretrial
detention. Charged with removability based on his convictions for a
controlled substance offense, 8 U.S.C. 1227(a)(2)(B)(i), and an
aggravated felony, section 1227(a)(2)(A)(iii), Rivas-Pena applied for
deferral of removal under the Convention Against Torture, 8 C.F.R.
1208.17 based on his fear of torture by Los Zetas cartel. Rivas-Pena
estimates that he “owes” the cartel $500,000 because of the seizure of
cartel contraband from his garage and fears that cartel members will
infer from his “lenient sentence” that he cooperated with authorities.
The IJ denied Rivas-Pena’s application, finding Rivas-Pena’s fears
“speculative” because no cartel member has attempted to harm Rivas-Pena
or his family. The Seventh Circuit granted a petition for review and
remanded because neither the immigration judge nor the BIA articulated
any basis for disagreeing with an expert opinion that corroborates
Rivas-Pena’s fear of torture.

____________________________________
W.G.A. v. Sessions

Case Number: No. 16-4193
Decision Date: August 21, 2018
Petition for Review, Order of Bd. of Immigration Appeals
Holding: Petition granted

Record failed to contain sufficient evidence to support IJ’s denial of
applications for asylum, withholding of removal or Convention Against
Torture relief, where alien (citizen of El Salvador) argued that return
to El Salvador would subject him to persecution and perhaps murder by
members of Mara 18 gang. Alien presented credible evidence that members
of said gang held gun to his head and demanded to know location of
alien’s brother and subsequently threatened members of alien’s family
when attempting to learn location of alien and his brother. Moreover,
alien’s membership in his nuclear family qualified as cognizable social
group under asylum statutes, such that alien was able to show that
instant persecution was motivated by his membership in his nuclear
family. Fact that alien’s parents and siblings still lived in El
Salvador did not support instant denial of asylum and withholding of
removal relief. On remand, Bd. must consider: (1) whether alien would be
able to relocate to safe region in El Salvador; and (2) whether El
Salvador government is unable or unwilling to prevent persecution of
alien.

In 2015, tattooed members of the Mara 18 gang, having previously
abducted his brother, held a gun to W.G.A.’s head and threatened to kill
him. With its rival, MS‐13, Mara 18 terrorizes the Salvadoran population
and government. The gangs have orchestrated labor strikes and plotted to
bomb government buildings. They brag about influencing elections and
controlling political campaigns. They extort millions of dollars from
businesses and are largely responsible for El Salvador’s homicide rate.
Days after the threat, W.G.A. fled to the U.S. DHS apprehended him and
began removal proceedings. W.G.A. applied for asylum, statutory
withholding of removal, and deferral of removal under the Convention
Against Torture, arguing that the gang would kill him if he returned to
El Salvador. The IJ denied his applications. The BIA dismissed an
appeal. The Seventh Circuit granted W.G.A.’s petition for review and
remanded. W.G.A. established persecution based on his membership in a
qualifying social group–family members of tattooed former Salvadoran
gang members. Country reports and news articles throughout the record
demonstrate widespread recognition that Salvadoran gangs target families
to enforce their orders and discourage defection. The IJ and BIA did not
address the extensive record, describing how corruption, judges’ refusal
to protect witness anonymity, and the police’s fear of reprisal, allow
gangs to act with impunity.

___________________________________
Bijan v. U.S. Citizenship & Immigration Services
Federal District: N.D. Ill., E. Div. August 20, 2018

Citation Case Number: No. 17-3545 Decision Date: August 20, 2018 Federal
District: N.D. Ill., E. Div. Holding: Affirmed Record contained
sufficient evidence to support USCIS’s decision to deny alien’s request
to become naturalized citizen, as well as Dist. Ct.’s grant of summary
judgment in favor of USCIS. Alien had stated on prior visa application
that he was not married and had no children, and although there was
triable question with respect to alien’s marital status, which would
preclude instant grant of summary judgment, Dist. Ct. could properly
grant summary judgment, where record showed that alien had lied on visa
application with respect to claim that he had no children. In this
regard, record showed that he had two children at time of visa
application, and that alien was aware of said misrepresentation. As
such, denial of alien’s naturalization application was appropriate,
since alien had intended to obtain naturalization status by denying any
prior misrepresentation to immigration officials.
___________________________________________________

Sembhi v. Sessions (7th Cir. 2018)

Citation Case Number: No. 17-2746
Decision Date: July 31, 2018 Federal
District: Petition for Review, Order of Bd. of Immigration Appeals

Holding: Petition denied Bd. did not err in denying alien’s fifth motion
to reopen removal proceedings, as well as his third motion to reconsider
denials of prior motions to reopen, where: (1) IJ had entered 2001
removal order against alien in absentia after alien had failed to appear
at removal proceeding; and (2) IJ had denied alien’s 2013 original
motion to reopen removal proceedings, after rejecting alien’s claim that
he was unaware of hearing date for original removal proceeding, or that
his original counsel was ineffective. Bd. could properly find that alien
had not established exception to chronological and numerical limits that
barred consideration of successive motions to either reopen or
reconsider, and alien otherwise had failed to comply with requirement in
instant motion to reopen that he provide notice to any of his prior
counsel whom he alleged had rendered ineffective assistance of counsel
so as to give them opportunity to respond to said allegations. Fact that
alien had filed charge with ARDC against one of his prior counsel did
not constitute requisite notice of his ineffective assistance of counsel
claim in instant proceeding.

Sembhi, a citizen of India, entered the U.S. in 1995 and overstayed his
non-immigrant visa. Two years later, after he unsuccessfully sought
asylum, Sembhi was charged as removable. Sembhi expected to obtain an
I-130 visa based on his marriage to a U.S. citizen but when Sembhi
appeared for a hearing in 2001, his counsel reported that his wife had
obtained a default divorce. Sembhi’s counsel, Burton, indicated that
Sembhi intended to explore vacating the divorce or cancellation of
removal as an allegedly battered spouse or voluntary departure. The
judge continued the matter. At the continued hearing Burton was present
but Sembhi was not. Burton stated that he had not communicated with
Sembhi in weeks despite attempts to contact him. Agreeing that Sembhi
had received notice, the judge ordered Sembhi removed. More than 10
years later, Sembhi, represented by attorney Carbide, moved to reopen,
blaming Burton for his failure to appear–an “exceptional circumstance.”
The IJ denied Sembhi’s request. The BIA dismissed an appeal. Sembhi then
acknowledged that his attorney had informed him orally of the hearing
date but stated that he misunderstood the date. Before he filed this
second motion, Sembhi had been married to another U.S. citizen for more
than 10 years; his I-130 visa petition had been approved. After five
adverse BIA decisions, Sembhi’s petition for review was denied by the
Seventh Circuit. His fifth motion was late and numerically barred, 8
U.S.C. 1229a(c)(7)(A); Sembhi is not entitled to equitable tolling of
those limitations.

_______________________________________________________

Galindo v. Sessions, No. 17-1253 (7th Cir. 2018)

Citation Case Number: No. 17-1253
Decision Date: July 31, 2018
Federal District: Petition for Review, Order of Bd. of Immigration Appeals

Holding: Vacated and remanded Ct. of Appeals lacked jurisdiction to
review Bd.’s determination that alien’s drug-paraphernalia convictions
qualified as removable controlled-substance offenses under circumstances
where IJ originally found that said convictions did not qualify as
removable offenses and had terminated removal proceedings, and where Bd.
essentially reversed IJ’s order and purported to enter removal order on
its own. Bd.’s removal order was not final for purposes of conferring
jurisdiction on Ct. of Appeals to consider merits of Bd.‘s order, since
IJ never made requisite finding of removability. However, Ct. of Appeals
had jurisdiction to find that Bd. lacked authority to issue removal
order on its own, since 8 USC section 1229(a) expressly vests IJ (as
opposed to Bd.) with authority to conduct removal proceedings in first
instance. As such, remand was required to address Bd.’s jurisdictional
error.

Galindo, a lawful permanent U.S. resident, had Kentucky convictions for
possession of drug paraphernalia and was charged with removability under
8 U.S.C. 1227(a)(2)(B)(i). The IJ applied the categorical approach,
under which an alien’s state conviction renders him removable if it
“necessarily establishe[s]” a violation of federal law and the modified
categorical approach, which applies if a divisible statute proscribes
multiple types of conduct, some of which would constitute a removable
offense. If a statute is divisible, a court may consult a limited class
of documents to determine which alternative formed the basis of the
conviction. The IJ determined that Galindo was not removable under the
categorical approach because the Kentucky statute criminalizes
paraphernalia for drugs that are not proscribed by federal law and that
the modified categorical approach does not apply because the
paraphernalia statute is not divisible, then terminated the removal
proceedings. The BIA reversed, finding no “realistic probability” that
Galindo’s conviction involved those drugs, and purported to enter a
removal order. The Seventh Circuit vacated. While courts lack
jurisdiction to review the BIA determination that the drug-paraphernalia
convictions qualify as controlled-substance offenses and may review only
a “final order of removal,” 8 U.S.C. 1252, they may vacate based on
clear legal error. In this case, the IJ never made the requisite finding
of removability; the Board lacked the authority to issue a removal
order.

____________________________________________________

Singh v. Sessions, No. 17-2852 (7th Cir. 2018)

Citation Case Number: Nos. 17-1579 & 17-2852 Cons.
Decision Date: July 26, 2018
Federal District: Petition for Review, Order of Bd. of nImmigration Appeals

Holding: Petition denied Bd. did not err in affirming IJ’s order
removing alien on ground that alien had been convicted on state charge
of deception, where said crime qualified as crime involving moral
turpitude for which sentence was one year or longer. Fact that alien had
gone back to state court and entered into agreement with prosecutor to
vacate deception conviction in exchange for guilty plea on misdemeanor
charge of possession of drug paraphernalia did not require different
result or require that Bd. reopen removal proceedings, since alien could
not show that vacatur of deception conviction was based on substantive
or procedural defect. Also, fact that govt. had previously stated that
deception conviction did not carry possible sentence of one year or
longer did not preclude govt. from filing new charge during pendency of
original charge that essentially alleged (correctly) that deception
conviction carried possible sentence of one year and qualified as crime
involving moral turpitude.

Singh entered the U.S. in 1993. An IJ denied his applications for asylum
and withholding of removal (alleging religious persecution) and issued
an exclusion order. Before the BIA ruled, he married a U.S. citizen. In
2000, Singh obtained permanent residency. Three years later Singh was
arrested in Indiana. In 2004 he pleaded guilty to felony corrupt
business influence. An IJ found him removable, citing his conviction for
an aggravated felony related to racketeering, 8 U.S.C.
1227(a)(2)(A)(iii) and his conviction, within five years of admission,
for a crime involving moral turpitude with a possible sentence of one
year or longer. Singh was removed and later readmitted on a visitor visa
to pursue post-conviction relief. The Indiana court vacated his felony
conviction and accepted Singh’s guilty plea to the crime of deception, a
misdemeanor punishable by imprisonment “for a fixed term of not more
than one (1) year.” The BIA reopened. The government later alleged that
Singh had fraudulently procured readmission and overstayed his visa,
withdrawing the previous charge of removability, erroneously conceding
that the moral-turpitude provision no longer applied. Months later, the
government issued a new charge based on the deception conviction. The
BIA affirmed a removal order, reasoning that the misdemeanor qualifies
as a crime for which a sentence of “one year or longer” may be imposed.
Meanwhile, Singh returned to state court, which vacated the deception
conviction in exchange for a guilty plea to a different misdemeanor.

The Seventh Circuit upheld the BIA’s refusal to reopen. To warrant
reopening, Singh had to show a substantive or procedural defect in the
underlying criminal proceedings; his vacatur was based on a plea
agreement. The court rejected alternative arguments that deception does
not carry a possible sentence of “one year or longer” and that the
government’s concession was binding.

_______________________________________________________

Dhakal v. Sessions (7th Cir. 2018)

Citation Case Number: No. 17-3377
Decision Date: July 13, 2018
Federal District: W.D. Wisc.

Holding: Affirmed In action by plaintiff-alien seeking review under
Administrative Procedures Act of decision of Director of Chicago Asylum
Office to deny alien’s application for asylum, Dist. Ct. did not err in
dismissing said appeal, where Director’s decision was not final order
that could be appealed. At time of instant appeal, alien remained in
lawful status in U.S. since he had applied for and received Temporary
Protected Status (TPS) offered to citizens of Nepal, and alien was
informed that denial of his application for asylum relief would not be
referred to Immigration Judge for adjudication in removal proceedings
until alien was no longer in TPS status. As such, Director’s decision
was not final because it did not represent consummation of agency’s
decision-making process, since Immigration Judge and Bd. of Appeals had
not acted on alien’s asylum application. Fact that alien had no present
ability to appeal Director’s decision did not require different result.

Dhakal, a member of the Nepali Congress political party, which is
targeted by the Maoist party, worked with the U.S. Agency for
International Development. In 2012, he received a letter from the
Maoists, ordering him to cease his activities. Weeks later, four men
stopped him, told him that the Maoist party had sent them, beat him and
smashed his motorbike, saying “next time, he will be finished.” A ranger
discovered Dhakal. A newspaper reported the attack. Dhakal continued his
activities and received more threats In 2013, Dhakal arrived in the U.S.
after the University of Rhode Island invited him to participate in a
course in nonviolent conflict resolution. Maoists went to his home and
threatened his wife, who fled with their children. Dhakal sought asylum.
While Dhakal’s application remained pending, Nepal suffered an
earthquake and was designated for Temporary Protected Status (TPS), so
that its eligible nationals would not be removed and could receive
employment authorization. Dhakal’ TPS was twice extended. Dhakal is in
lawful status and manages a Wisconsin gas station. In 2016, an asylum
officer found Dhakal not credible and that Dhakal had not shown a
reasonable possibility of future persecution. A final denial letter
stated that, because of Dhakal’s TPS status, his asylum application
would not be referred for adjudication in removal proceedings. Dhakal
filed suit under the Administrative Procedures and Declaratory Judgment
Acts, arguing that he has exhausted all administrative remedies
presently available. The Seventh Circuit affirmed dismissal. The
challenged decision is not a final agency action so Dhakal is not
entitled to relief under the APA. The statutory scheme for adjudication
of asylum claims must be allowed to take its course.

_______________________________________________________

Sanchez v. Sessions No. 17-1673 (July 5, 2018) Record failed to support
Bd.’s denial of motion by alien seeking to reopen its prior decision
directing alien’s removal based on series of driving while under
influence convictions, even though alien had originally requested
discretionary cancellation of removal based on alleged hardship that his
removal would have on his children. Alien alleged in motion to
reconsider that his prior counsel was ineffective for failing to present
sufficient evidence in original removal proceeding to establish both his
good moral character in spite of his four convictions for driving under
the influence and extraordinary hardship on his children. Bd., though,
used wrong legal standard, i.e., that alien failed to show that his
prior counsel’s ineffective assistance of counsel would likely have
altered outcome of initial removal proceeding, when denying
reconsideration request, since Bd. essentially articulated standard that
counsel’s ineffective assistance of counsel “probably” altered outcome
of initial removal proceedings instead of “possibly” altered outcome of
proceedings, which was correct standard. As such, remand was required
for Bd. to re-evaluate motion to reopen removal proceedings.

In 2014, the Seventh Circuit held that the Attorney General has
authority under 8 U.S.C. 1182(d)(3)(A)(ii) to waive an alien’s
inadmissibility and to halt removal temporarily while the alien requests
a U visa. In Sanchez’s case, the Board of Immigration Appeals held that
IJs lack authority to grant such requests. The Seventh Circuit vacated
and remanded. Delegation from the Attorney General to immigration judges
is a matter of regulation; 8 C.F.R. 1003.10(a) states that
“[i]mmigration judges shall act as the Attorney General’s delegates in
the cases that come before them.” Disagreeing with the Third Circuit and
the Attorney General, the Seventh Circuit held that IJs may exercise the
Attorney General’s powers over immigration. On remand, the Board may
consider whether 6 U.S.C. 271(b) and 557 transfer to the Secretary of
Homeland Security all of the Attorney General’s discretionary powers
under the immigration laws and may also address whether the power to
grant a waiver of inadmissibility may be exercised only in favor of an
alien who has yet to enter the United States. The Board must address and
resolve those essential issues before the court can consider whether the
disposition lies within the scope of the agency’s discretion.

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_________________________________________________________

Baez-Sanchez v. Sessions, No. 16-3784 (October 6, 2017) Petition for
Review, Order of Bd. of Immigration Appeals Petition granted

Bd. erred in finding that IJ lacked authority to grant alien’s request
to waive alien’s inadmissibility (and thus to temporarily halt alien’s
removal) while alien seeks U visa from Department of Homeland Security,
where Bd.’s finding was based on conclusion that 8 CFR section
1003.10(b) did not include such power when describing powers and duties
of IJ. Ct. of Appeals found that such power was theoretically included
in 8 CFR section 1003.10(a), where that section grants IJ ability to
exercise Attorney General’s powers over immigration. Remand, though, was
required for Bd. to address Attorney General’s argument that: (1)
Attorney General himself has no authority to grant waivers of
inadmissibility to aliens seeking U visas; and (2) if Attorney General
does possess such authority, it could only be used with respect to
aliens who seek such relief prior to entering U.S.

In 2014, the Seventh Circuit held that the Attorney General has
authority under 8 U.S.C. 1182(d)(3)(A)(ii) to waive an alien’s
inadmissibility and to halt removal temporarily while the alien requests
a U visa. In Sanchez’s case, the Board of Immigration Appeals held that
IJs lack authority to grant such requests. The Seventh Circuit vacated
and remanded. Delegation from the Attorney General to immigration judges
is a matter of regulation; 8 C.F.R. 1003.10(a) states that
“[i]mmigration judges shall act as the Attorney General’s delegates in
the cases that come before them.” Disagreeing with the Third Circuit and
the Attorney General, the Seventh Circuit held that IJs may exercise the
Attorney General’s powers over immigration. On remand, the Board may
consider whether 6 U.S.C. 271(b) and 557 transfer to the Secretary of
Homeland Security all of the Attorney General’s discretionary powers
under the immigration laws and may also address whether the power to
grant a waiver of inadmissibility may be exercised only in favor of an
alien who has yet to enter the United States. The Board must address and
resolve those essential issues before the court can consider whether the
disposition lies within the scope of the agency’s discretion.

Garcia v. Sessions, No. 16-3234 (October 11, 2017) Petition for Review,
Order of Bd. of Immigration Appeals Petition denied

Bd. did not err in refusing to consider alien’s appeal of his asylum
request, under circumstances where: (1) alien had been subject to prior
removal order that had been entered in absentia; (2) alien had
re-entered U.S. and sought asylum after being apprehended by Border
Patrol. Ct. of Appeals, in overruling Delgado-Arteaga, 856 F.3d 1109,
found that alien had standing to seek asylum relief, even though he was
subject to reinstatement of his prior removal order. However, alien was
barred under 8 USC section 1231(a)(5) from obtaining asylum relief due
to fact that he was subject to reinstated order of removal at time he
sought said relief. Fact that general asylum statute under 8 USC section
1158(a) provided that regardless of his status, alien could apply for
asylum relief did not require different result.

Garcia, a Honduran national, came to the U.S. in 2003. He was ordered
removed in absentia and eventually departed in 2005. Garcia claims that
he encountered persecution upon his return to Honduras because of his
unpopular political views— his opposition to deforestation. He was
kidnapped and beaten. He returned to the U.S. in 2014 and, after being
apprehended, sought asylum. The Chicago Asylum Office issued a positive
reasonable fear determination and referred his case to an Immigration
Judge for withholding‐only proceedings. Garcia then filed an asylum
application. The IJ granted Garcia statutory withholding of removal,
stating that she lacked the authority to reconsider the reinstatement of
Garcia’s removal order (8 C.F.R. 208.31(e)). The Board of Immigration
Appeals rejected Garcia’s argument that he had a statutory right to seek
asylum under 8 U.S.C. 1158(a). The BIA reasoned that it lacked authority
to declare the controlling regulations in violation of the statute, but
also noted that “several federal courts have held a person in
reinstatement proceedings is not eligible for and cannot seek asylum.”
The Seventh Circuit dismissed an appeal because asylum is a form of
discretionary relief, so Garcia lacks standing to challenge the
regulations prohibiting him from applying for it.

Rodriguez-Contreras v. Sessions, No. 17-1335 (October 12, 2017) Petition
for Review, Order of Bd. of Immigration Appeals Petition granted

Bd. erred in finding that alien (citizen of Mexico) was required to be
removed under 8 USC sections 1227(a)(2)(A)(iii) and 1229b(a)(3) without
any possibility of discretionary relief from removal due to alien’s
prior Illinois conviction for felon in possession of weapon under 720
ILCS 5/24-1.1(a), which Bd. found to be qualifying “aggravated felony.”
Said conviction did not qualify as aggravated felony, where: (1) said
conviction could be established through possession of air gun; and (2)
air gun, or any other pneumatic weapon, was not “firearm” under federal
law. As such, remand was required for Bd. to consider whether removal
proceeding should be dismissed outright, as well as any claim for
discretionary relief from removal that would allow Bd. to consider fact
that alien’s conviction actually involved weapon that would qualify as
firearm.

After his conviction for a felony in Illinois, Rodriguez-Contreras, a
lawful U.S. permanent resident, was found in possession of a weapon and
was convicted under 720 ILCS 5/24–1.1(a). The Board of Immigration
Appeals concluded that he was removable as an alien convicted of an
“aggravated felony,” 8 U.S.C. 1101(a)(43); violation of 18 U.S.C.
922(g)(1), which bars anyone convicted of a felony from possessing a
firearm, is an aggravated felony. The Seventh Circuit remanded. The BIA
did not address whether the substantive elements of the state offense
match those of the federal law, which defines “firearm” as “any weapon …
designed to … expel a projectile by the action of an explosive.”
Compressed air is not an explosive, so pneumatic weapons are not
“firearms.” Illinois law defines a firearm as “any device … designed
to expel a projectile … by the action of an explosion, expansion of
gas or escape of gas.” Illinois law is broader than the federal law. The
court rejected an argument that the Illinois statute is “divisible” and
permits judges to determine which statutory provision was involved.
Illinois has a single crime of weapon possession by a felon, with
multiple ways of committing that crime. A definitional clause does not
create a separate crime. Federal law does not foreclose
Rodriguez-Contreras’ obtaining discretionary relief from removal. In
exercising discretion the BIA may consider that Rodriguez-Contreras
possessed a weapon that is subject to both state and federal
prohibitions.

Asectic v. Sessions, No. 17-1202 (October 17, 2017) Petition for Review,
Order of Bd. of Immigration Appeals Petition denied and dismissed in
part

Record contained sufficient evidence to support Bd.’s removal order
under 8 USC section 1227(a)(1)(A), where record showed that alien had
failed to disclose in his successful refugee application fact that he
had served in Bosnian Serbian army during Bosnian conflict. Alien had
admitted that he willfully misrepresented his military service, and such
misrepresentation was material where truthful statement would have led
to further investigation by immigration official. Fact that individual
hired by State Department to assist alien in his refugee application
advised alien not to report said military service on refugee application
did not require different result. Also, Ct. of Appeals lacked
jurisdiction to review Bd.’s denial of alien’s discretionary request to
waive his removability under 8 USC section 1227(a)(1)(H).

Acquaah v. Sessions, No. 16-3277 (November 6, 2017) Petition for Review.
Order of Bd. of Immigration Appeals Petition granted and denied in part

Ct. of Appeals remanded to Bd. alien’s application to remove conditions
on his permanent resident status based on his marriage to U.S. citizen,
where: (1) IJ ultimately found that Dept. of Homeland Security properly
terminated alien’s permanent resident status on ground that alien’s
application constituted marriage fraud; (2) IJ rejected alien’s
application for “good faith” waiver of removal based on fact that alien
had failed to disclose in prior testimony that he had remarried original
wife at time he was still married to U.S. citizen, and that he had
subsequently fathered child in U.S. by original wife; and (3) Bd. found
that alien was statutorily ineligible for fraud waiver under 8 USC
section 1227(a)(1)(H). Bd. erred when it found that absence of specific
fraud charge precluded availability of fraud waiver and should have
considered whether charge sustained against alien, i.e., termination of
conditional resident status on basis of his marriage to U.S. citizen,
was related to fraud. Also, if sustained charge is related to fraud, Bd.
needs to consider whether severe health issues of alien’s U.S. citizen
daughter, for whom he is only surviving parent, warrants exercise of
favorable discretion.

Acquaah, now age 63, came from Ghana to the U.S. on a visitor’s visa and
obtained conditional permanent resident status based on his marriage to
a U.S. citizen. His application to remove residency conditions began
proceedings that have spanned more than 25 years and included a charge
that the marriage was entered into for the sole purpose of procuring
entry as an immigrant. While those proceedings were pending, his first
marriage ended, he remarried a U.S. citizen, and the two had a daughter.
He obtained permanent residency under a different name on the basis of
that second marriage. After discovery that he had used a new name,
Acquaah was charged as statutorily deportable, 8 U.S.C.
1182(a)(6)(C)(i), and ineligible for a fraud waiver. The Seventh Circuit
remanded. At his final hearing, Acquaah faced two charges: a 1992 charge
of deportability based on termination of his permanent resident status
and a later charge that he was deportable as an alien who by fraud or
willful misrepresentation sought to procure immigration. The IJ found
only the charge relating to the termination of conditional residency,
sustained. The Board treated the specific statutory charge that the
government decided to lodge and prove as dispositive of whether the
waiver is available, but should have considered whether the charge
sustained against Acquaah is related to fraud.

Taylor v. McCament, No. 17-1943 (November 17, 2017) N.D. Ill., E. Div.
Affirmed

Dist. Ct. did not err in dismissing for lack of standing
plaintiff-alien’s claim under Administrative Procedure Act seeking order
to compel U.S. Citizenship and Immigration Services (USCIS) to
immediately issue 80,000 U-visas to those, like plaintiff, who were
placed on waiting list for said visas. Record showed that relevant
agencies failed to timely create regulations to enable individuals to
apply for U-visas, which, in turn helped to cause instant backlog of
U-visa petitions. However, plaintiff lacked standing to seek requested
relief in instant case since: (1) Victims Protection Act limits number
of U-visas that may be issued each fiscal year to 10,000; and (2) even
if Dist. Ct. ordered USCIS to issue 80,000 U-visas, USCIS could not do
so because of 10,000 U-visa statutory cap.

Taylor, a citizen of Ireland, entered the U.S. in 2000 on a visitor’s
visa. In 2008, Taylor was the victim of perjury, a qualifying crime
under the Victims Protection Act., 8 U.S.C. 1101(a)(15)(U), which
created the non-immigrant U-Visa program. The Act became law in 2000,
but no regulations were issued for seven years. The issuance of U-Visas
in large numbers began in 2009. The FBI certified that Taylor had
provided the necessary assistance with the prosecution of the crime,
Taylor applied for a U-visa in 2014. U.S Citizenship and Immigration
Services (USCIS) determined that Taylor was eligible, but placed him on
a waiting list because the statute prohibits the issuance of more than
10,000 U-visas per year. USCIS granted Taylor discretionary relief that
defers removal and confers employment authorization benefits. Taylor
filed suit, alleging that USCIS’s delay in promulgating regulations
caused the backlog and asked the court to compel USCIS to immediately
issue 80,000 U-visas to those on the waiting list. The court determined
that Taylor lacked standing and dismissed his complaint. The Seventh
Circuit affirmed. The agency lacks the statutory authority to give the
relief sought. The U-visa limit was reached in 2016 and 2017. Taylor
lacks constitutional standing; a court cannot review his claims at all,
nor determine whether there was an unreasonable delay or a
non-discretionary duty under the APA to compel USCIS to issue U-visas.

Rodriguez v. Sessions, No. 17-1568 (November 22, 2017) Petition for
Review, Order of Bd. of Immigration Appeals Petition denied

Bd. did not err in affirming IJ order that found that alien (native of
Mexico) was statutorily ineligible to seek cancellation of her removal,
where alien had been convicted of violating order of protection under
Wisconsin law. Bd. could properly find that said conviction precluded
alien from seeking cancellation of removal relief under 8 USC section
1227(a)(2)(E)(ii), where record showed that: (1) alien had been enjoined
under protection order; (2) at least one part of said order involved
protection against credible threat of violence, where state court
directed alien to refrain from acts of domestic abuse; and (3) alien
pleaded no contest to having knowingly violated domestic abuse order by
remaining on premises at issue in order. Fact that alien may not have
acted violently by remaining on premises was irrelevant.

Rodriguez entered the U.S. without inspection in 1999. In 2000, her
boyfriend obtained a temporary restraining order against her, claiming
that he feared for his safety after episodes of domestic violence.
Rodriguez later testified that because she had nowhere else to go, and
because she had small children and all her belongings in their shared
apartment, she did not leave. Rodriguez pleaded no contest to knowingly
violating a TRO and to misdemeanor bail jumping. Rodriguez sought
cancellation of her removal as an alien continuously present in the U.S.
for 10 years, 8 U.S.C. 1229b(b)(1)(A) and “a person of good moral
character” during that time, indicating that removal would cause an
“exceptional and extremely unusual hardship” to her five dependent
children (including a cancer survivor) and that she had not been
convicted of certain enumerated offenses, including violation of a
protection order. The IJ decided that Rodriguez’s conviction was
determinative, reasoning that Wisconsin law requires a judge to consider
the danger posed to a victim and any pattern of abusive conduct by the
perpetrator, so a misdemeanor conviction for violating a TRO is
“categorically a removable offense.” The BIA and Seventh Circuit
rejected her appeals. It does not matter that Rodriguez may not have
acted violently by remaining on the premises; her violation of the
avoidance-of-residence provision is enough.

Calderon-Ramirez v. McCament, No. 16-4220 (December 5, 2017) N.D. Ill.,
E. Div. Affirmed

Dist. Ct. did not err in granting defendants’ motion to dismiss
plaintiff-alien’s petition for writ of mandamus requesting that Dist.
Ct. compel defendants to immediately adjudicate his pending U-visa
application under circumstances where said application had been pending
for approximately 1.5 years. Although plaintiff has right to
adjudication regarding his application for both U-visa waiting list and
for U-visa itself, plaintiff was not entitled to mandamus relief, since
plaintiff failed to set forth any facts that would differentiate himself
from other petitioners filing ahead of him whose applications had also
not been adjudicated. Moreover, plaintiff was not entitled to similar
relief under Administrative Procedure Act since instant 1.5 year delay
was not unreasonable given 150,000 increase in pending U-visa
applications.

The Victims of Trafficking and Violence Protection Act of 2000, 8 U.S.C.
1101(a)(15)(U) created a new nonimmigrant visa classification that
permits immigrants who are victims of serious crimes and who assist law
enforcement to apply for and receive a nonimmigrant visa called a
U-visa. There is a statutory cap of 10,000 U-visas each fiscal year.
Since 2009, the U-Visa backlog has increased from 21,138 to 177,340
pending applications. Calderon-Ramirez, a citizen of Guatemala, entered
the U.S. in 2002 and was the victim of an attack in 2014. He filed a
petition for U Nonimmigrant Status in February 2015 and is waiting to be
evaluated for the waiting list. In 2016, he sought a writ of mandamus,
to compel Homeland Security to adjudicate his petition. The Seventh
Circuit affirmed the dismissal of his suit. Ramirez did not set forth
any facts that differentiate himself from other petitioners waiting
ahead of him for adjudication. While there are instances when the
government can and will expedite a petition, Ramirez failed to present a
situation appropriate to warrant such an action. The court stated that
the wait Ramirez faces is not unreasonable.

Matushkina v. Nielsen, No. 17-1336 (December 7, 2017) N.D. Ill., E. Div.
Affirmed

Dist. Ct. did not err in dismissing plaintiffs-aliens’ action under
Administrative Procedure Act that challenged denial of one plaintiff’s
2015 immigration visa application that, in turn, was based on 2009
finding by U.S. Customs and Border Protection that said plaintiff was
inadmissible because she had attempted to enter U.S. on fraudulent
basis. While Dist. Ct. found that plaintiffs lacked standing to
challenge 2009 determination as it related to 2015 denial of plaintiff’s
immigration visa, Ct. of Appeals found that, although plaintiff had
standing to file instant claim, dismissal on the merits was appropriate,
since: (1) instant case constituted indirect challenge to visa denial
that was not subject to judicial review under Bruno, 197 F.3d 1153; and
(2) review of 2009 determination that plaintiff had committed fraud when
attempting to enter U.S. would constitute improper full-blown review of
merits of said determination, especially where stated basis for 2009
decision was bona fide and facially legitimate

Posted in 7th Circuit, 7th Circuit Cases- Aliens, Administrative Procedure Act, Asylum, Cancellation of Removal for Non-Lawful Permanent Residents, I-751 petition, Motion to Reopen, remove residency conditions, U nonimmigrant status, U-Visa, Uncategorized, Victims of Trafficking and Violence Protection Act, violating order of protection, writ of mandamus | Leave a comment

SCOTUS Pereira v. Sessions: A Notice to Appear that does not include the specific time and place of the non LPRs removal proceedings does not trigger the stop-time rule under §1229(a) of the INA.

The Pereira decision is significant to many non-citizens who received notices like Pereira’s. The clock continued to run on their physical presence in the U.S. after they received notices without dates, which will potentially enable them to qualify for relief from removal that would have been unavailable had the continuous-physical-presence clock stopped upon their receipt of the dateless notices. Many immigrants, including some of those who already have been removed, can attempt to reopen their cases if they were erroneously determined to be statutorily ineligible for cancellation because of insufficient continuous physical presence at the time of the dateless notice.

The majority decision, and more pointedly, Justice Anthony Kennedy’s concurrence, stresses the need for courts to engage in their own, independent appraisals of statutory text before capitulating to an agency’s conclusion that a statute is ambiguous. The justices do not back away from the principle articulated in 1984 in Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc. that courts should defer to an agency’s legitimate interpretation of an ambiguous statute. But the justices in the majority are clear that Chevron deference does not come into play unless there is, in fact, statutory ambiguity. On the question presented in this case, Justice Sonia Sotomayor, writing for the majority, finds that “the Court need not resort to Chevron deference, as some lower courts have done, for Congress has supplied a clear and unambiguous answer to the interpretive question at hand.”

Justice Anthony Kennedy’s concurring opinion derides the “cursory analysis” of lower courts who bowed to the Board of Immigration Appeals’ statutory interpretation by declaring in as little as a single sentence that the statute was ambiguous and thus that they need not do their job and actually judge the cases.

“This analysis,” Kennedy writes, “suggests an abdication of the Judiciary’s proper role in interpreting federal statutes.” Chevron now results in “reflexive deference” that is “troubling.” And so he believes, following at least three colleagues, that “it seems necessary and appropriate to reconsider, in an appropriate case, the premises that underlie Chevron and how the courts have implemented that decision.” That’s a big deal — regardless of how long Kennedy himself stays on the court — but in light of Justice Samuel Alito’s solo dissent (which rests firmly on Chevron, without questioning that doctrine’s scope), it might take more than one change in personnel to change the law on Chevron deference.

UPDATE on jurisdiction from BIA: BERMUDEZ-COTA, 27 I&N Dec. 441 (BIA 2018) ID 3935 (PDF) A notice to appear that does not specify the time and place of an alien’s initial removal hearing vests an Immigration Judge with jurisdiction over the removal proceedings and meets the requirements of section 239(a) of the Immigration and Nationality Act, 8 U.S.C. § 1229(a) (2012), so long as a notice of hearing specifying this information is later sent to the alien. Pereira v. Sessions, 138 S. Ct. 2105 (2018), distinguished.

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Wescley Fonseca Pereira entered the United States in June 2000 as a non-immigrant visitor authorized to stay until December 21, 2000. Pereira overstayed his visa, and in May 2006, the Department of Homeland Security (DHS) personally served him with a notice to appear for a removal hearing. The notice did not specify the date and time of his initial removal hearing, but instead ordered him to appear before an immigration judge “on a date to be set at a time to be set.” When the immigration court set a date and time, it mailed Pereira a notice with such information. However, the notice was sent to Pereira’s street address on Martha’s Vineyard rather than his post office box, so Pereira never received it. When Pereira did not appear for his removal hearing, an immigration judge ordered him removed in absentia.

Pereira was not removed and instead remained in the country. In March 2013, he was arrested for a motor vehicle violation and detained by DHS. Through his attorney, Pereira filed a motion to reopen his removal proceedings, claiming he had never received the hearing notice with the time and place. Although Pereira conceded that he could be removed, he sought relief in the form of cancellation of removal under 8 U.S.C. § 1229b(b)(1), a provision that gives the attorney general discretion to cancel the removal of a non-permanent resident alien if the alien meets certain criteria, including ten years of continuous physical presence in the United States. This continuous period ends “when the alien is served a notice to appear under section 1229(a)” of the Immigration and Nationality Act (INA). Pereira contends that because he did not receive notice of the time and place of his removal hearing, his presence in the country was continuous and over ten years under the statute.

The Board of Immigration Appeals (BIA) has held that a notice to appear that does not contain the date and time of the hearing is nonetheless effective to end the period of continuous physical presence. However, Pereira challenges this reading of the statute. The First Circuit determined that the relevant provisions of the INA are ambiguous as to whether notice must include the date and time of the hearing to be effective, but the court found that the BIA’s interpretation of the statute was reasonable and thus subject to Chevron deference.

Question Must a notice to appear for a removal hearing specify the place and time of the hearing to effectively trigger the stop-time rule of 8 U.S.C. § 1229b(b)(1), contrary to the holding of the Board of Immigration Appeals?

Holding: A notice to appear that does not include the specific time and place of the noncitizen’s removal proceedings does not trigger the stop-time rule under §1229(a) of the INA. A putative notice sent to a nonpermanent resident to appear at a removal proceeding that fails to designate a specific time or place for that proceeding does not end the continuous residence period calculation necessary for possible cancellation of the individual’s removal. A notice to appear for a removal hearing that does not specify the time and place of the hearing does not trigger the stop-time rule. In an 8-1 decision authored by Justice Sonia Sotomayor, the Court reasoned that a “notice to appear” that does not include with specificity both “when” and “where” cannot reasonably be expected to result in a person appearing at their hearing. The Court looked to the text of the statute, which provides that the continuous period in question ends “when the alien is served with notice to appear,” and “notice to appear” is defined throughout the section as “a written notice . . . specifying . . . “the time and place at which the proceedings will be held.” The text of the statute is thus unambiguous, so Chevron deference to the interpretation by the Board of Immigration Appeals (BIA) is unnecessary. This requirement of a “notice to appear” is also consistent with congressional intent.

Judgment: Reversed and remanded, 8-1, in an opinion by Justice Sotomayor on June 21, 2018.

Justice Anthony Kennedy filed a concurring opinion to note his concern over the way courts apply Chevron deference.

Justice Samuel Alito filed a dissenting opinion, arguing that the language of the statute is ambiguous and thus that the BIA’s interpretation is entitled to Chevron deference.

View Case

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Nonpermanent residents who are subject to removal proceedings and have accrued 10 years of continuous physical presence in the United States, may be eligible for a form of discretionary relief known as cancellation of removal. 8 U.S.C.S. § 1229b(b)(1). Under the so-called stop-time rule set forth in § 1229b(d)(1)(A), however, that period of continuous physical presence is deemed to end when the alien is served a notice to appear under 8 U.S.C.S. § 1229(a). Section 1229(a), in turn, provides that the government shall serve noncitizens in removal proceedings with written notice (in this section referred to as a notice to appear) specifying several required pieces of information, including the time and place at which the removal proceedings will be held. 8 U.S.C.S. § 1229(a)(1)(G)(i). 

If the government serves a noncitizen with a document that is labeled notice to appear, but the document fails to specify either the time or place of the removal proceedings, it does not trigger the stop-time rule for determining eligibility for cancellation of removal. A notice that does not inform a noncitizen when and where to appear for removal proceedings is not a notice to appear under 8 U.S.C.S. § 1229(a)and therefore does not trigger the stop-time rule.

Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, the Attorney General of the United States has discretion to cancel removal and adjust the status of certain nonpermanent residents. 8 U.S.C.S. § 1229b(b). To be eligible for such relief, a nonpermanent resident must meet certain enumerated criteria, including that the noncitizen must have been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of an application for cancellation of removal. 

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 enables the Government to change or postpone the time and place of removal proceedings. 8 U.S.C.S. § 1229(a)(2)(A). To do so, the government must give the noncitizen a written notice specifying the new time or place of the proceedings and the consequences of failing, except under exceptional circumstances, to attend such proceedings. The government is not required to provide written notice of the change in time or place of the proceedings if the noncitizen is not in detention and has failed to provide his address to the government.

The consequences of a noncitizen’s failure to appear at a removal proceeding can be quite severe. If a noncitizen who has been properly served with the written notice required under 8 U.S.C.S. § 1229(a)(1) or (2) fails to appear at a removal proceeding, he shall be ordered removed in absentia if the government establishes by clear, unequivocal, and convincing evidence that the written notice was so provided and that the alien is removable. 8 U.S.C.S. § 1229a(b)(5)(A). Absent exceptional circumstances, a noncitizen subject to an in absentia removal order is ineligible for some forms of discretionary relief for 10 years if, at the time of the notice described in § 1229(a)(1) or (2), he was provided oral notice of the time and place of the proceedings and of the consequences of failing to appear. 8 U.S.C.S. § 1229a(b)(7). In certain limited circumstances, however, a removal order entered in absentia may be rescinded, e.g., when the noncitizen demonstrates that he did not receive notice in accordance with § 1229(a)(1) or (2). 8 U.S.C.S. § 1229a(b)(5)(C)(ii).

A court need not resort to Chevron deference if Congress has supplied a clear and unambiguous answer to the interpretive question at hand. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. 

Under the stop-time rule for determining eligibility for cancellation of removal, any period of continuous physical presence is deemed to end when an alien is served a notice to appear under 8 U.S.C.S. § 1229(a). 8 U.S.C.S. § 1229b(d)(1). By expressly referencing § 1229(a), the statute specifies where to look to find out what notice to appear means. Section 1229(a), in turn, clarifies that the type of notice referred to as a notice to appear throughout the statutory section is a written notice specifying the time and place at which the removal proceedings will be held. 8 U.S.C.S. § 1229(a)(1)(G)(i). Thus, based on the plain text of the statute, it is clear that to trigger the stop-time rule, the government must serve a notice to appear that, at the very least, specifies the time and place of the removal proceedings. 

It is true that the stop-time rule for determining eligibility for cancellation of removal makes broad reference to a notice to appear under 8 U.S.C.S. § 1229(a), which includes 8 U.S.C.S. § 1229(a)(1), as well as 8 U.S.C.S. § 1229(a)(2) and (3). But the broad reference to § 1229(a) is of no consequence, because only § 1229(a)(1) bears on the meaning of a notice to appear. By contrast, § 1229(a)(2) governs the notice of change in time or place of proceedings, and § 1229(a)(3) provides for a system to record noncitizens’ addresses and phone numbers. Nowhere else within § 1229(a) does the statute purport to delineate the requirements of a notice to appear. In fact, the term notice to appear appears only in § 1229(a)(1).

8 U.S.C.S. § 1229(a)(2) provides that, in the case of any change or postponement in the time and place of removal proceedings, the Government shall give the noncitizen written notice specifying the new time or place of the proceedings. 8 U.S.C.S. § 1229(a)(2)(A)(i). By allowing for a change or postponement of the proceedings to a new time or place, § 1229(a)(2) presumes that the government has already served a notice to appear under 8 U.S.C.S. § 1229(a) that specified a time and place as required by 8 U.S.C.S. § 1229(a)(1)(G)(i). Otherwise, there would be no time or place to change or postpone. Section 1229(a)(2) confirms that a notice to appear must state the time and place of the removal proceeding as required by 8 U.S.C.S. § 1229(a)(1). Section 1229(a)(2) clearly reinforces the conclusion that a notice to appear under § 1229(a), 8 U.S.C.S. § 1229b(d)(1), must include at least the time and place of the removal proceedings to trigger the stop-time rule for determining eligibility for cancellation of removal. 

8 U.S.C.S. § 1229(b)(1) gives a noncitizen the opportunity to secure counsel before the first removal hearing date by mandating that such hearing date shall not be scheduled earlier than 10 days after the service of the notice to appear. For § 1229(b)(1) to have any meaning, the notice to appear must specify the time and place that the noncitizen, and his counsel, must appear at the removal hearing. Otherwise, the government could serve a document labeled notice to appear without listing the time and location of the hearing and then, years down the line, provide that information a day before the removal hearing when it becomes available. Under that view of the statute, a noncitizen theoretically would have had the opportunity to secure counsel, but that opportunity will not be meaningful if, given the absence of a specified time and place, the noncitizen has minimal time and incentive to plan accordingly, and his counsel, in turn, receives limited notice and time to prepare adequately. It therefore follows that, if a notice to appear for purposes of § 1229(b)(1) must include the time-and-place information, a notice to appear for purposes of the stop-time rule for determining eligibility for cancellation of removal under 8 U.S.C.S. § 1229b(d)(1) must as well. 

Common sense compels the conclusion that a notice that does not specify when and where to appear for a removal proceeding is not a notice to appear that triggers the stop-time rule for determining eligibility for cancellation of removal. If the three words notice to appear mean anything in this context, they must mean that, at a minimum, the Government has to provide noncitizens notice of the information, i.e., the time and place, that would enable them to appear at the removal hearing in the first place. Conveying such time-and-place information to a noncitizen is an essential function of a notice to appear, for without it, the Government cannot reasonably expect the noncitizen to appear for his removal proceedings. To hold otherwise would empower the government to trigger the stop-time rule merely by sending noncitizens a barebones document labeled notice to appear, with no mention of the time and place of the removal proceedings, even though such documents would do little if anything to facilitate appearance at those proceedings. The United States Supreme Court is not willing to impute to Congress such a contradictory and absurd purpose, particularly where doing so has no basis in the statutory text. 

Even if a notice to appear under 8 U.S.C.S. § 1229(a) functions as a charging document, that is not mutually exclusive with the conclusion that a notice to appear serves another equally integral function: telling a noncitizen when and where to appear. 

8 U.S.C.S. § 1229(a) speaks in definitional terms, at least with respect to the time and place at which the proceedings will be held: It specifically provides that the notice described under 8 U.S.C.S. § 1229(a)(1) is referred to as a notice to appear, which in context is quintessential definitional language. It then defines that term as a written notice that specifies the time and place at which the removal proceedings will be held. 8 U.S.C.S. § 1229(a)(1)(G)(i). Thus, when the term notice to appear is used elsewhere in the statutory section, including as the trigger for the stop-time rule for determining eligibility for cancellation of removal, it carries with it the substantive time-and-place criteria required by § 1229(a). 

8 U.S.C.S. § 1229(a)(1) does not say a notice to appear is complete when it specifies the time and place of the removal proceedings. Rather, it defines a notice to appear as a written notice that specifies, at a minimum, the time and place of the removal proceedings. 8 U.S.C.S. § 1229(a)(1)(G)(i). Moreover, the omission of time-and-place information is not some trivial, ministerial defect, akin to an unsigned notice of appeal. Failing to specify integral information like the time and place of removal proceedings unquestionably would deprive the notice to appear of its essential character. 

The word under is a chameleon that must draw its meaning from its context. Based on the plain language and statutory context, it is obvious that the word under, as used in the stop-time rule for determining eligibility for cancellation of removal, can only mean in accordance with or according to, for it connects the stop-time trigger in 8 U.S.C.S. § 1229b(d)(1) to a notice to appear that contains the enumerated time-and-place information described in 8 U.S.C.S. § 1229(a)(1)(G)(i). Under has been defined as in accordance with; as according to. So construed, the stop-time rule applies only if the Government serves a notice to appear in accordance with or according to the substantive time-and-place requirements set forth in 8 U.S.C.S. § 1229(a). Far from generating any degree of ambiguity, the word under provides the glue that bonds the stop-time rule to the substantive time-and-place requirements mandated by § 1229(a).

8 U.S.C.S. § 1229(a)(2) expressly vests the government with power to change the time or place of a noncitizen’s removal proceedings so long as it provides written notice specifying the new time or place of the proceedings and the consequences of failing to appear. § 1229(a)(2). The government’s ability to exercise that statutory authority after it has served a notice to appear specifying the time and place of the removal proceedings is not inhibited. 

OUTLINE
Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), nonpermanent residents who are subject to removal proceedings may be eligible for cancellation of removal if, among other things, they have “been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of [an] application” for cancellation. 8 U.S.C. §1229(b)(1)(A). Under the stop-time rule, however, the period of continuous presence is “deemed to end . . . when the alien is served a notice to appear under section 1229(a).” §1229(d)(1)(A). Section 1229(a), in turn, provides that the Government shall serve noncitizens in removal proceedings with a written “‘notice to appear,’” specifying, among other things, “[t]he time and place at which the [removal] proceedings will be held.” §1229(a)(1)(G)(i). Per a 1997 regulation stating that a “notice to appear” served on a noncitizen need only provide “the time, place and date of the initial removal hearing, where practicable,” 62 Fed. Reg. 10332, the Department of Homeland Security (DHS), at least in recent years, almost always serves noncitizens with notices that fail to specify the time, place, or date of initial removal hearings whenever the agency deems it impracticable to include such information. The Board of Immigration Appeals (BIA) has held that such notices trigger the stop-time rule even if they do not specify the time and date of the removal proceedings.

Petitioner Wescley Fonseca Pereira is a native and citizen of Brazil who came to the United States in 2000 and remained after his visa expired. Following a 2006 arrest for operating a vehicle while under the influence of alcohol, DHS served Pereira with a document titled “notice to appear” that did not specify the date and time of his initial removal hearing, instead ordering him to appear at a time and date to be set in the future. More than a year later, in 2007, the Immigration Court mailed Pereira a more specific notice setting the date and time for his initial hearing, but the notice was sent to the wrong address and was returned as undeliverable. As a result, Pereira failed to appear, and the Immigration Court ordered him removed in absentia.

In 2013, Pereira was arrested for a minor motor vehicle violation and detained by DHS. The Immigration Court reopened the removal proceedings after Pereira demonstrated that he never received the 2007 notice. Pereira then applied for cancellation of removal, arguing that he had been continuously present in the United States for more than 10 years and that the stop-time rule was not triggered by DHS’ initial 2006 notice because the document lacked information about the time and date of his removal hearing. The Immigration Court disagreed and ordered Pereira removed. The BIA agreed with the Immigration Court that the 2006 notice triggered the stop-time rule, even though it failed to specify the time and date of Pereira’s initial removal hearing. The Court of Appeals for the First Circuit denied Pereira’s petition for review of the BIA’s order. Applying the framework set forth in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed. 2d 694, it held that the stop-time rule is ambiguous and that the BIA’s interpretation of the rule was a permissible reading of the statute.

Held: A putative notice to appear that fails to designate the specific time or place of a noncitizen’s removal proceedings is not a notice to appear under 8 U.S.C.S. § 1229(a), and so does not trigger the stop-time rule under 8 U.S.C.S. § 1229b(d)(1)(A) for determining eligibility for cancellation of removal. Based on the plain text of the statute, it is clear that to trigger the stop-time rule, the government must serve a notice to appear that, at the very least, specifies the time and place of the removal proceedings. Pp. 7-20.

(a) The Court need not resort to Chevron deference, for the unambiguous statutory text alone is enough to resolve this case. Under the stop-time rule, “any period of . . . continuous physical presence” is “deemed to end . . . when the alien is served a notice to appear under section 1229(a).” 8 U. S. C. §1229b(d)(1). By expressly referencing §1229(a), the statute specifies where to look to find out what “notice to appear” means. Section 1229(a), in turn, clarifies that the type of notice “referred to as a ‘notice to appear’” throughout the statutory section is a “written notice . . . specifying,” as relevant here, “[t]he time and place at which the [removal] proceedings will be held.” §1229(a)(1)(G)(i). Thus, to trigger the stop-time rule, the Government must serve a notice to appear that, at the very least, “specif[ies]” the “time and place” of the removal hearing.

The Government and dissent point out that the stop-time rule refers broadly to a notice to appear under “§1229(a)”—which includes paragraph (1), as well as paragraphs (2) and (3). But that does not matter, because only paragraph (1) bears on the meaning of a “notice to appear.” If anything, paragraph (2), which allows for a “change or postponement” of the proceedings to a “new time and place,” §1229(a)(2)(A)(i), bolsters the Court’s interpretation of the statute because the provision presumes that the Government has already served a “notice to appear” that specified a time and place as required by §1229(a)(1)(G)(i). Another neighboring provision, §1229(b)(1), lends further support for the view that a “notice to appear” must specify the time and place of removal proceedings to trigger the stop-time rule. Section 1229(b)(1) gives a noncitizen “the opportunity to secure counsel before the first [removal] hearing date” by mandating that such “hearing date shall not be scheduled earlier than 10 days after the service of the notice to appear.” For that provision to have any meaning, the “notice to appear” must specify the time and place that the noncitizen, and his counsel, must appear at the removal proceedings. Finally, common sense reinforces the conclusion that a notice that does not specify when and where to appear for a removal proceeding is not a “notice to appear” that triggers the stop-time rule. After all, an essential function of a “notice to appear” is to provide noncitizens “notice” of the information (i.e., the “time” and “place”) that would enable them “to appear” at the removal hearing in the first place. Without conveying such information, the Government cannot reasonably expect noncitizens to appear for their removal proceedings. Pp. 7-13.

(b) The Government and the dissent advance a litany of counterarguments, all of which are unpersuasive. To begin, the Government mistakenly argues that §1229(a) is not definitional. That is wrong. Section 1229(a) speaks in definitional terms, requiring that a notice to appear specify, among other things, the “time and place at which the proceedings will be held.” As such, the dissent is misguided in arguing that a defective notice to appear, which fails to specify time-and-place information, is still a notice to appear for purposes of the stop-time rule. Equally unavailing is the Government’s (and the dissent’s) attempt to generate ambiguity in the statute based on the word “under.” In light of the plain language and statutory context, the word “under,” as used in the stop-time rule, clearly means “in accordance with” or “according to” because it connects the stop-time trigger in §1229b(d)(1) to a “notice to appear” that specifies the enumerated time-and-place information. The Government fares no better in arguing that surrounding statutory provisions reinforce its preferred reading of the stop-time rule, as none of those provisions supports its atextual interpretation. Unable to root its reading in the statutory text, the Government and dissent raise a number of practical concerns, but those concerns  re meritless and do not justify departing from the statute’s clear text. In a final attempt to salvage its atextual interpretation, the Government turns to the alleged statutory purpose and legislative history of the stop-time rule. Even for those who consider statutory purpose and legislative history, however, neither supports the Government’s position. Requiring the Government to furnish time-and-place information in a notice to appear is entirely consistent with Congress’ stated objective of preventing noncitizens from exploiting administrative delays to accumulate lengthier periods of continuous precedent. Pp. 13-20. 866 F.3d 1, reversed and remanded.

________________________
§ 1229b. Cancellation of removal; adjustment of status

(a) Cancellation of removal for certain permanent residents. The Attorney General may cancel removal in the case of an alien who is inadmissible or deportable from the United States if the alien–
(1) has been an alien lawfully admitted for permanent residence for not less than 5 years,
(2) has resided in the United States continuously for 7 years after having been admitted in any status, and
(3) has not been convicted of any aggravated felony.

(b) Cancellation of removal and adjustment of status for certain nonpermanent residents.
(1) In general. The Attorney General may cancel removal of, and adjust to the status of an alien lawfully admitted for permanent residence, an alien who is inadmissible or deportable from the United States if the alien–
(A) has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application;
(B) has been a person of good moral character during such period;
(C) has not been convicted of an offense under section 212(a)(2), 237(a)(2), or 237(a)(3) [8 USCS § 1182(a)(2), 1227(a)(2), or 1227(a)(3)], subject to paragraph (5); and
(D) establishes that removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.

(2) Special rule for battered spouse or child.
(A) Authority. The Attorney General may cancel removal of, and adjust to the status of an alien lawfully admitted for permanent residence, an alien who is inadmissible or deportable from the United States if the alien demonstrates that–
(i)
(I) the alien has been battered or subjected to extreme cruelty by a spouse or parent who is or was a United States citizen (or is the parent of a child of a United States citizen and the child has been battered or subjected to extreme cruelty by such citizen parent);
(II) the alien has been battered or subjected to extreme cruelty by a spouse or parent who is or was a lawful permanent resident (or is the parent of a child of an alien who is or was a lawful permanent resident and the child has been battered or subjected to extreme cruelty by such permanent resident parent); or
(III) the alien has been battered or subjected to extreme cruelty by a United States citizen or lawful permanent resident whom the alien intended to marry, but whose marriage is not legitimate because of that United States citizen’s or lawful permanent resident’s bigamy;
(ii) the alien has been physically present in the United States for a continuous period of not less than 3 years immediately preceding the date of such application, and the issuance of a charging document for removal proceedings shall not toll the 3-year period of continuous physical presence in the United States;
(iii) the alien has been a person of good moral character during such period, subject to the provisions of subparagraph (C);
(iv) the alien is not inadmissible under paragraph (2) or (3) of section 212(a) [8 USCS § 1182(a)], is not deportable under paragraphs (1)(G) or (2) through (4) of section 237(a) [8 USCS § 1227(a)], subject to paragraph (5), and has not been convicted of an aggravated felony; and
(v) the removal would result in extreme hardship to the alien, the alien’s child, or the alien’s parent.

(B) Physical presence. Notwithstanding subsection (d)(2), for purposes of subparagraph (A)(ii) or for purposes of section 244(a)(3) [former 8 USCS § 1254(a)(3)] (as in effect before the title III-A effective date in section 309 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 [8 USCS § 1101 note]), an alien shall not be considered to have failed to maintain continuous physical presence by reason of an absence if the alien demonstrates a connection between the absence and the battering or extreme cruelty perpetrated against the alien. No absence or portion of an absence connected to the battering or extreme cruelty shall count toward the 90-day or 180-day limits established in subsection (d)(2). If any absence or aggregate absences exceed 180 days, the absences or portions of the absences will not be considered to break the period of continuous presence. Any such period of time excluded from the 180-day limit shall be excluded in computing the time during which the alien has been physically present for purposes of the 3-year requirement set forth in this subparagraph, subparagraph (A)(ii), and section 244(a)(3) [former 8 USCS § 1254(a)(3)] (as in effect before the title III-A effective date in section 309 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 [8 USCS § 1101 note]).

(C) Good moral character. Notwithstanding section 101(f) [8 USCS § 1101(f)], an act or conviction that does not bar the Attorney General from granting relief under this paragraph by reason of subparagraph (A)(iv) shall not bar the Attorney General from finding the alien to be of good moral character under subparagraph (A)(iii) or section 244(a)(3) [former 8 USCS § 1254(a)(3)] (as in effect before the title III-A effective date in section 309 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 [8 USCS § 1101 note]), if the Attorney General finds that the act or conviction was connected to the alien’s having been battered or subjected to extreme cruelty and determines that a waiver is otherwise warranted.

(D) Credible evidence considered. In acting on applications under this paragraph, the Attorney General shall consider any credible evidence relevant to the application. The determination of what evidence is credible and the weight to be given that evidence shall be within the sole discretion of the Attorney General.
(3) Recordation of date. With respect to aliens who the Attorney General adjusts to the status of an alien lawfully admitted for permanent residence under paragraph (1) or (2), the Attorney General shall record the alien’s lawful admission for permanent residence as of the date of the Attorney General’s cancellation of removal under paragraph (1) or (2).
(4) Children of battered aliens and parents of battered alien children.
(A) In general. The Attorney General shall grant parole under section 212(d)(5) [8 USCS § 1182(d)(5)] to any alien who is a–
(i) child of an alien granted relief under section 240A(b)(2) [subsec. (b)(2) of this section] or 244(a)(3) [former 8 USCS § 1254(a)(3)] (as in effect before the title III-A effective date in section 309 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 [8 USCS § 1101 note]); or
(ii) parent of a child alien granted relief under section 240A(b)(2) [subsec. (b)(2) of this section] or 244(a)(3) [former 8 USCS § 1254(a)(3)] (as in effect before the title III-A effective date in section 309 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 [8 USCS § 1101 note]).
(B) Duration of parole. The grant of parole shall extend from the time of the grant of relief under section 240A(b)(2) [subsec. (b)(2) of this section] or section 244(a)(3) [former 8 USCS § 1254(a)(3)] (as in effect before the title III-A effective date in section 309 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 [8 USCS § 1101 note]) to the time the application for adjustment of status filed by aliens covered under this paragraph has been finally adjudicated. Applications for adjustment of status filed by aliens covered under this paragraph shall be treated as if they were VAWA self-petitioners. Failure by the alien granted relief under section 240A(b)(2) [subsec. (b)(2) of this section] or section 244(a)(3) [former 8 USCS § 1254(a)(3)] (as in effect before the title III-A effective date in section 309 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 [8 USCS § 1101 note]) to exercise due diligence in filing a visa petition on behalf of an alien described in clause (i) or (ii) may result in revocation of parole.

(5) Application of domestic violence waiver authority. The authority provided under section 237(a)(7) [8 USCS § 1227(a)(7)] may apply under paragraphs (1)(B), (1)(C), and (2)(A)(iv) in a cancellation of removal and adjustment of status proceeding.

(6) Relatives of trafficking victims.
(A) In general. Upon written request by a law enforcement official, the Secretary of Homeland Security may parole under section 212(d)(5) [8 USCS § 1182(d)(5)] any alien who is a relative of an alien granted continued presence under section 107(c)(3)(A) of the Trafficking Victims Protection Act (22 U.S.C. 7105(c)(3)(A)), if the relative–
(i) was, on the date on which law enforcement applied for such continued presence–
(I) in the case of an alien granted continued presence who is under 21 years of age, the spouse, child, parent, or unmarried sibling under 18 years of age, of the alien; or
(II) in the case of an alien granted continued presence who is 21 years of age or older, the spouse or child of the alien; or
(ii) is a parent or sibling of the alien who the requesting law enforcement official, in consultation with the Secretary of Homeland Security, as appropriate, determines to be in present danger of retaliation as a result of the alien’s escape from the severe form of trafficking or cooperation with law enforcement, irrespective of age.

(B) Duration of parole.
(i) In general. The Secretary may extend the parole granted under subparagraph (A) until the final adjudication of the application filed by the principal alien under section 101(a)(15)(T)(ii) [8 USCS § 1101(a)(15)(T)(ii)].
(ii) Other limits on duration. If an application described in clause (i) is not filed, the parole granted under subparagraph (A) may extend until the later of–
(I) the date on which the principal alien’s authority to remain in the United States under section 107(c)(3)(A) of the Trafficking Victims Protection Act (22 U.S.C. 7105(c)(3)(A)) is terminated; or
(II) the date on which a civil action filed by the principal alien under section 1595 of title 18, United States Code, is concluded.
(iii) Due diligence. Failure by the principal alien to exercise due diligence in filing a visa petition on behalf of an alien described in clause (i) or (ii) of subparagraph (A), or in pursuing the civil action described in clause (ii)(II) (as determined by the Secretary of Homeland Security in consultation with the Attorney General), may result in revocation of parole.
(C) Other limitations. A relative may not be granted parole under this paragraph if–
(i) the Secretary of Homeland Security or the Attorney General has reason to believe that the relative was knowingly complicit in the trafficking of an alien permitted to remain in the United States under section 107(c)(3)(A) of the Trafficking Victims Protection Act (22 U.S.C. 7105(c)(3)(A)); or
(ii) the relative is an alien described in paragraph (2) or (3) of section 212(a) [8 USCS § 1182(a)] or paragraph (2) or (4) of section 237(a) [8 USCS § 1227(a)].
(c) Aliens ineligible for relief. The provisions of subsections (a) and (b)(1) shall not apply to any of the following aliens:
(1) An alien who entered the United States as a crewman subsequent to June 30, 1964.
(2) An alien who was admitted to the United States as a nonimmigrant exchange alien as defined in section 101(a)(15)(J) [8 USCS § 1101(a)(15)(J)], or has acquired the status of such a nonimmigrant exchange alien after admission, in order to receive graduate medical education or training, regardless of whether or not the alien is subject to or has fulfilled the two-year foreign residence requirement of section 212(e) [8 USCS § 1182(e)].
(3) An alien who–
(A) was admitted to the United States as a nonimmigrant exchange alien as defined in section 101(a)(15)(J) [8 USCS § 1101(a)(15)(J)] or has acquired the status of such a nonimmigrant exchange alien after admission other than to receive graduate medical education or training,
(B) is subject to the two-year foreign residence requirement of section 212(e) [8 USCS § 1182(e)], and
(C) has not fulfilled that requirement or received a waiver thereof.
(4) An alien who is inadmissible under section 212(a)(3) [8 USCS § 1182(a)(3)] or deportable under section 237(a)(4) [8 USCS § 1227(a)(4)].
(5) An alien who is described in section 241(b)(3)(B)(i) [8 USCS § 1251(b)(3)(B)(i)].
(6) An alien whose removal has previously been cancelled under this section or whose deportation was suspended under section 244(a) [former 8 USCS § 1254(a)] or who has been granted relief under section 212(c) [former 8 USCS § 1182(c)], as such sections were in effect before the date of the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 [enacted Sept. 30, 1996].

(d) Special rules relating to continuous residence or physical presence.
(1) Termination of continuous period. For purposes of this section, any period of continuous residence or continuous physical presence in the United States shall be deemed to end (A) except in the case of an alien who applies for cancellation of removal under subsection (b)(2), when the alien is served a notice to appear under section 239(a) [8 USCS § 1229(a)], or (B) when the alien has committed an offense referred to in section 212(a)(2) [8 USCS § 1182(a)(2)] that renders the alien inadmissible to the United States under section 212(a)(2) [8 USCS § 1182(a)(2)] or removable from the United States under section 237(a)(2) or 237(a)(4) [8 USCS § 1227(a)(2) or 1227(a)(4)], whichever is earliest.

(2) Treatment of certain breaks in presence. An alien shall be considered to have failed to maintain continuous physical presence in the United States under subsections (b)(1) and (b)(2) if the alien has departed from the United States for any period in excess of 90 days or for any periods in the aggregate exceeding 180 days.
(3) Continuity not required because of honorable service in armed forces and presence upon entry into service. The requirements of continuous residence or continuous physical presence in the United States under subsections (a) and (b) shall not apply to an alien who–
(A) has served for a minimum period of 24 months in an active-duty status in the Armed Forces of the United States and, if separated from such service, was separated under honorable conditions, and
(B) at the time of the alien’s enlistment or induction was in the United States.

(e) Annual limitation.
(1) Aggregate limitation. Subject to paragraphs (2) and (3), the Attorney General may not cancel the removal and adjust the status under this section, nor suspend the deportation and adjust the status under section 244(a) [former 8 USCS § 1254(a)] (as in effect before the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 [enacted Sept. 30, 1996]), of a total of more than 4,000 aliens in any fiscal year. The previous sentence shall apply regardless of when an alien applied for such cancellation and adjustment, or such suspension and adjustment, and whether such an alien had previously applied for suspension of deportation under such section 244(a) [8 USCS § 1254(a)]. The numerical limitation under this paragraph shall apply to the aggregate number of decisions in any fiscal year to cancel the removal (and adjust the status) of an alien, or suspend the deportation (and adjust the status) of an alien, under this section or such section 244(a) [8 USCS § 1254(a)].
(2) Fiscal year 1997. For fiscal year 1997, paragraph (1) shall only apply to decisions to cancel the removal of an alien, or suspend the deportation of an alien, made after April 1, 1997. Notwithstanding any other provision of law, the Attorney General may cancel the removal or suspend the deportation, in addition to the normal allotment for fiscal year 1998, of a number of aliens equal to 4,000 less the number of such cancellations of removal and suspensions of deportation granted in fiscal year 1997 after April 1, 1997.
(3) Exception for certain aliens. Paragraph (1) shall not apply to the following:
(A) Aliens described in section 309(c)(5)(C)(i) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 [8 USCS § 1101 note] (as amended by the Nicaraguan Adjustment and Central American Relief Act).
(B) Aliens in deportation proceedings prior to April 1, 1997, who applied for suspension of deportation under section 244(a)(3) [former 8 USCS § 1254(a)(3)] (as in effect before the date of the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 [enacted Sept. 30, 1996]).

Posted in Cancellation of Removal, Cancellation Of Removal and The Stop-Time Rule, Cancellation of Removal for Non LPRS under INA Section 240A(b)(1), Continuous Residence Exceptions, Notice to Appear, SCOTUS, stop-time, Stop-Time Rule | Leave a comment

BIA Holds §212(h) Waiver Available to Petitioner Who Adjusted to LPR Status in the U.S.


VELLA, 27 I&N Dec. 138 (BIA 2017)

ID 3905 (PDF)

An alien “has previously been admitted to the United States as an alien lawfully admitted for permanent residence” within the meaning of section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h) (2012), 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 alien’s most recent acquisition of lawful permanent resident status.

J-H-J, 26 I&N Dec. 563 (BIA 2015)

ID 3834 (PDF)

An alien who adjusted status in the United States, and who has not entered as a lawful permanent resident, is not barred from establishing eligibility for a waiver of inadmissibility under section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h) (2012), as a result of an aggravated felony conviction. Matter of E.W. Rodriguez, 25 I&N Dec. 784 (BIA 2012), and Matter of Koljenovic, 25 I&N Dec. 219 (BIA 2010), withdrawn.


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The 7th Circuit joined the 3rd, 4th, 5th, and 11th circuits regarding 212(h) and readjustment-Papazoglou v. Holder. Decided August 6, 2013. The court joined four other circuits in holding that §212(h) precludes a waiver only for those persons who were LPRs at the time they lawfully entered the U.S., but ultimately upheld the BIA’s denial of the waiver as a matter of discretion.

By its plain language, § 212(h) waiver, 8 U.S.C.S. § 1182(h), is precluded only when the person was a lawful permanent resident at the time of his or her lawful entry into the United States.

Section 212(h) of the INA is an important waiver of crimes-based grounds of inadmissibility. Since 1997, § 212(h) has provided that at least some lawful permanent residents (LPR’s) cannot apply for the waiver if they (a) have been convicted of an aggravated felony since a certain type of admission or (b) have failed to accrue seven years of lawful continuous residence before service of a Notice to Appear initiating removal proceedings. Not all LPRs are subject to these bars, however. All federal courts that have addressed the issue have held that because of the particular statutory language of the bars, they are triggered when a person is admitted at a U.S. port of entry as an LPR, but are not triggered when a person adjusts status to LPR. The BIA disagrees. See Matter of Rodriguez, 25 I&N Dec. 784 (BIA 2012) and Matter of Koljenovic, 25 I&N Dec. 218 (BIA 2010).

The last paragraph of INA § 212(h), 8 USC § 1182(h) provides that the waiver is not available to certain permanent residents:

“No waiver shall be granted under this subsection in the case of an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence if either since the date of such admission the alien has been convicted of an aggravated felony or the alien has not lawfully resided continuously in the United States for a period of not less than 7 years immediately preceding the date of initiation of proceedings to remove the alien from the United States.”

Petitioner Dimitrios Papazoglou (“Papazoglou”) is a native and citizen of Greece who entered the United States on a B-2 visitor’s visa on July 19, 1986. A little over a year later, in September 1987, he married a U.S. citizen, Hariklia Papazoglou (“Hariklia”), and based on that marriage he adjusted his status to lawful permanent resident on July 16, 1990. He has four children: a U.S. citizen stepson, Alex; a permanent resident daughter, Eleni; a U.S. citizen son Konstandinos; and a U.S. citizen son Mehalis.

On April 4, 2008, Papazoglou pled guilty to third-degree sexual assault under Wis. Stat. § 940.225(3) and physical abuse of a child in violation of Wis. Stat. § 948.03(3)(b). He was sentenced to 2 1/2 years’ imprisonment and 4 1/2 years probation.

Based on his conviction of an aggravated felony, the Department of Homeland Security (DHS) charged Papazoglou with removability under the Immigration and Nationality Act (INA) § 237(a)(2), 8 U.S.C.A. § 1227(a)(2)(A)(iii). Before the Immigration Judge (“IJ”), Papazoglou filed a Form I-485 application for adjustment of status pursuant to INA § 245(a) based on his marriage to a United States citizen, 8 U.S.C. § 1255(a), and in conjunction with that he filed a Form I-601 application for waiver of grounds of inadmissibility under INA § 212(h), which would allow him to obtain a waiver of the inadmissibility arising from that aggravated felony conviction. 8 U.S.C. § 1182(h). The IJ granted the waiver and the adjustment of status, and the government appealed that decision to the Board of Immigration Review (the “Board”). Reviewing the IJ’s decision de novo, the Board agreed with the government that Papazoglou was statutorily ineligible for the waiver. The Board also held that even if Papazoglou were eligible for the waiver, he would not be entitled to it as a matter of discretion. Papazoglou has appealed that determination to the Seventh Circuit Court.

HOLDINGS: [1]-By its plain language, 8 U.S.C.S. § 1182(h) waiver was precluded only when the person was a lawful permanent resident at the time of his or her lawful entry into the United States, and because the immigrant entered the United States on a visitor’s visa and was not a lawful permanent resident at that time, he was not precluded from consideration for the waiver; [2]-The holding was discretionary determination over which the appellate court lacked jurisdiction.

In a challenge to the denial of a § 212(h) waiver, the court lacks jurisdiction to review the Attorney General’s discretionary determination, but may review questions of law presented by the Board of Immigration Review’s construction of § 212(h).

Section 212(h) gives the Attorney General the discretion to allow noncitizens to enter or remain in the United States despite their commission of certain crimes. Prior to 1996, the only aliens categorically barred from receiving § 212(h) waivers were aliens who had been convicted of murder or criminal acts involving torture, or the attempt or conspiracy to commit such crimes. The Immigration Reform and Immigrant Responsibility Act of 1996, (IIRIRA) created a new category of ineligible aliens in § 212(h), providing that no waiver shall be granted under this subsection in the case of an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence if since the date of such admission the alien has been convicted of an aggravated felony, 8 U.S.C.S. § 1182(h).

The appellate court determines whether to grant deference to the Board of Immigration Review’s (Board) interpretation by applying a two-part test. First, if the statute is unambiguous and has spoken directly to the precise issue such that the intent is clear, the appellate court simply gives effect to that intent. The plain language of the statute is the most instructive and reliable indicator of that Congressional intent. Where the intent is not clear and Congress has not directly addressed the precise question, courts will consider whether the agency construction of the statute is a permissible one. If the language of § 212(h), 8 U.S.C.S. § 1182(h), is plain and the intent is clear, the appellate court will apply that intent; if, however, the language of § 212(h) ambiguous, the appellate court will consider the Board’s interpretation and defer to it if that construction is a permissible one.

“Admitted” and “admission” are defined as with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer, 8 U.S.C.S. § 1101(a)(13)(A). That provision therefore encompasses the action of an entry into the United States, accompanied by an inspection or authorization. The subsequent term, “lawfully admitted for permanent residence,” is the status of having been lawfully accorded the privilege of residing permanently in the United States. Under 8 U.S.C.S. § 1255(b), the Attorney General shall record the alien’s lawful admission for permanent residence as of the date the order of the Attorney General approving the application for adjustment of status is made. Section 212(h) precludes a waiver only for those persons who, at the time they lawfully entered into the United States, had attained the status of lawful permanent residents.

The holdings of the circuits means that where a noncitizen: 1. initially entered the U.S. without inspection or on a nonimmigrant visa or other status (i.e. parole); 2. then adjusted his or her status within the U.S. to become a lawful permanent resident; and 3. then is convicted of an offense constituting an aggravated felony, he may apply for adjustment of status based on a new visa petition with a 212(h) waiver for the specified categories of crimes (i.e. crimes involving moral turpitude, prostitution).

For those in the 8th Circuit, that circuit court has held that a noncitizen who entered as a refugee, adjusted his status under INA 209(a), and then was convicted of an aggravated felony is ineligible for a waiver under INA 212(h) because the adjustment under INA 209(a) is an “admission.” *Spacek v. Holder*, 688 F.3d 536 (8th Cir. 2012). This is an issue to be litigated further.

Cases within the Third, Fourth, Fifth, Seventh and Eleventh Circuit Courts of Appeal. These courts held that the § 212(h) bars apply only to a person who was admitted to the United States as a lawful permanent resident at a port of entry (i.e. the border or its equivalent such as an airport). They found that the plain meaning of the § 212(h) phrase “previously been admitted to the United States” is to incorporate the statutory definition of “admission” at INA § 101(a)(13)(A), which is “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.” Adjusting status to permanent residency does not come within that definition, and therefore does not trigger the bars. See Martinez v. Mukasey, 519 F.3d 532 (5th Cir. 2008); Lanier v. United States AG, 631 F.3d 1361 (11th Cir. 2011); Bracamontes v. Holder, 675 F.3d 380 (4th Cir. 2012), Hanif v. Holder, –F.3d– (3rd Cir. September 14, 2012).

The courts based this holding on the plain language of the statute, which means they determined that they need not give Chevron deference to the BIA’s contrary interpretation on this point. Also, while these cases concerned the LPR bar based on conviction of an aggravated felony, the same standard would apply to the LPR bar based on lack of seven years lawful continuous residence.
_________________________________________________________________________________________________
In the United States Court of Appeals For the Seventh Circuit

No. 12-2372

DIMITRIOS PAPAZOGLOU, Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General of the United States,

Respondent.

On Petition For Review of an Order of the Board of Immigration Appeals. No. A070-422-780

ARGUED NOVEMBER 30, 2012 — DECIDED AUGUST 6, 2013

Before BAUER, ROVNER, and WILLIAMS, Circuit Judges.

ROVNER, Circuit Judge. Petitioner Dimitrios Papazoglou (“Papazoglou”) is a native and citizen of Greece who entered the United States on a B-2 visitor’s visa on July 19, 1986. A little over a year later, in September 1987, he married a U.S. citizen, Hariklia Papazoglou (“Hariklia”), and based on that marriage he adjusted his status to lawful permanent resident on July 16, 1990. He has four children: a U.S. citizen stepson, Alex; a permanent resident daughter, Eleni; a U.S. citizen son Konstandinos; and a U.S. citizen son Mehalis.

On April 4, 2008, Papazoglou pled guilty to third-degree sexual assault under Wis. Stat. § 940.225(3) and physical abuse of a child in violation of Wis. Stat. § 948.03(3)(b). He was sentenced to 2 ½ years’ imprisonment and 4 ½ years probation.

Based on his conviction of an aggravated felony, the Department of Homeland Security (DHS) charged Papazoglou with removability under the Immigration and Nationality Act (INA) § 237(a)(2), 8 U.S.C.A. § 1227(a)(2)(A)(iii). Before the Immigration Judge (“IJ”), Papazoglou filed a Form I-485 application for adjustment of status pursuant to INA § 245(s) based on his marriage to a United States citizen, 8 U.S.C. § 1255(a), and in conjunction with that he filed a Form I-601 application for waiver of grounds of inadmissibility under INA § 212(h), which would allow him to obtain a waiver of the inadmissibility arising from that aggravated felony conviction. 8 U.S.C. § 1182(h). The IJ granted the waiver and the adjustment of status, and the government appealed that decision to the Board of Immigration Review (the “Board”).Reviewing the IJ’s decision de novo, the Board agreed with the government that Papazoglou was statutorily ineligible for the waiver. The Board also held that even if Papazoglou were eligible for the waiver, he would not be entitled to it as a matter of discretion. Papazoglou has appealed that determination to this court.

Our jurisdiction to review such decisions of the Board is limited. The Board held that Papazoglou was removable based on his commission of an aggravated felony, 8 U.S.C. § 1227(a)(2)(A)(iii), and the INA, as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, precludes judicial review of such removal decisions. 8 U.S.C. § 1252(a)(2)(C); Vaca-Tellez v. Mukasey, 540 F.3d 665, 668 (7th Cir. 2008). The REAL ID Act of 2005 provides, however, that judicial review is available for constitutional claims or questions of law presented in a petition for review, and therefore we are precluded only from considering challenges that do not fall within those categories such as the Board’s discretionary determinations. Id. at 668-69; 8 U.S.C. § 1252(a)(2)(D); Hanif v. Atty. General of the United States, 694 F.3d 479, 483 (3d Cir. 2012). Therefore, in a challenge to the denial of a § 212(h) waiver, the court lacks jurisdiction to review the Attorney General’s discretionary determination, but may review questions of law presented by the Board’s construction of § 212(h). Vaca-Tellez, 540 F.3d at 669; Martinez v. Mukasey, 519 F.3d 532, 541 (5th Cir. 2008).

Papazoglou raises two arguments here. The first is that the Board erred in determining that he was statutorily ineligible for the § 212(h) waiver. Papazoglou argues that the Board improperly interpreted the statutory language, and that he was eligible for a § 212(h) waiver under the language of that statutory provision. That challenge is a legal one, which we review de novo. Klementanovsky v. Gonzales, 501 F.3d 788, 791 (7th Cir. 2007).

Papazoglou also contests the Board’s decision that it would not grant the waiver as a matter of discretion. Because we lack jurisdiction to review discretionary decisions, Papazoglou attempts to recharacterize that argument, contending that the Board erred as a matter of law in that it failed to defer to the IJ’s fact findings and it did not properly consider the evidence in the record. Accordingly, Papazoglou maintains that we have jurisdiction to review that legal error.

Section 212(h) gives the Attorney General the discretion to allow noncitizens to enter or remain in the United States despite their commission of certain crimes. Prior to 1996, the only aliens categorically barred from receiving § 212(h) waivers were aliens who had been convicted of murder or criminal acts involving torture, or the attempt or conspiracy to commit such crimes. Leiba v. Holder, 699 F.3d 346, 348-49 (4th Cir. 2012); Jankowski-Burczyk v. INS, 291 F.3d 172, 175 (2d Cir. 2002). The Immigration Reform and Immigrant Responsibility Act of 1996, (IIRIRA) created a new category of ineligible aliens in § 212(h), providing that “[n]o waiver shall be granted under this subsection in the case of an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence if … since the date of such admission the alien has been convicted of an aggravated felony … .” 8 U.S.C. § 1182(h); . Leiba, 699 F.3d at 348-39; Jankowski-Burczyk, 291 F.3d at 175 -76. Under Chevron U.S.A. Inc. v. NRDC, Inc., 467 U.S. 837, 842-44 (1984), in considering the scope of that provision, we determine whether to grant deference to the Board’s interpretation by applying a two-part test. EEOC v. Thrivent Financial for Lutherans, 700 F.3d 1044, 1049 (7th Cir. 2012); Arnett v. C.I.R., 473 F.3d 790, 793 (7th Cir. 2007); Leiba, 699 F.3d at 348; Martinez, 519 F.3d at 542-43; Hanif, 694 F.3d at 483. First, if the statute is unambiguous and has spoken directly to the precise issue such that the intent is clear, we simply give effect to that intent. Id. The plain language of the statute is the most instructive and reliable indicator of that Congressional intent. Thrivent Financial, 700 F.3d at 1049; Martinez, 519 F.3d at 543. Where the intent is not clear and Congress has not directly addressed the precise question, courts will consider whether the agency construction of the statute is a permissible one. Id. As applied here, if the language of § 212(h) is plain and the intent is clear, we will apply that intent; if, however, the language of § 212(h) ambiguous, we will consider the Board’s interpretation and defer to it if that construction is a permissible one.

The first issue in this case is whether Papazoglou is “an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence” as used in § 212(h). That rather tortured language has been interpreted by a number of circuits, all of which have agreed as to its meaning. See Hanif v. Atty. General of the United States, 694 F.3d 479, 483 (3d Cir. 2012); Bracamontes v. Holder, 675 F.3d 380, 386–87 (4th Cir. 2012); Lanier v. U.S. Atty Gen., 631 F.3d 1363, 1366–67 (11th Cir. 2011); Martinez v. Mukasey, 519 F.3d 532, 546 (5th Cir. 2008); see also Hing Sum v. Holder, 602 F.3d 1092, 1097 (9th Cir. 2010). Those circuits look to the definitions of “admitted” and “admission,” and the term “lawfully admitted for permanent residence,” in the INA. “Admitted” and “admission” are defined as “with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.” 8 U.S.C § 1101(a)(13)(A); Leiba, 699 F.3d at 349 . That provision therefore encompasses the action of an entry into the United States, accompanied by an inspection or authorization. The subsequent term, “lawfully admitted for permanent residence,” is the status of having been lawfully accorded the privilege of residing permanently in the United States. Hanif, 694 F.3d at 485; Leiba, 699 F.3d at 350. Under 8 U.S.C. § 1255(b), the Attorney General “shall record the alien’s lawful admission for permanent residence as of the date the order of the Attorney General approving the application for adjustment of status is made.” Hanif, 694 F.3d at 485. Applying those definitions, the circuit courts of appeal have held that § 212(h) precludes a waiver only for those persons who, at the time they lawfully entered into the United States, had attained the status of lawful permanent residents. Hanif, 694 F.3d at 487; Bracamontes, 675 F.3d at 386–87; Lanier, 631 F.3d at 1366–67; Martinez, 519 F.3d at 546.

The Board has refused to follow those circuits, and applies a different interpretation in all circuits but the ones which have specifically addressed the issue and held otherwise. Urging us to follow the lead of the Board rather than the other circuits, the government argues that the definition of “admitted” is not dispositive here, because the INA also provides that when a person’s status is adjusted, that person is “lawfully admitted for permanent residence” as ofthat date of adjustment and that date constitutes the date of admission. Relying on that statutory provision, the government argues that a person is “admitted to the United States as an alien lawfully admitted for permanent residence” as of the date at which the person attains permanent resident status, because that constitutes a date of admission. That argument, however, would render irrelevant the first part of that § 212(h) provision. The provision does not preclude waiver for any person who was lawfully admitted for permanent residence; instead, it precludes waiver only for those persons who had “previously been admitted to the United States as a person lawfully admitted for permanent residence.” [emphasis added] The government’s interpretation would conflate the two requirements, and preclude waiver whenever a person was lawfully admitted for permanent residence. We will not interpret a statute in a manner that renders part of it irrelevant, particularly where, as here, the statute has an unambiguous meaning if we simply apply the definition provided in the statute itself. We agree with the other circuits that have held that by its plain language, § 212(h) waiver is precluded only when the person was a lawful permanent resident at the time of his or her lawful entry into the United States. Because Papazoglou entered the United States on a visitor’s visa and was not a lawful permanent resident at that time, he does not fall within that language and therefore is not precluded from consideration for the waiver.

That does not end our inquiry, however, because the Board held that even if Papazoglou were eligible for the waiver, it would decline to grant him a waiver as a matter of discretion. That holding is a discretionary determination over which we lack jurisdiction. Vaca-Tellez, 540 F.3d at 668. Papazoglou does not in fact dispute that we lack jurisdiction to consider discretionary determinations, and forswears any such challenge. Instead, he attempts to avoid the clear application of that jurisdictional principle here by contending that the Board based its decision not on a valid exercise of its discretion, but on an error of law as to what factors had to be considered and without the proper deference to the factual findings of the IJ. A review of Papazoglou’s claims, however, reveals that the Board applied the appropriate legal standards, and that his challenge ultimately constitutes a disagreement with the Board’s exercise of discretion in refusing to grant the waiver.

Papazoglou asserts that although the Board claimed to have left the IJ’s factual findings undisturbed, the decision of the Board reveals that the Board exceeded the scope of its authority by essentially failing to properly consider all of the relevant facts as found by the IJ. According to Papazoglou, the Board erred in that it did not respect the role of the IJ in the factfinding process, and reached new conclusions in the absence of clear error by the IJ. Papazoglou asserts that the role of the Board is a limited one, and that it may not reweigh the evidence and substitute its own evidence absent clear error.

In support of this contention, Papazoglou maintains that the Board explicitly acknowledged only two harms to Papazoglou’s qualifying relatives that would be caused by his removal: that his wife and children would suffer emotional hardship and that they would experience financial harm. According to Papazoglou, in characterizing the impact as “emotional hardship” without elaborating, the Board effectively overruled sub silentio the IJ’s finding that Papazoglou’s family would suffer severe psychiatric consequences. Papazoglou points to evidence presented that Papazoglou’s family members could experience depression and suicidal ideation as a result of his removal. In addition, Papazoglou argues that the Board merely noted the serious health conditions faced by Papazoglou’s wife, but did not analyze how those conditions would be affected by Papazoglou’s departure. Finally, Papazoglou asserts that the Board failed to discuss the IJ’s conclusions that Papazoglou presented a low risk of reoffending and that he had taken positive steps toward rehabilitation, instead stating merely that Papazoglou had developed a plan for engaging in rehabilitative services.

Those contentions unfairly characterize the Board’s decision, and do not in fact present a legal challenge. The Board explicitly referenced the findings of facts made by the IJ, stating that those factual findings were not challenged by either party on appeal and that it found no clear error as to those findings. The Board then proceeded to discuss the areas of hardship asserted by Papazoglou. Given its statement that the IJ’s determination of facts was unchallenged on appeal, the Board was not required to restate those facts in explicit detail where a shorthand reference would make clear that those facts were considered. The Board made it clear that it had reviewed and considered the facts relating to the impact on the family in terms of emotional and physical health, and the rehabilitative efforts by Papazoglou. The Board need not use the precise language of the IJ in order for us to determine that the Board properly reviewed the IJ’s fact findings, particularly where the Board has explicitly noted that there was no dispute as to those fact findings and no clear error. There is, in short, nothing here to indicate that the Board applied an improper legal standard.

Nor did the Board err in applying the law to those facts. Papazoglou repeatedly asserts that the Board selectively focused on the “bad” facts while ignoring or diminishing the “positive” facts. In fact, Papazoglou goes so far as to characterize the Board’s decision as employing a per se rule that no amount of positive equities could have allowed for a grant of relief for Papazoglou’s particular conviction, which he contends is a violation of the due process clause. That once again is an effort to recharacterize a discretionary determination as a legal or constitutional challenge, in order to shoehorn the appeal into our limited jurisdictional window. The Board held that notwithstanding the positive equities, the serious and recent criminal conviction involving sexual assault of a minor outweighed the favorable factors presented. That is a proper weighing of the factors. The Board never indicates that no amount of positive factors could outweigh such a conviction, just that in this case the balance is not favorable to Papazoglou. The Board may consider such a conviction, involving the sexual abuse of a ten year old child, to be so serious a matter that it can not easily be outweighed in determining whether a discretionary waiver is appropriate. That is not problematic. In fact, the Board declared that it did not need to determine whether the hardship rose to the level of exceptional and extremely unusual hardship under 8 CFR § 1212.7(d), choosing instead to operate from the premise that the relevant hardship standard was met and determining whether to exercise its discretion given those facts. Papazoglou’s real dispute is with the Board’s conclusion as to whether the waiver should be granted as a matter of discretion given those fact findings, but we lack jurisdiction to review that discretionary determination. Because his legal challenges are unsupported by the record, his claims are without merit and the decision of the Board is AFFIRMED.

Posted in 212(h), 212(h) and readjustment, 7th Circuit, 7th Circuit Cases- Aliens, Aggravated felony, BIA, Board of Immigration Appeals, CA7 Holds §212(h) Waiver Available to Petitioner Who Adjusted to LPR Status in the U.S. | Leave a comment

Good Moral Character (GMC), Naturalization N-400 application, Chicago District Office, Citizenship and Immigration Services (CIS)

  • Lawfully Admitted for Permanent Residence
  • Continuity of Residence
  • Residency: Jurisdiction
  • Physical Presence
  • Good Moral Character
  • Attachment to the Constitution
  • English language proficiency and knowledge of United States history and government.

Naturalization applicants are required by law to appear in person before an USCIS District Adjudications Officer (DAO, formerly called an “Immigration Examiner”) for an “examination under oath.”

District Adjudications Officers (DAO) must make a determination whether the applicant possesses the requisite Good Moral Character for purposes of naturalization. In making this determination, DAO’s will primarily focus on the 5-year statutory period prior to filing of the N-400 application. Part 7 of the N-400, entitled Additional Factors of Eligibility has 15 questions which contain most of the grounds for finding a lack of GMC. In addition, DAOs “should always ask” the applicant the following questions, if applicable:

Have you ever failed to pay, or refused to pay, alimony, or failed to comply with a court order to pay alimony?
Have you ever failed to pay, or refused to pay, child support or failed to comply with a court order to pay child support?
If an applicant admits to having committed or been arrested, sentenced, or convicted for any crimes or offenses in violation of the law, or if the file contains evidence of any crimes or offenses, DAOs will focus on the number and type of offenses to determine whether the applicant lacks GMC based on this evidence.

A person will always lack GMC if, during the 5-year statutory period, he has committed one or more “crimes involving moral turpitude”(CIMT). The most common definition of a CIMT is “an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellow men or to society in general, contrary to the accepted and customary rule of right and duty between man and man.”

If the applicant gives an affirmative response to any of the questions involving GMC in Part 7 (Questions No. 8, 9, 12, and 15) or if the cases involves CIMTs, DAOs will refer the applicant to a secondary officer for a traditional interview format.
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A list of crimes involving moral turpitude: This checklist is designed to provide a quick reference to the types of offenses which the Board of Immigration Appeals has found to be “Crimes Involving Moral Turpitude.” This list is not exclusive and DAOs will consult with Service counsel for more in-depth information.

Crimes Against The Person

  • Murder/Intentional Homicide
  • Voluntary Manslaughter
  • Homicide by Reckless Conduct
  • Involuntary Manslaughter w/ Reckless Disregard
  • Attempted Murder
  • Kidnapping Mayhem
  • Assault or Attempted Murder Upon Government Officers
  • Carrying a Concealed Weapon w/ Intent to Use Against the Person of Another
  • Assault w/ a Deadly Weapon
  • Assault w/ Weapon Likely to Produce Bodily Harm
  • Interfering w/ a Law Enforcement Officer w/ Use of Deadly Force
  • Attempting to Obstruct/Impede the Progress of Justice
  • Aggravated Assault Against a Peace Officer

Crimes Against Property

  • Attempted Arson
  • Blackmail/Extortion
  • Forgery
  • Uttering a Forged Instrument/Forged Prescription
  • Making False Statements of Financial Condition
  • Robbers’
  • Embezzlement
  • Larceny/Theft
  • Grand theft
  • Petty Theft
  • Receiving Stolen Property
  • Concealing Assets in Bankruptcy
  • Encumbering Mortgaged Property w/ Intent to Defraud
  • Fraudulently Issuing Check w/ Insufficient Funds
  • Fraudulently Issuing Worthless Check
  • Illegal use of ATM or Credit Card
  • Passing Forged Instrument
  • Attempted Fraud
  • Using Mails to Defraud
  • Making False Statements in Acquisition of Firearm
  • Securities Fraud
  • Welfare Fraud
  • Transporting Stolen Property
  • Obtaining Money by False Pretenses
  • Bribery
  • Malicious Trespass

Sexual and Family Crimes

  • Assault w/ Intent to Commit Abortion
  • Attempted Assault w/ Intent to Commit Carnal Abuse
  • Statutory Rape/Rape
  • Indecent Assault/Sexual Battery
  • Adultery
  • Bigamy
  • Prostitution
  • Sodomy
  • Gross Indecency
  • Contributing to the Delinquency of a Minor/Sexual Acts
  • Taking Indecent Liberties w/ a Child
  • Incest
  • Oral Sexual Perversion

Crimes Against the Government

  • Falsely Issuing a Narcotic Prescription
  • Offering a Bribe
  • Making, Passing, or Possessing Counterfeit Coins
  • Conspiracy to Violate IRS Laws
  • Securities Fraud
  • Counterfeiting
  • Smuggling Merchandise
  • Impersonating Federal Officer
  • False Statements/Firearm
  • False Statements or Entries
  • Harboring a Fugitive
  • Using False Names & Addresses to Violate Postal Laws
  • Uttering/Selling False/Counterfeit Immigration Documents
  • False Statements to Obtain a Passport
  • False Statements in LPR Application
  • Perjury
  • Theft from U.S. Mail
  • Taking Kickbacks
  • Receiving Funds by False Statements
  • Trafficking in Narcotics
  • Failing to Report Income
  • Union Official Unlawfully Accepting a Loan
  • Kickbacks on Government Contracts
  • False Statements/Selective Service
  • Falsely Representing Social Security Number
  • False Statements/Unemployment Benefits

_____________________________
(a) General Criteria . One of the most important basic requirements in naturalization is that of good moral character (GMC). An applicant for naturalization must show that, during the statutorily prescribed period, he or she has been and continues to be a person of good moral character. This period includes the time between the examination and the oath of allegiance. Although the law specifies that the good moral character requirement applies to the statutory period, conduct prior to that period may impact the adjudicator’s dec ision regarding whether or not an applicant meets the requirement. Consideration of the applicant’s conduct and acts outside the statutory period is specifically sanctioned by law if the applicant’s conduct during the statutory period does not reflect reform of character or the earlier conduct is relevant to the applicant’s present moral character. See section 316(e) of the Immigration and Nationality Act (the Act) and 8 CFR 316.10(a)(2) . Thus, when addressing the issue of good moral character, the examination should be broad enough and sufficiently detailed to disclose all relevant adverse conduct or activity. Although the focus should be on conduct during the statutory period, the inquiry should extend to the applicant’s conduct during his or her entire lifetime.

Good moral character should be determined on a case-by-case basis. Section 101(f) of the Act and 8 CFR 316.10 specifically provide that certain criminal conduct precludes a finding of good moral character. Section 101(f) also provides that an applicant may lack good moral character for reasons other than those described in 101(f)(1) – (f)(8). The courts have held that good moral character means character which measures up to the standards of average citizens of the community in which the applicant resides. Any conduct or acts which offend the accepted moral character standards of the community in which the applica nt resides should be considered, without regard to whether the applicant has been arrested or convicted.

(b) The Record and GMC . Although a GMC issue can arise at any time during the naturalization interview, the N-400 contains questions in Part 7 which are keyed directly to the good moral character requirement. See Chapter 74.2(g) of the AFM for a detailed discussion of each question in part 7. Some offenses which may preclude a finding of good moral character such as controlled substance violations, prostitution, smuggling, gambling, and habitual drunkenness which are not mentioned in this section, are discussed in detail in Chapter 74.2(g) of this manual. In general, these questions represent an effort to obtain a complete record of any criminal, unlawful, or questionable activity in which the applicant has ever engaged, regardless of whether such information eventually proves to be material to the moral character issue. The previous version of the N-400 falls short of this objective in relation to the arrest-related question (question 15B of Part 7). For example, many applicants will not mention arrests in which prosecution was declined or resulted in suspended sentences or not guilty verdicts, based on their own interpretation of what the arrest question means. The arrest-related questions on the revised N-400 were expanded in an effort to obtain a more complete arrest record.
 
Even with the expanded arrest-related questions, a mere reading of the question to the applicant does not always mean that accurate and complete testimony will be forthcoming. In each case, you should take into consideration the education level of the applicant and his or her knowledge of the English language. Then, based on these factors, you should rephrase the question in simple language, supplementing it with additional questions to the extent required for complete understanding by the applicant. The em phasis should always be in the direction of over-simplification and explanation, and the scope of the inquiry should always be clearly reflected in the record. Examples of clarifying questions include, “Have you ever been arrested, anywhere in the world?” “Has a police officer ever questioned you?” “Have you ever been handcuffed by a police officer?” “Have you ever been in a police station?” “Have you ever been in court?” “Have you ever been in jail, even if just for one night?” “Have you ever had a crimina l record diverted, expunged, or dismissed?” “Have you ever had a record sealed by a judge and been told that you did not have to reveal the criminal conduct?” An applicant, when confronted with a false statement in a subsequent legal challenge, may claim that he or she did not understand what the officer meant when pertinent questions were asked during the interview.
 
In addition, a well-documented record of proceeding will strengthen the case in the face of a subsequent legal challenge. The record should be clearly and thoroughly documented so that anyone reviewing the file knows exactly what happened at the interview without need for the interviewing officer’s explanation. It is of vital importance that you mark, in red ink, the questions in Part 7 that you ask during the interview. The check or circle marks must be made next to the answers to the questions. In particular, questions (15A) and (15B), relating to criminal history, capture information central to naturalization eligibility and must always be annotated during the interview.
 
Notations of the applicant’s testimony should be made on the N-400 to provide for a more complete record of the examination. Clear and legible notations will have more probative value in subsequent legal proceedings. For example, you may note, “admits to one arrest for petty theft in (year), one year probation only, states no other arrests” on the application of an applicant who admits to the arrest during the interview. Suppose, in fact, this applicant had an additional disqualifying arrest and conviction for assault and battery two months prior to the interview that he failed to disclose. You learned of the second arrest after the interview. You continued the case for expired fingerprints and the second fingerprint check revealed the additional arrest. Although you should call in the applicant to establish why he failed to disclose the arrest, the notations are objective evidence that can be used in a denial on false testimony grounds. A sworn statement should always be taken if the applicant admits to comm itting a crime for which he or she has not been arrested. See Chapter 74.2(g), question (15A) regarding the admission of crimes for which an applicant has not been arrested. See also Chapter 15.6 regarding sworn statements. A sworn statement should also be taken when an applicant provides false testimony. See Chapter 74.2(g), question (12) part (H) , False Testimony .
 
(c) Definition of “Conviction ”. Most of the criminal offenses that preclude a finding of good moral character require a conviction for the disqualifying offense. Sometimes, it is difficult to determine if the outcome of the arrest resulted in a conviction. Various states have provisions for diminishing the effects of a conviction. In some states, adjudication may be “deferred” upon a finding or confession of guilt. Some states have a “diversion” program whereby the case is taken out of the normal criminal proceedings in order to avoid criminal prosecution and so that the person may benefit from a counseling or treatment program.
 
Prior to the passage of the 96 Act (IIRIRA), Matter of Ozkok , 19 I&N Dec. 546 (BIA 1988) defined “conviction” for immigration purposes. That decision set forth a “3- pronged test” for determining convictions:

•the alien pled guilty or nolo contendere or was found guilty of the charges against him or her.
•the judge ordered some form of punishment, penalty, or restraint of liberty to be imposed.
•a judgment of adjudication of guilt may be entered without further proceeding regarding guilt or innocence if the person violated the terms of probation or failed to comply with the requirements of the court order.

In the 96 Act, Congress broadened the scope of the definition of “conviction” by deleting the “3 rd prong”. The definition of “conviction” in Matter of Ozkok is no longer in effect. Section 101(a)(48)(A) of the Act defines “conviction” as:

a judge or jury has found the alien guilty or the alien entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and
the judge has ordered some form of punishment penalty, or restraint on the alien’s liberty to be imposed.
By removing the third prong of Ozkok , Congress intended that even in cases where the adjudication is “deferred”, the original finding or confession of guilt and imposition of punishment is sufficient to establish a “conviction” for immigration purposes.

(1) Effect of Expungement . Post-IIRIRA, expungements do not remove the underlying conviction in many cases. In Matter of Roldan , Int. Dec. #3377 (BIA 1999), the BIA held that a state court action to “expunge, dismiss, cancel, vacate, discharge, or otherwise remove a guilty plea or other record of guilt or conviction by operation of a state rehabilitative statute” has no effect. The regulations already provide that an expungement of a controlled substance violation does not affect the conviction. See 8 CFR 316.10(c)(3)(i) . Also, a second crime involving moral turpitude that is expunged is still considered a conviction. See 8 CFR 316.10 (c)(3)(ii) . Post IIRIRA, other expungements will not be given effect. If you are unsure of the effect of a particular expungement, contact your local district counsel .

The USCIS can in all cases require an applicant to bring in evidence of a conviction, even if the conviction has been expunged. It remains the applicant’s responsibility to obtain his or her record, even if it has been sealed by the court. In some cases the USCIS may file a motion with the court to obtain a copy of the record in states where the applicant cannot obtain it.
(d) Finding of a Lack of Good Moral Character . Finding a lack of good moral character may occur as a result of a statutory bar that precludes the applicant from establishing good moral character, or may occur as a result of a discretionary finding of a lack of good moral character by the adjudicating officer. An applicant may commit a certain act or acts that effectively and permanently bar him or her from naturalizing, in all cases and under all circumstances, or may commit a lesser offense during the statutory period that may conditionally bar him o r her from establishing good moral character. Other less serious acts require the adjudicating officer to take into consideration the nature of the offense(s), the applicant’s overall conduct, and other factors relevant to the definition of good moral character.

(1) Permanent Statutory Bars to Establishing Good Moral Character.

• Murder . If an applicant is convicted of murder at any time, he or she can never establish good moral character. See 8 CFR 316.10(b)(1)(i) . If the applicant has ever been convicted of murder, you should deny the naturalization application and consider whether the case should be referred for removal proceedings.
• Aggravated Felony Committed On or After November 29, 1990 . The definition of “aggravated felony” is in section 101(a)(43) of the Act. It is of vital importance that all interviewing officers are very familiar with what crimes constitute an aggravated felony. Some offenses require a minimum term of imprisonment to qualify as an “aggravated felony”. For example, a theft offense and a crime of violence are aggravated felonies if the term of imprisonment is at least one year. Note that the term of imprisonment is deemed to be the period of confinement ordered by the court regardless of whether the sentence was actually imposed. S ee section 101(a)(48)(b) of the Act. In IIRIRA, Congress expanded the offenses considered aggravated felonies and amended the definition to apply to offenses that occurred at any time.
 
For naturalization purposes, an applicant convicted of an aggravated felony on or after November 29, 1990, regardless of when the crime was committed, is permanently precluded from establishing good moral character. Accordingly, an application for naturalization filed by an individual convicted of an aggravated felony on or after November 29, 1990, must be denied. Moreover, the case should be considered for possible initiation of removal proceedings because an individual convicted of an aggravated felony at anytime is removable. See section 237(a)(2)(A)(iii) of the Act.

(2) Conditional Bars to Establishing Good Moral Character .

(A) Effect of Crime Involving Moral Turpitude (CIMT) Convictions . An applicant who commits and is convicted of or admits to committing one or more crimes involving moral turpitude during the statutory period cannot establish good moral character and is ineligible for naturalization. See 8 CFR 316.10(b)(2)(i) . However, there is an exception to the general rule, which you must consider. See section 212(a)(2)(A)(ii)(II) of the Act. The exception applies if the applicant has committed only one CIMT and the crime is a petty offense. A petty offense is defined as a crime for which the maximum penalty possible for the crime does not exceed imprisonment for one year and , if there is a conviction, the term of imprisonment does not exceed six months, regardless of suspension. Thus, an individual convicted of a CIMT will only qualify for the exception if the two conditions are satisfied. Not only must the sentence imposed have been less than six months, the maximum possible sentence that could have been imposed must not exceed one year.

For example, suppose an applicant commits petty theft in the statutory period. This was his or her only conviction. The applicant was fined and sentenced to one year of probation and community service. The maximum possible sentence for this conviction is 364 days. No term of imprisonment was imposed. The applicant meets both conditions of the petty offense exception and is not precluded from establishing GMC. In the above example, if the applicant had also received a suspended jail sentence of eight months, he or she would not meet the exception because he or she does not meet the second condition of the petty offense exception. The petty offense exception is inapplicable to an alien who has been convicted of or who admits the commission of more than one crime involving moral turpitude, even if only one of the two or more CIMTs was committed during the statutory period. An applicant who has committed more than one petty offense, only one of which is a CIMT, remains eligible for consideration of the petty offense exception.

(B) Definition of a Crime Involving Moral Turpitude (CIMT) . As defined in case law, moral turpitude generally refers to conduct which is inherently base, vile, or depraved, contrary to the accepted rules of morality and the duties owed to persons or society in general. See Matter of Flores , 17 I&N, Dec. 225 (BIA 1980), and cases cited therein. It is defined as conduct which is morally reprehensible and intrinsically wrong, the essence of which is an evil or malicious intent.
In determining whether a crime is one that involves moral turpitude, one must look to the nature of the offense itself. Matter of Esfandiary , 16 I&N Dec. 659 (BIA 1979) . Additionally, whether or not a crime is a CIMT often depends on whether or not a state statute includes one of the elements that introduces moral turpitude. A crime with the same name may be a CIMT in one state but not in another if the state statutes define the crime differently. Conspiracy to commit a crime considered a CIMT is also a CIMT in itself. If you are unsure if a crime involves moral turpitude, contact your local district counsel.

The general categories of crimes which involve moral turpitude contained in this reference guide are as follows:

• Crimes against a person . Crimes against a person involve moral turpitude when criminal intent or recklessness is an element of the offense, or when the crime is defined as morally reprehensible by state statute, e.g. statutory rape. Criminal intent or recklessness may be inferred from the presence of unjustified violence or the use of a dangerous weapon. Aggravated battery is usually, if not always, a CIMT. Assault and battery is usually not a CIMT.
•Crimes against property. Moral turpitude attaches to any crime against property which involves fraud, whether it entails fraud against the government or an individual. Certain crimes against property may require guilty knowledge or an intent to permanently take property. Theft (petty and grand), forgery, and robbery are CIMTs in some states. Possession of Burglary Tools and Loan Sharking are usually not CIMTs.
• Sexual and family crimes. It is difficult to discern a distinguishing set of principles which the courts apply to determine whether a particular offense is a CIMT. In some cases, the presence or absence of violence seems to be an important factor. The presence or absence of criminal intent can be a determining factor. Spousal abuse and child abuse can be CIMTs. For example, the Simple Assault, Domestic charge used by some states generally does not rise to the level of being a CIMT. Indecent Exposure and Abandonment of a Minor Child are also not CIMTs in some states.
• Crimes against the authority of the government . The presence of fraud is the main determining factor as to the presence of moral turpitude. Offering a Bribe to a Government Official and Counterfeiting are CIMTs. Possession of Counterfeit Securities (Without Intent) and Contempt of Court are not CIMTs.

(C) Controlled Substance Violations . Per section 101(f)(3) of the Act and 8 CFR 316.10(b)(2)(iii) , an applicant who has violated any law of the United States, of any state within the United States, or of any foreign country relating to a controlled substance is precluded from establishing good moral character, unless the violation was for a single offense of simple possession of 30 grams or less of marijuana. See Chapter 74.2(g), question 12 parts (A) and (F) for more details regarding these types of violations.

(D) Incarceration . Per section 101(f)(7) of the Act and 8 CFR 316.10(b)(2)(v) , an applicant who has been confined, as a result of conviction, to a penal institution for an aggregate period of 180 days or more cannot establish good moral character, unless the confinement was outside the United States due to a conviction of a purely political offense committed outside the United States. See Chapter 74.2(g), question 15B for more details regarding incarceration.
 
(E) False Testimony . An individual who gives false testimony during the statutory period for the purpose of obtaining any benefit under the Act is precluded from establishing good moral character. See section 101(f)(6) of the Act and 8 CFR 316.10(b)(2)(vi) . The most common occurrence of false testimony is failure to disclose a criminal or other adverse record, but false testimony can occur in any area. False testimony may relate to facts about lawful admission, absences, residence, marital status or infidelity, employment, organizational membership, tax filing information, or any of the multitudes of facts that are developed during a naturalization interview. False testimony, in any area, occurs when the individual deliberately intends to deceive the government while under oath in order to obtain citizenship, regardless of whether the information provided in the false testimony was material, in the sense that if given truthfully it would have made the applicant ineligible for naturalization. For example, an applicant may conceal an arrest that occurred outside or within the statutory period, believing that the disclosure of the arrest would bar his or her naturalization, even though the arrest was minor in nature and would not have an adverse effect upon his o r her eligibility. The applicant’s false testimony, in itself, denotes a lack of good moral character and renders the applicant ineligible for naturalization on the present application and on any future naturalization application until the false testimony date is outside of the statutory period.

There are three elements to false testimony that must exist for a naturalization application to be denied on false testimony grounds. In accordance with the Supreme Court decision in Kungys v. United States, 485 U.S. 759, 780-81 (1988) [ Appendix 74-6 ], the elements of false testimony are:

• Oral statements. “Testimony” for the purposes of section 101(f)(6) of the Act must be oral. False statements in an application, whether or not under oath, do not constitute “testimony”. Falsified documents do not constitute “testimony”. Further, the oral statement must be an affirmative misrepresentation. The Kungys decision makes it clear that there has been no false testimony if facts are merely concealed. Thus, incomplete but otherwise truthful answers will not rise to the level of false testimony. Concealment of the existence of a conviction is not false testimony. Fo r example, an individual has two convictions in the statutory period: one DUI conviction and one conviction for Assault and Battery. In response to the “arrest” question, the applicant testifies, “Yes, I was arrested for DUI and given one year probation.” That testimony is not false. It does conceal the existence of the other conviction, but is not an affirmative misrepresentation and is not, therefore, false testimony. To solve this problem, ALWAYS ask a follow-up question after a known concealment, such a s, “Are there any other arrests?” Assuming the applicant answers “no”, he has now provided false testimony.
• Under Oath . The oral statement must be made under oath in order to constitute false testimony. Oral statements to officers that are not under oath do not constitute false testimony.
• With Subjective Intent to obtain an immigration benefit . An individual must be providing the false testimony in order to obtain an immigration benefit. False testimony provided for any other reason does not preclude an individual from establishing good moral character. Subjective intent is often the most difficult aspect of sustaining a false testimony denial. As the government acknowledges in Kungys v. the United States:
“It is only dishonesty accompanied by this precise intent that Congress found morally unacceptable. Willful misrepresentations made for other reasons, such as embarrassment, fear, or a desire for privacy, were not deemed sufficiently culpable to brand the applicant as someone who lacks good moral character.”

For Illinois applicants read this case: Plewa vs. INS, 77 F. Supp. 2d 905; 1999 U.S. Dist. LEXIS 19652 (1999)

(F) Prostitution . Per section 101(f)(3) of the Act and 8 CFR 316.10(b)(2)(vii), an applicant who has been involved with prostitution or commercialized vice as described in section 212(a)(2)(D) of the Act is precluded from establishing good moral character. Solicitation of a prostitute is not the same as procurement for purposes of prostitution as used in section 101(f)(3) of the Act. See Chapter 74.2(g) question 12 part (D) for additional discussion of prostitution.

(G) Gambling Offenses . Per section 101(f)(4) and section 101(f)(5) of the Act, and paragraphs (2)(x) and (2)(xi) of 8 CFR 316.10 (b) , an applicant who has committed and has been convicted for two or more gambling offenses, or who derives his or her income principally from illegal gambling activities is precluded from establishing good moral character. See Chapter 74.2(g) question 12 part (G) for additional discussion of gambling offenses.

(H) Probation and Parole . The USCIS is precluded from approving an application for naturalization while the applicant is on probation, parole, or under a suspended sentence per 8 CFR 316.10(c)(1) .

An applicant who has satisfactorily completed probation, parole, or a suspended sentence during the statutory period is not precluded from establishing good moral character per se. However, the fact that an applicant was on probation or parole, or under a suspended sentence during the statutory period should be considered in determining whether that applicant can establish good moral character.

(3) Discretionary Finding of a Lack of Good Moral Character. In addition to examining the applicant’s record to determine if there are circumstances that preclude the applicant from establishing good moral character, you must determine if an applicant should be denied as a matter of discretion for a lack of good moral character. Discretionary findings should be made on a case-by-case basis, and should include consideration of all factors relevant to the case. The proper exercise of discretion involves considering these relevant factors as they relate to U.S. law, Federal regulations, precedent decisions and their interpretations, and General Counsel opinions. Political decisions, ideological beliefs, and personal opinions about the strictness or leniency of the law must not be considered while exercising discretion. Although each decision must be made on a case-by-case basis, you should strive for consistency in application of the law while exercising discretion. Chapter 10.15 of this field manual discusses the proper application of discretion during adjudications.

(A) Aggravated Felony Committed Prior to November 29, 1990 . An aggravated felony conviction prior to November 29, 1990, does not preclude a finding of good moral character for purposes of naturalization. See Legal Opinion 96-16 . However, such a conviction would still be relevant to making an overall determination whether the individual has met his or her burden of establishing good moral character during the statutory period. This is especially so in light of Congress’ expansion of the offenses considered aggravated felonies, and the fact that an applicant convicted of an aggravated felony at any time after admission is subject to removal pursuant to section 237(a)(2)(A)(iii) of the Act. It is important to note that the agency may not consider an application for naturalization where removal proceedings are pending against the applicant. See section 318 of the Act.

The fact that proceedings are not initiated and the fact that the applicant was not convicted of an aggravated felony on or after November 29, 1990, does not mean that the individual has met the burden of affirmatively establishing good moral character. See section 101(f) of the Act (“the fact that any person is not within (subsections (1) through (8)) does not preclude a finding that for other reasons such person is or was not of good moral character.”); see also 8 CFR 316.10(a)(2) . Accordingly, you should consider the seriousness of the aggravated felony conviction committed in the past combined with the applicant’s present moral character measured against the standards of the community. If the applicant’s actions during the statutory period do not reflect a reform of character, then the applicant may not be able to demonstrate good moral character during the statutory period pursuant to section 101(f) , and section 316(e) of the Act, and 8 CFR 316.10(a)(2) . In such cases, the application for naturalization should be denied.

For example, an applicant may have been a convicted drug dealer prior to November 29, 1990. His or her conviction(s) prior to November 29, 1990, are aggravated felonies pursuant to section 101(a)(43) of the Act. Moreover, while such conviction(s) render him or her removable pursuant per section 237(a)(2)(A)(iii) , the District Director has chosen to exercise prosecutorial discretion in his or her case, and has not initiated removal proceedings (see the November 17, 2000 INS memorandum titled Exercising Prosecutorial Discretion for guidance). Nonetheless, if the record obtained during the naturalization application process shows a continued pattern of drug-related or other criminal activity, other negative factors such as lack of steady employment, home life, or conduct generally showing a lack of rehabilitation, th e applicant may be found to lack good moral character pursuant to section 101(f) and section 316(e) of the Act, 8 CFR 316.10(a)(2) , and possibly 8 CFR 316.10(b)(3)(iii) .

(B) Additional Grounds for Discretionary Denial . The following denial grounds involve a considerable degree of discretion. They are acts which may preclude a lack of good moral character that are specifically contained in the regulations. The regulations provide that you must consider any extenuating circumstances surrounding the commission of these acts:

• Support of dependents. Unless the applicant can establish extenuating circumstances, willful failure or refusal to support dependents precludes a finding of good moral character. See 8 CFR 316.10(3)(i) and Interpretations 316.1(f)(5) . For a detailed discussion of child support issues related to good moral character, see Chapter 74.2(f)(2) of this field manual.
• Adultery – Formerly section 101(f)(2) of the Act. Adultery as a mandatory bar to establishing good moral character was repealed by the Act of December 29, 1981. A detailed historical discussion on adultery as it relates to good moral character is contained in Interpretations 316.1(g)(2). Per 8 CFR 316.10(3)(ii) , an extramarital affair which tended to destroy an existing marriage shall preclude a finding of good moral character, unless the applicant establishes extenuating circumstances. If the lawful marriage ceased to be viable and intact before the commission of the adultery, such sexual misconduct without cohabitation does not support a finding of lack of good moral character.
• Unlawful Acts . [Revised as of 09-19-2005; AD05-35] The regulations provide for a finding of lack of good moral character based on discretionary grounds. An applicant may lack good moral character if he or she has committed unlawful acts that adversely reflect upon his or her moral character, or was convicted or imprisoned for such acts, unless the applicant can establish extenuating circumstances. See 8 CFR 316.10(b)(3)(iii).

Proper application of this regulation requires the examining officer to make an individualized determination as to whether the applicant’s unlawful acts in fact reflect adversely upon the applicant’s moral character. In order to make such a determination, the examining officer must consider not only the nature and magnitude of the unlawful act but also the circumstances surrounding the conduct, including any mitigating or favorable factors (“extenuating circumstances”).
If the officer determines that the applicant’s unlawful acts do adversely reflect upon the applicant’s moral character, the applicant should be given the opportunity during the interview to establish extenuating circumstances. The applicant’s file should be annotated accordingly. The officer will consider evidence of extenuating circumstances if the evidence directly pertains to the applicant’s commission of the unlawful act.

In order to pertain to the commission of an unlawful act, an extenuating circumstance must precede or be contemporaneous to the commission of the unlawful act during the statutory period of required good moral character (“statutory period”). No conduct or equities (including evidence of reformation or rehabilitation) subsequent to the commission of the unlawful act during the statutory period shall be considered as an extenuating circumstance.

Additionally, any evidence of extenuating circumstances offered by the applicant “must pertain to the reasons showing lack of good moral character, including acts negating good character, not to the consequences of these matters, including the consequence” of ineligibility for naturalization. Jean-Baptiste v. United States , 395 F.3d 1190 (11th Cir.2005), citing Rico v. INS, 262 F.Supp.2d 6 (E.D.N.Y.2003).

This section of the regulation can be used when the unlawful act is not specifically mentioned in paragraph (1) or (2) of 8 CFR 316.10(b) . For example, the commission of a petty theft (a CIMT) in the statutory period should be considered for denial under 8 CFR 316.10(b)(2) , not 8 CFR 316.10(b)(3)(iii) . Conversely, convictions for Disorderly Conduct and basic Driving While Intoxicated do not fall under any category of disqualifying offenses listed in the statute or regulations.

Nevertheless, based on the facts of your particular case, you may decide the applicant’s conduct during the statutory period precludes a finding of good moral character under 8 CFR 316.10(b)(3)(iii) . Discretion must be applied on a case-by-case basis. The statute does not provide that ALL unlawful acts and/or criminal convictions merit a finding of lack of good moral character. Thus, circumstances surrounding the commission of the act are material to your decision. External factors that disclose purpose, motivation, and explanation assume importance.

– Is this the applicant’s only offense?
– Did the unlawful act occur early or late in the statutory period?
– What was the final outcome of the arrest?
– How long was the applicant on probation?
– Did the applicant comply with all conditions of the probation?

Because denial of naturalization under these provisions is not mandatory, you will need to be able to justify your finding in each case.

Nevertheless, based on the facts of your particular case, you may decide the applicant’s conduct during the statutory period precludes a finding of good moral character under 8 CFR 316.10(b)(3)(iii) . Discretion must be applied on a case-by-case basis. The statute does not provide that ALL unlawful acts and/or criminal convictions merit a finding of lack of good moral character. Thus, circumstances surrounding the commission of the act are material to your decision. External factors that disclose purpose, motivation, and explanation assume importance. Is this the applicant’s only offense? Did the unlawful act occur early or late in the statutory period? What was the final outcome of the arrest? How lon g was the applicant on probation? Did the applicant comply with all conditions of the probation? Because denial of naturalization under these provisions is not mandatory, you will need to be able to justify your finding in each case.

(4) Other Factors Affecting Good Moral Character . The application also contains other information in a number of areas which, when developed by proper examination, may have an indirect or less obvious bearing upon the issue of good moral character. Questions regarding the applicant’s occupation, method of lawful entry, tax filing, residences, absences, marital status and children may reveal issues that affect the applicant’s good moral character and may indicate areas that need to be explored further. This is the case even if a denial on the basis of oth er grounds, such as under INA Section 318 for not lawfully obtaining LPR status, is more appropriate than a denial for lacking good moral character.

Fraudulent admission . Examine for evidence of past fraud in the immigration process regarding the applicant’s status and the dependent’s status. The applicant may have obtained admission as a lawful permanent resident through a fraudulent marriage. The applicant may have concealed the marriage and entered as an unmarried son or daughter. You may discover this fact when, reviewing the birth certificates of the applicant’s children, you discover that he or she was married at the time of immigration as a second preference unmarried child of an alien resident (P22/F24). Or, when reviewing the N-400, you see that the applicant is now claiming a spouse that appears to make his or her admission as a permanent resident invalid. If he or she acquired permanent residence through an employment-based petition, he or she may never have met the requirements of the petition. The applicant may have obtained lawful permanent residence through a fraudulent legalization application.

If a fraudulent admission is established, you may deny the natura lization application pursuant to section 318 of the Act because the applicant was not lawfully admitted for permanent residence. Detailed discussions concerning the above are found in Chapter 74.2, question (1) part (C) , Immigration Status .
The following example emphasizes the importance of examining the validity of the applicant’s status at the time of his/her entry into the U.S.
The following is a summary of the United States Court of Appeals, Ninth Circuit’s decision involving an alien that fraudulently entered the United States as an unmarried son of a legal permanent resident alien.

On October 19, 1984, Raymoundo Montilla Bernal immigrated to the United States, representing himself to be the unmarried son of a lawful permanent resident alien. As it turned out, however, Mr. Bernal had previously married Girlie M. Marty, a citizen of the Philippines, in a civil ceremony in the Philippines on November 16, 1980. The ceremony was performed by the Municipal Mayor of Subic. The marriage was attended by the couple’s parents and was witnessed by them. It was also recorded in the municipal regis try of the city of Subic.
On November 20, 1989, Mr. Bernal applied to become a naturalized citizen of the United States. During his naturalization interview conducted on May 24, 1990, Mr. Bernal stated under oath to the INS examiner that he had not been married in either a civil or a religious ceremony before immigrating to the United States in 1984. In his application for naturalization, he noted that he was married to Girlie M. Marty in the United States on June 3, 1986 in a ceremony in the United States.

Mr. Bernal gave false testimony under oath before a naturalization examiner. During Mr. Bernal’s naturalization examination, he was sworn under oath. Under oath, he misled the INS officer about his marital status at the time of his immigration to the United States. The INS officer recorded Mr. Bernal’s pertinent answers on the interview form and annotated the form in red ink. The officer noted that Mr. Bernal “claims no other wives: subject states he was single and not married in either a religious or civil ceremony prior to immigrating to the U.S.A. in 1984.”

On January 13, 1991, the INS issued an order to show cause charging Mr. Bernal with deportability for being within a class of aliens excludable at the time of entry. The INS charged that Mr.
Bernal’s immigrant visa was obtained by fraud or by willful misrepresentation of a material fact concerning his marital status.
In order to be eligible for suspension of deportation, an applicant must be physically present in the United States for seven years prior to the issuance of a notice to appear and must show “good moral character” for the seven-year period. For purposes of the INA, an applicant cannot be regarded as a person of good moral character if “during the period for which good moral character is required to be established,” the applicant gave “false testimony for the purpose of obtaining benefits under this chapter.” 8 U.S.C. § 1101(f)(6).

The IJ found Mr. Bernal had immigrated to the United States by falsely representing himself as an unmarried child of a permanent resident alien. The IJ concluded that Mr. Bernal could not demonstrate good moral character for the required seven years in light of his false testimony before the naturalization examiner in 1990. The IJ denied Mr. Bernal’s application for relief from deportation and for voluntary departure and ordered him deported. Upon appeal by the applicant, the 9 th Circuit Court subsequently upheld the IJ’s decision.

Note that this whole case rested on the adjudicator asking proper questions and making proper annotations on the N-400.
When the adjudicator carefully conducts the examination and properly annotates the N-400, the USCIS has more objective evidence that can be used in any subsequent legal challenge.

For the complete decision please see Bernal v INS , 154 F.3d 1020 (9 th Cir. 1998).

• Legalization or Special Agricultural Worker (SAW) fraud . The legalization regulations at 8 CFR 245a.3(n)(4(ii) and 8 CFR 245a.4(b)(23)(iv) permit information contained in granted legalization files (W16 and W26) to be used at a later date to make a decision on a naturalization application. Naturalization may be denied if the applicant fraudulently gained lawful permanent residence through a legalization application USCIS can establish was fraudulent. You may not use information contained in SAW files (S16 and S26) to make a decision on a naturalization application . The confidentiality clause prohibits you from questioning an applicant regarding any information provided by the applicant relative to his or her SAW application. See section 210(a)(6)(A) of the Act. Further, Matter of Masri , 22 I&N Dec. 1145 (BIA 1999) states the following:
“Information provided in an application to adjust an alien’s status to that of a lawful temporary resident under section 210 of the Act is confidential and prohibited from use in rescission proceedings under section 246 of the Act, or for any purpose other than to make a determination on an application for lawful temporary residence, to terminate such temporary residence, or to prosecute the alien for fraud during the time of application.”
However, the fact that an applicant was a SAW does not preclude you from questioning that applicant about his or her SAW status and from denying the application based on your findings. A direct admission by the applicant during the naturalization examination that he or she never did agricultural work can be used as a basis for denying his or her application. Additionally, indirect evidence that the applicant obtained SAW status fraudulently or did not meet the conditions for obtaining SAW status may be suff icient basis for denial. For example, if a SAW applicant claims her children were born in her country of origin during the qualifying period for SAW eligibility, then the evidence of her children’s birth indicates that she was not physically present in the U.S. during the qualifying period. This evidence is not “information provided in an application to adjust an alien’s status to that of a lawful temporary resident under Section 210,” hence it can be used as a basis for denial. A detailed discussion on thi s topic is found in Chapter 74.2, question (1) part (C) , Immigration Status .
• Future fraud . Examine for the possibility of future fraud regarding additional beneficiaries never before claimed or acknowledged. Sometimes, in anticipation of obtaining citizenship and the ability to quickly sponsor children on I-130 petitions, some applicants claim relatives on their N-400 who are not their children in the belief that this will facilitate the process. If an applicant also orally testifies to this claim in addition to listing relatives who are not actually his or her children, then this constitutes f alse testimony for the purpose of obtaining benefits under the Act (in this case, a benefit for a relative), and is grounds for denial of the naturalization application.
74.1 General Information and Introduction to Form N-400
74.2 Part-by-Part Discussion of Form N-400 Data
74.2(a) Part 1: Information About You
74.2(b) Part 2 of the N-400
74.2(c) Part 3 of the N-400
74.2(d) Part 4 of the N-400
74.2(e) Part 5 of the N-400
74.2(f) Part 6 of the N-400
74.2(g) Part 7 of the N-400
74.2(h) Part 8: Allegiance to the U.S.
74.2(i) Part 9 of the N-400
74.2(j) Part 10 of the N-400
74.2(k) Part 11 of the N-400
74.2(l) Part 12 of the N-400
74.3 Closing Actions

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