BIA

BIA’s Decision in Matter of Thakker

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September 20, 2024, the Board of Immigration Appeals issued a decision in Matter of THAKKER, 28 I&N Dec. 843 (BIA 2024). Matter of Jurado, 24 I&N Dec. 29 (BIA 2006), aff’d sub. nom. Jurado-Delgado v. Att’y Gen. of U.S., 498 F. App’x 107 (3d Cir. 2009), overruled in part. In Matter of Thakker, the Board of Immigration Appeals (BIA) addressed whether convictions for retail theft under r retail theft under section 3929(a)(1) of title 18 of the Pennsylvania Consolidated Statutes qualified as crimes involving moral turpitude (CIMT) for immigration purposes rendering the Respondent removable under section 237(a)(2)(A)(ii) of the INA, 8 U.S.C. § 1227(a)(2)(A)(ii), for having been convicted of two or more crimes involving moral turpitude not arising out of a single scheme of criminal misconduct. 8 C.F.R. § 1003.1(d)(3)(ii) (2024). The BIA ultimately concluded that those convictions were not CIMTs. The BIA began by recognizing the long-held principle that theft offenses are only considered CIMTs if they involve an intent to permanently deprive the owner of their property, citing to Matter of Diaz-Lizarraga. The BIA acknowledged that its prior decision in Matter of Jurado had established an assumption that retail theft offenses inherently included this intent to permanently deprive. However, the BIA determined that this assumption, which stemmed from a desire to distinguish between significant and minor property deprivations, was incompatible with the categorical approach established by the Supreme Court in Descamps v. United States, 570 U.S. 254 (2013). The categorical approach dictates that the BIA must focus solely on the elements of the crime as defined by the statute of conviction, rather than on the specific facts of the case. The BIA then examined the relevant Pennsylvania retail theft statute at issue in Matter of Thakker and found that it did not explicitly require an intent to permanently deprive as an element of the offense. Since the statute lacked this essential element, the BIA held that convictions under this statute could not be categorically classified as CIMTs. The BIA distinguished this case from its prior decision in Matter of Diaz-Lizarraga, where it found that shoplifting under a specific Arizona statute was categorically a CIMT. The BIA highlighted that the Arizona statute defined “deprive” in a way that encompassed an intent to permanently deprive, unlike the Pennsylvania statute. The BIA concluded that Matter of Jurado needed to be partially overruled because its assumption regarding intent to permanently deprive in retail theft cases conflicted with the categorical approach mandated by the Supreme Court. This decision emphasizes the BIA’s obligation to adhere to the categorical approach when determining whether a crime involves moral turpitude for immigration consequences. The BIA clarified that it cannot rely on assumptions about criminal intent that are not explicitly stated within the elements of the offense outlined in the relevant statute. The Respondent’s convictions for retail theft under section 3929(a)(1) of title 18 of the Pennsylvania Consolidated Statutes, all of which predate the Board’s decision in Matter of Diaz-Lizarraga, 26 I&N Dec. 847 (BIA 2016), are categorically not for crimes involving moral turpitude because the statute does not require an intent to permanently deprive the victim of property. 

An Incurable Notice to Appear

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Matter of Aguilar Hernandez

Matter of Aguilar Hernandez January 31, 2024, the Board issued a decision in Matter of Aguilar Hernandez, 28 I&N Dec. 774 (BIA 2024) finding: The Department of Homeland Security cannot remedy a notice to appear that lacks the date and time of the initial hearing before the Immigration Judge by filing a Form I-261 because this remedy is contrary to the plain text of 8 C.F.R. § 1003.30 and inconsistent with the Supreme Court’s decision in Niz-Chavez v. Garland, 593 U.S. 155 (2021).  Full Decision. Basis for the Board’s Decision Prior Decisions  Impact of The Decision This case will help to make some people eligible for cancellation of removal because the Board says that respondents will continue to accrue physical presence in the US for purposes of cancellation of removal until the Department has properly cured the defective Notice to Appear (NTA)1.   As a result, some people who think they were ordered removed can argue they have grounds to reopen their proceedings and then may be able to pursue 42b cancellation of removal in reopened proceedings. Further, respondents that were originally put into removal proceedings before they had 10 years in the US, may actually be eligible for cancellation of removal if their initial NTA was deficient and DHS has yet to cure it, or the Department cured it after they accrued 10 years of presence using this new manner of calculation established by this decision2:   Indeed, it is a strategic decision by a respondent to raise (or not raise) an objection to a defective notice to appear lacking the date and time of the initial hearing before the Immigration Judge. By electing not to raise the objection, the respondent’s notice to appear remains defective and the respondent will continue to accrue continuous physical presence in the United States for the purposes of cancellation of removal.4 Conversely, if after the respondent raises a timely objection, DHS remedies the defective notice to appear, then the “stop-time” rule prevents the respondent from accruing additional physical presence for purposes of cancellation of removal. See INA § 240A(d)(1), 8 U.S.C. § 1229b(d)(1).   1.Matter of Aguilar Hernandez, 28 I&N Dec. 774 (BIA 2024) 2.  Id at 779. More Information The full decision can be found at https://www.justice.gov/d9/2024-01/4071.pdf.

Matter of H. N. Ferreira, 28 I&N Dec. 765 (BIA 2023)

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Given the significance of a respondent’s interest in securing review of a denial of a petition to remove the conditions on permanent residence, an Immigration Judge should ordinarily review the denial of a Form I-751 upon the request of the respondent. [Full Decision] Matter of H. N. Ferreira, 28 I&N Dec. 765 (BIA 2023) At a 2019 hearing before the Immigration Judge, DHS indicated that it did not have the respondent’s file and sought a continuance to locate it. The respondent did not object but asked that the proceedings move forward as quickly as possible to obtain review of USCIS’ decision denying his most recent I-751 petition to remove the conditions on his residence. The Immigration Judge continued the case for one month. At the next hearing, DHS still had not located the respondent’s file. The Immigration Judge asked the DHS attorney if she was moving to terminate for failure to prosecute the case, and the DHS attorney indicated that she was. The respondent objected on the grounds that the government “can only move for dismissal on enumerated grounds . . . [a]nd failure to find its file is not one of them.” Matter of H. N. Ferreira, 28 I&N Dec. 765 (BIA 2023) The respondent objected on the grounds that the government “can only move for dismissal on enumerated grounds . . . [a]nd failure to find its file is not one of them.” The respondent also contended that terminating removal proceedings would leave him without an avenue for review of USCIS’ denial of his Form I-751, which at that point he had been seeking for nearly a decade. The Immigration Judge granted DHS’ motion to terminate the removal proceedings on the ground that the court lacked jurisdiction tointerfere with DHS’ prosecutorial discretion. The respondent timely appealed. The Board found that Congress has provided that a decision by USCIS to terminate anoncitizen’s conditional permanent resident status is reviewable in removal proceedings by the Immigration Judge. See INA § 216(b)(2), (c)(3)(D), 8 U.S.C. § 1186a(b)(2), (c)(3)(D). Under current regulations, this is the only permitted avenue for review. See 8 C.F.R. § 1216.3(a); cf. 8 C.F.R. § 1216.5(f) (2023) (“No appeal shall lie from the decision of the director [to deny a waiver of the joint filing requirement]; however, the alien may seek review of such decision in removal proceedings.”). Where the basis for USCIS’ denial of a Form I-751 petition is the denial of a waiver of the joint filing requirement, the Immigration Judge reviews the denial of the waiver as well. See 8 C.F.R. § 1216.5(f); Matter of Bador, 28 I&N Dec. at 642 (collecting authority); see also Matter of Herrera Del Orden, 25 I&N Dec. 589, 593–95 (BIA 2011) (discussing the scope of the Immigration Judge’s review of the denial of an applicant’s request for a waiver of the joint filing requirement). Because DHS does not have unilateral authority to cancel a Notice to Appear once removal proceedings have commenced, DHS’ motion to terminate constituted a request that the Immigration Judge exercise his authority to terminate the proceedings. See Matter of G-N-C-, 22 I&N Dec. at 284. The Immigration Judge has authority to adjudicate this request “based on an evaluation of the factors underlying the [DHS’] motion.” Id. The Immigration Judge erred in concluding that he was required to terminate proceedings simply because DHS had moved to do so. Instead, the Immigration Judge should have adjudicated the motion after considering the underlying facts and circumstances. Because the Immigration Judge mistakenly concluded that DHS’ motion divested him of jurisdiction, he did not consider the respondent’s interest in obtaining review of USCIS’ denial of his Form I-751 petition. The respondent’s interest in having an Immigration Judge review USCIS’ denial of a Form I-751 is significant. Regulations provide that when USCIS terminates conditional permanent resident status by denying a Form I-751, there is no appeal from that decision to any higher authority within USCIS, and the noncitizen must be placed in removal proceedings. 8 C.F.R. § 1216.3(a). At that point, the denial of the Form I-751, and any associated waivers, is reviewable only by the Immigration Judge. See INA § 216(b)(2), (c)(3)(D), 8 U.S.C. § 1186a(b)(2), (c)(3)(D); 8 C.F.R. §§ 1216.3(a), 1216.5(f); Matter of Bador, 28 I&N Dec. at 642. The appeal was sustained and the case was remanded to the Immigration Judge to review the Respondent’s petition to remove conditions on his residency. See full decision here.

Respondent With A Pending Appeal of a Criminal Conviction Does Not Have a Criminal Conviction

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The Board of Immigration Appeals published a decision holding that when a respondent has a pending appeal under section 460.30 of the New York Criminal Procedure Law the criminal conviction his not yet final and therefore the respondent has not been “convicted” as defined by INA §1101(a)(48)(A). Matter of Brathwaite Matter of Brathwaite, 28 I&N Dec. 751 (BIA 2023) The respondent filed a motion to terminate his removal proceedings. The Department of Homeland Security (“DHS”) opposes the motion. The Immigration Judge had denied the motion and found the respondent removable and the Board had originally affirmed. The Board of Immigration Appeals was remanded the case by the Second Circuit Court of Appeals to determine the finality of the respondent’s criminal convictions under section 101(a)(48)(A) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101(a)(48)(A) (2018), and to reassess whether heis removable as charged. Brathwaite v. Garland, 3 F.4th 542 (2d Cir. 2021). Facts of the Case The respondent is a native and citizen of Trinidad and Tobago and a lawful permanent resident of the United States. DHS served the respondent with a notice to appear alleging that on January 31, 2018, he was convicted of multiple offenses including identity theft, larceny, and possession of stolen property in violation of New York law. DHS charged the respondent with removability under sections 237(a)(2)(A)(ii) and 237(a)(2)(A)(iii) of the INA, 8 U.S.C. § 1227(a)(2)(A)(ii), (iii) (2018), for having been convicted of two or more crimes involving moral turpitude and an aggravated felony, respectively. The respondent filed a motion to terminate, arguing that his convictions were not final for immigration purposes under section 101(a)(48)(A) of the INA, 8 U.S.C. § 1101(a)(48)(A), because a New York court had granted his motion for leave to file a late notice of appeal under section 460.30 of the New York Criminal Procedure Law. The Board’s Decision Pursuant to the Board’s interpretation of section 101(a)(48)(A) of the INA, 8 U.S.C. § 1101(a)(48)(A), as affirmed by the Second Circuit, a conviction does not support removability until it is final, meaning that the right to direct appellate review has been waived or exhausted. See Brathwaite, 3 F.4th at 552–53 (affirming the Board’s conclusion in Matter of J. M. Acosta, 27 I&N Dec. at 431, that in enacting section 101(a)(48)(A), Congress intended to incorporate the finality rule of Matter of Ozkok, 19 I&N Dec. 546, 552 n.7 (BIA 1988)). Determining whether direct appellate review has been waived or exhausted requires analysis under the criminal procedure laws of the convicting State. Despite reversing the rule in Matter of J. M. Acosta, the Second Circuit did not reach whether other limits on finality relating to a request for a late-filed appeal under section 460.30 of the New York Criminal Procedure Law might be imposed. See Brathwaite, 3 F.4th at 553–54. The BIA recognized DHS’ concerns about delays in the New York criminal process and differing outcomes nationally depending on the criminal procedure statutes in different States. However, the Board found that DHS’ proposal is at odds with the court’s explanation of New York’s appellate process set forth in Brathwaite v. Garland. The Second Circuit clearly stated that a motion to file a late notice of appeal under section 460.30, once accepted by the New York court, is deemed the equivalent of a timely-filed direct appeal. Id. The Board found no authority supporting a qualification on the characteristics of a direct appeal as of right. A motion for leave to file a late notice of appeal “must be made with due diligence after the time for the taking of such appeal has expired.” N.Y. Crim. Proc. Law § 460.30(1) (McKinney 2019). A New York court that has granted such a motion has therefore necessarily concluded that the defendant proceeded with due diligence, even if the motion was filed the maximum 1 year and 30 days after the conviction. We cannot substitute our judgment in that regard. In removal proceedings, DHS has the burden of establishing by clear and convincing evidence that a respondent who has been admitted to the United States is deportable. INA § 240(c)(3)(A), 8 U.S.C. § 1229a(c)(3)(A) (2018); 8 C.F.R. § 1240.8(a) (2023); accord Matter of Thomas and Thompson, 27 I&N Dec. 674, 690 (A.G. 2019). Thus, because an appeal accepted under section 460.30 of the New York Criminal Procedure Law is classified as a direct appeal, a respondent with a pending appeal under this section does not have a final conviction for immigration purposes. NOTE The BIA’s analysis applies only to section 460.30 of the New York Criminal Procedure Law based on its classification as a direct appeal of right under controlling precedent. Such an appeal is distinct from discretionary appeals beyond the first appeal of right in New York. See generally N.Y. Crim. Proc. Law §§ 450.90, 460.10(5), 460.20 (McKinney 2023). Full Decision

UNLAWFUL PRESENCE BARS CAN RUN IN THE US, BIA & USCIS AFFIRM

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UNLAWFUL PRESENCE AND THE THREE/TEN-YEAR-BAR Under the unlawful presence grounds of inadmissibility, the three- and ten-year bars at INA § 212(a)(9)(B) penalize people who are present in the US. without any lawful immigration status for more than 6 months and 12 months respectively. This could be overstaying a visa by failing to depart the US. after one’s visa expires or it may be crossing the border and then remaining in the US. without any status. These bars do not apply until the person leaves the US. and then seeks to come back or to apply for admission. Once the three or ten years have passed, the person is no longer inadmissible. In recent years, USCIS interpreted the three- and ten-year bars as only able to run if the person is outside of the United States. Thus, if the person triggered the three- or ten-year bar and then re-entered the United States before the requisite time bar had passed, they remained inadmissible, regardless of how much time passed while they were in the United States. These bars are particularly problematic for non-citizens who entered the US. without inspection (not admitted into the US. on a visa or with parole—such as non-citizens who cross the Mexican border) since they are, in most cases, not eligible to adjust status to obtain residency (a green card) in the country. Since non-citizens who entered without inspection are not eligible to adjust status here they are required to attend an interview at the US. Consulate in their home country to obtain residency. This is where the three-year and ten-year bars become such a major obstacle for non-citizens in this situation. For many years after the three and ten-year bars came into existence in 1998, non-citizens subject to the bars had no option but to the leave the US. and apply for a waiver outside of the country and spend years separated from their family until the I-601A provisional waiver (state-side waiver) allowed for the spouses and children of US. citizens (and later permanent residents) to apply for a waiver while still in the US. If the waiver is approved they are still required to leave the country and attend the interview at the US. Consulate in their home country but this allows them to significantly reduce the amount of time they are required to be outside of the country. The current processing time for an I-601A waiver is 34 months and then they must still go through the traditional visa process, so it takes a lot of time and effort to pursue these waivers. Those who do not have a citizen/resident parent or spouse have no way of getting around the three/ten-year bar. NEW USCIS POLICY AND CASE LAW New USCIS policy guidance and a recent BIA case, Matter of Duarte-Gonzalez, 28 I&N Dec. 688 (BIA 2023), however, now officially acknowledge that the simple passage of time is enough for the three- and ten-year bars to run, regardless of whether the full time period is spent inside or outside the United States. Previously, a handful of unpublished BIA cases said the three- and ten-year bars at INA 212(a)(9)(B) could run in the United States, but with Duarte-Gonzalez we now also have a precedential BIA decision taking the same position as USCIS, that the 212(a)(9)(B) time bars can run in the United States based on the plain language of the statute. This means whether an applicant is seeking adjustment of status with USCIS or applying to adjust in immigration court (before EOIR, the Executive Office for Immigration Review), this policy applies to them. Now, USCIS and EOIR will look at the amount of time that has passed since a person triggered the unlawful presence bar, without regard to where they were physically located during that time. Once the requisite number of years have passed, the ground of inadmissibility no longer applies, and no unlawful presence waiver is needed to adjust status. LIMITED BENEFIT TO THIS CHANGE Even though USCIS and the BIA now acknowledge that the 212(a)(9)(B) time bars can run while in the United States, keep in mind a person must leave the United States to trigger one of these bars. Thus, in order for the time bar to pass in the United States, they must have somehow returned after their departure. How they returned is critical. If you entered the US on a visitor visa in 2003 and overstayed but you triggered the ten-year bar by departing the US in 2005 with advance parole to go visit a sick relative, then when you return and are paroled into the US lawfully, you may wait out the remainder of the ten-year bar in the US. If you become eligible for residency in 2016, more than ten years after you tripped the bar, then you are no longer inadmissible under INA §212(a)(9)(B) pursuant to the new policy. Practically this isn’t going to benefit many people. People in the situation described above would often be able to adjust status without a waiver anyway if they were married to a US citizen and traveled on parole. Those who wouldn’t be eligible would be those who never traveled on parole and this new policy won’t benefit them. If you entered without inspection, accrued more than a year of unlawful presence and then left the US triggering the ten-year bar and then reentered the US again without inspection then this new policy will not benefit you. By reentering without inspection you would have triggered the permanent bar under INA §212(a)(9)(C). Two types of people benefit from this policy without also having a permanent bar problem: 1) Those who re-entered the United States lawfully after a departure triggering the three or ten-year bars; or 2) Those who only triggered the three-year bar with their departure (regardless of whether they re-entered the United States lawfully or not). MATTER OF DUARTE-GONZALEZ Matter of Duarte-Gonzalez, 28 I&N Dec. 688 (BIA 2023) Non-citizens who are inadmissible for a specified period of time pursuant to section … Read more