Year in Review: 2017 BIA Precedent Decisions (Part I)
- Introduction and Table of Decisions
- 2017 Board of Immigration Appeals Published Decisions
- Conclusion
Introduction and Table of Decisions
A total of 27 immigration administrative decisions were selected for publication in 2017. These decisions are precedential and, accordingly, will shape immigration law in various areas going forward.
We are proud to have previously published nearly contemporaneous articles on each of the 27 Board of Immigration Appeals (BIA) decisions selected for publication in 2017. Now, in two new articles, we will look back on the year that was for precedent decisions as the calendar turns to what promises to be another eventful year in 2018.
This article will cover the first fourteen published decisions of 2017 while our companion article [see article] will cover the latter 13 decisions. Across these two articles, we will list each decision, provide a link to the decision itself and to our corresponding article, and provide a brief summary of the Board's holding.
Please refer to the following table of contents to find the decisions that interest you:
- Matter of Calcano de Millan, 26 I&N Dec. 904 (BIA 2017)
- Matter of Kim, 26 I&N Dec. 912 (BIA 2017)
- Matter of Flores-Abarca, 26 I&N Dec. 922 (BIA 2017)
- Matter of Jimenez-Cedillo, 27 I&N Dec. 1 (BIA 2017)
- Matter of Wu, 27 I&N Dec. 8 (BIA 2017)
- Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017)
- Matter of Chairez, 27 I&N Dec. 21 (BIA 2017) (“Chairez IV”)
- Matter of J.M. Alvarado, 27 I&N Dec. 27 (BIA 2017)
- Matter of M-B-C-, 27 I&N Dec. 31 (BIA 2017)
- Matter of L-E-A-, 27 I&N Dec. 40 (BIA 2017)
- Matter of Alday-Dominguez, 27 I&N Dec. 48 (BIA 2017)
- Matter of Falodun, 27 I&N Dec. 52 (BIA 2017)
- Matter of Deang, 27 I&N Dec. 57 (BIA 2017)
- Matter of Izaguirre, 27 I&N Dec. 67 (BIA 2017)
For those who are interested, please see our two index articles covering every administrative precedent decision from 2016 [see article one and two].
Furthermore, please note that we have previously covered in detail many earlier administrative precedent decisions from before 2016/2017. For a well-organized index of all of our articles devoted to individual administrative precedent decisions, please consult the following link [see administrative precedent index].
2017 Board of Immigration Appeals Published Decisions
1. Matter of Calcano de Millan, 26 I&N Dec. 904 (BIA 2017)
See the DECISION and our ARTICLE
Matter of Calcano de Millan dealt with the meaning of the term “conviction” as used in the Adam Walsh Child Protection and Safety Act of 2006. The Adam Walsh Act is applicable to petitioners for family-sponsored immigrant visas and for K nonimmigrant visas, preventing such petitioners who have been convicted of a “specified offense against a minor” from having their petition approved. The Board held that, in addition to situations where a formal judgment of guilt has been entered by a court, a U.S. citizen or lawful permanent resident petitioner is considered “convicted” under the Adam Walsh Act if “a judge ordered some form of punishment, penalty, or restraint on his or her liberty.”
Matter of Calcano de Millan was not the only published decision on the Adam Walsh Act from 2017. Please see also our article on Matter of Izaguirre [see section].
To learn more, please see our article on the Adam Walsh Act, which is up-to-date with information about the most recent BIA precedent decisions [see article].
2. Matter of Kim, 26 I&N Dec. 912 (BIA 2017)
The issue in Matter of Kim was whether section 203 of the California Penal Code, which criminalizes “mayhem,” is categorically a crime of violence under section 101(a)(43)(F) of the INA, which incorporates 18 U.S.C. 16. The Board held that the California statute is a categorical crime of violence under 18 U.S.C. 16(a), because it “requires a malicious act that results in great bodily injury to another person, [and] necessarily involves the use of violent force.”
3. Matter of Flores-Abarca, 26 I&N Dec. 922 (BIA 2017)
Matter of Flories-Abarca adjudicated whether the crime of transporting a loaded firearm in violation of title 21, section 1289.13 of the Oklahoma Statutes is a categorical firearms offense under the deportability provision in section 237(a)(2)(C) of the INA. The Board held that the Oklahoma statute is categorically a firearms offense under section 237(a)(2)(C), notwithstanding that the INA does not use the term “transporting.” The Board reasoned that “section 237(a)(2)(C) is broadly construed to encompass all types of firearms offenses.”
4. Matter of Jimenez-Cedillo, 27 I&N Dec. 1 (BIA 2017)
Matter of Jimenez-Cedillo considered when a sexual offense in violation of a statute enacted to protect children is a crime involving moral turpitude. The Board held that such an offense is a crime involving moral turpitude when the victim is under the age of 14. Furthermore, it held that such an offense may be a crime involving moral turpitude if the victim is under 16 but there exists a “significant” age differential between the victim and perpetrator. In both cases, such a sexual offense statute may constitute a crime involving moral turpitude even if it does not require that the perpetrator have had a culpable mental state with respect to the age of the victim.
5. Matter of Wu, 27 I&N Dec. 8 (BIA 2017)
The Board held that a California statute criminalizing “assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury” is a categorical crime involving moral turpitude. Specifically, it found that the “unique mental state” specified in the statute provided no “realistic probability” that the statute would be used to prosecute conduct that is not turpitudinous.
6. Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017)
In Matter of W-Y-U-, the Board considered when it is appropriate for an Immigration Judge to grant administrative closure or recalendaring. It held that the primary consideration for an Immigration Judge is whether the party opposing administrative closure “has provided a persuasive reason for the case to proceed and be resolved on the merits.” In a related holding, the Board also held that an Immigration Judge cannot consider whether the alien falls within the Department of Homeland Security's (DHS's) enforcement priorities in determining whether to grant administrative closure.
7. Matter of Chairez, 27 I&N Dec. 21 (BIA 2017) (“Chairez IV”)
In the fourth Matter of Chairez decision issued by the Board, it held that an Immigration Judge may “peek” at an alien's record of conviction for the sole purpose of determining whether statutory alternatives define “elements” of a crime or the “means” of its commission. However, this “peeking” may only be undertaken in cases where “State law does not otherwise resolve the question.” We discuss the Matter of Chairez series of cases in more detail in a separate index article [see article]. For further reading, please see our article on an interesting concurring opinion in Matter of Chairez IV [see article].
8. Matter of J.M. Alvarado, 27 I&N Dec. 27 (BIA 2017)
The Board held that the “persecutor bar” in section 241(b)(3)(B)(i) of the INA applies without regard to the alien's personal motivation for assisting or participating in the persecution.
9. Matter of M-B-C-, 27 I&N Dec. 31 (BIA 2017)
Matter of M-B-C- concerned an alien for whom evidence existed suggesting that he was subject to a mandatory bar to a waiver of deportability, asylum, and withholding of removal due to being inadmissible under section 212(a)(3)(E)(iii)(II). The Board held that the alien bears the burden of establishing that he or she is not subject to a mandatory denial ground to relief “[w]here the record contains some evidence from which a reasonable factfinder could conclude that one or more grounds for mandatory denial of an application for relief may apply…” The standard of proof for the alien is the preponderance (weight) of the evidence.
10. Matter of L-E-A-, 27 I&N Dec. 40 (BIA 2017)
Matter of L-E-A- considered when a particular social group consisting of members of the applicant's family can be established . First, the Board held that whether a particular social group based on family membership is cognizable “depends on the nature and degree of the relationships involved and how those relationships are regarded by the society in question.” However, for purpose of establishing eligibility for asylum or withholding, demonstrating membership in a particular social group is not, in and of itself, sufficient. The Board continued, holding that, in order for an applicant to establish eligibility for asylum based on his or her membership in a particular social group composed of members of his or her family, the applicant must demonstrate (1) that he or she is a member of the family and (2) that the family relationship “is at least one central reason for the claimed harm.”
11. Matter of Alday-Dominguez, 27 I&N Dec. 48 (BIA 2017)
In Matter of Alday-Dominguez, the Board held that in order for a receipt of stolen property offense to constitute aggravated felony receipt of stolen property under section 101(a)(43)(G) of the INA, the statute defining the offense does not need to require that the unlawfully received property have been obtained by means of common law theft or larceny.
Matter of Alday-Dominguez was not the only aggravated felony receipt of stolen property decision of 2017. Please see our section on Matter of Deang as well [see section].
12. Matter of Falodun, 27 I&N Dec. 52 (BIA 2017)
Matter of Falodun addressed what was perhaps the most uncommon topic of the 27 published decisions of 2017. After noting that the certificate of citizenship provides evidence of citizenship status, but does not confer citizenship, the Board held that the revocation of a certificate of citizenship does not require the institution of judicial proceedings. Instead, the Department of Homeland Security may administratively revoke a certificate of citizenship. This is contrasted with the Certificate of Naturalization, which does confer citizenship and can only be revoked through judicial proceedings.
13. Matter of Deang, 27 I&N Dec. 57 (BIA 2017)
The Board held that an essential element of an INA 101(a)(43)(G) receipt of stolen property offense is that the offender must have received the property with the “knowledge or belief” that the property was stolen. This distinction is significant in that it excludes statutes that only require that the offender have had only a “reason to believe” — a lower mens rea — that the property was stolen. Accordingly, the Board held that section 32-4-5 of the South Dakota Codified Laws does not categorically define an aggravated felony receipt of stolen property offense because (1) it is indivisible with respect to the necessary mens rea, and (2) the minimum mens rea that can support a conviction is “reason to believe.” Also see our blog on an interesting dissenting opinion in Matter of Deang [see article].
Please see our article in Matter of Alday-Dominguez to learn about another decision that dealt with section 101(a)(43)(G) receipt of stolen property offenses [see section].
14. Matter of Izaguirre, 27 I&N Dec. 67 (BIA 2017)
In Matter of Izaguirre, the Board considered whether a “specified offense against a minor” for Adam Walsh Act purposes can involve a U.S. citizen or lawful permanent resident family-sponsored or K visa petitioner who solicits an undercover police officer posing as a minor. The Board found that such an offense can constitute a “specified offense against a minor” “even if it involved an undercover police officer posing as a minor, rather than an actual minor.”
Please note that the Board also addressed the Adam Walsh Act in the first decision we covered in this article, Matter of Calcano de Millan [see article].
Furthermore, please see our up-to-date article on the Adam Walsh Act for a comprehensive look at the subject [see article].
Conclusion
The first half of the Board's published decisions in 2017 touched on a variety of subjects, with especially elucidating holdings on both the Adam Walsh Act and section 101(a)(43)(G) aggravated felony receipt of stolen property offenses. Many other decisions in 2017 promise to be significant going forward. For example, Matter of J.M. Alvarado's holding on the scope of the persecutor bar and Matter of L-E-A-, 27 I&N Dec. 40 holding on asylum claims based on particular social groups comprised of the applicant's family will likely be often cited decisions for years to come.
As we noted, these articles cover only 14 of the 27 published decisions of 2017. Please see part two of our year in review to learn about the remaining decisions [see article]. We would again also remind you to see our full index of articles on administrative precedent decisions to find links to and short descriptions of not only our articles on 2017 decisions, but also our articles on decisions from earlier years [see index].