CA7 finds alien’s continuous presence in the United States ends upon the service of a Notice to Appear on the alien, even if that notice is missing the date and time of the initial hearing.

An alien otherwise inadmissible can be eligible for cancellation of removal if, among other things, he establishes that he “has been physically present in the United States for a continuous period of at least ten (10) years immediately preceding the date of such application, among other requirements set forth at 8 U.S.C. 1229b. Under the so-called stop-time rule, continuous residence is deemed to end when an alien has been served a Notice to Appear under 8 U.S.C. 1229. 8 U.S.C. § 1229b(d)(1), which provides that an alien’s “continuous physical presence in the United States shall be deemed to end … when the alien is served a notice to appear under section 1229(a) of this title”; and 8 U.S.C. § 1229(a)(1), which lists the information that must be included in a Notice to Appear.

CA7 finds the phrase “notice to appear under section 1229(a)” as referring to the type of document that triggers the stop-time rule, not as requiring perfect compliance with § 1229(a)(1)

CA7 finds that an alien’s continuous presence in the United States ends upon the service of a Notice to Appear on the alien, even if that notice is missing the date and time of the initial hearing.

Wang, a native and citizen of China (Fujian Province), was smuggled into the United States Virgin Islands on September 27, 1999; he was 21 years old at the time. Within two days of his arrival, immigration authorities discovered him and took him into custody. He was personally served on that date with a Notice to Appear that ordered him to appear in the immigration court in New Orleans at a “[t]ime and date to be set later.”

Over the next 10 years, Wang remained in the United States and avoided the attention of the immigration authorities. In 2009 he married a Chinese citizen and eventually had two children with her. In October of that year he voluntarily returned to immigration court and moved to recalendar his proceedings. At a hearing in March 2010, Wang admitted the charges in the Notice to Appear and conceded removability, but stated that he was pursuing a U Visa and planned to seek asylum and relief under the Convention Against Torture. (A U Visa is available to noncitizen victims of certain crimes who “have been or are likely to be helpful to authorities in investigating or prosecuting that crime.” L.D.G. v. Holder, 744 F.3d 1022, 1024 (7th Cir. 2014); see 8 U.S.C. §§ 1101(a)(15)(U), 1184(p).) Wang believed that he was eligible for the visa as a victim of human trafficking. See 8 U.S.C. § 1101(a)(15)(U)(iii). Before it could be resolved, his case was transferred to the immigration court in Chicago; that court held a hearing in March 2011. Immigration Judge Carlos Cuevas ordered the case continued for 20 months until November 2012 to allow Wang to continue pursuing a U Visa and to decide what other relief he would be requesting. The IJ explained that if the U Visa were denied in the meantime, Wang should “come in with some other form of relief” and that the lengthy continuance would give Wang time to get “everything in order.” IJ rejected the request as a “delay tactic,” especially in light of the lengthy continuance that he already had granted. Wang then testified to his version of events. He described how he was smuggled into the country and, after being released on bond, was locked up and beaten by his smugglers for two and a half months. He asserted that the smugglers threatened to harm his family in China if he went to the police. Wang’s counsel then renewed his motion for a continuance to file an asylum application. The IJ denied the motion and ordered Wang removed.

YI DI WANG v. Holder, Court of Appeals, 7th Circuit 2014
_________________________________________________________

YI DI WANG, Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General of the United States, Respondent.
No. 14-1176.

United States Court of Appeals, Seventh Circuit.
Argued July 8, 2014.
Decided July 6, 2014.

Before Wood, Chief Judge, and BAUER AND HAMILTON, Circuit Judge.

WOOD, Chief Judge.

In order to be eligible for cancellation of removal, a nonpermanent resident alien must have accrued 10 years of continuous physical presence in the United States. That presence, however, is deemed to end “when the alien is served a Notice to Appear under section 1229(a)” of the Immigration and Nationality Act (INA). See 8 U.S.C. § 1229b(b)(1)(A), (d)(1). In this petition for review, we must decide whether a notice that does not specify a particular time and date for the alien’s initial hearing nonetheless suffices for purposes of this “stop-time” rule. The Board of Immigration Appeals has already answered that question in the affirmative, in its precedential decision in Matter of Camarillo, 25 I & N Dec. 644 (BIA 2011). We conclude that its interpretation is entitled to deference under Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984), and so we deny the petition for review filed by Yi Di Wang.

I

Wang, a native and citizen of China (Fujian Province), was smuggled into the United States Virgin Islands on September 27, 1999; he was 21 years old at the time. Within two days of his arrival, immigration authorities discovered him and took him into custody. He was personally served on that date with a Notice to Appear that ordered him to appear in the immigration court in New Orleans at a “[t]ime and date to be set later.” (There is no immigration court in the U.S. Virgin Islands. See EOIR Immigration Court Listing, http://www.justice.gov/eoir/sibpages/ICadr.htm (last visited July 16, 2014).) The authorities then transported Wang to a detention facility in New Orleans. Wang was released on $15,000 bond, at which time he provided an address in North Carolina as his residence.

In the course of the 1999 proceedings, the immigration court twice attempted to inform Wang of the date and time of his hearing. While he was in custody in New Orleans, the immigration court sent him via FedEx a “notice of hearing” setting a date and time for a video hearing. After his release on bond, the court sent a second notice of hearing—this time to the North Carolina address he had furnished—setting a different date and time. Although Wang received the first notice of hearing, it appears that neither notice was properly served. Wang did not show up for his hearing, and in November 1999, the immigration judge administratively closed the case at the government’s request.

Over the next 10 years, Wang remained in the United States and avoided the attention of the immigration authorities. In 2009 he married a Chinese citizen and eventually had two children with her. In October of that year he voluntarily returned to immigration court and moved to recalendar his proceedings. At a hearing in March 2010, Wang admitted the charges in the Notice to Appear and conceded removability, but stated that he was pursuing a U Visa and planned to seek asylum and relief under the Convention Against Torture. (A U Visa is available to noncitizen victims of certain crimes who “have been or are likely to be helpful to authorities in investigating or prosecuting that crime.” L.D.G. v. Holder, 744 F.3d 1022, 1024 (7th Cir. 2014); see 8 U.S.C. §§ 1101(a)(15)(U), 1184(p).) Wang believed that he was eligible for the visa as a victim of human trafficking. See 8 U.S.C. § 1101(a)(15)(U)(iii). Before it could be resolved, his case was transferred to the immigration court in Chicago; that court held a hearing in March 2011. Immigration Judge Carlos Cuevas ordered the case continued for 20 months until November 2012 to allow Wang to continue pursuing a U Visa and to decide what other relief he would be requesting. The IJ explained that if the U Visa were denied in the meantime, Wang should “come in with some other form of relief” and that the lengthy continuance would give Wang time to get “everything in order.”

At the next hearing in November 2012, the IJ wrapped up Wang’s case. Wang’s attorney explained that Wang’s attempt to obtain a U Visa had failed, and so he was submitting an application for cancellation of removal. The IJ denied that application on the ground that Wang lacked the required 10 years of continuous presence in the United States. Although he had been physically present, his qualifying time ended, the IJ ruled, when he was served with a Notice to Appear just two days after his arrival. See 8 U.S.C. § 1229b(b)(1)(A), (d)(1). Wang asked for a continuance to file an application for asylum, but the IJ rejected the request as a “delay tactic,” especially in light of the lengthy continuance that he already had granted. Wang then testified to his version of events. He described how he was smuggled into the country and, after being released on bond, was locked up and beaten by his smugglers for two and a half months. He asserted that the smugglers threatened to harm his family in China if he went to the police. Wang’s counsel then renewed his motion for a continuance to file an asylum application. The IJ denied the motion and ordered Wang removed.

Wang appealed to the Board of Immigration Appeals. His brief before the Board focused heavily on our decision in Dababneh v. Gonzales, 471 F.3d 806 (7th Cir. 2006), a similar case involving the so-called “stop-time” rule, 8 U.S.C. § 1229b(d)(1), and a Notice to Appear that did not include the time and date of a hearing. But the petitioner in Dababneh, unlike Wang, was properly served within 10 years of his arrival in the United States with a second document— a “notice of hearing” specifying the date and time of his hearing. See 471 F.3d at 807, 810. We denied the petition for review, ruling that the statutory requirements of § 1229b(d)(1) can be met by reading the Notice to Appear together with a later-served notice of hearing. Id. at 810. Wang urged the Board to find that a Notice to Appear that does not include the date and time of a hearing cannot by itself trigger § 1229b(d)(1). In a footnote, Wang’s brief acknowledged and disagreed with the Board’s decision in Matter of Camarillo, 25 I & N Dec. 644, supra, in which the Board held that an alien’s continuous presence in the United States ends upon the service of a Notice to Appear on the alien, even if that notice is missing the date and time of the initial hearing. Wang argued that Camarillo “misconstrued” both Dababneh and the statute itself, and that the IJ abused his discretion by denying a continuance.

The Board, relying on Camarillo, dismissed the appeal with this explanation:

[W]e disagree with [Wang's] argument that we mischaracterized Dababneh v. Gonzales, 471 F.3d 806 (7th Cir. 2006), in our precedent decision in Matter of Camarillo, 25 I. & N. Dec. 644 (BIA 2011), and we are not inclined to revisit Camarillo. In Dababneh, the court found that the failure to include the time and date of the hearing in the NTA did not render it ineffective for purposes of cutting off the accrual of continuous physical presence where the hearing notice was subsequently provided. Further, the Dababneh court specifically stated that “[t]he language of INA § 240A(d) is clear: if an alien has received an NTA, the period of continuous presence is deemed to end.” Dababneh v. Gonzales, supra, at 810.

The Board also rejected Wang’s argument about the denial of a continuance because he had not shown “good cause” for a continuance, see 8 C.F.R. § 1003.29, nor demonstrated prejudice.

II

Wang’s principal argument is that the Board wrongly concluded that he is ineligible for cancellation of removal, because it relied on a defective Notice to Appear to cut off his continuous presence in the United States. (Because the Board agreed with the IJ’s decision and added its own observations, we review both the IJ’s and the Board’s decisions. Pouhova v. Holder, 726 F.3d 1007, 1011 (7th Cir. 2013).) Two statutes govern here: 8 U.S.C. § 1229b(d)(1), which provides that an alien’s “continuous physical presence in the United States shall be deemed to end … when the alien is served a notice to appear under section 1229(a) of this title”; and 8 U.S.C. § 1229(a)(1), which lists the information that must be included in a Notice to Appear. One required item is the “time and place at which the proceedings will be held.” Id. § 1229(a)(1)(G)(i). Wang argues that he did not receive an effective Notice to Appear because his notice did not comply with § 1229(a)(1)(G)(i) and include the date and time of his hearing. Later notices that cured that defect came too late, in his view, as they were not properly served within 10 years of his arrival in the United States.

Because we are considering a challenge to the Board’s authoritative interpretation of the immigration laws, “[p]rinciples of Chevron deference apply.” Scialabba v. Cuellar de Osorio, 134 S. Ct. 2191, 2203 (2014) (plurality op.); see Ali v. Mukasey, 521 F.3d 737, 739 (7th Cir. 2008). Under Chevron’s two-part test we first decide, using the “traditional tools of statutory construction,” whether Congress “has directly spoken to the precise question at issue.” Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 & n.9 (1984). If it has not, then we proceed to Chevron’s second step and ask whether the Board’s construction “is based on a permissible construction of the statute.” Id. at 843.

The Fourth Circuit has already concluded that § 1229b(d)(1) does not directly address, for purposes of step one, the precise question before us: whether an alien’s continuous presence in the United States can be halted by a Notice to Appear that lacks the date and time of a hearing. See Urbina v. Holder, 745 F.3d 736, 739-40 (4th Cir. 2014). This makes sense to us. The statute conditions operation of the stop-time rule on service of a “notice to appear under section 1229(a).” 8 U.S.C. § 1229b(d)(1). It says nothing about whether a Notice to Appear, in order to function for the stop-time rule, must include the date and time of a hearing. It is logical to conclude that Congress left it to the Board to fill this gap. See Chevron, 467 U.S. at 843-44. Perhaps, as Wang contends, the best way to fill the gap is to require perfect compliance with every detail of § 1229(a) to trigger the stop-time rule. Perhaps, as the Board concluded in Camarillo, 25 I & N Dec. at 647, it would be preferable to interpret the passage as merely setting forth the type of document that triggers the stop-time rule. This would not be the only area in which a defective document nonetheless serves a useful purpose. In Becker v. Montgomery, 532 U.S. 757 (2001), the Supreme Court held that a notice of appeal must be signed, but that the failure to sign in a timely way was a curable defect that did not require the dismissal of the appeal. Just so here. Analogies aside, the central point for present purposes is that Congress did not resolve the issue in the statute, and so Wang cannot prevail under Chevron’s first step.

Nothing in Dababneh is to the contrary. There we wrote that the statute “is clear: if an alien has received [a Notice to Appear], the period of continuous presence is deemed to end.” Dababneh, 471 F.3d at 810. To the extent that we indicated that the statute is unambiguous, our statement supports the Board’s position here, when it held that Wang received a Notice to Appear and so his “continuous presence [was] deemed to end.” Id. There are aspects of Wang’s case, however, that simply did not arise in Dababneh. In particular, Dababneh did not address whether a Notice to Appear lacking a date and time is sufficient on its own to trigger the stoptime rule. See id.; Guamanrrigra v. Holder, 670 F.3d 404, 409-10 (2d Cir. 2012) (same).

We therefore proceed to Chevron’s second step and ask whether the Board’s interpretation “is based on a permissible construction of the statute.” 467 U.S. at 843. Although the Board acknowledged the possibility of a number of plausible interpretations of the key language, it concluded that the “best reading” is to treat the phrase “notice to appear under section 1229(a)” as referring to the type of document that triggers the stop-time rule, not as requiring perfect compliance with § 1229(a)(1). Camarillo, 25 I. & N. Dec. at 647. A central purpose of the Notice to Appear, the Board explained, is to inform an alien that the government seeks to remove him from the country. Even a notice that does not specify the date or time of a hearing conveys that intent. Id. at 650. The Board also placed some weight on the fact that the entity issuing the Notice to Appear—the Department of Homeland Security—is not responsible for scheduling immigration hearings. The immigration court has that duty, and the Board saw “no reason to conclude that Congress would have expected that scheduling delays in the Immigration Court … would affect when an alien’s … physical presence ends.” Id. Finally, the Board reasonably saw its interpretation as consistent with the stop-time rule’s basic purpose: to prevent aliens from delaying their immigration proceedings to become eligible for relief from removal. Id. at 649-50; see S. Rep. No. 104-249, at 15 (1996); H. R. Rep. No. 104-469(I), at 122 (1996); Guamanrrigra, 670 F.3d at 410. We have no trouble concluding, as our colleagues in the Fourth Circuit did, Urbina, 745 F.3d at 740, that the Board’s interpretation is “based on a permissible construction of the statute” to which we should defer. See Chevron, 467 U.S. at 843.

Lastly, Wang argues that the IJ abused his discretion when he denied another continuance. He asserts that more time, beyond the 20 months the IJ already had given him, would have allowed him to file for asylum. We see no merit in this argument. An IJ has discretion to grant a continuance for “good cause shown,” see 8 C.F.R. § 1003.29, and if the judge articulates a legitimate reason for denying a continuance, we will uphold his decision. See Calma v. Holder, 663 F.3d 868, 878 (7th Cir. 2011). The IJ denied Wang’s request for a continuance, believing it to be a “delay tactic.” That was not an abuse of discretion. Wang has not explained why he was unable to prepare an asylum application at any of several earlier times: during the 10 years he was off the authorities’ radar, during the year between his March 2010 hearing in New Orleans and his March 2011 hearing in Chicago, or during the 20-month continuance allowed by the IJ before the final hearing in November 2012. In any event, any error in the denial of a continuance would be harmless, see Calma, 663 F.3d at 878, because Wang has never explained how he could demonstrate a reasonable fear of persecution in China: he claims to have been harmed by smugglers in this country. See 8 U.S.C. § 1101(a)(42)(A).

The petition for review is DENIED.

Posted in 7th Circuit, 7th Circuit Cases- Aliens, Asylum, BIA, Cancellation of Removal, Cancellation Of Removal and The Stop-Time Rule, Chicago Immigration Court, Stop-Time Rule | Leave a comment

CA7 upholds denial of non LPR Cancellation of Removal due to aggravated felony conviction for domestic battery

§ 1229b. Cancellation of removal; adjustment of status

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

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

Coyomani, a citizen of Mexico, entered the U.S. without inspection in 1997. In 2000, he was convicted in Illinois state court of domestic battery and of resisting a peace officer. DHS placed Coyomani in removal proceedings, charging him as an alien present without being admitted or paroled, 8 U.S.C. 1182(a)(6)(A)(i), and as an alien who had been convicted of a crime involving moral turpitude (CIMT), 8 U.S.C. 1182(a)(2)(A)(i)(I). Coyomani denied that he had committed a CIMT but conceded removability and sought cancellation of removal as a non-lawful permanent resident. The IJ concluded that Coyomani was removable and ineligible for cancellation of removal, because he was present without being admitted or paroled. Although Coyomani was convicted of domestic battery, which qualifies as a CIMT, the IJ found that Coyomani “probably” satisfied the statutory exception due to the brevity of his sentence and that resisting a peace officer did not qualify as a CIMT. The IJ found that Coyomani was ineligible for cancellation of removal because he had been convicted of “an offense under” section 237(a)(2), “an aggravated felony.” The same crime—state domestic battery—had different implications for different sections of the INA. The Board of Immigration Appeals and Seventh Circuit upheld the determination.

__________________________________________________________________
CARLOS COYOMANI-CIELO, Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General of the United States, Respondent.
No. 13-2955

United States Court of Appeals, Seventh Circuit.
Argued May 22, 2014.
Decided July 14, 2014.

Before POSNER, FLAUM, and MANION, Circuit Judges.

FLAUM, Circuit Judge.

Carlos Coyomani entered the United States without inspection in 1997 and concedes that he is removable.[1] The question here is whether he is eligible for cancellation of removal. The Board of Immigration Appeals (BIA or Board) found him ineligible for that relief. Coyomani now petitions for review, arguing that the Board misinterpreted the relevant provision of the Immigration and Nationality Act (INA), § 240A(b)(1)(C). We find that statutory provision ambiguous but conclude that the Board’s interpretation is reasonable and entitled to deference under Chevron. We therefore deny Coyomani’s petition.

I. Background

Before we describe Coyomani’s path through the immigration courts, we will briefly summarize the relevant statutory scheme and a few background concepts. “Federal immigration law governs both the exclusion of aliens from admission to this country and the deportation of aliens previously admitted.” Judulang v. Holder, 132 S. Ct. 476, 479 (2011). A “removable” individual is one whom the immigration authorities may lawfully expel from the United States; both “deportable” and “inadmissible” individuals are “removable.” INA § 240(e)(2); 8 U.S.C. § 1229a(a)(2); Zamora-Mallari v. Mukasey, 514 F.3d 679, 687 n.2 (7th Cir. 2008). A “deportable” individual is a non-citizen who (in many cases) was lawfully admitted into the United States, but who later became removable for any of a number of reasons specified in INA § 237(a) (for instance, by committing a specified offense). See generally AUSTIN T. FRAGOMEN, JR. & STEVEN C. BELL, IMMIGRATION FUNDAMENTALS 1-28 to -30, 7-11 (4th ed. 2013). An “inadmissible” individual is a non-citizen who (in many cases) was not formally admitted into the country, and who is removable for any of several reasons specified in INA § 212(a) (for example, by committing a crime involving moral turpitude). See id. See generally Xi v. INS, 298 F.3d 832, 838 (9th Cir. 2002) (discussing these terms and certain of their differences). However, a removable individual (whether inadmissible or deportable) is sometimes eligible to seek “cancellation of removal,” a form of discretionary relief that the Attorney General may grant. See INA § 240A; 8 U.S.C. § 1229b. To be eligible for cancellation of removal, a nonpermanent resident alien like Coyomani must satisfy four conditions. See INA § 240A(b)(1); 8 U.S.C. § 1229b(b)(1).

Only one of those conditions is relevant in this case: the requirement that Coyomani “has not been convicted of an offense under [INA] section 212(a)(2), 237(a)(2), or 237(a)(3).”[2] INA § 240A(b)(1)(C); 8 U.S.C. § 1229b(b)(1)(C). Section 237(a)(3)—relating to the fraudulent obtainment or misuse of a visa or other entry document—is not relevant in this case, but the other two cross-referenced sections are. As relevant here, INA § 212(a)(2) states that an alien is inadmissible if he commits a crime involving moral turpitude (a “CIMT,” for short) and the maximum sentence that can be imposed exceeds one year; and § 237(a)(2) provides that an alien is deportable if he commits any of a number of crimes, including “an aggravated felony at any time after admission.”

We now turn to the specifics of Coyomani’s case. Coyomani, a native and citizen of Mexico, entered the United States without inspection in 1997. In 2000, he was convicted in Illinois state court of domestic battery and of resisting a peace officer. In 2009, the Department of Homeland Security placed Coyomani in removal proceedings, charging him with inadmissibility as an alien present in the United States without being admitted or paroled, see INA § 212(a)(6)(A)(i); 8 U.S.C. § 1182(a)(6)(A)(i), and as an alien who had been convicted of a CIMT, see INA § 212(a)(2)(A)(i)(I); 8 U.S.C. § 1182(a)(2)(A)(i)(I).

Later in 2009, Coyomani appeared before an immigration judge (IJ), with counsel. He denied one ground of removability—the charge that he had committed a CIMT—but he conceded the other—that he was removable because he, as a non-citizen, was present in the United States without being admitted or paroled. Nonetheless, he sought cancellation of removal as a non-lawful permanent resident. The IJ concluded that Coyomani was both removable and ineligible for cancellation of removal.

The IJ found that Coyomani was removable because he was present without being admitted or paroled. However, the IJ did not sustain the other ground of removability: a CIMT conviction under INA § 212(a)(2). Although Coyomani was convicted of domestic battery, which qualifies as a CIMT, the IJ found that Coyomani “probably” satisfied the statutory exception due to the brevity of his sentence. See INA § 212(a)(2)(A)(ii)(II); 8 U.S.C. § 1182(a)(2)(A)(ii)(II). The IJ further determined that Coyomani’s other offense, resisting a peace officer, did not qualify as a CIMT.

Next, the IJ found that Coyomani was ineligible for cancellation of removal because he had been convicted of “an offense under” INA § 237(a)(2)—specifically, “an aggravated felony,” id. § 237(a)(2)(A)(iii). Essentially, the same crime— state domestic battery—had different implications for different sections of the INA, because § 212(a)(2) has a pertinent exception whereas § 237(a)(2) does not. The IJ noted that the Seventh Circuit had already considered the statute under which Coyomani was convicted, 720 ILCS 5/12-3.2(a)(1). See LaGuerre v. Mukasey, 526 F.3d 1037 (7th Cir. 2008). In that case, we held that domestic violence, as defined by the Illinois statute, was a crime of violence because “it has as an element the use of physical force . . . . Therefore, we concur with the IJ that LaGuerre’s domestic battery conviction is an aggravated felony that subjects LaGuerre to deportation.” Id. at 1039 (citing 8 U.S.C. § 1101(a)(43)(F)). In sum, because Coyomani had been convicted of a crime “under” INA § 237(a)(2), the IJ found him ineligible for cancellation of removal.

Coyomani had argued before the IJ (as he does on appeal) that § 237(a)(2) does not apply to him, because § 237(a)(2) provides that an alien is deportable if he commits an aggravated felony after admission, but Coyomani was never admitted. In Coyomani’s view, he is subject only to § 212, under which he might be eligible for cancellation of removal. The IJ found “a certain appeal to that argument,” but held that it was foreclosed by the BIA’s decision in Matter of Cortez, 25 I. & N. Dec. 301 (B.I.A. 2010). In that case, the Board explained that the provision that deals with eligibility for cancellation of removal cross-references three other INA sections. The Board held that only part of the cross-referenced provisions matters when determining eligibility for cancellation of removal. Specifically, the Board would look only at the elements of the crime and the sentence potentially imposed; it would not consider the portions of the crossreferenced provisions that refer to an alien’s immigration status—words like “after admission” and “deportable.” Id. at 308. The IJ deferred to the Board’s interpretation, “since the Seventh Circuit has not addressed this issue.” Therefore, the IJ dismissed Coyomani’s request for cancellation of removal.

Coyomani appealed to the Board, which agreed with the IJ’s analysis and conclusion. Relying on Cortez and Matter of Almanza, 24 I. & N. Dec. 771 (B.I.A. 2009), the Board held that an alien convicted of an offense described under INA § 237(a)(2) is ineligible for cancellation of removal under INA § 240A(b)(1)(C), irrespective of whether the alien is charged with removal under INA § 212 (as an inadmissible alien) or § 237 (as a deportable alien). The Board rejected Coyomani’s argument that the Second Circuit’s recent decision in Reyes v. Holder, 714 F.3d 731 (2d Cir. 2013), required a different result. (We address that decision below.) Coyomani petitioned our court for review of the Board’s decision.

II. Discussion

Whether an alien is statutorily eligible for cancellation of removal is a question of law that we have jurisdiction to review. See 8 U.S.C. § 1252(a)(2)(D); Iddir v. INS, 301 F.3d 492, 496-98 (7th Cir. 2002). Where, as here, the Board adopts the IJ’s opinion and also supplements it with the Board’s own reasoning, we review both decisions. Abraham v. Holder, 647 F.3d 626, 632 (7th Cir. 2011). We review questions of statutory interpretation de novo, though we often apply the familiar Chevron framework. INS v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999); Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842 (1984). This framework applies to the Board’s interpretations of the INA so long as (1) the Board’s reasoning is thorough, see Mata-Guerrero v. Holder, 627 F.3d 256, 259 (7th Cir. 2010); and (2) the Board’s decision is issued by a multi-member panel, or relies on a Board opinion that was issued by a multi-member panel, Lagunas-Salgado v. Holder, 584 F.3d 707, 711 (7th Cir. 2009). The Board’s opinion in this case meets these requirements. At Chevron’s first step, we determine—using ordinary principles of statutory interpretation—whether Congress has directly spoken to the precise question at issue. Chevron, 467 U.S. at 842-43 & n.9. If Congress has done so, our inquiry ends there. Id. at 842-43. If not, then Congress has left the “administrative agency with discretion to resolve a statutory ambiguity,” Ali v. Mukasey, 521 F.3d 737, 739 (7th Cir. 2008), so at step two, we require only that the agency’s interpretation be reasonable.

A. Chevron step one

We first consider whether Congress has directly answered the specific question in this case: whether INA § 240A(b)(1)(C)—which cross-references three other sections of the INA—clearly meant to cross-reference only the crime/punishment language of those three provisions. Recall that the Attorney General may cancel removal of an inadmissible or deportable alien if, among other things, “the alien. . . has not been convicted of an offense under [INA] section 212(a)(2) [or] 237(a)(2).” INA § 240A(b)(1)(C); 8 U.S.C. § 1229b(b)(1)(C). The pertinent cross-referenced provision in this case is INA § 237(a)(2), the relevant part of which states: “Any alien who is convicted of an aggravated felony at any time after admission is deportable.” INA § 237(a)(2)(A)(iii); 8 U.S.C. § 1227(a)(2)(A)(iii). Reading these two provisions together, the statute effectively says that the Attorney General may cancel removal for an inadmissible or deportable alien who has not been convicted of an offense under another provision of the statute that speaks explicitly, and only, in terms of deportable aliens. It is strange and confusing to use cross-references in this way, as one provision refers to two classes of aliens but then cross-references a different provision that specifically refers only to one such class, making the precise interaction of the two provisions unclear.

One way to demonstrate the ambiguity in this case is to consider the parties’ differing interpretations. The government says that INA § 240A(b)(1)(C) does not cross-reference all of §§ 212(a)(2), 237(a)(2), and 237(a)(3), but rather, refers only to the crime and punishment in those sections. This reading omits § 237(a)(2)’s reference to the immigration status of the particular individual. Coyomani, on the other hand, reads § 240A(b)(1)(C) as saying that inadmissible aliens are ineligible for cancellation of removal only if they commit an offense under § 212(a)(2), while deportable aliens are ineligible only if they commit an offense under § 237(a)(2) or (a)(3). Under his interpretation, he might be eligible for cancellation of removal.

Both sides’ interpretations help bring sense to a provision, § 240A(b)(1)(C), that refers to inadmissible and deportable individuals, but then cross-references provisions that (on their own) apply only to inadmissible or deportable individuals. However, neither interpretation is obviously required by the statute and both interpretations arguably read words out of the statute.[3] The government probably has the better interpretation and probably reads less out of the statute than does Coyomani. But there is a distinction between “clear” meaning and a “better” reading. Cf. Note, “How Clear is Clear” in Chevron’s Step One?, 118 HARV. L. REV. 1687 (2005) (exploring this distinction).

In this case, there was a much simpler, clearer, and more direct way for Congress to convey the meaning that the Board gives the statutory phrase: simply list the crimes (e.g., “aggravated battery”) rather than cross-referencing provisions that list crimes committed by individuals with a particular immigration status. In other words, Congress could simply have said, “the Attorney General may cancel removal for an inadmissible or deportable alien who has not been convicted of an aggravated felony, a CIMT, etc.” Moreover, when Congress wanted to focus on the elements of a crime and the duration of the punishment—which is the gloss the Board gives § 240A(b)(1)(C)—it appears that Congress knew how to do so clearly. Indeed, that type of language appears in the INA in a section that § 240A(b)(1)(C) itself crossreferences. See INA § 212(a)(2)(A)(i) (“[A]ny alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of . . . a crime involving moral turpitude. . . .”); id. § 212(a)(2)(A)(ii)(II) (duration of possible and actual sentence); 8 U.S.C. § 1182(a)(2)(A)(i)-(ii). See generally INS v. St. Cyr, 533 U.S. 289, 318-19 (2001) (interpreting one section of a statute in light of other, clearer sections in the same statute). In light of the foregoing analysis—which suggests some confusion, potential contradictions, and a much clearer way to make the point that Congress may have been trying to make—we cannot say that INA § 240A(b)(1)(C) is “clear” at Chevron’s first step.

For his part, Coyomani argues that in light of a recent Second Circuit decision, it is clear that his interpretation is correct. We disagree. In Reyes v. Holder, 714 F.3d 731 (2d Cir. 2013), the Second Circuit was interpreting a regulation, promulgated pursuant to the Nicaraguan Adjustment and Central American Relief Act of 1997 (NACARA), that gives the Attorney General discretion to cancel the alien’s removal so long as the alien is not “inadmissible under section 212(a)(2) or (3) or deportable under section 237(a)(2), (3) or (4)” of the INA. 8 C.F.R. § 1240.66(b)(1). The Board had found that Reyes, an alien who had not been admitted, was ineligible for cancellation of removal because he had a conviction that would make an admitted alien “deportable” under INA § 237(a)(2). The Second Circuit found the Board’s interpretation inconsistent with the “plain language” of the regulation, under which “an applicant’s admission status (i.e., admitted or not admitted) is critical when determining an alien’s eligibility for . . . cancellation of removal.” 714 F.3d at 736. In other words, the Reyes court found that the regulation explicitly treated inadmissible aliens differently (and more favorably) than deportable aliens. Id.

Reyes does not help Coyomani, though, because the two statutory provisions in his case seem to conflict—one provision, INA § 237(a)(2), distinguishes between inadmissible and deportable aliens, whereas the other, § 240A(b)(1)(C), does not. Thus, the regulation at issue in Reyes possesses the clarity that the statute in Coyomani’s case lacks. Moreover, the Reyes court relied on the Board’s approach in Cortez, which if anything seems to support the government’s position in this case. See 714 F.3d at 737. Finally, the Second Circuit was interpreting a regulation promulgated pursuant to a different statute than the one at issue here. For these reasons, Coyomani’s argument is unconvincing.

Meanwhile, the government implies that if we find INA § 240A(b)(1)(C) ambiguous (as we do), we are essentially saying that it’s possible to construe this provision as treating inadmissible individuals more favorably than deportable individuals (because there would be two grounds for finding deportable aliens ineligible for cancellation of removal, but only one for finding inadmissible aliens ineligible). It is true that, if adopted by the Board, such a reading could in some cases reward those who enter the country unlawfully vis-àvis those who enter lawfully. While that result might seem anomalous, several courts have observed that there may be good reasons for it, so we are untroubled by this possibility. See Reyes, 714 F.3d at 737 (“Congress’s harsher treatment of legal permanent residents (`LPRs’) may be justified on the basis that an LPR’s violation of American laws represents a greater betrayal or poses a heightened concern of recidivism, and therefore calls for harsher measures under the immigration laws.”) (citation and internal quotation marks omitted); Taniguchi v. Schultz, 303 F.3d 950, 957-58 (9th Cir. 2002) (noting that lawful permanent residents “enjoy substantial rights and privileges not shared by other aliens, and therefore `it is arguably proper to hold them to a higher standard and level of responsibility than [non LPRs]‘” (quoting Moore v. Ashcroft, 251 F.3d 919, 925 (11th Cir. 2001))).

Finally, we realize that some of our sister circuits consider legislative history at this juncture, see, e.g., Gonzalez-Gonzalez v. Ashcroft, 390 F.3d 649, 652-53 (9th Cir. 2004), but we prefer to save that inquiry for Chevron’s second step. See Emergency Servs. Billing Corp. v. Allstate Ins. Co., 668 F.3d 459, 465 (7th Cir. 2012) (“In this Circuit, `we seem to lean toward reserving consideration of legislative history . . . until the second Chevron step.’” (quoting Bankers Life & Cas. Co. v. United States, 142 F.3d 973, 983 (7th Cir. 1998))). For these reasons, we do not find the meaning of INA § 240A(b)(1)(C) “clear” at Chevron’s first step. We recognize that the Ninth Circuit found this provision clear at Chevron’s first step, concluding that the BIA’s interpretation was “[t]he most logical reading.” Gonzalez-Gonzalez, 390 F.3d at 652. However, there is a difference—which may be important in some Chevron cases—between clear meaning and the best of several interpretive choices. In any event, we agree with the Ninth Circuit that the Board’s reading is probably the most plausible, so we find the Board’s interpretation reasonable at step two.

B. Chevron step two

At the second stage of the Chevron analysis, we determine whether the agency’s interpretation is reasonable. Our review at this stage is deferential; we will uphold the agency’s interpretation so long as it is “a permissible construction of the statute.” Chevron, 467 U.S. at 843. The government explains the Board’s approach as follows: “in determining whether offenses are `described under’ INA §§ 212(a)(2), 237(a)(2), and 237(a)(3) for purposes of the eligibility criteria of INA § 240A(b)(1)(C), only language specifically pertaining to the criminal offense, such as the offense itself and the sentence imposed or potentially imposed, should be considered.” Gov’t Brief, 13-14 (citing Cortez, 25 I. & N. Dec. at 307-08; Almanza, 24 I. & N. Dec. at 771). Under this interpretation, it does not matter whether the particular individual is “inadmissible” or “deportable.”

This interpretation is reasonable. It is a sensible way (and perhaps the only way) to give effect to each word of INA § 240A(b)(1)(C). To be sure, this interpretation does not give effect to certain words in the cross-referenced provisions, but as noted, every possible construction necessarily reads out certain terms. And it is quite possible that by using the phrase “offense under,” Congress meant to do exactly what the Board has done (even if Congress could have achieved this result much more clearly). See Gonzalez-Gonzalez, 390 F.3d at 651-52. In addition, the Board’s interpretation gains further support from the fact that Congress has more precisely distinguished between “inadmissibility” and “deportability” in other provisions of the INA. See, e.g., INA § 240A(d)(1) (explaining that, when measuring an alien’s period of continuous physical presence in the United States, the clock stops “when the alien has committed an offense . . . that renders the alien inadmissible to the United States under section 212(a)(2) or removable from the United States under section 237(a)(2) or 237(a)(4), whichever is earliest”); 8 U.S.C. § 1229b(d)(1); Cortez, 25 I. & N. Dec. at 308.

Finally, while we do not need to look to drafting history to resolve this dispute, it lends further support to the Board’s interpretation. An earlier version of INA § 240A(b)(1) allowed cancellation of removal only for an alien who “has at no time been convicted of an offense that would render the alien inadmissible under section 212(a)(2)(A) or deportable under . . . sections 237(a)(2) or 237(a)(3).” H.R. Conf. Rep. No. 828, 104th Cong., 2d Sess. 213 (1996). This earlier version would have supported Coyomani’s interpretation. See Gonzalez-Gonzalez, 390 F.3d at 652-53. As enacted, however, the section does not refer to (or distinguish between) grounds of inadmissibility and grounds of deportability; instead, the enacted text allows cancellation for an alien who “has not been convicted of an offense under [INA] section 212(a)(2), 237(a)(2), or 237(a)(3).” Id.

III. Conclusion

Because the Board has reasonably resolved a statutory ambiguity, we defer to its interpretation under Chevron. Coyomani’s petition for review is therefore DENIED.

[1] In his brief, the petitioner refers to himself as Carlos Coyomani, not Carlos Coyomani-Cielo. We follow his practice in our opinion.

[2] The other three elements are presence in the United States for a continuous period of 10 years, good moral character, and a showing that removal would result in exceptional hardship to the alien’s U.S. citizen spouse, parent, or child. See INA § 240A(b)(1); 8 U.S.C. § 1229b(b)(1).

[3] The Board’s interpretation of INA § 240A(b)(1)(C) gives effect only to part of § 237(a)(2)—the words, “Any alien who is convicted of an aggravated felony.” This interpretation does not give effect to the references to “admission” and “deportable.” Similarly, Coyomani’s reading of INA § 240A(b)(1)(C) twists the language so that an inadmissible alien, for instance, is ineligible for cancellation only if he is convicted of an offense under § 212(a)(2), even though § 240A(b)(1)(C) cross-references two other provisions as well.

Posted in 7th Circuit, 7th Circuit Cases- Aliens, BIA, Cancellation of Removal, CIMT, Crime involving moral turpitude, Domestic battery | Leave a comment

CA7 remands to conduct the three-step inquiry in Matter of Silva-Trevino

“In Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. 2008), the Attorney General established a three-step framework for immigration judges and the Board to use to determine whether an alien’s conviction qualifies as a CIMT. At the first step, the adjudicator is to evaluate the criminal statute on a categorical basis and “determine whether there is a ‘realistic probability, not a theoretical possibility,’ that the State or Federal criminal statute pursuant to which the alien was convicted would be applied to reach conduct that does not involve moral turpitude.” Id. at 689-90 (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193, 127 S. Ct. 815, 166 L. Ed. 2d 683 (2007)). If it appears that the government in question would apply its criminal statute to reach both turpitudinous and non-turpitudinous acts—perhaps because the statute is divisible, but also because the statute could realistically cover a wide range of conduct—the adjudicator is instructed to proceed to step two. At this point, the adjudicator should examine the alien’s record of conviction—including the charging document, the judgment of conviction, jury instructions, a signed guilty plea, or a plea transcript—to determine which part of the statute the alien’s conviction falls under (in the case of a divisible statute), or whether the alien’s conduct otherwise “evidences a crime that in fact involved moral turpitude.” Id. at 690.”

The Attorney General’s decision in Silva-Trevino describes the inquiry as being comprised of two “stages”: an initial stage where the adjudicator evaluates the statute on a categorical basis, and a second stage in which the adjudicator first examines the record of conviction and then, if necessary, considers additional evidence. See 24 I. & N. Dec. at 698-99, 703. However, CA7 and others have described the analysis as comprising three steps. See, e.g., Mata-Guerrero, 627 F.3d at 260; Olivas-Motta v. Holder, 746 F.3d 907, 910-11 (9th Cir. 2013).

The record of conviction may also fail to resolve the matter. If that’s the case, Silva-Trevino instructs the adjudicator to proceed to a third step and consider evidence beyond the record of conviction “if doing so is necessary and appropriate to ensure proper application of the [INA]‘s moral turpitude provisions.” Id. at 699. As the Attorney General explained, expanding the CIMT inquiry beyond the formal record of conviction “result[s] in more accurate determinations of who falls within the scope” of the INA’s moral turpitude provisions, and “better accord[s] with the statute’s demands for individualized adjudications.” Id. at 702. The Attorney General also reasoned that the alternative—limiting the inquiry to the wording of the criminal statute and whatever information the government happens to include in its charging documents and other records—”would be in tension with the goals of the immigration act” and “would also unfairly apply immigration penalties to aliens whose individual crimes did not, in actuality, involve moral turpitude.” Mata-Guerrero, 627 F.3d at 261 (citing Silva-Trevino, 24 I. & N. Dec. at 700). “In other words, the ultimate purpose of [the CIMT] analysis is to look at the actual crime committed by the individual alien.” Id.

The individualized inquiry mandated by Silva-Trevino is consistent with CA7′s circuit’s precedent. See Ali v. Mukasey, 521 F.3d 737, 743 (7th Cir. 2008) (deferring to Matter of Babaisakov, 24 I. & N. Dec. 306 (B.I.A. 2007), and holding that “when deciding how to classify convictions under criteria that go beyond the criminal charge—such as … whether the crime is one of ‘moral turpitude’, the agency has the discretion to consider evidence beyond the charging papers and judgment of conviction”). Accordingly, CA7 has deferred to the Attorney General’s decision. Mata-Guerrero, 627 F.3d at 260; see also Marin-Rodriguez v. Holder, 710 F.3d 734, 738 (7th Cir. 2013). The Attorney General’s determination of this issue of law is therefore controlling, see 8 U.S.C. § 1103(a)(1), and “there is no longer any question regarding which methodology should be used to determine whether a crime is or is not a crime of moral turpitude.” Mata-Guerrero, 627 F.3d at 260.

Here, Sanchez, a citizen of El Salvador, entered the U.S. without inspection in 1989. Sanchez is now 47, married to a lawful permanent resident, and has four children, all U.S. citizens. Sanchez sought asylum and withholding of removal and applied for special rule cancellation of removal under the Nicaraguan Adjustment & Central American Relief Act (NACARA), 111 Stat. 2160, 2644 and under 8 U.S.C. 1229b(b), based on exceptional hardship to his children. While removal proceedings were pending, the government submitted evidence that Sanchez was not eligible for NACARA relief because he had assisted in the persecution of others while serving in the El Salvador military. Sanchez asked for a continuance. At Sanchez’s next hearing, in August 2009, Sanchez stated that he had been arrested in 2008 for leaving the scene of an accident where serious bodily injury occurred. The GOVERNMENT argued that Sanchez’s conduct constituted a crime involving moral turpitude under 8 U.S.C. 1182(a)(2)(A)(i). Sanchez submitted a docket sheet showing that he was charged with a Class D felony, although the court entered the conviction as a misdemeanor and imposed a sentence of 365 days in jail with 363 days suspended. Sanchez claimed that, because of weather conditions, he thought that he had merely hit “a post or a small object” and only learned that he had hit a person when police arrived at his residence the next day. The IJ ordered removal; the BIA dismissed an appeal. The Seventh Circuit remanded, stating that the Board did not properly conduct the three-step inquiry prescribed in Matter of Silva-Trevino.

Download opinion, Sanchez v Holder 13-2653-2014-07-09
———————————————-
FREDY ARNOLDO SANCHEZ, Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General of the United States, Respondent.

No. 13-2653
United States Court of Appeals, Seventh Circuit.

Argued February 24, 2014.
Decided July 9, 2014.
Before FLAUM and ROVNER, Circuit Judges, and KENDALL, District Judge.[*]

FLAUM, Circuit Judge.

Fredy Arnoldo Sanchez seeks review of a Board of Immigration Appeals decision dismissing his appeal of the immigration judge’s order of removal. The Board determined that Sanchez was ineligible for cancellation of removal because he failed to prove that he had not been convicted of a crime involving moral turpitude. Because the Board did not properly conduct the three-step inquiry prescribed in Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. 2008), we grant Sanchez’s petition and remand for further proceedings.

I. Background.

Fredy Arnoldo Sanchez, a citizen and native of El Salvador, entered the United States without inspection in 1989. Sanchez is now forty-seven, is married to a lawful permanent resident, and has four children, all of whom are U.S. citizens. He lives in Indianapolis, Indiana.

In either 1989 or 1994 (the parties dispute this, but it does not matter for this appeal), Sanchez filed an application for asylum and withholding of removal. In 2002, he filed an additional application for special rule cancellation of removal under § 203 of the Nicaraguan Adjustment and Central American Relief Act (NACARA), Pub. L. No. 105-100, 111 Stat. 2160, as amended by Pub. L. No. 105-139, 111 Stat. 2644 (1997). After an interview, the Department of Homeland Security referred Sanchez’s applications to an immigration judge (IJ). He was charged with removability under § 212(a)(6)(A)(i) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1182(a)(6)(A)(i), as an alien present in the United States without admission or parole.

Sanchez conceded his removability during his initial appearance before the IJ in August 2006. At his next hearing, in December 2007, Sanchez submitted a renewed application for NACARA special rule cancellation of removal along with an application for cancellation of removal under INA § 240A(b), 8 U.S.C. § 1229b(b), based on exceptional hardship to his U.S. citizen children. While his removal proceedings were pending, the government submitted evidence that Sanchez was not eligible for NACARA relief because he had assisted in the persecution of others while serving in the El Salvador military. Sanchez asked for a continuance to respond to the government’s allegations.

At Sanchez’s next hearing, in August 2009, a new issue arose. Sanchez told the IJ that he had been arrested in Indiana in September 2008 “for leaving the scene of an accident where serious bodily injury occurred.” Apparently hearing this information for the first time, the government argued that Sanchez’s conduct constituted a crime involving moral turpitude. An alien convicted of a crime involving moral turpitude (a CIMT, for short) is statutorily ineligible for cancellation of removal under either the INA or NACARA, subject to exceptions not at issue here. See 8 U.S.C. § 1182(a)(2)(A)(i) (“any alien convicted of, or who admits having committed, or who admits committing acts that constitute the essential elements of … a crime involving moral turpitude” is inadmissible, subject to exceptions); id. § 1101(f)(3) (a person cannot show good moral character if she has been convicted of a crime of moral turpitude during the relevant period); id. § 1229b(b)(1)(C) (the Attorney General may cancel the removal of a nonpermanent resident who “has not been convicted of an offense under section 1182(a)(2)”). The INA does not define the term. However, the Board of Immigration Appeals and our circuit have described a CIMT as “conduct that shocks the public conscience as being `inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.’” Lagunas-Salgado v. Holder, 584 F.3d 707, 710 (7th Cir. 2009) (quoting In re Solon, 24 I. & N. Dec. 239, 240 (B.I.A. 2007)).

The IJ continued the proceedings again to allow Sanchez to provide more information about his Indiana arrest. Sanchez then submitted a “case chronology printout” (a docket sheet) from the Criminal Division of the Marion Superior Court. The printout states that in October 2009, Sanchez pleaded guilty to one count of a violation of Ind. Code § 9-26-1-8, “Failure to stop and remain at scene of accident resulting in injury or death.” That provision holds that “[a] person who knowingly or intentionally fails to stop or comply with section 1(1) or 1(2) of this chapter after causing injury to a person commits … a Class D felony if … the accident involves serious bodily injury to a person.” The referenced section, Ind. Code § 9-26-1-1, “Duties of driver of vehicle involved in accident resulting in injury, death, or entrapment,” provides:

Except as provided in section 1.5 of this chapter[[1]], the driver of a motor vehicle involved in an accident that results in the injury or death of a person or the entrapment of a person in a vehicle shall do the following:
(1) Immediately stop the driver’s motor vehicle at the scene of the accident or as close to the accident as possible in a manner that does not obstruct traffic more than is necessary.
(2) Immediately return to and remain at the scene of the accident until the driver does the following:
(A) Gives the driver’s name and address and the registration number of the motor vehicle the driver was driving.
(B) Upon request, exhibits the driver’s license of the driver to the following:
(i) The person struck.
(ii) The driver or occupant of or person attending each vehicle involved in the accident.
(C) Subject to section 1.5(a) of this chapter, determines the need for and renders reasonable assistance to each person injured or entrapped in the accident, including the removal of, or the making of arrangements for the removal of:
(i) each injured person from the scene of the accident to a physician or hospital for medical treatment; and
(ii) each entrapped person from the vehicle in which the person is entrapped.
(3) Subject to section 1.5(b) of this chapter, immediately give notice of the accident by the quickest means of communication to one (1) of the following:
(A) The local police department, if the accident occurs within a municipality.
(B) The office of the county sheriff or the nearest state police post, if the accident occurs outside a municipality.
The case printout indicates that Sanchez was charged with a Class D felony because the incident involved serious bodily injury, although the Marion Superior Court ultimately entered the conviction as a misdemeanor.[2] The court gave Sanchez a sentence of 365 days in jail with 363 days suspended. He received 363 days of probation.

Sanchez also submitted his plea agreement to the immigration court. It states that he agreed to plead guilty to “Count I Failure to Stop After Accident Resulting In Serious Bodily Injury Class D Felony.” In addition, Sanchez provided a personal affidavit explaining the circumstances surrounding the accident. It recounts that Sanchez was driving at night on a road without any lights, that it was raining heavily, and that there was a lot of fog. He “heard a noise, which was an impact on [his] car.” Unsure whether he could stop safely in traffic, and believing that he had merely hit “a post or a small object,” Sanchez continued driving. The affidavit states that he only became aware that he had hit a person when police officers arrived at his residence the next day and told him.

During the final hearing, in September 2011, the IJ examined the documents and questioned Sanchez. The IJ then orally denied his applications for cancellation of removal, followed by a written order. Defining a CIMT as a crime “viewed as a reprehensible act” and having “some requirement of mens rea,” the IJ reasoned that because “the record reflects that the respondent pled guilty to knowingly or intentionally failing to stop [after] causing injury to a person,” Sanchez’s offense was a CIMT “under the categorical approach.” The IJ ordered Sanchez’s removal to El Salvador.

Sanchez appealed the IJ’s decision to the Board of Immigration Appeals. The Board began its analysis by emphasizing that under 8 C.F.R. § 1240.8(d), “[t]he respondent has the burden of establishing that he is eligible for any requested benefit,” and “[i]f the evidence indicates that one or more of the grounds for mandatory denial of the application for relief may apply, the respondent shall have the burden of proving by a preponderance of the evidence that such grounds do not apply.” The Board then stated that it “agree[d] with the Immigration Judge that the respondent did not meet his burden of proving … that his criminal conviction is not a CIMT.”

The Board explained its reasoning in three sentences. In the first, it acknowledged Sanchez’s argument, made in his briefing, that “there is a realistic probability that the statute has been applied to offenses that both are and are not CIMT[s].” But the Board next concluded that “the respondent has not established that he was not convicted under a portion of the statute that does not qualify as a CIMT,” because “[a]side from the `case chronology’ printout from the Indiana court, there is no other evidence regarding his conviction.” Accordingly, the Board dismissed Sanchez’s appeal.

II. Discussion.

The classification of a crime as one of moral turpitude is a question of law that we have jurisdiction to review. 8 U.S.C. § 1252(a)(2)(D). The parties agree that because the Board issued its own free-standing opinion, “rather than adopting or merely supplementing the opinion of the IJ,” we review the Board’s opinion. Moab v. Gonzales, 500 F.3d 656, 659 (7th Cir. 2007). Because the Board is explicating an undefined term in a statute that the agency is entrusted to administer, under certain circumstances we would defer to its determination pursuant to Chevron. Mata-Guerrero v. Holder, 627 F.3d 256, 259 (7th Cir. 2010). But where—as here—we are reviewing a non-precedential Board decision, issued by a single member, which does not rely on agency precedent, the Board’s CIMT determination can receive only Skidmore deference. Arobelidze v. Holder, 653 F.3d 513, 520 (7th Cir. 2011). This means that the Board’s decision is “entitled to respect—but only to the extent that it has the power to persuade.” Id. (quotation marks and brackets omitted).

Here, the Board’s decision lacks persuasive power because the Board did not use the proper analytical methodology. For this reason, we vacate its decision and remand.

In Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. 2008), the Attorney General established a three-step framework for immigration judges and the Board to use to determine whether an alien’s conviction qualifies as a CIMT.[3] At the first step, the adjudicator is to evaluate the criminal statute on a categorical basis and “determine whether there is a `realistic probability, not a theoretical possibility,’ that the State or Federal criminal statute pursuant to which the alien was convicted would be applied to reach conduct that does not involve moral turpitude.” Id. at 689-90 (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)). If it appears that the government in question would apply its criminal statute to reach both turpitudinous and non-turpitudinous acts— perhaps because the statute is divisible, but also because the statute could realistically cover a wide range of conduct— the adjudicator is instructed to proceed to step two. At this point, the adjudicator should examine the alien’s record of conviction—including the charging document, the judgment of conviction, jury instructions, a signed guilty plea, or a plea transcript—to determine which part of the statute the alien’s conviction falls under (in the case of a divisible statute), or whether the alien’s conduct otherwise “evidences a crime that in fact involved moral turpitude.” Id. at 690.

The record of conviction may also fail to resolve the matter. If that’s the case, Silva-Trevino instructs the adjudicator to proceed to a third step and consider evidence beyond the record of conviction “if doing so is necessary and appropriate to ensure proper application of the [INA]‘s moral turpitude provisions.” Id. at 699. As the Attorney General explained, expanding the CIMT inquiry beyond the formal record of conviction “result[s] in more accurate determinations of who falls within the scope” of the INA’s moral turpi-tuden provisions, and “better accord[s] with the statute’s demands for individualized adjudications.” Id. at 702. The Attorney General also reasoned that the alternative—limiting the inquiry to the wording of the criminal statute and whatever information the government happens to include in its charging documents and other records—”would be in tension with the goals of the immigration act” and “would also unfairly apply immigration penalties to aliens whose individual crimes did not, in actuality, involve moral turpitude.” Mata-Guerrero, 627 F.3d at 261 (citing Silva-Trevino, 24 I. & N. Dec. at 700). “In other words, the ultimate purpose of [the CIMT] analysis is to look at the actual crime committed by the individual alien.” Id.

The individualized inquiry mandated by Silva-Trevino is consistent with our circuit’s precedent. See Ali v. Mukasey, 521 F.3d 737, 743 (7th Cir. 2008) (deferring to Matter of Babaisakov, 24 I. & N. Dec. 306 (B.I.A. 2007), and holding that “when deciding how to classify convictions under criteria that go beyond the criminal charge—such as … whether the crime is one of `moral turpitude’, the agency has the discretion to consider evidence beyond the charging papers and judgment of conviction”). Accordingly, we have deferred to the Attorney General’s decision. Mata-Guerrero, 627 F.3d at 260; see also Marin-Rodriguez v. Holder, 710 F.3d 734, 738 (7th Cir. 2013). The Attorney General’s determination of this issue of law is therefore controlling, see 8 U.S.C. § 1103(a)(1), and “there is no longer any question regarding which methodology should be used to determine whether a crime is or is not a crime of moral turpitude.” Mata-Guerrero, 627 F.3d at 260.[4]

The Board cited Silva-Trevino in passing. But it did not properly employ its methodology. Nowhere in its discussion does the Board state a conclusion—required at Silva-Trevino’s first step—that some portion of the conduct described in Ind. Code §§ 9-26-1-8 and 9-26-1-1 categorically qualifies as a CIMT. Similarly, the Board did not state what conclusion, if any, it drew from Sanchez’s record of conviction; it merely mentioned (incorrectly) that Sanchez’s case chronology printout was the only evidence of his conviction. Given the Board’s ultimate conclusion, it could be that the Board found the case chronology printout inconclusive. But if that was the case, then the Board should have proceeded to the third Silva-Trevino step and decided whether it was “necessary or appropriate,” in order to “resolve accurately the moral turpitude question,” to consider evidence beyond the docket sheet—for instance, by considering Sanchez’s affidavit, or else remanding to the IJ to hear additional evidence. Silva-Trevino, 24 I. & N. Dec. at 704.

True, the IJ and the Board retain substantial discretion in making the decision to consider evidence outside the formal record of conviction. Mata-Guerrero v. Holder, 639 F.3d 276, 277 (7th Cir. 2011). However, the adjudicator must still exercise that discretion: The Board should have explained its determination that additional evidence was not necessary or appropriate to resolve the moral turpitude question, if that was indeed what the Board thought. See Silva-Trevino, 24 I. & N. Dec. at 704. But if anything, the Board’s reasoning suggests that additional evidence was necessary.

Rather than reaching conclusions at each step of the Silva-Trevino analysis, the Board’s decision rests on a burdenof-proof rationale. Under 8 C.F.R. § 1240.8(d), the alien has the burden to establish her eligibility for any form of relief from removal. And “[i]f the evidence indicates that one or more of the grounds for mandatory denial of the application for relief may apply, the alien shall have the burden of proving by a preponderance of the evidence that such grounds do not apply.” 8 C.F.R. § 1240.8(d).[5] The Board appears to have reasoned that because Sanchez had the burden to show that he had not been convicted of a CIMT, and because the record of conviction did not shed light on the matter, Sanchez lost by default.

However, the Board improperly applied 8 C.F.R. § 1240.8(d) to the inquiry at issue. The Attorney General has instructed that in inadmissibility cases like Sanchez’s, “[i]t would be the alien’s burden, in the first stage of the inquiry, to show that the criminal statute under which he had been convicted has actually been applied to conduct that did not involve moral turpitude.” Silva-Trevino, 24 I. & N. Dec. at 703 n.4. We may assume (without deciding) that at least some portion of Ind. Code § 9-26-1-8 could amount to a CIMT, as willfully leaving the scene of an accident—knowing that someone has been hurt—”is intrinsically wrong” and “reflects an intentional attempt to evade responsibility.” Garcia-Maldonado v. Gonzales, 491 F.3d 284, 290 (5th Cir. 2007).

But in his brief to the Board, Sanchez presented case law establishing that drivers can be convicted under Ind. Code § 9-26-1-8 for violating any of the duties listed in § 9-26-1-1, not just for committing a hit-and-run. See Barton v. State, 936 N.E.2d 842, 848-49 (Ind. Ct. App. 2010); Barber v. State, 863 N.E.2d 1199, 1205-06 (Ind. Ct. App. 2007). Sanchez also presented cases in which Indiana courts upheld convictions under § 9-26-1-8 where the driver mistakenly thought the authorities had his identifying information, see Barton, 936 N.E.2d at 854; where the driver called 911 and left her vehicle at the scene but did not stay at the scene herself, see Nield v. State, 677 N.E.2d 79, 80-81 (Ind. Ct. App. 1997); and where the driver, having called 911, returned to the scene after fourteen minutes, see Fleming v. State, No. 64A03-0703-CR-134, 2008 WL 113910, at *1 (Ind. Ct. App. Jan. 11, 2008). This showing should be sufficient to carry Sanchez’s burden of demonstrating that the statute has a realistic probability of being applied to conduct that is not morally turpitudinous— or, put another way, that moral turpitude does not “necessarily inhere[] in the cases that have a `realistic probability’ of being prosecuted.” Silva-Trevino, 24 I. & N. Dec. at 705. In any event, the Board did not find to the contrary.

Instead, the Board moved straight to the second Silva-Trevino step and found that Sanchez “did not meet his burden of proving … that his criminal conviction is not a CIMT” because he “has not established that he was not convicted under a portion of the statute that does not qualify.” Again, it seems that the Board reached this conclusion because it found the case chronology printout inconclusive regarding Sanchez’s charge. But if the record of conviction does not answer the question, it does not follow that the alien has failed to carry his burden and the inquiry is over. It only means that the adjudicator should exercise its discretion to consider additional evidence (or else explain why it declined to do so). Only if the matter is still inconclusive after that step— perhaps because the evidence is closely balanced, or the adjudicator finds that the alien’s account lacks credibility—will the burden of proof come into play. But just because Sanchez may ultimately lose in the event of a tie does not mean that the Board can end the inquiry early.[6]

Because the Board did not properly apply the Silva-Trevino framework, we grant Sanchez’s petition and remand for further proceedings. See Mata-Guerrero, 627 F.3d at 257 (granting alien’s petition for review “[b]ecause the Attorney General’s determination of the appropriate methodology is controlling, and because the Board did not use that methodology in Mata-Guerrero’s case”). We do not reach the question whether any portion of Ind. Code § 9-26-1-8 categorically qualifies as a CIMT. But the Board should consider this threshold issue more thoroughly on remand.

As noted above, both the Board and our court have described CIMTs as involving conduct that is “inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.” We have described the distinction between CIMTs and other crimes as one between “acts that are seen as ethically wrong without any need for legal prohibition (acts wrong in themselves, or malum in se), and those that are ethically neutral and forbidden only by positive enactment (acts wrong because they are so decreed, or malum prohibitum).” Ali, 521 F.3d at 740. But we have also emphasized that it is “a question of the offender’s evil intent or corruption of the mind.” Lagunas-Salgado, 584 F.3d at 710 (quotation marks omitted).

Sanchez argues that Ind. Code § 9-26-1-1 prescribes a laundry list of duties required of a driver who is involved in a serious accident, some of which amount to technical offenses that are merely malum prohibitum. Cf. Cerezo v. Mukasey, 512 F.3d 1163, 1167 (9th Cir. 2008) (examining an analogous California statute and noting that “[t]he failure to provide a vehicle registration number [when the driver stops and provides other identification] is not base, vile and depraved; nor does it necessarily evince any willfulness or evil intent, a requisite element of crimes of moral turpitude”). Though not conceding the point, the government responds that, at the very least, the portion of § 9-26-1-8 criminalizing “knowingly or intentionally fail[ing] to stop … after causing injury” categorically qualifies as a CIMT.

That blanket assertion, however, is debatable. Although the statute includes a mens rea of “knowingly or intentionally,” Indiana courts have held that a driver can be convicted under § 9-26-1-8 absent actual knowledge that an accident occurred or that a person was injured. See, e.g., Micinski v. State, 487 N.E.2d 150, 153 (Ind. 1986) (construing similar predecessor statute); State v. Gradison, 758 N.E.2d 1008, 1011 (Ind. Ct. App. 2001). The Indiana courts instead reason that “[w]here conditions were such that the driver should have known that an accident occurred or should have reasonably anticipated that the accident resulted in injury to a person, the requisite proof of knowledge is present.” Gradison, 758 N.E.2d at 1011 (emphasis added).

Sanchez argues that this “reasonably should have known” standard is the equivalent of negligence—and further, that negligence is not the equivalent of “evil intent or corruption of the mind” under Board and judicial precedent. See, e.g., Matter of Perez-Contreras, 20 I. & N. Dec. 615, 619 (B.I.A. 1992) (“Since there was no intent required for conviction, nor any conscious disregard of a substantial and unjustifiable risk, we find no moral turpitude inherent in the statute.”); Partyka v. Attorney Gen., 417 F.3d 408, 414-16 (3d Cir. 2005) (aggravated assault of a law enforcement officer not a CIMT if committed negligently); Silva-Trevino, 24 I. & N. Dec. at 706 n.5 (discussing with approval judicial precedents describing CIMTs as crimes involving “reprehensible conduct that is committed intentionally or with some other form of scienter such as willfulness or recklessness”). The upshot of all this is that even if it’s established that Sanchez was convicted for “knowingly … failing to stop” (as his plea agreement indicates), this conviction is not necessarily a CIMT. If so, further inquiry into the circumstances of Sanchez’s offense—in particular, whether he actually knew that he hit a person—could be “necessary or appropriate to resolve accurately the moral turpitude question.” As the Board did not address this argument in dismissing Sanchez’s appeal, we ask it to consider the matter on remand.[7]

III. Conclusion.

We therefore GRANT the petition for review and REMAND the case to the Board of Immigration Appeals for further proceedings consistent with this opinion.

[*] Of the Northern District of Illinois, sitting by designation.

[1] Ind. Code § 9-26-1-1.5 concerns the responsibilities of a passenger when the driver is physically incapacitated.

[2] This was done pursuant to Ind. Code § 35-50-2-7(c), which holds that “if a person has committed a Class D felony … the court may enter judgment of conviction of a Class A misdemeanor and sentence accordingly.”

[3] The Attorney General’s decision in Silva-Trevino describes the inquiry as being comprised of two “stages”: an initial stage where the adjudicator evaluates the statute on a categorical basis, and a second stage in which the adjudicator first examines the record of conviction and then, if necessary, considers additional evidence. See 24 I. & N. Dec. at 698-99, 703 n.4. However, our court and others have described the analysis as comprising three steps. See, e.g., Mata-Guerrero, 627 F.3d at 260; Olivas-Motta v. Holder, 746 F.3d 907, 910-11 (9th Cir. 2013).

[4] We note that several of our sister circuits have rejected the Silva-Trevino methodology as contrary to the unambiguous language in the INA. See Silva-Trevino v. Holder, 742 F.3d 197, 200 (5th Cir. 2014); Olivas-Motta, 746 F.3d at 916; Prudencio v. Holder, 669 F.3d 472, 482 (4th Cir. 2012); Fajardo v. Attorney Gen., 659 F.3d 1303, 1309-10 (11th Cir. 2011); Jean-Louis v. Attorney Gen., 582 F.3d 462, 473 (3d Cir. 2009). But see Bobadilla v. Holder, 679 F.3d 1052, 1057 (8th Cir. 2012) (deferring to Silva-Trevino). In his opening brief, Sanchez asked us to reconsider Ali and Mata-Guerrero and join those circuits in holding that the IJ and the Board are confined to the record of conviction in determining whether an alien has been convicted of a CIMT. However, Sanchez abandoned this request in his reply brief, and we will not revisit our deference to Silva-Trevino in this case.

[5] Congress embraced 8 C.F.R. § 1240.8(d)’s standard in § 101(d) of the REAL ID Act, Pub. L. No. 109-13, 119 Stat. 304 (2005), codified at 8 U.S.C. § 1229a(c)(4). The parties do not dispute that because Sanchez filed his application for NACARA special rule cancellation of removal in 2002— before the REAL ID Act’s passage—8 U.S.C. § 1229a(c)(4) does not apply in his proceedings.

[6] For this reason, our understanding of 8 C.F.R. § 1240.8(d)’s operation is consistent with our sister circuits’ decisions in Young v. Holder, 697 F.3d 976, 988-90 (9th Cir. 2012) (en banc), Salem v. Holder, 647 F.3d 111, 115-16 (4th Cir. 2011), and Garcia v. Holder, 584 F.3d 1288, 1290 (10th Cir. 2009), which all held that an alien could not satisfy his burden to demonstrate eligibility for relief by presenting an inconclusive record of conviction.

In Young and Salem, the aliens were seeking cancellation of removal, and the government argued that they had been convicted of aggravated felonies. (Like a CIMT, an aggravated felony renders an alien ineligible for cancellation of removal. 8 U.S.C. §§ 1229b(a)(3), 1229b(b)(1)(c).) However, when determining whether a particular crime is an aggravated felony, the Ninth Circuit conducts a categorical analysis of the statute and, if necessary, a “modified categorical” analysis of the record of conviction; the court’s methodology does not call for the equivalent of Silva-Trevino’s third step. Young, 697 F.3d at 982-84. And although the Fourth Circuit, in Salem, reserved the question of whether it was appropriate to move past the modified categorical stage in the relief-from-removal context, the alien in that case did not attempt to present evidence outside the record of conviction—so the Fourth Circuit’s analysis was effectively at an end. 647 F.3d at 119. The Tenth Circuit’s Garcia decision, like ours, arose in the CIMT context. But the Tenth Circuit has not embraced Silva-Trevino’s third step. See Efagene v. Holder, 642 F.3d 918, 926 n.5 (10th Cir. 2011) (declining to address whether the Silva-Trevino framework is a reasonable interpretation of the INA); Dzerekey v. Holder, No. 13-9570, 2014 WL 1509207, at *4 n.6 (10th Cir. Apr. 18, 2014) (the circuit has still neither adopted nor rejected Silva-Trevino). Thus, we, the Fourth, the Ninth, and the Tenth Circuits all agree that if the analysis has run its course and the answer is still unclear, the alien loses by default. In our case, however, the Board did not go through the full analysis.

[7] It is possible—though not clear—that the Board was adopting the IJ’s analysis on this issue. If so, we also find the IJ’s reasoning lacking. The IJ described a CIMT as a crime that has “some requirement of mens rea.” That description is overinclusive, as “some requirement of mens rea” is broader than evil intent or reckless disregard for others. The IJ further explained that “[w]here a conviction occurs as a result of reckless conduct, the [Board] has generally held that it only constitutes a crime involving moral turpitude where serious bodily injury results.” Even assuming that is an accurate summary of the Board’s precedent, it may be the case that Indiana courts will convict under Ind. Code § 9-26-1-8 absent a showing of the defendant’s recklessness.

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

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

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

ID 3806 (PDF)

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


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

ID 3805 (PDF)

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


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

ID 3804 (PDF)

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


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

ID 3803 (PDF)

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


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

ID 3802 (PDF)

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


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

ID 3801 (PDF)

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

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


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

ID 3800 (PDF)

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


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

ID 3799 (PDF)

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


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

ID 3798 (PDF)

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


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

ID 3797 (PDF)

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

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

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


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

ID 3796 (PDF)

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

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

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

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

ID 3795 (PDF)

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

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

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


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

ID 3794 (PDF)

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

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

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

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


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

ID 3793 (PDF)

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


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

ID 3792 (PDF)

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

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

ID 3791 (PDF)

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

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


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

ID 3790 (PDF)

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


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

ID 3789 (PDF)

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

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


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

ID 3788 (PDF)

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

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


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

ID 3787 (PDF)

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


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

ID 3786 (PDF)

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


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

ID 3785 (PDF)

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

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

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


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

ID 3784 (PDF)

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

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

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


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

ID 3783 (PDF)

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


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

ID 3782 (PDF)

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


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

ID 3781 (PDF)

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


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

ID 3780 (PDF)

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


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

ID 3779 (PDF)

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

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


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

ID 3778 (PDF)

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


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

ID 3777 (PDF)

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


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

ID 3776 (PDF)

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

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

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


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

ID 3775 (PDF)

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


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

ID 3774 (PDF)

The offense of stalking in violation of section 646.9 of the California Penal Code is “a crime of stalking” under section 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2006).


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

ID 3773 (PDF)

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


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

ID 3772 (PDF)

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


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

ID 3771 (PDF)

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


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

ID 3770 (PDF)

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

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


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

ID 3769 (PDF)

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

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

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


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

ID 3768 (PDF)

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


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

ID 3767 (PDF)

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


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

ID 3766 (PDF)

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

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



Posted in BIA, BIA Precedent Decisions, BIA Precedent Decisions Volume 26, Board of Immigration Appeals, Executive Office for Immigration Review | Tagged | Leave a comment

CSPA Formulas for Calculating Age

Formulas for Calculating Age

Immediate Relatives: Filing of I-130 petition prior to age of 21 freezes age at the time of filing; if lawful permanent resident petitioner naturalizes before child turns 21, petition automatically converts to immediate relative category.

Asylees/Refugees: Filing of asylum or refugee application prior to the age of 21 freezes the child’s age at the time of filing.

Family-Based Preference Categories: The time that the visa petition is pending is subtracted from the child’s age at the time when the visa became available as long as the child sought to acquire permanent resident status within one year of filing.

Employment-Based Preference Category: The time that the visa petition is pending is subtracted from the child’s age at the time when the visa became available, as long as the child sought to acquire permanent resident status within one year of filing.

Nonimmigrants: CSPA does not apply.

Special Programs (HRIFA, Special Immigrant Juveniles, Family Unity, NACARA): CSPA does not apply.

Formula for Preference Categories (Family and Employment-Based)

1. Subtract the Amount of Time the Visa Petition Pending

2. From the Beneficiary’s Age When a Visa Number Become Available

3. As Long as the Child “Sought to Acquire” Within One Year of Visa Availability

1. Date when properly filed and received up until at least all periods of administrative review; practitioners should argue also that it includes that time petition is pending under federal court review should also be considered.

2. First day of the month when the State Department Visa Bulletin indicates that the priority date has been reached. Where the priority date retrogresses, the date when the I-485 was filed is considered the visa availability date. If the I-485 is not filed until after retrogression is over and a visa is available, the subsequent date should be used.

3. Interpreted narrowly. Generally it means when the adjustment of status application is properly filed and received by USCIS; for consular processing cases, the date when Form DS-230, Part I is submitted for the child; for following-to-join, when Form I-824 is submitted. May also consider limited other circumstances, such as when the application is rejected for a missing signature or the applicant signs and completes all paperwork, but the attorney fails to actually file.

When Is It Possible to Retain a Priority Date for an Aged-Out Derivative Beneficiary?

F2A Derivative Beneficiary Ages Out
The petition automatically converts to F2B, and no new petition is required; it retains its original priority date. Per Matter of Wang and USCIS policy memo.

F3, F4 Derivative Beneficiaries Age Out
The U.S. Supreme Court ruled on June 9, 2014 that the automatic conversion provision under the Child Status Protection Act (CSPA) does not benefit most derivative beneficiaries of family based preference petitions. Per Matter of Wang, a petition does not automatically convert to F2B, and the original priority date is lost.

Employment-Based Derivative Beneficiaries Age Out
Awaiting Supreme Court Guidance. No case law on this yet, but the Supreme Court’s decision should also cover derivative beneficiaries in employment-based cases.

  • F1:the unmarried, adult (21 or over) sons and daughters of U.S. citizens;
  • F2A:the spouses and unmarried, minor (under 21) children of LPRs;
  • F2B:the unmarried, adult (21 or over) sons and daughters of LPRs;
  • F3: the married sons and daughters of U. S. citizens;
  • F4: the brothers and sisters of U. S. citizens. §§1151(a)(1) , 1153(a)(1) -(4)

CA7, AROBELIDZE v. HOLDER: “Effective Date” Decision (7-27-11)

  • Matter of Vasquez – Precedent BIA Decision re: “Sought to Acquire” (6-08-12)
  • Matter of Zamora-Molina – Precedent BIA Decision re: Operation of the Opt-Out Provision (10-06-11)
  • Matter of Azam – Non-Precedent BIA Decision re: Status of Children Who Aged-Out under CSPA (4-12-11)
  • Matter of Murillo, Non-Precedent BIA Decision re: “Sought to Acquire” (10-06-10)
  • Matter of Wang, 25 I&N Dec. 28 (BIA 2009) – Precedent Decision Regarding CSPA’s “Automatic Conversion” Clause (6-16-09)
  • Matter of Avila-Perez, 24 I&N Dec. 78 (BIA 2007) – Precedent Decision Addresses Effective Date of CSPA (2-09-07)
  • Matter of Garcia – Non-Precedent BIA Decision re: Status of Children Who Aged-Out under CSPA (6-16-06)
  • Matter of Ki Na Kim – Non-Precedent BIA Decision Interpreting “Final Determination” (6-07-06)
  • Matter of Ji Young Kim – Non-Precedent BIA Decision Interpreting “Sought to Acquire” (12-20-04)
Posted in Child Status Protection Act | Tagged | Leave a comment