- Introduction and Table of Decisions
- 2017 Board of Immigration Appeals Published Decisions
The Board of Immigration Appeals (BIA) published 27 decisions for precedent in 2017. These decisions will help shape immigration law in a variety of areas going forward.
As we did in 2016, we published articles on each of the administrative precedent decisions that were published in calendar-year 2017.
This is the second of two index articles providing brief descriptions of each of the 27 published decisions from 2017, links to the decisions, and links to our full articles on the decisions. If you have not done so already, please first read our articles on the first fourteen published decisions of 2017 [see article]. This article will cover the latter 13 published decisions of 2017.
Please refer to the following table of contents to find the decisions that interest you:
- 15. Matter of N-A-I-, 27 I&N Dec. 72 (BIA 2017)
- 16. Matter of J-G-D-F-, 27 I&N Dec. 82 (BIA 2017)
- 17. Matter of Mohamed, 27 I&N Dec. 92 (BIA 2017)
- 18. Matter of Delgado, 27 I&N Dec. 100 (BIA 2017)
- 19. Matter of D-R-, 27 I&N Dec. 105 (BIA 2017)
- 20. Matter of Rehman, 27 I&N Dec. 124 (BIA 2017)
- 21. Matter of Pangan-Sis, 27 I&N Dec. 130 (BIA 2017)
- 22. Matter of Vella, 27 I&N Dec. 138 (BIA 2017)
- 23. Matter of Tavdidishvili, 27 I&N Dec. 142 (BIA 2017)
- 24. Matter of Keeley, 27 I&N Dec. 146 (BIA 2017)
- 25. Matter of J-A-B- & I-J-V-A-, 27 I&N Dec. 168 (BIA 2017)
- 26. Matter of Obshatko, 27 I&N Dec. 173 (BIA 2017)
- 27. Matter of Jasso Arangure, 27 I&N Dec. 178
Please also see our comprehensive index covering every administrative precedent decision that we have written an article on [see index]. Our BIA index covers not only our articles on 2016 and 2017 precedent decisions, but also our articles on decisions from earlier years.
In Matter of N-A-I-, the Board held that once an alien adjusts from status under section 209(b) of the INA from asylee status to that of an alien lawfully admitted for permanent resident, his or her asylee status is terminated by the adjustment. Accordingly, the Board held, the restrictions on the removal of asylees in section 208(c)(1)(A) do not apply to an alien who had already adjusted from asylee status to lawful permanent residents status under section 209(b). The first part of this important decision clarified the Board's prior published decision in Matter of C-J-H-, 26 I&N Dec. 284 (BIA 2014), which we have covered in its own distinct article [see article].
The Board in Matter of J-G-D-F- considered whether a statute that criminalizes burglary of a dwelling must require that the burglarized building be occupied at the time of the crime in order for the offense to be a crime involving moral turpitude. The Board held that a statute that does not require a person to be present at the time of the offense can indeed be a crime involving moral turpitude, “provided that the dwelling is at least intermittently occupied.” Separate from the main holding, the Board also examined the respondent's claim that he faced persecution based on his membership in a particular social group of Mexicans who spent a long period in the United States. We addressed the Board's analysis — and rejection — of this claim in a separate article [see article].
The term “conviction” is defined in the INA at section 101(a)(48)(A). In Matter of Mohamed, the Board considered whether entry into a pretrial diversion agreement under Texas law qualifies as a “conviction” for purpose of section 101(a)(48)(A). The Board held that it did, “where (1) a respondent admits sufficient facts to warrant a finding of guilt at the time of his entry into the agreement, and (2) a judge authorizes an agreement ordering the respondent to participate in a pretrial intervention program, under which he is required to complete community supervision and community service, pay fees and restitution, and comply with a no contact order.” In short, the decision sets forth guidelines for assessing when entry into a pretrial diversion agreement is a “conviction” for immigration purposes. Please see our related article on the decision of the United States District Court for the Eastern District of Virginia in Iqbal v. Bryson, 604 F. Supp. 2d 822 (E.D. Va. 2009) (analyzing a pretrial diversion agreement under New York law), which was discussed in detail in a footnote by the Board in Matter of Mohamed [see article].
Does a robbery statute that includes the element of “asportation of property” constitute a categorically aggravated felony theft offense under section 101(a)(43)(G) of the INA? The Board found that it does in the case of robbery in violation of section 211 of the California Penal Code. The Board held that a conviction statute is a categorical aggravated felony theft offense “regardless of whether a violator merely aided or abetted in the asportation of the property stolen by a principal.” Notably, the Board held that the asportation element of section 211 of the California Penal Code in fact narrowed the range of conduct criminalized by the statute.
Matter of D-R- was the second decision issued in the same case, with the first being Matter of D-R-, 25 I&N Dec. 445 (BIA 2011) [PDF version]. The second Matter of D-R- decision addresses two of the three main holdings of the 2011 Matter of D-R- in light of an intervening decision of the United States Court of Appeals for the Ninth Circuit. Please note that our two articles on the new Matter of D-R- decision also address the 2011 decision.
The first and farthest-reaching holding of Matter of D-R- addresses when a “misrepresentation” is “material” under section 212(a)(6)(C)(i) of the INA. The Board held that a misrepresentation is material “when it tends to shut off a line of inquiry that is relevant to the alien's admissibility and that would predictably have disclosed other facts relevant to his eligibility for a visa, other documentation, or admission to the United States.” This holding will likely be one of the most significant to come out of the Board's 27 decisions in 2017.
In the second part of Matter of D-R-, the Board addressed how to determine whether an alien “assisted or otherwise participated in extrajudicial killing.” To this effect, it held that the adjudicator should consider “(1) the nexus between the alien's role, acts or inaction and the extrajudicial killing and (2) his scienter, meaning his prior or contemporaneous knowledge of the killing.”
In both halves of the holding, the Board declined to follow two separate Ninth Circuit decisions. We explored the implications of this in our two articles on Matter of D-R- 2017. The new Matter of D-R- left untouched several parts of the 2011 decision, which you can read about in a separate article [see article].
Matter of Rehman involves a case in which a petitioner sought to prove a familial relationship by relying on a birth certificate that had not been issued contemporaneously with the birth. The Board held that, in this situation, “an adjudicator must consider the birth certificate, as well as all the other evidence of record and the circumstances of the case” in order “to determine whether the petitioner has submitted sufficient reliable evidence to demonstrate the claimed relationship by a preponderance of the evidence.”
In Matter of Pangan-Sis, the Board struggled over the proper reading of section 212(a)(6)(A)(ii), which provides for an exception from inadmissibility based on lacking a valid immigrant visa or entry document. The exception, in general, covers cases where the alien, or his or her child, has been battered or subjected to extreme cruelty by certain specified individuals, and where there was a “substantial connection” between the battery or extreme cruelty and the unlawful entry. The question, in essence, was whether the alien must be a VAWA self-petitioner in order to benefit from the exception. The Board held that an alien seeking to qualify for the exception from inadmissibility in section 212(a)(6)(A)(ii) must satisfy all three subclauses of the section, including that he or she must be a VAWA self-petitioner.
Matter of Vella addressed when an alien “has previously been admitted to the United States as an alien lawfully admitted for permanent residence” within the meaning of the term in section 212(h) of the INA, which provides for a waiver of certain grounds of inadmissibility. The Board held that an alien was “previously admitted for lawful permanent residence” “if he or she was inspected, admitted, and physically entered the country as a lawful permanent resident at any time in the past, even if such admission was not the alien's most recent acquisition of lawful permanent resident status.” Although this decision was not favorable to the respondent, it did not represent a change in policy on the issue.
In a footnote, the Board mentioned that, following Matter of Gaglioti, 10 I&N Dec. 719 (BIA 1964), the respondent's gambling conviction was not a crime involving moral turpitude. Please see our separate article on Matter of Gaglioti to learn more [see article].
In Matter of Tavdidishvili, the Board held that “[c]riminally negligent homicide in violation of section 125.10 of the New York Penal Law is categorically not a crime involving moral turpitude…” The reasoning behind this decision was Board's finding that the statute “does not require that a perpetrator have a sufficiently culpable mental state.”
In Matter of Keeley, the Board considered the scope of the term “rape” in the aggravated felony provision of section 101(a)(43)(A) of the INA. Here, the Board first held that “rape … encompasses an act of vaginal, anal, or oral intercourse, or digital or mechanical penetration, no matter how slight.” On this issue, the Board declined to follow the United States Court of Appeals for the Fifth Circuit in Perez-Gonzalez v. Holder, 667 F.ed 622 (5th Cir. 2012). We examined the significance of this in our Matter of Keeley article. Second, having noted that “rape” requires that the underlying conduct be committed without the victim's consent, the Board held that the “without consent” requirement “may be shown by a statutory requirement that the victim's ability to appraise the nature of the conduct was substantially impaired and the offender had a culpable mental state as to such impairment.” Matter of Keeley promises to be a defining decision in the context of aggravated felony rape offenses.
In Matter of J-A-B- & I-J-V-A-, the Board considered whether an Immigration Judge has the authority to terminate removal proceedings for the purpose of allowing an alien to present an asylum claim to the Department of Homeland Security as a matter in the first instance. The Board concluded that an Immigration Judge cannot terminate removal proceedings for this purpose.
The Board considered what the appropriate approach is for determining whether a violation of an order of protection falls within the scope of the deportability provision found in section 237(a)(2)(E)(ii) of the INA. Matter of Obshatko takes a broad reading, holding that the question “is not governed by the categorical approach, even if a conviction underlies the charge…” Instead, the Board held that the Immigration Judge “should consider the probative and reliable evidence regarding what a State court has determined about an alien's violation.” The Board reached this conclusion after noting that the alternative approach presented the possibility of benefitting aliens who had actually been convicted of violating orders of protection over those aliens who had been found to have violated such orders but who had not been convicted of the crime.
The Board made two distinct holdings in Matter of Jasso Arangure, which we covered in separate articles.
The first and most significant holding was that “[t]he Department of Homeland Security is not precluded by res judicata from initiating a separate removal proceeding” to remove an alien convicted of one aggravated felony provision even if it is based on the same underlying conviction that supported a different aggravated felony charge in a prior removal proceeding. “Res judicata” refers to a matter that has already been adjudicated. An action or claim barred subject to it is precluded from further litigation. This decision will be important to watch going forward for two reasons discussed more fully in our article on the subject.
In the second part of Matter of Jasso Arangure, the Board determined that home invasion in the first degree in violation of Michigan Compiled Laws section 750.110a(2) is a categorical aggravated felony burglary offense under section 101(a)(43)(G) of the INA. Although the Board broke no new ground here, it serves as an instructive examination of a criminal statute in the section 101(a)(43)(G) context.
The Board saved some of its most important decisions in 2017 for the latter half of the year. Matter of D-R-'s analysis of materiality in the section 212(a)(6)(C)(i) context will be especially important going forward. Furthermore, Matter of Keeley examined aggravated felony rape under section 101(a)(43)(A) in a comprehensive manner. Matter of Mohamed's examination of the scope of the term “conviction” under section 101(a)(48) of the INA is also a notable decision. Matter of Obshatko clarified how the Board will assess removability for a violation of an order of protection. For those of us interested in asylum protection, the Board's holding in Matter of N-A-I- that adjustment of status terminates asylum status will be an important decision to bear in mind.
With that, we have completed our survey of all 27 published immigration precedent decisions in 2017. We look forward to covering the precedent decisions of 2018 as they are published. For those who have not done so already, please see our article covering the first 14 published decisions of 2017 [see article] and our comprehensive index of articles on BIA decisions [see index].