Fundamentals of Immigration Law

XIII. Motions to reopen, reconsider, and remand under the IIRIRA. . . . . . . . . . . . . . . . 341

A. Motion to reopen…………………………………………… 341

B. Motion to reconsider………………………………………… 343

C. Motions to reopen in general. …………………………………. 343

D. Motion to reopen to apply for asylum or withholding of removal…………. 347

E. Motion to reopen to rescind a removal order rendered in absentia…………. 348

F. Motions to reopen orders that were entered in absentia in deportation proceedings………………………………………………. 350

G. Motions to reopen orders that were entered in absentia in exclusion proceedings.. …………………………………………….. 350

H. A motion to reopen or reconsider based upon a claim of ineffective assistance of counsel. ………………………………………………. 351

I. Motion to reopen in order to apply for adjustment of status……………… 355

J. Motion to reopen to apply for cancellation of removal under section 240A of the Act………………………………………………….. 357

K. Where to file the motion……………………………………… 358

L. Sua sponte reopening or reconsideration. …………………………. 358

XIV. Appeals to the Board from decisions made by an IJ. …………………… 359

A. Notice of right to appeal……………………………………… 359

B. Filing the appeal…………………………………………… 359

C. Time limits for appeal……………………………………….. 359

D. The appealing parties ……………………………………….. 360

E. Fee for appeal…………………………………………….. 360

F. Representation by counsel. …………………………………… 361

G. Proof of service……………………………………………. 361

H. Waiving Appeal. ………………………………………….. 361

I. Standard of review on appeal………………………………….. 362

J. Interlocutory appeals………………………………………… 363

K. Appeals from in absentia orders of removal………………………… 363

L. Withdrawal of appeal……………………………………….. 364

M. Certification. …………………………………………….. 364

N. Remand from Board for background and security checks……………….. 365

I. The “entry doctrine”

A. History lesson

1. Before the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), the decision as to whether an alien was subject to deportation proceedings or exclusion proceedings was based on whether or not the alien had made an “entry” into the U.S. An alien who had made an entry was entitled to a deportation hearing and the greater procedural safeguards it provided. An alien who had not made an entry was placed in exclusion proceedings. Former section 101(a)(13) of the Act defined entry as “any coming of an alien into the U.S. from a foreign port or place.” The Board of Immigration Appeals (“Board”) formulated a more precise definition of entry so as to better distinguish between exclusion and deportation in Matter of Pierre, 14 I&N Dec. 467 (BIA 1973), Matter of Phelisna, 18 I&N Dec. 272 (BIA 1982), and Matter of G-, 20 I&N Dec. 764 (BIA 1993). All of this came to be known as “the entry doctrine.”
2. An exception also arose for lawful permanent residents (“LPR”s) returning to the U.S. after a brief, casual, and innocent departure. The Supreme Court held that such a departure would not constitute an “entry” within the meaning of former section 101(a)(13). Rosenberg v. Fleuti, 374 U.S. 449 (1963). This became known as the “Fleuti Doctrine.”
3. These two doctrines caused a great deal of litigation over the issue of whether certain aliens were properly placed in exclusion proceedings. They were rather time consuming and, since they dealt with the issue of whether or not the alien was in the proper proceeding, delayed the addressing of the ultimate issues in the cases, i.e. the issues of excludability and eligibility for relief.
4. In the IIRIRA, Congress sought to simplify things by creating removal proceedings which are applicable to aliens admitted to the United States, aliens applying for admission, and aliens present in the United States without being inspected and admitted. It also made the difference dependent simply on whether the alien had been admitted or not.

B. Applicants for admission

1. Section 235(a)(1) of the Act provides that “An alien present in the United States who has not been admitted or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters) shall be deemed for purposes of this Act an applicant for admission.”
2. The term “arriving alien” means an alien who seeks admission to or transit through the United States, as provided in 8 C.F.R. § 1235.1, at a port of entry, or an alien who is interdicted in international or United States waters and brought into the United States by any means, whether or not to a designated port-of-entry, and regardless of the means of transport. 8 C.F.R. § 1001.1(q).
3. An arriving alien remains such even if paroled pursuant to section 212(d)(5) of the Act. 8 C.F.R. § 1001.1(q).
4. An alien who leaves the U.S. to seek refugee status in Canada, and then returns to the U.S. after the application was denied in Canada, is deemed to be seeking admission to the U.S. Therefore, such an alien is deemed to be an arriving alien. Matter of R-D-, 24 I&N Dec. 221 (BIA 2007).

C. Admission or admitted

1. Section 101(a)(13)(A) of the Act, as amended by section 301 of the IIRIRA, provides that the terms “admission” and “admitted” mean the lawful entry of an alien into the U.S. after inspection and authorization by an immigration officer.
2. An alien who has not been admitted to the United States is subject to the inadmissibility grounds under section 212(a) of the Act, 8 U.S.C. § 1182(a). Pursuant to 237(a) of the Act, 8 U.S.C. § 1227(a), an alien (including an alien crew member) in and admitted to the United States is subject to the deportation grounds under that section. Under section 237(a)(1)(A) of the Act, deportable aliens includes any alien who was inadmissible at the time of entry or adjustment of status.
3. The Board held that an alien who initially entered the U.S. without inspection, but whose conviction for an aggravated felony was subsequent to her adjustment of status to that of a lawful permanent resident under section 245A of the Act, is deportable under section 237(a)(2)(A)(iii) of the Act as an alien who was convicted of an aggravated felony “after admission.” Matter of Rosas, 22 I&N Dec. 616 (BIA 1999).

D. Parole and crewmen

1. An alien who is paroled under section 212(d)(5) of the Act or permitted to land temporarily as a crewman shall not be considered to have been admitted. INA § 101(a)(13)(B).

E. Lawful permanent residents

1. Section 101(a)(13)(C) of the Act provides that an alien lawfully admitted for permanent residence shall not be regarded as seeking an admission into the U.S.

unless the alien:

a.has abandoned or relinquished LPR status [INA § 101(a)(13)(C)(i)];

b. has been absent from the U.S. for a continuous period in excess of 180 days [INA § 101(a)(13)(C)(ii)];

c. has engaged in illegal activity after departing the U.S. [INA § 101(a)(13)(C)(iii)];

d. has departed from the U.S. while under legal process seeking removal of the alien from the U.S., including removal proceedings and extradition proceedings [INA § 101(a)(13)(C)(iv)];

e. has committed an offense identified in section 212(a)(2) of the Act, unless since such offense the alien has been granted relief under section 212(h) or 240A(a) [INA § 101(a)(13)(C)(v)];

f. is attempting to enter at a time or place other than as designated by immigration officers or has not been admitted to the U.S. after inspection and authorization by an immigration officer [INA § 101(a)(13)(C)(vi)].

(1) The Board has held that the Fleuti doctrine, which required the admission of a LPR returning from a brief, casual, and innocent departure, did not survive the amendment of section 101(a)(13) of the Act by IIRIRA. Matter of Collado, 21 I&N Dec. 1061 (BIA 1998). In that same decision, the Board held that an LPR described in section 101(a)(13)(i)-(vi) of the Act is to be regarded as “seeking an admission into the U.S. for purposes of the immigration laws,” without further inquiry into the nature and circumstances of a departure from and return to the U.S.

2. In order to establish that a returning lawful permanent resident alien is to be treated as an applicant for admission to the United States, the Department of Homeland Security has the burden of proving by clear and convincing evidence that one of the six exceptions to the general rule for lawful permanent residents set forth at section 101(a)(13)(C) of Act applies. Matter of Rivens, 25 I&N Dec. 623 (BIA 2011).

II. Inspection and credible fear review

A. Inspection

1. All aliens (including alien crewmen) who are applicants for admission or otherwise seeking admission or readmission to or transit through the U.S. shall be inspected by immigration officers. INA § 235(a)(3).
2. Parolees and aliens formerly considered to have entered without inspection. Section 235(a)(1) of the Act provides that an alien present in the U.S. who has not been admitted or who arrives in the U.S. (whether or not at a designated port of arrival and including an alien who is brought to the U.S. after having been interdicted in international or U.S. waters) shall be deemed an applicant for admission.
3. Statements. An applicant for admission may be required to state under oath any information sought by an immigration officer regarding the purposes and intentions of the applicant in seeking admission to the U.S., including the applicant’s intended length of stay and whether the applicant intends to remain permanently or become a U.S. citizen, and whether the applicant is inadmissible. INA § 235(a)(5).

B. Withdrawal of application for admission

1. An alien applying for admission may, in the discretion of the Attorney General and at any time, be permitted to withdraw the application for admission and depart immediately from the U.S. INA § 235(a)(4).

C. Summary removal

1. An immigration officer shall order an alien removed from the United States without further hearing or review if: (1) the alien is not an alien described at section 235(b)(1)(F); and (2) the alien is arriving in the United States; or (3) the alien is described at section 235(b)(1)(A)(iii); and (4) the alien is inadmissible under section 212(a)(6)(C) or 212(a)(7); unless (5) the alien indicates either an intention to apply for asylum under section 208 or a fear of persecution. INA § 235(b)(1)(A)(i).

D. Stowaways

1. An arriving alien who is a stowaway is not eligible to apply for admission or to be admitted and shall be ordered removed upon inspection by an immigration officer unless the alien indicates an intention to apply for asylum or a fear of persecution. INA § 235(a)(2).

E. Credible Fear Interview

1. An alien who indicates either an intention to apply for asylum under section 208 or a fear of persecution shall be referred for an interview by an asylum officer. INA § 235(b)(1)(B)(ii).

a. If the officer determines at the time of the interview that an alien has a credible fear of persecution, the alien shall be detained for further consideration of the application for asylum. INA § 235(b)(1)(A)(ii).

(1) A credible fear of persecution means that there is a significant possibility, taking into account the credibility of the statements made by the alien in support of his claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum under section 208. INA § 235(b)(1)(B)(v).

b.  If the officer determines that the alien does not have a credible fear of persecution, the officer shall order the alien removed from the U.S. without further hearing or review. INA § 235(b)(1)(B)(iii)(I). The officer shall prepare a written record of a determination. INA § 235(b)(1)(B)(iii)(II). Such record shall include a summary of the material facts as stated by the applicant, such additional facts (if any) relied upon by the officer, and the officer’s analysis of why the alien has not established a credible fear of persecution. Id. A copy of the officer’s interview notes shall be attached to the written summary. Id. The Attorney General shall provide by regulation and upon the alien’s request for prompt review by an IJ of the determination that the alien does not have a credible fear of persecution. INA § 235(b)(1)(B)(iii)(III). Such review shall include an opportunity for the alien to be heard and questioned by the IJ either in person or by telephonic or video connection. Id. Review shall be concluded, if possible, within 24 hours, but in no case later than 7 days after the date of the asylum officer’s determination. Id. Such alien shall be detained pending a final determination of credible fear of persecution and, if found not to have such a fear, until removed. INA § 235(b)(1)(B)(iii)(IV).

F. Inspection of other aliens

1. Except for an alien described above [inadmissible under section 212(a)(6)(C) or 212(a)(7) of the Act], an alien who is a crewman, or an alien who is a stowaway, if the examining officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under section 240 of the Act. INA § 235(b)(2)(A)(B).
2. Aliens arriving from foreign contiguous territory. In the case of an alien arriving on land (whether or not at a designated port of arrival) from a foreign territory contiguous to the U.S., the Attorney General may return the alien to that territory pending a proceeding under section 240 of the Act. INA § 235(b)(2)(C).
3. Challenge of decision. The decision of the examining immigration officer, if favorable to the admission of any alien, shall be subject to challenge by any other immigration officer and such challenge shall operate to take the alien whose privilege to be admitted is so challenged, before an IJ for a proceeding under section 240 of the Act. INA § 235(b)(3).

G. Removal of aliens inadmissible on security and related grounds

1. If an immigration officer or an IJ suspects that an arriving alien may be inadmissible under section 212(a)(3)(A) [other than clause (ii)], (B), or (C), the officer or judge shall order the alien removed, report the order of removal to the Attorney General, and not conduct any further inquiry or hearing until ordered by the Attorney General. INA § 235(c)(1). Section 235(c)(3) of the Act provides that the alien or the alien’s representative may submit a written statement and additional information for consideration by the Attorney General.
2. If the Attorney General is satisfied on the basis of confidential information that the alien is inadmissible under the portions of section 212(a)(3) of the Act listed above and after consulting with appropriate security agencies concludes that disclosure of the information would be prejudicial to the public interest, safety, or security, the Attorney General may order the alien removed without further inquiry or hearing by an IJ. INA § 235(c)(2)(B). If the Attorney General does not order the alien removed, the Attorney General shall specify the further inquiry or hearing that shall be conducted in the case. INA § 235(c)(2)(C).

III. Bond and custody under IIRIRA

A. Background

1. Section 236(a) of the Act provides that on a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the U.S. In a custody redetermination under section 236(a), where an alien must establish to the satisfaction of the IJ that he or she does not present a danger to others, a threat to national security, or a flight risk, the IJ has wide discretion in deciding the factors that may be considered. Matter of Guerra, 24 I&N Dec. 37 (BIA 2006).
2. Transition Period Custody Rules. The TPCR were a temporary “stop-gap” measure invoked after the IIRIRA’s enactment to address the lack of detention space necessary to immediately implement the mandatory detention rule of section 236(c)(1) of the Act. Under the TPCR, IJs had retained discretionary authority to release certain criminal aliens upon a demonstration that they did not present a danger to the community or a flight risk. That discretion ended with the TPCR’s expiration on October 8, 1998.

B. Arriving aliens

1. An IJ has no authority to redetermine or set bond for an arriving alien. 8 C.F.R. § 1003.19(h)(1)(i)(B).

2. An alien who arrives in the U.S. pursuant to a grant of advance parole is an “arriving alien” as that term is defined in the regulations. Matter of Oseiwusu, 22 I&N Dec. 19 (BIA 1998). According to the regulations, an IJ has no authority over the apprehension, custody, and detention of arriving aliens and is therefore without authority to consider the bond request of an alien returning pursuant to a grant of advance parole. Id.

C. Detention of criminal aliens

1. Section 236(c)(1) of the Act provides that the Attorney General shall take into custody any alien who is inadmissible by reason of having committed any offense covered in section 212(a)(2), is deportable by reason of having committed any offense covered in section 237(a)(2)(A)(ii), (A)(iii), (B), (C), or (D), is deportable under section 237(a)(2)(A)(i) on the basis of an offense for which the alien has been sentenced to a term of imprisonment of at least 1 year, or is inadmissible under section 212(a)(3)(B) or deportable under section 237(a)(4)(B) when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense.
2. Constitutionality. The Supreme Court upheld the constitutionality of section 236(c)(1) of the Act. Demore v. Kim, 538 U.S. 510 (2003).
3. The Ninth Circuit has held that authorization for detention under INA section 236(c) ends when the Board of Immigration Appeals affirms the removal order. Casas-Castrillon v. DHS, 535 F.3d 942 (9th Cir. 2008). “Thereafter, the Attorney General’s detention authority rests with [the general discretionary authority to detain under section 236(a)] until the alien enters his ‘removal period,’ which occurs only after we have rejected his final petition for review or his time to seek such review expires.” Id. at 948. The Ninth Circuit further ruled that “the government may not detain a legal permanent resident . . . for a prolonged period without providing him a neutral forum in which to contest the necessity of his continued detention.” Id. at 949.
   1. In Diouf v. Napolitano, 634 F.3d 1081 (9th Cir. 2011), the Ninth Circuit held that an individual facing prolonged immigration detention under section 241(a)(6) of the Act, is entitled to be released on bond unless the government establishes the individual is a flight risk or a danger to the community. The
   2. court reasoned that individuals detained under section 241(a)(6) of the Act are entitled to the same procedural safeguards against prolonged detention as individuals detained under section 236(a) of the Act, including an individualized bond hearing before an IJ. Id. at 1085. The court acknowledged that it was extending its holding in Casas-Castrillon v. DHS, 535 F.3d 942 (9th Cir. 2008). See page 20 below for discussion of appeals of bond decisions.
4. “When released”

a. In a decision regarding the Transition Period Custody Rules (“TPCR”) which became effective on October 9, 1996, the Board held that the “when released” clause did not describe a class of aliens, but rather was an instruction to the Attorney General as to when the alien was to be taken into custody. Matter of Noble, 21 I&N Dec. 672 (BIA 1997). Therefore, the rules applied irrespective of how or when the alien came into Service custody. Id. However, the INS later reversed its position on this issue and, in a later decision, the Board held that section 236(c) of the Act does not apply to aliens whose most recent release from custody by an authority other than the INS occurred prior to the expiration of the TPCR on October 8, 1998. Matter of Adeniji, 22 I&N Dec. 1102 (BIA 1999). Custody determinations of aliens in removal proceedings who are not subject to the provisions of section 236(c) of the Act are governed by the general custody provisions at section 236(a) of the Act. Id. However, by virtue of 8 C.F.R. § 1236.1(c)(8), a criminal alien in a custody determination under section 236(a) of the Act must establish to the satisfaction of the IJ and the Board of Immigration Appeals that he or she does not present a danger to property or persons. Id. In Matter of Garcia-Arreola, 25 I&N Dec. 267 (BIA 2010), the Board modified its decision in Matter of Adeniji and held that section 236(c) of the Act requires mandatory detention of a criminal alien only if he or she is released from non-DHS custody after the expiration of the TPCR and only where there has been a post-TPCR release that is directly tied to the basis for detention under sections 236(c)(1)(A)–(D) of the Act.

(1) The Board had previously ruled in Matter of Saysana, 24 I&N Dec. 602 (BIA 2008) that the mandatory detention provision in section 236(c)(1) “does not support limiting the non-DHS custodial setting solely to criminal custody tied to the basis for detention under that section.” The Board’s decision in Matter of Garcia Arreola specifically overruled Matter of Saysana. But see Saysana v. Gillen, 590 F.3d 7 (1st Cir. 2009) (disagreeing with the Board’s reading of the mandatory detention provision and finding that the text of the statute is clear that the “when released” language applies to an alien who has been detained criminally for one of the activities listed in the statute, rather than any release from any non-DHS custody).

¹ On March 1, 2003, the Immigration and Naturalization Service ceased to exist as an agency under the U.S. Department of Justice and became a part of the newly-formed Department of Homeland Security. In this outline, the Department of Homeland Security will continue to be referred to as the DHS or, where appropriate, the INS, the Service, or alternatively, the Government.

b. A criminal alien who is released from criminal custody after the expiration of the Transition Period Custody Rules is subject to mandatory detention pursuant to section 236(c) of the Act even if the alien is not immediately taken into custody by the Service when released from incarceration. Matter of Rojas, 23 I&N Dec. 117 (BIA 2001).

c. The Board has also held that the use of the words “release” or “released” in section 303 of the IIRIRA consistently appears to refer to a form of physical restraint. Matter of West, 22 I&N Dec. 1405 (BIA 2000). Therefore, the mandatory detention provisions of section 236(c) of the Act do not apply to an alien who was convicted after the expiration of the Transition Period Custody Rules, but who was last released from the physical custody of state authorities prior to the expiration of those rules and who was not physically confined or restrained as a result of that conviction, i.e. sentenced to probation or given a suspended sentence. Id.

d. In Matter of West, 22 I&N Dec. 1405 (BIA 2000), the Board stated that the word “released” can also refer to release from physical custody following arrest, not just a sentence.

e. The Board held in Matter of Kotliar, 24 I&N Dec. 124 (BIA 2007), that an alien apprehended at home while on probation for criminal convictions is subject to the provisions of section 236(c)(1), provided it can be ascertained that he was released from criminal custody after the expiration of the Transition Period Custody Rules.

6. Danger to property or persons

a. In bond proceedings under the Transition Period Custody Rules, the standards set forth in Matter of Drysdale, 20 I&N Dec. 815 (BIA 1994), apply to the determinations of whether the alien’s release from custody during deportation proceedings will pose a danger to the safety of persons or of property and whether the alien is likely to appear for any scheduled proceeding. Matter of Melo, 21 I&N Dec. 883 (BIA 1997). In Matter of Drysdale, the Board found that the statutory framework under former section 242(a)(2)(B) of the Act involved a two-step analysis. If the alien cannot demonstrate that he is not a threat to the community, he should be detained in the custody of the Service. 20 I&N Dec. 815. If the alien rebuts the presumption that he is a threat to the community, then the likelihood that he will abscond becomes relevant. This finding was based on the statutory language that the alien must show he is “likely” to appear for any scheduled hearing, rather than a showing that he “will appear.” Unlike the standard for determining if there is a danger to the community, this language allowed for flexibility since the likelihood of appearance could vary from none to great. Therefore, if an alien overcomes the presumption that he is a threat to the community, the IJ should set a bond according to his assessment of the amount needed to motivate the respondent to appear in light of the considerations deemed relevant to bond determinations.

(1) In Matter of Urena, 25 I&N Dec. 140 (BIA 2009), the Board emphasized that the IJ should only set a bond if the alien meets his burden of proof that his release would not pose a danger to property or persons. Only after the alien has met that burden of proof can the IJ determine the flight risk posed by the alien and the amount of bond appropriate to ensure the alien’s presence at future proceedings. Id. at 141.

b. The phrase “is deportable” as used in the Transition Period Custody Rules does not require that an alien have been charged and found deportable on that deportation ground. Matter of Melo, 21 I&N Dec. 883 (BIA 1997). See also Matter of Kotliar, 24 I&N Dec. 124 (BIA 2007) (holding that an alien need not be charged with the ground that provides the basis for mandatory detention to be considered “deportable” on that ground).

c. The Transition Period Custody Rules do not limit “danger to the safety of persons or of property” to the threat of direct physical violence. Matter of Melo, 21 I&N Dec. 883 (BIA 1997). The risk of continued narcotics trafficking also constitutes a danger to the safety of persons. Id.

d. The Transition Period Custody Rules expired in 1998. However, the law regarding danger to the safety of persons or property appears to remain applicable.

1. Section 236(c)(2) provides that the Attorney General may release an alien described above only if the Attorney General decides pursuant to 18 U.S.C. § 3521 that release of the alien from custody is necessary to provide protection to a witness, a potential witness, a person cooperating with an investigation into major criminal activity, or an immediate family member or close associate of a witness, potential witness, or person cooperating with such an investigation, and the alien satisfies the Attorney General that the alien will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding. A decision relating to such release shall
2. take place in accordance with a procedure that considers the severity of the offense committed by the alien.

1. 8 C.F.R. § 1003.19(h)(2)(i) provides that upon the expiration of the Transition Period Custody Rules, an IJ may not redetermine conditions of custody imposed by the Service with respect to the following classes of aliens:
   1. Aliens in exclusion proceedings;
   2. Arriving aliens in removal proceedings, including aliens paroled after arrival pursuant to section 212(d)(5) of the Act;
   3. Aliens described in section 237(a)(4) of the Act;
   4. Aliens in removal proceedings subject to section 236(c)(1) of the Act; and
   5. Aliens in deportation proceedings subject to section 242(a)(2) of the Act as in effect prior to April 1, 1997.

1. However, 8 C.F.R. § 1003.19(h)(2)(ii) provides that “Nothing in this paragraph shall be construed as prohibiting an alien from seeking a redetermination of custody conditions by the Service in accordance with part 1235 or 1236 of this chapter. In addition, with respect to paragraphs (h)(2)(i)(C), (D), and (E) of this section, nothing in this paragraph shall be construed as prohibiting an alien from seeking a determination by an immigration judge that the alien is not properly included within any of those paragraphs.”
   1. For purposes of determining the custody conditions of a lawful permanent resident under section 236 of the Act, and 8 C.F.R. § 1003.19(h)(2)(ii), a lawful permanent resident will not be considered “properly included” in a mandatory detention category when an IJ or the Board of Immigration Appeals finds, on the basis of the bond record as a whole, that it is substantially unlikely that the Immigration and Naturalization Service will prevail on a charge of removability specified in section 236(c)(1) of the Act. Matter of Joseph, 22 I&N Dec. 799 (BIA 1999).
   2. Although a conviction document may provide the Service with sufficient reason to believe that an alien is removable under one of the mandatory detention grounds for purposes of charging the alien and making an initial custody determination, neither the IJ nor the Board is bound by the Service’s decisions in that regard when determining whether an alien is properly included within one of the regulatory provisions that would deprive the IJ and the Board of jurisdiction to redetermine the custody conditions imposed on the alien by the Service. Matter of Joseph, 22 I&N Dec. 799 (BIA 1999).

c. When an IJ’s removal decision precedes the determination, pursuant to 8

C.F.R. § 1003.19(h)(2)(ii), whether an alien is “properly included” in a mandatory detention category, the removal decision may properly form the basis for that determination. Matter of Joseph, 22 I&N Dec. 799 (BIA 1999). When an IJ bases a bond determination on evidence presented in the underlying merits case, it is the responsibility of the parties and the IJ to ensure that the bond record establishes the nature and substance of the specific factual information considered by the IJ in reaching the bond determination. Matter of Adeniji, 22 I&N Dec. 1102 (BIA 1999).

d. In assessing whether an alien is “properly included” in a mandatory detention category during a bond hearing taking place early in the removal process, the IJ must necessarily look forward to what is likely to be shown during the hearing on the underlying removal case. Matter of Joseph, 22 I&N Dec. 799 (BIA 1999). Thus, for example, the failure of the Service to possess a certified copy of a conviction record shortly after taking an alien into custody would not necessarily be indicative of its ability to produce such a record at the merits hearing. Id.

1. 8 C.F.R. § 1003.19(h)(4) provides that a determination by a district director (“DD”) or other designated official regarding the exercise of authority under section 303(b)(3)(B)(ii) of Pub. L. 104-208 (concerning release of aliens who cannot be removed) is final, and shall not be subject to redetermination by an IJ.
2. 8 C.F.R. § 1003.19(i)(1) provides that the Board has the authority to stay the custody order of an IJ when the Service appeals the custody decision and the Service is entitled to seek an emergency stay from the Board in connection with such an appeal at any time.
3. 8 C.F.R. § 1003.19(i)(2) provides that in any case in which the DHS determined that an alien should not be released and has set a bond of $10,000 or more, any order of the IJ authorizing release (on bond or otherwise) shall be stayed upon the DHS’s filing of a Notice of Service Intent to Appeal Custody Redetermination (Form EOIR-43), with the Immigration Court within one business day of the order, except as otherwise provided in 8 C.F.R. § 1003.6(c), and shall remain in abeyance pending decision of the appeal by the Board of Immigration Appeals. The stay shall lapse upon failure of the Service to file a timely notice of appeal in accordance with 8 C.F.R. § 1003.38.

a. An automatic stay of an IJ’s release order that has been invoked by the Service pursuant to 8 C.F.R. § 1003.19(i)(2) is extinguished by the Board’s decision in the Service’s bond appeal from that release order. Matter of Joseph, 22 I&N Dec. 799 (BIA 1999).

D. Detention of aliens certified as terrorists – Section 236A of the Act

1. Section 412 of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56 (“USA Patriot Act”) added section 236A to the Act.
2. Section 236A provides that the Attorney General shall take into custody any alien who is certified under section 236A(a)(3). INA § 236A(a)(1).
   1. Section 236A(a)(3) provides that the Attorney General may certify an alien under this paragraph if the Attorney General has reasonable grounds to believe that the alien is described in
      1. Section 212(a)(3)(A)(i) -an alien seeking to enter the U.S. to engage in espionage or sabotage.
      2. Section 212(a)(3)(A)(iii) -an alien seeking to enter the U.S. to engage in any activity a purpose of which is the overthrow of the government of the U.S. by force, violence, or other unlawful means.
      3. Section 212(a)(3)(B) -an alien engaged in terrorist activity
      4. Section 237(a)(4)(A)(i) -engaged in espionage or sabotage.
      5. Section 237(a)(4)(A)(iii) -an alien engaged in any activity a purpose of which is the overthrow of the government of the U.S. by force, violence, or other unlawful means.
      6. Section 237(a)(4)(B) -an alien engaged in terrorist activity.
      7. Or is engaged in any other activity that endangers the national security of the U.S.
3. Section 236A(a)(4) of the Act provides that the Attorney General may delegate the authority provided under paragraph 3 only to the Deputy Attorney General. The Deputy Attorney General may not delegate such authority.

E. Mass migrations and national security interests

1. In determining whether to release on bond undocumented aliens who arrive in the U.S. by sea seeking to evade inspection, it is appropriate to consider national security interests implicated by the encouragement of further unlawful mass migrations and the release of undocumented alien migrants into the U.S. without adequate screening. Matter of D-J-, 23 I&N Dec. 572 (A.G. 2003). The Attorney General stated that it is reasonable to assume that the release on bond of mass migrants would come to the attention of others in their country and encourage future surges in illegal migration. Id. Encouraging such unlawful mass migrations is inconsistent with sound immigration policy and important national security interests. Id. Surges in illegal migration injure national security by diverting resources from counterterrorism and homeland security responsibilities. Id.
2. Where the Government offers evidence from sources in the Executive Branch with relevant expertise establishing that significant national security interests are implicated, IJs and the Board shall consider such interests. Matter of D-J-, 23 I&N Dec. 572 (A.G. 2003).
3. Considering national security grounds applicable to a category of aliens in denying an inadmitted alien’s request for release on bond does not violate any due process right to an individualized determination in bond proceedings under section 236(a) of the Act. Matter of D-J-, 23 I&N Dec. 572 (A.G. 2003).
4. NOTE: On November 13, 2002, the Commissioner designated for expedited removal under 8 C.F.R. § 1235.3(b)(1)(ii) all aliens (other than crewmen, stowaways, Cuban citizens or nationals, and aliens who arrive at U.S. portsof-entry) who arrive in the U.S. on or after November 13, 2002 by sea who are not admitted or paroled and who have not been physically present in the U.S. for 2 years immediately prior to the determination of inadmissibility by an immigration officer. 8 C.F.R. § 1235.3(b)(2)(iii) provides that an alien whose inadmissibility is being considered under the expedited removal procedures of 8 C.F.R. § 1235.3(b)(1)(ii) or who has been ordered removed pursuant to that regulation shall be detained pending determination and removal, but may be allowed parole by the immigration authorities. Therefore, such an alien is not eligible for a bond redetermination by an IJ.

F. Aliens subject to expedited removal

1. 8 C.F.R. § 1235.3(b)(2)(iii) provides that an alien whose inadmissibility is being considered under the expedited removal procedures of 8 C.F.R. § 1235.3(b)(1)(ii) or who has been ordered removed pursuant to that regulation shall be detained pending determination and removal, but may be allowed parole by the immigration authorities. Therefore, such an alien is not eligible for a bond redetermination by an IJ.

G. All other, non-criminal, non-terrorist, aliens

1. Pending a decision on whether the alien is to be removed from the U.S., the Attorney General may continue to detain the arrested alien, and may release the alien on a bond of at least $1,500 or conditional parole but may not provide the alien with work authorization unless the alien is a LPR or otherwise would be provided such authorization. INA § 236(a).

a. Note: An alien who is initially screened for expedited removal under section 235(b)(1)(A) of the Act, as a member of a class of aliens designated pursuant to the authority in section 235(b)(1)(A)(iii) of the Act, but who is subsequently placed in removal proceedings under section 240 of the Act, following a positive credible fear determination, is eligible for a custody redetermination hearing before an IJ unless the alien is a member of any of the listed classes of alien who are specifically excluded from the custody jurisdiction of IJs pursuant to 8 C.F.R. § 1003.19(h)(2)(i). Matter of X-K-, 23 I&N Dec. 731 (BIA 2005).

2. The purpose of a bond in deportation proceedings is to insure that the respondent will appear for the deportation hearing. But neither section 236(a) of the Act nor the applicable regulations confer on an alien the right to release on bond. Matter of D-J-, 23 I&N Dec. 572 (A.G. 2003).

a. In determining a respondent’s reliability as a bail risk and the amount of bond to be required, these factors may properly be considered:

(1) respondent’s employment history and its stability;

(2) respondent’s length of residence in the community;

(3) respondent’s family ties in the U. S. and whether they are such that they may entitle the respondent to reside permanently in the U. S. at a future date;

(4) respondent’s record of nonappearance at court proceedings;

(5) respondent’s previous or pending criminal violations and the seriousness of the charges;

(6) the effect such criminal violations may have upon eligibility for relief from deportation;

(7) evidence of respondent’s disrespect for the law;

(8) evidence which adversely reflects upon respondent’s character;

(9) respondent’s previous immigration violations;

(10) respondent’s manner of entry into the United States.

b. The Board of Immigration Appeals’ decisions on bonds which discuss the above are:

(1) Matter of Patel, 15 I&N Dec. 666 (BIA 1976) superseded by statute as stated in Matter of Valdez-Valdez, 21 I&N Dec. 703 (BIA 1997);

(2) Matter of San Martin, 15 I&N Dec. 167 (BIA 1974);

(3) Matter of Spiliopoulos, 16 I&N Dec. 561 (BIA 1978);

(4) Matter of Shaw, 17 I&N Dec. 177 (BIA 1979);

(5) Matter of Andrade, 19 I&N Dec. 488 (BIA 1987).

c. The following factors may not be considered in redetermining an alien’s custody status:

(1) The potential difficulties that the INS may face in executing an order of deportation because of conditions in the alien’s country. Matter of P-C-M-, 20 I&N Dec. 432 (BIA 1991).

(2) The determination of bond in a deportation case is independent of the bond proceedings in any criminal case in which the respondent has been involved and it is inappropriate for the IJ to speculate as to the possible rationale for a low bond set in a pending criminal case and to find that the low criminal bond weighs in favor of a larger bond in the deportation case. Matter of Shaw, 17 I&N Dec. 177 (BIA 1979).

(3) An alien’s early release from prison and transition to a parole status do not necessarily reflect rehabilitation for one may receive an early release for other reasons. Matter of Andrade, 19 I&N Dec. 488 (BIA 1987). Therefore, such facts do not carry significant weight in determining whether the alien is a good bail risk for immigration purposes. Id.

d.An alien subject to criminal proceedings for alleged terrorist activities in the country to which the INS seeks to deport him is appropriately ordered detained without bond as a poor bail risk. Matter of Khalifah, 21 I&N Dec. 107 (BIA 1995).

e. An IJ’s jurisdiction includes the authority to increase the amount of bond initially set by the DD. Matter of Spiliopoulos, 16 I&N Dec. 561 (BIA 1978).

f. Even though a respondent has had a bond redetermination hearing before an IJ, if later there is a change of circumstances affecting his reliability as a bail risk, the DD has authority to increase the amount of bond. Matter of Sugay, 17 I&N Dec. 637 (BIA 1981). (Of course, the new bond amount is subject to redetermination by an IJ.)

H. Procedure in bond proceedings

1. The initial decision on custody is made by the DD or his delegate. 8 C.F.R. § 1236.1(d)(1).

a. In order to make a proper custody determination, the INS must have custody of the respondent. A respondent who is in the custody of a State or agency other than the INS is not in the custody of the INS. Matter of Sanchez, 20 I&N Dec. 223 (BIA 1990).

b. Even if INS has placed a detainer on a respondent held in the custody of another agency, the detainer does not entitle the respondent to have a bond set by the DD. Matter of Lehder, 15 I&N Dec. 159 (BIA 1975); Matter of Sanchez, 20 I&N Dec. 223 (BIA 1990). A detainer is merely an administrative mechanism to insure that a person subject to confinement will not be released until the party requesting the detainer has an opportunity to act. Matter of Sanchez, 20 I&N Dec. 223 (BIA 1990).

2. Former 8 C.F.R. § 3.18(b) [now 8 C.F.R. § 1003.19(b)] and former 8 C.F.R. § 242.2(d) [now 8 C.F.R. § 1236.1(d)(1)] provide authority for an IJ to redetermine custody status only upon application by the respondent or his representative. An IJ may not redetermine custody status on his own motion. Matter of P-C-M-, 20 I&N Dec. 432 (BIA 1991).

a.

8 C.F.R. § 1236.1(d)(1) provides authority to the IJ to review and modify the conditions placed on the alien’s release from DHS custody. Matter of Garcia-Garcia, 25 I&N Dec. 93 (BIA 2009).

b.

Where the respondent is still in custody, the respondent may file an application for amelioration of the conditions under which he may be released at any time. 8 C.F.R. § 1236.1(d)(1) (2011). Custody means actual physical restraint or confinement within a given space and does not include electronic monitoring or home confinement. Matter of Aguilar-Aquino, 24 I&N Dec. 747, 752-53 (BIA 2009). Where the

respondent has been released from custody, the respondent must file an application for amelioration of the terms of release within 7 days of release. 8 C.F.R. § 1236.1(d)(1). If the application for amelioration occurs after 7 days from release, the IJ lacks authority to redetermine custody status. Aguilar-Aquino, 24 I&N Dec. at 753.

3. Former 8 C.F.R. § 242.2(d) [now 8 C.F.R. § 1236.1(d)(1)] provides that an IJ only acquires jurisdiction over bond after the DD’s initial determination of bond under 8 C.F.R. § 242.2(c)(2). Therefore, a respondent who is in the custody of a State or other agency other than INS is not subject to having a bond set by the DD under 8 C.F.R. § 242.2(c)(2) or reviewed by an IJ under 8 C.F.R. § 242.2(d). Matter of Sanchez, 20 I&N Dec. 223 (BIA 1990).

a.

Even if a respondent is in the actual physical custody of the INS, it is arguable that an IJ does not acquire jurisdiction over bond until the DD makes the initial bond determination under the regulations. The Board found it unnecessary to determine in Matter of Sanchez if an IJ may assume that a DD’s inaction in setting bond is the equivalent of setting no bond. In such a situation, the respondent may be required to seek an order from a Federal Judge requiring the DD to set bond.

4. 8 C.F.R. § 1236.1(c)(5) provides that an IJ may not exercise bond redetermination authority with respect to:

a. A criminal alien subject to section 303(b)(3)(A)(ii) or (iii) of Div. C. of Pub. L. 104-208, if the alien has been sentenced, including in the aggregate, to at least 2 years imprisonment and the alien:

(1)

Is described in section 237(a)(2)(D)(i) or (ii) of the Act [espionage and sabotage] or has been convicted of a crime described in section 101(a)(43)(A), (C), (E)(i), (H), (I), (K)(iii) or (L) [select aggravated felonies];

(2)

Is described in section 237(a)(2)(A)(iv) of the Act [high speed flight]; or

(3)

Has escaped or attempted to escape from the lawful custody of a local, State or Federal prison, agency or officer within the United States.

1. Immigration judges do not have authority to redetermine the conditions of custody imposed by DHS with respect to aliens who have not been issued and served with a Notice to Appear (“NTA”) in relation to removal proceedings pursuant to 8 C.F.R. § 1240. Matter of Werner, 25 I&N Dec. 45 (BIA 2009). Therefore, an alien admitted to the U.S. pursuant to the Visa Waiver Program who has not been served with an NTA pursuant to 8 C.F.R. § 1240 is not
2. entitled to a custody hearing before an IJ. Id. (acknowledging that Matter of Gallardo, 21 I&N Dec. 210 (BIA 1996) has been superseded by regulation).

• An IJ loses jurisdiction to redetermine bond when an order of removal becomes administratively final. 8 C.F.R. § 1236.1(d).
• Although aliens present in the U.S. without being admitted or paroled are charged under the grounds of inadmissibility listed in section 212(a) of the Act, they are not arriving aliens and may have their bond redetermined by an IJ.
• An IJ’s jurisdiction includes the authority to increase the amount of bond initially set by the DD. Matter of Spiliopoulos, 16 I&N Dec. 561 (BIA 1978).
• Even though a respondent has had a bond determination hearing before an IJ, if later there is a change of circumstances affecting his reliability as a bail risk, the DD has authority to increase the amount of bond. Matter of Sugay, 17 I&N Dec. 637 (BIA 1981). (Of course, the new bond amount is subject to redetermination by an IJ.)
• The background investigations and security checks requirement at 8 C.F.R. § 1003.47(g) does not apply to proceedings seeking the redetermination of conditions of custody. However, in scheduling an initial custody redetermination hearing, the IJ shall, to the extent practicable consistent with expedited nature of such cases, take account of the brief initial period of time needed for the Department of Homeland Security to conduct the automated portions of its identity, law enforcement or security examinations or investigations with respect to aliens detained in connection with immigration proceedings. 8 C.F.R. § 1003.47(k).

I. Requests for additional or subsequent bond redeterminations

1. The Board has held that because the bond regulations do not specifically address motions to reopen, bond proceedings are not subject to the technical requirements of former 8 C.F.R. § 242.2 regarding motions to reopen. Matter of Uluocha, 20 I&N Dec. 133 (BIA 1989). Bond proceedings are not really “closed” as long as a respondent is subject to a bond. Id. Therefore, IJs may further consider requests to modify bonds by detained aliens without a formal motion to reopen. Id. Such requests should be considered on the merits. Id. However, if there are no changed circumstances shown, the IJ may decline to change the prior bond decision. Id. This decision implies that there is no limit to the number of times a detained respondent may request a bond redetermination hearing. Id.
   1. Following this decision, many detained respondents submitted multiple requests for bond redetermination hearings. This became burdensome and
   2. clogged IJs’ dockets. In 1992, 8 C.F.R. § 3.19(e) [now 8 C.F.R. § 1003.19(e)] was amended to read as follows: “After an initial bond redetermination, an alien’s request for a subsequent bond redetermination shall be made in writing and shall be considered only upon a showing that the alien’s circumstances have changed materially since the prior bond redetermination.”
2. An IJ maintains continuing jurisdiction to entertain requests by an alien for subsequent bond redeterminations even after the timely filing of an appeal with the Board from a previous bond redetermination decision. Matter of Valles, 21 I&N Dec. 769 (BIA 1997). If, after a bond appeal has been filed by an alien, the IJ grants a request for a subsequent bond redetermination, the appeal is rendered moot and the Board will promptly return the record to the Immigration Court. Id.

J. Appeals of bond decisions

1. 8 C.F.R. § 1236.1(d)(3) provides that an appeal to the Board may be filed as follows:

a. Within 30 days by either the alien or the Service from a decision of an IJ.

b.  Within 10 days by the alien from a decision of a DD once the IJ has lost jurisdiction, i.e. 7 days after posting bond or when an order of removal becomes administratively final.

(1) The Board has jurisdiction over an appeal from a DD’s custody determination that was made after the entry of a final order of deportation or removal, regardless of whether the alien formally initiated the review or the DD made the review sua sponte. Matter of Saelee, 22 I&N Dec. 1258 (BIA 2000).

 (2) An alien subject to a final order of deportation based on a conviction for an aggravated felony, who is unable to be deported, may be eligible for release from detention after the expiration of the 90 day removal period provided in section 241(a)(3) of the Act. INA § 241(a)(6). Matter of Saelee, 22 I&N Dec. 1258 (BIA 2000).

(3) However, where an alien seeking review of a DD’s post-final-order custody determination failed to demonstrate by clear and convincing evidence that the release would not pose a danger to the community pursuant to 8 C.F.R. § 241.4(a) (1999), the DD’s decision to continue detention was sustained. Matter of Saelee, 22 I&N Dec. 1258 (BIA 2000).

IV. Grounds of inadmissibility in removal proceedings

A. Health-related grounds – Section 212(a)(1)

1. For available waivers, see section 212(g) of the Act.
2. Communicable disease. Section 212(a)(1)(A)(i) of the Act provides that any alien who is determined in accordance with regulations by the Secretary of Health and Human Services (“HHS”) to have a communicable disease of public health significance is inadmissible.
3. Vaccinations. Section 212(a)(1)(A)(ii) provides that any alien who seeks admission as an immigrant, or who seeks adjustment of status, who has failed to present documentation of having received vaccination against vaccine-preventable diseases, including those listed in the section is inadmissible.
   1. Mental disorder.
      1. Section 212(a)(1)(A)(iii)(I) of the Act provides that any alien who is determined in accordance with regulations by the Secretary of HHS in consultation with the Attorney General to have a physical or mental disorder and a history of behavior associated with the disorder that has posed or may pose a threat to the property, safety, or welfare of the alien or others is inadmissible.
      2. Section 212(a)(1)(A)(iii)(II) of the Act provides that any alien who is determined in accordance with regulations by the Secretary of Health and Human Services in consultation with the Attorney General to have had in the past a physical or mental disorder and a history of behavior associated with the disorder which behavior has posed a threat to the property, safety, or welfare of the alien and which behavior is likely to recur or to lead to other harmful behavior is inadmissible.
4. Drug abusers. Section 212(a)(1)(A)(iv) provides that any alien determined in accordance with regulations by the Secretary of HHS to be a drug abuser or addict is inadmissible.

B. Crime involving moral turpitude (“CIMT”)

1. Section 212(a)(2)(A)(i)(I) provides that any alien convicted of, or who admits having committed, or admits committing acts which constitute the essential elements of a crime involving moral turpitude (other than a purely political offense or an attempt or conspiracy to commit such a crime) is inadmissible. Moral turpitude refers generally to conduct that is inherently base, vile or depraved and contrary to the accepted rules of morality in general. Matter of Franklin, 20 I&N Dec. 867 (BIA 1994), aff’d 72 F.3d 571 (8^th Cir. 1995). Moral turpitude does not depend on felony or misdemeanor distinction.
2. Matter of Short, 20 I&N Dec. 136 (BIA 1989). Nor does the seriousness of a criminal offense or the severity of the sentence imposed determine whether a crime involves moral turpitude. Matter of Serna, 20 I&N Dec. 579 (BIA 1992). See pages 49-53 below for discussion of CIMT as ground of deportability and pages 240-247 below for discussion of defenses to charge of CIMT.

• HISTORY LESSON – Before 1990, excludability for a CIMT was covered in section 212(a)(9) of the Act. In 1990, the Act was reorganized and that subject came under section 212(a)(2)(A)(i)(I). In 1996, it stayed under that section number. Many cases on this subject from before 1990 involve section 212(a)(9) as the ground of inadmissibility.
  1. The concept of admitting the commission of a CIMT or acts which constitute the essential elements of a CIMT (rather than actually being convicted of a CIMT).
     1. The concept of admitting the commission of a crime goes back to at least the Immigration Act of 1917. The Board interpreted the phrase “admits the commission of” an offense to include, in addition to the admission of facts or specific acts, an admission of the legal conclusion that the alien had committed a specific criminal offense.
        1. In Matter of J-, 2 I&N Dec. 285 (BIA 1945), the Board set forth the following rules to establish that an alien admits commission of a felony or other crime or misdemeanor involving moral turpitude:
           1. It must be clear that the conduct in question constitutes a crime or misdemeanor under the law where it is alleged to have occurred.
           2. The alien must be advised in a clear manner of the essential elements of the alleged crime or misdemeanor.
           3. The alien must clearly admit conduct constituting the essential elements of the crime and that he committed the offense, i.e. he must admit the legal conclusion that he is guilty of the crime.
           4. It must appear that the crime admitted actually involves moral turpitude, although it is not required that the alien himself concede the element of moral turpitude.
           5. The admissions must be free and voluntary.
     2. The Immigration and Nationality Act, which became effective in 1952, added to former section 212(a)(9) a provision that an alien would also be excludable who admits committing acts which constitute the essential elements of a CIMT. The provisions of former section 212(a)(9) were held to be applicable to offenses committed before as well as after the effective date of the Immigration and Nationality Act. Matter of R-R-, 6 I&N Dec. 55 (BIA 1953, 1954, A.G. 1955). The Attorney General specifically stated that he did not decide whether the admission of the acts must take place before or after the effective date of the Act.

d. In light of the amendment, the requirement that the alien must admit the legal conclusion that he is in fact guilty of the specific crime was deleted in Matter of E-V-, 5 I&N Dec. 194 (BIA 1953). That decision specifically stated that the other requirements set forth in Matter of J-still prevail.

e. The Board later held that to sustain a finding of inadmissibility under former section 212(a)(9) as one who has admitted acts constituting the essential elements of a CIMT, the alien must have been furnished with a definition of such crime in understandable terms. Matter of G-M-, 7 I&N Dec. 40 (BIA 1955, A.G. 1956). In Matter of K-, 7 I&N Dec. 594 (BIA 1957), the Board stated that the rule concerning the furnishing of an adequate definition is not a specific statutory requirement but has evolved for the purpose of insuring a fair hearing and to preclude a later claim of unwitting entrapment.

f. In determining whether an alien has admitted acts which constitute the essential elements of a CIMT, court decisions defining, explaining, or interpreting a statute may be considered in addition to the statute itself to determine if those acts constitute essential elements of the crime. Matter of W-, 5 I&N Dec. 578 (BIA 1953).

g. The “admission” does not have to be made in the course of the exclusion (now removal) hearing. It might be made in a sworn statement given to INS officers or in a proceeding held in a different tribunal. In cases involving a plea of guilty in a criminal proceeding, the INS sought to use the plea of guilty as an “admission” of either the commission of a CIMT or acts constituting the essential elements of a CIMT.

(1) The Board has held that a plea of guilty in a criminal prosecution may be regarded as an “admission” within the meaning of the immigration laws. Matter of K-, 9 I&N Dec. 143 (BIA 1959, A.G. 1961); Matter of P-, 4 I&N Dec. 373 (BIA 1951). However, where a plea of guilty results in something less than a conviction, the plea, without more, is not tantamount to an admission of commission of the crime for immigration purposes. Matter of Seda, 17 I&N Dec. 550 (BIA 1980) (treated under a first offender statute), overruled on other grounds by Matter of Ozkok, 19 I&N Dec. 546 (BIA 1988), superseded by statute as stated in Matter of Devison-Charles, 22 I&N Dec. 1362 (BIA 2000); Matter of Winter, 12 I&N Dec. 638 (BIA 1967, 1968) (no sentence imposed and case placed “on file”).

(2) The Board also held that an alien is not excludable when he admits committing acts which constitute the essential elements of a CIMT if such admission relates to the same crime for which he was previously convicted and for which he obtained a pardon. Matter of E-V-, 5 I&N Dec. 194 (BIA 1953).

(3) Even in a case involving a foreign conviction (rather than an admission of commission of a CIMT or acts constituting the essential elements of a CIMT), the Board has held that an adjudication of juvenile delinquency is not a conviction for a crime in the U.S. and one so convicted may not be excludable unless it is determined that the applicant was not dealt with as a juvenile by the foreign court. Matter of Ramirez-Rivero, 18 I&N Dec. 135 (BIA 1981); Matter of De La Nues, 18 I&N Dec. 140 (BIA 1981). Therefore, in determining inadmissibility as an alien who admits the commission of a CIMT or the commission of acts constituting the essential elements of a CIMT, the age of the applicant at the time he committed the acts should be considered.

h. In an exclusion proceeding where there was reason to believe, by the applicant’s own admissions or otherwise, that there has been a conviction (not merely an admission of commission of a crime or admission of acts constituting the essential elements of a crime) and that the underlying crime involved moral turpitude, the burden was on the applicant for admission to establish that he was not inadmissible. Matter of Doural, 18 I&N Dec. 37 (BIA 1981), modified on other grounds, Matter of Gonzalez, 19 I&N Dec. 682 (BIA 1988); Matter of B-, 3 I&N Dec. 1 (BIA 1947). A finding of excludability in such a case need not be supported by a record of conviction; Matter of Doural, 18 I&N Dec. at 37. [A similar finding in a deportation (now removal) proceeding where the Service bears the burden to establish both the conviction and that it is for a CIMT might not be appropriate. See e.g., Matter of B-,3 I&N Dec. 1 (BIA 1947).]

1. Convicted of a crime involving moral turpitude. If the statute of conviction contains some offenses which involve moral turpitude and other which do not, the IJ examines select conviction documents to determine whether they unequivocally establish the respondent was convicted of a crime involving moral turpitude. Matter of Ajami, 22 I&N Dec. 949 (BIA 1999); Matter of Short, 20 I&N Dec. 136 (BIA 1989).
2. Purely political offense exception. In order for an offense to qualify for the “purely political offense” exception to the ground of inadmissibility under INA section 212(a)(2)(A)(i)(I), based on an alien’s conviction for a CIMT, the offense must be completely or totally “political.” Matter of O’Cealleagh, 23 I&N Dec. 976 (BIA 2006).
   1. Petty offense exception
      1. Section 212(a)(2)(A)(ii) of the Act provides that section 212(a)(2)(A)(i)(I) shall not apply to an alien who committed only one crime if:
         1. the crime was committed when the alien was under 18 years of age and the crime was committed (and the alien released from any confinement) more than 5 years before both the visa application and the application for admission [INA § 212(a)(2)(A)(ii)(I)]; or
         2. the maximum penalty possible for the crime did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to 6 months or more (regardless of the extent to which the sentence was ultimately executed) [INA § 212(a)(2)(A)(ii)(II)].
      2. (a) The maximum sentence possible for an offense, not the standard sentence under sentencing guidelines, determines the alien’s eligibility for this exception. Matter of Ruiz-Lopez, 25 I&N Dec. 551 (BIA 2011).
   2. An alien who has committed more than one petty offense is not ineligible for the “petty offense” exception if only one crime is a CIMT. Matter of Garcia-Hernandez, 23 I&N Dec. 590 (BIA 2003).

C. Controlled substance offenses

1. Section 212 (a)(2)(A)(i)(II) of the Act provides that any alien convicted of, or who admits committing acts which constitute the essential elements of, a violation of or a conspiracy to violate any law or regulation of a State, the U.S., or a foreign country relating to a controlled substance as defined in section 102 of the Controlled Substances Act (21 U.S.C. § 802) is inadmissible.
2. History Lesson- Before 1990, excludability for a drug offense was covered in part of section 212(a)(23) of the Act. In 1990, the Act was reorganized and that subject came under section 212(a)(2)(A)(i)(II). In 1996, it stayed under that section number. Many cases on this subject from before 1990 involve former section 212(a)(23) as the ground of inadmissibility.
3. The concept of admitting the commission of a violation or of admitting the commission of acts which constitute the essential elements of a violation was not contained in former section 212(a)(23). It was added by the Immigration Act of 1990.
4. Drug Paraphernalia – An alien may be rendered inadmissible under section 212(a)(2)(A)(i)(II) on the basis of a conviction for possession or use of drug paraphernalia because such possession or use is related to a controlled substance. Matter of Martinez-Espinoza, 25 I&N Dec. 118 (BIA 2009). See also Luu-Le v. INS, 224 F.3d 911, 915 (9th Cir. 2000), Bermudez v. Holder, 586 F.3d 1167 (9th Cir. 2009). An alien who is inadmissible based on a drug paraphernalia offense may qualify for a waiver of inadmissibility under section 212(h) if the offense “relates to a single offense of simple possession of 30 grams or less of marijuana.” Martinez-Espinoza, 25 I&N Dec. at 123 26.

D. Multiple criminal convictions

1. Section 212(a)(2)(B) of the Act provides that any alien convicted of 2 or more offenses (other than purely political offenses), regardless of whether the conviction was in a single trial or whether the offenses arose from a single scheme of misconduct and regardless of whether the offenses involved moral turpitude, for which the aggregate sentences to confinement actually imposed were 5 years or more is inadmissible.
2. HISTORY LESSON – Before 1990, excludability for 2 or more offenses was covered in section 212(a)(10) of the Act. In 1990, the Act was reorganized and that subject came under section 212(a)(2)(A)(i)(I). In 1996, it stayed under that section number. Cases on this subject from before 1990 involve section 212(a)(10) as the ground of inadmissibility.
3. Under former section 212(a)(10) of the Act, a sentence was “actually imposed” if a criminal court suspended the execution of a sentence, but no sentence was “actually imposed” where the imposition of sentence was suspended. Matter of Esposito, 21 I&N Dec. 1 (BIA 1995). However, section 101(a)(48)(B), which was added to the Act by the IIRIRA, now provides “Any reference to a term of imprisonment of a sentence with respect to an offense is deemed to include the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part.” Thus, the relevant inquiry is the term to which the alien was sentenced by the trial court, regardless whether the imposition or execution of the sentence was suspended. Matter of S-S-, 21 I&N Dec. 900 (BIA 1997).
4. In interpreting former section 212(a)(10), the Board held that if an alien has been convicted of 2 counts of an offense and sentenced to serve 2 concurrent 3-year terms, the aggregate sentence is only 3 years. Matter of Fernandez, 14 I&N Dec. 24 (BIA 1972). Apparently the alien must be sentenced to consecutive terms in order for the terms to be combined in determining an aggregate sentence. This appears to still be good law because Fernandez was cited with approval in Matter of Aldabesheh, 22 I&N Dec. 983 (BIA 1999), which dealt with the “aggregate sentence” of an alien convicted of two or more aggravated felonies and sentenced to concurrent sentences of imprisonment. Because the aggregate sentence was less than 5 years, the respondent was eligible for withholding of removal.

E. Trafficking in controlled substances

1. Section 212(a)(2)(C) provides that any alien who the consular or immigration officer knows or has reason to believe is or has been an illicit trafficker in any controlled substance or has been a knowing assister, abettor, conspirator, or colluder with others in the illicit trafficking in controlled substances is inadmissible.
2. HISTORY LESSON – Before 1990, excludability for being a drug trafficker was covered in part of section 212(a)(23) of the Act. In 1990, the Act was reorganized and being a drug trafficker came under section 212(a)(2)(C). In 1996, it stayed under that section number. Many cases on this subject from before 1990 involve former section 212(a)(23) as the ground of inadmissibility.
   1. The statute does not require a conviction to establish inadmissibility under this section. Matter of Rico, 16 I&N Dec. 181, 184 (BIA 1977).
   2. a. The Eleventh Circuit held that an alien’s vacated guilty plea along with hearsay statements in police reports did not amount to reason to believe that alien trafficked in controlled substances and, therefore, the alien was not removable under section 212(a)(2)(C). Garces v. Att’y Gen., 611 F.3d 1337 (11th Cir. 2010).
3. In cases involving former section 212(a)(23), the Board held that a single act will constitute a “trafficking” and it is not necessary to show a pattern or continuous trade in drugs. Matter of Favela, 16 I&N Dec. 753 (BIA 1979); Matter of Rico, 16 I&N Dec. 181 (BIA 1977); Matter of P-, 5 I&N Dec. 190 (BIA 1953). However, Matter of Rico and Matter of Favela do imply that it is necessary to show an act of more than simple possession such as sale of drugs or possession of such a large quantity of drugs that it could not be intended for personal use.
4. An alien who knowingly and consciously acts as a conduit in the transfer of marijuana between a dealer and the customers of the dealer was excludable under former section 212(a)(23) as an “illicit trafficker” in drugs, even though he derived no personal gain or profit from the transaction. Matter of R-H-, 7 I&N Dec. 675 (BIA 1958) (finding illicit trafficking where the alien on 3 occasions held marijuana cigarettes for a dealer and distributed them to customers who either had already paid the dealer in advance or left payment with the alien for later collection by the dealer).
5. Applicants who, at the time of arrival, were in possession of 6 marijuana cigarettes for personal use were not excludable under former section 212(a)(23) of the Act because there had been no conviction for possession of marijuana and their possession of a small quantity for personal use did not constitute “trafficking.” Matter of McDonald and Brewster, 15 I&N Dec. 203 (BIA 1975).

F. Prostitution

1. Section 212(a)(2)(D)(i) of the Act provides that any alien coming to the U.S. solely, principally, or incidentally to engage in prostitution or who has engaged in prostitution within 10 years of the application for a visa, admission, or adjustment of status is inadmissible.

G. Procurers & importers of prostitutes

1. Section 212(a)(2)(D)(ii) of the Act provides that the following aliens are inadmissible: Those who directly or indirectly procure or attempt to procure prostitutes or persons for the purpose of prostitution, or who receive, in whole or in part, the proceeds of prostitution.

a. The Board has ruled that a conviction under California Penal Code § 647(b) does not render an alien inadmissible under section 212(a)(2)(D)(ii) for “procur[ing] . . . prostitutes or persons for the purpose of prostitution.” Matter of Gonzalez-Zoquiapan, 24 I&N Dec. 549 (BIA 2008). The California statute punishes anyone “[w]ho solicits or who agrees to engage in or who engages in any act of prostitution,” and it states that “‘prostitution’ includes any lewd act between persons for money or other consideration.” Id. at 551. The Board ruled that “the term ‘procure’ [in INA section 212(a)(2)(D)(ii)] does not extend to an act of solicitation of a prostitute on one’s own behalf.” Id. at 551-52. The Board further ruled that, even if INA section 212(a)(2)(D)(ii) encompasses soliciting a prostitute on one’s own behalf, California Penal Code section 647(b) still falls outside that statute. Id. at 553. For this holding, the Board cited to 22 C.F.R. § 40.24(b), which states that, for purposes of INA section 212(a)(2)(D)(ii), “‘prostitution’ means engaging in promiscuous sexual intercourse for hire. A finding that an alien has ‘engaged’ in prostitution must be based on elements of continuity and regularity.” Id. The Board explained that the California statute is broader than INA section 212(a)(2)(D)(ii) because: (1) it covers “lewd act[s]” rather than simply “sexual intercourse;” and (2) it does not require “a pattern of behavior or deliberate course of conduct.” Id.

1. Those who have within 10 years of the application for a visa, admission, or adjustment of status procured, attempted to procure, or to import prostitutes or persons for the purpose of prostitution.
2. Those who receive or have received within 10 years of the application for a visa, admission, or adjustment of status, in whole or in part, the proceeds of prostitution.

H. Commercialized vice

1. Section 212(a)(2)(D)(iii) of the Act provides that any alien coming to the U.S. to engage in any other unlawful commercialized vice, whether or not related to prostitution is inadmissible.

I. Aliens who asserted immunity from prosecution – Section 212(a)(2)(E)

1. Any alien is inadmissible who

a.  has committed in the U.S. at any time a serious criminal offense as defined in section 101(h) of the Act and

b. for whom immunity from criminal jurisdiction was exercised with respect to that offense, and

c. who departed from the U.S. as a consequence of the offense and the exercise of immunity, and

d. who has not subsequently submitted fully to the jurisdiction of the court in the U.S. which has jurisdiction with respect to the offense.

2. The term “serious criminal offense”, defined in section 101(h) of the Act means:

a. Any felony;

b. Any crime of violence, as defined in 18 U.S.C. § 16;

(1) 18 U.S.C. § 16 defines a “crime of violence” as:

(a)   An offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

c. Any crime of reckless driving or driving while intoxicated or under the influence of prohibited substances if the crime involves personal injury to another.

3. A waiver is available at section 212(h) of the Act.

J. Espionage or sabotage

1. Section 212(a)(3)(A)(i) of the Act provides that any alien is inadmissible who a consular officer or the Attorney General knows, or has reasonable ground to believe, seeks to engage solely, principally or incidentally in:

a. any activity to violate any law of the U.S. relating to espionage or sabotage, or

b. to violate or evade any law prohibiting the export from the U.S. of goods, technology, or sensitive information.

1. Former section 241(a)(4)(A)(i) of the Act, which provided for the deportability of any alien who after entry has engaged in “any activity to violate any law of the United States relating to espionage,” does not require evidence that the alien was either engaged in an act of espionage or was convicted of violating a law relating to espionage. Matter of Luis, 22 I&N Dec. 747 (BIA 1999).
2. An alien who has knowledge of, or has received instruction in, the espionage or counter-espionage service or tactics of a foreign government in violation of 50 U.S.C. § 851 (1994), is deportable under former section 241(a)(4)(A)(i) of the Act. Matter of Luis, 22 I&N Dec. 747 (BIA 1999).

K. Any unlawful activity

1. Section 212(a)(3)(A)(ii) of the Act provides that any alien who a consular officer or the Attorney General knows, or has reasonable ground to believe, seeks to engage solely, principally or incidentally in any unlawful activity is inadmissible.

L. Overthrow of the Government of the U.S.

1. Section 212(a)(3)(A)(iii) of the Act provides that any alien who a consular officer or the Attorney General knows, or has reasonable ground to believe, seeks to engage solely, principally or incidentally in any activity a purpose of which is the opposition to, or overthrow of the Government of the U.S. by force, violence, or other unlawful means is inadmissible.

M. Terrorist activities

1. The statutory language of section 212(a)(3)(B) does not allow a “totality of the circumstances” test to be employed in determining whether an organization is engaged in a terrorist activity, so factors such as an organization’s purposes or goals and the nature of the regime that the organization opposes may not be considered. Matter of S-K-, 23 I&N Dec. 936 (BIA 2006). The definition of “terrorist activity” under the INA does not provide an exception for armed resistance against military targets that is permitted under the international law of armed conflict. Khan v. Holder, 584 F.3d 773 (9th Cir. 2009). Section 212(a)(3)(B)(i) of the Act [amended by the REAL ID Act of 2005] provides that any alien is inadmissible who:

a. has engaged in a terrorist activity [INA § 212(a)(3)(B)(i)(I)];

b. a consular officer or the Attorney General or Secretary of Homeland Security knows, or has reasonable ground to believe, is engaged in or likely to engage after entry in any terrorist activity [INA § 212(a)(3)(B)(i)(II)];

c. has, under circumstances indicating an intention to cause death or serious bodily harm, incited terrorist activity [INA § 212(a)(3)(B)(i)(III)];

d. is a representative of a terrorist organization or a political, social or other group that endorses or espouses terrorist activity [INA § 212(a)(3)(B)(i)(IV)];

e. is a member of a terrorist organization (unless the alien can demonstrated by clear and convincing evidence that he did not know and should not reasonably have known that the organization was a terrorist organization) [INA §§ 212(a)(3)(B)(i)(V) & (VI)];

f. endorses or espouses a terrorist activity or persecutes others to endorse or espouse a terrorist activity or support a terrorist organization [INA § 212(a)(3)(B)(i)(VII)];

g. has received military-type training (as defined in 18 USC § 2339D(c)(1)) from or on behalf of any organization that, at the time the training was received, was a terrorist organization [INA § 212(a)(3)(B)(i)(VIII)]; or

h. is the spouse or child of an alien found inadmissible under this subparagraph, if the activity causing the alien to be found inadmissible occurred within the last 5 years [INA § 212(a)(3)(B)(i)(IX)].