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.

Thursday, October 10, 2013

Government Shutdown Day 10 - BIA Update

The BIA is apparently still operating, although in a very limited fashion.  I spoke with someone yesterday on the stay of removal line, who is still working.  But at least three things seem to have changed since this whole thing started:

1. I am hearing from other practitioners that FedEx packages sent to the BIA aren't being received at the Board (because nobody there can sign for them).  Instead, apparently they're being re-routed to a facility in Alexandria where someone from the DOJ is coming over to pick them up.

2.  The BIA isn't cashing checks sent with notices of appeal and motions.  At least, it hasn't cashed any of mine.

3.  The EOIR continues to update the information on its website about which Immigration Courts are open and which are closed.

Monday, October 7, 2013

Immigration Court Closure List During Government Shutdown

The government has published a helpful list for determining which courts are still open and for what purposes during the government shutdown.  The notice explains that the only courts remaining open are those that handle detained cases. It says the BIA is processing "emergency stay requests as well as cases where the alien is detained, including case appeals, motions, federal court remands, and bonds."

BIA "Precedent Table" is a Good Place to Start Research for BIA Brief

The BIA publishes a "precedent table" which is updated fairly regularly and organized by topic.  It is not error-free, and it is no substitute for real legal research.  But it's a good place to start for a quick answer if you're researching a legal issue related to a BIA appeal. So, if you know one issue in your appeal has to do with an allegation of Marriage fraud, you can access the Board's cases that reference Marriage fraud in one place.  Once you have the key precedent decisions, you can compare to see if the Board has ever issued a decision that is contrary, if it has carved out any exceptions to the rules, etc.  Again, this can't be the only legal research you do.  For example, this precedent table won't tell you when a Circuit Court has overruled the BIA on a particular point.  But it is a helpful resource that is pretty well organized and can assist you in starting off in the right direction.


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