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


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

ID 3905 (PDF)

An alien “has previously been admitted to the United States as an alien lawfully admitted for permanent residence” within the meaning of section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h) (2012), if he or she was inspected, admitted, and physically entered the country as a lawful permanent resident at any time in the past, even if such admission was not the alien’s most recent acquisition of lawful permanent resident status.

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

ID 3834 (PDF)

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 Matter of E.W. Rodriguez, 25 I&N Dec. 784 (BIA 2012), and Matter of Koljenovic, 25 I&N Dec. 219 (BIA 2010), withdrawn.


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

No. 12-2372

DIMITRIOS PAPAZOGLOU, Petitioner,

v.

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

Respondent.

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

ARGUED NOVEMBER 30, 2012 — DECIDED AUGUST 6, 2013

Before BAUER, ROVNER, and WILLIAMS, Circuit Judges.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

ID 3906 (PDF)

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


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

ID 3905 (PDF)

An alien “has previously been admitted to the United States as an alien lawfully admitted for permanent residence” within the meaning of section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h) (2012), if he or she was inspected, admitted, and physically entered the country as a lawful permanent resident at any time in the past, even if such admission was not the alien’s most recent acquisition of lawful permanent resident status.

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

ID 3904 (PDF)

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


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

ID 3903 (PDF)

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


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

ID 3902 (PDF)

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

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


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

ID 3901 (PDF)

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

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

ID 3900 (PDF)

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

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

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

ID 3899 (PDF)

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

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

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

ID 3898 (PDF)

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

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

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

ID 3897 (PDF)

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

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

ID 3896 (PDF)

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

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

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

ID 3895 (PDF)

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


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

ID 3894 (PDF)

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


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

ID 3893 (PDF)

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

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


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

ID 3892 (PDF)

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


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

ID 3891 (PDF)

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


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

ID 3890 (PDF)

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


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

ID 3889 (PDF)

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

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


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

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


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

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

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


Posted in BIA, BIA Precedent Decisions, BIA Precedent Decisions Volume 25, BIA Precedent Decisions Volume 26, BIA Precedent Decisions Volume 27 (2017-) Executive Office for Immigration Review, BIA PRECEDENT TABLE, BIA Precedent Table-1995 to Present, Board of Immigration Appeals, EOIR, Executive Office for Immigration Review | Leave a comment

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

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

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

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

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

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

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

Crimes Against The Person

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

Crimes Against Property

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

Sexual and Family Crimes

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

Crimes Against the Government

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

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

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

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

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

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

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

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

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

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

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

(2) Conditional Bars to Establishing Good Moral Character .

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Posted in Good Moral Character, Good Moral Character (GMC), Naturalization, Naturalization Interview Process, Naturalization N-400 | Leave a comment

CA7 affirms BIA finding that native of El Salvador did not meet burden of demonstrating a nexus between alleged persecution and his proposed social groups of wealthy deportees or gang resisters.

BIA did not err in affirming IJ’s denial of alien’s (citizen of El Salvador) asylum and withholding of removal applications, alleging that gang in El Salvador subjected him to past persecution on account of his membership in social groups of young males who opposed gangs on moral or religious grounds or individuals who are perceived as wealthy because of their return from U.S. Alien failed to show that gangs specifically targeted him because of his membership in either social group, since: (1) while gang likely targeted alien because of perception of alien’s wealth, there was no evidence that gang targeted him because of his return from U.S; (2) wealth alone or wealth along with deportation from U.S. are not characteristics that are cognizable as protected social groups; and (3) alien failed to show that gang was aware of his moral or religious objection to gangs. Also, gang’s infliction of series of minor injuries while extorting money from alien was insufficient to establish past persecution, especially where gang left alien alone after alien gave gang small payments. Too, alien provided only generalized and speculative fear of harm to support his claim of future persecution, where gang had not delivered on any threats to alien’s family and had not asked alien to join gang.

Orellana‐Arias, a citizen of El Salvador, was detained as he entered the United States in 2013. He had previously entered illegally and been removed in 2001 and had entered and worked undetected from 2007-2011. Orellana‐Arias testified that after returning to El Salvador, he was assaulted and extorted by gang members and that the police were unable or unwilling to protect him from future harm by gang members. While Orellana‐Arias was in custody in the U.S., gang members twice approached his wife, asking his whereabouts. An asylum officer determined that Orellana‐Arias did not have a reasonable fear of persecution or torture but an immigration judge disagreed. Orellana‐Arias sought withholding of removal and Convention Against Torture protection. An IJ found that Orellana‐Arias credible, but that he had not demonstrated that the mistreatment rose to the level of past persecution as opposed to mere harassment; that the risk of future mistreatment was too speculative to constitute a clear probability of future persecution; and that Orellana‐Arias did not establish a nexus between any protected ground and alleged harm. The BIA and Seventh Circuit agreed. Orellana‐Arias did not meet his burden of demonstrating a nexus between the alleged persecution and his proposed social groups of wealthy deportees or gang resisters. Orellana-Arias v. Sessions, No. 16-1874 (7th Cir. 2017)

__________________________________
JOSE ORELLANA-ARIAS, Petitioner,
v.
JEFFERSON B. SESSIONS III, Attorney General of the United States, Respondent.
No. 16-1874.

United States Court of Appeals, Seventh Circuit.
Argued November 10, 2016.
Decided July 25, 2017.

Maria T. Baldini-Potermin, for Petitioner.

Jane T. Schaffner, John Frederick Stanton, OIL, for Respondent.

Petition for Review of an Order of the Board of Immigration Appeals, No. A078-678-415.

Before RIPPLE, MANION, and ROVNER, Circuit Judges.

ROVNER, Circuit Judge.

Jose Orellana-Arias is a native and citizen of El Salvador. Immigration officials detained him and took him into custody as he entered the United States near McAllen, Texas in April 2013. This was not his first time entering the United States without being admitted or paroled. In spring 2001, he came to the United States, but border patrol agents stopped him, and after the Department of Homeland Security prevailed in immigration proceedings, he was removed to El Salvador on October 3, 2001. In 2007, he returned to the United States again to find work to allow him to provide for his family in El Salvador and this time was able to stay and work undetected from 2007 through December 2011, when he returned to his family.

Orellana-Arias testified that while he was in the United States, his wife informed him that gang activity and crime had increased significantly during his time away. Approximately one month after returning to El Salvador, on his way home from work, three masked men confronted him. Orellana-Arias recognized the men from their voices and knew that they were neighborhood members (along with a leader) of the gang MS-13 who were believed to be behind the deaths of people in the neighborhood. The men threw him to the ground, kicked him, tried unsuccessfully to steal his shoes, and successfully stole his phone and money. One suggested that they kill Orellana-Arias, but he pleaded for his life and managed to run away. During the incident, Orellana-Arias twisted his ankle but did not receive any medical care as a result of the attack other than taking pills he received from a pharmacy.

Two days later the same men approached Orellana-Arias as he bathed in a pond and suggested that he contribute $5,000 to the MS-13 gang. When Orellana-Arias stated he did not have the money, the gang members insisted that he must, as he had just returned from the United States. They threatened that he would “disappear” if he did not comply. Orellana-Arias negotiated with the men and, in the end, paid them $500. Following this incident, the gang members extorted money from Orellana-Arias on a number of occasions, and each time they demanded money, he gave them whatever he had on hand—anywhere from $1-$5. On one occasion they stopped Orellana-Arias to remind him to call a number they had given him to report any sightings of police officers.

To escape the extortion and fear, in April 2012, Orellana-Arias fled back to the United States where he was arrested at the border and detained for 45 days before being removed once again. Back in his home town, the demands by MS-13 gang members continued. Gang members commanded Orellana-Arias to call them whenever he saw the police and they entered a phone number into his cell phone such that he would also be suspected of being in the gang if stopped by the police. Orellana-Arias testified that he refused to comply with the demand to act as a lookout if he saw the police, as it conflicted with his morals. He also did not report his encounters to the police, believing from seeing gang members go free after arrest, that the police would be of no help.

In October 2012, three men in civilian clothes shot at Orellana-Arias as he tried to escape them. They later identified themselves as police officers and stated that they were looking for two of the gang members who had once assaulted Orellana-Arias. They handcuffed Orellana-Arias and reviewed the numbers in his cell phone, but took no action against him. Orellana-Arias noticed that the men the police were looking for were never arrested, confirming his belief that the police were unable or unwilling to protect him from future harm by gang members.

In February 2013, these same gang members, along with two others, again approached Orellana-Arias, asked him if he had seen the police, and again gave him a number to call should he see the police in the future. That same month, Orellana-Arias heard that members of MS-13 killed two bus drivers who drove a route through his town after they failed to pay demanded extortion fees. These events prompted Orellana-Arias to flee the escalating violence and gang activity that he perceived as infecting the entire country. He arrived in McAllen, Texas in April 2013, where immigration officials took him into custody. While Orellana-Arias was in custody, gang members twice approached his wife—once at home and once on the street—asking his whereabouts. The gangs did not contact his wife thereafter and none of Orellana-Arias’s family members have been physically harmed by the gangs.

After being detained following his April 2013 reentry, Orellana-Arias requested a reasonable fear interview with the asylum office in Chicago. The asylum officer determined that Orellana-Arias did not have a reasonable fear of persecution or torture. Yet upon Orellana-Arias’s request, the case was transferred to an immigration judge who found that Orellana-Arias did indeed have a reasonable fear of returning to El Salvador and vacated the asylum officer’s underlying decision, thus allowing Orellana-Arias to apply for withholding of removal and Convention Against Torture protection.

On October 16, 2013, Orellana-Arias appeared before a different immigration judge by televideo. He testified regarding his interactions with and fear of gang members in El Salvador, including the facts we have recounted above. He testified that he feared that he would be kidnapped and killed in El Salvador, that he has religious and moral objections to gangs, and that he did not believe there was any other part of El Salvador to which he could relocate safely. Along with his testimony, the immigration judge considered affidavits of family members and experts, and many articles on gang activity in El Salvador. The immigration judge denied the applications and Orellana-Arias waived his right to appeal.

Shortly thereafter, Orellana-Arias filed an unopposed motion to reconsider, stating that he wished to withdraw his waiver of appeal. The Board, granting the motion, remanded the case back to the immigration judge for preparation of a written decision. In her September 4, 2014 decision, the immigration judge found that Orellana-Arias was credible, but that he had not demonstrated that the mistreatment he suffered previously in El Salvador rose to the level of past persecution as opposed to mere harassment, and that the risk of future mistreatment was too speculative to constitute a clear probability of future persecution. Finally, the immigration judge determined that Orellana-Arias did not establish a nexus between any protected ground and alleged harm. The proposed group of “young Salvadoran males who oppose gang and other criminal activities due to their religious and/or moral beliefs,” the immigration judge found, was not “sufficiently particular” because the core attribute is opposition to gangs, likely a common attribute held by every Salvadoran citizen who is not a member of a gang. R. 136. She then ruled that even if the group was cognizable, Orellana-Arias offered no evidence that the gang had any knowledge of his beliefs and opposition to the gang. Similarly, she held that the social group of “Salvadorans who have lived in the United States for many years and who are perceived by drug cartels, criminal organizations, gangs, and corrupt government officials to have money upon their return to El Salvador” was likewise not sufficiently particular to be cognizable. Id. The judge found that the record evidence did not support Orellana-Arias’s assertion that he faced a more particularized risk than others because he lived in the United States. Finally, the immigration judge found that Orellana-Arias had not met his burden for CAT protection—that is, he did not experience past torture, and any fear of future torture was too speculative to warrant protection under CAT.

Following the immigration judge’s decision, Orellana-Arias’s case wound through a series of procedural snafus that we relegate to a footnote for the sake of efficiency.[1] Once back on track, on March 24, 2016, the Board issued a decision denying Orellana-Arias’s appeal. The Board’s decision concluded that Orellana-Arias had not established past persecution or that he faced a clear probability of future persecution on account of his membership in a social group of young Salvadoran males who oppose gang membership and other criminal activities due to their religion and/or moral beliefs. The Board concluded that the group has not been shown to be cohesive and socially distinct in El Salvador, and that it was too loosely defined to meet the requirement of particularity because it is overbroad. The Board also concluded that Orellana-Arias had not established past persecution or that he faced a clear probability of future persecution on account of his membership in a social group of individuals who are perceived by drug cartels, criminal organizations, gangs, and corrupt government officials to have money because they are returning from the United States. The Board again concluded that it was not sufficiently distinct or defined with sufficient particularity. Finally, the Board concluded that Orellana-Arias had failed to meet the nexus requirement, that is, that he was targeted on account of his membership in either of these two social groups. The Board pointed out that “gangs and other criminal elements target anyone who could provide them with money, goods or services.” R. 4.

Moving on to the CAT appeal, the Board concluded, in one sentence, that Orellana-Arias “did not meet his burden of proof to establish that it is more likely than not that he will be tortured by or with the instigation of or with the consent or acquiescence (including willful blindness) of a public official or other person acting in an official capacity in El Salvador.” Id.

Orellana-Arias objects to the conclusions of the immigration judge and Board, asserting that he did indeed demonstrate past persecution, that both of his proposed social groups are cognizable under the Immigration and Nationality Act, that he was targeted because of his membership in those groups, that he established a clear probability of future persecution, and that he warranted protection under the Convention Against Torture. We review the decision of the immigration judge as supplanted by the Board, reviewing the legal conclusions de novo and the factual conclusions to determine whether they are supported by substantial evidence. Dominguez-Pulido v. Lynch, 821 F.3d 837, 841 (7th Cir. 2016). The standard of review is a deferential one in which we “uphold the Board’s determination if it is supported by substantial evidence—that is, reasonable, substantial, and probative evidence on the record considered as a whole.” Cece v. Holder, 733 F.3d 662, 669 (7th Cir. 2013) (en banc). We overturn the Board’s decision only if the record compels a different result. Tapiero de Orejuela v. Gonzalez, 423 F. 3d 666, 671 (7th Cir. 2005).

Although the Board discussed the cognizability of the proposed social groups, we need not, as we agree with the Board’s secondary assessment that even if the two proposed groups are cognizable as social groups under the Immigration and Nationality Act, Orellana-Arias has not provided sufficient evidence establishing that he was targeted on the basis of his membership in either social group. In other words, in order to determine whether a petitioner has been persecuted based on membership in a social group, the adjudicating court must determine both whether the group constitutes a social group under the Act and whether the petitioner has established a nexus between the persecution and the membership in the social group. Lozano-Zuniga v. Lynch, 832 F.3d 822, 827 (7th Cir. 2016). In this case, both the Board and immigration judge determined that there was no nexus and we agree, thus making it unnecessary to determine whether the social groups defined by Orellana-Arias were cognizable under the Act.[2]

To be eligible for asylum, an applicant bears the burden of demonstrating that he is “unable or unwilling to return” to the country of his nationality “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). In this case, Orellana-Arias claims that he was and will be persecuted because of his membership in the two social groups set forth above. A petitioner for asylum can meet his burden by proving either past persecution or well-founded fear of future persecution. Dominguez-Polido, 821 F.3d at 844. An applicant who successfully proves that she was subject to past persecution is presumed to have a well-founded fear of future persecution, which the Attorney General can rebut by demonstrating a change in conditions in the applicant’s home country. Cece, 733 F.3d at 668; 8 C.F.R. § 1208.13(b)(1). Applicants who base their claim on membership in a social group must demonstrate that the group to which they belong is defined by a characteristic or characteristics that are either immutable or so fundamental that a person ought not be required to change. Cece, 733 F.3d at 669. And, importantly for this case, the applicant “must establish a `nexus’ between any past or feared harm and that membership. In other words, the petitioner must show that he or she is persecuted on account of membership in a particular social group.” Dominguez-Pulido, 821 F.3d at 844-45 (internal citations omitted).

Orellana-Arias did not present sufficient evidence that he was targeted on the basis of his membership in a group of individuals who are perceived by drug cartels, criminal organizations, gangs, and corrupt government officials to have money because they are returning from the United States. The gangs appeared to have targeted Orellana-Arias to fill their coffers with his money, but there is no evidence that he was targeted based on the fact that he was perceived to have money because he was returning from the United States. Although it is true that the gang mentioned his return from the United States when it first approached him asking for money, Orellana-Arias provided no evidence that he was more of a target because he was deported from the United States then he would have been had he returned from, for example, Qatar, Luxembourg, Brunei or any other country perceived to be wealthy, or had he won the lottery, inherited a large estate, secured a high-paying job, or discovered a diamond mine in his backyard. Moreover, after that initial extortion, in which Orellana-Arias stated that he gave the gang all the money he had available, the fact of his return from the United States dropped out of the equation. In other words, it was simply Orellana-Arias’s perceived wealth alone that made Orellana-Arias a target for the gang. Our prior decisions have held that “wealth, standing alone, is not an immutable characteristic of a cognizable social group.” Dominguez-Pulido, 821 F.3d at 845 (citing Tapiero de Orejuela, 423 F.3d at 672). Specifically, in Dominguez-Pulido we held that the social group of individuals deported from the United States who have money or are perceived to have money and who have family members in the United States who could pay a ransom “is not cognizable as a ground for protection because its primary characteristic is wealth or perceived wealth . . . [and the petitioner’s] attempt to narrow his proposed group by adding the trait of `being deported from the U.S.’ does not render his group cognizable. ” Dominguez-Pulido, 821 F.3d at 845; see also Lopez v. Sessions, No. 17-1047, 2017 WL 2543346, at *3, 859 F.3d 464 (7th Cir. June 13, 2017); Gutierrez, 834 F.3d at 806 (concluding that the social group of people who have money or are perceived to have money is not a cognizable social group, even when the characteristic of having been deported from the United States is added); But see Gutierrez, 834 F. 3d at 807-808 (Posner, J. concurring) (arguing that the fact that wealth is not an immutable characteristic is not reason to deny a social grouping in asylum cases as wealth rarely stands alone and moreover, “having or being thought to have wealth is in an important practical sense `immutable.'”) and Lozano-Zuniga, 832 F.3d at 828 (expressing a lack of certainty as to whether the group of “recent deportees from the United States who might be perceived to have money” is a cognizable social group but finding it unnecessary to resolve). The concurring opinion in Gutierrez raises significant concerns about whether perceived wealth is an immutable characteristic but, in any event, in this circuit we have determined that wealth alone is not cognizable as a social group. And we are not alone in finding that wealth alone, or even wealth along with deportation from the United States are not characteristics that are cognizable as a social group under the Act. See Beltrand-Alas v. Holder, 689 F.3d 90, 94 (1st Cir. 2012) (neither wealth alone nor perceived wealth upon returning from the United States can form the basis for a cognizable social group); Ucelo-Gomez v. Mukasey, 509 F.3d 70, 72-74 (2d Cir. 2007) (wealth alone cannot form the basis of a social group); Faustov v. Attorney Gen., 538 F. App’x 166, 168 (3d Cir. 2013) (perceived wealth cannot form the basis of a cognizable social group); Temu v. Holder, 740 F.3d 887, 895 (4th Cir. 2014) (affluence alone cannot be basis of social group); Gonzalez-Soto v. Lynch, 841 F.3d 682, 684 (5th Cir. 2016) (neither wealth alone nor perceived wealth upon return from the United States are recognized as social groups); Sanchez-Robles v. Lynch, 808 F.3d 688, 692 (6th Cir. 2015) (perceived wealth after return from working in the United States is not a characteristic that can form the basis of a social group); Matul-Hernandez v. Holder, 685 F.3d 707, 712-13 (8th Cir. 2012) (individuals returning from United States and perceived as wealthy do not constitute a recognized particular social group); Ramirez-Munoz v. Lynch, 816 F.3d 1226, 1229 (9th Cir. 2016) (people perceived as wealthy Americans is not a discrete class of persons recognized by society as a particular social group); Delcid-Zelaya v. Holder, 534 F. App’x 694, 698 (10th Cir. 2013) (perceived wealth based on return from United States does not constitute a social group); Ilyukhin v. U.S. Atty. Gen., 489 F. App’x 331, 334 (11th Cir. 2012) (“wealth and perceived ability to pay bribes is not the sort of attribute that is fundamental to a person’s individual identity sufficient to comprise a particular social group.”). More importantly, a person claiming that he is targeted because of his perceived wealth having returned from the United States, must submit evidence supporting that claim (Rivera v. Lynch, 845 F.3d 864, 865 (7th Cir. 2017)), and Orellana-Arias has failed to do that.

As for Orellana-Arias’s proposed social group of “young Salvadoran males who oppose gang membership and other criminal activities due to their religious and/or moral beliefs,” we need not opine on the cognizability of that group either. As the immigration judge pointed out, nothing in the record before the immigration court suggested that the gang members knew about Orellana-Arias’s moral or religious objection to gangs. Orellana-Arias had not voiced any such concern or made any of his positions public. Although he did refrain from reporting police activity to the gang members, as they instructed him to do, it is not clear that the gang members would have perceived his lack of reports to be the result of his opposition to gang activity as opposed to mere failure to witness any relevant police activity. And without any knowledge of his religious or moral opposition to gangs, it cannot be said that the gang targeted Orellana-Arias on account of his membership in such a group.

We conclude that Orellana-Arias did not meet his burden of demonstrating a nexus between the alleged persecution and his proposed social groups of wealthy deportees or gang resisters. But even were this not so, Orellana-Arias’s petition was properly denied for failing to demonstrate either past persecution or a well-founded fear of future persecution.

The burden of establishing past persecution or a fear of future persecution falls to the petitioner. 8 U.S.C. §§ 1229a(c)(4)(A)(i), § 1231(b)(3)(C). Persecution “must rise above mere harassment,” and can include “detention, arrest, interrogation, prosecution, imprisonment, illegal searches, confiscation of property, surveillance, beatings, or torture,” or behavior that threatens the same, and “non-life-threatening behavior such as torture and economic deprivation if the resulting conditions are sufficiently severe,” Velasquez-Banegas v. Lynch, 846 F.3d 258, 270-71 (7th Cir. 2017). However, “generalized conditions of hardship which affect entire populations do not rise to the level of persecution.” Id.

In this case, the gang attacked Orellana-Arias, throwing him to the ground, kicking him and twisting his ankle. Our precedent informs that minor injuries such as these, albeit traumatic, do not rise to the level of persecution. “Persecution involves, we suggest, the use of significant physical force against a person’s body, or the infliction of comparable physical harm without direct application of force.” Tsegmed v. Sessions, No. 16-1036, 2017 WL 2588881, at *3, 859 F.3d 480 (7th Cir. June 15, 2017) (emphasis in original). Mere harassment will not suffice. Velasquez-Banegas, 846 F.3d at 270. See Nzeve v. Holder, 582 F.3d 678, 684 (7th Cir. 2009) (blister and bruises from attack does not compel finding of past persecution); Mema v. Gonzales, 474 F.3d 412, 416-18 (7th Cir.2007) (abduction at gunpoint followed by detention and physical abuse, resulting in petitioner losing consciousness, did not compel conclusion that petitioner suffered past persecution); Zhu v. Gonzalez, 465 F.3d 316, 319-20 (7th Cir. 2016) (beating, including being hit on the head with a brick resulting in cut requiring seven stitches, did not compel finding of persecution); see also Dandan v. Ashcroft, 339 F.3d 567, 573-74 (7th Cir. 2003) (record did not compel conclusion that petitioner suffered persecution based on a single incident where he was detained and deprived of food for three days and was “beaten to the extent that his face became `swollen'” because petitioner needed to provide more detail).

As the immigration judge pointed out, the death threats are more troubling, but Orellana-Arias bought off the gang members with small payments, and other than the minor physical injury in the first interaction, they appeared content to leave him physically unharmed each time thereafter despite his failure to meet their high monetary demands and despite the fact that he never participated as a police lookout as they requested. No one in his immediate family was threatened with death or physical injury due to his failure to meet the gang’s demands. The immigration judge found that the threats simply were not credible or imminent. R. 133. The facts do not compel us to conclude otherwise.

The economic hardship posed to Orellana-Arias and his family from this extortion cannot be ignored, but we cannot say that the immigration judge erred by concluding that the economic harm did not rise to the level of persecution. Economic harm can indeed rise to the level of persecution if it is deliberately imposed as a form of punishment and it results in sufficiently severe deprivations. Ahmed v. Gonzales, 467 F.3d 669, 673 (7th Cir. 2006). But, as we have noted, our immigration laws do not allow for grants for asylum for generalized conditions of crime and poverty within a nation. Velasquez-Banegas, 846 F.3d at 270. This case highlights the dire circumstances that many people around the world face from drugs, gangs, crime, and poverty. El Salvador has one of the highest crime rates in the world. See Rivera, 845 F. 3d at 866. “But persecution is not so broad a concept as to encompass all that we regard as `unfair, unjust, or even unlawful or unconstitutional'” and does not include within its parameters “unpleasant or even dangerous conditions in [the applicant’s] home country ” or “[g]eneral conditions of hardship that affect entire populations.” Ahmed, 467 F.3d at 673 (internal citations omitted). An applicant for asylum must present evidence of how safe or unsafe he personally will be in El Salvador. Rivera, 845 F.3d at 866.

Orellana-Arias states that we defined persecution in Tapiero de Orejula to include repeated attempts at extortion and various death threats. See Brief of Petitioner at 16 (citing Tapiero de Orejula, 423 F.3d at 673). But he neglects to include the fact that we found persecution of that family where the gang repeatedly attempted to extort the family, made multiple death threats, and actually followed up those threats by murdering the family patriarch. Tapiero de Orejula, 423 F.3d at 673. Here of course, and thankfully, there was no actual murder of a family member lending credence to the naked threats. Orellana-Arias has not met his burden of demonstrating past persecution.

An applicant who has not demonstrated past persecution but who still seeks asylum, must demonstrate a clear probability of future persecution “because of [his] race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A). Orellana-Arias must show a clear probability of persecution if removed to El Salvador, that is, that it appears more likely than not that he will suffer persecution if removed. Musa v. Lynch, 813 F.3d 1019, 1023 (7th Cir. 2016); 8 C.F.R. § 1208.16(b)(2).

The immigration judge’s determination that Orellana-Arias failed to establish that there was a clear probability that he would be subject to future danger because of his membership in these social groups was supported by reasonable and substantial evidence. A petitioner must set forth specific, detailed evidence indicating that it would be more likely than not that he would be individually targeted for harm. Lozano-Zuniga, 832 F.3d at 828-29. Fears of generalized harms are not enough. Id. at 828. The immigration judge determined that Orellana-Arias’s fear of future persecution was too speculative to meet the burden for withholding of removal. The gang has not delivered on any threats against his family since he has been gone (nor did they while he was in El Salvador), gang members never asked Orellana-Arias to join MS-13 in the past nor punished him for failing to act as a police lookout. Nor have they extorted his family while he has been in the United States despite the fact that he had previously admitted to the gang members that he had been sending all of the money he earned in the United States home to his family so that they could repair their hurricane-damaged home.

That leaves for our consideration, Orellana-Arias’s claim for protection under the Convention Against Torture. Orellana-Arias argues that the Board, in addressing the CAT claim in a single sentence, failed to attend to his arguments and demonstrate that it considered the evidence. It is true that an immigration judge must “consider the issues raised, and announce its decision in terms sufficient to enable a reviewing court to perceive that it has heard and thought and not merely reacted.” Mansour v. I.N.S., 230 F.3d 902, 908 (7th Cir. 2000). But the Board is not “required to write an exegesis on every contention.” Id. The Board is presumed to have reviewed the record and the burden is on the petitioner to prove that the agency failed to consider his arguments. Rashiah v. Ashcroft, 388 F.3d 1126, 1130 (7th Cir. 2004). Moreover, we review the immigration judge’s decision wherever the Board has not supplanted it with its own rationale. Jabateh v. Lynch, 845 F.3d 332, 337 (7th Cir. 2017). Where the Board has spoken, we review its reasoning. Id. But where it has not, we review the immigration judge’s reasoning. Id. To the extent the Board’s decision is lacking, therefore, we can look to the immigration judge’s decision to fill in the gaps. Although it is true that the Board’s discussion of the application for protection under CAT was quite cursory, the immigration judge dedicated several paragraphs to Orellana-Arias’s CAT claim and thus we have sufficient reasoning from the immigration judge’s decision, together with the Board’s decision, to review.

The burden for CAT protection is no less stringent than that for withholding of removal. Lozano-Zuniga, 832 F.3d at 830. Orellana-Arias must demonstrate that it is more likely than not that he would be tortured if removed to El Salvador. Id.

`Torture’ is defined as the intentional infliction of `severe pain or suffering’ for the purpose of coercion, punishment, or discrimination 8 C.F.R. §§ 1208.16(c)(2), 208.18(a)(1). Torture does not include `lesser forms of cruel, inhuman or degrading treatment or punishment,’ id. § 208.18(a)(2), or suffering inherent to `lawful sanctions’ imposed for violating the law, id. § 208.18(a)(3).

Id. (citing Borovsky v. Holder, 612 F.3d 917, 923 (7th Cir. 2010)). The applicant for CAT protection must demonstrate that the torture was inflicted by or at the behest of, or with the consent or acquiescence of, a public official. Lozano-Zuniga, 832 F.3d at 830.[3]

The immigration judge’s decision, supplemented by that of the Board, concluded that Orellana-Arias had not sustained his burden of demonstrating that it was more likely than not that Orellana-Arias would be tortured if he returned to Mexico. In assessing whether Orellana-Arias has met his burden, the immigration judge must address various factors such as evidence of past torture, ability to relocate within the country, evidence of grave human rights violations or other relevant country conditions. Tchenkou v. Gonzales, 495 F.3d 785, 795 (7th Cir. 2007) (citing 8 C.F.R. § 208.16(c)(3)(i)-(iv)). The immigration judge referred back to her assessment of the withholding of removal claim, noting that his “CAT claim is based on the same arguments he made for withholding of removal.” R. 138. Therefore the immigration judge addressed Orellana-Arias’s evidence of past torture (R. 132-134, 138), his claim that he could not relocate within the country, (R. 129), and evidence of country conditions (R. 130-31, 134-35, 137-38), along with the accompanying details.

The immigration judge, having concluded that Orellana-Arias did not suffer harm rising to the level of persecution, also concluded that he could not show that it was more likely than not that Orellana-Arias would be tortured should he return to El Salvador. All of his fear, the immigration judge concluded, was based on speculation. The immigration judge acknowledged that a couple of police officers had shot at him on one occasion as Orellana-Arias ran away from them, but the court concluded, with good reason based on Orellana-Arias’s testimony, that this was a case of mistaken identity or a random act of violence and not torture inflicted by or at the behest of a public official. Orellana-Arias presented country condition reports speaking to the violence in the country and the government’s inability to control it, including its acquiescence that results from corruption. R. 130-31, 134, 138. Nevertheless, none of this constituted evidence that Orellana-Arias specifically would be targeted for torture by the government or due to its acquiescence. “Acquiescence of a public official requires that the public official, prior to the activity constituting torture, have awareness of such activity and thereafter breach his or her legal responsibility to intervene to prevent such activity.” Lozano-Zuniga, 832 F.3d at 831 (citing 8 C.F.R. § 1208.18(a)(7)). We are not compelled to overrule the Board’s finding that Orellana-Arias did not demonstrate that any torture would be at the acquiescence (or willful blindness, for that matter, see footnote 3, supra) of the government.

The Board’s determination (along with that of the immigration judge where the Board had not spoken) is supported by reasonable, substantial, and probative evidence on the record considered as a whole and therefore the petition for review is DENIED.

[1] After the immigration judge certified the record back to the Board, on November 13, 2014, the Board dismissed the appeal without issuing a briefing schedule. R. 122. On December 15, 2014 Orellana-Arias filed a motion for reconsideration with the Board, arguing that it was procedural error to dismiss the appeal without briefing. The Department did not oppose the motion for reconsideration and the Board granted the motion. R. 90. At the same time that Orellana-Arias filed a motion for reconsideration with the Board, he filed a petition in this court for review of the Board’s November 13, 2014 decision. See Orellana-Arias v. Holder, No. 14-3712, R. 1. After the Board reopened his removal proceedings, this court granted Orellana-Arias’s voluntary dismissal of his motion. Id. at R. 7.

[2] Despite this conclusion, however, we note parenthetically that the parties spend much time discussing the Board’s conclusion that Orellana-Arias’ proposed social groups were overly broad and not sufficiently particularized. As we have noted time and again, in this circuit we reject the notion that the breadth of a social category per se makes it noncognizable under the Act. Cece, 733 F.3d at 674; see also Gutierrez v. Lynch, 834 F.3d 800, 805 (7th Cir. 2016); N.L.A. v. Holder, 744 F.3d 425, 438 (7th Cir. 2014).

[3] Orellana-Arias objects to the immigration judge’s use of the acquiescence standard alone without also including “willful blindness” explicitly within the umbrella of acquiescence as some circuits have done. See, e.g., Myrie v. Attorney Gen. United States, 855 F.3d 509, 516 (3d Cir. 2017). Our circuit has not affirmatively adopted the “willful blindness standard” other than in passing while quoting the Board’s decision. See Lozano-Zuniga, 832 F.3d at 831 (“As the Board held, `[t]he record does not sufficiently substantiate that any Mexican public official currently would seek to torture the respondent or would acquiesce in or exhibit willful blindness toward any torture inflicted on him by any gang member, any criminal, or anyone else.'”) (citing decision of the Board below). But the Board in this case did indeed look to see whether the government was “willfully blind” to the gang activity and so even if that is the standard that this court requires, the two opinions, supplementing each other, engage in the correct evaluation.

Posted in 7th Circuit, 7th Circuit Cases- Aliens, Convention Against Torture, membership in a particular social group, Nexus between persecution and social groups, particular social group, past persecution, political asylum | Leave a comment

CA7 remands COR holding that possession of any amount of marijuana over 30 grams could be prosecuted as federal misdemeanor, not an “aggravated felony.”

BIA erred in finding that noncitizen was ineligible for cancellation of removal relief because his prior Illinois conviction for possession of more than 30 but not more than 500 grams of marijuana under 720 ILCS section 550/5(d) qualified as “aggravated felony.” BIA misapplied Supreme Court decision in Montcrieffe, 133 S.Ct. 1678, when Board characterized alien’s conviction as aggravated felony, where Board improperly believed that conviction involving any amount of marijuana over 30 grams could never be prosecuted as federal misdemeanor. As such, remand was required to give Board opportunity to decide whether to exercise its discretion to grant cancellation of removal.

Chen, a lawful permanent resident who came from China at age 11, was ordered removed from the U.S. as an alien convicted of a controlled‐substance crime, 8 U.S.C. 1182(a)(2)(A)(i)(II). He had drug convictions in 2010 and 2011. The Board of Immigration Appeals decided that Chen was ineligible for cancellation of removal because of an Illinois conviction for possessing more than 30 but not more than 500 grams of marijuana, 720 ILCS 550/5(d), which, it concluded, qualified as an aggravated felony, making Chen ineligible for relief under 8 U.S.C. 1229b(a). The Seventh Circuit remanded, concluding that the Board misapplied the Supreme Court’s 2013 decision in Moncrieffe v. Holder, when it characterized Chen’s conviction as an aggravated felony. Nothing in that decision supports the conclusion that the possession of a tad more than 30 grams of marijuana—the lowest amount punishable under section 550/5(d)—can never be punished as a federal misdemeanor.

“The Board erred by reading Moncrieffe as if that decision interpreted the CSA’s term “small amount.” Nothing in Moncrieffe supports the conclusion that the possession of a tad more than 30 grams of marijuana—the lowest amount punishable under 720 ILCS § 550/5(d)—can never be punished as a federal misdemeanor. The Board erred as a matter of law in this respect, when it found that Chen’s conviction under that provision qualifies as an aggravated felony.

We GRANT the petition for review and remand to give the Board the opportunity to decide whether to exercise its discretion to grant cancellation of removal.”

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  • _________________________________________

    MING WEI CHEN, Petitioner,
    v.
    JEFFERSON B. SESSIONS III, Attorney General of the United States, Respondent.
    No. 17-1130.

    United States Court of Appeals, Seventh Circuit.
    Argued July 7, 2017.
    Decided July 20, 2017.

    Robert T. Carpenter, for Petitioner.

    Matthew A. Spurlock, OIL, for Respondent.

    Petition for Review of an Order of the Board of Immigration Appeals, No. A047-862-290.

    Before WOOD, Chief Judge, and BAUER and FLAUM, Circuit Judges.

    WOOD, Chief Judge.

    Ming Wei Chen, a lawful permanent resident originally from China, was ordered removed from the United States as an alien convicted of a controlled-sub-stance crime, see 8 U.S.C. § 1182(a)(2)(A)(i)(II). The Board of Immigration Appeals decided that Chen is ineligible for cancellation of removal because of an Illinois conviction for possessing more than 30 but not more than 500 grams of marijuana, 720 ILCS § 550/5(d). This, the Board thought, qualifies as an aggravated felony; if that is correct, then Chen is indeed ineligible for the relief he seeks. 8 U.S.C. § 1229b(a). Chen seeks review of that ruling in this court. We conclude that the Board misapplied the Supreme Court’s decision in Moncrieffe v. Holder, 133 S. Ct. 1678 (2013), when it characterized Chen’s conviction under ILCS § 550/5(d) as an aggravated felony. We therefore grant his petition for review and return the case to the agency for further action.

    I

    Chen was 11 years old when his parents brought him to the United States and he became a permanent resident. About nine years later, in 2010, he pleaded guilty to possessing with intent to deliver more than 10 but not more than 30 grams of marijuana, 720 ILCS § 550/5(c), and he was sentenced to 24 months’ probation. In 2011 he pleaded guilty to possessing with intent to deliver more than 30 but not more than 500 grams of marijuana, 720 ILCS § 550/5(d), after police located in his vehicle 462.8 grams of marijuana that he intended to sell. He again was sentenced to 24 months’ probation. In 2016 he came to the attention of immigration officials when he went through U.S. customs as he was returning from a trip to China. Immigration officials initiated removal proceedings that charged him with being inadmissible and removable on account of his 2010 and 2011 Illinois marijuana convictions, see 8 U.S.C. § 1182(a)(2)(A)(i)(II).

    Chen conceded his removability, but he argued that he was eligible for cancellation of removal, see 8 U.S.C. § 1229b(a). Section 1229b(a) provides that the Attorney General may cancel the removal of a person who has been a lawful permanent resident for at least five years, has resided in the United States continuously for seven years after being admitted, and has not been convicted of an “aggravated felony.” Only the last criterion is at issue here: Chen contended that his 2011 conviction for possessing marijuana with intent to deliver does not qualify as an aggravated felony.

    Aggravated felonies, for immigration purposes, include “drug trafficking crime(s) (as defined in section 924(c) of Title 18).” 8 U.S.C. § 1101(a)(43)(B). That definition includes “any felony punishable under the Controlled Substances Act [CSA],” and that Act categorizes as a felony any offense for which the “maximum term of imprisonment authorized” is more than one year, 18 U.S.C. § 3559(a)(5), (6). To determine whether a state conviction qualifies as an aggravated felony, the court must consider “whether the state statute defining the crime of conviction categorically fits within the generic federal definition.” Moncrieffe, 133 S. Ct. at 1684 (quotation marks omitted). In addition, and critically for this case, the Supreme Court said in Moncrieffe that the court “must presume that the conviction rested upon [nothing] more than the least of th[e] acts criminalized, and then determine whether even those acts are encompassed by the generic federal offense.” Id. (quotation marks omitted).

    Chen argued that his 2011 conviction is not an aggravated felony because 720 ILCS § 550/5(d) punishes conduct that would be a misdemeanor under the CSA. Moncrieffe, he points out, held that a Georgia conviction for possession with intent to distribute marijuana was not an aggravated felony. In that case, the fact of the defendant’s conviction “standing alone, [did] not reveal whether either remuneration or more than a small amount of marijuana was involved. It is possible neither was.” Id. at 1686. Applying the categorical approach, the Court thus concluded that Moncrieffe had not been convicted of an aggravated felony, because the state’s statute defined his crime of conviction broadly enough to punish federal marijuana misdemeanors. See 21 U.S.C. § 841(b)(4) (stating that any person who distributes “a small amount of marihuana for no remuneration shall be treated as provided in” 21 U.S.C. § 844, which means for our purposes punished as a misdemeanant.) In reaching that decision, the Court expressly declined to define the term “small amount.” Id. at 1686 n.7. It took this position even as it quoted from the Board’s decision in Matter of Castro Rodriguez, 25 I & N. Dec. 698, 703 (BIA 2012), where the Board said that 30 grams “serve(s) as a useful guidepost” for what counts as “small.” 133 S. Ct. at 1686 n.7.

    Chen maintained that the least of the acts criminalized by 720 ILCS § 550/5(d) is the possession of a hair over 30 grams— call it 30.0001 grams. He argued that this weight is not “markedly different” from 30 grams. Furthermore, he emphasized, the 30-gram level was only a guidepost, not a rigid line, and “more than” 30 grams could be just a tiny amount above that mark.

    The Immigration Judge decided that Chen was statutorily ineligible for cancellation of removal. The IJ concluded that Chen’s 2011 conviction was categorically an aggravated felony. She reasoned that none of the conduct that the state statute prohibited would fall within the federal misdemeanor “exception” discussed in Moncrieffe, because the Illinois law covers “more than 30 grams but not more than 500 grams” of cannabis. Anything “more than 30 grams,” the IJ thought, is necessarily more than a “small amount” as Moncrieffe used the term.

    Chen appealed to the Board, arguing that the IJ erred in deciding that his 2011 conviction was an aggravated felony. He reiterated that under the CSA just over 30 grams could be a small amount, consistent with “social sharing.” The Board dismissed his appeal. It agreed with the IJ that Chen’s 2011 conviction qualified as an aggravated felony because, it thought, any amount of marijuana in excess of 30 grams, even just the 30.0001 Chen postulated, was automatically more than the small amount “contemplated by the Court in Moncrieffe,” and thus the “small amount” exception in 21 U.S.C. § 841(b)(4) did not apply.

    II

    Chen’s petition focuses on the issue he has raised throughout these proceedings: whether the Board erred in deciding that his conviction under 720 ILCS § 550/5(d) for possessing more than 30 grams of marijuana necessarily involves conduct that would be a felony under the CSA. (At this point, no one is arguing that the 2010 conviction for “more than 10 but not more than 30 grams” provides an alternative basis for the Board’s decision.) Chen maintains that the statute under which he was convicted in 2011 covers conduct treated as a misdemeanor under the CSA pursuant to section 841(b)(4), because it would be possible to violate 720 ILCS § 550/5(d) by distributing only 30.0001 grams of marijuana for no remuneration. See also 21 U.S.C. §§ 844(a), 844a(a). Nothing in 720 ILCS § 550/5(d) requires payment, he notes, and Moncrieffe indicates that “just over 30 grams” may be a “small amount” of marijuana under the CSA. He contends that the Board and the IJ, by deciding that any amount even a shade over 30 grams cannot be “small,” improperly treated the Board’s 30-gram “guidepost” as a rigid upper limit, contrary to the ruling in Moncrieffe. The government argues that the Board and IJ correctly applied the CSA because “more than 30 grams” exceeds the Board’s guidepost.

    This court has not had the occasion in an immigration case to define the term “small amount” as used in section 841(b)(4) of the CSA. This is a legal question over which we have jurisdiction, see 8 U.S.C. § 1252(a)(2)(D), and our review is de novo. See Delgado v. Holder, 674 F.3d 759, 766 (7th Cir. 2012). Congress left it to the courts to decide this question. United States v. Damerville, 27 F.3d 254, 258-59 (7th Cir. 1994). In 1994, we held in Damerville that 17.2 grams of marijuana was not “small” where the facts showed that it was being smuggled into a prison. Damerville is of limited value, however, because it was decided during an earlier era before the Supreme Court rejected a fact-specific approach and substituted the categorical approach it now requires. See Esquivel-Quintana v. Sessions, 137 S. Ct. 1562, 1567-68 (2017); Moncrieffe, 133 S. Ct. at 1684. More recently, in the context of determining relevant conduct for the sentencing guidelines, we commented that two ounces (56.4 grams) of marijuana can be a small amount consistent with personal use. See United States v. Olson, 408 F.3d 366, 374 (7th Cir. 2005) (remanding for resentencing because district court’s reason for not counting the possession offense as relevant conduct was unclear).

    In Chen’s case, the Board offered two reasons for adopting a rule that “small amount” means exactly 30 grams or less. First, it decided that a weight of “at least 30 grams” cannot be small because Moncrieffe “contemplated” that only 30 grams or less is a small amount. But as we noted earlier, that is not what Moncrieffe said. To the contrary, it explicitly reserved the issue of what amount is small enough for federal misdemeanor treatment. Moncrieffe, 133 S. Ct. at 1686 n.7 (“The meaning of `small amount’ is not at issue in this case, so we need not, and do not, define the term.”). Second, the Board relied on its own decision in Castro Rodriguez, in which it said that 30 grams or less would “serve as a useful guidepost in determining whether an amount is `small,'” and observed that

    [t]he courts have concluded that no fixed quantity of marijuana may resolve in every case whether an amount is “small” because the determination may also depend on the context in which the drug was distributed. For example, less than 30 grams may still not be deemed small if it was distributed in a setting, such as a prison, where possession of any controlled substance poses security concerns.

    25 I. & N. Dec. at 703.

    We are not required to give the Board’s interpretation of the CSA any particular deference. See Gonzales-Gomez v. Achim, 441 F.3d 532, 534 (7th Cir. 2006). And although we may always consult the Board’s reasoning for its persuasive value, see Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944), the result of that consultation here leaves us unpersuaded. To the extent that the Board’s ruling relies on the rationale of Castro Rodriguez, it is flawed. Castro Rodriguez’s fact-specific interpretation method is incompatible with the categorical approach because it fails to look exclusively at the statute of conviction. See Esquivel-Quintana, 137 S. Ct. at 1567-68; Moncrieffe, 133 S. Ct. at 1684. Second, Castro Rodriguez relied on the Third Circuit’s decision in Catwell v. Att’y Gen. of the U.S., 623 F.3d 199, 209 (3d Cir. 2010), but we do not find the latter opinion to be helpful. The question before that court was quite different: whether 120.5 grams of marijuana is a “small amount” for purposes of section 841(b)(4). That is a far cry from a shade above 30 grams. Second, finding no statutory language defining what is “small,” the court turned to legislative history and a few casual remarks by one senator to the effect that “small amount” might mean just a joint or two. 623 F.3d at 208-209. Stray comments reported in the Congressional Record are, however, poor indicators of a law’s meaning. See Conroy v. Aniskoff, 507 U.S. 511, 520 n.2 (1993) (Scalia, J., concurring); Heinz v. Cent. Laborers’ Pension Fund, 303 F.3d 802, 809-10 (7th Cir. 2002), aff’d, 541 U.S. 739 (2004).

    In addition, Catwell interpreted the term “small amount” in section 841(b)(4) by relying on an entirely different, and in our view inapposite, subsection of the Immigration Act, 8 U.S.C. § 1227(a)(2)(B)(i). Section 1227 deals with the subject of “deportable aliens,” and subpart (a)(2)(B) lists the controlled-substance offenses that render a person removable. Subpart (i) of subpart (B) includes any law relating to controlled substances “other than a single offense involving possession for one’s own use of 30 grams or less of marijuana.” Anyone who fits within that safe harbor, however, is not removable at all, and so would have no need to seek cancellation of removal. In addition, reliance on section 1227(a)(2)(B)(i) disregards the distinction Congress drew, for purposes of cancellation of removal, between permanent residents and nonpermanent residents. Congress explicitly made nonpermanent residents ineligible for cancellation of removal if they have been convicted of certain crimes, including either a controlled-substance offense or an aggravated felony. See 8 U.S.C. § 1229b(b)(1) (cross-references to sections 1182(a)(2) and 1227(a)(2) add controlled substance offenses). In contrast, it conditioned permanent residents’ eligibility only on the absence of an aggravated-felony conviction, expressly excluding the controlled-substance ground. See id. § 1229b(a)(3). If a statute reflects that Congress considered the possibility of including a term and decided against inclusion, courts should not read that term into the statute. See Marx v. Gen. Revenue Corp., 133 S. Ct. 1166, 1175 (2013). That is what Congress did here: it provided an additional ground for making nonpermanent residents ineligible for cancellation of removal—commission of a controlled-substance offense— while for permanent residents it listed only the commission of an aggravated felony.

    We find little guidance in the decisions of our sister circuits about the meaning of “small amount.” They have relied most often on the ambiguous comments during legislative debates and have held that the term “small amount” refers to a weight consistent with “social sharing among friends.” See United States v. Eddy, 523 F.3d 1268, 1271 (10th Cir. 2008); Garcia-Echaverria v. United States, 376 F.3d 507, 514 n.5 (6th Cir. 2004); United States v. Outen, 286 F.3d 622, 637-38 (2d Cir. 2002). We realize that at some point the line between “small” and “more than small” will have to be drawn, but we see no need to draw it here, since the Illinois statute uses as its point of reference almost the same 30-gram level that the Moncrieffe Court was considering.

    The Board erred by reading Moncrieffe as if that decision interpreted the CSA’s term “small amount.” Nothing in Moncrieffe supports the conclusion that the possession of a tad more than 30 grams of marijuana—the lowest amount punishable under 720 ILCS § 550/5(d)—can never be punished as a federal misdemeanor. The Board erred as a matter of law in this respect, when it found that Chen’s conviction under that provision qualifies as an aggravated felony.

    We GRANT the petition for review and remand to give the Board the opportunity to decide whether to exercise its discretion to grant cancellation of removal.

    Posted in 7th Circuit, 7th Circuit Cases- Aliens, Deportation for Drug Crimes, Drug Laws in Illinois, exception to deportability 30 grams or less of marijuana, Marijuana Possession, Removal, U.S. Supreme Court | Leave a comment