Matter of Vo: CIMT for Attempt Offenses

In Matter of Vo, 25 I&N Dec. 426 (BIA 2011), the Board of Immigration Appeals (BIA) held that where the substantive offense underlying a foreign national's conviction for an attempt offense is a crime involving moral turpitude, the foreign national is considered to have been convicted of a crime involving moral turpitude for purposes of section 237(a)(2)(A) of the Immigration and Nationality Act (INA).

The respondent is a native and citizen of Vietnam who was admitted to the U.S. as a lawful permanent resident in 1989. He was convicted in California of grand theft and receipt of stolen property. He was also convicted, at a later date, of attempted grand theft. The Department of Homeland Security (DHS) initiated removal proceedings against the respondent, charging that he was deportable under INA § 237(a)(2)(A)(ii) as an alien convicted of two or more CIMTs that did not arise out of a single scheme of misconduct.

The Immigration Judge found that because section 237(a)(2)(A) does not expressly reference “attempts,” as does section 212(a)(2)(A)(i)(I), the respondent’s crime did not qualify as a deportable offense, so he terminated the proceedings. The Department of Homeland Security appealed. The BIA reasoned that, with respect to moral turpitude, there is no distinction between the commission of a substantive crime and the attempt to commit it. Noting that Congress added the “attempt” language to various sections of the Act at different times, the Board determined that it could not reasonably conclude that the inclusion of attempts in those other sections represented a unified design to effectuate a single intent or that Congress’ express inclusion of attempt offenses in some sections indicated its intentional exclusion of them from other sections.

Since grand theft is a CIMT, the respondent's attempted grand theft was also a CIMT, rendering him deportable based on his convictions. Therefore, the BIA concluded, the respondent is deportable as charged for a crime involving moral turpitude within the meaning of the statute.

Matter of GUEVARA ALFARO: Silva-Trevino's mandatory three-step framework supports finding that intentional sexual conduct by an adult with a child is a Crime Involving Moral Turpitude (CIMT).

In Matter of GUEVARA ALFARO, 25 I&N Dec. 417 (BIA 2011), the Board of Immigration Appeals (BIA) held that:

1. Any intentional sexual conduct by an adult with a child involves moral turpitude, as long as the perpetrator knew or should have known that the victim was under the age of 16.
2. Absent otherwise controlling authority, Immigration Judges and the Board of Immigration Appeals are bound to apply all three steps of the procedural framework set forth by the Attorney General in Matter of Silva-Trevino for determining whether a particular offense constitutes a crime involving moral turpitude.

In a decision dated April 27, 2010, an Immigration Judge terminated the removal proceedings against the respondent. The Department of Homeland Security (“DHS”) appealed from that decision. The appeal was ultimately sustained, the proceedings reinstated, and the record remanded for further proceedings.

The respondent in this case was a citizen of El Salvador  who adjusted his status to that of a lawful permanent resident in 1997. He was placed in removal proceedings after being convicted of several offenses, including unlawful sexual intercourse with a minor (statutory rape) in violation of section 261.5(d) of the California Penal Code. That section provides as follows:

Any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment in the state prison for two, three, or four years.

In Matter of Silva-Trevino the Attorney General established a three-part framework for determining whether a particular offense constitutes a crime involving moral turpitude.

• First, a categorical approach must be employed under which the criminal statute at issue is examined to ascertain whether moral turpitude is intrinsic to all offenses that have a “realistic probability” of being prosecuted under that statute.
• Second, if the issue cannot be resolved under the categorical approach, a modified categorical approach should be undertaken, which requires inspection of specific documents comprising the alien’s record of conviction (such as the indictment, the judgment of conviction, jury instructions, a signed guilty plea, or the plea transcript) to discern the nature of the underlying conviction. 
• Finally, if the record of conviction is inconclusive, probative evidence beyond the record of conviction (such as an admission by the alien or testimony before the Immigration Judge) may be considered when evaluating whether an alien’s offense constitutes a crime involving moral turpitude. 

When applying Matter of Silva-Trevino to this case, the BIA analyzed this case as follows:

• It first analyzed section 261.5(d) of the California Penal Code under the categorical approach. Since the statute does not require a perpetrator to have engaged in intentional sexual contact with someone he or she knew or should have known to be a child, there is a realistic probability it could be applied to conduct that does not involve moral turpitude. The offense prohibited by section 261.5(d) is therefore not a categorical crime involving moral turpitude under the first step of Silva-Trevino. 
• Applying the second step, the BIA found that there were no documents in the record of conviction establishing that the respondent knew or should have known that his victim was a child.
• The only remaining step of Silva-Trevino is the third, which provides for consideration of probative evidence beyond the record of conviction. For this step, the BIA analyzed the respondent's testimony before the Immigration Judge. 

Because the BIA generally lacks the authority to make findings of fact in the course of deciding appeals (8 C.F.R. § 1003.1(d)(3)(iv)), it remanded the case for the Immigration Judge to make specific factual findings regarding whether the respondent knew or should have known that his victim was a minor, taking into consideration the respondent’s prior testimony before the Immigration Court and any other relevant evidence.

Matter of Nelson: Continuous residence clock for Cancellation of Removal not reset by alien's departure and reentry - absent waiver of inadmissibility for conviction.

In Matter of Nelson, 25 I&N Dec. 410 (BIA 2011), the Board of Immigration Appeals (BIA) addressed the question of the “stop-time” rule under section 240A(d)(1) of the Immigration and Nationality Act (INA).  More specifically, the BIA addressed the issue of whether the clock can be reset by an alien’s departure from, and reentry to, the United States after a conviction for a crime that would otherwise stop the accrual of continuous residence for purposes of determining eligibility for cancellation of removal under INA section 240A(a).

Section 240A(d)(1), which sets forth the “stop-time” rule, provides in pertinent part:

Termination of Continuous Period. For purposes of this section, any period of continuous residence or continuous physical presence in the United States shall be deemed to end (A) . . . when the alien is served a notice to appear under section 239(a), or (B) when the alien has committed an offense referred to in section 212(a)(2) that renders the alien inadmissible to the United States under section 212(a)(2) or removable from the United States under section 237(a)(2) or 237(a)(4), whichever is earliest.

The BIA held in this case that continuous residence cannot be restarted absent a waiver of inadmissibility in regard to the conviction. That is, once a foreign national has been convicted of an offense that stops the accrual of the 7-year period of continuous residence required for cancellation of removal, INA section 240A(d)(1) does not permit such residence to restart simply because the alien has departed from, and returned to, the United States.

In this case the respondent, who is from Jamaica, was admitted to the United States as a lawful permanent resident in 1994.  In 1999 he was convicted of possession of marijuana in New York. In 2000 he visited Canada for two days and returned to the United States. In removal proceedings the respondent applied for Cancellation of Removal. The Immigration Judge denied the respondent’s application for cancellation of removal under INA section 240A(a) because he failed to establish the requisite 7 years of continuous residence. Specifically, the Immigration Judge found that the respondent was admitted in 1994 and that under section 240A(d)(1) of the Act, his period of continuous residence ended in 1999 when he committed the drug offense that rendered him removable.

The BIA agreed with the Immigration Judge’s conclusion that under INA section 240A(d)(1), the period of time the respondent was in the United States after his conviction and subsequent reentry cannot be counted toward the accrual of the 7 years of continuous residence required for cancellation of removal, since the clock does not start anew when the alien departs and reenters the United States following the commission of a triggering offense.

Matter of ALYAZJI: 5-year clock for 237(a)(2)(A)(i) removability is not reset each time a foreign national is admitted (within the United States).

Matter of ALYAZJI, 25 I&N Dec. 397 (BIA 2011), identifies when the date of admission begins to run for purposes of section 237(a)(2)(A)(i) of the Immigration and Nationality Act (INA), which in a pertinent part, authorizes the removal of any alien who “is convicted of a crime involving moral turpitude committed within five years . . . after the date of admission,” provided the crime is punishable by a sentence of imprisonment of 1 year or longer.

In Matter of ALYAZJI the Board of Immigration Appeals (BIA) held that  a conviction for a crime involving moral turpitude triggers removability under section 237(a)(2)(A)(i) only if the crime was committed within 5 years after the date of the admission by virtue of which the alien was then in the United States.  The BIA concluded that the class of aliens “in and admitted to the United States” referred to in the opening sentence of 237(a) of the INA consisted of:

• Those who entered the United States with the permission of an immigration officer after being inspected at a port of entry; and

• Those who entered the United States without permission or were paroled, but who subsequently became lawful permanent residents.

Under the BIA's new understanding of the phrase “the date of admission", the 5-year clock is not reset by a new admission from within the United States (through adjustment of status). To ascertain an alien’s deportability under section 237(a)(2)(A)(i), one must first look to the date when the crime was committed. If, on that date, the alien was in the United States pursuant to an admission that occurred within the prior 5-year period, then he is deportable. Conversely, the alien is not deportable if he committed his offense more than 5 years after the date of the admission pursuant to which he was then in the United States.

Matter of ALYAZJI overrules Matter of Shanu, 23 I&N Dec. 754 (BIA 2005), where the BIA held that the term “admission” used in section 237(a)(2)(A)(i) referred to adjustment of status as well as admission at the border; and second, that an alien’s conviction for a crime involving moral turpitude supported removal under that section so long as the crime was committed within 5 years after the date of any admission made by the foreign national.

This case involved Alla Adel Alyazji, a Palestinian citizen who entered the United States on a temporary visa in 2001 and became a lawful permanent resident in 2006.  In January 2008, the respondent was convicted of indecent assault in violation of Pennsylvania law, based on a 2007 offense. As a result of that conviction, the Department of Homeland Security (“DHS”) initiated removal proceedings. Shortly after removal proceedings commenced, the respondent sought termination on the ground that his indecent assault conviction resulted from an offense committed more than 5 years after his “admission” as a nonimmigrant in August 2001. The Immigration Judge denied the motion based on Matter of Shanu, holding that the respondent is removable because he committed his offense less than 5 years after his “admission” to lawful permanent resident status in April 2006.

The BIA terminated removal proceedings against Mr. Alyazji concluding that when he committed his crime involving moral turpitude in 2007, he was in the United States pursuant to his 2001 admission as a nonimmigrant. Because he committed his offense more than 5 years after that “date of admission,” he was not deportable, even though he was “readmitted” by means of adjustment of status in April 2006.

Custom and Border Protection (CBP) Revokes Notice to Appear (NTA) for Client Returning From Trip Abroad

Our law firm recently worked with Customs and Border Protection (CBP) to have them return our client’s alien registration card or “green card” and to have them revoke the Notice to Appear (NTA) which had placed our client erroneously in removal proceedings. Our client was returning from a trip abroad and was detained upon inspection when their system showed incomplete information regarding a past criminal matter that did not result in a conviction.

The whole ordeal began when our client was returning from a short trip abroad. Like many times before, she presented her alien registration card or "green card" to the CBP officer upon disembarking the plane. This time though, she was in for an unpleasant surprise. As the CBP officer reviewed his computerized system, he noticed a "hit" or arrest in our client's background and placed her in secondary inspection. Secondary inspection is a separate, more thorough screening that normally lasts several hours. During this secondary inspection, the CBP officers involved misread the information on their computer, and instead of inquiring further with their legal department, they confiscated our client's green card and issued a Notice to Appear (NTA) which basically placed our client in removal proceedings.

When our client first came to see us she was understandably upset about the entire situation. Upon further review of her case, and close examination of her record, we determined that there were in fact no convictions and therefore the NTA should not have been issued. We contacted CBP and for the next several days corresponded back and forth until the issue was resolved in favor of our client. The NTA was ultimately revoked and our client got her green card back.

On a recent blog we discussed the dangers lawful permanent residents face when traveling abroad when they have previous criminal convictions. We encourage our readers to review that entry as it outlines factors that LPRs should consider before traveling. LPRs that have been arrested in the past but never convicted should travel with a certified copy of the Final Disposition Record. However, it is very important to highlight that the definition of what exactly constitutes a conviction is different for immigration purposes. Thus, a person might not have a conviction for state purposes or even have had the case expunged, and still have a conviction for immigration purposes. We will discuss the immigration definition of what constitutes a conviction on a different post. LPRs that are not sure whether they have a conviction for immigration purposes are urged not to travel until they have an experienced immigration attorney review their record.

PLEASE NOTE THAT THE RESULTS OF PAST CASES DEPEND ON A VARIETY OF FACTORS UNIQUE TO EACH CASE. PAST CASE RESULTS DO NOT GUARANTEE OR PREDICT A SIMILAR RESULT IN FUTURE CASES.