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 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.

Naturalization Through Military Service

The Immigration and Nationality Act (INA) provides for an expedited naturalization process for current or recently discharged members of the Army, Navy, Air Force, Marine Corps, Coast Guard, and certain components of the National Guard.  

On July 3, 2002 President Bush signed Executive Order 13269 authorizing all noncitizens who have served honorably in the U.S. armed forces on or after Sept. 11, 2001 to immediately file for citizenship. This order also covers veterans of certain designated past wars and conflicts. This was done pursuant to Section 329 of the INA which covers periods of service during periods of hostilities. Section 328 of the INA covers periods of service during peacetime.   Under this section, members of the U.S. armed forces and those already discharged from service may qualify for naturalization if he or she has:

• Served honorably in the U.S. armed forces for at least one year;
• Obtained lawful permanent resident status; and
• Filed an application while still in the service or within six months of separation.

Every military installation has a designated point-of-contact, generally in the personnel division or the Judge Advocate General’s Office, to assist members of the military prepare and file their naturalization application packet. Here's where members of the military can go for additional help:

• By visiting http://www.uscis.gov/military;
• By calling the U.S. Citizenship and Immigration Services (USCIS) special hotline for members of the military and their families at 1-877-247-4645.
• By sending an e-mail to militaryinfo.nsc@dhs.gov.
• By reviewing USCIS' Naturalization Information for Military Personnel guide.
• By reviewing USCIS' Questions and Answers for Members of the Military. 

Members of the military seeking to naturalize must still meet some of the basic requirements.  For example, the applicant must be a person of good moral character, have a basic command of the English language, and must also have a basic knowledge of U.S. History and Government. An applicant for naturalization must also show that he or she is attached to the principles of the Constitution of the United States, and will be required to take the Oath of Allegiance. Members of the military however are exempt from other naturalization requirements, including residence and physical presence in the United States. 

U.S. Supreme Court Hears Two Immigration-Related Cases This 2010 Term ("Flores-Villar v. U.S." and "Chamber of Commerce of the U.S. v. Whiting")

The U.S. Supreme Court will hear two immigration-related cases this year.  The first case is Flores-Villar v. United States and it is scheduled to be heard on November 10, 2010.  The issue in that case is whether a gender and time differentiation of U.S. citizen parents before children born overseas can obtain U.S. citizenship violates the Equal Protection Clause.   The second case, scheduled to be heard on December 8, 2010, is Chamber of Commerce of the United States v. Whiting. The issue in that case is whether provisions of Arizona state law aimed at combating the hiring of undocumented workers are preempted by federal immigration laws.  You can review the Merit and Amicus briefs submitted for both of these cases, and all other cases for this 2010 Term, by visiting the American Bar Association's "Preview of U.S. Supreme Court Cases" page. 

Several months ago I posted an entry about my visit to the U.S. Supreme Court with my teenage son.  We had a good time and I encourage readers who have never visited the Court personally, to make it a goal to do so this year. You will find useful information about the U.S. Supreme Court and the cases it will hear this year on the U.S. Supreme Court's website, including their Visitor's Guide to Oral Argument and the U.S. Supreme Court Calendar.  You can also read the biographies of current Justices and a brief overview of the Supreme Court.  Plan your visit well and be there early - lines can get really long, really soon. 

COMMANDMENT #4 of Applying for Naturalization: Thou Shall Feed Your Children (wherever they are)

Last post we discussed the definition of good moral character and how being married to more than one spouse at a time will affect a good moral character determination. As noted earlier, having good moral character is one of several requirements an applicant must meet before becoming a naturalized U.S. citizen. What constitutes good moral character, which is not defined by statute, has been interpreted by case law to mean behavior that meets the moral standard of the average citizen in the applicant’s community.

There are various factors that will affect a determination of good moral character. Section 101(f) of the Immigration and Nationality Act (INA) has a list of factors that would prevent a person from showing good moral character. One factor that can affect a good moral character determination includes not financially supporting the applicant’s children (or spouse) - especially those not living with the applicant.

If the applicant has children, that are under 18 years of age, during the qualifying time as a Lawful Permanent Resident (LPR) (whether 3 or 5 years), then the applicant must come prepared to the interview to show that he or she has provided financially for their welfare (whether court-ordered or not). This is especially true if the applicant has children living abroad. In these cases the applicant must bring to their interview proof of support which can include a notarized letter from the former spouse or guardian, or if the children are old enough, letters from the children discussing the support that they have received. Also, the applicant must obtain records of money transfers, or wires that went to provide for their children.

Failing to pay court-ordered child support or alimony payments may also affect a determination of good moral character. Applicants should come prepared to the interview by bringing documents such as: cancelled checks, receipts, a court or agency printout of child support payments, evidence of wage garnishments, or other documentation.

An excellent resource put out by the U.S. Citizenship and Immigration Services ("USCIS") is the “Guide to Naturalization”. Readers are encouraged to review this document before submitting their naturalization application.

That's it for now folks. Stay tunned for our next post: Commandment #5 - Thou Shall Not Forget Where You Came From.

Commandment #3 of Applying for Naturalization: Thou Shall Not Have More Than One Spouse at a Time

On our last post we discussed the definition of good moral character and how it is one of several requirements an applicant must meet before becoming a naturalized U.S. citizen. As noted earlier, what constitutes good moral character is not clearly defined by statute, although it has been interpreted by case law to mean behavior that meets the moral standard of the average citizen in the applicant’s community.

There are various factors that will affect a determination of good moral character. Section 101(f) of the Immigration and Nationality Act (INA) has a list of factors that would prevent a person from showing good moral character. One factor that can affect a good moral character determination includes adultery and polygamy.

I know it has been said that King Solomon had 700 wives, but let’s face it, you and I are no King Solomon. This commandment of “one-spouse-at-a-time” should be self explanatory, but in my years practicing immigration law, I have encountered several cases where the applicant had been married to more than one person at a time, and didn’t even realize it. On a couple of other cases, the person thought they were married, when in fact they were not.

Some months ago I had a client that applied for naturalization. On the application he had indicated that he was married. By the time of the interview the “marriage certificate” was finally produced, and to everyone’s surprise, he was not actually married. As with many other states, Virginia first issues a 60-day marriage license to applicants. During those 60 days, the applicant takes the marriage license and presents it to the celebrant who performs the marriage ceremony. The marriage ceremony by an authorized celebrant is a necessary step for the marriage to be legally binding. The minister or other person officiating the marriage completes and signs the Marriage Register and then forwards it to the clerk of the court who issued the license. This individual never had a marriage ceremony performed by an authorized minister, and therefore never had a legally binding marriage.  They went to the courthouse, obtained a license, and had a small house party to celebrate their "marriage" thinking that nothing else had to be done.

We’ve also encountered some people that were under the genuine, albeit incorrect, impression that because they were married in their home country – and not in the United States – that their marriage back home somehow didn’t count or was not valid, and therefore they were “single”. So they find someone else, and decide to remarry, without obtaining a divorce from their home country. In other cases, the person hires an attorney in their home country to file a divorce, the divorce finally goes through, or so they think, he or she remarries in the United States, just to find out later on that their divorce did not in fact go through as the attorney had told them because of a legal technicality (it wasn’t properly filed, the appropriate signatures or seals were missing, the appropriate fees were not paid to the government office, etc).

While it is true that there is a great deal of ambiguity surrounding the meaning of the term ‘Good Moral Character’ in the context of obtaining U.S. citizenship by naturalization, there are some crimes and bad acts that may prevent one from obtaining U.S. citizenship – polygamy is one of them for sure. The moral of the story is that if you have a spouse – keep your spouse (your children will thank you for it). If you don’t keep your spouse, make sure your divorce is final. If you decide to re-marry, keep your divorce certificate because you might need it for your interview.

Stayed tuned for Commandment #4: Thou Shall Feed Your Children (wherever they are).

El Salvador and the Persecutor Bar. Guilty by Association?

Every month our law firm features a new country on our website. This month we’re featuring El Salvador, and as you can see from the pictures, it is a beautiful country in many ways.

As many of our readers may remember, El Salvador was engulfed in a bloody civil war from 1980 through 1992 that claimed the lives of an estimated 80,000 people. The civil war, between the military-led government of El Salvador and the Farabundo Martí National Liberation Front (FMLN), led to a huge population upheaval where many atrocities were committed from all sides involved.

On January 1992 the Chapultepec Peace Accords were signed in Chapultepec, Mexico – bringing an end to yet another bloody chapter in El Salvador’s history. A new Constitution was promulgated, the Armed Forces regulated, a civilian police force established, the FMLN became a political party instead of a guerrilla army, and an amnesty law was legislated in 1993.

In the years during and after the civil war, close to 20 percent of the entire population left El Salvador to other countries. Many of those fleeing El Salvador arrived in the United States seeking refuge and applied for asylum. Years later, in 1997, the United States passed into law the Nicaraguan Adjustment and Central American Relief Act (NACARA). NACARA provided various forms of immigration benefits and relief from deportation to nationals of certain countries, including El Salvador.

A legitimate concern of U.S. immigration authorities then, and very much still today, is the awarding of immigration benefits to individuals who participated in the persecution of others during the civil war. This is referred to as the “persecutor bar”. Section 240A(c)(5) of the Immigration and Nationality Act (INA) bars persons who ordered, incited, assisted, or otherwise participated in the persecution of others on account of race, religion, nationality, membership in a particular social group, or political opinion, from obtaining certain types of immigration benefits.

Every year the U.S. Department of Homeland Security (DHS) initiates removal proceedings against individuals accused of participating in the persecution of others. Just today, as I was writing this entry, I came across a news release from Immigration and Customs Enforcement (ICE) describing the arrest of a former Guatemalan special forces soldier in Palm Beach County, Florida, for lying on his naturalization application about his participation in a 1982 massacre at a Guatemalan village known as Las Dos Erres.

A concern that I have, from a legal perspective, having successfully represented several clients facing deportation based on the persecutor bar, is the government’s position in many cases that mere membership in an organization, standing alone and without any other evidence of personal involvement or culpability, is sufficient for the persecutor bar to apply. By doing so, I believe the government is adopting an impermissible and overly broad definition of the term “persecution” which is contrary to controlling U.S. Supreme Court decisions of Negusie v. Holder, Fedorenko v. U.S., and several Board of Immigration Appeals (BIA) decisions including Matter of Rodriguez-Majano, Matter of A-H-, Matter of Acosta, and Matter of Fuentes.

In preparing to represent clients being charged under the persecutor bar, I’ve had to immerse myself in the bloody history of the civil war in El Salvador.  I’ve also heard firsthand testimonies of people that lived in El Salvador during those years. In hearing their life stories I’ve been filled with immense sadness at the senseless loss of human life, reminded of the perverse potential of the human spirit, and overcome with a sense that those responsible should face justice for the sake of those victimized and the families they left behind.

I wonder though if in our pursuit to bring those responsible to justice, our judicial system might be too broadly placing culpability where none lies. Are all men, that were unfortunate enough to live in El Salvador during the years of the civil war, equally culpable? Some people have strong evidence presented against them. Other people, who served in any capacity during the civil war in El Salvador, regardless of their role or their personal involvement, are charged as “persecutors” by association only.

The first case I successfully represented involved a NACARA applicant who during the civil war served once a week in a “patrulla cantonal” or community patrol. He was a peasant farmer who guarded his hamlet with no shoes after work for 6 hours each week. When the other men in his community approached him to participate to protect themselves from possible guerilla attacks, he had no option but to agree.  Not agreeing would have ended up with him being labeled as a guerilla sympathizer, which would have put his life at real risk by death squads operating in the area. My client, who never shot a rifle, or a gun, and who was fortunate enough to serve in a hamlet with no strategic significance to either the guerilla forces or the government of El Salvador, was labeled as a persecutor and placed in removal proceedings. After a long and exhausting process, he was finally awarded his lawful permanent resident status in immigration court.

As the gray areas of the persecutor bar are more clearly defined by cases moving through our judicial system, what constitutes “persecution” (and what doesn’t) is being parsed out - but at the backs of those of whose cases we read about.

Attention Lawful Permanent Residents With Past Criminal Convictions: Your Trip Abroad Might Just Be The Last One

Lawful Permanent Residents with past criminal convictions should think twice before traveling abroad. Every year the Department of Homeland Security (DHS) removes scores of LPRs that were detained and placed in removal proceedings upon their return from a trip abroad. At a minimum, prospective LPR travelers should seek the guidance of an experienced immigration attorney to determine whether their particular conviction subjects them to removal from the U.S.

Although traditionally an LPR was not deemed to make a new admission into the U.S. upon his or her return if the trip was "innocent, casual, and brief", presently Congress has defined when an LPR will be regarded as seeking a new admission. This issue of "admission" is significant for an LPR who would not be subject to removal from the U.S. but who might be inadmissible upon their return from a trip abroad.

An LPR will be regarded as seeking a new admission if he or she has committed a criminal offense under the provisions of the Immigration and Nationality Act (INA) that deal with the criminal grounds of inadmissibility. The process normally works as follows. An LPR is returning from a trip abroad and presents his green card (I-551) to the Customs and Border Protection (CBP) officer in order to be admitted. The officer reviews his/her computerized system and notices a “hit” or arrest in the person’s background. They place the LPR in secondary inspection which is a separate, more thorough screening that normally lasts several hours. In this secondary inspection the LPR is questioned about, among other things, the arrest or conviction at issue. While the LPR is waiting in the secondary inspection area, CBP officers are reviewing their data and checking with their supervisors whether they have enough to charge the LPR under one of the grounds of inadmissibility. If CBP confirms that the prior conviction is not a ground of inadmissibility, they will release the LPR and return the alien registration or “green card” back to him or her.  The LPR being released should not expect an apology from CBP - none will be forthcoming unfortunately.  Also, the LPR being released should not expect not to go through the same procedure next time around. If CBP believes that the conviction renders the LPR inadmissible, or they simply can’t confirm whether it is or not, they will confiscate the alien registration card, and issue the charging document which is the Notice to Appear (NTA). The LPR is now placed in removal proceedings, and if not subject to mandatory detention, will be released to await his or her hearing before an immigration judge.

Keep in mind that the fact that an LPR with a criminal background has managed to travel back and forth for a period of time without being detained is no protection or guarantee at all. I’ve had several clients that have traveled for years without being detained, until their last trip when the CBP officer noticed their arrest and conviction. The fact that the offense might have occurred many years ago is irrelevant for removal purposes. An LPR is subject to removal from the United States for a violation of relevant immigration laws, regardless of the length of residency or the age at which it was attained. An individual who immigrated to the United States when he was a couple of months old who is now convicted of a crime at age 65 can and will be removed, depending on the nature of the conviction.

An LPR with a criminal background should weigh his or her options carefully before traveling abroad. At a minimum the person should seek the assistance of an immigration attorney in order to make an informed decision about their travel plans.  Being aware of the possible consequences gives the LPR an opportunity to not only make an informed decision, but to prepare accordingly.