BIA Precedent Decisions Volume 26 (2012-2015) Executive Office for Immigration Review

ESQUIVEL-QUINTANA, 26 I&N Dec. 469 (BIA 2015)

ID 3824 (PDF)

(1) For a statutory rape offense that may include a 16- or 17-year-old victim to be categorically “sexual abuse of a minor” under section 101(a)(43)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(A) (2012), the statute must require a meaningful age differential between the victim and the perpetrator. Matter of Rodriguez-Rodriguez, 22 I&N Dec. 991 (BIA 1999), and Matter of V-F-D-, 23 I&N Dec. 859 (BIA 2006), clarified.

(2) The offense of unlawful intercourse with a minor in violation of section 261.5(c) of the California Penal Code, which requires that the minor victim be “more than three years younger” than the perpetrator, categorically constitutes “sexual abuse of a minor” and is therefore an aggravated felony under section 101(a)(43)(A) of the Act.


O. A. HERNANDEZ, 26 I&N Dec. 464 (BIA 2015)

ID 3823 (PDF)

The offense of “deadly conduct” in violation of section 22.05(a) of the Texas Penal Code, which punishes a person who “recklessly engages in conduct that places another in imminent danger of serious bodily injury,” is categorically a crime involving moral turpitude.


VELASQUEZ-CRUZ, 26 I&N Dec. 458 (BIA 2014)

ID 3822 (PDF)

An alien’s departure from the United States following a criminal conviction for illegal entry under section 275(a)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1325(a)(1) (2012), interrupts the 10-year period of continuous physical presence required to establish eligibility for cancellation of removal under section 240A(b)(1) of the Act, 8 U.S.C. § 1229b(b)(1) (2012).


UNITED FARM WORKERS FOUNDATION, 26 I&N Dec. 454 (BIA 2014)

ID 3821 (PDF)

A recognized organization need only apply for its representative’s accreditation at one location, and if approved, that representative may thereafter practice at any branch location of the organization that has been recognized by the Board of Immigration Appeals. Matter of EAC, Inc., 24 I&N Dec. 563 (BIA 2008), modified.


AYUDA, 26 I&N Dec. 449 (BIA 2014)

ID 3820 (PDF)

When assessing an organization’s application for recognition, the Board of Immigration Appeals makes an individualized determination whether the applicant’s fees qualify as “nominal charges” and whether its fee structure is true to the goal of providing competent low-cost legal services. Matter of American Paralegal Academy, Inc., 19 I&N Dec. 386 (BIA 1986), clarified.


ST. FRANCIS CABRINI IMMIGRATION LAW CENTER, 26 I&N Dec. 445 (BIA 2014)

ID 3819 (PDF)

Where an organization is physically colocated or financially associated with, or otherwise attached to, a for-profit venture, the Board of Immigration Appeals will not approve an application for recognition unless it is confident that the organization will not be influenced, either explicitly or implicitly, by the pecuniary interests of the commercial affiliate.


BETT, 26 I&N Dec. 437 (BIA 2014)

ID 3818 (PDF)

A Form I-9 (Employment Eligibility Verification) is admissible in immigration proceedings to support charges of removability against an alien and to determine his or her eligibility for relief from removal.


MUNROE, 26 I&N Dec. 428 (BIA 2014)

ID 3817 (PDF)

For purposes of establishing an alien’s eligibility for a waiver under section 216(c)(4)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1186a(c)(4)(A) (2012), the relevant period for determining whether an alien’s removal would result in extreme hardship is the 2-year period for which the alien was admitted as a conditional permanent resident.


PINA-GALINDO, 26 I&N Dec. 423 (BIA 2014)

ID 3816 (PDF)

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), if he or she falls
within the scope of section 212(a)(2)(B) of the Act, 8 U.S.C. § 1182(a)(2)(B) (2012), as
having been convicted of two or more offenses for which the aggregate sentences
imposed were 5 years or more.


FERREIRA, 26 I&N Dec. 415 (BIA 2014)

ID 3815 (PDF)

Where a State statute on its face covers a controlled substance not included in the Federal controlled substances schedules, there must be a realistic probability that the State would prosecute conduct under the statute that falls outside the generic definition of the removable offense to defeat a charge of removability under the categorical approach.


DOMINGUEZ-RODRIGUEZ, 26 I&N Dec. 408 (BIA 2014)

ID 3814 (PDF)

For purposes of section 237(a)(2)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(B)(i) (2012), the phrase “a single offense involving possession for one’s own use of thirty grams or less of marijuana” calls for a circumstance-specific inquiry into the character of the alien’s unlawful conduct on a single occasion, not a categorical inquiry into the elements of a single statutory crime. Moncrieffe v. Holder, 133 S. Ct. 1678 (2013), distinguished. Matter of Davey, 26 I&N Dec. 37 (BIA 2012), reaffirmed.


PAEK, 26 I&N Dec. 403 (BIA 2014)

ID 3813 (PDF)

An alien who was admitted to the United States at a port of entry as a conditional
permanent resident pursuant to section 216(a) of the Immigration and Nationality Act,
8 U.S.C. § 1186a(a) (2012), is an alien “lawfully admitted for permanent residence” who
is barred from establishing eligibility for a waiver of inadmissibility under section 212(h)
of the Act, 8 U.S.C. § 1182(h) (2012), if he or she was subsequently convicted of an
aggravated felony.


HERNANDEZ, 26 I&N Dec. 397 (BIA 2014)

ID 3812 (PDF)

Malicious vandalism in violation of section 594(a) of the California Penal Code with a gang enhancement under section 186.22(d) of the California Penal Code, which requires that the underlying offense be committed for the benefit of a criminal street gang with the specific intent to promote criminal conduct by gang members, is categorically a crime involving moral turpitude.


A-R-C-G-, 26 I&N Dec. 388 (BIA 2014)

ID 3811 (PDF)

Depending on the facts and evidence in an individual case, “married women in Guatemala who are unable to leave their relationship” can constitute a cognizable particular social group that forms the basis of a claim for asylum or withholding of removal under sections 208(a) and 241(b)(3) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158(a) and 1231(b)(3) (2012).


C-C-I-, 26 I&N Dec. 375 (BIA 2014)

ID 3810 (PDF)

(1) Reopening of removal proceedings for a de novo hearing to consider termination of an alien’s deferral of removal pursuant to 8 C.F.R. § 1208.17(d)(1) (2014), is warranted where the Government presents evidence that was not considered at the previous hearing if it is relevant to the possibility that the alien will be tortured in the country to which removal has been deferred.

(2) The doctrine of collateral estoppel does not prevent an Immigration Judge from reevaluating an alien’s credibility in light of additional evidence presented at a hearing under 8 C.F.R. § 1208.17(d)(3).


L-G-H-, 26 I&N Dec. 365 (BIA 2014)

ID 3809 (PDF)

Sale of a controlled substance in violation of section 893.13(1)(a)(1) of the Florida Statutes, which lacks a mens rea element with respect to the illicit nature of the substance but requires knowledge of its presence and includes an affirmative defense for ignorance of its unlawful nature, is an “illicit trafficking” aggravated felony under section 101(a)(43)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B) (2012).


M-L-M-A-, 26 I&N Dec. 360 (BIA 2014)

ID 3808 (PDF)

(1) Because an application for special rule cancellation of removal under section 240A(b)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(2) (2006), is a continuing one, false testimony given by the respondent more than 3 years prior to the entry of a final administrative order should not be considered in determining whether she is barred from establishing good moral character under section 101(f)(6) of the Act, 8 U.S.C. § 1101(f)(6) (2006). Matter of Garcia, 24 I&N Dec. 179 (BIA 2007), and Matter of Ortega-Cabrera, 23 I&N Dec. 793 (BIA 2005), followed.

(2) Although the respondent was divorced from her abusive husband and subsequently had a long-term relationship with another man, she had not previously been granted special rule cancellation of removal based on her abusive marriage and had significant equities that merited a favorable exercise of discretion. Matter of A-M-, 25 I&N Dec. 66 (BIA 2009), distinguished.


CHAIREZ, 26 I&N Dec. 349 (BIA 2014)

ID 3807 (PDF)

(1) The categorical approach, which requires a focus on the minimum conduct that has a realistic probability of being prosecuted under the statute of conviction, is employed to determine whether the respondent’s conviction for felony discharge of a firearm under section 76-10-508.1 of the Utah Code is for a crime of violence aggravated felony or a firearms offense under the Immigration and Nationality Act. Moncrieffe v. Holder, 133 S. Ct. 1678 (2013), followed.

(2) The Department of Homeland Security did not meet its burden of establishing the respondent’s removability as an alien convicted of an aggravated felony where it did not show that section 76-10-508.1 of the Utah Code was divisible with respect to the mens rea necessary to constitute a crime of violence. Descamps v. United States, 133 S. Ct. 2276 (2013), followed. Matter of Lanferman, 25 I&N Dec. 721 (BIA 2012), withdrawn.

(3) Where the respondent did not demonstrate that he or anyone else was successfully prosecuted for discharging an “antique firearm” under section 76-10-508.1 of the Utah Code, which contains no exception for “antique firearms” as defined by 18 U.S.C. § 921(a)(16) (2012), the statute was not shown to be categorically overbroad relative to section 237(a)(2)(C) of the Act, 8 U.S.C. § 1227(a)(2)(C) (2012). Matter of Mendez-Orellana, 25 I&N Dec. 254 (BIA 2010), clarified.


G-G-S-, 26 I&N Dec. 339 (BIA 2014)

ID 3806 (PDF)

An alien’s mental health as a factor in a criminal act falls within the province of the criminal courts and is not considered in assessing whether the alien was convicted of a “particularly serious crime” for immigration purposes.


P-S-H-, 26 I&N Dec. 329 (BIA 2014)

ID 3805 (PDF)

To terminate a grant of asylum pursuant to 8 C.F.R. § 1208.24 (2013), the Department of Homeland Security must establish, by a preponderance of the evidence, that (1) there was fraud in the alien’s asylum application and (2) the fraud was such that the alien was not eligible for asylum at the time it was granted; however, proof that the alien knew of the fraud in the application is not required in order to satisfy the first criterion. Matter of A-S-J-, 25 I&N Dec. 893 (BIA 2012), clarified.


DUARTE-LUNA and LUNA, 26 I&N Dec. 325 (BIA 2014)

ID 3804 (PDF)

A parent’s continuous physical presence and continuous residence in the United States
cannot be imputed to a child for purposes of establishing the child’s eligibility for
Temporary Protected Status.


E-F-H-L-, 26 I&N Dec. 319 (BIA 2014)

ID 3803 (PDF)

In the ordinary course of removal proceedings, an applicant for asylum or for withholding or deferral of removal is entitled to a hearing on the merits of those applications, including an opportunity to provide oral testimony and other evidence, without first having to establish prima facie eligibility for the requested relief. Matter of Fefe, 20 I&N Dec. 116 (BIA 1989), followed.


JACKSON AND ERANDIO, 26 I&N Dec. 314 (BIA 2014)

ID 3802 (PDF)

Section 402(a)(2) of the Adam Walsh Child Protection and Safety Act of 2006, Pub. L.
No. 109-248, 120 Stat. 587, 622, which bars the approval of a family-based visa petition
filed by a petitioner who has been convicted of a “specified offense against a minor” and
has not shown that he poses “no risk” to the beneficiary, does not have an impermissible
retroactive effect when applied to convictions that occurred before its enactment.


INTROCASO, 26 I&N Dec. 304 (BIA 2014)

ID 3801 (PDF)

(1) In a visa petition case involving the Adam Walsh Child Protection and Safety Act of
2006, Pub. L. No. 109-248, 120 Stat. 587, the petitioner bears the burden of proving
that he has not been convicted of a “specified offense against a minor.”

(2) In assessing whether a petitioner has been convicted of a “specified offense against a
minor,” adjudicators may apply the “circumstance-specific” approach, which permits
an inquiry into the facts and conduct underlying the conviction to determine if it is for
a disqualifying offense.


ACEIJAS-QUIROZ, 26 I&N Dec. 294 (BIA 2014)

ID 3800 (PDF)

In adjudicating cases involving the Adam Walsh Child Protection and Safety Act of
2006, Pub. L. No. 109-248, 120 Stat. 587, the Board of Immigration Appeals lacks
jurisdiction to review a “no risk” determination by the United States Citizenship and
Immigration Services, including the appropriate standard of proof to be applied.


SIERRA, 26 I&N Dec. 288 (BIA 2014)

ID 3799 (PDF)

Under the law of the United States Court of Appeals for the Ninth Circuit, the offense of attempted possession of a stolen vehicle in violation of sections 193.330 and 205.273 of the Nevada Revised Statutes, which requires only a mental state of “reason to believe,” is not categorically an aggravated felony “theft offense (including receipt of stolen property)” under sections 101(a)(43)(G) and (U) of the Immigration and Nationality Act, 8 U.S.C. §§ 1101(a)(43)(G) and (U) (2012).


C-J-H-, 26 I&N Dec. 284 (BIA 2014)

ID 3798 (PDF)

An alien whose status has been adjusted from asylee to lawful permanent resident cannot subsequently readjust status under section 209(b) of the Immigration and Nationality Act, 8 U.S.C. § 1159(b) (2012).


CHAVEZ-ALVAREZ, 26 I&N Dec. 274 (BIA 2014)

ID 3797 (PDF)

(1) Adjustment of status constitutes an “admission” for purposes of determining an alien’s removability under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2012), as an alien convicted of an aggravated felony “at any time after admission.”

(2) An element listed in a specification in the Manual for Courts-Martial (“MCM”) must be pled and proved beyond a reasonable doubt and thus is the functional equivalent of an “element” of a criminal offense for immigration purposes.

(3) The crime of sodomy by force in violation of article 125 of the Uniform Code of Military Justice, 10 U.S.C. § 925 (2000), and the Punitive Articles of the MCM relating to sodomy, is a crime of violence under 18 U.S.C. § 16 (2012) within the definition of an aggravated felony under section 101(a)(43)(F) of the Act, 8 U.S.C. § 1101(a)(43)(F)(2012).


ABDELGHANY, 26 I&N Dec. 254 (BIA 2014)

ID 3796 (PDF)

(1) A lawful permanent resident who has accrued 7 consecutive years of lawful unrelinquished domicile in the United States and who is removable or deportable by virtue of a plea or conviction entered before April 24, 1996, is eligible to apply for discretionary relief under former section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (1994), unless: (1) the applicant is subject to the grounds of inadmissibility under sections 212(a)(3)(A), (B), (C), or (E), or (10)(C) of the Act, 8 U.S.C. §§ 1182(a)(3)(A), (B), (C), or (E), or (10)(C) (2012); or (2) the applicant has served an aggregate term of imprisonment of at least 5 years as a result of one or more aggravated felony convictions entered between November 29, 1990, and April 24, 1996.

(2) A lawful permanent resident who has accrued 7 consecutive years of lawful unrelinquished domicile in the United States and who is removable or deportable by virtue of a plea or conviction entered between April 24, 1996, and April 1, 1997, is eligible to apply for discretionary relief from removal or deportation under former section 212(c) of the Act unless: (1) the applicant’s removal or deportation proceedings commenced on or after April 24, 1996, and the conviction renders the applicant removable or deportable under one or more of the deportability grounds enumerated in section 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, 1277 (as amended); or (2) the applicant is subject to the grounds of inadmissibility under sections 212(a)(3)(A), (B), (C), or (E), or (10)(C) of the Act; or (3) the applicant has served an aggregate term of imprisonment of at least 5 years as a result of one or more aggravated felony convictions entered between November 29, 1990, and April 24, 1996.

(3) A lawful permanent resident who is otherwise eligible for relief under former section 212(c) of the Act may apply for such relief in removal or deportation proceedings without regard to whether the relevant conviction resulted from a plea agreement or a trial and without regard to whether he or she was removable or deportable under the law in effect when the conviction was entered.

M-E-V-G-, 26 I&N Dec. 227 (BIA 2014)

ID 3795 (PDF)

(1) In order to clarify that the “social visibility” element required to establish a cognizable “particular social group” does not mean literal or “ocular” visibility, that element is renamed as “social distinction.” Matter of E-A-G-, 24 I&N Dec. 591 (BIA 2008); Matter of S-E-G-, 24 I&N Dec. 579 (BIA 2008); Matter of A-M-E- & J-G-U-, 24 I&N Dec. 69 (BIA 2007); and Matter of C-A-, 23 I&N Dec. 951 (BIA 2006), clarified.

(2) An applicant for asylum or withholding of removal seeking relief based on “membership in a particular social group” must establish that the group is (1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.

(3) Whether a social group is recognized for asylum purposes is determined by the perception of the society in question, rather than by the perception of the persecutor.


W-G-R-, 26 I&N Dec. 208 (BIA 2014)

ID 3794 (PDF)

(1) In order to clarify that the “social visibility” element required to establish a cognizable “particular social group” does not mean literal or “ocular” visibility, that element is renamed as “social distinction.” Matter of E-A-G-, 24 I&N Dec. 591 (BIA 2008); Matter of S-E-G-, 24 I&N Dec. 579 (BIA 2008); Matter of A-M-E- & J-G-U-, 24 I&N Dec. 69 (BIA 2007); and Matter of C-A-, 23 I&N Dec. 951 (BIA 2006), clarified.

(2) An applicant for asylum or withholding of removal seeking relief based on “membership in a particular social group” must establish that the group is (1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.

(3) An applicant has the burden of demonstrating not only the existence of a cognizable particular social group and his membership in that particular social group, but also a risk of persecution “on account of” his membership in that group.

(4) The respondent did not establish that “former members of the Mara 18 gang in El Salvador who have renounced their gang membership” constitute a “particular social group” or that there is a nexus between the harm he fears and his status as a former gang member.


OPPEDISANO, 26 I&N Dec. 202 (BIA 2013)

ID 3793 (PDF)

The offense of unlawful possession of ammunition by a convicted felon in violation of 18 U.S.C. § 922(g) (2006) is an aggravated felony under section 101(a)(43)(E)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(E)(ii) (2012).


DOUGLAS, 26 I&N Dec. 197 (BIA 2013)

ID 3792 (PDF)

A child who has satisfied the statutory conditions of former section 321(a) of the Immigration and Nationality Act, 8 U.S.C. § 1432(a) (2000), before the age of 18 years has acquired United States citizenship, regardless of whether the naturalized parent acquired legal custody of the child before or after the naturalization. Matter of Baires, 24 I&N Dec. 467 (BIA 2008), followed. Jordon v. Attorney General of U.S., 424 F.3d 320 (3d Cir. 2005), not followed.

PINZON, 26 I&N Dec. 189 (BIA 2013)

ID 3791 (PDF)

(1) An alien who enters the United States by falsely claiming United States citizenship is not deemed to have been inspected by an immigration officer, so the entry is not an “admission” under section 101(a)(13)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(13)(A) (2012).

(2) The offense of knowingly and willfully making any materially false, fictitious, or fraudulent statement to obtain a United States passport in violation of 18 U.S.C. § 1001(a)(2) (2006) is a crime involving moral turpitude.


ESTRADA, 26 I&N Dec. 180 (BIA 2013)

ID 3790 (PDF)

A spouse or child accompanying or following to join a principal grandfathered alien cannot qualify as a derivative grandfathered alien for purposes of section 245(i) of the Immigration and Nationality Act, 8 U.S.C. § 1255(i) (2006), by virtue of a spouse or child relationship that arose after April 30, 2001.


TAVAREZ PERALTA, 26 I&N Dec. 171 (BIA 2013)

ID 3789 (PDF)

(1) An alien convicted of violating 18 U.S.C. § 32(a)(5) (2006), who interfered with a police helicopter pilot by shining a laser light into the pilot’s eyes while he operated the helicopter, is removable under section 237(a)(4)(A)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(4)(A)(ii) (2006), as an alien who has engaged in criminal activity that endangers public safety.

(2) A violation of 18 U.S.C. § 32(a)(5) is not a crime of violence under 18 U.S.C. § 16 (2006).


J-G-, 26 I&N Dec. 161 (BIA 2013)

ID 3788 (PDF)

(1) An alien who is subject to an in absentia removal order need not first rescind the order before seeking reopening of the proceedings to apply for asylum and withholding of removal based on changed country conditions arising in the country of the alien’s nationality or the country to which removal has been ordered.

(2) The numerical limitations on filing a motion to reopen in 8 C.F.R. § 1003.23(b)(1)(2013) are not applicable to an alien seeking reopening to apply for asylum and withholding of removal based on changed country conditions arising in the country of the alien’s nationality or the country to which removal has been ordered.


ZELENIAK, 26 I&N Dec. 158 (BIA 2013)

ID 3787 (PDF)

Section 3 of the Defense of Marriage Act, Pub. L. No. 104 199, 110 Stat. 2419, 2419 (1996), is no longer an impediment to the recognition of lawful same-sex marriages and spouses under the Immigration and Nationality Act if the marriage is valid under the laws of the State where it was celebrated.


FLORES, 26 I&N Dec. 155 (BIA 2013)

ID 3786 (PDF)

The offense of traveling in interstate commerce with the intent to distribute the proceeds of an unlawful drug enterprise in violation of 18 U.S.C. § 1952(a)(1)(A) (2006) is not an “aggravated felony” under section 101(a)(43)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B) (2006), because it is neither a “drug trafficking crime” under 18 U.S.C. § 924(c) (2006) nor “illicit trafficking in a controlled substance.” Matter of Davis, 20 I&N Dec. 536 (BIA 1992), followed.


V-X-, 26 I&N Dec. 147 (BIA 2013)

ID 3785 (PDF)

(1) A grant of asylum is not an “admission” to the United States under section 101(a)(13)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(13)(A)(2006).

(2) When termination of an alien’s asylum status occurs in conjunction with removal proceedings pursuant to 8 C.F.R. § 1208.24 (2013), the Immigration Judge should ordinarily make a threshold determination regarding the termination of asylum status before resolving issues of removability and eligibility for relief from removal.

(3) An adjudication of “youthful trainee” status pursuant to section 762.11 of the Michigan Compiled Laws is a “conviction” under section 101(a)(48)(A) of the Act because such an adjudication does not correspond to a determination of juvenile delinquency under the Federal Juvenile Delinquency Act, 18 U.S.C. §§ 5031-5042 (2006). Matter of Devison, 22 I&N Dec. 1362 (BIA 2000), followed.


E-S-I-, 26 I&N Dec. 136 (BIA 2013)

ID 3784 (PDF)

(1) Where the indicia of a respondent’s incompetency are manifest, the Department of Homeland Security (“DHS”) should serve the notice to appear on three individuals: (1) a person with whom the respondent resides, who, when the respondent is detained in a penal or mental institution, will be someone in a position of demonstrated authority in the institution or his or her delegate and, when the respondent is not detained, will be a responsible party in the household, if available; (2) whenever applicable or possible, a relative, guardian, or person similarly close to the respondent; and (3) in most cases, the respondent.

(2) If the DHS did not properly serve the respondent where indicia of incompetency were either manifest or arose at a master calendar hearing that was held shortly after service of the notice to appear, the Immigration Judge should grant a continuance to give the DHS time to effect proper service.

(3) If indicia of incompetency become manifest at a later point in the proceedings and the Immigration Judge determines that safeguards are needed, he or she should
evaluate the benefit of re-serving the notice to appear in accordance with 8 C.F.R. §§ 103.8(c)(2)(i) and (ii) (2013) as a safeguard.


RIVAS, 26 I&N Dec. 130 (BIA 2013)

ID 3783 (PDF)

A waiver of inadmissibility under section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h) (2006), is not available on a “stand-alone” basis to an alien in removal proceedings without a concurrently filed application for adjustment of status, and a waiver may not be granted nunc pro tunc to avoid the requirement that the alien must establish eligibility for adjustment.


OTIENDE, 26 I&N Dec. 127 (BIA 2013)

ID 3782 (PDF)

Although a visa petition filed by a petitioner for a spouse may be subject to denial under section 204(c) of the Immigration and Nationality Act, 8 U.S.C. § 1154(c) (2006), based on the spouse’s prior marriage, that section does not prevent the approval of a petition filed on behalf of the spouse’s child, which must be considered on its merits to determine whether the child qualifies as the petitioner’s “stepchild” under the Act.


MONTOYA-SILVA, 26 I&N Dec. 123 (BIA 2013)

ID 3781 (PDF)

A parent’s lawful permanent resident status and residence in the United States cannot be imputed to an unemancipated minor for purposes of establishing the child’s eligibility for cancellation of removal under section 240A(a) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(a) (2006). Matter of Escobar, 24 I&N Dec. 231 (BIA 2007); and Matter of Ramirez-Vargas, 24 I&N Dec. 599 (BIA 2008), reaffirmed.


B-R-, 26 I&N Dec. 119 (BIA 2013)

ID 3780 (PDF)

An alien who is a citizen or national of more than one country but has no fear of persecution in one of those countries does not qualify as a “refugee” under section 101(a)(42) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(42) (2006), and is ineligible for asylum.


BUTT, 26 I&N Dec.108 (BIA 2013)

ID 3779 (PDF)

(1) For purposes of establishing eligibility for adjustment of status under section 245(i) of the Immigration and Nationality Act, 8 U.S.C. § 1255(i) (2006), an alien seeking to be"grandfathered" must be the beneficiary of an application for labor certification that was "approvable when filed."

(2) An alien will be presumed to be the beneficiary of a "meritorious in fact" labor certification if the application was "properly filed" and "non-frivolous" and if no apparent bars to approval of the labor certification existed at the time it was filed.


CENTRAL CALIFORNIA LEGAL SERVICES, INC., 26 I&N Dec. 105 (BIA 2013)

ID 3778 (PDF)

A recognized organization’s application for initial accreditation of a proposed representative must show that the individual has recently completed at least one formal training course that was designed to give new practitioners a solid overview of the fundamentals of immigration law and procedure.


ORTEGA-LOPEZ, 26 I&N Dec. 99 (BIA 2013)

ID 3777 (PDF)

The offense of sponsoring or exhibiting an animal in an animal fighting venture in violation of 7U.S.C. § 2156(a)(1) (2006) is categorically a crime involvingmoral turpitude.


G-K-, 26 I&N Dec. 88 (BIA 2013)

ID 3776 (PDF)

(1) The United Nations Convention Against Transnational Organized Crime, Nov. 15, 2000, 2225 U.N.T.S. 209 (“UNTOC”), which is intended to help protect witnesses of transnational organized crime from retaliation and intimidation, does not provide an independent basis for relief from removal in immigration proceedings.

(2) The objectives of the UNTOC are advanced in the United States through existing immigration laws and regulations, including the S, T, and U nonimmigrant visas and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted and opened for signature Dec. 10, 1984, G.A. Res. 39/46. 39 U.N. GAORSupp.No. 51, at 197,U.N.Doc.A/RES/39/708 (1984) (entered into force June 26, 1987; for the United States Apr. 18, 1988).

(3) The Board of Immigration Appeals and the Immigration Judges do not have the authority to rule on the constitutionality of the statutes they administer and therefore lack jurisdiction to address a claimthat the statute barring relief for particularly serious crimes is void for vagueness.


CORTES MEDINA, 26 I&N Dec. 79 (BIA 2013)

ID 3775 (PDF)

The offense of indecent exposure in violation of section 314(1) of the California Penal Code, which includes the element of lewd intent, is categorically a crime involving moral turpitude.


SANCHEZ-LOPEZ, 26 I&N Dec. 71 (BIA 2012)

ID 3774 (PDF)

The offense of stalking in violation of section 646.9 of the California Penal Code is “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) (2006).


VALENZUELA-FELIX, 26 I&N Dec. 53 (BIA 2012)

ID 3773 (PDF)

When theDepartment ofHomeland Security paroles a returning lawful permanent resident for prosecution, it need not have all the evidence to sustain its burden of proving that the alien is an applicant for admission but may ordinarily rely on the results of a subsequent prosecution to meet that burden in later removal proceedings.


M-H-, 26 I&N Dec. 46 (BIA 2012)

ID 3772 (PDF)

The holding in Matter of N-A-M-, 24 I&N Dec. 336 (BIA 2007), that an offense need not be an aggravated felony to be considered a particularly serious crime for purposes of barring asylum or withholding of removal, should be applied to cases within the jurisdiction of the United States Court of Appeals for the Third Circuit.


SANCHEZ-HERBERT, 26 I&N Dec. 43 (BIA 2012)

ID 3771 (PDF)

Where an alien fails to appear for a hearing because he has departed the United States, termination of the pending proceedings is not appropriate if the alien received proper notice of the hearing and is removable as charged.


DAVEY, 26 I&N Dec. 37 (BIA 2012)

ID 3770 (PDF)

(1) For purposes of section 237(a)(2)(B)(i) of the Immigration and Nationality Act, 8U.S.C. § 1227(a)(2)(B)(i) (2006), the phrase “a single offense involving possession for one’s own use of thirty grams or less of marijuana” calls for a circumstance-specific inquiry into the character of the alien’s unlawful conduct on a single occasion, not a categorical inquiry into the elements of a single statutory crime.

(2) An alien convicted of more than one statutory crime may be covered by the exception to deportability for an alien convicted of “a single offense involving possession for one’s own use of thirty grams or less ofmarijuana” if all the alien’s crimeswere closely related to or connected with a single incident in which the alien possessed 30 grams or less of marijuana for his or her own use, provided that none of those crimeswas inherently more serious than simple possession.


M-Z-M-R-, 26 I&N Dec. 28 (BIA 2012)

ID 3769 (PDF)

(1) In assessing an asylum applicant’s ability to internally relocate, an Immigration Judge must determine whether the applicant could avoid future persecution by relocating to another part of the applicant’s country of nationality and whether, under all the circumstances, it would be reasonable to expect the applicant to do so.

(2) For an applicant to be able to internally relocate safely, there must be an area of the country where the circumstances are substantially better than those giving rise to a well-founded fear of persecution on the basis of the original claim.

(3) If an applicant is able to internally relocate, an Immigration Judge should balance the factors identified at 8 C.F.R. § 1208.13(b)(3) (2012) in light of the applicable burden of proof to determine whether it would be reasonable under all the circumstances to expect the applicant to relocate.


LEAL, 26 I&N Dec. 20 (BIA 2012)

ID 3768 (PDF)

The offense of “recklessly endangering another person with a substantial risk of imminent death” in violation of section 13-1201(A) of the Arizona Revised Statutes is categorically a crime involving moral turpitude under the definition in Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008), even though Arizona law defines recklessness to encompass a subjective ignorance of risk resulting from voluntary intoxication.


Y-N-P-, 26 I&N Dec. 10 (BIA 2012)

ID 3767 (PDF)

An applicant for special rule cancellation of removal under section 240A(b)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(2) (2006), cannot utilize a waiver of inadmissibility under section 212(h) of the Act, 8 U.S.C. § 1182(h) (2006), to overcome the section 240A(b)(2)(A)(iv) bar resulting from inadmissibility under section 212(a)(2).


E-A-, 26 I&N Dec. 1 (BIA 2012)

ID 3766 (PDF)

(1) In assessing whether there are serious reasons for believing that an applicant for asylum or withholding of removal has committed a serious nonpolitical crime, an Immigration Judge should balance the seriousness of the criminal acts against the political aspect of the conduct to determine whether the criminal nature of the acts outweighs their political character.

(2) When considered together, the applicant’s actions as a member of a group that burned passenger buses and cars, threwstones, and disrupted the economic activity of merchants in the market, while pretending to be from the opposition party, reached the level of serious criminal conduct that, when weighed against its political nature, constituted a serious nonpolitical crime.



BIA Precedent Decisions Volume 26 (2012-2014) Executive Office for Immigration Review

Posted in 26 I&N Dec. 415 (BIA 2014), BIA, BIA Precedent Decisions, BIA Precedent Decisions Volume 26, Board of Immigration Appeals, Executive Office for Immigration Review | Tagged | Leave a comment

CA7 holds Wisconsin conviction for “knowingly” fleeing or attempt to elude an officer after receiving an officer’s signal is a CIMT

Cano, a citizen of Mexico, entered the U.S. without authorization in
2002. He pled guilty in Wisconsin state court in 2011 to operating a
vehicle to flee or elude a police officer. About a year later, the
Department of Homeland Security served him with a Notice to Appear and
charged him with inadmissibility as a person present without being
admitted or paroled and as an alien convicted of a crime involving moral
turpitude. Cano conceded removability. He later sought reconsideration
of the immigration judge’s determination that he is removable as an
alien convicted of a crime involving moral turpitude, and he requested
cancellation of removal under 8 U.S.C. 1229b(b). The immigration judge
concluded that the Wisconsin conviction was for a crime involving moral
turpitude, so Cano was not eligible for cancellation of removal. The
Board of Immigration Appeals affirmed. The Seventh Circuit denied
review. Citing the statute’s requirement that to be convicted a person
must “knowingly” flee or attempt to elude an officer after receiving an
officer’s signal, the court found the Board’s determination reasonable.
Knowingly fleeing or attempting to elude an officer is an act wrong in
itself and therefore a crime involving moral turpitude.
Wis. Stat. § 346.04 (2014)

346.04. Obedience to traffic officers, signs and signals; fleeing from
officer.

(1) No person shall fail or refuse to comply with any lawful order,
signal or direction of a traffic officer.

(2) No operator of a vehicle shall disobey the instructions of any
official traffic sign or signal unless otherwise directed by a traffic
officer.

(2t) No operator of a vehicle, after having received a visible or
audible signal to stop his or her vehicle from a traffic officer or
marked police vehicle, shall knowingly resist the traffic officer by
failing to stop his or her vehicle as promptly as safety reasonably
permits.

(3) No operator of a vehicle, after having received a visual or audible
signal from a traffic officer, or marked police vehicle, shall knowingly
flee or attempt to elude any traffic officer by willful or wanton
disregard of such signal so as to interfere with or endanger the
operation of the police vehicle, or the traffic officer or other
vehicles or pedestrians, nor shall the operator increase the speed of
the operators vehicle or extinguish the lights of the vehicle in an
attempt to elude or flee.

(4) Subsection (2t) is not an included offense of sub. (3), but a person
may not be convicted of violating both subs. (2t) and (3) for acts
arising out of the same incident or occurrence.

NOTES:

That an officer was driving a vehicle equipped with red lights and siren
was insufficient to prove that vehicle was “marked” under sub. (3).
State v. Oppermann, 156 Wis. 2d 241, 456 N.W.2d 625 (Ct. App. 1990).

The knowledge requirement in sub. (3) applies only to fleeing or
attempting to elude an officer. The statute does not require the
operator of a fleeing vehicle to actually interfere with or endanger
identifiable vehicles or persons; he or she need only drive in a manner
that creates a risk or likelihood of that occurring. State v.
Sterzinger, 2002 WI App 171, 256 Wis. 2d 925, 649 N.W.2d 677, 01-1440.

In sub. (3), “willful” modifies “disregard.” In that context, “willful”
requires a subjective understanding by the defendant that a person known
by the defendant to be a traffic officer has directed the defendant to
take a particular action, and with that understanding, the defendant
chose to act in contravention of the officer’s direction. Either willful
or wanton disregard is sufficient to result in a statutory violation. An
act done “willfully” does not require a showing of personal hate or ill
will. Sub. (3) does not provide a good faith exception to compliance.
State v. Hanson, 2012 WI 4, 338 Wis. 2d 243, 808 N.W.2d 390, 08-2759.

Under both the statute and the pattern jury instructions, there are 3
methods by which the statutory requirements under sub. (3) for knowingly
fleeing or attempting to elude a traffic officer, can be satisfied: 1)
by increasing the speed of the vehicle; 2) by extinguishing the lights
of the vehicle, or 3) by willful or wanton disregard of the signal so as
to interfere with or endanger the officer, vehicles, or pedestrians.
State v. Beamon, 2013 WI 47, 347 Wis. 2d 559, 830 N.W.2d 681, 10-2003.

An unmarked police vehicle displaying red and blue lights is not a
marked vehicle for purposes of sub. (3). Section 346.19, regarding the
requirements on the approach of an emergency vehicle, is the proper
statute to invoke when the proof requirements for fleeing under s.
346.04 are not met. 76 Atty. Gen. 214.

______________________________
Mei v. Ashcroft, 393 F. 3d 737 – Court of Appeals, 7th Circuit 2004 Wei Cong MEI: CA7 held that aggravated fleeing in Illinois is a crime involving moral turpitude for purposes of 8 U.S.C.S. § 1227.

PROCEDURAL POSTURE: Petitioner alien, a native of the People’s Republic of China, sought review of two orders of the United States Board of Immigration Appeals (Board) of Immigration Appeals, one ordering him removed from the United States and the other, which the appellate court ultimately did not discuss, denying his motion to reconsider the first order. The issue was whether aggravated fleeing was a crime involving moral turpitude.

OVERVIEW: The alien was convicted of aggravated fleeing from a police officer in violation of 625 Ill. Comp. Stat. 5/11-204.1(a)(1), the “aggravation” consisting in his fleeing at 21 or more miles per hour above the speed limit. He sped away from an officer at 105 miles per hour in a 55-mile-per-hour zone. The statute that defined the unaggravated version of the offense, 625 Ill. Comp. Stat. 5/11-204(a), explicitly contained a requirement of willfulness. It was unlikely that the aggravated version of the offense dropped the requirement of willfulness. Further, a person who deliberately fled at a high speed from an officer who, the fleer knew, wanted him to stop, was deliberately engaged in seriously wrongful behavior. The alien had to have known that he was greatly increasing the risk of an accident, and he did so as a consequence of his deliberate and improper decision to ignore a lawful order of the police. Accordingly, the appellate court held that aggravated fleeing was indeed a crime involving moral turpitude. Finally, the immigration judge found not credible the alien’s claim that because he was an opponent of China’s “one-child” policy, he faced persecution.

OUTCOME: The appellate court denied the petition to review the order of removal, and the denial of the petition for reconsideration. 393 F.3d 737 (2004)

Wei Cong MEI, Petitioner, v. John ASHCROFT, Attorney General of the United States, Respondent.

No. 03-1961, 03-2595.

United States Court of Appeals, Seventh Circuit.

Argued October 5, 2004.

Decided December 29, 2004.

Before POSNER, KANNE, and WOOD, Circuit Judges.

POSNER, Circuit Judge.

Wei Cong Mei has petitioned us for review of two orders by the Board of Immigration Appeals, one ordering him removed from this country and the other, which need not be discussed separately, denying his motion to reconsider the first order. The principal issue we consider is the meaning of “crimes involving moral turpitude” in immigration law and generally.

In 1998 Mei (who had been admitted to the United States as a lawful permanent resident three years previously) was convicted of unlawful possession of a stolen motor vehicle, in violation of 625 ILCS 5/4-103(a)(1), and sentenced to 30 months’ probation. Three years later he was convicted of aggravated fleeing from a police officer in violation of 625 ILCS 5/11-204.1(a)(1), the “aggravation” consisting in his fleeing at 21 or more miles per hour above the speed limit. He sped away from the officer — who had turned on his siren and flashing lights — at 105 miles per hour in a 55 m.p.h. zone. For this crime Mei was sentenced to a year in prison.

Under the heading of “general crimes,” the immigration law makes removable an alien who “(I) is convicted of a crime involving moral turpitude committed within five years (or 10 years in the case of an alien provided lawful permanent resident status …) after the date of admission, and (II) is convicted of a crime for which a sentence of one year or longer may be imposed.” 8 U.S.C. § 1227(a)(2)(A)(i). Mei clearly qualifies, since he committed a crime that he concedes to involve moral turpitude — unlawful possession of a stolen vehicle — three years after his admission to this country and it is a crime punishable by a sentence of one year or more. The crime is a “Class 2 felony,” 625 ILCS 5/4-103(b), for which the maximum sentence is 7 years. 730 ILCS 5/5-8-1(a)(5).

But, remarkably, given that the immigration judge had ruled that Mei was removable both because aggravated fleeing is a crime involving moral turpitude and because unlawful possession of a motor vehicle also is such a crime — as Mei concedes — the Board, without any reference to the conviction for unlawful possession, pitched its order of removal on the sole ground that aggravated fleeing (which is also punishable by a sentence of a year or more, see 625 ILCS 5/11-204.1(b); 730 ILCS 5/5-8-1(a)(7)) is a crime involving moral turpitude, which Mei denies. Actually it’s unclear whether that was the Board’s sole ground; the Board may have thought that one of its earlier orders in what has become a protracted proceeding had affirmed the immigration judge’s alternative ground for removal. But if so, why did it bother to devote an opinion to the aggravated-fleeing ground? At any rate the government is insistent that it was 739*739 the Board’s sole ground, and so has waived any reliance it might have placed on Mei’s concession that unlawful possession of a motor vehicle is a crime of moral turpitude punishable by a sentence of a year or more in prison. So we can’t avoid deciding whether aggravated fleeing is a crime involving moral turpitude.

But maybe it is not we who have to decide, but the Board. The courts that have addressed the question (our court has not) agree that the Board’s interpretation of the meaning of “crime involving moral turpitude” is entitled to Chevron deference; see INS v. Aguirre-Aguirre, 526 U.S. 415, 425, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999), where the Supreme Court gave Chevron deference to the Board’s interpretation of another term in the immigration statute, “serious nonpolitical crime.” But they are divided over whether the Board’s decision to classify a particular crime as one involving moral turpitude is entitled to such deference. Compare Knapik v. Ashcroft, 384 F.3d 84, 87 (3d Cir.2004); Chanmouny v. Ashcroft, 376 F.3d 810, 811 (8th Cir.2004), and Cabral v. INS, 15 F.3d 193, 195 (1st Cir.1994), holding that it is, with Smalley v. Ashcroft, 354 F.3d 332, 336 (5th Cir.2003), and Rodriguez-Herrera v. INS, 52 F.3d 238 n. 4 (9th Cir.1995), holding the contrary.

Since Congress did not define “crime involving moral turpitude” when it inserted the term in the immigration statute, and the term had no settled meaning at the time (and has none still), it is reasonable to suppose a la Chevron that Congress contemplated that the agency charged with administering the statute would define the term, and specifically would tailor the definition to the policies embodied in the immigration statutes. The Board of Immigration Appeals has done neither. When the Board says that “moral turpitude has been defined as an act which is per se morally reprehensible and intrinsically wrong, or malum in se, so it is the nature of the act itself and not the statutory prohibition of it which renders a crime one of moral turpitude,” In re Ajami, 22 I. & N. Dec. 949, 950 (BIA 1999) (this was also its formula in the present case), or that “moral turpitude refers generally to conduct which is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between [persons or to] society in general,” In re Danesh, 19 I. & N. Dec. 669 (BIA 1988), it is merely parroting the standard criminal-law definition. E.g., Speed v. Scott, 787 So.2d 626, 633 (Miss.2001); Benitez v. Dunevant, 198 Ariz. 90, 7 P.3d 99, 104 (2000); In re Sims, 861 A.2d 1, 3 n. 2 (D.C.App.2004); State v. Miller, 172 Ariz. 294, 836 P.2d 1004, 1005 (1992); People v. Brooks, 3 Cal.App.4th 669, 4 Cal.Rptr.2d 570 (1992); Bane v. State, 73 Md.App. 135, 533 A.2d 309, 314 (1987). It is not deploying any insights that it might have obtained from adjudicating immigration cases.

Since the Board hasn’t done anything to particularize the meaning of “crime involving moral turpitude,” giving Chevron deference to its determination of that meaning has no practical significance. It is only the second issue, the one that divides the courts, that has any significance — the issue of deciding which crimes involve moral turpitude. The resolution of that issue depends on whether the character, the gravity, the moral significance of particular crimes is a topic that Congress, had it thought about the matter, would have wanted the Board to decide rather than the courts. Perhaps so; and if so, the courts that accord Chevron deference to the Board’s classification of particular crimes as involving moral turpitude are on the right track. We need not decide. We shall see that the Board’s determination in this case must be upheld whether great or 740*740 for that matter no deference is given to its judgment.

A curious feature of this case is that both sides have limited their research into the meaning of “moral turpitude” to immigration cases, even though as we have seen the term bears the same meaning in immigration law as in the criminal law and even though there are no immigration cases on point. In fairness, though, most of the recent cases involving the question whether a crime involves moral turpitude are immigration cases; and in federal law at least, the term “moral turpitude” has little significance outside the immigration setting. Although the term is of seventeenth-century origin and has been a ground for excluding aliens since 1891, Brian C. Harms, “Redefining Crimes of Moral Turpitude: A Proposal to Congress,” 15 Geo. Immigr. L.J. 259, 262 (2001), it is largely a stranger to the federal criminal code.

In desperation the government cites an immigration case in which concealing drug money was held to involve moral turpitude, Smalley v. Ashcroft, supra, 354 F.3d at 339, and asks us to analogize it to the present case on the ground that Mei wouldn’t have fled from the police if he hadn’t had something disreputable to conceal. The argument gives new meaning to arguing by analogy. Not only did Mei have nothing to conceal (for, as far as the record reveals, when he was apprehended after the chase no contraband or evidence of crime was found in his car), but that’s often the case when drivers “take off” when they hear the siren and see the flashing lights of a police car trying to overtake them. Had the parties broadened their research to take in cases in which moral turpitude is found (or not found) in criminal as distinct from immigration cases, they would have found a couple of cases more nearly in point than any that either of them cites. Barge v. State, 256 Ga.App. 560, 568 S.E.2d 841, 845 (2002); People v. Dewey, 42 Cal.App.4th 216, 49 Cal.Rptr.2d 537, 541 (1996). But unfortunately the cases point in opposite directions. We are writing on a clean slate.

The natural way to approach the question whether “crimes involving moral turpitude” include aggravated fleeing would be to enumerate the crimes that have been held to involve moral turpitude and those that have been held not to, and see which of the groups aggravated fleeing is closer to; for we have found no reported cases classifying that particular offense as involving or not involving moral turpitude. In general, crimes in the first class are (1) serious crimes, in terms either of the magnitude of the loss that they cause or the indignation that they arouse in the law-abiding public (hence during the Prohibition era Judge Learned Hand refused to declare every violation of a prohibition law a crime involving moral turpitude, United States ex rel. Iorio v. Day, 34 F.2d 920, 921 (2d Cir.1929)), that are (2) deliberate, because a person who deliberately commits a serious crime is regarded as behaving immorally and not merely illegally. Nguyen v. Reno, 211 F.3d 692, 695 (1st Cir.2000); Gonzalez-Alvarado v. INS, 39 F.3d 245, 246 (9th Cir.1994) (per curiam); Grageda v. INS, 12 F.3d 919, 922 (9th Cir.1993). Conspiring to evade federal taxes on “4,675 gallons of alcohol and an undetermined quantity of distilled spirits” was held in Jordan v. De George, 341 U.S. 223, 225 n. 5, 71 S.Ct. 703, 95 L.Ed. 886 (1951), to be a crime involving moral turpitude; large-scale tax fraud is a serious crime and a deliberate one. Crimes in the second class-crimes deemed not to involve moral turpitude — are either very minor crimes that are deliberate or graver crimes committed without a bad intent, most clearly strict-liability crimes. Rodriguez-Herrera v. INS; supra, 52 F.3d at 241; Goldeshtein v. INS, 8 F.3d 645, 647 741*741 (9th Cir.1993); State v. Miller, supra, 836 P.2d at 1005.

Some cases, such as Hamdan v. INS, 98 F.3d 183, 188 (5th Cir.1996), seem to require, for classification as a crime involving moral turpitude, an “evil intent” that goes beyond merely the intent to commit the crime. That is unhelpful. If the crime is a serious one, the deliberate decision to commit it can certainly be regarded as the manifestation of an evil intent. Conversely, if the crime is trivial, even a deliberate intent to commit it will not demonstrate an intent so “evil” as to make the crime one of moral turpitude. Rodriguez-Herrera v. INS, supra, 52 F.3d at 240-41.

The distinction between the two classes of case that we have described corresponds, as noted in Beltran-Tirado v. INS, 213 F.3d 1179, 1184 (9th Cir.2000), and Orlando v. Robinson, 262 F.2d 850, 851 (7th Cir.1959), to the distinction between crimes that are malum in se and crimes that are malum prohibitum. The former refer to crimes that because they violate the society’s basic moral norms are known by everyone to be wrongful, the latter to crimes that are not intuitively known to be wrongful. United States v. Urfer, 287 F.3d 663, 666 (7th Cir.2002); United States v. Beavers, 206 F.3d 706, 710 (6th Cir.2000) (“the lack of intuitive wrongfulness is the hallmark of all laws that are malum prohibitum”). In application, however, the distinction turns out to be paper thin. In South Carolina, for example, simple possession of cocaine is classified as a crime involving moral turpitude, State v. Major, 301 S.C. 181, 391 S.E.2d 235, 237 (1990), but simple possession of marijuana is not. State v. Harvey, 275 S.C. 225, 268 S.E.2d 587, 588 (1980). An alien convicted of making false statements on an employment application and using a fake Social Security number was held in Beltran-Tirado v. INS, supra, not to have committed a crime involving moral turpitude, but the crime of making false statements in a driver’s license application was held in Zaitona v. INS, 9 F.3d 432 (6th Cir.1993), to involve moral turpitude.

The holdings of the Board of Immigration Appeals are consistent with regard to some crimes but “there are a number of miscellaneous cases involving indecent acts, gambling, perjury, and other crimes where the findings of moral turpitude vary widely.” Toutounjian v. INS, 959 F.Supp. 598, 603 (W.D.N.Y.1997). The Board should not be blamed too harshly; courts have equally failed to impart a clear meaning to “moral turpitude.” Time has only confirmed Justice Jackson’s powerful dissent in the De George case, in which he called “moral turpitude” an “undefined and undefinable standard.” 341 U.S. at 235, 71 S.Ct. 703. The term may well have outlived its usefulness. But that is not for us to decide, and let us turn at last to Mei’s offense.

Mei contends that aggravated fleeing in Illinois is a crime of strict liability because the statute does not require that the defendant have fled the police knowingly. And it is of course possible to be speeding and not know that a police officer is in pursuit. This is possible though unlikely even if the police officer has turned on his siren and flashing lights, because some drivers are extremely inattentive, which is a fault but not a deep moral wrong. (The driver might be impaired by age or illness yet not know it.) But the statute that Mei violated defines a subset of fleeing, namely fleeing at 21 or more miles per hour above the speed limit. The statute that defines the unaggravated version of the offense, 625 ILCS 5/11-204(a), explicitly requires a willful failure or refusal to obey a police officer’s order to stop. It would be unlikely for the aggravated version of the offense to have dropped the requirement of willfulness, though not impossible, because the legislature might 742*742 think that the requirement for the aggravated offense that the defendant has exceeded the speed limit by at least 21 m.p.h. was a proxy for willfulness as well as evidence of increased dangerousness warranting a heavier penalty. But however this may be, the requirement of proving willfulness is implicit in the aggravated offense. Ill. Pattern Jury Instructions-Crim. 23.03 (2003).

It seems to us that a person who deliberately flees at a high speed from an officer who, the fleer knows, wants him to stop, thus deliberately flouting lawful authority and endangering the officer, other drivers, passengers, and pedestrians, is deliberately engaged in seriously wrongful behavior, as held in People v. Dewey, supra, albeit under a somewhat differently worded statute. See also Knapik v. Ashcroft, supra. He may not want to endanger anyone, but he has to know that he is greatly increasing the risk of an accident (and for the further reason that a fleeing driver is dividing his attention between the road ahead and his pursuer); and he is doing so as a consequence of his deliberate and improper decision to ignore a lawful order of the police. We conclude, therefore, that aggravated fleeing is indeed a crime involving moral turpitude.

Mei argues that, even if so, he should have been granted asylum because he is an opponent of China’s “one-child” policy and consequently faces persecution if he is sent back to China. The immigration judge, however, seconded by the Board, resolved critical credibility issues against Mei’s claim.

The petition to review the order of removal, and the denial of the petition for reconsideration, are

DENIED.

Posted in 7th Circuit, 7th Circuit Cases- Aliens, CIMT, Crime involving moral turpitude | Leave a comment

Visa Bulletin For January 2015

Visa Bulletin For January 2015

Number 76
Volume IX
Washington, D.C

View as Printer Friendly PDF

A. STATUTORY NUMBERS

1.  This bulletin summarizes the availability of immigrant numbers during January. Consular officers are required to report to the Department of State documentarily qualified applicants for numerically limited visas; U.S. Citizenship and Immigration Services in the Department of Homeland Security reports applicants for adjustment of status.  Allocations were made, to the extent possible, in chronological order of reported priority dates, for demand received by December 9th.  If not all demand could be satisfied, the category or foreign state in which demand was excessive was deemed oversubscribed.  The cut-off date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits.  Only applicants who have a priority date earlier than the cut-off date may be allotted a number.  If it becomes necessary during the monthly allocation process to retrogress a cut-off date, supplemental requests for numbers will be honored only if the priority date falls within the new cut-off date announced in this bulletin. If at any time an annual limit were reached, it would be necessary to immediately make the preference category "unavailable", and no further requests for numbers would be honored.

2.  Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000. Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620. The dependent area limit is set at 2%, or 7,320.

3.  INA Section 203(e) provides that family-sponsored and employment-based preference visas be issued to eligible immigrants in the order in which a petition in behalf of each has been filed.  Section 203(d) provides that spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal.  The visa prorating provisions of Section 202(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country limit.  These provisions apply at present to the following oversubscribed chargeability areas:  CHINA-mainland born, INDIA, MEXICO, and PHILIPPINES.

4.  Section 203(a) of the INA prescribes preference classes for allotment of Family-sponsored immigrant visas as follows:   

FAMILY-SPONSORED PREFERENCES

First: (F1) Unmarried Sons and Daughters of U.S. Citizens:  23,400 plus any numbers not required for fourth preference.

Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents:  114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, plus any unused first preference numbers:

A. (F2A) Spouses and Children of Permanent Residents:  77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;

B. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents:  23% of the overall second preference limitation.

Third: (F3) Married Sons and Daughters of U.S. Citizens:  23,400, plus any numbers not required by first and second preferences.

Fourth: (F4) Brothers and Sisters of Adult U.S. Citizens:  65,000, plus any numbers not required by first three preferences.

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); "C" means current, i.e., numbers are available for all qualified applicants; and "U" means unavailable, i.e., no numbers are available. (NOTE:  Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.) 

Family-Sponsored All Chargeability Areas Except Those Listed CHINA-mainland born INDIA MEXICO PHILIPPINES
F1 08JUL07 08JUL07  08JUL07 15SEP94 22DEC04
F2A 15APR13 15APR13 15APR13 22FEB13 15APR13
F2B 01APR08 01APR08 01APR08 01NOV94  01FEB04
F3 22DEC03 22DEC03 22DEC03 15DEC93 08JUL93
F4 22MAR02 22MAR02 22MAR02 22MAR97 15JUL91

*NOTE:  For January, F2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 22FEB13.  F2A numbers SUBJECT to per-country limit are available to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 22FEB13 and earlier than 15APR13.  (All F2A numbers provided for MEXICO are exempt from the per-country limit; there are no F2A numbers for MEXICO subject to per-country limit.) 

5.  Section 203(b) of the INA prescribes preference classes for allotment of Employment-based immigrant visas as follows: 

EMPLOYMENT-BASED PREFERENCES

First:  Priority Workers:  28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.

Second:  Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability:  28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.      

Third:  Skilled Workers, Professionals, and Other Workers:  28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to "*Other Workers".

Fourth:  Certain Special Immigrants:  7.1% of the worldwide level.

Fifth:  Employment Creation:  7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of Pub. L. 102-395.

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); "C" means current, i.e., numbers are available for all qualified applicants; and "U" means unavailable, i.e., no numbers are available.  (NOTE:  Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.) 

Employment- Based

All Chargeability Areas Except Those Listed

CHINA – mainland born INDIA MEXICO PHILIPPINES
1st C C C C C
2nd C 01FEB10 15FEB05 C C
3rd 01JUN13 01MAR11 15DEC03 01JUN13 01JUN13
Other Workers 01JUN13 22JUL05 15DEC03 01JUN13 01JUN13
4th C C C C C
Certain Religious Workers C C C C C

5th
Targeted
Employment
Areas/
Regional Centers
and Pilot Programs

C C C C C

*Employment Third Preference Other Workers Category:  Section 203(e) of the Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997, as amended by Section 1(e) of Pub. L. 105-139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year.  This reduction is to be made for as long as necessary to offset adjustments under the NACARA program.  Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002.

6.  The Department of State has a recorded message with visa availability information which can be heard at:  (202) 485-7699.  This recording is updated on or about the tenth of each month with information on cut-off dates for the following month.

B.  DIVERSITY IMMIGRANT (DV) CATEGORY FOR THE MONTH 
     OF JANUARY
 

Section 203(c) of the INA provides up to 55,000 immigrant visas each fiscal year to permit additional immigration opportunities for persons from countries with low admissions during the previous five years. The NACARA stipulates that beginning with DV-99, and for as long as necessary, up to 5,000 of the 55,000 annually-allocated diversity visas will be made available for use under the NACARA program. This resulted in reduction of the DV-2015 annual limit to 50,000. DV visas are divided among six geographic regions.  No one country can receive more than seven percent of the available diversity visas in any one year.

For January, immigrant numbers in the DV category are available to qualified DV-2015 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Region All DV Chargeability Areas Except Those Listed Separately
AFRICA 21,000 Except:
Egypt:     9,000
Ethiopia: 12,000
ASIA 3,250

EUROPE 16,000
NORTH AMERICA (BAHAMAS) 3
OCEANIA 700
SOUTH AMERICA,
and the CARIBBEAN
825

Entitlement to immigrant status in the DV category lasts only through the end of the fiscal (visa) year for which the applicant is selected in the lottery.  The year of entitlement for all applicants registered for the DV-2015 program ends as of September 30, 2015.  DV visas may not be issued to DV-2015 applicants after that date.  Similarly, spouses and children accompanying or following to join DV-2015 principals are only entitled to derivative DV status until September 30, 2015.  DV visa availability through the very end of
FY-2015 cannot be taken for granted.  Numbers could be exhausted prior to September 30.

C.  THE DIVERSITY (DV) IMMIGRANT CATEGORY RANK CUT-OFFS 
     WHICH WILL APPLY IN FEBRUARY

For February, immigrant numbers in the DV category are available to qualified DV-2015 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Region All DV Chargeability Areas Except Those Listed Separately  
AFRICA 26,000 Except:
Egypt:      12,000
Ethiopia:   15,500
ASIA 3,825
EUROPE 20,500
NORTH AMERICA (BAHAMAS) 5  
OCEANIA 775  
SOUTH AMERICA,
and the CARIBBEAN
875

D.  ANNUAL REPORT OF IMMIGRANT VISA APPLICANTS IN THE
      FAMILY-SPONSORED AND EMPLOYMENT-BASED PREFERENCES
      REGISTERED AT 
THE NATIONAL VISA CENTER AS OF
      NOVEMBER 1, 2014

The National Visa Center has provided the totals of applicants who are registered in the various numerically-limited immigrant categories for processing at overseas posts. This information is available on the Consular Affairs www.travel.state.gov website. The direct link to the item is: http://travel.state.gov/content/dam/visas/Statistics/Immigrant-statistics/WaitingListItem.pdf.

E.  OBTAINING THE MONTHLY VISA BULLETIN

To be placed on the Department of State’s E-mail subscription list for the “Visa Bulletin”, please send an E-mail to the following E-mail address:

listserv@calist.state.gov

and in the message body type:
Subscribe Visa-Bulletin 
(example: Subscribe Visa-Bulletin)

To be removed from the Department of State’s E-mail subscription list for the “Visa Bulletin”, send an e-mail message to the following E-mail address:

listserv@calist.state.gov

and in the message body type: Signoff Visa-Bulletin

The Department of State also has available a recorded message with visa cut-off dates which can be heard at: (202) 485-7699. The recording is normally updated on/about the 10th of each month with information on cut-off dates for the following month.

Readers may submit questions regarding Visa Bulletin related items by E-mail at the following address:

VISABULLETIN@STATE.GOV

(This address cannot be used to subscribe to the Visa Bulletin.)

Department of State Publication 9514
CA/VO:   December 9, 2014

Posted in Visa Bulletin, Visa Bulletin For January 2015 | Leave a comment

Acción Ejecutiva sobre Inmigración

(English)

El Presidente le solicitó al Secretario Johnson y al Fiscal General Eric Holder llevar a cabo una rigurosa e inclusiva revisión para presentar recomendaciones sobre cómo reformar a través de acción ejecutiva nuestro sistema de inmigración que no funciona. Este proceso de revisión buscó el asesoramiento y las aportaciones de los hombres y mujeres encargados de la aplicación de las políticas públicas, así como de ideas de una amplia gama de grupos de interés y los miembros del Congreso de ambos partidos. Nuestra evaluación identificó las diez áreas siguientes en las que, dentro de los límites de la ley, podríamos tomar acción para aumentar la seguridad en la frontera, concentrarnos en los recursos de aplicación de ley, y asegurar la confiabilidad en nuestro sistema de inmigración.

Acciones Ejecutivas

Fortalecer la Seguridad en la Frontera

DHS implementará una Estrategia de Campaña sobre Frontera Sur y Enfoques (documento en inglés) para alterar fundamentalmente la manera en la que alineamos los recursos hacia la frontera. Este nuevo plan utilizará los recursos de DHS de una manera estratégica y coordinada para proporcionar el cumplimiento efectivo de nuestras leyes e interceptar aquellas personas que intentan entrar ilegalmente a través de tierra, mar y aire. Para lograr esto, DHS ha comisionado tres grupos de trabajo compuesto de varias agencias del orden público. El primero se centrará en la frontera marítima del sur. El segundo estará a cargo de la frontera terrestre del sur y la Costa Oeste. El tercero se encargará de investigaciones para apoyar a los otros dos grupos de trabajo. Además, DHS continuará el aumento de aquellos recursos que redujeron efectivamente la cantidad de menores sin acompañantes que cruzaron la frontera ilegalmente este verano. Esto incluye agentes de Patrulla Fronteriza adicionales, personal de ICE, investigadores criminales, monitores adicionales y trabajar junto con el Departamento de Justicia (DOJ, por sus siglas en inglés) para reordenar expedientes en los tribunales de inmigración, junto con reformas en estos tribunales.

Revisar las Prioridades de Remoción

DHS implementará a través de todo el departamento una nueva política de aplicación de la ley y remoción, que pondrá máxima prioridad en las amenazas a la seguridad nacional, criminales convictos, miembros de pandillas, e inmigrantes ilegales detenidos en la frontera. Colocará como prioridad de segundo nivel a los convictos por delitos menores significativos o múltiples delitos y los que no son aprehendidos en la frontera que entraron o volvieron a entrar a este país de manera ilegal después del 1 de enero de 2014. La tercera prioridad se enfocará en aquellos que no eran delincuentes pero que no han cumplido con una orden final de remoción emitida a partir del 1 de enero de 2014. Bajo esta política revisada, los que entraron ilegalmente antes del 1 de enero de 2014, que nunca desobedecieron una orden de remoción previa, y nunca han sido convictos de crímenes serios, no serán prioridad para deportación. Esta política también proporciona guías claras sobre el ejercicio de la discreción procesal.

Eliminar el Programa de Comunidades Seguras y Reemplazarlo con un Nuevo Programa de Prioridad de Aplicación de Ley

DHS eliminará el programa de Comunidades Seguras y lo reemplazará con el Programa de Prioridad de Aplicación de Ley (PEP, por sus siglas en inglés) que reflejará de cerca y claramente las nuevas prioridades de aplicación de ley de DHS. El programa seguirá apoyándose en los datos biométricos basados en huellas dactilares presentadas durante arrestos hechos por las agencias de orden público estatales y locales e identificará para las agencias federales del orden público los criterios específicos por los cuales una persona está bajo su custodia. La lista de delitos criminales mayores ha sido tomada de la primera y segunda prioridad de nuestras nuevas prioridades de aplicación de ley. Además, formularemos planes para involucrar a los gobiernos estatales y locales sobre las prioridades de aplicación de la ley y mejoraremos la capacidad del Servicio de Inmigración y Control de Aduanas (ICE, por sus siglas en inglés) para arrestar, detener y deportar personas que aparenten ser una amenaza a la seguridad nacional, la seguridad en la frontera o la seguridad pública.

Reforma de Personal para Oficiales de Inmigración y Control de Aduanas de Estados Unidos (ICE)

En relación con estas reformas de aplicación de la ley y deportaciones, apoyaremos una realineación en las series de trabajos y paga por habilidades especiales para oficiales ICE ERO que están involucrados en operaciones de remoción. Estas medidas son esenciales para llevar los salarios de los agentes y oficiales de ICE al nivel del personal de otras agencias del orden público.

Ampliar el Programa de Acción Diferida para los Llegados en la Infancia (DACA)

Ampliaremos la elegibilidad a DACA para incluir una mayor cantidad de niños. La elegibilidad para DACA estaba limitada a aquellos que eran menores de 31 años al 15 de junio de 2012, que habían entrado a Estados Unidos antes del 15 de junio de 2007 y que eran menores de 16 años cuando entraron al país. Ampliaremos la elegibilidad para DACA para incluir todos los inmigrantes sin documentos legales que entraron a Estados Unidos antes de los 16 años de edad, y no tan solo aquellos que nacieron antes del 15 de junio de 1981. También ajustaremos la fecha de entrada al país del 15 de junio de 2007 al 1 de enero de 2010. Esta ayuda, incluyendo la autorización de empleo, ahora tendrá una duración de tres años en lugar de dos años.

Extender la Acción Diferida a Padres de Ciudadanos Estadounidenses y de Residentes Permanentes Legales

DHS ampliará la elegibilidad para la acción diferida a las personas que (i) no son prioridades de remoción bajo nuestra nueva política, (ii) han estado en este país por lo menos 5 años, (iii) tienen hijos que a la fecha de este anuncio son ciudadanos estadounidenses o residentes permanentes legales, y (iv) no presentan otros factores que harían inapropiada la concesión de la acción diferida. Estas personas serán evaluadas para la elegibilidad para acción diferida caso por caso y luego se les permitirá solicitar la autorización de empleo, siempre y cuando paguen una tarifa. Cada persona será sometida a una minuciosa revisión de antecedentes en todas las bases de datos relevante a la seguridad nacional y bases de datos criminales, incluyendo las bases de datos del FBI y DHS. Al tener autorización de empleo, estas personas tendrán que pagar impuestos y contribuir a la economía.

Ampliar las Exenciones Provisionales a Cónyuges e Hijos de Residentes Permanentes Legales

El programa de exención provisional de DHS anunciado en enero 2013 para los cónyuges e hijos de ciudadanos estadounidenses será ampliado para incluir a los cónyuges e hijos de residente permanentes legales, así como los hijos adultos de ciudadanos estadounidenses y residentes permanentes legales. Al mismo tiempo, clarificaremos el estándar de “dificultad extrema” que debe cumplirse para obtener una exención.

Revisar la Reglamentación para Permisos (“parole”)

DHS comenzará a trabajar reglamentación para identificar las condiciones bajo las cuales se les deben otorgar a los empresarios talentosos permisos de entrada a Estados Unidos, sobre la base de que su entrada al país produciría un beneficio económico público significativo. DHS también prestará apoyo a los militares y a sus esfuerzos de reclutamiento trabajando en conjunto con el Departamento de la Defensa para hacer frente a la disponibilidad de permisos para permanencia temporal en el país (“parole-in-place”) y acción diferida a los cónyuges, padres, e hijos de ciudadanos estadounidenses o residentes permanentes legales que interesan alistarse en las Fuerzas Armadas de Estados Unidos. DHS también emitirá guías para aclarar que cuando se le concede a alguien “permiso adelantado” (“advanced parole”) para salir del país – incluidos aquellos que obtengan la acción diferida – dicha persona no será considerada como que salió del país. A los extranjeros sin documentos legales generalmente se les impone una prohibición de entre 3 y 10 años, mediante la cual si salen de los Estados Unidos no pueden regresar al país durante dicho plazo.

Promover el Proceso de Naturalización

Para promover el acceso a la ciudadanía estadounidense, permitiremos el uso de tarjeta de crédito como opción de pago para la tarifa de naturalización, y ampliaremos la concienciación pública sobre la ciudadanía. Es importante tener en cuenta que actualmente la tarifa de naturalización es $680 y sólo puede ser pagada en efectivo, cheque o giro postal. DHS también explorara la viabilidad de ampliar las opciones de exención de tarifas.

Apoyar las Empresas y los Trabajadores Altamente Capacitados

DHS tomará una serie de acciones administrativas para mejorar la forma en que las empresas estadounidenses contratan y retienen los trabajadores extranjeros altamente capacitados y fortalecer ampliar las oportunidades para que los estudiantes obtengan adiestramiento práctico. Por ejemplo, debido a que nuestro sistema de inmigración tiene largos periodos de espera para obtener las Tarjetas Verdes, modificaremos las reglamentaciones existentes y haremos otros cambios administrativos para proporcionar la flexibilidad necesaria para aquellos trabajadores que tienen aprobadas peticiones de visas basadas en el empleo.

Información Adicional

Last Published Date:
November 21, 2014
Posted in Acción Ejecutiva sobre Inmigración, Executive Actions on Immigration | Leave a comment

Fixing Our Broken Immigration System Through Executive Action – Key Facts



The President asked Secretary Johnson and Attorney General Eric Holder to undertake a rigorous and inclusive review to inform recommendations on reforming our broken immigration system through executive action. This review sought the advice and input from the men and women charged with implementing the policies, as well as the ideas of a broad range of stakeholders and Members of Congress from both sides of the aisle. Our assessment identified the following ten areas where we, within the confines of the law, could take action to increase border security, focus enforcement resources, and ensure accountability in our immigration system. (Also see http://www.uscis.gov/immigrationaction)

Executive Actions

Strengthen Border Security

DHS will implement a Southern Border and Approaches Campaign Strategy to fundamentally alter the way in which we marshal resources to the border. This new plan will employ DHS assets in a strategic and coordinated way to provide effective enforcement of our laws and interdict individuals seeking to illegally across land, sea, and air. To accomplish this, DHS is commissioning three task forces of various law enforcement agencies. The first will focus on the southern maritime border. The second will be responsible for the southern land border and the West Coast. The third will focus on investigations to support the other two task forces. In addition, DHS will continue the surge of resources that effectively reduced the number of unaccompanied children crossing the border illegally this summer. This included additional Border Patrol agents, ICE personnel, criminal investigators, additional monitors, and working with DOJ to reorder dockets in immigration courts, along with reforms in these courts.

Revise Removal Priorities

DHS will implement a new department-wide enforcement and removal policy that places top priority on national security threats, convicted felons, gang members, and illegal entrants apprehended at the border; the second-tier priority on those convicted of significant or multiple misdemeanors and those who are not apprehended at the border, but who entered or reentered this country unlawfully after January 1, 2014; and the third priority on those who are non-criminals but who have failed to abide by a final order of removal issued on or after January 1, 2014. Under this revised policy, those who entered illegally prior to January 1, 2014, who never disobeyed a prior order of removal, and were never convicted of a serious offense, will not be priorities for removal. This policy also provides clear guidance on the exercise of prosecutorial discretion.

End Secure Communities and Replace it with New Priority Enforcement Program

DHS will end the Secure Communities program, and replace it with the Priority Enforcement Program (PEP) that will closely and clearly reflect DHS’s new top enforcement priorities. The program will continue to rely on fingerprint-based biometric data submitted during bookings by state and local law enforcement agencies and will identify to law enforcement agencies the specific criteria for which we will seek an individual in their custody. The list of largely criminal offenses is taken from Priorities 1 and 2 of our new enforcement priorities. In addition, we will formulate plans to engage state and local governments on enforcement priorities and will enhance Immigration and Customs Enforcement’s (ICE) ability to arrest, detain, and remove individuals deemed threats to national security, border security, or public safety.

Personnel Reform for ICE Officers

Related to these enforcement and removal reforms, we will support job series realignment and premium ability pay coverage for ICE ERO officers engaged in removal operations. These measures are essential to bringing ICE agents and officers pay in line with other law enforcement personnel.

Expand Deferred Action for Childhood Arrivals (DACA) Program

We will expand eligibility for DACA to encompass a broader class of children. DACA eligibility was limited to those who were under 31 years of age on June 15, 2012, who entered the U.S. before June 15, 2007, and who were under 16 years old when they entered. DACA eligibility will be expanded to cover all undocumented immigrants who entered the U.S. before the age of 16, and not just those born after June 15, 1981. We will also adjust the entry date from June 15, 2007 to January 1, 2010. The relief (including work authorization) will now last for three years rather than two.

Extend Deferred Action to Parents of U.S. Citizens and Lawful Permanent Residents

DHS will extend eligibility for deferred action to individuals who (i) are not removal priorities under our new policy, (ii) have been in this country at least 5 years, (iii) have children who on the date of this announcement are U.S. citizens or lawful permanent residents, and (iv) present no other factors that would make a grant of deferred action inappropriate. These individuals will be assessed for eligibility for deferred action on a case-by-case basis, and then be permitted to apply for work authorization, provided they pay a fee. Each individual will undergo a thorough background check of all relevant national security and criminal databases, including DHS and FBI databases. With work-authorization, these individuals will pay taxes and contribute to the economy.

Expand Provisional Waivers to Spouses and Children of Lawful Permanent Residents

The provisional waiver program DHS announced in January 2013 for undocumented spouses and children of U.S. citizens will be expanded to include the spouses and children of lawful permanent residents, as well as the adult children of U.S. citizens and lawful permanent residents. At the same time, we will further clarify the “extreme hardship” standard that must be met to obtain the waiver.

Revise Parole Rules

DHS will begin rulemaking to identify the conditions under which talented entrepreneurs should be paroled into the United States, on the ground that their entry would yield a significant public economic benefit. DHS will also support the military and its recruitment efforts by working with the Department of Defense to address the availability of parole-in-place and deferred action to spouses, parents, and children of U.S. citizens or lawful permanent residents who seek to enlist in the U.S. Armed Forces. DHS will also issue guidance to clarify that when anyone is given “advance parole” to leave the country – including those who obtain deferred action – they will not be considered to have departed. Undocumented aliens generally trigger a 3- or 10-year bar to returning to the United States when they depart.

Promote the Naturalization Process

To promote access to U.S. citizenship, we will permit the use of credit cards as a payment option for the naturalization fee, and expand citizenship public awareness. It is important to note that the naturalization fee is $680, currently payable only by cash, check or money order. DHS will also explore the feasibility of expanding fee waiver options.

Support High-skilled Business and Workers

DHS will take a number of administrative actions to better enable U.S. businesses to hire and retain highly skilled foreign-born workers and strengthen and expand opportunities for students to gain on-the-job training. For example, because our immigration system suffers from extremely long waits for green cards, we will amend current regulations and make other administrative changes to provide needed flexibility to workers with approved employment-based green card petitions.

Additional Information

Last Published Date:
November 20, 2014


Posted in Deferred Action Process for Young People Who Are Low Enforcement, Deferred Action Process for Young People Who Are Low Enforcement Priorities, Deferred Action Status, Executive Actions on Immigration | Leave a comment