The Administrative Appeals Office (AAO) and Practice Manual

The Administrative Appeals Office (AAO)

Ron Rosenberg is the Chief, Administrative Appeals Office.

Petitioners and applicants for certain categories of immigration benefits may appeal a negative decision to the AAO. We conduct administrative review of those appeals to ensure consistency and accuracy in the interpretation of immigration law and policy. AAO generally issue “non-precedent” decisions, which apply existing law and policy to the facts of a given case. After review by the Attorney General, AAO may also issue “precedent” decisions to provide clear and uniform guidance to adjudicators and the public on the proper interpretation of law and policy.

Under authority that the Secretary of the Department of Homeland Security (DHS) has delegated to USCIS, AAO exercises appellate jurisdiction over approximately 50 different immigration case types. Not every type of denied immigration benefit request may be appealed, and some appeals fall under the jurisdiction of the Board of Immigration Appeals (BIA), part of the U.S. Department of Justice. AAO jurisdiction is listed by both subject matter and form number and includes the following categories:

  • Most employment-based immigrant and nonimmigrant visa petitions (Forms I-129 and I-140);
  • Immigrant petitions by alien entrepreneurs (Form I-526);
  • Applications for Temporary Protected Status (TPS) (Form I-821);
  • Fiancé(e) petitions (Form I-129F);
  • Applications for waiver of ground of inadmissibility (Form I-601);
  • Applications for permission to reapply for admission after deportation (Form I-212);
  • Certain special immigrant visa petitions (Form I-360 except for Form I-360 widower appeals, which are appealable to the BIA);
  • Orphan petitions (Forms I-600 and I-600A);
  • T and U visa applications and petitions (Forms I-914 and 1-918) and the related adjustment of status applications;
  • Applications to preserve residence for naturalization purposes (Form N-470); and
  • Immigration and Customs Enforcement (ICE) determinations that a surety bond has been breached.

AAO also has jurisdiction to review decisions by the USCIS Service Centers to revoke certain previously approved petitions.

How to File

If denying a benefit, USCIS sends a letter to the petitioner or applicant that explains the reason(s) for the denial and, if applicable, how to file a motion or appeal. Most appeals must be filed on Form I-290B with a fee and within 30 days of the initial denial. Some immigration categories have different appeal requirements, so please carefully review the denial letter and the USCIS website for specific and current instructions.

Appeal Process

Initially, the USCIS office that denied the benefit will review the appeal and determine whether to take favorable action and grant the benefit request. If that office does not take favorable action, it will forward the appeal to the AAO for appellate review. The initial field review should be completed within 45 days. The appellate review should be completed within six months of when the AAO receives the appeal.

Non-Precedent Decisions

AAO generally issue non-precedent decisions. These apply existing law and policy to the facts of a given case. A non-precedent decision is binding on the parties involved in the case, but does not create or modify agency guidance or practice. We do not announce new constructions of law nor establish agency policy through non-precedent decisions. As a result, non-precedent decisions do not provide a basis for applying new or alternative interpretations of law or policy.

Please click here to access non-precedent decisions.
Non-Precedent Decisions

The Secretary of DHS may, with the Attorney General’s approval, designate AAO or other DHS decisions to serve as precedents in all future proceedings involving the same issue or issues. These precedent decisions are binding on DHS employees except as modified or overruled by later precedent decisions, statutory changes, or regulatory changes. AAO precedent decisions may announce new legal interpretations or agency policy, or they may reinforce existing law and policy by demonstrating how it applies to a unique set of facts.

Please click here to access AAO precedent decisions, located in the Virtual Law Library of the Department of Justice’s Executive Office for Immigration Review (EOIR).

History of the AAO

The Immigration and Naturalization Service (INS) established the Administrative Appeals Unit (AAU) in 1983 to centralize the review of administrative appeals. Prior to 1983, responsibility for the adjudication of administrative appeals and the issuance of precedent decisions was shared by the INS commissioner, four regional commissioners and three overseas district directors.

The INS later established the Legalization Appeals Unit to adjudicate appeals of denied Legalization and Special Agricultural Worker applications under the Immigration Reform and Control Act of 1986. In 1994, INS consolidated the two units to create the AAO. The Homeland Security Act of 2002 separated the INS into three components within the new DHS, and on March 1, 2003, the AAO became a part of USCIS.

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CA7 denies Iranian CAT claim because the alien had confessed to perjury

Keirkhavash did not depart when her tourist visa lapsed. Two days before the statutory deadline, she sought asylum, contending that Iran would persecute her because she had supported a group (MEK) seeking overthrow of Iran’s government. She claimed she had been expelled from college, denied employment, imprisoned, kicked and denied food while confined, leading her to flee Iran in 1999. The IJ credited this testimony but denied the application because the State Department had classified MEK as a terrorist organization, which made Keirkhavash ineligible under 8 U.S.C. 1158(b)(2)(A)(v). The Board of Immigration Appeals remanded, concluding that she remained eligible for relief under the Convention Against Torture. Before the new hearing, Keirkhavash changed her story, claiming that some unknown person had forged her signature and that she and her father had given testimony consistent with the written statement because her lawyer told them to lie. She now claims that her former husband had accused her of adultery, which could lead to her being stoned in Iran and that Iran would persecute her because of her statement that she had supported MEK, despite the statement’s withdrawal. No corroboration was offered for either ground. The BIA and Seventh Circuit upheld denial of her petitions, characterizing Keirkhavash and her father as confessed liars.

HOLDINGS: Where after her initial application was denied, petitioner alien, a citizen of Iran, disavowed the contentions she had advanced in support of her request for asylum and sought asylum and other relief on entirely new grounds, substantial evidence supported the denial of relief because the IJ properly discredited the alien’s new asylum claims since the alien had confessed to perjury in the first hearing, and she provided no documentary support or other corroboration for her new claims except for a statement from her father, who also had recanted his statements in the alien’s first hearing.

OPINION
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AFROUZ KEIRKHAVASH, Petitioner, v. ERIC H.HOLDER, JR., Attorney General of the United States, Respondent.

No. 14-2063

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

2015 U.S. App. LEXIS 2814

February 12, 2015, Argued
February 23, 2015, Decided

Easterbrook Circuit Judge. Afrouz Keirkhavash, a citizen of Iran, did not depart when her tourist visa lapsed. Two days before the statutory deadline expired, she filed an application for asylum, contending that Iran would persecute her because, beginning in 1990, she had supported the Mo-jahedin-e Khalq (MEK), a group dedicated to the overthrow of Iran’s government. Her sworn statement detailed the steps she had taken to promote MEK’s activities and goals. At a hearing before an immigration judge, Keirkhavash and her father testified under oath that as a supporter of MEK she had been expelled from college, denied employment, arrested, imprisoned, kicked and denied food while confined, and otherwise abused, leading her to flee the country in 1999. The IJ credited this testimony but denied the application for asylum because the State Department had classified MEK as a terrorist organization, which made Keirkhavash ineligible under 8 U.S.C. §1158(b)(2)(A)(v).

The Board of Immigration Appeals agreed with the IJ that Keirkhavash’s support of MEK disqualified her from a grant of asylum but concluded that she remained eligible for relief under the Convention Against Torture (CAT), see 8 C.F.R. §1208.17, and the BIA remanded to the IJ for consideration of that possibility.

Before the IJ held a new hearing, however, Keirkhavash disavowed the contentions she had advanced in support of her request for asylum. With the assistance of a different lawyer, she maintained that some unknown person had forged her signature on her statement in support of the re-quest for asylum—and that, although both she and her father had given oral testimony consistent with the written statement, they had done so only because her lawyer told them to lie. (She filed a charge with state ethics officials; her ex-lawyer responded that Keirkhavash is lying now in accusing him of counseling her to lie then. State officials found the dispute insoluble and closed the disciplinary proceeding.) Keirkhavash now sought both asylum and protection under the CAT on new grounds: First, she maintained that her former husband had accused her of adultery, which could lead to her being stoned in Iran. (She obtained a divorce in the United States, but according to her father her ex-husband does not recognize the decree’s validity.) Second, she con-tended that Iran would persecute her because of her statement that she had supported the MEK, despite the statement’s withdrawal.

This time the IJ did not believe Keirkhavash. Observing that Keirkhavash has confessed to committing perjury, the IJ concluded that the new contentions were equally false. No documentary support or other corroboration was offered for either ground, beyond a statement from her father that her ex-husband knew about the divorce and would cause trouble for Keirkhavash should she return. But her father was as culpable for the bogus MEK story as Keirkhavash herself had been, and without his statement there was no basis for thinking that the ex-husband knew what had happened in the United States. As for the second ground (that Iran persecutes people who it thinks have abetted the MEK, even if they haven’t): The IJ observed that the record does not show what, if anything, Iran knows about Keirkhavash’s initial testimony. The IJ also thought the record devoid of evidence that Iran regularly (or ever) treats as true claims of support for MEK that are repudiated or otherwise shown to be false. And the request for withholding of removal under the Convention Against Torture fared no better, for it too depended on a conclusion that Keirkhavash was at last telling things honestly.

Keirkhavash appealed to the BIA for a second time, and it affirmed. After she filed a petition for judicial review, the Department of Justice consented to a remand so that the Board could explain its thinking more fully. The Board then wrote a supplemental opinion explaining why it thought the IJ’s credibility finding supported by the record. The case is now before us for decision on the merits.

We find the IJ’s decision supported by substantial evidence. The IJ gave a powerful reason for disbelieving Keirkhavash and her father: both are confessed liars who offered no documentary evidence or other corroboration for the revised asylum request. The request depends entirely on the testimony of two people who have admitted committing perjury in order to obtain immigration benefits for Keirkhavash. A person avowedly willing to put self-interest ahead of the legal obligation to tell the truth has no entitlement to be believed when he changes stories after the first implodes. See, e.g., Pavlov v. Holder, 697 F.3d 616, 619 (7th Cir. 2012); Alsagladi v. Gonzales, 450 F.3d 700 (7th Cir. 2006).

Keirkhavash observes that an alien’s (or witness’s) established lies do not require an IJ to disbelieve a revised story. Someone whose deceit is uncovered may decide at last to tell the truth. The formal penalty for perjury during an immigration proceeding is a criminal conviction, not a loss of all opportunities under the immigration laws. A frivolous application for asylum blocks many immigration benefits, 8 U.S.C. §1158(d)(6)—and an application containing material, knowingly false statements is frivolous. See Albu v. Holder, 761 F.3d 817 (7th Cir. 2014); Pavlov, 697 F.3d at 617—18. But it does not foreclose a request for relief under the CAT. 8 C.F.R. §1208.20.

This means that the immigration judge had a choice: to believe the new story, or not, depending on its plausibility and context. The IJ did not exceed his authority in deciding to disbelieve Keirkhavash’s new contentions, which not only were uncorroborated but also came with an apparent new dollop of deceit. Recall that, as part of her new application, Keirkhavash “explained” her written statement as having been composed and signed by someone else, even though at the first hearing she had sworn to its truthfulness. This attempt to disown the application for asylum may have been designed to avoid disqualification under §1158(d)(6), but it is hard to believe that Keirkhavash knew nothing about the written application that she parroted in the hearing. The new, deceitful effort to avoid the effects of her own written statement itself supports a decision by the IJ that Keirkhavash had not mended her mendacious ways.

We reject any argument that an alien can obtain asylum or relief under the CAT by the very act of lying. That would provide a much too convenient route for self-help grants of entitlements to remain in the United States. All an alien would have to do is tell a whopper of a story, accusing a foreign nation of atrocities: If believed, that would produce asylum, and if disbelieved it would produce asylum just be-cause of that nation’s dislike of people who accuse it falsely of misconduct (or whose statements lead the foreign nation to suspect that they may be true, and to act on that basis). Keirkhavash has not cited any decision allowing such a circular process; we could not find one and will not be the first.

After Keirkhavash filed her initial application for asylum, the MEK disavowed resort to violence. In September 2012 it was removed from the State Department’s list of terrorist organizations. If Keirkhavash had stuck to her original story (which the IJ believed), she might have received asylum. We cannot exclude the possibility that her first story was true and her recantation (and second asylum application) false. But whichever story—if either—is the truth, Keirkhavash’s confessed willingness to say whatever is necessary to obtain an immigration benefit has redounded to her detriment. The IJ and BIA have the support of substantial evidence in choosing to accept her recantation but disbelieve the replacement story, so the petition for review is DENIED.

FINAL JUDGEMENT

The petition for review is DENIED, with costs, in accordance with the decision of this court entered on this date.

Posted in 7th Circuit, 7th Circuit Cases- Aliens, Convention Against Torture | Leave a comment

United States Department of State Telephone Directory

Newly released (02/20/2015) United States Department of State Telephone Directory for overseas posts.

United States Department of State Telephone
Directory (PDF)
-Key Officers of Foreign Service Posts 2/20/2015

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

CROSS, 26 I&N Dec. 485 (BIA 2015)

ID 3826 (PDF)

A person born out of wedlock may qualify as a legitimated “child” of his or her biological parents under section 101(c)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1101(c)(1) (2012), for purposes of citizenship if he or she was born in a country or State that has eliminated all legal distinctions between children based on the marital status of their parents or had a residence or domicile in such a country or State (including a State within the United States), if otherwise eligible. Matter of Hines, 24 I&N Dec. 544 (BIA 2008), and Matter of Rowe, 23 I&N Dec. 962 (BIA 2006), overruled in part. Matter of Clahar, 18 I&N Dec. 1 (BIA 1981), and Matter of Goorahoo, 20 I&N Dec. 782 (BIA 1994), reaffirmed.


CHAIREZ, 26 I&N Dec. 478 (BIA 2015)

ID 3825 (PDF)

(1) With respect to aggravated felony convictions, Immigration Judges must follow the law of the circuit court of appeals in whose jurisdiction they sit in evaluating issues of divisibility, so the interpretation of Descamps reflected in Matter of Chairez, 26 I&N Dec. 349 (BIA 2014), applies only insofar as there is no controlling authority to the contrary in the relevant circuit.

(2) Because the United States Court of Appeals for the Tenth Circuit has taken an approach to divisibility different from that adopted in Matter of Chairez, the law of the Tenth Circuit must be followed in that circuit.


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.

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