Supreme Court Holds that Drug Paraphernalia Must Be “Related to” a 21 USCA § 802 Listed Substance to Support Removal

Posted on June 8, 2015 by Mike Baker

The Supreme Court in Mellouli v. Holder (June 1, 2015) decided when a state drug-paraphernalia conviction sufficiently “relates to” a substance listed under the Controlled Substances Act to justify removing a permanent U.S. resident under the Immigration and Nationality Act. Moones Mellouli argued that, even though Adderall is a federally-controlled substance, his deportation was impermissible because his state conviction record did not identify the substance found in his drug paraphernalia and thus did not relate to a federally-controlled substance. Mellouli v. Lynch, 2015 WL 2464047 (U.S. June 1, 2015).

The United States Supreme Court ruled that the federal government went too far in seeking to deport immigrants for certain low-level drug-related offenses. Moones Mellouli, a legal permanent resident and math teacher originally from Tunisia, was deported after pleading guilty in Kansas state court to possessing drug paraphernalia — a sock. The 7-2 decision in his favor, Mellouli v. Lynch, marks the fourth time in the past decade that the Court has rejected the federal government’s broad application of immigration laws to drug offenses.

Despite changing views of drug use as a public health matter rather than a criminal concern and growing consensus around the failure of the War on Drugs, the U.S. government has made noncitizens with drug convictions, including longtime residents, one of the top targets of its mass deportation program. Immigration and Customs Enforcement (ICE) has deported nearly a quarter of a million people for drug offenses over the past six years, including, in 2013 alone, nearly 20,000 for simple possession and more than 6,000 for personal marijuana possession.

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To trigger deportability under 8 U.S.C. § 1227(a)(2)(B)(i), the government prove the connection between a drug paraphernalia conviction and a substance listed in section 802 of the Controlled Substances Act. A non-citizen’s state conviction for concealing unnamed pills in his sock did not trigger removal under 8 U.S.C. § 1227(a)(2)(B)(i), which authorizes the deportation of an alien “convicted of a violation of . . . any law or regulation of a state, the United States, or a foreign country related to a controlled substance.”

Background: Petitioner Moones Mellouli, a lawful permanent resident, pleaded guilty to a misdemeanor offense under Kansas law, the possession of drug paraphernalia “to . . . store [or] conceal . . . a controlled substance.” Kan. Stat. Ann. §21–5709(b)(2). The sole “paraphernalia” Mellouli was charged with possessing was a sock in which he had placed four unidentified orange tablets. Citing Mellouli’s misdemeanor conviction, an Immigration Judge ordered him deported under 8 U. S. C. §1227(a)(2)(B)(i), which authorizes the deportation (removal) of an alien “convicted of a violation of . . . any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21).” Section 802, in turn, limits the term “controlled substance” to a “drug or other substance” included in one of five federal schedules. 21 U. S. C. §802(6). Kansas defines “controlled substance” as any drug included on its own schedules, without reference to §802. Kan. Stat. Ann. §21–5701(a). At the time of Mellouli’s conviction, Kansas’ schedules included at least nine substances not on the federal lists. The Board of Immigration Appeals (BIA) affirmed Mellouli’s deportation order, and the Eighth Circuit denied his petition for review.

Held: Mellouli’s Kansas conviction for concealing unnamed pills in his sock did not trigger removal under §1227(a)(2)(B)(i). Pp. 5–14.

(a) The categorical approach historically taken in determining whether a state conviction renders an alien removable looks to the statutory definition of the offense of conviction, not to the particulars of the alien’s conduct. The state conviction triggers removal only if,by definition, the underlying crime falls within a category of removable offenses defined by federal law. The BIA has long applied the categorical approach to assess whether a state drug conviction triggers removal under successive versions of what is now” “§1227(a)(2)(B)(i). Matter of Paulus, 11 I. & N. Dec. 274, is illustrative. At the time the BIA decided Paulus, California controlled certain “narcotics” not listed as “narcotic drugs” under federal law. Id., at 275. The BIA concluded that an alien’s California conviction for offering to sell an unidentified “narcotic” was not a deportable offense, for it was possible that the conviction involved a substance controlled only under California, not federal, law. Under the Paulus analysis, Mellouli would not be deportable. The state law involved in Mellouli’s conviction, like the California statute in Paulus, was not confined to federally controlled substances; it also included substances controlled only under state, not federal, law.”

“The BIA, however, announced and applied a different approach to drug-paraphernalia offenses (as distinguished from drug possession and distribution offenses) in Matter of Martinez Espinoza, 25 I. & N. Dec. 118. There, the BIA ranked paraphernalia statutes as relating to “the drug trade in general,” reasoning that a paraphernalia conviction “relates to” any and all controlled substances, whether or not federally listed, with which the paraphernalia can be used. Id., at 120–121. Under this reasoning, there is no need to show that the type of controlled substance involved in a paraphernalia conviction is one defined in §802.”

“The BIA’s disparate approach to drug possession and distribution offenses and paraphernalia possession offenses finds no home in” “§1227(a)(2)(B)(i)’s text and “leads to consequences Congress could not have intended.” Moncrieffe v. Holder, 569 U. S., . That approach has the anomalous result of treating less grave paraphernalia possession misdemeanors more harshly than drug possession and distribution offenses. The incongruous upshot is that an alien is not removable for possessing a substance controlled only under Kansas law, but he is removable for using a sock to contain that substance. Because it makes scant sense, the BIA’s interpretation is owed no deference under the doctrine described in Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843. Pp. 5–””11.”

“(b) The Government’s interpretation of the statute is similarly flawed. The Government argues that aliens who commit any drug crime, not just paraphernalia offenses, in States whose drug sched- ules substantially overlap the federal schedules are deportable, for “state statutes that criminalize hundreds of federally controlled drugs and a handful of similar substances, are laws ‘relating to’ federally controlled substances.” Brief for Respondent 17. While the words “relating to” are broad, the Government’s reading stretches the construction of §1227(a)(2)(B)(i) to the breaking point, reaching state-“court convictions, like Mellouli’s, in which “[no] controlled substance(as defined in [§802])” figures as an element of the offense. Construction of §1227(a)(2)(B)(i) must be faithful to the text, which limits themeaning of “controlled substance,” for removal purposes, to the substances controlled under §802. Accordingly, to trigger removal under§1227(a)(2)(B)(i), the Government must connect an element of the alien’s conviction to a drug “defined in [§802].” Pp. 11–14.719 F. 3d 995, reversed.”

8 U.S.C. § 1227(a), also known as section 237(a) of the Immigration and Nationality Act (“INA”), outlines the classes of lawful aliens in the U.S. who may be deported from the country. Section 1227(a) specifically allows for the deportation of “any alien who at any time after admission [to the U.S.] has been convicted of a violation . . . of any law or regulation of a State, the United States, or any foreign country relating to a controlled substance, other than a single offense involving possession for one’s own use of 30 grams or less of marijuana.” For purposes of federal law, § 802 of the Controlled Substances Act (“CSA”) defines the term “controlled substance.”

In April 2010, Moones Mellouli, a citizen of Tunisia and a permanent resident of the United States, was arrested in Kansas for driving under the influence of alcohol. During his detention, officers found four orange tablets in Mellouli’s sock. The tablets were Adderall, a substance listed on the Kansas and U.S. Federal controlled substance schedules. Mellouli pled guilty to the charge of misdemeanor possession of drug paraphernalia (his sock) in violation of Kansas state law.

Mellouli argued that his Kansas drug-paraphernalia conviction does not fall within § 1227(a)(2)(B)(i) without a showing that the paraphernalia (his sock) is connected to a federally controlled substance outlined in § 802. Mellouli’s amended complaint to the Board of Immigration Appeals (“BIA”) did not identify the tablets found in his sock as Adderall. While Adderall is a substance on both the Kansas and U.S. controlled substance schedules, Mellouli’s conviction record from Kansas also did not specifically identify the substance found in his sock as Adderall. Thus, Mellouli claimed that there was a possibility that his Kansas drug-paraphernalia conviction does not involve a substance on the federal schedule. In other words, Mellouli argued that the government could not show that his drug paraphernalia conviction for the sock under Kansas law was connected to his possession of Adderall, which would be considered a federal offense that could result in deportation under § 1227(a).

Finding against Melloui, the BIA “concluded that Melloui’s conviction for drug paraphernalia involves drug trade in general and, thus, is covered under 8 U.S.C. ¶ 1227(a)(2)(B)(i).” The Eighth Circuit Court of Appeals agreed, finding that Mellouli’s drug paraphernalia conviction rendered him deportable under § 1227(a)(2)(B)(i). The Eighth Circuit reasoned that the BIA was correct in its reading of the phrase “relating to” when determining that Mellouli’s drug paraphernalia conviction related to the possession of a federally controlled substance. The court determined that Congress intended “to broaden the reach of the removal provision to include state offenses having a ‘logical or causal’ connection to federal controlled substances.”

The U.S. Supreme Court in Mellouli v. Lynch, 2015 WL 2464047 (U.S. June 1, 2015), held, in a 7-2 decision, that the petitioner’s state court conviction for concealing unnamed pills in his sock did not trigger removal under INA § 237(a)(2)(B)(i) [8 USCA § 1227(a)(2)(B)(i)], which provides that a noncitizen may be removed if he or she has been convicted of violating “any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21) … ” (emphasis added). The Court rejected the argument that any drug offense renders an alien removable without regard to the appearance of the drug on a §802 schedule and found that to trigger removal under § 1227(a)(2)(B)(i), the government must connect an element of the alien’s conviction to a drug defined in § 802. In so holding, the Court reversed a decision by the U.S. Court of Appeals for the Eighth Circuit, Mellouli v. Holder, 719 F.3d 995 (8th Cir. 2013), in which that court held that it was reasonable for the Board of Immigration Appeals (BIA or Board) to conclude that any Kansas conviction for misdemeanor possession of drug paraphernalia was categorically a violation of a law relating to a controlled substance within the meaning of § 1227(a)(2)(B)(i).

The petitioner in Mellouli entered the U.S. in 2004 as a student and later adjusted his status to that of a lawful permanent resident. In 2010, he was detained for driving under the influence and later charged with the Kansas state felony offense of “trafficking in contraband in a jail” after he was found with four tablets of Adderall. This charge was subsequently amended to a misdemeanor crime of “possession of drug paraphernalia” involving a sock used “to store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body a controlled substance” in violation of Kan. Stat. Ann. § 21-36a09 (now Kan. Stat. Ann. § 21-5709(b)(2)). The amended charge did not reference a particular substance. Mellouli pled guilty in July 2010 to the amended charge and was sentenced to 359 days in jail unimposed with 12 months of probation. In February 2012, he was charged with removability under 8 USCA § 1227(a)(2)(B)(i). The conviction documents submitted in the immigration proceedings did not specify the controlled substance involved. The immigration judge found that the government did not need to identify the controlled substance at issue to establish that Mellouli was convicted of a crime encompassed by 8 USCA § 1227(a)(2)(B)(i). The BIA affirmed, finding that a conviction for possession of drug paraphernalia involves drug trade in general and, thus, is covered under § 1227(a)(2)(B)(i).

Mellouli petitioned the Eighth Circuit for review, arguing that the government failed to meet its burden to prove that he was convicted of violating a law related to a controlled substance as defined by 21 USCA § 802, because (1) the record of conviction did not specify the substance associated with the paraphernalia, (2) the paraphernalia–a sock–lacked connection with any particular substance, and (3) Kansas law includes substances that are not included on the federal controlled substance list. The government argued that Mellouli’s conviction under the Kansas statutory scheme undoubtedly involved “the drug trade in general, and that is all that is needed to establish that his possession of drug paraphernalia conviction is a violation of a state law relating to a controlled substance.” In response to Mellouli’s argument that, as his Kansas state court record of conviction did not identify the controlled substance underlying his paraphernalia conviction, the government failed to prove that the conviction related to a federal controlled substance, the Eighth Circuit recognized that this question is not free from doubt, citing to the contrasting decisions in Moncrieffe v. Holder, 133 S. Ct. 1678 (2013), and Nijhawan v. Holder, 557 U.S. 29 (2009). Nevertheless, it held that it was reasonable for the BIA to conclude that any Kansas conviction for misdemeanor possession of drug paraphernalia was categorically a violation of a law relating to a controlled substance within the meaning of 8 USCA § 1227(a)(2)(B)(i).

The Supreme Court’s decision reversing the Eighth Circuit’s decision was written by Justice Ruth Bader Ginsburg and joined by Chief Justice John G. Roberts and Justices Antonin Scalia, Anthony M. Kennedy, Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan. Justice Clarence Thomas authored a dissenting opinion joined by Justice Samuel Anthony Alito, Jr. Preliminarily, Justice Ginsburg explained that under federal law, Mellouli’s concealment of controlled-substance tablets in his sock would not have qualified as a drug-paraphernalia offense. Federal law, she pointed out, criminalizes the sale of or commerce in drug paraphernalia, but possession alone is not criminalized at all, and federal law does not define drug paraphernalia to include common household or ready-to-wear items like socks; rather, it defines paraphernalia as any “equipment, product, or material” which is “primarily intended or designed for use” in connection with various drug-related activities (emphasis added by the Court). Further, she noted that in 19 states the conduct for which Mellouli was convicted–use of a sock to conceal a controlled substance–is not a criminal offense. Justice Ginsburg then discussed the categorical approach to determining whether a state conviction renders an alien removable under the INA.

Justice Ginsburg went on to review BIA decisions interpreting successive versions of the removal statute under which drug possession and distribution convictions trigger removal only if they necessarily involve a federally controlled substance, citing Matter of Fong, 10 I. & N. Dec. 616, 619 (B.I.A. 1964), Matter of Paulus, 11 I. & N. Dec. 274 (B.I.A. 1965), and Matter of Ferreira, 26 I. & N. Dec. 415 (B.I.A. 2014), while convictions for paraphernalia possession, an offense less grave than drug possession and distribution, trigger removal whether or not they necessarily implicate a federally controlled substance, citing Matter of Espinoza, 25 I. & N. Dec. 118 (B.I.A. 2009), [FN6] the decision that the immigration judge in Mellouli’s case relied upon in ordering Mellouli removed. She found that this disparate approach to state drug convictions, devised by the BIA and applied by the Eighth Circuit, “finds no home in the text of § 1227(a)(2)(B)(i)” and “leads to consequences Congress could not have intended.” She pointed out that the incongruous result of this disparate approach is that an alien is not removable for possessing a substance controlled only under Kansas law but is removable for using a sock to contain that substance. Because this “makes scant sense,” the Court held that the BIA’s interpretation was owed no deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984).

Finally, the Court rejected the government’s and the dissent’s argument that the overlap between state and federal drug schedules supports the removal of aliens convicted of any drug crime, not just paraphernalia offenses because the words “relating to” in § 1227(a)(2)(B)(i) modify “law or regulation” rather than “violation” so that aliens who commit “drug crimes” in states whose drug schedules substantially overlap the federal schedules are removable because “state statutes that criminalize hundreds of federally controlled drugs and a handful of similar substances, are laws ‘relating to’ federally controlled substances.” The Court found that this interpretation “stretches to the breaking point, reaching state-court convictions, like Mellouli’s, in which ‘[no] controlled substance (as defined in [§ 802])’ figures as an element of the offense” and that context must tug in favor of a narrower reading, citing Yates v. U.S., 135 S. Ct. 1074 (2015). In conclusion, the majority said:

[C]onstruction of § 1227(a)(2)(B)(i) must be faithful to the text, which limits the meaning of “controlled substance,” for removal purposes, to the substances controlled under § 802. We therefore reject the argument that any drug offense renders an alien removable, without regard to the appearance of the drug on a § 802 schedule. Instead, to trigger removal under § 1227(a)(2)(B)(i), the Government must connect an element of the alien’s conviction to a drug “defined in [§ 802].”

Accordingly, the Eighth Circuit’s decision was reversed.

In dissenting, Justices Thomas and Alito opined that the statutory text clearly indicates that it renders an alien removable whenever he or she is convicted of violating a law “relating to” a federally controlled substance, which they found the Kansas statute clearly does. This is so, they contend, regardless of whether the particular conduct would also subject the alien to prosecution under federal controlled-substantive laws. In ordinary parlance, Justice Thomas wrote, one thing can “relate to” another even if it also relates to other things so that, as ordinarily understood, a state law regulating various controlled substances may “relat[e] to a controlled substance (as defined in section 802 of title 21)” even if the statute also controls a few substances that do not fall within the federal definition.

Justice Ginsburg, however, retorted in footnote 9 to her opinion that, although the dissent maintains that it is simply following “the statutory text,” it shrinks to the vanishing point the words “as defined in [§ 802].” If § 1227(a)(2)(B)(i) stopped with the words “relating to a controlled substance,” she opined, the dissent would make sense, but, she said, Congress did not stop there. Instead it qualified “relating to a controlled substance” by adding the limitation “as defined in [§ 802].” She concluded, “If those words do not confine § 1227(a)(2)(B)(i)’s application to drugs defined in § 802, one can only wonder why Congress put them there.”

Posted in convicted of a violation of any law or regulation of a state relating to a controlled substance, Deportation for Drug Crimes, Drug Laws in Illinois, possession of drug paraphernalia, SCOTUS | Leave a comment

CA7 finds IJ credibility determination flawed and remands asylum case

Posted on April 25, 2015 by Mike Baker

Nadmid, a 57-year-old citizen of Mongolia, came to the U.S. in 2003 on a visitor’s visa. After being arrested for DUI, he voluntarily departed in 2006 and returned to Mongolia, where he started a business. Nadmid returned to the U.S. in 2009. He stated that he was visiting his daughter (who holds a green card), and answered ”no” when asked if he feared returning to Mongolia. In a second interview, after speaking with his daughter, Nadmid stated that, if returned to Mongolia, he feared being killed for rebuffing extortion demands. He described confrontations and threats. An asylum officer, speaking through a translator, determined that Nadmid had a credible fear of persecution. In his asylum application and testimony, Nadmid claimed to have been abducted and beaten. The IJ concluded that Nadmid was not credible, finding inconsistencies in the airport interviews “significant problems.” The IJ gave little weight to newspapers or to a medical certificate. Nadmid’s proposed social group, “Mongolian business owners who seek to expose and end political corruption,” was premised on a profession rather than any immutable, fundamental characteristic. The IJ found that Nadmid did not qualify for withholding of removal or for protection under the Convention Against Torture. The Seventh Circuit remanded, finding the credibility determination flawed.

The immigration judge found Nadmid to lack credibility based largely on airport interviews conducted on his arrival — and in Russian. Since those interviews revealed a significant language barrier, the Seventh Circuit held, the immigration judge was wrong to rely on them to discount Nadmid’s credibility.

When Nadmid arrived in the U.S. in 2009 — he had once overstayed a tourist visa and was voluntarily deported in 2006 — he claimed to be victim of political corruption. Sort of. Initially, during an airport interview at Chicago O’Hare, he said he did not fear returning. That interview was conducted in Russian, which Nadmid had only minimal familiarity with.

Later that day, when interviewed in Mongolian, Nadmid claimed that he had been persecuted for speaking out against corruption, and was facing violence and extortion as a result. In his later asylum application, he provided documentation including a news article, medical reports, and detailed personal testimony.

The IJ concluded that Nadmid did not qualify for asylum because he was not credible and hadn’t corroborated his claim, citing the inconsistencies between his airport interviews and asylum testimony. Much of the IJ’s decision rested on the Russian airport interview where Nadmid had attributed the threats to a personal dispute and had provided different dates for certain incidents.

An IJ may consider airport interviews in determining credibility, but those interviews must be reliable. Reliability is undermined when there is evidence that translation problems impeded understanding, the Seventh stated. Here, Nadmid had been interviewed by a Russian translator, though he had only minimal fluency in that language. The court found the transcript, which contained contradictory statements made in quick succession, to be evidence that Nadmid faced a significant language barrier.

The IJ not only questioned Nadmid’s credibility, but whether a businessman suffering persecution for speaking out against corruption could qualify as a persecuted group at all — a question the Seventh declined addressing.

_________________________________

GONCHIGSHARAV NADMID, Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General of the United States, Respondent.
No. 14-1477.

United States Court of Appeals, Seventh Circuit.
Argued November 18, 2014.
Decided April 21, 2015.

Before BAUER, MANION, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

Gonchigsharav Nadmid, a Mongolian businessman, petitions for review of the denial of his application for asylum and withholding from removal based on (1) his political opinion denouncing two prominent and corrupt politicians by name at a public rally and (2) his membership in the social group of business owners who seek to expose and end corruption between politicians and businesses. Because the adverse credibility determination of the immigration judge was flawed, we grant the petition and remand for further proceedings.

I. BACKGROUND

Nadmid, a 57-year-old native and citizen of Mongolia, came to the United States in 2003 on a visitor’s visa and overstayed. After being arrested in Pennsylvania for driving under the influence, he voluntarily departed in 2006 and returned to Mongolia, where he started a business manufacturing construction materials.

Nadmid returned to the United States in late 2009, presenting the same visa he had obtained six years earlier. He was detained at Chicago O’Hare International Airport, where a Customs and Border Patrol officer, through a Russian translator, conducted two interviews with him. During the first interview, Nadmid answered basic biographical questions, informed the officer that he was coming to the United States to visit his daughter (who holds a green card), and answered “no” when asked if he feared returning to Mongolia. In a second interview later that day (and after speaking with his daughter), Nadmid told the officer that, if returned to Mongolia, he feared being killed by agents from Oyu Tolgoi (a large, partially government-owned mining operation in Mongolia), whose demand for $200,000 he had rebuffed. Nadmid mentioned several instances in which thugs, including a man named Tsegmid, confronted and threatened him at his business. A month later an asylum officer conducted a credible-fear interview, this time through a Mongolian translator, and determined that Nadmid did have a credible fear of persecution.

In an affidavit accompanying his asylum application and in his testimony at his removal hearing in 2011, Nadmid described his political activity in Mongolia and the consequences he faced for speaking out against political corruption. He recounted that in mid-2009 he participated in an anti-corruption protest in the capital city of Ulaanbaatar, at which he spoke out on stage and accused two politicians from the ruling Mongolian People’s Party of misappropriating public funds. Five days after the protest, several unidentified men showed up at his business and assaulted him, knocking him unconscious with a metal rod to his head; afterward he had to be hospitalized. Nadmid’s assailants did not address him directly but he overheard them saying that he “talks too much shit.” The following month the men returned but Nadmid managed to slip out through the back door. Several weeks later two different men confronted him at his business and demanded $200,000, a sum well beyond Nadmid’s means. Nadmid returned home later that day to find that his kitchen window had been smashed by two bricks thrown inside.

A month later Nadmid sought out a reporter to publicize his continued opposition to governmental corruption and to show his harassers that he would not be intimidated. Soon thereafter the newspaper Mongolia Today ran a brief story profiling Nadmid as a small businessman who denounced corruption and refused to contribute to the Mongolian People’s Party.

A few weeks after the article was published, Nadmid recounted further, he was abducted at his business and taken to a cemetery. He managed to escape with the help of one of the assailants, Tsegmid, who had been a business acquaintance of his in the 1990s. After the incident, Nadmid shuttered his business and hid at campsites away from the capital; he left Mongolia in December. The day after he left, a no-tice bearing his photo was published in the Ulaanbaatar Times seeking information on his whereabouts and offering a reward.

Nadmid supplemented his application with the newspaper profile, the published notice seeking his whereabouts, a medical certificate confirming his post-beating treatment, his business license, and an excerpt from a report by the United States Agency for International Development documenting pervasive and increasing corruption in business and politics in Mongolia. He also offered the declaration and testimony of Dr. Alicia Campi, the president of a Mongolian business consultancy company who holds a Ph.D. in Mongolian studies and specializes in Mongolian politics, economics, and human rights. Dr. Campi testified that corruption in Mongolia was widespread, that the two politicians Nadmid had singled out at the rally were known for corruption and violent retaliation against opponents, that she had been able to confirm the authenticity of Nadmid’s identification documents through contacts in Mongolia, and that the newspaper article and notice resembled those she had seen in Mongolian newspapers.

The IJ concluded that Nadmid did not qualify for asylum because he was not credible and did not sufficiently corroborate his claim. Nadmid testified consistently with his written affidavit, the IJ acknowledged, but the inconsistencies between his testimony and the transcripts of his two airport interviews were “significant problems.” In the airport interviews, for instance, Nadmid had portrayed the threats as arising from a personal dispute and did not mention speaking at an anticorruption rally. At these interviews, he also give different dates for the alleged incidents and described Tsegmid’s role inconsistently. Nadmid, the IJ added, did not convincingly explain why he overstayed his visa in 2003 or why his persecutors believed he would have as much as $200,000 after he returned to Mongolia with such few assets.

Because his testimony was not credible, the IJ determined that Nadmid needed to submit corroborating evidence. The IJ gave little weight to the newspapers, which he assumed had not been identified in the record, or to the medical certificate because it was poorly translated. The IJ also found Dr. Campi’s testimony reliable but insufficient because she lacked personal knowledge of Nadmid’s story. In the IJ’s view, Nadmid should have provided further documentation of his business activities in Mongolia and affidavits from friends, family members, or employees who witnessed his speech at the 2009 rally or the attacks against him.

And even if Nadmid’s testimony were credited, the IJ added, members of Nadmid’s proposed social group — “Mongolian business owners who seek to expose and end political corruption of private businesses” — had nothing in common except being targeted for persecution, and was premised on a profession rather than any immutable and fundamental characteristic. Nor could Nadmid demonstrate a nexus between a protected ground and the persecution he suffered because he showed only that his attackers were “motivated by greed” and sought simply to extort money from him. Finally the IJ found that Nadmid did not qualify for withholding of removal or for protection under the Convention Against Torture.

The Board upheld the IJ’s findings about credibility, corroboration, and CAT, and dismissed Nadmid’s appeal. It did not consider the IJ’s alternative findings concerning social group membership or nexus.

II. ANALYSIS

In his petition for review, Nadmid challenges the adverse credibility finding and specifically the reliability of the airport interviews on grounds that he is not fluent in Russian, as reflected in interview transcripts that reveal significant inconsistencies and language difficulties.

Although an IJ may consider airport interviews in making a credibility determination, they must be reliable, and may be less so where the asylum applicant’s answers suggest that translation problems have made it difficult to understand the questions posed to him. Moab v. Gonzales, 500 F.3d 656, 660-61 (7th Cir. 2007); Balogun v. Ashcroft, 374 F.3d 492, 504-05 (7th Cir. 2004). These problems are particularly acute when the translator does not speak the applicant’s native language, but instead translates the questions into a language in which the applicant is only minimally proficient. See Ememe v. Ashcroft, 358 F.3d 447, 451-52 (7th Cir. 2004); Sing v. INS, 292 F.3d 1017, 1022-23 (9th Cir. 2002).

We agree with Nadmid that the IJ incorrectly relied on the airport interviews to discredit him. First, the IJ mischaracterized the record when he stated that Nadmid testified that he told the Customs and Border Patrol officer that he “requested a Russian interpreter.” The record does not reflect that Nadmid testified to making such a request; he testified that immigration officers asked him what languages he spoke and provided a Russian interpreter after he responded that he spoke Russian. Second, the IJ concluded that the transcripts of the airport interviews showed “detailed, coherent responses.” But the transcript contains several contradictory statements made in quick succession that suggest that Nadmid faced a significant language barrier in understanding the questions being asked him.[1] Third, the IJ stated that Nadmid had learned Russian when he had attended a technical school in Russia for three years. But the IJ did not acknowledge that Nadmid attended the technical school more than 30 years before the airport interviews, that the classes there were taught both in Russian and through interpreters, and that Nadmid stated that he did not use Russian in his business in Mongolia. Finally, the IJ disregarded Nadmid’s repeated demurrals that he spoke Russian poorly — at the airport interview itself, at his first appearance in the immigration court less than two months later, and during his testimony at the removal hearing.

The government does not respond to Nadmid’s challenge to the adverse credibility finding, and instead argues that the petition must outright be denied because Nadmid failed before the Board and in this court to contest a separate dispositive issue — the IJ’s ruling that he failed to corroborate his claim with reasonably available evidence. But the government’s first contention, that Nadmid failed to exhaust his administrative remedies by not raising the corroboration issue before the Board, is incorrect. The Board independently addressed the issue in its decision, and once the Board addresses an issue on its own, it is exhausted. See 8 U.S.C. § 1252(d)(1); Arobelidze v. Holder, 653 F.3d 513, 516-17 (7th Cir. 2011). The government, however, is correct that Nadmid has waived the issue by failing to discuss it in his brief here. See Firishchak v. Holder, 636 F.3d 305, 309 n.2 (7th Cir. 2011).

Waiver of the corroboration issue, though, does not resolve the case in the government’s favor. It is generally true that an applicant’s failure to comply with an IJ’s request for corroborating evidence will doom a claim when such evidence is reasonably available. See 8 U.S.C. § 1158(b)(1)(B)(ii); Raghunathan v. Holder, 604 F.3d 371, 379 (7th Cir. 2010); Krishnapillai v. Holder, 563 F.3d 606, 618-19 (7th Cir. 2009). But an applicant’s testimony alone “may be sufficient to sustain the applicant’s burden without corroboration.” 8 U.S.C. § 1158(b)(1)(B)(ii). Thus, if an IJ explicitly premises a demand for corroborating evidence on an adverse credibility determination that is flawed, as happened here, then a reassessment of credibility may turn out to remove the need for corroboration. See Rapheal v. Mukasey, 533 F.3d 521, 528-30 (7th Cir. 2008). The case must be remanded for a reassessment of Nadmid’s credibility.

Nadmid also challenges the IJ’s alternative findings that, assuming Nadmid to be credible, his proposed social group lacked an immutable or fundamental characteristic and that no nexus could be shown between the persecution he suffered and his political opinion or membership in his particular social group. The Board did not address these alternative findings, and we will not address them in the first instance. See INS v. Ventura, 537 U.S. 12, 16-17 (2002); Sibanda v. Holder, 778 F.3d 676, 681 (7th Cir. 2015). On remand they deserve scrutiny.

III. CONCLUSION

We GRANT the petition and remand for further proceedings consistent with this opinion.

[1] The transcript shows confusion over the name of the firm ostensibly lending money to Nadmid and whether the firm lent money to Nadmid or sought merely to extort him:

Q: Who is going to kill you?

A: A private firm lent me a large sum of money and I have failed to repay the money. Now they have been threatening me.

Q: What is the name of the firm?

A: The company name is Tsegmid.

. . .

Q: How much money did you borrow from them?

A: This is the company that takes my money.

Q: You said that they lent you money?

A: They only take money.

. . .

Q: How do they take your money?

A: They have never taken any money from me, they seek to take money from me.

. . .

Q: You told me that you borrowed money from them. When did you borrow money from them?

A: No it never happened.

. . .

Q: Who contacts you in the company?

A: Tsegmid is the name of a person, not the company.

Q: Why did you tell me it was the name of a company?

A: My Russian isn’t very good.

Posted in 7th Circuit, 7th Circuit Cases- Aliens, credibility determination, political asylum, political corruption | Leave a comment

The Attorney General vacated Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008), in its entirety.

Posted on April 16, 2015 by Mike Baker

The November 7, 2008, opinion, Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008), is vacated in its entirety.
Download Case

Matter of Cristoval SILVA-TREVINO, Respondent
Decided by Attorney General April 10, 2015
U.S. Department of Justice Office of the Attorney General

The Attorney General vacated the opinion in Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008).

BEFORE THE ATTORNEY GENERAL

On November 7, 2008, Attorney General Mukasey issued an opinion in this matter vacating the August 8, 2006, decision of the Board of Immigration Appeals and remanding respondent’s case for further proceedings in accordance with his opinion. See Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008). On remand, the Immigration Judge, applying Attorney General Mukasey’s opinion, issued a new decision finding respondent ineligible for discretionary relief from deportation. The Board affirmed that decision. The respondent then filed a petition for review with the United States Court of Appeals for the Fifth Circuit. On January 30, 2014, the Fifth Circuit rejected Attorney General Mukasey’s opinion as contrary to the plain language of the statute, vacated the Board’s decision, and remanded this matter to the Board for further proceedings consistent with the court’s opinion. See Silva-Trevino v. Holder, 742 F.3d 197, 200−06 (5th Cir. 2014). For the reasons stated herein, I have determined that it is appropriate to vacate Attorney General Mukasey’s November 7, 2008, opinion in this matter.

The central issue raised by this case is how to determine whether an alien has been “convicted of . . . a crime involving moral turpitude” within the meaning of section 212(a)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(2) (2012). The Board initially addressed this issue in its August 8, 2006, decision in this case, determining that respondent’s conviction for the criminal offense of “indecency with a child” should not be considered a crime of moral turpitude because the Texas statute under which he had been convicted criminalized at least some conduct that did not involve moral turpitude and was thus not categorically a crime involving moral turpitude. Matter of Silva-Trevino, 24 I&N Dec. at 690−92. After that decision had issued, Attorney General Gonzales directed the Board to refer the case to him for further review. See Att’y Gen. Order No. 2889-2007 (July 10, 2007); see also 8 C.F.R. § 1003.1(h)(1)(i) (2007) (providing that the Attorney General may direct the Board to refer cases to him “for review of [the Board’s] decision”). After review, Attorney General Gonzales’s successor, Attorney General Mukasey, issued an opinion vacating the Board’s August 8, 2006, decision and establishing a new three-step framework to be used by Immigration Judges and the Board in determining whether an alien had been convicted of a crime involving moral turpitude. Att’y Gen. Order No. 3016-2008 (Nov. 7, 2008); Matter of Silva-Trevino, 24 I&N Dec. at 687−90 & n.1, 704; cf. section 103(a)(1) of the Act, 8 U.S.C. § 1103(a)(1) (2012) (a “determination and ruling by the Attorney General with respect to all questions of law shall be controlling”).

In the first step of the framework, Attorney General Mukasey directed Immigration Judges and the Board to “engage in a ‘categorical inquiry’” in order to determine “whether moral turpitude necessarily inheres in all cases that have a realistic probability of being prosecuted” under a particular criminal provision. Matter of Silva-Trevino, 24 I&N Dec. at 696−97 (relying on Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)). Where this categorical analysis did not resolve the moral turpitude inquiry, the Attorney General instructed adjudicators to proceed to the second step, a “modified categorical” inquiry “pursuant to which adjudicators consider whether the alien’s record of conviction evidences a crime that in fact involved moral turpitude.” Id. at 698. Recognizing that “[m]ost courts . . . have limited this second-stage inquiry to the alien’s record of conviction,” the Attorney General concluded that a third step was necessary because “when the record of conviction fails to show whether the alien was convicted of a crime involving moral turpitude, immigration judges should be permitted to consider evidence beyond that record if doing so is necessary and appropriate to ensure proper application of the Act’s moral turpitude provisions.” Id. at 699. Accordingly, Attorney General Mukasey’s opinion directed Immigration Judges and the Board to consider, at the third step in the moral turpitude inquiry, “any additional evidence the adjudicator determines is necessary or appropriate to resolve accurately the moral turpitude question” when “the record of conviction does not resolve the inquiry.” Id. at 704. The Attorney General then remanded the case to the Board to “reconsider, consistent with [his] opinion, whether the crime respondent committed involved moral turpitude.” Id. at 709.

On remand, the Board sent the case back to the Immigration Judge who—applying the third step in Attorney General Mukasey’s framework— considered evidence outside of the record of conviction to conclude that respondent’s conviction had involved moral turpitude because respondent should have known that the victim of his crime was a minor. Silva-Trevino, 742 F.3d at 198−99. As a result, the Immigration Judge found respondent was inadmissible and thus ineligible for discretionary relief from deportation under section 212(a)(2) of the Act. Id. On review, the Board affirmed. Id.

In January of last year, on respondent’s petition for review, the Fifth Circuit held that “convicted of” as used in section 212(a)(2) did not permit Immigration Judges to inquire into relevant evidence outside of the record of conviction in order to classify a particular conviction as one involving moral turpitude. Id. at 200−01. In so doing, the court rejected the third step of Attorney General Mukasey’s framework as contrary to the unambiguous language of the statute and thus refused to accord the Silva-Trevino opinion deference. See id. at 203 (“Where, as here, Congress has spoken directly to the statutory question at hand, our precedent need not yield to an agency’s contrary interpretation.”).

As the Fifth Circuit recognized, in so ruling it became the fifth circuit court of appeals to reject Attorney General Mukasey’s construction of the statute. Id. at 200 & n.1.1 These courts have all agreed that the phrase “convicted of” as used in the Act forecloses any inquiry into evidence outside of the record of conviction. Id. Two other circuits have accorded deference to Attorney General Mukasey’s construction of the statute as reasonable and permitted such an extrinsic inquiry.2 As a result, Attorney General Mukasey’s opinion in this matter has not accomplished its stated goal of “establish[ing] a uniform framework for ensuring that the Act’s moral turpitude provisions are fairly and accurately applied.” Matter of Silva-Trevino, 24 I&N Dec. at 688. Instead, the circuits are split, and the variance between Attorney General Mukasey’s binding opinion and the contrary controlling precedent in some circuits forces Immigration Judges and the Board to apply different standards in different jurisdictions. See Silva-Trevino, 742 F.3d at 205.

In addition, in the time since Attorney General Mukasey released his opinion, the Supreme Court has issued several decisions that may bear on administrative determinations of whether an alien has been convicted of a crime involving moral turpitude. In Carachuri-Rosendo v. Holder, the Court held that adjudicators could not consider uncharged conduct to determine whether an alien had been “convicted of” illicit trafficking, an aggravated felony under the Act. 560 U.S. 563, 581−82 (2010). Applying Carachuri-Rosendo 3 years later, the Court in Moncrieffe v. Holder reaffirmed that the phrase “convicted of” required a categorical approach, and it rejected the Government’s argument that adjudicators could engage in a “circumstance-specific” analysis of a particular drug conviction to determine if the quantity of drugs involved made it an aggravated felony. 133 S. Ct. 1678, 1690−92 (2013); see also Kawashima v. Holder, 132 S. Ct. 1166, 1172 (2012) (applying the categorical approach to determine if an alien had been convicted of an offense involving fraud or deceit). These decisions cast doubt on the continued validity of the third step of the framework set out by Attorney General Mukasey’s opinion, which directs Immigration Judges and the Board to go beyond the categorical and modified categorical approaches and inquire into facts outside of the formal record of conviction in order to determine whether a particular conviction involves moral turpitude.
__________________
1 See Olivas-Motta v. Holder, 746 F.3d 907, 911−16 (9th Cir. 2013) (amended opinion); Prudencio v. Holder, 669 F.3d 472, 480−84 (4th Cir. 2012); Fajardo v. U.S. Att’y Gen., 659 F.3d 1303, 1307−11 (11th Cir. 2011); Jean-Louis v. Att’y Gen. of U.S., 582 F.3d 462, 472−82 (3d Cir. 2009).
2 Bobadilla v. Holder, 679 F.3d 1052, 1057 (8th Cir. 2012); Mata-Guerrero v. Holder, 627 F.3d 256, 260 (7th Cir. 2010)
__________________

In view of the decisions of five courts of appeals rejecting the framework set out in Attorney General Mukasey’s opinion—which have created disagreement among the circuits and disuniformity in the Board’s application of immigration law—as well as intervening Supreme Court decisions that cast doubt on the continued validity of the opinion. When, and to what extent, adjudicators may use a modified categorical approach and consider a record of conviction in determining whether an alien has been “convicted of . . . a crime involving moral turpitude” in applying section 212(a)(2) of the Act and similar provisions; Whether an alien who seeks a favorable exercise of discretion under the Act after having engaged in criminal acts constituting the sexual abuse of a minor should be required to make a heightened evidentiary showing of hardship or other factors that would warrant a favorable exercise of discretion. See Matter of Jean, 23 I&N Dec. 373 (A.G. 2002) (addressing the exercise of discretion in view of alien’s criminal acts). The Board should solicit and consider briefs from the parties and interested amici as it deems appropriate to ensure that its conclusions on these issues are reached after full and fair consideration of all relevant arguments. I conclude that it is appropriate to vacate the November 7, 2008, opinion in its entirety.3 My decision to do so does not mean that I disapprove of every aspect of that opinion. But because the Board is obliged to follow decisions of the Attorney General except to the extent of a contrary directive from a reviewing court, see, e.g., Matter of Abdelghany, 26 I&N Dec. 254, 265 (BIA 2014), only a complete vacatur will enable the Board to develop a uniform standard for the proper construction and application of section 212(a)(2) of the Act and similar provisions in light of all relevant precedents and arguments.
_______________
3 Nothing in this order is intended to affect Board determinations that an offense entails or does not entail “reprehensible conduct and some form of scienter” and is or is not a crime involving moral turpitude for that reason. Matter of Silva-Trevino, 24 I&N Dec. at 706 n.5. In addition to Silva-Trevino, that standard has been applied in the following Board precedents: Matter of Ortega-Lopez, 26 I&N Dec. 99 (BIA 2013); Matter of Leal, 26 I&N Dec. 20 (BIA 2012); Matter of Ruiz-Lopez, 25 I&N Dec. 551 (BIA 2011); Matter of Guevera-Alfaro, 25 I&N Dec. 417 (BIA 2011); and Matter of Louissaint, 24 I&N Dec. 754. As an interim matter, those determinations, as well as determinations in nonprecedential decisions applying the standard, shall remain valid. I leave to the Board whether to retain, modify, or clarify them in any respect.
_______________

In light of this vacatur, the Board may address, in this case and other cases as appropriate, the following issues:

1. How adjudicators are to determine whether a particular criminal offense is a crime involving moral turpitude under the Act;

2. When, and to what extent, adjudicators may use a modified categorical approach and consider a record of conviction in determining whether an alien has been “convicted of . . . a crime involving moral turpitude” in applying section 212(a)(2) of the Act and similar provisions;

3. Whether an alien who seeks a favorable exercise of discretion under the Act after having engaged in criminal acts constituting the sexual abuse of a minor should be required to make a heightened evidentiary showing of hardship or other factors that would warrant a favorable exercise of discretion. See Matter of Jean, 23 I&N Dec. 373 (A.G. 2002) (addressing the exercise of discretion in view of alien’s criminal acts).

The Board should solicit and consider briefs from the parties and interested amici as it deems appropriate to ensure that its conclusions on these issues are reached after full and fair consideration of all relevant arguments.

The November 7, 2008, opinion, Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008), is vacated in its entirety.

Posted in Attorney General and BIA Precedent Decisions, CIMT, Crime involving moral turpitude | Leave a comment

Three USCIS Administrative Appeals Office Decisions Published

Posted on April 15, 2015 by Mike Baker

Matter of Leacheng International, Inc.

(1) The definition of “doing business” at 8 C.F.R. § 204.5(j)(2) (2014) contains no requirement that a petitioner for a multinational manager or executive must provide goods and or services to an unaffiliated third party.

(2) A petitioner may establish that it is “doing business” by demonstrating that it is providing goods and/or services in a regular, systematic, and continuous manner to related companies within its multinational organization.

The link to this decision: http://www.justice.gov/eoir/vll/intdec/vol26/3830.pdf
_________________________________________________________________
Matter of Christo’s, Inc.

(1) An alien who submits false documents representing a nonexistent or fictitious marriage, but who never either entered into or attempted or conspired to enter into a marriage, may intend to evade the immigration laws but is not, by such act alone, considered to have “entered into” or “attempted or conspired to enter into” a marriage for purposes of section 204(c) of the Immigration and Nationality Act, 8 U.S.C. § 1154(c) (2012). Matter of Concepcion, 16 I&N Dec. 10 (BIA 1976), followed.

(2) Misrepresentations relating to a nonexistent marriage may render the beneficiary inadmissible under section 212(a)(6)(C)(i) of the Act, 8 U.S.C. § 1182(a)(6)(C)(i) (2012), when the Director adjudicates the application for adjustment of status.

The link to this decision: http://www.justice.gov/eoir/vll/intdec/vol26/3831.pdf
_________________________________________________________________
Matter of Simeio Solutions, LLC

(1) A change in the place of employment of a beneficiary to a geographical area requiring a corresponding Labor Condition Application for Nonimmigrant Workers (“LCA”) be certified to the U.S. Department of Homeland Security with respect to that beneficiary may affect eligibility for H-1B status; it is therefore a material change for purposes of 8 C.F.R. §§ 214.2(h)(2)(i)(E) and (11)(i)(A) (2014).

(2) When there is a material change in the terms and conditions of employment, the petitioner must file an amended or new H−1B petition with the corresponding LCA.

The link to this decision: http://www.justice.gov/eoir/vll/intdec/vol26/3832.pdf

Administrative Appeals Office

Posted in AAO, AAO Practice Manual, AAO/Commissioner Decisions, Administrative Appeals Office, BIA Precedent Decisions Volume 26, Board of Immigration Appeals | Leave a comment

Visa Bulletin For April 2015

Posted on March 14, 2015 by Mike Baker

Visa Bulletin For April 2015

Number 76
Volume IX
Washington, D.C

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A. STATUTORY NUMBERS

1.  This bulletin summarizes the availability of immigrant numbers during April. Consular officers are required to report to the Department of State documentarily qualified applicants for numerically limited visas; U.S. Citizenship and Immigration Services in the Department of Homeland Security reports applicants for adjustment of status.  Allocations were made, to the extent possible, in chronological order of reported priority dates, for demand received by March 11th.  If not all demand could be satisfied, the category or foreign state in which demand was excessive was deemed oversubscribed.  The cut-off date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits.  Only applicants who have a priority date earlier than the cut-off date may be allotted a number.  If it becomes necessary during the monthly allocation process to retrogress a cut-off date, supplemental requests for numbers will be honored only if the priority date falls within the new cut-off date announced in this bulletin. If at any time an annual limit were reached, it would be necessary to immediately make the preference category "unavailable", and no further requests for numbers would be honored.

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

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

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

FAMILY-SPONSORED PREFERENCES

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

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

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

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

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

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

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

Family-Sponsored All Chargeability Areas Except Those Listed CHINA-mainland born INDIA MEXICO PHILIPPINES
F1 01AUG07 01AUG07  01AUG07 01NOV94 01FEB05
F2A 01AUG13 01AUG13 01AUG13 08JUL13 01AUG13
F2B 22AUG08 22AUG08 22AUG08 01FEB95  01APR04
F3 08FEB04 08FEB04 08FEB04 01APR94 08AUG93
F4 15JUN02 15JUN02 15JUN02 08JUL97 22SEP91

*NOTE:  For April, F2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 08JUL13.  F2A numbers SUBJECT to per-country limit are available to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 08JUL13 and earlier than 01AUG13.  (All F2A numbers provided for MEXICO are exempt from the per-country limit; there are no F2A numbers for MEXICO subject to per-country limit.) 

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

EMPLOYMENT-BASED PREFERENCES

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

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

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

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

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

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

Employment- Based

All Chargeability Areas Except Those Listed

 CHINA – mainland born INDIA MEXICO PHILIPPINES
1st C C C C C
2nd C 01APR11 01SEP07 C C
3rd 01OCT14 01JAN11 08JAN04 01OCT14 01OCT14
Other Workers 01OCT14 15AUG05 08JAN04 01OCT14 01OCT14
4th C C C C C
Certain Religious Workers C C C C C

5th
Targeted
Employment Areas/
Regional Centers
and Pilot Programs

 C C C C C

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

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

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

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

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

Region All DV Chargeability Areas Except Those Listed Separately
AFRICA 30,700 Except:
Egypt:    18,200
Ethiopia: 22,550
ASIA 4,725

EUROPE 28,450
NORTH AMERICA (BAHAMAS) 6
OCEANIA 975
SOUTH AMERICA,
and the CARIBBEAN		 1,025

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

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

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

Region All DV Chargeability Areas Except Those Listed Separately
AFRICA 32,700 Except:
Egypt:      20,900
Ethiopia:   25,750
ASIA 5,275
EUROPE 30,300
NORTH AMERICA (BAHAMAS) 6
OCEANIA 1,075
SOUTH AMERICA,
and the CARIBBEAN		 1,025

D.  VISA AVAILABILITY – CHINA-mainland born

Employment Third Preference: The cut-off date for this category was advanced very rapidly during the past seven months, in an attempt to generate demand to ensure that all numbers under the annual limit could be made available. Item E in the November 2014 Visa Bulletin notified readers that this rapid movement could require "corrective" action as early as February, once demand began to materialize. 

Continued heavy demand by applicants with very early priority dates has required a retrogression of this cut-off date for the month of April, to hold number use within the annual numerical limit. Potential forward movement of this cut-off date during the remainder of the fiscal year is dependent on the amount of demand received for applicants with very early priority dates. 

Employment Fifth Preference: Item D of the February Visa Bulletin advised readers that the expected increase in demand would require the establishment of a cut-off date during the summer to hold number use within the annual numerical limit. The establishment of that date can be expected no later than June. 

E.  OBTAINING THE MONTHLY VISA BULLETIN

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

listserv@calist.state.gov

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

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

listserv@calist.state.gov

and in the message body type: Signoff Visa-Bulletin

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

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

VISABULLETIN@STATE.GOV

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

Department of State Publication 9514
CA/VO:   March 11, 2015
Posted in Visa Bulletin, Visa Bulletin For April 2015 | Leave a comment