CA7 denies petition as Motion to Reopen was properly denied since evidence of future persecution could have been presented at original hearing-Salim v. Holder

Posted on September 24, 2013 by Mike Baker

Salim v. Holder, No. 12-3858 (August 28, 2013) Petition for Review, Order of Bd. of Immigration Appeals Petition denied Bd. did not err in denying alien’s motion to reopen asylum and withholding of removal proceedings, even though alien submitted new evidence to support his claim that he would endure persecution on account of his Chinese national origin and his Christian religion if forced to return to Indonesia. Motion to reopen was properly denied since said evidence could have been presented at original hearing. Ct. also rejected alien’s claim that he could qualify for asylum under Ninth Circuit’s “disfavored group” analysis set forth in Tampubolon, 610 F.3d 1056.

Salim v. Holder, No. 12-3858

In Salim v. Holder, 2013 WL 4537190 (7th Cir. 2013), the U.S. Court of Appeals for the Seventh Circuit denied a petition filed by an Indonesian citizen whose motion to reopen (MTR) his removal proceeding was rejected by the Board of Immigration Appeals (BIA or Board), which concluded that he failed to present any new previously unavailable or undiscoverable evidence to support his claim for asylum and related relief, which had been denied by the immigration judge (IJ) following Mr. Salim’s previous hearing. The court agreed with the BIA that the “new” evidence presented with the MTR, which showed continuing inter-religious tensions in Indonesia, did not demonstrate new or changed circumstances suggesting that the government of Indonesia is now unwilling or unable to protect Salim against the type of harassment about which he was concerned. In addition, the court was not persuaded by the petitioner’s contention that the BIA erred in failing to consider “new and material case law” originating out of the Ninth Circuit, which has coined the “disfavored group” concept relating to Christians in Indonesia. The Seventh Circuit declared that a change in caselaw is not “new evidence” for purposes of an MTR and further rejected the notion that the disfavored group analysis used in asylum and withholding cases in the Ninth Circuit, including in Tampubolon v. Holder, 610 F.3d 1056 (9th Cir. 2010), constitutes “new” evidence or even a change in the law.

Mr. Salim “fled his homeland” in 2000 and came to the U.S. He sought asylum, withholding of removal, and protection under the Convention Against Torture (CAT) on the ground that he had endured several instances of harassment and discrimination as an ethnic Christian living in Indonesia (where the majority of the population is ethnic-Muslims). Among other claims, Salim asserted that he was robbed by Muslim students and was once stabbed in the neck with a knife. He related that it was difficult for Chinese-Christians to travel safely around Jakarta during the period of intense rioting in 1998, during which time a number of Chinese businesses were burned down. He admitted, however, that his family’s business was not harmed. Finding that Salim’s account was not credible, an IJ denied relief in an order issued in 2004. Salim appealed to the BIA, which found that the IJ’s decision was not adequately supported and therefore remanded the case so that Salim could submit additional evidence of country conditions in Indonesia. Following another hearing conducted in 2010, the IJ found Salim’s testimony truthful but nevertheless concluded that his negative experiences did not rise to the level of “past persecution,” reasoning that Salim was merely the victim of random violence. The IJ further ruled that Salim did not present sufficient evidence to show that he would be targeted for future persecution and also considered that, while general discrimination against ethnic and religious minorities in Indonesia continues to exist, instances of harassment against Chinese people were on the decline. Salim did not appeal the IJ’s decision but rather filed an MTR accompanied by over 20 articles about religious tension in Indonesia. He argued that he should qualify for asylum under Ninth Circuit caselaw because he is a member of two disfavored groups in Indonesia: ethnic Chinese people and Christians. The IJ rejected the motion, reasoning that it was “nothing more than a late attempt to submit additional background information on conditions in Indonesia and a legal argument that has been rejected by the Seventh Circuit Court of Appeals.”

After the BIA affirmed the IJ’s order, Salim took his case to the Seventh Circuit, which explained that, to prevail on an MTR, a petitioner must point to new evidence that “is material and was not available and could not have been discovered or presented at the former hearing,” citing to 8 CFR § 1003.2(c)(1). It further elaborated that the BIA has broad discretion in this area, so the court will uphold the Board’s decision unless it was “made without a rational explanation, inexplicably departed from established polices, or rested on an impermissible basis, such as invidious discrimination against a particular race or group,” quoting from Awad v. Ashcroft, 328 F.3d 336, 341 (7th Cir. 2003). The court agreed with the Board that Salim did not present “new evidence” that would justify reopening his case. It noted that the three articles which postdated his February 23, 2010, merit hearing in the immigration court did not demonstrate any change in the situation in Indonesia respecting that country’s government’s willingness or ability to protect Salim against the harm that he feared from private citizens there.

In regard to Salim’s reliance on the “new” decision by the Ninth Circuit in Tampubolon, the Seventh Circuit first pointed out that a change in caselaw is not considered new evidence for purposes of an MTR. It also observed that this disfavored group analysis used in asylum and withholding of removal cases in the Ninth Circuit is not a new development as this approach dates back to at least 1994. It referred to Kotasz v. I.N.S., 31 F.3d 847 (9th Cir. 1994), as well as Sael v. Ashcroft, 386 F.3d 922 (9th Cir. 2004) (finding Indonesia’s ethnic Chinese minority a disfavored group). Moreover, the Seventh Circuit emphasized that it has previously rejected the disfavored group analytical construct used in the Ninth Circuit, citing as an example Kaharudin v. Gonzales, 500 F.3d 619 (7th Cir. 2007). It suggested that, in reality, the disfavored group approach in the Ninth Circuit may yield similar or even identical results as the traditional “singling out approach” when there is a lack of evidence of a pattern and practice of group persecution. That said, the Seventh Circuit clarified that, to the extent that the Ninth Circuit uses a lower standard for individualized fear absent a pattern or practice of persecution, the Seventh Circuit was joining other circuits that have rejected *1875 the disfavored group approach, citing to Kho v. Keisler, 505 F.3d 50 (1st Cir. 2007), and Wijaya v. Gonzales, 227 Fed. Appx. 35 (2d Cir. 2007). In closing, the court emphasized that, as Salim presented no new evidence to show his individualized risk of persecution, the disfavored group approach would not have helped him in any event.

_________________________________
YOHAN BYLLY SALIM, Petitioner, v. ERIC H. HOLDER, JR., Attorney General of the United States, Respondent. No. 12-3858

United States Court of Appeals, Seventh Circuit. Argued May 28, 2013. Decided August 28, 2013.

Before EASTERBROOK, Chief Judge, and WILLIAMS and HAMILTON, Circuit Judges.

WILLIAMS, Circuit Judge.

Petitioner Yohan Bylly Salim, an Indonesian citizen, fled his homeland in 2000 and came to the United States. He sought asylum, withholding of removal, and relief under the Convention Against Torture on the ground that he endured several instances of harassment and discrimination as an ethnic Chinese Christian living in Indonesia. The Immigration Judge (IJ) denied all forms of requested relief because Salim had failed to show past or future persecution. Salim filed a motion to reopen the proceedings and the IJ denied it. Salim appealed the IJ’s denial of his motion to reopen, but the Board of Immigration Appeals (BIA) dismissed the appeal because Salim offered no new, previously unavailable evidence and he relied on case law from outside this circuit. Salim now seeks review of the BIA’s order denying his motion to reopen. Because Salim’s motion to reopen did not point to any evidence that was previously undiscoverable, we conclude that the BIA’s decision did not constitute an abuse of discretion. Therefore, we deny the petition for review.

I. BACKGROUND

Salim is an Indonesian citizen of Chinese ethnicity and Christian faith. While living in Indonesia as a teenager, Salim attended private Christian schools but says he endured ongoing harassment from Muslim students at some of the nearby public schools because of his Chinese ethnicity. He was robbed by students from nearby schools for his lunch money several times, and once a student with a knife threatened him and punctured his neck. Salim also claims it was difficult for Chinese individuals and Christians to travel safely around Jakarta during the period of intense rioting in 1998. He recounts that a number of Chinese businesses were burned down during that time, though his family’s business was not harmed.

Salim left Indonesia as a young adult in 2000 and filed a timely application for asylum, withholding of removal, and protection under the Convention Against Torture. His application was denied. He then appeared before an IJ, conceded his removability, and renewed his application for asylum. At a January 2004 hearing before the IJ, Salim testified that he suffered harassment in Indonesia based on his ethnicity and religion. The IJ found that his testimony was not credible and denied the application. Salim appealed to the BIA.

The BIA found that the IJ’s decision was not adequately supported and remanded the case so that Salim could submit additional evidence of conditions in Indonesia. Salim appeared for a final hearing before a different IJ in February 2010. Salim’s attorney did not present any new evidence of conditions in Indonesia, but the government presented the United States Department of State’s 2008 Country Report on Human Rights Practices in Indonesia. After considering all of the evidence, the IJ found Salim’s testimony truthful, but nevertheless concluded that the facts of Salim’s case did not rise to the level of past persecution. In the IJ’s view, the times Salim was threatened and robbed by other students on his way to and from school appeared to be random acts of violence. The IJ also concluded that Salim had failed to establish a well-founded fear of future persecution. Salim did not present any evidence suggesting that he would be singled out individually for persecution if returned to Indonesia, and even though general discrimination against ethnic and religious minorities in Indonesia still exists, the IJ noted that instances of harassment against Chinese people were on the decline.

Salim did not appeal the IJ’s decision, but filed a motion to reopen his proceedings. In support of his motion, he filed over twenty articles about religious tension in Indonesia and argued that he should qualify for asylum under Ninth Circuit case law because he is a member of two “disfavored groups” in Indonesia: ethnic Chinese people and Christians. The IJ denied the motion, concluding that Salim’s motion was “nothing more than a late attempt to submit additional background information on conditions in Indonesia and a legal argument that has been rejected by the Seventh Circuit Court of Appeals.” Salim then appealed the denial of his motion to reopen to the BIA. The BIA dismissed the appeal, concluding that Salim failed to present any new evidence that was previously unavailable or undiscoverable at his former hearing. This petition for review followed.

II. ANALYSIS

Salim contends on appeal that the BIA’s denial of his motion to reopen the proceedings constituted an abuse of discretion. To prevail on a motion to reopen, a petitioner must point to new evidence that “is material and was not available and could not have been discovered or presented at the former hearing.” 8 C.F.R. § 1003.2(c)(1); see Selimi v. Ashcroft, 360 F.3d 736, 739 (7th Cir. 2004). The BIA has broad discretion in deciding whether to grant a motion to reopen, and we will uphold the BIA’s decision unless it was “made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as invidious discrimination against a particular race or group.” Awad v. Ashcroft, 328 F.3d 336, 341 (7th Cir. 2003).

A. No New Evidence Presented

To support his motion to reopen, Salim submitted numerous news articles in an attempt to show the extent of discrimination against Chinese Christians in Indonesia. But the problem for Salim is that he cannot show that any of this evidence was previously unavailable. As the BIA pointed out, all but three of the many articles he submitted with his motion were dated before February 23, 2010 (the date of the final hearing before the IJ). See Kucana v. Holder, 603 F.3d 394, 396-97 (7th Cir. 2010) (explaining that “[o]nly evidence that could not have been presented earlier supports a motion to reopen … and then only to show that risk has increased because of changes in country conditions”). And while three articles that post-dated his hearing show continuing interreligious tensions in Indonesia, they do not demonstrate new or changed circumstances suggesting that the government of Indonesia is now unwilling or unable to protect Salim against the type of harassment of which he complains. See Ingmantoro v. Mukasey, 550 F.3d 646, 650 (7th Cir. 2008) (“[T]he acts of private citizens do not constitute persecution unless the government is complicit in those acts or is unable or unwilling to take steps to prevent them.”) (citation omitted).

Salim further argues that the BIA failed to consider a Ninth Circuit case, Tampubolon v. Holder, 610 F.3d 1056 (9th Cir. 2010), as “new and material case law” in evaluating his motion. The petitioners in that case, Protestant Christians, maintained that they should qualify for withholding of removal because they had a well-founded fear of future persecution if returned to Indonesia. They argued that Christians are a “disfavored group” in Indonesia, subject to severe discrimination and violence, and that their membership in that group made it more likely than not that they would be singled out individually for persecution on account of their religion. See 8 C.F.R. § 1208.16(b)(2). The Ninth Circuit agreed. The court explained that “[e]vidence of both individual and group targeting are relevant to demonstrate the likelihood that a particular individual will be persecuted. Therefore, the more evidence of group targeting an … applicant proffers, the less … individually specific evidence she needs.” 610 F.3d at 1062 (citing Wakkary v. Holder, 558 F.3d 1049, 1062-64 (9th Cir. 2009)). According to Salim, Tampubolon constituted “new evidence” since it was issued after his February 2010 hearing before the IJ and it was the first case to explicitly hold that Christians in Indonesia are a disfavored group. Unfortunately for Salim, Tampubolon does not help him for several reasons.

As an initial matter, a change in case law is not considered new “evidence” for purposes of a motion to reopen. Mungongo v. Gonzales, 479 F.3d 531, 534 (7th Cir. 2007). It is a motion for reconsideration, as opposed to a motion to reopen, that asks the agency to consider a change in the law. See Victor v. Holder, 616 F.3d 705, 709 (7th Cir. 2010) (explaining that a motion to reconsider “asks the BIA to revisit its decision in light of additional legal arguments, a change of law, or an argument that was overlooked earlier,” whereas “a motion to reopen does not take issue with the BIA’s decision at the time it was entered, but instead asks the BIA to reexamine its opinion in light of evidence that was unavailable at the time of the original opinion”).

But more importantly, the “disfavored group” analysis used in asylum and withholding of removal cases in the Ninth Circuit is also not “new” or a change in the law. This approach dates back to at least 1994 in the asylum context. See Kotasz v. INS, 31 F.3d 847, 853 (9th Cir. 1994); see also Sael v. Ashcroft, 386 F.3d 922, 927 (9th Cir. 2004) (finding Indonesia’s ethnic Chinese minority a disfavored group). And the Ninth Circuit’s decision in Wakkary v. Holder (which recognized that Chinese Christians—like Salim—are disfavored in Indonesia), held that this mode of analysis is applicable in the withholding of removal context as well. 558 F.3d at 1063-64. In other words, it is not as if the IJ and BIA did not have the benefit of a fully developed body of Ninth Circuit case law on this issue when evaluating Salim’s claims. The fact that the Ninth Circuit had not yet definitively said that Christians (who are not Chinese) are also considered a disfavored group until June 2010 in Tampubolon is beside the point—the approach being used to evaluate these claims existed well before Salim’s February 2010 hearing, and Salim could have invoked it.

B. Disfavored Group Approach Does Not Apply

Both the IJ and BIA found Tampubolon unhelpful to Salim’s case not only because it was not evidence and did not offer anything new, but also because the disfavored group analysis used in the Ninth Circuit has been expressly rejected by our circuit. Indeed, several of our cases have rejected this approach on the grounds that it is a “less stringent” test. See Ingmantoro, 550 F.3d at 652 n.7 (citing cases); Kaharudin v. Gonzales, 500 F.3d 619, 625 (7th Cir. 2007) (noting that while “[t]he Ninth Circuit has deemed ethnic Chinese a disfavored group in Indonesia, … [w]e previously have considered and rejected the application of the Ninth Circuit’s `disfavored group’ analysis in the context of withholding removal, and we decline to revisit the issue in this case.”); Firmansjah v. Gonzales, 424 F.3d 598, 607 n.6 (7th Cir. 2005) (“This circuit has not recognized a lower threshold of proof based on membership in a `disfavored group.'”). In light of the controlling precedent in this circuit, the BIA did not abuse its discretion in declining to apply Tampubolon.

Salim nevertheless invites us to use his case as an opportunity to reverse course and hold that the disfavored group analysis does not create a new test or lower a petitioner’s burden of proof, but rather simply uses an evidentiary standard that falls within the established framework of proving a well-founded fear of future persecution in both asylum and withholding of removal cases. Given that Salim never appealed the IJ’s February 2010 decision on the merits, we decline the invitation.

But the central question of whether the Ninth Circuit’s disfavored group approach actually differs from our circuit’s analysis of these cases in a meaningful way remains. In both the asylum and withholding of removal context, an applicant may be eligible for relief if he can demonstrate a wellfounded fear of future persecution. 8 C.F.R. § 208.13(b)(2) (using “reasonable possibility” standard in asylum context); 8 C.F.R. § 208.16(b)(2) (using “more likely than not” standard in withholding of removal context). A probability of future persecution may be established by either one of two methods. Under one method, the applicant must show that “there is a pattern or practice” of persecution against a group of persons “similarly situated” to the applicant on account of a protected ground, and that “his or her own inclusion in and identification with such group of persons” makes it “reasonable” or “more likely than not” that his or her life or freedom would be threatened upon return to that country. 8 C.F.R. §§ 208.13(b)(2)(iii), 208.16(b)(2)(i)-(ii). We have said before that in order to use the “pattern or practice” method, “the persecution of a protected group must be a systematic, pervasive, or organized effort to kill, imprison, or severely injure members of the protected group, and this effort must be perpetuated or tolerated by state actors.” Ingmantoro, 550 F.3d at 651 (citation and internal quotation marks omitted); see also Banks v. Gonzales, 453 F.3d 449, 452-53 (7th Cir. 2006) (recognizing that member of persecuted ethnic and political party had reasonable fear of future persecution in light of pattern or practice of persecution). Salim does not raise such a claim here.

The second, alternative method of finding future persecution calls for an individualized assessment of the risk of harm. Under this method, an applicant must show that there is a reasonable possibility (in the asylum context) or that it is more likely than not (in the withholding of removal context) that he will be “singled out individually” for persecution if forced to return home. 8 C.F.R. §§ 208.13(b)(2), 208.16(b)(2); see also Munoz-Avila v. Holder, 716 F.3d 976, 982-83 (7th Cir. 2013) (reiterating that “the level of overall danger in a country is not a sufficient basis to find persecution, and that a petitioner must demonstrate that he or she is likely to be singled out”). This is where the Ninth Circuit’s disfavored group analysis comes into play. That court has defined a disfavored group as a “group of individuals in a certain country or part of a country, all of whom share a common, protected characteristic, many of whom are mistreated, and a substantial number of whom are persecuted, but who are not threatened by a pattern or practice of systematic persecution.” Tampubolon, 610 F.3d at 1060 (citing Wakkary, 558 F.3d at 1052, 1062) (emphasis added). The idea is that belonging to a disfavored group is relevant to demonstrating an individualized risk of persecution because “one’s chances of being singled out from the general population and subjected to persecution is often strongly correlated with the frequency with which others who share the same disfavored characteristic are mistreated and persecuted.” Wakkary, 558 F.3d at 1063; see also id. at 1064 (“In other words, when asking how likely it is that an individual applicant will be `singled out’ in the future on the basis of his group membership, it is indisputably relevant … how others in his group are treated.”).

In theory, one could view the Ninth Circuit’s approach on this score as a simple recognition that group membership matters, as it is “an aspect of nearly all asylum claims, not a special problem limited to pattern or practice cases.” See Kotasz v. INS, 31 F.3d 847, 853 (9th Cir. 1994). And the INS regulations clearly “contemplate the effect of group membership on an individual’s circumstances by enumerating the five statutory categories of withholding eligibility.” Kho v. Keisler, 505 F.3d 50, 55 (1st Cir. 2007). But this approach has led to significant disagreement among the circuits because it invites one to question what exactly it seeks to add to the existing regulatory regime that is not already covered under the “pattern or practice” theory of persecution. In practice, the Ninth Circuit appears to be using a sliding-scale approach to find “the more serious and widespread the threat to the [disfavored] group in general, the less individualized the threat of persecution needs to be.” Sael, 386 F.3d at 925. In Sael, the record showed significant discrimination against Chinese minorities in Indonesia, but this mistreatment did not rise to the level of a “pattern or practice” of persecution. Id. at 929. However, the petitioner did successfully demonstrate “the general persecution of ethnic Chinese, sufficient to characterize their status as `disfavored’ in Indonesia,” id., and so she only had to establish a “comparatively low level of individualized risk in order to prove that she has a wellfounded fear of future persecution.” Id. at 927; see also Wakkary, 558 F.3d at 1064. Essentially, this approach serves as a safety net for those who fall short of establishing a pattern of practice of persecution, but have shown membership in a historically mistreated group. See Kho, 505 F.3d at 55 (“A group may be deemed `disfavored’ on the basis of evidence of mistreatment that is less pervasive and less severe than that required to establish a pattern or practice of persecution.”).

Though we often discuss a petitioner’s membership in a particular group in the context of assessing an individualized threat of future persecution, see Escobar v. Holder, 657 F.3d 537, 549 (7th Cir. 2011), we have never held that a petitioner may put forth less evidence of individualized persecution simply by virtue of belonging to a disfavored group. See, e.g., Zhou Ji Ni v. Holder, 635 F.3d 1014, 1020 (7th Cir. 2011) (denying petition for review where evidence of country conditions regarding Chinese repression of Christianity were “untethered from facts establishing an individualized risk of persecution”). Instead, we have always required a petitioner to show “specific, detailed facts supporting the reasonableness of [his] fear that [he] will be singled out for persecution.” Bhatt v. Reno, 172 F.3d 978, 982 (7th Cir. 1999) (citing cases). In reality, the disfavored group approach in the Ninth Circuit may yield similar or even identical results. See, e.g., Halim v. Holder, 590 F.3d 971, 978-79 (9th Cir. 2009) (denying petition for review where petitioner failed to make the “minimal showing” of individual targeting). But to the extent that the Ninth Circuit uses “a lower standard for individualized fear absent a `pattern or practice’ of persecution,” Lie v. Ashcroft, 396 F.3d 530, 538 n.4 (5th Cir. 2005), we must join other circuits that have rejected the disfavored group approach. See id.; Kho, 505 F.3d at 55; Wijaya v. Gonzales, 227 Fed. Appx. 35, 38 n.1 (2d Cir. 2007) (summary order). Here too, Salim presented no new evidence on reopening to show his individualized risk of future persecution, and, therefore, the disfavored group approach would not have helped him in any event.

III. CONCLUSION

The petition for review is DENIED.

Posted in 7th Circuit, 7th Circuit Cases- Aliens, Motions to Reopen, past persecution, “new evidence” for purposes of an MTR | Leave a comment

CA7 Remands Denied Asylum Claim for Political Activist from Belarus

Posted on September 10, 2013 by Mike Baker

Boika, a Belarusian citizen, entered the U.S. legally in 2006, but overstayed. At her removal proceedings, she applied for asylum under 8 U.S.C. 1158, withholding of removal under 8 U.S.C. 1231(b)(3), and relief pursuant to the Convention Against Torture. Her husband, Zhits, made parallel claims, derivative from Boika’s claims based on their marital status, 8 U.S.C. 1158(b)(3)(A). Boika claimed that she could establish a well‐founded fear of future persecution upon return to Belarus, based on past persecution for her political involvement in Belarus, between2004 and 2006. An immigration judge denied her asylum application based on an adverse credibility finding. The Board of Immigration Appeals affirmed. The Seventh Circuit denied review. Boika moved to reopen based on materially changed country conditions, 8 U.S.C. 1229a(c)(7)(C)(ii), claiming that after Belarusian President Lukashenko’s election in 2010,the Belarusian government’s severe crackdown on political opposition resulted in widespread human rights abuses. She submitted new corroborating evidence about her activity in the Belarusian opposition movement while she has been in the U.S. The Board denied Boika’s motion. The court remanded, finding the BIA abused its discretion when it did not consider the factually distinct claims of future persecution in Belarus and rejected these claims based solely on the past adverse credibility finding.

Boika v. Holder11-3655-2013-08-16

TATSIANA BOIKA and SERGEY ZHITS, Petitioners,
v.
ERIC H. HOLDER, JR., Attorney General of the United States, Respondent.


No. 11-3655.

United States Court of Appeals, Seventh Circuit.

Argued September 27, 2012.

Decided August 16, 2013.

Before RIPPLE, WILLIAMS, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge.

Tatsiana Boika, a Belarusian citizen, entered the United States legally in May 2006 but overstayed her authorized stay. At her removal proceedings, she conceded removability but applied for asylum under 8 U.S.C. § 1158, withholding of removal under 8 U.S.C. § 1231(b)(3), and relief pursuant to the Convention Against Torture. Boika’s husband, Sergey Zhits, also made parallel claims. His claims are derivative from Boika’s claims based on their marital status under 8 U.S.C. § 1158(b)(3)(A), so we do not address his claims separately.

Based on past persecution for her political involvement in Belarus, principally between 2004 and 2006, Boika claimed that she could establish a well-founded fear of future persecution upon return to Belarus. An immigration judge (IJ) denied her asylum application due in large part to an adverse credibility finding after two hearings in which Boika could not satisfactorily explain inconsistencies in her testimony and corroborating documents. The Board of Immigration Appeals affirmed the IJ’s denial of asylum, and we denied Boika’s subsequent petition for review. Boika v. Holder, 418 Fed. App’x. 559 (7th Cir. 2011).

Boika then moved to reopen based on materially changed country conditions. See 8 U.S.C. § 1229a(c)(7)(C)(ii). Boika asserted that after Belarusian President Alexander Lukashenko’s election in 2010, the Belarusian government’s severe crackdown on political opposition had resulted in widespread human rights abuses. These abuses were serious enough that the United States and the European Union imposed new sanctions on the Belarusian government in February 2011. Boika also submitted new corroborating evidence that she has been active in the Belarusian opposition movement while she has been in the United States.

The Board denied Boika’s motion to reopen, explaining only that the evidence she offered did not reflect a material change in conditions in Belarus and was not sufficient to show a prima facie claim for eligibility for asylum. We grant Boika’s and her husband’s petition for review and remand to the Board for further proceedings consistent with this opinion. The terse Board opinion did not provide an adequate explanation for rejecting Boika’s new evidence and denying her motion to reopen. The prior credibility finding against Boika regarding her pre-2007 political opposition inside Belarus does not necessarily taint her new evidence concerning both her new political activity in the United States or the new, severe crackdown on the government’s political opponents in Belarus. That evidence needs a fresh look.

I. Motions to Reopen

Motions to reopen removal proceedings must be filed within 90 days of the final order, subject to several exceptions. 8 U.S.C. § 1229a(c)(7)(C)(i). Boika filed her motion to reopen long after the 90-day deadline expired. To excuse her delay, she relied on an exception based on changed country conditions that materially affect her eligibility for relief. 8 U.S.C. § 1229a(c)(7)(C)(ii); Xiao Jun Liang v. Holder, 626 F.3d 983, 987-88 (7th Cir. 2010). Any motion to reopen, regardless of timing, can be denied properly if: (1) it is not supported by previously unavailable and material evidence; (2) it fails to establish the applicant’s prima facie eligibility for the underlying relief sought; or (3) the Board determines discretionary relief is not appropriate in the petitioner’s case. Mansour v. INS, 230 F.3d 902, 907 (7th Cir. 2000). We review the Board’s denial of a motion to reopen for an abuse of discretion. Xiao Jun Liang, 626 F.3d at 988. We will find an abuse of discretion and remand the denial of a motion to reopen if, among other things, the decision “was made without a rational explanation.” Mansour, 230 F.3d at 907 (internal quotations omitted).

“In determining whether evidence accompanying a motion to reopen demonstrates a material change in country conditions that would justify reopening, we compare the evidence of country conditions submitted with the motion to those that existed at the time of the merits hearing below.” In re S-Y-G, 24 I. & N. Dec. 247, 253 (BIA 2007). To constitute a change in country conditions, the conditions must have done more than simply worsen cumulatively. Id. That does not mean that the conditions before and after the motion to reopen will not be related or connected. Evaluating gradations of human misery can be a daunting task. Where significant human rights abuses previously existed, perhaps all changes could be understood as a cumulative worsening, but differences in degree matter. Some situations present conditions so grave that a new threshold has been met. Boika’s new evidence, corroborated in substantial part by our own government’s decision to impose new sanctions on Belarus in response to the new campaign to suppress political opposition after the 2010 elections, seems to meet this standard and deserves more attention than it has received thus far in this case.

Boika’s motion to reopen included over one hundred pages showing that the treatment of the political opposition in Belarus had changed dramatically since the election of President Lukashenko in 2010, after her 2007 application for asylum had been denied. Credible international sources reported that the election was not fair and that the results were not reliable. OSCE Observers Told to Leave Belarus Over Election Fraud Claims, Associated Press, The Guardian, Dec. 31, 2010, available at http://www.guardian.co.uk/world/2010/dec/31/osce-leave-be larus-election-fraud-claims; Michael Schwirtz, Belarus Police Arrest Opposition Leaders, N.Y. Times, Dec. 20, 2010, available at www.nytimes.com/2010/12/21/world/europe/21belarus.html?_r=0 (reporting that Western election observers on ground “highlighted apparent fraud”). In a December 20, 2010 statement, the White House said that the “United States cannot accept as legitimate the results of the presidential election announced by the Belarusian Central Election Commission.” Orest Deychakiwsky et al., Belarusian Regime Resolutely Dashes Any Hopes for Democratic Liberalization, Commission on Security & Cooperation in Europe, U.S. Helsinki Commission, Jan. 6, 2011, available at http://www.csce.gov/index.cfm? FuseAction=ContentRecords.ViewDetail&ContentRecord_id =482&Region_id=0&Issue_id=0&ContentType=G&ContentR ecordType=G&CFID=27057194&CFTOKEN=31349947 [hereinafter Helsinki Commission]. The White House also stated that the violence on election day represented “a clear step backwards on issues central to our relationship with Belarus.” Michael Schwirtz, Belarus Police Arrest Opposition Leaders, N.Y. Times, Dec. 20, 2010, available at www.nytimes.com/2010/12/21/world/europe/21belarus.html?_r=0.[1]

After the election, 40,000 opposition supporters rallied and called for President Lukashenko’s resignation. The Helsinki Commission later explained that “the brutal and bloody election-night crackdown against political opposition supporters, including mass arrests of demonstrators, as well as candidates, who challenged the 16-year rule of Alexander Lukashenk[o], was unprecedented.” Helsinki Commission (emphasis added).

The violent crackdown on the political opposition after the 2010 presidential elections is the materially changed country condition that Boika relies upon to justify her motion to reopen. Human Rights Watch conducted an extensive investigation in February 2011 and concluded, in part, that the human rights abuses that occurred during and after the 2010 elections, “including abuse of detainees, trials behind closed doors and raids on human rights organizations,” constituted a “serious deterioration in the already poor state of human rights in Belarus.” Human Rights Watch, Shattering Hopes: Post-Election Crackdown in Belarus, at 1, March 2011, available at www.hrw.org/sites/default/files/reports/belarus0311Web.pdf.

The violence and oppression were not limited to election night. The Belarusian government continued rounding up and arresting opposition members at least six weeks after the elections. Michael Schwirtz, U.S. and Europe Move Against Belarus’s Leader, N.Y. Times, Jan. 31, 2011, available at http://www.nytimes.com/2011/02/01/world/europe/01belaru s.html. Reports of this oppressive, anti-democratic behavior targeting opposition groups continued through June 2011, when Boika filed her motion to reopen. See Radio Free Europe, Belarusian Police Disperse Opposition Flash Mob, June 15, 2011, available at http://www.rferl.org/articleprintview/24236371.html; Aliaksandr Kudrytski & Emma O’Brien, Police, Protesters Meet in Minsk Amid Warnings, Bloomberg, June 16, 2011, available at http://democraticbelarus.eu/news/police-protesters-meet-minsk-amid-warnings. The Belarusian government also shut down the internet and social networking sites, leaving independent media “on the verge of being wiped out,” as reported by the Belarusian deputy chair of the non-governmental Association of Journalists. Fred Weir, Belarus Crackdown Strains Ties with both EU and Russia, The Christian Science Monitor, Jan. 12, 2011, available at http://www.csmonitor.com/World/Europe/2011/0112/Belarus-crackdown-strains-ties-with-both-EU-and-Russia.

The clearest indication that conditions materially worsened in Belarus after the 2010 election came in the form of the United States and European Union reactions to the events. In February 2011, the United States and the European Union imposed sanctions on President Lukashenko and other Belarusian politicians, prohibiting them from entering the United States or the European Union and freezing all assets belonging to them in the United States and the European Union. Both the European Union and the United States had previously imposed some sanctions in 2006, but the European Union had lifted them. After the 2010 election, however, the European Union imposed sanctions on Belarus, while the United States greatly tightened the earlier sanctions. Michael Schwirtz, U.S. and Europe Move Against Belarus’s Leader, N.Y. Times, Jan. 31, 2011, availableat http://www.nytimes.com/2011/02/01/world/europe/01belaru s.html. The “new sanctions are more far-reaching than any imposed earlier, taking aim at many more officials.” Id. The New York Times reported that the United States took this unprecedented action because President Lukashenko “began a campaign of repression that even seasoned opposition figures say has exceeded anything in the president’s 16-year rule.” Id.

II. Judicial Review of the Board’s Decision

A. Changed Country Conditions

The Board denied Boika’s motion to reopen as untimely, finding that she did not qualify for the exception for materially changed country conditions. The Board’s terse explanation said only that “the evidence proffered with the respondents’ present motion does not reflect changed country conditions in Belarus that materially affect their eligibility for asylum, withholding of removal, and protection under the Convention Against Torture.” That is the only sentence in the Board’s dismissal that explains why the new evidence, including the United States and European Union sanctions after the 2010 elections and crackdown, did not suffice as changed country conditions that materially affected Boika’s asylum claim.

“We have frequently remanded cases when the BIA’s or the IJ’s failure to discuss potentially meritorious arguments or evidence calls into question whether it adequately considered these arguments.” Kebe v. Gonzalez, 473 F.3d 855, 857 (7th Cir. 2007) (“Although the BIA might have offered reasons for rejecting the evidence of changed conditions, or for denying relief despite changed conditions, the absence of any articulated reasons in the BIA’s decision constitutes an abuse of discretion and requires a remand.”); see also Moosa v. Holder, 644 F.3d 380, 386 (7th Cir. 2011) (“[W]e have consistently found an abuse of discretion where the Board ignores or misapplies an applicant’s evidence.”).

We have previously found that even more detailed Board decisions provided so little explanation that we could not properly exercise judicial review. In Mekhael v. Mukasey, 509 F.3d 326, 327 (7th Cir. 2007), for example, the Board denied the petitioner’s motion to reopen the denial of his asylum application because the evidence presented merely “detail[ed] ongoing problems in Lebanon, and therefore, was discoverable and available” before the original asylum application and furthermore that “to the extent that any specific incidents alleged by the [petitioner] occurred after that time, they are merely cumulative, and as such, not persuasive.” We found that the Board’s explanation in that decision was insufficient to allow us to exercise our review appropriately. In reversing the Board, we said that “we have repeatedly reversed the Board when it has failed to give reasoned consideration to posthearing evidence.” Id. (collecting cases).

The same reasoning applies here to the Board’s even more opaque conclusion denying Boika’s motion to reopen. The Board did not appropriately explain why it rejected her evidence of changed country conditions. As in Mekhael, “[w]e take no position on the merits of the motion to reopen. The only ground of our decision is the Board’s failure to articulate a reasoned response to the motion. We understand the Board’s staggering workload. But the Department of Justice cannot be permitted to defeat judicial review by refusing to staff the Immigration Court and the Board of Immigration Appeals with enough judicial officers to provide reasoned decisions.” Id. at 328.

B. Prima Facie Claim for Asylum

If Boika could not show a prima facie case for eligibility, then the Board’s failure to provide a sufficient explanation of the denial would be harmless because reopening the case would be futile. Boika’s motion to reopen asserted that she could show a prima facie claim of asylum based in part on her membership in a political group suffering persecution in Belarus. See 8 C.F.R. § 1208.13(b)(2)(iii) (applicant can show well-founded fear of persecution by showing membership in group subject to pattern or practice of persecution).

An asylum application based on a well-founded fear of future persecution must demonstrate that the petitioner faces a “reasonable possibility of suffering such persecution if he or she were to return to that country,” 8 C.F.R. § 1208.13 (b)(2)(i)(B), and the petitioner is “unable or unwilling to return to, or avail himself or herself of the protection of, that country because of such fear.” 8 C.F.R. § 1208.13(b)(2)(i)(C). A person has a well-founded fear of persecution if a reasonable person in the same position would fear persecution. Jukic v. INS, 40 F.3d 747, 749 (5th Cir. 1994). To show a prima facie case for eligibility for asylum, a petitioner must present “sufficient evidence to demonstrate a reasonable likelihood of success on the merits so as to make it worthwhile to develop the issues further at a full evidentiary hearing.” In re A-N & R-M-N, 22 I. & N. Dec. 953, 956 (BIA 1999).

To demonstrate her current membership in the political opposition group being persecuted in Belarus, Boika presented her own testimony and an affidavit signed by the president of the Belarusian-American Association Inc., which advocates democratic rule in Belarus. The affidavit testified to Boika’s frequent involvement and participation with the group since she has arrived in the United States. The organization holds rallies, protests, and other mass actions in opposition to President Lukashenko’s regime. Boika testified to her regular involvement and presented pictures of her active participation in the group protests and other events in New York. While the government questions the authenticity of these documents in its brief and at oral argument, the Board did not opine on the issue and therefore we do not either. Those are matters for a hearing on remand.

On the basis of this evidence as well as the new crackdown in Belarus itself, Boika argued that she had a reasonable fear of future persecution. She would be vulnerable to pattern and practice discrimination because she could, based on this new evidence, show her “inclusion in, and identification with, such group of persons such that [her] fear of persecution upon return is reasonable.” See 8 C.F.R. § 1208.13(b)(2)(iii).

Regarding Boika’s ability to establish a prima facie case for asylum eligibility in her motion to reopen, the Board’s decision said a bit more but not enough to allow us to affirm it. The Board said that, “the submitted country information describing political conditions generally and episodes of human rights violations and violence against perceived political opponents in Belarus alone is insufficient to establish the respondents’ prima facie eligibility for relief from removal.” The Board then explained that the evidence of changed country conditions did not show that the Belarusian government is personally interested in Boika, so that she cannot establish a prima facie case.

This statement was not complete or correct. Boika does not have to show that she has been or will be personally targeted upon removal. Under section 1208.13(b)(2)(iii), she can also show a well-founded fear of persecution upon return to Belarus by showing that she belongs to a group that is currently being persecuted. Boika offered evidence that she belonged to the opposition movement that has suffered severe human rights abuses since the 2010 election. The Board’s opinion was silent on this point. Again, “we have consistently found an abuse of discretion where the Board ignores or misapplies an applicant’s evidence.” Moosa, 644 F.3d at 386. Here the Board’s failure to acknowledge or comment on Boika’s current involvement in the opposition movement in the United States was an abuse of discretion.

C. The Prior Adverse Credibility Finding

The government also argues that the Board’s lack of explanation was harmless because Boika’s evidence of her political activity while in the United States cannot be credited. The theory is that the IJ’s adverse credibility finding in rejecting her first application for asylum means that her evidence about her more recent and current political activity in the United States should not be believed. Boika’s original application for asylum focused on the political oppression occurring before 2007. Her application detailed three incidents in which she claimed she was arrested and beaten badly enough to require medical attention, all because of her political participation in the opposition movement in Belarus. The application was denied, and the denial was affirmed by the Board despite the IJ’s finding that “political persecution is a harsh reality in the present day Belarus,” because the IJ made an adverse credibility determination regarding Boika’s claimed political participation and resulting targeting, harassment, and abuse. In light of the deferential review we give to cogent credibility findings, e.g., Hassan v. Holder, 571 F.3d 631, 636-37 (7th Cir. 2009), we affirmed that denial.

We do not revisit the IJ’s adverse credibility finding from that earlier proceeding. For present purposes, though, the critical point is that such adverse credibility findings do not necessarily discredit Boika’s new evidence in her motion to reopen regarding and her claims of current political participation in the United States, for which she provided corroborating evidence. See Gebreeyesus v. Gonzalez, 482 F.3d 952, 955 (7th Cir. 2007). To the extent that this is what the Board meant when it said that Boika’s previously discredited claims are “somewhat entwined in the respondents’ present filing,” that too would be an abuse of discretion, at least without further consideration of the new evidence.

We are not suggesting that the Board was required to forget the prior credibility finding, but the Board needed to engage with the new evidence. Moreover, the difficulties that aliens seeking asylum often face in obtaining corroborating evidence can sometimes mean that an earlier adverse finding may have been reasonable on the available record but wrong in an objective sense. Thus it would have been an abuse of discretion for the Board to rely only on the prior adverse credibility finding to discredit Boika’s new evidence without a proper evidentiary hearing.

The government argues, however, that adverse credibility findings are cordoned off from future credibility determinations only when “the factual predicate of [the] claim of future persecution is independent of the testimony that the [Immigration Judge] found not to be credible.” Gov. Br. at 27, quoting Paul v. Gonzales, 444 F.3d 148, 154 (2d Cir. 2006). This argument is not persuasive.

The factual predicates are distinct here: Boika first claimed asylum based on her pre-2007 political activity in Belarus, which the IJ discredited. She now claims asylum based on her political activity in the United States—a claim that has not been and could not be discredited without an evidentiary hearing— as well as the crackdown in Belarus after the 2010 election. “Given these distinct facts, the prior adverse finding need not undermine [Boika’s] theory of future persecution.” Gebreeyesus . In Gebreeyesus, we granted review of denial of an alien’s motion to reopen an asylum petition based on changed country conditions in a remarkably similar case from Ethiopia. We held that the IJ’s earlier credibility finding against the alien did not excuse the Board from engaging with her new evidence concerning changes in country conditions and her political opposition activity in the United States.

Boika may “prevail on a theory of future persecution despite an IJ’s adverse credibility ruling as to past persecution, so long as the factual predicate of [her] claim of future persecution is independent of the testimony that the IJ found not to be credible.” Id. (internal quotations omitted). In Gebreeyesus, we were also troubled by the fact that “[t]he BIA’s reliance on the prior adverse credibility finding is especially unsound because it ignored the facts in Worku’s affidavit supporting her theory of future persecution.” Id. at 955 n.3. The same concerns apply with equal force here.

Finally, the Government argues that the documents corroborating Boika’s current political participation are not credible because they lack proper authentication. This was not the Board’s rationale, however, and for that reason alone we could reject the argument. 332 U.S. 194 (1947). “The government’s other post hoc rationales fall short for similar reasons. . . . The government’s first theory—that the Board’s adverse determination of [Boika’s] credibility during [her political] persecution asylum claim `carries over’ to a later asylum claim based on distinct facts—has been expressly rejected by this court and others.” Ji Cheng Ni v. Holder, 715 F.3d 620, 630 (7th Cir. 2013). Such a conclusion would almost certainly be an abuse of discretion if the petitioner were not afforded an evidentiary hearing first.

The Board therefore should have considered Boika’s factually distinct claims of future persecution and could not properly reject them based solely on the past adverse credibility finding. The Board’s silence on this point, combined with the failure to acknowledge or comment on Boika’s supporting documentation, means the denial of her motion to reopen was an abuse of discretion.

The petition for review is GRANTED and the case is REMANDED to the Board of Immigration Appeals for further proceedings consistent with this opinion.

[1] All websites cited in this opinion were last visited on August 16, 2013.

Posted in 7th Circuit, 7th Circuit Cases- Aliens, CA7 Remands Denied Asylum Claim for Political Activist from Belarus, Convention Against Torture, future persecution, material change in conditions, political asylum | Leave a comment

BIA Precedent Table-1995 to Present

Posted on September 9, 2013 by Mike Baker

Headnotes from BIA precedent cases published in volumes 21,22, 23, 24, 25 and 26 of the Administrative Decisions under the Immigration and Nationality Laws of the United States, organized by topic. As such, it includes all BIA cases published from Matter of Esposito (March 30, 1995) to the present. Revised August 19, 2013

ADJUSTMENT OF STATUS

Arriving Aliens

Matter of Silitonga, 25 I&N Dec. 89 (BIA 2009)

Under 8 C.F.R. §§ 245.2(a)(1) and 1245.2(a)(1)(ii) (2009), Immigration Judges have no jurisdiction to adjudicate an application filed by an arriving alien seeking adjustment of status, with the limited exception of an alien who has been placed in removal proceedings after returning to the United States pursuant to a grant of advance parole to pursue a previously filed application.

Matter of Yauri, 25 I&N Dec. 103 (BIA 2009)

(1) With a narrow exception not applicable to this case, the United States Citizenship and Immigration Services (“USCIS”) has exclusive jurisdiction to adjudicate an arriving alien’s application for adjustment of status under 8 C.F.R. §245.2(a)(1) (2009) and agrees that it retains jurisdiction to adjudicate the application even where an unexecuted administratively final order of removal remains outstanding.

(2) The Board of Immigration Appeals generally lacks authority to reopen the proceedings of aliens under final orders of exclusion, deportation, or removal who seek to pursue relief over which the Board and the Immigration Judges have no jurisdiction, especially where reopening is sought simply as a mechanism to stay the final order while the collateral matter is resolved by the agency or court having jurisdiction to do so.

(3) With regard to untimely or number-barred motions to reopen, the Board will not generally exercise its discretion to reopen proceedings sua sponte for an arriving alien to pursue adjustment of status before the USCIS.

Child Status Protection Act

Matter of Avila-Perez, 24 I&N Dec. 78 (BIA 2007)

(1) Section 201(f)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1151(f)(1) (Supp. II 2002), which allows the beneficiary of an immediate relative visa petition to retain his status as a “child” after he turns 21, applies to an individual whose visa petition was approved before the August 6, 2002, effective date of the Child Status Protection Act, Pub. L. No. 107-208, 116 Stat. 927 (2002), but who filed an application for adjustment of status after that date.

(2) The respondent, whose visa petition was approved before August 6, 2002, and who filed his adjustment of status application after that date, retained his status as a child, and therefore an immediate relative, because he was under the age of 21 when the visa petition was filed on his behalf.

Matter of Wang, 25 I&N Dec. 28 (BIA 2009)

The automatic conversion and priority date retention provisions of the Child Status Protection Act, Pub L. No. 107-208, 116 Stat. 927 (2002), do not apply to an alien who ages out of eligibility for an immigrant visa as the derivative beneficiary of a fourth preference visa petition, and on whose behalf a second-preference petition is later filed by a different petitioner.

Chinese Student Protection Act

Matter of Wang, 23 I&N Dec. 924 (BIA 2006)

(1) An alien who entered the United States without inspection is not eligible for adjustment of status under the Chinese Student Protection Act of 1992, Pub. L. No. 102-404, 106 Stat. 1969 (“CSPA”).

(2) An alien whose CSPA application for adjustment of status was denied as a result of the alien’s entry without inspection may not amend or renew the application in immigration proceedings in conjunction with section 245(i) of the Immigration and Nationality Act, 8 U.S.C. § 1255(i) (2000).

Cuban Refugee Adjustment Act

Matter of Artigas, 23 I&N Dec. 99 (BIA 2001) (superceded by Matter of Martinez-Montalvo, 24 I&N Dec. 778 (BIA 2009))

An Immigration Judge has jurisdiction to adjudicate an application for adjustment of status under the Cuban Refugee Adjustment Act of November 2, 1966, Pub. L. No. 89-732, 80 Stat. 1161, as amended, when the respondent is charged as an arriving alien without a valid visa or entry document in removal proceedings.

Matter of Martinez-Montalvo, 24 I&N Dec. 778 (BIA 2009)

Under 8 C.F.R. §§ 245.2(a)(1) and 1245.2(a)(1)(ii) (2008), Immigration Judges have no jurisdiction to adjudicate an application filed by an arriving alien seeking adjustment of status under the Cuban Refugee Adjustment Act of November 2, 1966, Pub. L. No. 89-732, 80 Stat. 1161, as amended, with the limited exception of an alien who has been placed in removal proceedings after returning to the United States pursuant to a grant of advance parole to pursue a previously filed application.Matter of Artigas, 23 I&N Dec. 99 (BIA 2001), superseded.

Matter of E-R-M- & L-R-M-, 25 I&N Dec. 520 (BIA 2011)

(1) Section 235(b)(1)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1225(b)(1)(A)(i) (2006), does not limit the prosecutorial discretion of the Department of Homeland Security to place arriving aliens in removal proceedings under section 240 of the Act, 8 U.S.C. § 1229a (2006).

(2) The fact that an Immigration Judge has no jurisdiction over applications for adjustment of status under the Cuban Refugee Adjustment Act of November 2, 1966, Pub. L. No. 89-732, 80 Stat. 1161, as amended, does not negate his or her jurisdiction over the removal proceedings of arriving Cuban aliens under section 240 of the Act.

Eligibility

Matter of L-K-, 23 I&N Dec. 677 (BIA 2004)

(1) Under section 245(c)(2) of the Immigration and Nationality Act, 8 U.S.C. §§ 1255(c)(2) (2000), an alien who has failed to continuously maintain a lawful status since entry into the United States, other than through no fault of his own or for technical reasons, is ineligible for adjustment of status under section 245(a) of the Act.

(2) A failure to maintain lawful status is not “for technical reasons” within the meaning of section 245(c)(2) of the Act and the applicable regulations at 8 C.F.R. §§ 1245.1(d)(2)(ii) (2004), where the alien filed an asylum application while in lawful nonimmigrant status, the nonimmigrant status subsequently expired, and the asylum application was referred to the Immigration Court prior to the time the alien applied for adjustment of status.

Matter of Villareal-Zuniga, 23 I&N Dec. 886 (BIA 2006)

An application for adjustment of status cannot be based on an approved visa petition that has already been used by the beneficiary to obtain adjustment of status or admission as an immigrant.

Matter of Jara Riero and Jara Espinol, 24 I&N Dec. 267 (BIA 2007)

An alien seeking to establish eligibility for adjustment of status under section 245(i) of the Immigration and Nationality Act, 8 U.S.C. § 1255(i) (2000), on the basis of a marriage-based visa petition must prove that the marriage was bona fide at its inception in order to show that the visa petition was “meritorious in fact” pursuant to 8 C.F.R. § 1245.10(a)(3) (2007).

Matter of Briones, 24 I&N Dec. 355 (BIA 2007)

(1) Section 212(a)(9)(C)(i)(I) of the Immigration and Nationality Act, 8 U.S.C. §§ 1182(a)(9)(C)(i)(I) (2000), covers recidivist immigration violators, so to be inadmissible under that section, an alien must depart the United States after accruing an aggregate period of ““unlawful presence”” of more than 1 year and thereafter reenter, or attempt to reenter, the United States without being admitted. (2) Adjustment of status under section 245(i) of the Act, 8 U.S.C. §§ 1255(i) (2000), is not available to an alien who is inadmissible under section 212(a)(9)(C)(i)(I) of the Act.

Matter of Diaz and Lopez, 25 I&N Dec. 188 (BIA 2010)

An alien who is inadmissible under section 212(a)(9)(C)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(9)(C)(i) (2006), is ineligible for adjustment of status under section 245(i) of the Act, 8 U.S.C. § 1255(i) (2006). Matter of Briones, 24 I&N Dec. 355 (BIA 2007), reaffirmed.

Matter of Castillo-Padilla, 25 I&N Dec. 257 (BIA 2010)

(1) Conditional parole under section 236(a)(2)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1226(a)(2)(B) (2006), is a distinct and different procedure from parole under section 212(d)(5)(A) of the Act, 8 U.S.C. § 1182(d)(5)(A) (2006).

(2) An alien who was released from custody on conditional parole pursuant to section 236(a)(2)(B) of the Act has not been “paroled into the United States” for purposes of establishing eligibility for adjustment of status under section 245(a) of the Act, 8 U.S.C. § 1255(a) (2006).

Matter of Quilantan, 25 I&N Dec. 285 (BIA 2010)

For purposes of establishing eligibility for adjustment of status under section 245(a) of the Immigration and Nationality Act, 8 U.S.C. § 1255(a) (2006), an alien seeking to show that he or she has been “admitted” to the United States pursuant to section 101(a)(13)(A) of the Act, 8 U.S.C. § 1101(a)(13)(A) (2006), need only prove procedural regularity in his or her entry, which does not require the alien to be questioned by immigration authorities or be admitted in a particular status. Matter of Areguillin, 17 I&N Dec. 308 (BIA 1980), reaffirmed.

Fiancees

Matter of SESAY, 25 I&N Dec. 431 (BIA 2011)

(1) Under section 245(d) of the Immigration and Nationality Act, 8 U.S.C. § 1255(d) (2006), a fiancé(e) visa holder can only adjust status based on the marriage to the fiancé(e) petitioner.Matter of Zampetis, 14 I&N Dec. 125 (Reg. Comm’r 1972), superseded.

(2) A fiancé(e) visa holder whose bona fide marriage to the fiancé(e) visa petitioner is more than 2 years old at the time the adjustment application is adjudicated is not subject to the provisions for conditional resident status under section 216 of the Act, 8 U.S.C. § 1186a (2006).

(3) A fiancé(e) visa holder satisfies the visa eligibility and visa availability requirements of section 245(a) of the Act on the date he or she is admitted to the United States as a K-1 nonimmigrant, provided that the fiancé(e) enters into a bona fide marriage with the fiancé(e) petitioner within 90 days.

(4) A fiancé(e) visa holder may be granted adjustment of status under sections 245(a) and (d) of the Act, even if the marriage to the fiancé(e) visa petitioner does not exist at the time that the adjustment application is adjudicated, if the applicant can demonstrate that he or she entered into a bona fide marriage within the 90-day period to the fiancé(e) visa petitioner.

Matter of Le, 25 I&N Dec. 541 (BIA 2011)

A derivative child of a nonimmigrant fiancé(e) visa holder under section 101(a)(15)(K)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(K)(iii) (2006), is not ineligible for adjustment of status simply by virtue of having turned 21 after admission to the United States on a K-2 nonimmigrant visa.

K-4 Visa Entrants

Matter of Valenzuela, 25 I&N Dec. 867 (BIA 2012)

An alien who is admitted to the United States in K-4 nonimmigrant status may only adjust his or her status to that of a lawful permanent resident based on the Petition for Alien Relative (Form I-130) filed by the United States citizen K visa petitioner.

Matter of Akram, 25 I&N Dec. 874 (BIA 2012)

(1) An alien who was admitted to the United States as a K-4 nonimmigrant may not adjust status without demonstrating immigrant visa eligibility and availability as the beneficiary of a Petition for Alien Relative (Form I-130) filed by his or her stepparent, the United States citizen K visa petitioner.

(2) A K-4 derivative child of a K-3 nonimmigrant who married the United States citizen K visa petitioner after the K-4 reached the age of 18 is ineligible for adjustment of status because he or she cannot qualify as the petitioner’s “stepchild.”

Rescission of Adjustment of Status

Matter of Masri, 22 I&N Dec. 1145 (BIA 1999)

(1) The Immigration Judge and the Board of Immigration Appeals have jurisdiction over proceedings conducted pursuant to section 246 of the Immigration and Nationality Act, 8 U.S.C. §1256 (Supp. II 1996), to rescind adjustment of status granted under section 210 of the Act, 8 U.S.C. §1160 (1988 & Supp. II 1990).

(2) Information provided in an application to adjust an alien’s status to that of a lawful temporary resident under section 210 of the Act is confidential and prohibited from use in rescission proceedings under section 246 of the Act, or for any purpose other than to make a determination on an application for lawful temporary residence, to terminate such temporary residence, or to prosecute the alien for fraud during the time of application.

Matter of Cruz de Ortiz, 25 I&N Dec. 601 (BIA 2011)

Because section 246(a) of the Immigration and Nationality Act, 8 U.S.C. § 1256(a) (2006), relates only to proceedings to rescind lawful permanent resident status acquired through adjustment of status, the 5-year statute of limitations in that section is not applicable to bar the removal of an alien who was admitted to the United States with an immigrant visa. Garcia v. Attorney General of the United States, 553 F.3d 724 (3d Cir. 2009), distinguished.

Section 245(i) Adjustment

Matter of Fesale, 21 I&N Dec. 114 (BIA 1995)

(1) The remittance required by section 245(i) of the Immigration and Nationality Act, 8 U.S.C. §1255(i) (1994), added by the Department of Commerce, Justice, and State Appropriations Act for 1995, Pub. L. No. 103-317, 108 Stat. 1724, 1765, equalling five times the processing fee for an application for adjustment of status, is by definition a statutorily mandated “sum,” and a requirement separate and apart from the fee which federal regulations at 8 C.F.R. § 103.7 (1995) require an alien to pay when filing an application for adjustment of status under section 245 of the Act.

(2) The statutorily mandated sum required by section 245(i) of the Act cannot be waived by an Immigration Judge under the “fee waiver” provisions of 8 C.F.R. §§ 3.24 and 103.7 (1995), based on a showing of an alien’s indigency.

Matter of Alania-Martin, 25 I&N Dec. 231 (BIA 2010)

Aliens who are otherwise eligible to adjust status under section 245(i) of the Immigration and Nationality Act, 8 U.S.C. § 1255(i) (2006), are not subject to the unauthorized employment restrictions of sections 245(c) and the exception for such employment in section 245(k) that apply to applications for adjustment of status under section 245(a).

Matter of Ilic, 25 I&N Dec. 717 (BIA 2012)

For an alien to independently qualify for adjustment of status under section 245(i) of the Immigration and Nationality Act, 8 U.S.C. § 1255(i) (2006), as a derivative grandfathered alien, the principal beneficiary of the qualifying visa petition must satisfy the requirements for grandfathering, including the physical presence requirement of section 245(i)(1)(C) of the Act, if applicable.

Matter of Lemus, 25 I&N Dec. 734 (BIA 2012)

Adjustment of status under section 245(i) of the Immigration and Nationality Act, 8 U.S.C. § 1255(i) (2006), is unavailable to an alien who is inadmissible under section 212(a)(9)(B)(i)(II) of the Act, 8 U.S.C. § 1182(a)(9)(B)(i)(II) (2006), absent a waiver. Matter of Lemus, 24 I&N Dec. 373 (BIA 2007), clarified.

Matter of Butt, 26 I&N Dec. 108 (BIA 2013)

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

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

ADMINISTRATIVE CLOSURE OF CASES

Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012)

(1) Pursuant to the authority delegated by the Attorney General and the responsibility to exercise that authority with independent judgment and discretion, the Immigration Judges and the Board may administratively close removal proceedings, even if a party opposes, if it is otherwise appropriate under the circumstances. Matter of Gutierrez, 21 I&N Dec. 479 (BIA 1996), overruled.

(2) In determining whether administrative closure of proceedings is appropriate, an Immigration Judge or the Board should weigh all relevant factors, including but not limited to: (1) the reason administrative closure is sought; (2) the basis for any opposition to administrative closure; (3) the likelihood the respondent will succeed on any petition, application, or other action he or she is pursuing outside of removal proceedings; (4) the anticipated duration of the closure; (5) the responsibility of either party, if any, in contributing to any current or anticipated delay; and (6) the ultimate outcome of removal proceedings (for example, termination of the proceedings or entry of a removal order) when the case is recalendared before the Immigration Judge or the appeal is reinstated before the Board.

Matter of Morales, 21 I&N Dec. 130 (BIA 1995, 1996)

(1) Where an alien in exclusion or deportation proceedings requests administrative closure pursuant to the settlement agreement set forth in American Baptist Churches et al. v. Thornburgh, 760 F. Supp. 797 (N.D.Cal.1991) ("ABC agreement"), the function of the Executive Office for Immigration Review ("EOIR") is restricted to the inquiries required under paragraph 19 of the agreement, i.e., (1) whether an alien is a class member, (2) whether he has been convicted of an aggravated felony, and (3) whether he poses one of the three safety concerns enumerated in paragraph 17.

(2) If a class member requesting administrative closure under the ABC agreement has not been convicted of an aggravated felony and does not fall within one of the three listed categories of public safety concerns under paragraph 17 of the agreement, EOIR must administratively close the matter to afford the alien the opportunity to pursue his rights in a special proceeding before the Immigration and Naturalization Service.

(3) If the applicant is subsequently found ineligible for the benefits of the ABC agreement in the nonadversarial proceeding before the asylum officer, or if he is denied asylum after a full de novo hearing, the Service may reinstitute exclusion or deportation proceedings by filing a motion with the Immigration Judge to recalendar the case, and such motion need only show, through evidence of an asylum officer’s decision in the matter, that the class member’s rights under paragraph 2 of the agreement have been exercised.

(4) Neither the Board of Immigration Appeals nor the Immigration Judges will review the Service’s eligibility determinations under paragraph 2 of the ABC agreement.

Matter of Gutierrez, 21 I&N Dec. 479 (BIA 1996)

(1) Administrative closure of a case is used to temporarily remove the case from an Immigration Judge’s calendar or from the Board of Immigration Appeal’s docket. A case may not be administratively closed if opposed by either of the parties. Administrative closing of a case does not result in a final order. It is merely an administrative convenience which allows the removal of cases from the calendar in appropriate situations.

(2) The settlement agreement underAmerican Baptist Churches v. Thornburgh, 760 F. Supp. 796 (N.D.Cal.1991) ("ABC"), specifically states that nothing in the agreement shall limit the right of a class member to pursue other legal rights to which he or she might be entitled under the Immigration and Nationality Act. This language is mandatory and does not indicate that such action by an alien would be curtailed by the administrative closing of each class member’s case or postponed until the eventual final resolution of each class member’s remedies under the settlement agreement itself.

(3) An ABC alien’s right to apply for relief from deportation is not prohibited due to the administrative closure of his or her case. Such an alien, therefore, may file a motion to reopen with the administrative body which administratively closed his or her case in order to pursue issues or relief from deportation which were not raised in the administratively closed proceedings. Such motion must comply with all applicable regulations in order for the alien’s case to be reopened.

(4) An alien who has had his or her case reopened and who receives an adverse decision from an Immigration Judge in the reopened proceedings must file an appeal of that new decision, in accordance with applicable regulations, in order to vest the Board with jurisdiction to review the Immigration Judge’s decision on the issues raised in the reopened proceedings. That appeal would be a separate and independent appeal from any previously filed appeal and would not be consolidated with an appeal before the Board regarding issues which have been administratively closed.

(5) Any appeal pending before the Board regarding issues or forms of relief from deportation which have been administratively closed by the Board prior to the reopening of the alien’s proceedings will remain administratively closed. A motion to reinstate an appeal is required before issues which have been administratively closed can be considered by the Board.

ADMISSION / ENTRY

Adjustment of Status

Matter of Koljenovic, 25 I&N Dec. 219 (BIA 2010)

An alien who entered the United States without inspection and later obtained lawful permanent resident status through adjustment of status has “previously been admitted to the United States as an alien lawfully admitted for permanent residence” and must therefore satisfy the 7-year continuous residence requirement of section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h) (2006), to be eligible for a waiver of inadmissibility.

Matter of Quilantan, 25 I&N Dec. 285 (BIA 2010)

For purposes of establishing eligibility for adjustment of status under section 245(a) of the Immigration and Nationality Act, 8 U.S.C. § 1255(a) (2006), an alien seeking to show that he or she has been “admitted” to the United States pursuant to section 101(a)(13)(A) of the Act, 8 U.S.C. § 1101(a)(13)(A) (2006), need only prove procedural regularity in his or her entry, which does not require the alien to be questioned by immigration authorities or be admitted in a particular status. Matter of Areguillin, 17 I&N Dec. 308 (BIA 1980), reaffirmed.

Matter of Espinosa Guillot, 25 I&N Dec. 653 (BIA 2011)

An alien who has adjusted status to that of a lawful permanent resident pursuant to the Cuban Refugee Adjustment Act of November 2, 1966, Pub. L. No. 89-732, 80 Stat. 1161, as amended, has been admitted to the United States and is subject to charges of removability under section 237(a) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a) (2006).

Arriving Alien

Matter of Oseiwusu, 22 I&N Dec. 19 (BIA 1998)

(1) An alien who arrives in the United States pursuant to a grant of advance parole is an “arriving alien,” as that term is defined in the federal regulations.

(2) According to the regulations, an Immigration Judge 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.

Matter of R-D-, 24 I&N Dec. 221 (BIA 2007)

(1) An alien who leaves the United States and is admitted to Canada to seek refugee status has made a departure from the United States.

(2) An alien returning to the United States after the denial of an application for refugee status in Canada is seeking admission into the United States and is therefore an arriving alien under 8 C.F.R. § 1001.1(q) (2007).

Matter of E-R-M- & L-R-M-, 25 I&N Dec. 520 (BIA 2011)

(1) Section 235(b)(1)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1225(b)(1)(A)(i) (2006), does not limit the prosecutorial discretion of the Department of Homeland Security to place arriving aliens in removal proceedings under section 240 of the Act, 8 U.S.C. § 1229a (2006).

(2) The fact that an Immigration Judge has no jurisdiction over applications for adjustment of status under the Cuban Refugee Adjustment Act of November 2, 1966, Pub. L. No. 89-732, 80 Stat. 1161, as amended, does not negate his or her jurisdiction over the removal proceedings of arriving Cuban aliens under section 240 of the Act.

Asylees

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

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

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

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

Cancellation of Removal (Non-LPR)

Matter of Reza-Murillo, 25 I&N Dec. 296 (BIA 2010)

A grant of Family Unity Program benefits does not constitute an “admission” to the United States under section 101(a)(13)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(13)(A) (2006), for purposes of establishing that an alien has accrued the requisite 7-year period of continuous residence after having been “admitted in any status” to be eligible for cancellation of removal under section 240A(a)(2) of the Act, 8 U.S.C. § 1229b(a)(2) (2006).

Claimed Status Review

Matter of Lujan-Quintana, 25 I&N Dec. 53 (BIA 2009)

The Board of Immigration Appeals lacks jurisdiction to review an appeal by the Department of Homeland Security of an Immigration Judge’s decision to vacate an expedited removal order after a claimed status review hearing pursuant to 8 C.F.R. § 1235.3(b)(5)(iv) (2009), at which the Immigration Judge determined the respondent to be a United States citizen.

False Claim of U.S. Citizenship

Matter of Pinzon, 26 I&N Dec. 189 (BIA 2013)

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

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

Nunc Pro Tunc Permission to Reapply

Matter of Garcia, 21 I&N Dec. 254 (BIA 1996)

(1) Nunc pro tunc permission to reapply for admission, an administrative practice not expressly authorized by statute, is available only in the limited circumstances where a grant of such relief would effect a complete disposition of the case, i.e., where the only ground of deportability or inadmissability would be eliminated or where the alien would receive a grant of adjustment of status in conjunction with the grant of any appropriate waivers of inadmissability.

(2) A grant of nunc pro tunc permission to reapply for admission is not available to a respondent who, in spite of such a grant, would remain deportable under sections 241(a)(2)(A)(iii) and (B)(i) of the Immigration and Nationality Act, 8 U.S.C. §§ 1251(a)(2)(A)(iii) and (B)(i) (1994), as a result of a drug-related conviction.

(3) An alien who returned to the United States following deportation with a visa, but without obtaining advance permission to reapply, is not eligible to apply for nunc pro tunc permission to reapply for admission in conjunction with an application for a waiver of inadmissibility under section 212(c) of the Act, 8 U.S.C. § 1182(c) (1994), because he is not independently eligible for the waiver as a result of his unlawful entry.

Returning Lawful Permanent Resident

Matter of Collado, 21 I&N Dec. 1061 (BIA 1998)

(1) A lawful permanent resident of the United States described in sections 101(a)(13)(C)(I)-(vi) of the Immigration and Nationality Act (to be codified at 8 U.S.C. § 1101(a)(13)(C)(i)-(vi)) is to be regarded as “seeking an admission into the United States for purposes of the immigration laws,” without further inquiry into the nature and circumstances of a departure from and return to this country.

(2) The Immigration Judge erred in finding that theFleuti doctrine, first enunciated by the United States Supreme Court inRosenberg v. Fleuti, 374 U.S. 449 (1963), requires the admission into the United States of a returning lawful permanent resident alien who falls within the definition of section 101(a)(13)(C)(v) of the Act, if that alien’s departure from the United States was “brief, casual, and innocent.”

Matter of Rivens, 25 I&N Dec. 623 (BIA 2011)

(1) 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 the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(13)(C) (2006), applies.

(2) The offense of accessory after the fact is a crime involving moral turpitude, but only if the underlying offense is such a crime.

Matter of Valanzuela-Felix, 26 I&N Dec. 53 (BIA 2012)

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

Unlawful Reentry

Matter of Torres-Garcia, 23 I&N Dec. 866 (BIA 2006)

(1) An alien who reenters the United States without admission after having previously been removed is inadmissible under section 212(a)(9)(C)(i)(II) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(9)(C)(i)(II) (2000), even if the alien obtained the Attorney General’s permission to reapply for admission prior to reentering unlawfully.

(2) An alien is statutorily ineligible for a waiver of inadmissibility under the first sentence of section 212(a)(9)(C)(ii) of the Act unless more than 10 years have elapsed since the date of the alien’s last departure from the United States.Matter of Rodarte, 23 I&N Dec. 905 (BIA 2006)

Matter of Rodarte, 23 I&N Dec. 905 (BIA 2006)

(1) To be rendered inadmissible for 10 years pursuant to section 212(a)(9)(B)(i)(II) of the Immigration and Nationality Act, 8 U.S.C § 1182(a)(9)(B)(i)(II) (2000), an alien must depart the United States after having been unlawfully present in the United States for 1 year or longer.

(2) Pursuant to sections 301(b)(3) and 309(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-578, 309-625, no period of an alien’s presence in the United States prior to April 1, 1997, may be considered “unlawful presence” for purposes of determining an alien’s inadmissibility under section 212(a)(9)(B) of the Act.

Matter of Briones,, 24 I&N Dec. 355 (BIA 2007)

(1) Section 212(a)(9)(C)(i)(I) of the Immigration and Nationality Act, 8 U.S.C. §§ 1182(a)(9)(C)(i)(I) (2000), covers recidivist immigration violators, so to be inadmissible under that section, an alien must depart the United States after accruing an aggregate period of ““unlawful presence”” of more than 1 year and thereafter reenter, or attempt to reenter, the United States without being admitted.

(2) Adjustment of status under section 245(i) of the Act, 8 U.S.C. §§ 1255(i) (2000), is not available to an alien who is inadmissible under section 212(a)(9)(C)(i)(I) of the Act.

Matter of Lemus, 24 I&N Dec. 373 (BIA 2007)

(1) An alien who is unlawfully present in the United States for a period of 1 year, departs the country, and then seeks admission within 10 years of the date of his departure from the United States, is inadmissible under section 212(a)(9)(B)(i)(II) of the Immigration and Nationality Act, 8 U.S.C. §§ 1182(a)(2)(B)(i)(II) (2000), even if the alien’’s departure was not made pursuant to an order of removal and was not a voluntary departure in lieu of being subject to removal proceedings or at the conclusion of removal proceedings.

(2) Adjustment of status under section 245(i) of the Act, 8 U.S.C. §§ 1255(i) (2000), is unavailable to an alien who is inadmissible under section 212(a)(9)(B)(i)(II) of the Act.

Withdrawal of Application for Admission

Matter of Sanchez, 21 I&N Dec. 444 (BIA 1996)

(1) under the present statutory and regulatory scheme, an Immigration Judge properly declined to order an alien excluded in absentia where the Immigration and Naturalization Service did not detain or parole the alien at the time he applied for admission to the United States, but instead returned him to Mexico with instructions to appear for an exclusion hearing at a later date.

(2) By directing an applicant for admission to return to Mexico after being served with a Notice to Applicant for Admission Detained for Hearing before an Immigration Judge (Form I-122), the Service in effect consented to the alien’s withdrawal of that application when the alien elected not to return to pursue his application for admission to the United States.

AGGRAVATED FELONIES

Accessory After the Fact

Matter of Batista, 21 I&N Dec. 955 (BIA 1997)

(1) The offense of accessory after the fact to a drug-trafficking crime, pursuant to 18 U.S.C. § 3 (Supp. V 1993), is not considered an inchoate crime and is not sufficiently related to a controlled substance violation to support a finding of deportability pursuant to section 241(a)(2)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2)(B)(i) (1994).

(2) The respondent’s conviction pursuant to 18 U.S.C. § 3 establishes his deportability as an alien convicted of an aggravated felony under section 241(a)(2)(A)(iii) of the Act,because the offense of accessory after the fact falls within the definition of an obstruction of justice crime under section 101(a)(43)(S) of the Act, 8 U.S.C.A. §1101(a)(43)(S) (West Supp. 1997), and because the respondent’s sentence, regardless of any suspension of the imposition or execution of that sentence, “is at least one year.”

Adjustment of Status

Matter of Rosas, 22 I&N Dec. 616 (BIA 1999)

An alien whose conviction for an aggravated felony was subsequent to her adjustment of status to that of a lawful permanent resident is deportable under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (Supp. II 1996), as an alien who was convicted of an aggravated felony “after admission.@

Alien Smuggling

Matter of Alvarado-Alvino, 22 I&N Dec. 718 (BIA 1999)

An alien convicted of an offense described in section 275(a) of the Immigration and Nationality Act, 8 U.S.C. § 1325 (Supp. II 1996), is not convicted of an aggravated felony as that term is defined in section 101(a)(43)(N) of the Act, 8 U.S.C. § 1101(a)(43)(N) (Supp. II 1996), which specifically refers to those offenses relating to alien smuggling described in sections 274(a)(1)(A) and (2) of the Act, 8U.S.C. § 1324(a)(1)(A) and (2) (Supp. II 1996).

Arson

Matter of Palacios, 22 I&N Dec. 434 (BIA 1998)

An alien who was convicted of arson in the first degree under the law of Alaska and sentenced to 7 years’ imprisonment with 3 years suspended was convicted of a “crime of violence” within the meaning of section 101(a)(43)(F) of the Immigration and Nationality Act, 8U.S.C. §1101(a)(43)(F) (Supp. II 1996), and therefore is deportable under section 237(a)(2)(A)(iii) of the Act, 8 U.S.C. §1227(a)(2)(A)(iii) (Supp. II 1996), as an alien convicted of an aggravated felony.

Matter of Bautista, 25 I&N Dec. 616 (BIA 2011)

Attempted arson in the third degree in violation of sections 110 and 150.10 of the New York Penal Law is an aggravated felony under section 101(a)(43)(E)(i) of the Immigration and Nationality Act, 8U.S.C. § 1101(a)(43)(E)(i) (2006), even though the State crime lacks the jurisdictional element in the applicable Federal arson offense. Matter of Vasquez-Muniz, 23 I&N Dec. 207 (BIA 2002), followed.

Burglary

Matter of Perez, 22 I&N Dec. 1325 (BIA 2000) (Burglary of a Vehicle)

The offense of burglary of a vehicle in violation of section 30.04(a) of the Texas Penal Code Annotated is not a “burglary offense” within the definition of an aggravated felony in section 101(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C. §1101(a)(43)(G) (Supp. IV 1998).

Commercial Bribery

Matter of Gruenangerl, 25 I&N Dec. 351 (BIA 2010)

The crime of bribery of a public official in violation of 18 U.S.C. § 201(b)(1)(A) (2006) is not an offense “relating to” commercial bribery and is therefore not an aggravated felony under section 101(a)(43)(R) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(R) (2006).

Conspiracy

Matter of Richardson, 25 I&N Dec. 226 (BIA 2010)

(1) The term “conspiracy” in section 101(a)(43)(U) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(U) (2006), is not limited to conspiracies that require the commission of an overt act in furtherance of the conspiracy by one of the conspirators.

(2) An alien who was only convicted of conspiracy to commit an aggravated felony and is removable on the basis of that conviction under section 101(a)(43)(U) of the Act may not also be found removable for the underlying substantive offense, even though the record of conviction shows that the conspirators actually committed the substantive offense.

Controlled Substances

Matter of Flores, 26 I&N Dec. 155 (BIA 2013)

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

Matter of Castro-Rodriguez, 25 I&N Dec. 698 (BIA 2012)

An alien convicted of possession of marijuana with intent to distribute under State law has the burden to show that the offense is not an aggravated felony because it involved a “small amount of marihuana for no remuneration” within the meaning of 21 U.S.C. § 841(b)(4) (2006), which the alien may establish by presenting evidence outside of the record of conviction. Matter of Aruna, 24 I&N Dec. 452 (BIA 2008), clarified.

Matter of L-G-, 21 I&N Dec. 89 (BIA 1995) (modified byMatter of Yanez, 23 I&N Dec. 390 (BIA 2002))

(1) A federal definition applies to determine whether or not a crime is a “felony” within the meaning of 18 U.S.C. § 924(c)(2) (1994), and therefore is an “aggravated felony” under section 101(a)(43) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43) (Supp. V 1993).

(2) For immigration purposes, a state drug offense qualifies as a “drug trafficking crime” under 18 U.S.C. § 924(c)(2) if it is punishable as a felony under the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or the Maritime Drug Law Enforcement Act (46 U.S.C. App. 1901 et seq.).Matter of Davis, 20 I&N Dec. 536 (BIA 1992), andMatter of Barrett, 20 I&N Dec. 171 (BIA 1990), reaffirmed.

(3) Although we disagree with the decision of the United States Court of Appeals for the Second Circuit inJenkins v. INS, 32 F.3d 11 (2d Cir. 1994), which holds that an alien’s state conviction for a drug offense that is a felony under state law, but a misdemeanor under federal law, qualifies as a conviction for an aggravated felony, we will follow this decision in matters arising within the Second Circuit’s jurisdiction.

Matter of K-V-D-, 22 I&N Dec. 1163 (BIA 1999) (overruled byMatter of Yanez, 23 I&N Dec. 390 (BIA 2002))

(1) Where a circuit court of appeals has interpreted the definition of an “aggravated felony” under section 101(a)(43) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43) ( 1994), only for purposes of criminal sentence enhancement, the Board of Immigration Appeals may interpret the phrase differently for purposes of implementing the immigration laws in cases arising within that circuit.

(2) An alien convicted in Texas of simple possession of a controlled substance, which would be a felony under Texas law but a misdemeanor under federal law, is not convicted of an aggravated felony within the meaning of section 101(a)(43)(B) of the Act.Matter of L-G-, 21 I&N Dec. 89 (BIA 1995), affirmed.Matter of Yanez, 23 I&N Dec. 390 (BIA 2002)

The determination whether a state drug offense constitutes a “drug trafficking crime” under 18 U.S.C. § 924(c)(2) (2000), such that it may be considered an “aggravated felony” under section 101(a)(43)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B) (2000), shall be made by reference to decisional authority from the federal circuit courts of appeals, and not by reference to any separate legal standard adopted by the Board of Immigration Appeals.Matter of K-V-D-, 22 I&N Dec. 1163 (BIA 1999), overruled.Matter of L-G-, 21 I&N Dec. 89 (BIA 1995), andMatter of Davis, 20 I&N Dec. 536 (BIA 1992), modified.

Matter of Santos-Lopez, 23 I&N Dec. 419 (BIA 2002)

(1) Under the decisions of the United States Court of Appeals for the Fifth Circuit inUnited States v. Hernandez-Avalos, 251F.3d 505 (5th Cir.), cert. denied, 122S.Ct. 305 (2001), andUnited States v. Hinojosa-Lopez, 130F.3d 691 (5th Cir. 1997), a determination whether an offense is a "felony" for purposes of 18U.S.C. §924(c)(2) (2000) depends on the classification of the offense under the law of the convicting jurisdiction.Matter of Yanez, 23I&N Dec. 390 (BIA 2002), followed.

(2) Each of the respondent’s two convictions for possession of marihuana is classified as a misdemeanor offense under Texas law; therefore, neither conviction is for a "felony" within the meaning of 18U.S.C. §924(c)(2) or an "aggravated felony" within the meaning of section 101(a)(43)(B) of the Immigration and Nationality Act, 8U.S.C. §1101(a)(43)(B) (2000).

Matter of Elgendi, 23 I&N Dec. 515 (BIA 2002)

In accordance with authoritative precedent of the United States Court of Appeals for the Second Circuit inUnited States v. Pornes-Garcia, 171 F.3d 142 (2d Cir. 1999), andUnited States v. Polanco, 29 F.3d 35 (2d Cir. 1994), an individual who has been convicted twice of misdemeanor possession of marijuana in violation of New York State law has not been convicted of an aggravated felony under section 101(a)(43)(B) of the Immigration and Nationality Act, 8 U.S.C. 1101(a)(43)(B) (2000).>

Matter of Carachuri-Rosendo, 24 I&N Dec. 382 (BIA 2007)

(1) Decisional authority from the Supreme Court and the controlling Federal circuit court of appeals is determinative of whether a State drug offense constitutes an “aggravated felony” under section 101(a)(43)(B) of the Immigration and Nationality Act, 8 U.S.C. §§ 1101(a)(43)(B) (2000), by virtue of its correspondence to the Federal felony offense of “recidivist possession,” as defined by 21 U.S.C. § 844(a) (2000).Matter of Yanez, 23 I&N Dec. 390 (BIA 2002), followed.

(2) Controlling precedent of the United States Court of Appeals for the Fifth Circuit dictates that the respondent’’s Texas conviction for alprazolam possession qualifies as an “aggravated felony” conviction by virtue of the fact that the underlying alprazolam possession offense was committed after the respondent’s prior State “conviction” for a “drug, narcotic, or chemical offense” became “final” within the meaning of 21 U.S.C. § 844(a).

(3) Absent controlling authority regarding the “recidivist possession” issue, an alien’s State conviction for simple possession of a controlled substance will not be considered an aggravated felony conviction on the basis of recidivism unless the alien’’s status as a recidivist drug offender was either admitted by the alien or determined by a judge or jury in connection with a prosecution for that simple possession offense.

Matter of Thomas, 24 I&N Dec. 416 (BIA 2007)

The respondent’s 2003 Florida offense involving the simple possession of marijuana does not qualify as an “aggravated felony” by virtue of its correspondence to the Federal felony of “recidivist possession,” even though it was committed after a prior “conviction” for a “drug, narcotic, or chemical offense” became “final” within the meaning of 21 U.S.C. § 844(a) (2000), because the respondent’s conviction for that 2003 offense did not arise from a State proceeding in which his status as a recidivist drug offender was either admitted or determined by a judge or jury.Matter of Carachuri-Rosendo, 24 I&N Dec. 382 (BIA 2007), followed.

Matter of Aruna, 24 I&N Dec. 452 (BIA 2008)

Absent controlling precedent to the contrary, a State law misdemeanor offense ofconspiracy to distribute marijuana qualifies as an “aggravated felony” under section>101(a)(43)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B) (2000),where its elements correspond to the elements of the Federal felony offense of conspiracy to distribute an indeterminate quantity of marijuana, as defined by 21 U.S.C. §§ 841(a)(1), (b)(1)(D), and 846 (2000 & Supp. IV 2004).

Matter of Sanchez-Cornejo, 25 I&N Dec. 273 (BIA 2010)

The offense of delivery of a simulated controlled substance in violation of Texas law is not an aggravated felony, as defined by section 101(a)(43)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B) (2006), but it is a violation of a law relating to a controlled substance under former section 241(a)(2)(B)(i) of the Act, 8 U.S.C. § 1251(a)(2)(B)(i) (1994).

Crimes of Violence

Matter of Tavarez-Peralta, 26 I&N Dec. 171 (BIA 2013)

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

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

Matter of U. Singh, 25 I&N Dec. 670 (BIA 2012)

(1) A decision by a Federal court of appeals reversing a precedent decision of the Board of Immigration Appeals is not binding authority outside the circuit in which the case arises.

(2) A stalking offense for harassing conduct in violation of section 646.9(b) of the California Penal Code is a crime of violence under 18 U.S.C. § 16(b) (2006) and is therefore an aggravated felony under section 101(a)(43)(F) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(F) (2006). Matter of Malta, 23 I&N Dec. 656 (BIA 2004), reaffirmed. Malta-Espinoza v. Gonzales, 478 F.3d 1080 (9th Cir. 2007), followed in jurisdiction only.

Matter of Magallanes, 22 I&N Dec. 1 (BIA 1998) (Driving Under the Influence) (overruled by Matter of Ramos, 23 I&N Dec. 336 (BIA 2002)

An alien who was convicted of aggravated driving while under the influence and sentenced to 2½ years in prison was convicted of a “crime of violence” within the meaning of section 101(a)(43)(F) of the Immigration and Nationality Act (to be codified at 8 U.S.C. §1101(a)(43)(F)), and therefore is deportable under section 241(a)(2)(A)(iii) of the Act, 8 U.S.C. § 1251(a)(2)(A)(iii)(1994), as an alien convicted of an aggravated felony.

Matter of Puente, 22 I&N Dec. 1006 (BIA 1999) (Driving Under the Influence) (overruled by Matter of Ramos, 23 I&N Dec. 336 (BIA 2002)

A conviction for the crime of driving while intoxicated under section 49.04 of the Texas Penal Code, which is a felony as a result of an enhanced punishment, is a conviction for a crime of violence and therefore an aggravated felony under section 101(a)(43)(F) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(F) (Supp. II 1996).

Matter of Herrera, 23 I&N Dec. 43 (BIA 2001) (Driving Under the Influence)

Respondent’s motion for a stay of deportation, pending consideration of his simultaneously filed motion to reopen and reconsider, is granted in light of the decision of the United States Court of Appeals for the Fifth Circuit inUnited States v. Chapa-Garza, 2001 WL 209468 (5th Cir. 2001), which held that a conviction for driving while intoxicated in violation of section 49.09 of the Texas Penal Code is not a conviction for a crime of violence under section 101(a)(43)(F) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(F) (Supp. V 1999).

Matter of Olivares, 23 I&N Dec. 148 (BIA 2001) (Driving Under the Influence)

UnderUnited States v. Chapa-Garza, 243 F.3d 921 (5th Cir. 2001), andUnited States v. Hernandez-Avalos, 251 F.3d 505 (5th Cir. 2001), a Texas conviction for felony DWI is not classifiable as a crime of violence conviction under 18 U.S.C. § 16(b) (1994) for purposes of removability in cases arising in the United States Court of Appeals for the Fifth Circuit; accordingly, in cases arising in the Fifth Circuit,Matter of Puente, 22 I&N Dec. 1006 (BIA 1999), will not be applied.

Matter of Sweetser, 22 I&N Dec. 709 (BIA 1999) (Criminally Negligent Child Abuse)

(1) Where the state statute under which an alien has been convicted is divisible, meaning it encompasses offenses that constitute crimes of violence as defined under 18 U.S.C. § 16 (1994) and offenses that do not, it is necessary to look to the record of conviction, and to other documents admissible as evidence in proving a criminal conviction, to determine whether the specific offense of which the alien was convicted constitutes an aggravated felony as defined in section 101(a)(43)(F) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(F) (Supp. II 1996).

(2) for purposes of determining whether an offense is a crime of violence as defined in 18 U.S.C. § 16(b), it is necessary to examine the criminal conduct required for conviction, rather than the consequence of the crime, to find if the offense, 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.”

(3) To find that a criminal offense is a crime of violence under 18 U.S.C. § 16(b), a causal link between the potential for harm and the "substantial risk" of "physical force" being used must be present.Matter of Magallanes, 22 I&N Dec. 1 (BIA 1998), clarified.

(4) An alien convicted of criminally negligent child abuse under sections 18-6-401(1) and (7) of the Colorado Revised Statutes, whose negligence in leaving his stepson alone in a bathtub resulted in the child’s death, was not convicted of a crime of violence under 18 U.S.C. § 16(b) because there was not substantial risk that physical force "would be used in the commission of the crime."

Matter of Aldabesheh, 22 I&N Dec. 983 (BIA 1999) (Criminal Contempt and Forgery)

(1) A conviction for criminal contempt in the first degree, in violation of section 215.51(b)(i) of the New York Penal Law, with a sentence to imprisonment of at least 1 year, is a conviction for a crime of violence as defined under 18 U.S.C. § 16(b) (1994), thus rendering it an aggravated felony under section 101(a)(43)(F) of the Immigration and Nationality Act, 8 U.S.C. §1101(a)(43)(F) (Supp. II 1996).

(2) A conviction for forgery in the second degree, in violation of section 170.10(2) of the New York Penal Law, with a sentence to imprisonment of at least 1 year, is a conviction for an aggravated felony under section 101(a)(43)(R) of the Act.

(3) Where an alien has been convicted of two or more aggravated felonies and has received concurrent sentences to imprisonment, the alien’s "aggregate term of imprisonment," for purposes of determining eligibility for withholding of removal under section 241(b)(3) of the Act, 8 U.S.C. §1231(b)(3) (Supp. II 1996), is equal to the length of the alien’s longest concurrent sentence.

Matter of Ramos, 23 I&N Dec. 336 (BIA 2002)

(1) In cases arising in circuits where the federal court of appeals has not decided whether the offense of driving under the influence is a crime of violence under 18U.S.C. §16(b) (2000), an offense will be considered a crime of violence if it is committed at least recklessly and involves a substantial risk that the perpetrator may resort to the use of force to carry out the crime; otherwise, where the circuit court has ruled on the issue, the law of the circuit will be applied to cases arising in that jurisdiction.

(2) The offense of operating a motor vehicle while under the influence of intoxicating liquor in violation of chapter 90, section 24(1)(a)(1) of the Massachusetts General Laws is not a felony 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 and is therefore not a crime of violence.Matter of Puente, 22 I&N Dec. 1006 (BIA 1999), andMatter of Magallanes, 22 I&N Dec. 1 (BIA 1998), overruled.

Matter of Martin, 23 I&N Dec. 491 (BIA 2002)

The offense of third-degree assault in violation of section 53a-61(a)(1) of the Connecticut General Statutes, which involves the intentional infliction of physical injury upon another, is a crime of violence under 18 U.S.C. § 16(a) (2000) and is therefore an aggravated felony under section 101(a)(43)(F) of the Immigration and Nationality Act, 8 U.S.C. §1101(a)(43)(F) (2000).

Matter of Vargas, 23 I&N Dec. 651 (BIA 2004)

The offense of manslaughter in the first degree in violation of section 125.20 of the New York Penal Law is a crime of violence under 18 U.S.C. § 18(b) (2000) and is therefore an aggravated felony under section 101(a)(43)(F) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(F) (2000).

Matter of Malta, 23 I&N Dec. 656 (BIA 2004)

A stalking offense for harassing conduct in violation of section 646.9(b) of the California Penal Code, which proscribes stalking when there is a temporary restraining order, injunction, or any other court order in effect prohibiting the stalking behavior, is a crime of violence under 18 U.S.C. § 16(b) (2000), and is therefore an aggravated felony under section 101(a)(43)(F) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(F) (2000).

Matter of Perez-Ramirez, 25 I&N Dec. 203 (BIA 2010)

(1) Where a criminal alien’s sentence has been modified to include a term of imprisonment following a violation of probation, the resulting sentence to confinement is considered to be part of the penalty imposed for the original underlying crime, rather than punishment for a separate offense. (2) An alien’s misdemeanor conviction for willful infliction of corporal injury on a spouse in violation of section 273.5(a) of the California Penal Code qualifies categorically as a conviction for a “crime of violence” within the meaning of 18 U.S.C. § 16(a) (2006).

Matter of Ramon Martinez, 25 I&N Dec. 571 (BIA 2011)

A violation of section 220 of the California Penal Code is categorically a crime of violence under 18 U.S.C. §§ 16(a) and (b) (2006).

Matter of Guerrero, 25 I&N Dec. 631 (BIA 2011)

(1) Because solicitation to commit a “crime of violence” is itself a crime of violence under 18 U.S.C. § 16(b) (2006), a felony conviction for solicitation to commit assault with a dangerous weapon in violation of section 11-1-9 of the General Laws of Rhode Island is for a crime of violence and therefore an aggravated felony under section 101(a)(43)(F) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(F) (2006), where a sentence of 1 year or more has been imposed.

(2) The offense of solicitation is not an aggravated felony under section 101(a)(43)(U) of the Act because it is not an attempt or conspiracy.

Date of Conviction

Matter of Lettman, 22 I&N Dec. 365 (BIA 1998)

An alien convicted of an aggravated felony is subject to deportation regardless of the date of the conviction when the alien is placed in deportation proceedings on or after March 1, 1991, and the crime falls within the aggravated felony definition.

Matter of Truon, 22 I&N Dec. 1090 (BIA 1999)

(1) An alien whose June 8, 1987, conviction for second degree robbery was not, at the time of his conviction, included in the aggravated felony definition was not deportable, even after that offense was included in the aggravated felony definition as a crime of violence under the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978, due to its provisions regarding effective dates; however, the alien became deportable upon enactment of section 321(b) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-628 (enacted Sept. 30, 1996) (“IIRIRA”), because that section established an aggravated felony definition that is to be applied without temporal limitations, regardless of the date of conviction.

(2) The term “actions taken” in section 321(c) of the IIRIRA, 110 Stat. at 3009-628, which limits the applicability of the aggravated felony definition of section 321(b), includes consideration of a case by the Board of Immigration Appeals; therefore that section’s aggravated felony definition is applicable to cases decided by the Board on or after the IIRIRA’s September 30, 1996, enactment date.

(3) The Attorney General’s decision inMatter of Soriano, 21 I&N Dec. 516 (BIA 1996; A.G. 1997), remains binding on the Board, notwithstanding decisions in some courts of appeals that have rejected that decision.

Divisible Statutes

Matter of Sweetser, 22 I&N Dec. 709 (BIA 1999)

(1) Where the state statute under which an alien has been convicted is divisible, meaning it encompasses offenses that constitute crimes of violence as defined under 18 U.S.C. § 16 (1994) and offenses that do not, it is necessary to look to the record of conviction, and to other documents admissible as evidence in proving a criminal conviction, to determine whether the specific offense of which the alien was convicted constitutes an aggravated felony as defined in section 101(a)(43)(F) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(F) (Supp. II 1996).

(2) For purposes of determining whether an offense is a crime of violence as defined in 18 U.S.C. § 16(b), it is necessary to examine the criminal conduct required for conviction, rather than the consequence of the crime, to find if the offense, 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.”

(3) To find that a criminal offense is a crime of violence under 18 U.S.C. § 16(b), a causal link between the potential for harm and the "substantial risk" of "physical force" being used must be present.Matter of Magallanes, 22 I&N Dec. 1 (BIA 1998), clarified.

(4) An alien convicted of criminally negligent child abuse under sections 18-6-401(1) and (7) of the Colorado Revised Statutes, whose negligence in leaving his stepson alone in a bathtub resulted in the child’s death, was not convicted of a crime of violence under 18 U.S.C. § 16(b) because there was not "substantial risk that physical force" would be used in the commission of the crime.

Firearms

Matter of Vasquez-Muniz, 22 I&N Dec. 1415 (BIA 2000) (overruled by Matter of Vasquez-Muniz, 23 I&N Dec. 207 (BIA 2002))

Possession of a firearm by a felon in violation of section 12021(a)(1) of the California Penal Code is not an aggravated felony under section 101(a)(43)(E) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(E) (1994), because it is not an offense “described in” 18 U.S.C. § 922(g)(1) (1994).

Matter of Vasquez-Muniz, 23 I&N Dec. 207 (BIA 2002)

(1) An offense defined by state or foreign law may be classified as an aggravated felony as an offense "described in" a federal statute enumerated in section 101(a)(43) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43) (1994 & Supp. V 1999), even if it lacks the jurisdictional element of the federal statute.

(2) Possession of a firearm by a felon in violation of section 12021(a)(1) of the California Penal Code is an aggravated felony under section 101(a)(43)(E)(ii) of the Act because it is "described in" 18 U.S.C. § 922(g)(1) (1994).Matter of Vasquez-Muniz, 22 I&N Dec. 1415 (BIA 2000), overruled.

Fraud and Deceit

Matter of Onyido, 22 I&N Dec. 552 (BIA 1999)

An alien who was convicted of submitting a false claim with intent to defraud arising from an unsuccessful scheme to obtain $15,000 from an insurance company was convicted of an “attempt” to commit a fraud in which the loss to the victim exceeded $10,000 within the meaning of section 101(a)(43)(U) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(U) (Supp. II 1996), and therefore is deportable under section 241(a)(2)(A)(iii) of the Act, 8U.S.C. §1251(a)(2)(A)(iii) (1994), as an alien convicted of an aggravated felony.

Matter of Babaisakov, 24 I&N Dec. 306 (BIA 2007)

(1) A single ground for removal may require proof of a conviction tied to the statutory elements of a criminal offense, as well as proof of an additional fact or facts that are not tied to the statutory elements of any such offense.

(2) When a removal charge depends on proof of both the elements leading to a conviction and some nonelement facts, the nonelement facts may be determined by means of evidence beyond the limited “record of conviction” that may be considered by courts employing the “categorical approach,” the “modified categorical approach,” or a comparable “divisibility analysis,” although the record of conviction may also be a suitable source of proof, depending on the circumstances.

(3) Section 101(a)(43)(M)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(M)(i) (2000), which defines the term “aggravated felony” to mean “an offense that involves fraud or deceit in which the loss to the victim or victims exceeds $10,000,” depends on proof of both a conviction having an element of fraud or deceit and the nonelement fact of a loss exceeding $10,000 that is tied to the conviction.

(4) Because the phrase “in which the loss to the victim or victims exceeds $10,000” is not tied to an element of the fraud or deceit offense, the loss determination is not subject to the limitations of the categorical approach, the modified categorical approach, or a divisibility analysis and may be proved by evidence outside the record of conviction, provided that the loss is still shown to relate to the conduct of which the person was convicted and, for removal purposes, is proven by clear and convincing evidence.

(5) The Immigration Judge erred in declining to consider a presentence investigation report as proof of victim loss because of his mistaken belief that he was restricted to consideration of the respondent’s record of conviction.

Matter of S-I-K-, 24 I&N Dec. 324 (BIA 2007)

An alien convicted of conspiracy is removable as an alien convicted of an aggravated felony within the meaning of sections 101(a)(43)(M)(i) and (U) of the Immigration and Nationality Act, 8 U.S.C. §§ 1101(a)(43)(M)(i) and (U) (2000), where the substantive crime that was the object of the conspiracy was an offense that involved “fraud or deceit” and where the potential loss to the victim or victims exceeded $10,000.

Jurisdictional Element

Matter of Vasquez-Muniz, 22 I&N Dec. 1415 (BIA 2000) (overruled by Matter of Vasquez-Muniz, 23 I&N Dec. 207 (BIA 2002))

Possession of a firearm by a felon in violation of section 12021(a)(1) of the California Penal Code is not an aggravated felony under section 101(a)(43)(E) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(E) (1994), because it is not an offense “described in” 18 U.S.C. § 922(g)(1) (1994).

Matter of Vasquez-Muniz, 23 I&N Dec. 207 (BIA 2002)

(1) An offense defined by state or foreign law may be classified as an aggravated felony as an offense "described in" a federal statute enumerated in section 101(a)(43) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43) (1994 & Supp. V 1999), even if it lacks the jurisdictional element of the federal statute.

(2) Possession of a firearm by a felon in violation of section 12021(a)(1) of the California Penal Code is an aggravated felony under section 101(a)(43)(E)(ii) of the Act because it is "described in" 18 U.S.C. § 922(g)(1) (1994).Matter of Vasquez-Muniz, 22 I&N Dec. 1415 (BIA 2000), overruled.

Matter of Bautista, 25 I&N Dec. 616 (BIA 2011)

Attempted arson in the third degree in violation of sections 110 and 150.10 of the New York Penal Law is an aggravated felony under section 101(a)(43)(E)(i) of the Immigration and Nationality Act, 8U.S.C. § 1101(a)(43)(E)(i) (2006), even though the State crime lacks the jurisdictional element in the applicable Federal arson offense. Matter of Vasquez-Muniz, 23 I&N Dec. 207 (BIA 2002), followed.

Misprision of a Felony

Matter of Espinoza, 22 I&N Dec. 889 (BIA 1999)

A conviction for misprision of a felony under 18 U.S.C. § 4 (1994) does not constitute a conviction for an aggravated felony under section 101(a)(43)(S) of the Immigration and Nationality Act, 8U.S.C. § 1101(a)(43)(S) (Supp. II 1996), as an offense relating to obstruction of justice.Matter of Batista-Hernandez, 21 I&N Dec. 955 (BIA 1997), distinguished.

Murder

Matter of M-W-, 25 I&N Dec. 748 (BIA 2012)

Pursuant to the categorical approach, a conviction for the aggravated felony of murder, as defined in section 101(a)(43)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(A) (2006), includes a conviction for murder in violation of a statute requiring a showing that the perpetrator acted with extreme recklessness or a malignant heart, notwithstanding that the requisite mental state may have resulted from voluntary intoxication and that no intent to kill was established.

Obstruction of Justice

Matter of Batista, 21 I&N Dec. 955 (BIA 1997)

(1) The offense of accessory after the fact to a drug-trafficking crime, pursuant to 18 U.S.C. § 3 (Supp. V 1993), is not considered an inchoate crime and is not sufficiently related to a controlled substance violation to support a finding of deportability pursuant to section 241(a)(2)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2)(B)(i) (1994).

(2) The respondent’s conviction pursuant to 18 U.S.C. § 3 establishes his deportability as an alien convicted of an aggravated felony under section 241(a)(2)(A)(iii) of the Act,because the offense of accessory after the fact falls within the definition of an obstruction of justice crime under section 101(a)(43)(S) of the Act, 8 U.S.C.A. §1101(a)(43)(S) (West Supp. 1997), and because the respondent’s sentence, regardless of any suspension of the imposition or execution of that sentence, “is at least one year.”>

Perjury

Matter of Martinez-Recinos, 23 I&N Dec. 175 (BIA 2001)

A conviction for perjury in violation of section 118(a) of the California Penal Code constitutes a conviction for an aggravated felony under section 101(a)(43)(S) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(S) (Supp. V 1999).

Prostitution for Commercial Advantage

Matter of Gertsenshteyn, 24 I&N Dec. 111 (BIA 2007)

(1) The categorical approach to determining whether a criminal offense satisfies a particular ground of removal does not apply to the inquiry whether a violation of 18 U.S.C. § 2422(a) was committed for “commercial advantage” and thus qualifies as an aggravated felony under section 101(a)(43)(K)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(K)(ii) (2000), where “commercial advantage” is not an element of the offense and the evidence relating to that issue is not ordinarily likely to be found in the record of conviction.

(2) The respondent’s offense was committed for “commercial advantage” where it was evident from the record of proceeding, including the respondent’s testimony, that he knew that his employment activity was designed to create a profit for the prostitution business for which he worked.

Rape

Matter of B, -, 21 I&N Dec. 287 (BIA 1996)

The respondent’s conviction for second-degree rape under Article 27, section 463(a)(3) of the Annotated Code of Maryland, for which he was sentenced to 10 years’ imprisonment, constitutes a "crime of violence" under 18 U.S.C. § 16(b) (1994) and, hence, an "aggravated felony" under section 101(a)(43) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43) (1994).

Robbery

Matter of Truong, 22 I&N Dec. 1090 (BIA 1999)

(1) An alien whose June 8, 1987, conviction for second degree robbery was not, at the time of his conviction, included in the aggravated felony definition was not deportable, even after that offense was included in the aggravated felony definition as a crime of violence under the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978, due to its provisions regarding effective dates; however, the alien became deportable upon enactment of section 321(b) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-628 (enacted Sept. 30, 1996) (“IIRIRA”), because that section established an aggravated felony definition that is to be applied without temporal limitations, regardless of the date of conviction.

(2) The term “actions taken” in section 321(c) of the IIRIRA, 110 Stat. at 3009-628, which limits the applicability of the aggravated felony definition of section 321(b), includes consideration of a case by the Board of Immigration Appeals; therefore that section’s aggravated felony definition is applicable to cases decided by the Board on or after the IIRIRA’s September 30, 1996, enactment date.

(3) The Attorney General’s decision inMatter of Soriano, 21 I&N Dec. 516 (BIA 1996; A.G. 1997), remains binding on the Board, notwithstanding decisions in some courts of appeals that have rejected that decision.

Section 212(h) Waivers

Matter of Pineda,, 21 I&N Dec. 1017 (BIA 1997)

(1) Section 348(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, enacted as Division C of the Departments of Commerce, Justice, and State, and the Judiciary Appropriations Act for 1997, Pub. L. No. 104-208, 110 Stat. 3009, _____ (“IIRIRA”), enacted on September 30, 1996, amended section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h) (1994), to add restrictions precluding a grant of a waiver to any alien admitted as a lawful permanent resident who either has been convicted of an aggravated felony since the date of admission or did not have 7 years of continuous residence prior to the initiation of immigration proceedings.

(2) Section 348(b) of the IIRIRA provides that the restrictions in the amendments to section 212(h) of the Act apply to aliens in exclusion or deportation proceedings as of September 30, 1996, unless a final order of deportation has been entered as of such date.

(3) An aggravated felon who had a final administrative order of deportation as of September 30, 1996, would be subject to the restrictions on eligibility for a section 212(h) waiver if his proceedings were thereafter reopened; therefore, his motion to reopen deportation proceedings to apply for adjustment of status in conjunction with a section 212(h) waiver was properly denied.

Matter of Michel, 21 I&N Dec. 1101 (BIA 1998)

(1) Pursuant to 62 Fed. Reg. 10,312, 10,369 (to be codified at 8 C.F.R. § 240.10(a)(1) (interim, effective Apr. 1, 1997), an Immigration Judge must ascertain whether an alien desires representation in removal proceedings.

(2) An alien who has not previously been admitted to the United States as an alien lawfully admitted for permanent residence is statutorily eligible for a waiver of inadmissibility under section 212(h) of the Immigration and Nationality Act (to be codified at 8 U.S.C. § 1182(h)), despite his conviction for an aggravated felony.

Sentence Enhancement

Matter of K-V-D-, 22 I&N Dec. 1163 (BIA 1999)

(1) Where a circuit court of appeals has interpreted the definition of an “aggravated felony” under section 101(a)(43) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43) ( 1994), only for purposes of criminal sentence enhancement, the Board of Immigration Appeals may interpret the phrase differently for purposes of implementing the immigration laws in cases arising within that circuit.

(2) An alien convicted in Texas of simple possession of a controlled substance, which would be a felony under Texas law but a misdemeanor under federal law, is not convicted of an aggravated felony within the meaning of section 101(a)(43)(B) of the Act.Matter of L-G-, 21 I&N Dec. 89 (BIA 1995), affirmed.

Sexual Abuse of a Minor

Matter of Rodriguez-Rodriguez, 22 I&N Dec. 991 (BIA 1999)

The offense of indecency with a child by exposure pursuant to section 21.11(a)(2) of the Texas Penal Code Annotated constitutes sexual abuse of a minor and is therefore an aggravated felony within the meaning of section 101(a)(43)(A) of the Immigration and Nationality Act, 8 U.S.C. §1101(a)(43)(A) (Supp. II 1996).

Matter of Crammond, 23 I&N Dec. 38 (BIA 2001) (vacated byMatter of Crammond, 23 I&N Dec. 179 (BIA 2001))

(1) A conviction for “murder, rape, or sexual abuse of a minor” must be for a felony offense in order for the crime to be considered an aggravated felony under section 101(a)(43)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(A) (Supp. V 1999).

(2) In determining whether a state conviction is for a felony offense for immigration purposes, the Board of Immigration Appeals applies the federal definition of a felony set forth at 18 U.S.C. § 3559(a)(5) (1994).

Matter of Small, 23 I&N Dec. 448 (BIA 2002)

A misdemeanor offense of sexual abuse of a minor constitutes an aggravated felony under section 101(a)(43)(A) of the Immigration and Nationality Act, 8 U.S.C. §1101(a)(43)(A) (2000).

Matter of V-F-D-, 23 I&N Dec. 859 (BIA 2006)

A victim of sexual abuse who is under the age of 18 is a “minor” for purposes of determining whether an alien has been convicted of sexual abuse of a minor within the meaning of section 101(a)(43)(A) of the Immigration and Nationality Act, 8 U.S.C. §§ 1101(a)(43)(A) (2000).

Theft Offenses

Matter of V-Z-S-, 22 I&N Dec. 1338 (BIA 2000)

(1) A taking of property constitutes a “theft offense” within the definition of an aggravated felony in section 101(a)(43)(G) of the Immigration and Nationality Act (“Act”), 8U.S.C. §1101(a)(43)(G) (Supp. IV 1998), whenever there is criminal intent to deprive the owner of the rights and benefits of ownership, even if such deprivation is less than total or permanent.

(2) The respondent’s conviction for unlawful driving and taking of a vehicle in violation of section 10851 of the California Vehicle Code is a “theft offense” under section 101(a)(43)(G) of the Act.

Matter of Bahta, 22 I&N Dec. 1381 (BIA 2000) (Possession of Stolen Property

(1) The respondent’s conviction for attempted possession of stolen property, in violation of sections 193.330 and 205.275 of the Nevada Revised Statutes, is a conviction for an attempted “theft offense (including receipt of stolen property),” and therefore an aggravated felony, within the meaning of sections 101(a)(43)(G) and (U) of the Immigration and Nationality Act, 8 U.S.C. §§1101(a)(43)(G) and (U) (Supp. IV 1998).

(2) The Immigration and Naturalization Service retains prosecutorial discretion to decide whether or not to commence removal proceedings against a respondent subsequent to the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546.

Matter of Garcia-Madruga, 24 I&N Dec. 436 (BIA 2008)

(1) A “theft offense” within the definition of an aggravated felony in section 101(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(G) (2000), ordinarily requires the taking of, or exercise of control over, property without consent and with the criminal intent to deprive the owner of the rights and benefits of ownership, even if such deprivation is less than total or permanent.Matter of V-Z-S-, 22 I&N Dec. 1338 (BIA 2000), clarified.

(2) The respondent’s welfare fraud offense in violation of section 40-6-15 of the General Laws of Rhode Island is not a “theft offense” under section 101(a)(43)(G) of the Act.

Matter of CARDIEL,, 25 I&N Dec. 12 (BIA 2009)

A conviction for receipt of stolen property under section 496(a) of the California Penal Code, with a sentence of imprisonment of at least 1 year, categorically qualifies as a receipt of stolen property aggravated felony conviction under section 101(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(G) (2006).

Transportation of Undocumented Aliens

Matter of Ruiz, 22 I&N Dec. 486 (BIA 1999)

An alien who is convicted of transporting an illegal alien within the United States in violation of section 274(a)(1)(A)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1324(a)(1)(A)(ii) (1994), was convicted of an aggravated felony as defined in section 101(a)(43)(N) of the Act, 8 U.S.C. § 1101(a)(43)(N) (Supp. II 1996), and is therefore deportable under section 241(a)(2)(A)(iii) of the Act, 8 U.S.C. § 1251(a)(2)(A)(iii) (1994), as an alien convicted of an aggravated felony.Matter of I-M-, 7 I&N Dec. 389 (BIA 1957), distinguished.

Continue to Airline Fines Back to Table of Contents
Posted in BIA PRECEDENT TABLE, BIA Precedent Table-1995 to Present, Board of Immigration Appeals | Leave a comment

CA7 finds deprivation of procedural rights when an immigration judge based decision on two hearsay documents

Posted on September 9, 2013 by Mike Baker

Pouhova’s petition for review is GRANTED and CA7 VACATED the Board’s orders affirming the immigration judge’s findings that (1) Pouhova’s testimony was not credible, (2) Pouhova was inadmissible for smuggling, (3) the government showed by clear and convinving evidence that she was removalabe for alien smuggling, and (4) Pouhova did not merit a favorable exercise of discretion. The case is REMANDED to the Board of Immigration Appeals for a new hearing consistent with the opinion. William J. Bauer, Circuit Judge; David F. Hamilton, Circuit Judge and John J. Tharp , Jr., District Court Judge.

MARIA EMILOVA POUHOVA, Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General of the United States, Respondent.
No. 12-1665.

United States Court of Appeals, Seventh Circuit.
Argued December 4, 2012.
Decided August 13, 2013.

Before BAUER and HAMILTON, Circuit Judges, and THARP, District Judge.[*]

HAMILTON, Circuit Judge.

Petitioner Maria Pouhova, a citizen of Bulgaria, has been ordered removed from the United States. She argues she was deprived of her procedural rights when an immigration judge admitted and based his decision on two hearsay documents: a statement taken from a woman who attempted to enter the United States using Pouhova’s Bulgarian passport, and a Department of Homeland Security inspector’s report of his conversation with the woman prepared seven years after it occurred. Pouhova petitions for review of the Board of Immigration Appeals’ decision affirming the immigration judge’s removal order. Although the Federal Rules of Evidence do not apply in removal hearings, there are several substantial reasons why both documents are not reliable and should not have been used without Pouhova’s having an opportunity to cross-examine the declarant or author. We therefore agree with Pouhova that use of both documents violated her procedural rights. The order of removal must be vacated and her case remanded for a new hearing.

I. Factual and Procedural Background

Maria Pouhova is a Bulgarian citizen who entered the United States on a student visa in 1999. She overstayed her visa but married a U.S. citizen and applied for an adjustment of status. Pouhova received a Notice to Appear for removal proceedings in October 2007. It alleged three grounds for removal, but the only one of consequence at this point is a smuggling charge for assisting an alien trying to enter the United States illegally. See 8 U.S.C. § 1227(a)(1)(E)(i).[1]

At her removal hearing, the government presented two documents as its only evidence to support the smuggling charge. The first is a written statement from the woman who attempted to use Pouhova’s Bulgarian passport to enter the United States back in 2000. The woman, who gave the name Boriana Dimova, arrived at O’Hare Airport on June 21, 2000 and gave a statement to an immigration official, Inspector Bryan Weiler. The statement consists of 30 questions by Weiler and Dimova’s responses. The document states that it was taken in English but without an interpreter due to lack of funding. Dimova’s responses indicated that she presented a passport with Pouhova’s information on it and that the information and passport did not belong to her. For our purposes, the key questions and answers were:

Q21: Did anyone assist you in obtaining your passport?

A21: Nataliy. She lives in the U.S.

Q22: What is the name of the person who sold you this passport?

A22: Nataliy sent me it.

Q23: How much did you pay for this passport?

A23: I didn’t pay anything yet.

Q24: Do you still owe money to the people who arranged for you to travel to the United States today?

A24: I will pay Maria Puohova (sic) $1500 later, after I begin working in U.S.

. . .

Q28: Who are your intended contacts in the United States?

A28: Nataliy and Maria Puohova (sic).

The second document is a Department of Homeland Security record, Form I-213, which is a “record of deportable alien.” Like the Dimova statement, it was also prepared by Inspector Weiler, but more than seven years later, on October 25, 2007. It includes Weiler’s account of the grounds for Pouhova’s removability and reports on his 2000 interview with Dimova:

On June 21, 2000, Boriana DIMOVA, the subject’s relative, was issued an Order of Expedited Removal upon arrival at Chicago, IL attempting to enter the U.S. with POUHOVA’s Bulgarian passport and nonimmigrant student visa. DIMOVA stated under oath that POUHOVA mailed her the passport. POUHOVA arranged for DIMOVA’s travel as an impostor to her passport and was to be paid $1500 U.S. dollars by DIMOVA . . . . POUHOVA lost her Bulgarian passport in January 2002, but this contradicts the fact that DIMOVA had it in her possession when apprehended on June 21, 2000. Based on birth certificate data, POUHOVA and DIMOVA appear to be cousins.

Pouhova challenged the admission of the Dimova statement and the Form I-213 as unreliable because Dimova was apparently not fluent in English and no interpreter was available, and as too prejudicial to be admitted without the opportunity to cross-examine Dimova. The government offered to present Weiler as a witness to testify about the circumstances surrounding the interview.

At the first hearing, the judge declined to admit or take any action on the documents or the objection and continued the hearing to give the government time to arrange for Weiler to appear and to make reasonable efforts to locate Dimova, who had been removed to Bulgaria. At the second hearing, the government did not produce either Dimova or Inspector Weiler. Nevertheless, the immigration judge admitted and considered both the I-213 form and the recorded Dimova statement. IJ Decision at 7, 9; App. 17, 19.[2]

Pouhova testified on her own behalf. She denied giving her passport to anyone. Instead, she testified that she lost it but did not discover it was missing until late 2001 or early 2002, after she had married a U.S. citizen and looked for her passport to apply for adjustment of status. She explained that she had been advised to store her passport and other important documents in a special folder in her home. She had not looked in the folder since 1999 because she had other forms of identification and did not use her passport. She also denied knowing of any Boriana Dimova and had no relative with that name. She also testified that she had not heard of the use of her Bulgarian passport until 2004 when U.S. authorities denied her application for adjustment of status. On these points the government’s cross-examination of Pouhova was perfunctory and did not undermine her credibility.

The immigration judge ultimately decided to credit both of the government’s documents and found that Pouhova’s contrary testimony was not credible. The judge found that the government showed by clear and convincing evidence that Pouhova assisted in smuggling an alien into the United States. This finding rendered Pouhova inadmissible and removable. See 8 U.S.C § 1182(a)(6)(E)(i); § 1227(a)(1)(E)(i).[3] It also rendered Pouhova ineligible for discretionary relief from removal in the form of adjustment of status, which would otherwise have been available to her because of her marriage to a U.S. citizen.[4] In the alternative, the immigration judge found that even if she were not inadmissible for smuggling, she would not merit a favorable exercise of discretion and he would deny her adjustment of status.

Pouhova appealed to the Board of Immigration Appeals. In the course of two opinions, the Board affirmed the decision of the immigration judge.[5] The Board’s modified decision held: (a) that the immigration judge’s adverse credibility determination about Pouhova’s testimony was not clearly erroneous, (b) that the admission of the I-213 and the Dimova statement did not violate Pouhova’s procedural rights, (c) that the government met its burden of showing that Pouhova was inadmissible and removable for smuggling, and (d) that Pouhova did not merit a favorable exercise of discretion. Pouhova petitioned for review in this court, arguing that the admission of the two documents violated her procedural rights in removal proceedings.

II. Analysis

Aliens in removal proceedings are entitled to due process of law under the Fifth Amendment. Reno v. Flores, 507 U.S. 292, 306 (1993). Statutory provisions also impose procedural requirements on removal proceedings. See 8 U.S.C. § 1229a(b)(4). Any proceeding that meets the requirements of the statute also satisfies constitutional due process. Rehman v. Gonzales, 441 F.3d 506, 508 (7th Cir. 2006). Because Pouhova does not challenge the constitutional adequacy of the statutory rights, we focus our analysis on those statutory rights. See Malave v. Holder, 610 F.3d 483, 487 (7th Cir. 2010) (focus should be on statutes and relevant regulations).

Under section 1229a(b)(4)(B), an alien in removal proceedings “shall have a reasonable opportunity to examine the evidence against the alien, to present evidence on the alien’s own behalf, and to cross-examine witnesses presented by the Government.” An alien who challenges a removal order by claiming a violation of these rights must show both that the proceeding did not meet these requirements and that she was prejudiced. Apouviepseakoda v. Gonzales, 475 F.3d 881, 885 (7th Cir. 2007).

Evidence in removal proceedings need not conform strictly to the Federal Rules of Evidence, but it must be probative and its admission must be “fundamentally fair.” Barradas v. Holder, 582 F.3d 754, 762 (7th Cir. 2009). The fairness of a piece of evidence depends in part on its reliability. Duad v. United States, 556 F.3d 592, 596 (7th Cir. 2009) (despite flexibility of evidentiary rules in removal proceedings, “evidence must, in the final analysis, be reliable”); see also Aslam v. Mukasey, 537 F.3d 110, 114 (2d Cir. 2008) (fairness in the context of evidence is “closely related to the reliability and trustworthiness of the evidence”) (internal quotations omitted); Anim v. Mukasey, 535 F.3d 243, 256 (4th Cir. 2008) (same).

Because the Board ultimately agreed with the immigration judge’s decision and supplemented that opinion with its own observations, we review both the immigration judge’s and the Board’s decisions. See Sirbu v. Holder, 718 F.3d 655, 658 (7th Cir. 2013). We have jurisdiction to review final orders of removal under 8 U.S.C. § 1252(a). To the extent Pouhova challenges the denial of discretionary relief, we retain jurisdiction to review the constitutional and legal claims she raises in her petition for review. 8 U.S.C. § 1252(a)(2)(D). We review de novo the legal question whether the admission of each document violated Pouhova’s procedural rights in a removal proceeding and, if so, whether those admissions prejudiced her. Gutierrez-Berdin v. Holder, 618 F.3d 647, 651 (7th Cir. 2010).

We conclude that both documents violated Pouhova’s statutory procedural rights. As hearsay, neither document was reliable enough to be fairly admitted without the opportunity for Pouhova to cross-examine either the declarant or the questioner/scribe. The Dimova statement was taken in English without an interpreter, and Pouhova had no opportunity to question either Dimova or Inspector Weiler about Dimova’s English language abilities. The I-213 was written seven years after the conversation it reports on took place, it is inconsistent with the Dimova statement in significant ways, and its sources are unreliable. Because the two unreliable documents were the government’s only evidence of the smuggling charge, their admission without any opportunity for cross-examination of Dimova or Weiler prejudiced Pouhova. We must remand for a new removal hearing.

A. Unreliable Hearsay

1. The Dimova Statement

Both the immigration judge and the Board deemed the Dimova statement properly admissible in Pouhova’s removal proceedings. We disagree. The interview was conducted in English without an interpreter. There was no evidence about Dimova’s English language skills, and Pouhova did not have the opportunity to cross-examine either Dimova or the interviewing officer about Dimova’s ability to participate in the interview.

The Fifth Circuit addressed a similar situation in Hernandez-Garza v. I.N.S., 882 F.2d 945 (5th Cir. 1989), when it considered an ex parte affidavit by a witness who could not read or speak English. The immigration judge did not permit the petitioner to question the agents who took the affidavit about their Spanish skills. The Fifth Circuit held that this denied the petitioner a fair hearing, noting that “the probative value of statements written in a language that the witness can neither read nor speak, absent corroboration, is questionable at best.” Id. at 948 (internal quotations omitted), citing Guzman-Guzman v. I.N.S., 559 F.2d 1149, 1150 (9th Cir. 1977) (written witness statements by “authors who neither spoke nor read the language in which they were written,” which the authors disclaimed at the live hearing, were unfairly admitted in removal hearing, but testimony of agents provided sufficient corroboration). Other courts have found that the reliability of a statement decreases when it reports on a conversation hindered by language barriers. See Gonzalez-Gomez v. I.N.S., 450 F.2d 103, 105 (9th Cir. 1971) (document unreliable where alien could not speak or read English and could not read Spanish, and interviewer’s Spanish skills were unknown).

In the asylum context, we have said that airport interviews “are useful only if they are reliable.” Jamal-Daoud v. Gonzales, 403 F.3d 918, 923 (7th Cir. 2005). An interview may not be reliable where significant language barriers exist, even when a translator is used. Balogun v. Ashcroft, 374 F.3d 492, 504-05 (7th Cir. 2004) (reliability concerns the applicant’s “ability to answer the interviewer’s questions,” for example, “if there are language barriers”), citing Ramsameachire v. Ashcroft, 357 F.3d 169, 180 (2d Cir. 2004) (listing factors for considering reliability of airport interviews, including “if the alien’s answers to the questions posed suggest that the alien did not understand English or the translations provided by the interpreter, the alien’s statements should be considered less reliable”).

The government argues that the statement is sufficiently reliable as hearsay because it was against Dimova’s penal interest. See Matter of Devera, 16 I. & N. Dec. 266, 270 (BIA 1977) (ex parte affidavit admissible where it included statement against penal interest as it would have been admissible under the Federal Rules of Evidence). That argument is not persuasive here for two reasons. First, it is circular. Whether the answers recorded by Inspector Weiler were against Dimova’s penal interest or not says nothing about whether she understood the questions and he understood her answers as she intended them. Second, it is not clear what additional penalties Dimova’s statements implicating Pouhova exposed her to beyond immediate removal, which she already faced.[6] She had already been caught attempting to use the passport and visa of another person. Her further claim that she planned to pay Pouhova $1,500 served to implicate only Pouhova, not Dimova. Cf. Hernandez-Guadarrama v. Ashcroft, 394 F.3d 674, 682 (9th Cir. 2005) (witness “was herself at risk of a felony prosecution under 8 U.S.C. § 1326 because she had previously been deported and had reentered the country illegally. Thus she was not, by any means, a disinterested witness.”). In any event, the uncertainty and lack of testimony about Dimova’s English skills without an interpreter render the report unreliable, whether against penal interest or not. It was not fundamentally fair to admit the statement without an opportunity for Pouhova to question Dimova or Weiler about Dimova’s ability to participate in the interview.

2. Form I-213

The immigration judge gave “full weight” to the I-213, IJ Decision at 9; App. 19, and the Board affirmed, finding that the I-213 was “probative and its use fundamentally fair.” BIA 2012 at 3; App. 4. We disagree with both the Board and the immigration judge.

Form I-213, Record of Deportable Alien, is a DHS form that is typically a record of an immigration inspector’s conversation with an alien who will probably be subject to removal. See Rosendo-Ramirez v. I.N.S., 32 F.3d 1085, 1088 (7th Cir. 1994). As a general rule, a Form I-213 is treated as inherently trustworthy and admissible even without the testimony of the officer who prepared it. Barradas v. Holder, 582 F.3d 754, 763 (7th Cir. 2009), citing In re Ponce-Hernandez, 22 I. & N. Dec. 784, 785 (BIA 1999).

In a specific case though, a particular Form I-213 may not be inherently reliable. For example, it may contain information that is known to be incorrect, it may have been obtained by coercion or duress, it may have been drafted carelessly or maliciously, it may mischaracterize or misstate material information or seem suspicious, or the evidence may have been obtained from someone other than the alien who is the subject of the form. See Barradas, 582 F.3d at 763-64 (listing reasons I-213 may not be inherently reliable); Rosendo-Ramirez, 32 F.3d at 1088 (“Since the I-213 is supposed to be a record of a conversation with an alien, courts have evaluated its probative value by considering whether there is evidence that the form is inaccurate or that the information recorded in it was obtained by someone other than the alien himself.”).

The I-213 here exhibits several shortcomings that undermine the usual presumption of reliability, none of which were addressed by the Board. First, the seven-year lapse between the reported conversation and the preparation of the I-213 calls the form’s “inherent reliability” into serious doubt. The government argues that an I-213 is inherently reliable without its author’s testimony because it is comparable to a record of a regularly conducted activity under the hearsay exception in Federal Rule of Evidence 803(6). See Barradas, 582 F.3d at 763 (reasoning that where statement was recorded by DHS agent in a public record, the absent agent “cannot be presumed to be an unfriendly witness or other than an accurate recorder,” and that the I-213 was intended to serve purely as an impartial administrative record) (internal quotations omitted). Such a record loses its credibility if it is prepared long after the events or statements it purports to capture. See Fed. R. Evid. 803(6)(A) (excepting from the general prohibition of hearsay evidence records of a regularly conducted activity only if “the record was made at or near the time by—or from information transmitted by—someone with knowledge”) (emphasis added); see also United States v. Lemire, 720 F.2d 1327, 1350 (D.C. Cir. 1983) (“The lengthy interval between the time the memorandum was written, and some of the events it describes (one year and ten months) does not meet the exception’s `timeliness requirement,’ and therefore it is not admissible under Rule 803(6).”). Although removal proceedings are not held strictly to the standards of the Federal Rules of Evidence, of course, the staleness of this I-213 undermines the presumption of reliability. The delay rendered the report too susceptible to errors, material omissions, and mistaken insertions.

This I-213 in fact exhibited strong indications of such inaccuracies: it differs from the Dimova statement in several important respects. The I-213 states that Dimova said that Pouhova mailed her the passport, but the Dimova statement said that “Nataliy sent me it.” The I-213 claims that Pouhova arranged for Dimova’s travel, but the Dimova statement does not include a direct statement about who arranged for her travel. Rather, the I-213 appears to have read a great deal into Dimova’s recorded response to the question “Do you still owe money to the people who arranged for you to travel to the United States today?” Dimova answered, “I will pay Maria Puohova [sic] $1500 later . . . .” That non-responsive answer does not indicate that Pouhova arranged for her travel; it indicates only that Dimova planned to pay her. The I-213 also asserts that Pouhova and Dimova were cousins, but there is no support for that assertion in Dimova’s answers to questions and no other apparent basis for it. (Pouhova testified that Dimova is a common family name in Bulgaria.) All of these discrepancies indicate at the very least that the form was “drafted carelessly” and is not inherently reliable. See Barradas, 582 F.3d at 763.

There is a final fault with the I-213’s reliability—its sources. First, it appears to rely in relevant part on Dimova’s airport statement, which we have already determined was unreliable because it was taken without a translator and no one was available to testify about Dimova’s ability to participate in the interview. Second, most I-213s are records of conversations with the alien who is the subject of the removal proceedings, and they report the conversations as evidence of that alien’s removability. This I-213 recorded a conversation not with Pouhova, who was the subject of the form and the removal proceedings, but with Dimova. This is a significant difference because neither party to the conversation was present at Pouhova’s removal proceedings. In a more typical case, the subject herself will have some basis to contest the statements in the document. She will have been present for the conversation that was reported.

We have not found, and the parties have not cited, any examples of a court affirming the admission of an I-213 under circumstances like these. Basing a removal decision on such a document when neither the author nor the interviewee is available for cross-examination seriously erodes the fairness of the proceeding. Cf. Rosendo-Ramirez, 32 F.3d at 1088 (I-213 admissible despite petitioner’s objections that information it contained was obtained from others in group interview where petitioner could have made the statements himself and presented no evidence that he did not, and where recording officer was present for cross-examination at the hearing). This I-213 therefore was not inherently reliable because it was recorded seven years late, its critical information was obtained from someone other than the subject of the form, and it contradicts the other written account of its source.

B. “Reasonable Efforts”

Despite the unreliability of both documents, the government argues that the Board correctly found that both were fairly admitted because the government made “reasonable efforts” to locate both witnesses. It argues that we should join other circuits in finding that an absent witness’s statements may be fairly admitted in a removal proceeding when the government has made reasonable but unsuccessful efforts to locate the witness. See, e.g., Ocasio v. Ashcroft, 375 F.3d 105, 107 (1st Cir. 2004) (“the INS may not use an affidavit from an absent witness unless the INS first establishes that, despite reasonable efforts, it was unable to secure the presence of the witness at the hearing”) (internal quotations omitted); see also Saidane v. I.N.S., 129 F.3d 1063, 1065 (9th Cir. 1997); Olabanji v. I.N.S., 973 F.2d 1232, 1234 (5th Cir. 1992); Dallo v. I.N.S., 765 F.2d 581, 586 (6th Cir. 1985); Matter of Devera, 16 I. & N. Dec. 266, 269 (BIA 1977). Our circuit has not formally adopted this rule. See Malave v. Holder, 610 F.3d 483, 487 (7th Cir. 2010) (recognizing that “[s]everal circuits have concluded that, when an alien wants to cross-examine a witness, the agency not only must issue a subpoena but also must use reasonable efforts to enforce that subpoena,” but finding no need to decide whether to adopt the standard because the government had not met it).

We have serious doubts about this “reasonable efforts” theory, at least as it might apply to this case, where the two hearsay documents bear so many indicia of unreliability. We do not see why making an unsuccessful effort to locate a witness renders the unreliable hearsay evidence any more reliable or its use any fairer than without such effort.

But we need not resolve this question here. Even if we assume that “reasonable efforts” to locate the witnesses would suffice, the government failed to make such reasonable efforts here. Cf. Malave, 610 F.3d at 487. With regard to Inspector Weiler, the government admitted that it chose not to call him, given circumstances that the government chose not to explain. AR 220-21. “Choosing” not to call him does not amount to “reasonable efforts” to secure his testimony, and any such efforts do not redeem the admission of this I-213. Accord, Saidane, 129 F.3d at 1065 (where “the INS made no effort to call an admittedly available witness and relied instead on that witness’s damaging hearsay affidavit,” admission of the affidavit rendered hearing fundamentally unfair). With regard to Dimova, the government checked various databases and found no indication that she had returned to the United States. Even if the government made reasonable efforts to locate her, though, that is not the relevant question. Rather, the government needed to locate only a witness who could testify to her language skills during the interview, which clearly included Inspector Weiler. Its efforts to ensure that Dimova had not reentered the United States were not sufficient where it also failed to make reasonable efforts to have Weiler testify.

In sum, it was not fundamentally fair to admit either the Dimova statement or the I-213. Both were unreliable hearsay, and Pouhova was denied a reasonable opportunity to crossexamine both witnesses. Even if we agreed with the “reasonable efforts” rule, the government failed to make reasonable efforts to secure the presence of Inspector Weiler or of any witness who could speak to Dimova’s ability to participate in the interview.

C. Prejudice

These two unreliable hearsay documents were the government’s only evidence supporting the smuggling charge and the only basis for questioning Pouhova’s credibility. Their admission seriously prejudiced Pouhova’s ability to show she was not removable for smuggling. Cf. Pronsivakulchai v. Gonzales, 461 F.3d 903, 908-09 (7th Cir. 2006) (denial of reasonable opportunity to present evidence in removal proceedings prejudiced petitioner because it affected the outcome of her hearing). Pouhova was thus deprived of her statutory rights under 8 U.S.C. § 1229a(b)(4)(B).

D. Remaining Issues

Because Pouhova was denied a “reasonable opportunity” to cross-examine the witnesses against her in violation of 8 U.S.C. § 1229a(b)(4)(B) and the evidence admitted against her was fundamentally unfair, we must remand for a new hearing that comports with her constitutional, statutory, and regulatory procedural rights. See Cinapian v. Holder, 567 F.3d 1067, 1074 (9th Cir. 2009) (“Remand is generally necessary when an alien is prevented from reasonably presenting her case or when an IJ’s actions prevent the introduction of significant testimony.”).

We also vacate the Board’s findings of Pouhova’s credibility, removability, inadmissibility, and ineligibility for discretionary relief. All of those findings were based on the evidence that was improperly admitted. The finding that she was removable and inadmissible on account of the smuggling charge cannot stand if the government’s evidence supporting the charge was admitted unfairly. The finding that Pouhova did not merit a favorable exercise of discretion must also be vacated because the evidentiary errors made by the immigration judge affected the entire hearing process and outcome, including the discretionary determination.[7]

III. Conclusion

Pouhova’s petition for review is GRANTED and we VACATE the Board’s orders affirming the immigration judge’s findings that (1) Pouhova’s testimony was not credible, (2) Pouhova was inadmissible for smuggling, (3) the government showed by clear and convincing evidence that she was removable for alien smuggling, and (4) Pouhova did not merit a favorable exercise of discretion. The case is REMANDED to the Board of Immigration Appeals for a new hearing consistent with this opinion.

[*] Hon. John J. Tharp Jr. of the Northern District of Illinois, sitting by designation.

[1] The other two grounds are no longer at issue. Pouhova conceded that she was inadmissible for failing to maintain non-immigrant status after her student visa expired, see 8 U.S.C. § 1227(a)(1)(C)(i), but her marriage to a U.S. citizen would permit a waiver of that problem. The immigration judge found that the government failed to prove that Pouhova falsely held herself out as a U.S. citizen in a mortgage loan application, see 8 U.S.C. § 1227(a)(3)(D)(i), and the government did not contest that finding further.

[2] The immigration judge’s decision (“IJ Decision”), the Board’s 2010 decision (“BIA 2010”), and the Board’s 2012 decision (“BIA 2012”) can be found in the Appellant’s appendix. The appendix is not clearly paginated, so we cite both the pages of each decision and the pages in the appendix as a whole.

[3] Inadmissibility and removability are distinct designations under the immigration laws. An alien is “inadmissible” if the government may prevent her from entering or reentering the United States or if she is present in the United States without having been lawfully admitted. See 8 U.S.C. § 1182(a) (grounds for inadmissibility). An alien is “removable” if she has violated the immigration laws, even if she had been lawfully admitted. See 8 U.S.C. § 1227(a) (grounds for removability).

[4] Although Pouhova conceded inadmissibility for not maintaining her student visa, adjustment of status would still be available to her because of her marriage to a U.S. citizen, so long as the judge found that she merited a favorable exercise of discretion. See 8 U.S.C. § 1255(c)(2) (adjustment of status not available to those who work without authorization or who are in unlawful immigration status, unless the alien is an immediate relative under 8 U.S.C. § 1151(b) (which includes spouse) of a U.S. citizen); 8 U.S.C. § 1229a(c)(4)(A).

[5] The Board issued an opinion on November 26, 2010, but after Pouhova sought judicial review the government moved this court to remand the case to the Board for further clarification of whether the proceedings violated Pouhova’s process rights. We granted the motion and remanded to the Board. Pouhova v. Holder, Order, No. 10-3864 (7th Cir. May 13, 2010). On remand the Board affirmed its prior decision and supplemented it in a modified opinion issued on February 27, 2012. This procedural history is not relevant to the present issues. We consider the ultimate determinations of the Board as expressed in both opinions.

[6] Dimova was subject to expedited removal proceedings and was removed the day after her interview. In the expedited removal process, an alien may be charged with an additional ground of inadmissibility for misrepresentation, 8 C.F.R. § 235.3(b)(3), but that would not amount to an additional punishment because she was already removable.

[7] The government argues that we do not have jurisdiction to review the determination that she was not eligible for discretionary relief. We do not have jurisdiction to review a discretionary denial of adjustment of status, see 8 U.S.C. § 1252(a)(2)(B), but “[o]ur jurisdiction is not so limited, however, when it comes to `constitutional claims or questions of law’ that are related to the denial of an application for adjustment of status.” Wroblewska v. Holder, 656 F.3d 473, 477 (7th Cir. 2011), citing 8 U.S.C. § 1252(a)(2)(D). Pouhova’s proceedings violated her statutory procedural rights. She raised that legal claim in her petition for review. Although the immigration judge’s alternative holding that she would not merit a favorable exercise of discretion was a discretionary decision, it was based on evidence that was admitted in legal error. We thus have jurisdiction to review the discretionary determination to the extent that we must vacate it for reconsideration upon remand for proceedings that conform to the statutory requirements. See Tun v. Gonzales, 485 F.3d 1014, 1016 (8th Cir. 2007) (in case where court found evidentiary due process violations, “[w]e need not address the parties’ arguments as to whether we have jurisdiction to review the Board’s denial of voluntary departure. Our remand on the other issues moots the Board’s ruling on voluntary departure and requires a reopening of the record.”).

Posted in 7th Circuit, 7th Circuit Cases- Aliens, CA7 finds deprivation of procedural rights when an immigration judge based decision on two hearsay documents, hearsay document, procedural rights | Leave a comment

CA7 Remands Withholding Claim to BIA for HIV Positive Gay Man from Mexico

Posted on September 9, 2013 by Mike Baker

Camarena, a Mexican citizen, was admitted to the U.S. for permanent residence in 1977, at age 10. He did not become a citizen. After a felony conviction for indecent solicitation of a minor, his permanent-residence status was revoked, and he was ordered removed. Camarena is homosexual and HIV positive and claims that gays are persecuted in Mexico and that gays infected by HIV face extra risk. Although he is not eligible for asylum, he applied for withholding of removal under 8 U.S.C. 1231(b)(3), and relief under the Convention Against Torture. The immigration judge granted his application, finding, on the basis of statistics and expert testimony that Camarena probably would be killed or injured in Mexico as a result of his sexuality and disease. The BIA remanded; the IJ adhered to his position. The BIA then reversed and, after a remand, adhered to its position. The BIA accepted the IJ’s findings of historical fact but disagreed about the risk implied by those facts. The Seventh Circuit again remanded, for the BIA to consider, not whether aggregate data imply that Camarena is likely to be killed, but whether the IJ clearly erred in finding that he is more likely than not to be persecuted.

Rosiles-Camarena v. Holder11-3086-2013-08-21

MIGUEL A. ROSILES-CAMARENA, Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General of the United States, Respondent.


No. 11-3086.

United States Court of Appeals, Seventh Circuit.

Argued March 26, 2012.

Decided August 21, 2013.

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

EASTERBROOK, Chief Judge.

Miguel Rosiles-Camarena, a citizen of Mexico, was admitted to the United States for permanent residence in 1977, when he was ten years old. He did not use his opportunities to become a citizen. Following his felony conviction for indecent solicitation of a minor, his permanent-residence status was revoked, and he has been ordered removed to Mexico.

Rosiles-Camarena is homosexual and HIV positive. He contends that gays are persecuted in Mexico (at least outside of cosmopolitan Mexico City) and that gays infected by HIV face extra risk. Although he is not eligible for asylum (the deadline for seeking that relief expired long ago), he applied for withholding of removal under 8 U.S.C. §1231(b)(3), and relief under the Convention Against Torture, implemented by 8 C.F.R. §§ 1208.16 to .18. To be eligible for either benefit, an alien must show a clear probability that persecution (for withholding of removal) or torture (for the Convention) is more likely than not in the alien’s native country.

The immigration judge and the Board of Immigration Appeals disagree about whether Rosiles-Camarena satisfies these requirements. The IJ initially granted his application for relief under both the statute and the Convention, finding on the basis of statistics and expert testimony that Rosiles-Camarena probably would be killed or injured in Mexico as a result of his sexuality and disease. The BIA remanded, but the IJ adhered to his position on remand. The BIA then reversed and, after a remand (by consent) from this court, adhered to its position. The most recent decision states that “[t]he probability of future harm is a legal question that we review de novo” and that, “[i]n assessing the probability of harm de novo, we may give different weight to the evidence than did the Immigration Judge.” The BIA proceeded to do just that. It accepted all of the IJ’s findings of historical fact but disagreed with the IJ about the risk implied by those facts.

For example: the IJ found that Rosiles-Camarena is at substantial risk because 148 persons were murdered in Mexico, between 1995 and 2006, because of their sexual orientation. But the Board observed that this amounts to 12 or 13 killings a year in a population exceeding 110 million, at least 2% of which is homosexual, making it unlikely (a risk of no more than 1 in 100,000) that any given gay man would be killed any given year. Expert testimony establishing that “attacks on homosexuals are frequent” does not show the magnitude of risks, any more than expert testimony that “auto accidents are frequent” would imply that a given driver (even one in a high-risk group, such as men under 25) is more likely than not to be injured. The Board stated that the IJ did not commit clear error in crediting the statistics and the expert’s testimony but added: “as atrocious as it is to have 12 or 13 such killings per year, that fact does not show a clear probability that [Rosiles-Camarena] will be killed or otherwise persecuted.” The Board treated the risk of future harm as a matter of legislative fact, and it took the view that decisions on mixed (or “ultimate”) questions are open to plenary decision. Rosiles-Camarena contends that the Board made a legal error by engaging in this kind of review.

He also contends that the Board’s decision lacks substantial evidence in the record, but we lack jurisdiction to address that subject. He has been convicted of an aggravated felony, and as a result 8 U.S.C. §1252(a)(2)(C) forbids judicial review of the removal decision, except to the extent that the alien presents legal arguments (statutory or constitutional). See 8 U.S.C. §1252(a)(2)(D). A contention that the agency’s decision is not supported by enough evidence is not a “legal” argument for this purpose. See Jiménez Viracacha v. Mukasey, 518 F.3d 511 (7th Cir. 2008); Paez Restrepo v. Holder, 610 F.3d 962 (7th Cir. 2010). Section 1252(a)(2)(C) applies to applications for relief based on §1231(b)(3). See Moral-Salazar v. Holder, 708 F.3d 957 (7th Cir. 2013). Although Moral-Salazar expresses a reservation for CAT claims, we need not explore in this litigation what sort of arguments under CAT §1252(a)(2)(C) allows us to consider.

A regulation specifies the extent to which the Board may review or supplement factual decisions by immigration judges. It provides:

(i) The Board will not engage in de novo review of findings of fact determined by an immigration judge. Facts determined by the immigration judge, including findings as to the credibility of testimony, shall be reviewed only to determine whether the findings of the immigration judge are clearly erroneous.

(ii) The Board may review questions of law, discretion, and judgment and all other issues in appeals from decisions of immigration judges de novo.

…

(iv) Except for taking administrative notice of commonly known facts such as current events or the contents of official documents, the Board will not engage in factfinding in the course of deciding appeals. A party asserting that the Board cannot properly resolve an appeal without further factfinding must file a motion for remand. If further factfinding is needed in a particular case, the Board may remand the proceeding to the immigration judge or, as appropriate, to the Service.

8 C.F.R. §1003.1(d)(3). An argument that the Board has exceeded the scope of review permissible under this regulation is a legal one, for the purpose of §1252(a)(2)(D). See Rotinsulu v. Mukasey, 515 F.3d 68, 72 (1st Cir. 2008).

Matter of V- K-, 24 I&N Dec. 500 (2008), on which the Board relied here, concludes that §1003.1(d)(3)(i) does not prevent it from disagreeing with an IJ’s predictions about the likelihood of future harm. V- K- gives two principal reasons. First, clause (ii) authorizes the Board to “review questions of law, discretion, and judgment”—and if the probability of harm is an issue of fact, it is also one of “law” (to the extent the Board must choose “how probable is probable enough?”) and of “judgment” (because evaluating the probability of harm requires the application of judgment to historical facts). Second, the Board observed that the explanation issued with the adoption of §1003.1(d)(3) reveals that the resolution of a mixed question of law and fact is not itself a “fact” for the purpose of clause (i). The commentary stated that clause (ii) covers “judgments as to whether the facts established by a particular alien amount to `past persecution’ or a `well founded fear of persecution.'” 67 Fed. Reg. 54,878, 54,890 (Aug. 26, 2002).

The first circuit has held that the approach articulated in V- K- is within the Board’s authority. See Rotinsulu, 515 F.3d at 73; Sicaju-Diaz v. Holder, 663 F.3d 1, 5 (1st Cir. 2011). The third circuit, by contrast, set aside V- K- on petition for review. Kaplun v. Attorney General, 602 F.3d 260, 269-71 (3d Cir. 2010) (CAT). In En Hui Huang v. Attorney General, 620 F.3d 372, 381-87 (3d Cir. 2010), it applied Kaplun to applications for withholding of removal. Four other circuits have agreed with the third. See Hui Lin Huang v. Holder, 677 F.3d 130 (2d Cir. 2012); Turkson v. Holder, 667 F.3d 523 (4th Cir. 2012); Ridore v. Holder, 696 F.3d 907 (9th Cir. 2012); Zhou Hua Zhu v. Attorney General, 703 F.3d 1303 (11th Cir. 2013). The third circuit concluded that the Board is entitled to adopt an independent view about whether a potential harm identified by an IJ amounts to “persecution” or “torture,” but that an IJ’s predictions (which it called the “present probability of a future event”)—such that a particular harm is “likely” should an alien return to his native land—are “facts” under clause (i), and the Board’s role is limited to identifying clear error by the IJ.

The Board’s decision in our case adds some rationales in the course of explaining why it finds Kaplun and En Hui Huang unpersuasive. The Board’s principal concern is that its legal views won’t have much significance if all predictions are facts. It observed that “`predictive’ findings, particularly regarding the level of harm that is likely to be inflicted, may preordain resolution of the legal question regarding whether such harm rises to the level of persecution or torture.” The Board added: “any such predictive findings are likely to be based on written reports of country conditions over which a trier of fact has no particular expertise or advantage, in contrast to issues of credibility, resolution of conflicting testimony, or questions of historical fact.”

In other words, the Board thought that the category of predictions identified by the third circuit often concerns legislative rather than adjudicative facts. A sound prediction depends on country conditions, not (necessarily) on facts unique to the alien. For example, Rosiles-Camarena has lived in the United States since he was 10 and has visited Mexico only briefly. Many of the IJ’s predictions concern conditions in Mexico. The Board thinks it unacceptable to have one IJ assert that conditions in Mexico are horrible, while another deems them fine, and to have both conclusions immune to effective review.

Immigration judges display substantial disparity in evaluating claims for asylum or withholding of removal. See Jaya Ramji-Nogales, Andrew I. Schoenholtz & Philip G. Schrag, Refugee Roulette: Disparities in Asylum Adjudication, 60 Stan. L. Rev. 295 (2007). The Board thinks that it is entitled to curtail IJs’ divergent approaches and believes that it can do so by determining whether particular countries are, or are not, hostile to particular political or social groups. Indeed, we have urged the Board to make categorical decisions. E.g., Banks v. Gonzales, 453 F.3d 449, 453-55 (7th Cir. 2006); Xiu Ling Chen v. Gonzales, 489 F.3d 861, 862 (7th Cir. 2007); Chun Hua Zheng v. Holder, 666 F.3d 1064, 1068 (7th Cir. 2012). The Board fears that, under Kaplun and similar decisions, every IJ may maintain a personal view about the risks in each nation. Both the Board and the courts of appeals (reviewing it) would have their hands tied. Rosiles-Camarena would benefit from such a limit on review, but aliens whose claims are denied by other IJs would lose; neither the Board nor a court of appeals could conclude that country conditions are more hazardous than the IJ found.

The Board has interpreted §1003.1(d)(3)(i) in a way that it believes makes clauses (i) and (ii) harmonious by relying on the longstanding distinctions between adjudicative and legislative facts, and between historical (case-specific) facts and those aspects of discretion or judgment that concern country-wide conditions—subjects on which the Board thinks that the United States should be able to speak with one voice, rather than through a cacophony of immigration judges. The problem is that the Board’s arguments would be better as reasons to revise the regulation than as reasons to interpret it differently from the similar language that governs relations between federal trial and appellate courts.

Appellate courts are bound by Fed. R. Civ. P. 52(a)(6), which says that district judges’ findings of fact must not be set aside unless clearly erroneous. See also Anderson v. Bessemer City, 470 U.S. 564 (1985). Rule 52(a)(6) may have been the inspiration for §1003.1(d)(3)(i). The Rule does not allow plenary appellate review of district judges’ characterizations based on historical facts. A finding on an “ultimate” fact (a conclusion based on the application of legal rules to historical facts) often is treated as one of fact. See, e.g., Pullman-Standard v. Swint, 456 U.S. 273 (1982) (whether the plaintiff is a victim of “discrimination” is a question of fact); Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709 (1986) (whether the plaintiff is a “seaman” is a question of fact). When a decision is person-specific, there is rarely a good reason for having three judges substitute their views for the assessment of the trial judge. See, e.g., Mars Steel Corp. v. Continental Bank N.A., 880 F.2d 928, 933-34 (7th Cir. 1989) (en banc); Mucha v. King, 792 F.2d 602, 605-06 (7th Cir. 1986). When a decision depends on the characteristics of non-litigants, however, and establishes a rule with broad scope, the appellate role can be more substantial. For example, in American Needle, Inc. v. National Football League, 560 U.S. 183 (2010), the Supreme Court gave no weight to a district judge’s conclusion that the National Football League should be characterized as a single firm for the purpose of antitrust law. But even that sort of review, which concerns legal consequences, differs from an entitlement to make an independent appellate decision on facts just because they are “legislative” in nature.

Kaplun observed that many predictions are facts, in the sense that they rest on subsidiary facts and can be true or false. It gave this example: “It is likely that it will take less than 3 hours to drive the 100 miles to grandmother’s house next week.” 602 F.3d at 269. Likewise, a medical prediction about whether a victim of injury will recover is factual, even though it rests on the application of medical knowledge to subsidiary facts. Id. at 270. These illustrations show how per-son-specific circumstances (adjudicative facts) can give rise to predictions that also are sensibly treated as facts. That is as true when a prediction depends on country conditions as when it depends on what happened to a particular alien. We therefore agree with Kaplun and similar decisions.

Perhaps the Board’s view that it may make independent decisions about predictions is a consequence of giving itself too little leeway to find IJs’ predictions clearly erroneous. A federal court of appeals would be inclined to think it a clear error, correctible under Rule 52, for a district judge to say that a 1-in-100,000 chance of death meets a more-likely-than-not burden of persuasion. But that’s not what the Board did. Instead it claimed a right to substitute its judgment for that of the IJ without finding a clear error. That is a mistake under the regulation. A court is limited to the agency’s stated grounds of decision and cannot enforce an order on a basis that the agency did not include among its reasons. Our task, having corrected a legal error, is to remand to the Board rather than make our own decision. See, e.g., Gonzales v. Thomas, 547 U.S. 183 (2006).

To say that the regulation leaves the Board free to declare an IJ’s findings clearly erroneous is not at all to say that it would be appropriate for the Board to do so in this case. For although we have mentioned so far only the statistical risk of death for homosexuals as a group, Rosiles-Camarena contends that he is at greater risk. He is not only gay and HIV positive but also “out” and planning to live openly with his partner. He contends, and the IJ found, that his family has disowned him and will not offer any support. He adds that, because he has lived in the United States most of his life and does not know contemporary Mexican customs, he will find it hard to avoid attracting attention from persons who might do him harm. And he stresses that injuries (and deprivations of economic opportunities) short of death may amount to persecution. The question for the Board on remand is thus not whether aggregate data imply that Rosiles-Camarena is likely to be killed, but whether the IJ clearly erred in finding that he is more likely than not to be persecuted. That question is for the Board in the first instance; we do not express an opinion on it.

The petition for review is granted, and the matter is remanded to the Board for proceedings consistent with this opinion.

Posted in 7th Circuit, 7th Circuit Cases- Aliens, CA7 Remands Withholding Claim to BIA for HIV Positive Gay Man from Mexico, HIV Positive Gay Man from Mexico, withholding of removal | Leave a comment