Monday, June 22, 2015

Matter of Pena - the Ongoing Battle Over the Word "Admission"

In the last month, the Board has published several new decisions that continue to tweak the definition of "admission" and, in the meantime, have seemingly changed the rules related to eligibility for relief for individuals accused of obtaining the residency by fraud.

When a person is accused of having obtained the permanent residence through fraud, the BIA has for more than a decade held that the person has not been "lawfully admitted for permanent residence" and thus is not eligible for cancellation of removal as a permanent resident or for a waiver under INA 237(a)(1)(H).  See Matter of Koloamatangi, 23 I&N Dec. 548 (BIA 2003).

But last month, the BIA issued its precedential decision in Matter of Agour, 26 I&N Dec. 566 (BIA 2015), holding that an immigrant who had been accused of adjusting his status through a fraudulent marriage was nevertheless lawfully admitted for permanent residence and could apply for a waiver under INA 237(a)(1)(H).  The Board did not mention Koloamatangi, although Board member Roger Pauley observed in his dissent that the majority had, in essence, decided that waivers under INA 237(a)(1)(H) were available to excuse "not only fraud at the time of entry, but also fraud at the time of adjustment."

Then last week, in Matter of Pena, 26 I&N Dec. 613 (BIA 2015) the BIA issued a decision discussing how lawful permanent residents returning from a trip abroad are to be charged.  In its final paragraph, the majority seemed to reaffirm Koloamatangi, writing that
"If the DHS can meet its burden of proving that the respondent is deportable as an alien who acquired lawful permanent resident status through fraud, then in terms of available relief from removal, the respondent will be in the same position he would have been in if he had never obtained such status."
How can the Board hold in Matter of Agour that an immigrant charged with fraud is eligible for a waiver under INA 237(a)(1)(H) but only a month later hold that he is not?  Neither decision references the other and neither is well-explained.

We represent immigrants accused of obtaining their status through fraud. Please feel free to get in touch if you have an appeal or immigration court case that raises these issues.

Tuesday, June 2, 2015

BIA Planning to Add Two Members

From Dan Kowalski at Lexis: 
"Advance Copy of Interim Rule to be published in the June 3, 2015 Federal Register:"This rule amends the Department of Justice regulations relating to the organization of the Board of Immigration Appeals (Board) by adding two Board member positions, thereby expanding the Board to 17 members." 

Wednesday, July 2, 2014

Lessons to be Learned About Asylum Fraud From Matter of P-S-H-

On July 1, 2014, the BIA issued a precedent decision in Matter of P-S-H-, a case about what the government must prove to revoke a grant of asylum based on fraud in the application. While the Board's conclusion is not controversial (they hold the government does not have to prove actual knowledge of the fraud), the facts of the case provide a helpful reminder for asylum attorneys.

I went to law school hoping to help people, and the first asylum case I worked on as a law clerk truly felt like an opportunity to save someone's life.  I dove into the law head-first, read as much as I could and decided immediately upon leaving law school that I wanted to practice asylum law.  But what was not taught in law school was how often people engage in fraud in this process.  This can range from what may be considered relatively minor (exaggerating the number of times one was beaten up, for example) to very extreme (like concocting an entire story or fake documents out of whole cloth).  Even people who might have had a legitimate asylum claim to start with at times completely ruin their case by either adding on to their story or creating fake documents to help try to "spice up" their claim.

As attorneys, we must be vigilant in trying to avoid fraud in the asylum process. This is because when our clients are telling the truth, we need the DHS and the Immigration Judges to believe them.  An Immigration Judge who sees rampant fraud in asylum applications over and over again is less likely to give a fair shot to the applicant who is genuine. We also have an ethical duty to not assist our clients in fraudulent applications.

Although the attorneys in P-S-H- were actually convicted of asylum fraud, here are two examples of conduct in that case that every asylum attorney should take note of:

  1. In P-S-H- the applicant received two affidavits from individuals in India that had identical wording. The attorney told the applicant to "obtain another affidavit from one of the individuals because it had 'to be worded differently.'" As an attorney, if you receive evidence from your client that looks suspicious, you must follow up. But the solution is not to just cover up the conspicuous parts.  You must have a frank discussion with your client about why they have two affidavits with identical wording. There could be an innocent explanation, but it may also be a sign that their claim is not legitimate.
  2. Another statement from a witness in P-S-H- said the individual had stayed for a month in the same hospital as the applicant, but the DHS determined the hospital only permitted overnight stays. An asylum attorney will not always know the hours of a hospital in India, but the client here should have known.  Friends and family sometimes unilaterally try to bolster a person's asylum claim by adding details.  When you receive documents from your client's friends and family, you must grill your client about the details.  
A finding of fraud in the asylum context can lead to being barred for life from the United States. For this reason, it is incumbent on every asylum attorney to have a frank discussion with their client about fraud.


Wednesday, April 9, 2014

Matter of Sierra Clarifies Attempted Possession of Stolen Vehicle is Not an Aggravated Felony

In a new published decision, the BIA has held that to qualify as a "theft offense" for purposes of determining whether a conviction is an Aggravated Felony, the criminal statute must require an "intent to deprive the owner of rights and benefits of ownership" and that attempted possession of a stolen vehicle under Nevada law did require an intent to deprive.  Thus, because the criminal statute only required proof that the recipient had a "reason to believe" the property was stolen, that intent was not sufficient to qualify as a "theft offense" and the conviction was not an Aggravated Felony.  Matter of Sierra, 26 I&N Dec. 288 (BIA 2014)

Matter of C-J-H- Concludes Refugees Cannot Re-Adjust Their Status

In a precedent decision on March 27, 2014, the Board published its decision in Matter of C-J-H-, holding that a person whose status has been adjusted from asylee to lawful permanent resident cannot subsequently readjust status under section 209(b) of the Immigration and Nationality Act, 8 U.S.C. § 1159(b) (2012).  The three-member decision was written by Board Member Garry Malphrus.

Although the hold on whether 209(b) allows re-adjustment of status is not controversial, commentary from the Board about whether adjustment of status is an "admission" seems to directly contradict dicta from the Board's recent decision in Matter of Chavez Alvarez, 26 I&N Dec. 274 (BIA 2014).  As we wrote at the time Matter of Chavez-Alvarez was published, the Board there openly acknowledged that the Circuit Courts had disagreed with the BIA's view that adjustment of status is an "admission." However, in Matter of Chavez-Alvarez, the Board justified its position by pointing out that of all the Circuit Court decisions that have rejected the Board's view "only one" was "in the context of an alien’s removability under section 237(a) of the Act, rather than eligibility for relief from removal."  And the Board said that at least in the context of removability, as compared to eligibility for removal, it would be "absurd" if adjustment of status were not considered an admission.

Matter of C-J-H- provides the perfect counter-point.  Less than a month after Matter of Chavez-Alvarez, the Board has published a decision reaffirming its view that even in the context of  eligibility for relief (adjustment of status), the Board believes adjustment of status is an admission. Id. p. 287 ("The respondent does not dispute that he was 'admitted' to the United States when he adjusted his status to that of a lawful permanent resident in 2007.").

Friday, March 14, 2014

Matter of Chavez Alvarez - More Tinkering With the Concept of "Admission"

In a new precedential decision, Matter of Chavez Alvarez, published today, the Board considered whether an immigrant who had not been "admitted" when he entered but who had adjusted his status to become a permanent resident could be found removable under INA 237(a)(2)(A)(iii) which requires commission of a certain crime after the immigrant has been "admitted."  The Board said, as it has in a number of past decisions, that adjustment of status amounts to an admission, even if the person "has never been 'admitted' within the meaning of section 101(a)(13)(A) of the Act."  So you can be admitted without being admitted?  Why the word play?

Unfortunately, the Board's explanation seems to reveal this has more to do with the result the Board wants to reach and not so much with how the law should be applied.  First, the Board acknowledged that "this position has not generally been well received by the courts of appeals."  However, the Board says it believes it to be significant that "in only one case has the lack of acceptance been in the context of an alien’s removability under section 237(a) of the Act, rather than eligibility for relief from removal."  The Board doesn't say why on earth that would matter.  Either adjustment of status is an admission or it's not an admission.  The Board bases its decision on its view that it would be "absurd to find that an alien who adjusted status within the United States and was thereafter convicted of an aggravated felony was not removable because his adjustment was not an 'admission' under the literal definition of that term in section 101(a)(13)(A) of the Act."  The words of the statute should be applied based on their plain meaning, not on the result the agency is hoping to achieve.  And if the statute isn't sufficient, it should be changed by Congress, not explained away by the Executive.

Monday, February 24, 2014

Matter of M-E-V-G- and Matter of W-G-R-

In two new companion cases (Matter of M-E-V-G- and Matter of W-G-R-) about asylum for individuals afraid of persecution "on account of" their membership in a particular social group, the BIA has done away with the term "social visibility" and replaced it with "social distinction."  But beyond this most obvious (and perhaps trivial) change, whether these two new decision will make an actual difference in the way courts adjudicate asylum claims remains to be seen, as the Board has apparently signaled that it has a long way to go before it will align its policy with prevailing international law.

Both decisions clarify the largest question in the "social visibility" area of law, which is whether social visibility is even an absolute requirement.  "Social visibility" was an outgrowth of the Acosta immutability standard but was only one of many ways a person could demonstrate that their group was particular.  The Board had never previously been found it to be an absolute requirement.  The new standard, announced in these new decisions is as follows:
"An applicant for asylum or withholding of removal seeking relief based on “membership in a particular social group” must establish that the group is (1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question."
Thus, for the first time the BIA has said "yes"; whether you call it "social visibility" or "social distinction," it is now mandatory and is separate from the requirement of immutability. The Board's change in terminology does little to help us to understand what social distinction actually means or how it should be applied.

Wednesday, October 30, 2013

Matter of Oppedissano, 26 I&N Dec. 202 (BIA 2013)

The Board's most recent published decision in Matter of Oppedisano, breaks no new ground - it held that a conviction under 18 U.S.C. § 922(g) for unlawful possession of ammunition by a convicted felon is an aggravated felony under section 101(a)(43)(E)(ii) of the Immigration and Nationality Act.  Since 101(a)(43)(E)(ii) actually lists 18 U.S.C. § 922(g) as an example of a crime "relating to firearms offenses," that holding shouldn't be a surprise.  But the immigrant had argued that the "relating to firearms" language was a limitation, and a conviction for possession of ammunition was not a conviction for possession of a firearm.  The Board disagreed.

Friday, October 25, 2013

Excellent News From the BIA Following the Shutdown and Zip Code Change

The Board has announced that because of the shutdown and the BIA's zip code change, which happened at the same time, it will consider all filings received by the Board before November 1, 2013 to be timely filed.  So, if you had something due during the shutdown that either wasn't received or was received late by the Board, you are in the clear as long as the Board receives it beforeNovember 1, 2013.  

Here is their announcement:
The Board of Immigration Appeals (BIA) processed only filings related to detained cases during the lapse in government funding. The BIA did accept all filings during that period. Also, as announced in September, EOIR transitioned to zip code 20530 on October 1, 2013. 
Due to the convergence of those two events, the BIA will consider timely filed any filing that meets both of these criteria: the filing was due during the month of October 2013; and the BIA receives the filing on or before November 1, 2013
No request for, or documentation supporting, an extension is required for filings that arrive at the BIA by November 1, 2013. Filings that arrive after November 1, 2013, are subject to normal filing deadlines. If timeliness is an issue for any filings that the BIA receives after November 1, 2013, parties should consult the BIA Practice Manual for guidance.

Monday, October 21, 2013

The BIA Updates its Forms - October, 2013

After the government shut-down ended, the EOIR updated a number of its forms.  We suspect they were supposed to be updated on October 1, 2013, but they weren't added to the Department of Justice's website until sometime in the last week.  Make sure to use these new forms on your cases going forward.

Matter of Douglas - Clarifying the rule on acquired citizenship and custody

On October 17th, the BIA issued a precedential in Matter of Douglas, 26 I&N Dec. 197 (BIA 2013), clarifying a previously confusing issue regarding the acquisition of citizenship by a child under the age of 18, who enters as a permanent resident and whose parent gains citizenship through naturalization. The BIA affirmed its 2008 finding from Matter of Baires, 24 I&N Dec. 467 (BIA 2008) that whether the parent who naturalizes has legal custody of the child before or after the naturalization does not matter. Apparently, a Third Circuit decision, published before the decision in Baires, had held that the naturalizing parent needed to have custody of the child at the time she naturalized. Jordon v. Att’y Gen. of U.S., 424 F.3d 320, 330 (3d Cir. 2005).  Because the Board did not address that oddity in Baires, Immigration Judges in the Third Circuit were left with a quandary.  Matter of Anselmo says an IJ is supposed to follow the law of Circuit where the case arises if it differs from the BIA's case law.  Because Baires was published after Jordon, one would think Baires would control.  But nevertheless, the Immigration Judge in Douglas followed Jordon. The Board reversed that holding, concluding that Matter of Baires was controlling, even in the Third Circuit.
To get around the conflict with Jordon, the Board also explained why it was allowed to interpret the statute in a way contrary to the Third Circuit's interpretation.  It said because the word "when" in the statute is ambiguous, the agency is permitted to fill the gaps left by Congress and to interpret the statute as long as it is reasonable.  Concluding its 2008 decision in Baires was reasonable, the Board affirmed it and rejected the Jordon rule.

Tuesday, October 15, 2013

BIA Zip Code Update

A package we sent to the new zip code last week via FedEx was delivered two days late.  A package we sent to the old zip code on Friday of last week was received and ready to be picked up on Monday.  Because Monday was a federal holiday, nobody from the Board came and picked up the package until today.  I was told by the person at the FedEx counter on Friday that they would not guarantee delivery if we used the new zip code (not just that they won't guarantee a certain time, but that they won't guarantee delivery at all).

Regarding the issue of picking up, I'm told that nobody at the Board is there to receive FedEx packages right now (because of the shut down) so they're being taken to a facility in Alexandria and someone from the Board is coming to pick them up.

Thankfully none of our BIA filings have been late yet.  There are still same-day couriers who apparently can file in person at the Board if a package isn't getting there in time.  We're ready for this fiasco to end, though.


This blog is intended as a discussion of the practice of immigration law before the Board of Immigration Appeals. Any discussion of results of past cases tried by attorneys writing for this blog affords no guarantee of future result. Every case is different and must be judged on its own merits. The choice of a lawyer is an important decision and should not be based solely on advertisements.