2016 in Review - Administrative Precedent Decisions (Part 1)

Introduction: 2016 a Year in Review #1 — Immigration Precedent Decisions

2016 saw the publication of 28 new precedent decisions that will help shape immigration law across a variety of areas going forward. The Board of Immigration Appeals (BIA) issued 26 of these decisions, while the U.S. Attorney General (AG) and the Administrative Appeals Office (AAO) each issued one precedent decision. Additionally, the United States Citizenship and Immigration Services (USCIS) designated four 2016 AAO decisions as “adopted decisions.” While an adopted decision is not the same as a precedent decision, it nevertheless establishes binding policy guidance for all USCIS employees.

In order to stay on top of the latest developments in immigration law, we worked diligently to publish articles on the 28 precedent decisions and four adopted decisions as they were published in 2016. Now, as we begin what promises to be an especially busy year in immigration law with a new President, it is a good time to look back at what was a busy year in immigration law. In this article, we will provide brief summaries of each of the first fourteen precedent decisions along with links to their corresponding articles. In the conclusion, we will highlight a few of the decisions that should have broad importance going forward.

Please see our article on the second set of precedent decisions [see article].

Also please our article on the four AAO adopted decisions [see article].

Please refer to the following table of contents to find decisions on issues that interest you:

1. Mendoza Osorio (deportability provision for child abuse)
2. Guzman-Polanco (1 and 2) (aggravated felony crime of violence)
3. Villalobos (adjustment of status for legalization beneficiaries)
4. Adeniye (aggravated felony failure to appear for service of sentence)
5. Ruzku (use of sibling-to-sibling DNA test results)
6. Garza-Olivares (aggravated felony failure to appear before a court)
7. Gonzalez Romo (solicitation to possess marijuana for sale and CIMT)
8. H. Estrada (deportability provision for crime of domestic violence)
9. M-H-Z- (no implied duress exception to material support bar)
10. Gomez-Beltran (establishing good moral character and false testimony under oath to procure immigration benefits)
11. M-J-K- (mental competency safeguards in proceedings)
12. Richmond (inadmissibility for false claim to U.S. citizenship)
13. Fatahi (bond pending removal proceedings)

(Order courtesy of the Department of Justice [link])

Board of Immigration Appeals/Attorney General Precedent Decisions

1. Matter of Mendoza Osorio, 26 I&N Dec. 703 (BIA 2016)

In its first precedent decision of 2016, the BIA held that the offense of endangering the welfare of a child in violation of section 260.10(1) of the New York Penal Law is categorically a “crime of child abuse, child neglect, or child abandonment” under section 237(a)(2)(E)(i) of the INA. The Board reached this conclusion based in part upon its assessment of the state of mind element of the New York law, and finding that the New York statute “requires knowingly acting in a manner likely to be injurious to the physical, mental, or moral welfare of a child.”

This decision is significant because the Board took a broad view of the scope of the deportability provision in section 237(a)(2)(E)(i), making it important for those facing charges in violation of statutes similar to the New York statute at issue in this case.

See our full article to learn about this decision in detail [see article].

2. Matter of Guzman-Polanco, 26 I&N Dec. 713 (BIA 2016), and Matter of Guzman-Polanco, 26 I&N Dec. 806 (BIA 2016)

The BIA issued two decisions regarding the Matter of Guzman-Polanco. In the first and most important decision, the Board held that, in order for a State offense to qualify as an crime of violence under 18 U.S.C. 16(a), the State statute “must require as an element the use, attempted use, or threatened use of violent physical force.” The Board abandoned its previous precedent decision in the Matter of Martin, 23 I&N Dec. 491 (BIA 2002).

The important aspect of this decision is that it potentially limits the scope of the immigration aggravated felony crime of violence under section 101(a)(43)(F) of the INA by its emphasis on the requirement and potential interpretation of “violent physical force” when applied to the analysis of convictions under other statutes Indeed, in the second Matter of Guzman-Polanco decision, the Board clarified that it had not taken a position on whether “conduct such as the use or threatened use of poison to injure another person” would constitute “the use, attempted use, or threatened use of violent physical force” so as to constitute an aggravated felony crime of violence.

Please see our articles on the first [see article] and second [see article] Guzman-Polanco decisions.

3. Matter of Villalobos, 26 I&N Dec. 719 (BIA 2016)

In the Matter of Villalobos, the BIA issued a decision concerning adjustment of status for those who benefited from the legalization provisions of section 245A. The Board held that an alien seeking permanent resident status through the legalization provisions of section 245A must establish that he or she was admissible both at the initial application for temporary resident status and when applying for adjustment to permanent resident status under section 245A(b)(1). Thus, the Board ultimately held that an alien who was inadmissible at the time of adjustment of status from temporary resident status to permanent resident status under section 245A(b)(1) of the INA was not lawfully admitted for permanent residence.

The Matter of Villalobos highlights the fact that, despite their age, the legalization provisions of section 245A still arise in a limited number of legalization adjustment cases regarding their interpretation and application. This decision will be important in a limited number of legalization adjustment cases.

Please see our full article to learn more [see article].

4. Matter of Adeniye, 26 I&N Dec. 726 (BIA 2016)

The Matter of Adeniye concerned the aggravated felony provision in section 101(a)(43)(Q) for failure to appear. The BIA held that an offense relating to failure to appear by a defendant for service of sentence is an aggravated felony only if the underlying offense was “punishable by” a term of imprisonment of 5 years or more.

In this decision, the Board put the emphasis on the maximum sentence that could be imposed rather than the actual sentence imposed in determining whether failure to appear at sentencing constitutes an aggravated felony.

Please see our full article to learn about this decision in detail [see article].

5. Matter of Ruzku, 26 I&N Dec. 731 (BIA 2016)

In the Matter of Ruzku, the BIA held that “direct sibling-to-sibling DNA test results reflecting a 99.5 percent degree of certainty or higher that a full sibling biological relationship exists should be accepted and considered probative evidence of the relationship.”

In this decision, the Board explicitly rejected a USCIS policy that did not allow for the use of sibling-to-sibling DNA test results to establish a full sibling biological relationship. This decision will likely be most important for U.S. citizens seeking to file a petition on behalf of a sibling where other forms of evidence — for whatever reason — may be unavailable.

See our full article to learn more [see article].

6. Matter of Garza-Olivares, 26 I&N Dec. 736

The Matter of Garza-Oliveras concerned the aggravated felony provision in section 101(a)(43)(T) for failure to appear before a court (note that this is a different provision than section 101(a)(43)(Q), which was addressed in the fourth case on this list, the Matter of Adeniye). The BIA held that the categorical approach must be used to determine whether the offense was for a failure to appear before a court, but the circumstance-specific approach must be used to determine whether the failure to appear was under a court order and to answer or dispose of a charge of a felony for which a sentence of 2 years' imprisonment or more may be imposed.

In Garza-Olivares, the Board established a two-part approach to determining whether a failure to appear offense falls within the scope of section 101(a)(43)(T).

See our article to learn more about this decision [see article].

7. Matter of Gonzalez Romo, 26 I&N Dec. 743 (BIA 2016)

In the Matter of Gonzalez Romo, the BIA held that, within the jurisdiction of the Ninth Circuit, a conviction for solicitation to possess marijuana for sale renders an alien inadmissible for a CIMT. The Board reached this decision despite the fact that the CIMT provision only refers to “attempted and conspiracy to commit a [CIMT]” and makes no reference to solicitation to commit an CIMT. The Board thereby clarified its previous precedent decision in the Matter of Vo, 25 I&N Dec. 426 (BIA 2011).

This decision is significant in that the Board reads the INA's CIMT provision to encompass solicitation offenses. As we note in our article, it is unclear whether the circuits — most notably the Ninth Circuit — will accept the Board's broad reading of the CIMT provision in Gonzalez Romo.

Please see our full article to learn about the Board's reasoning and the long term prospects for this decision [see article].

8. Matter of H. Estrada, 26 I&N Dec. 749 (BIA 2016)

The Matter of H Estrada is an interesting decision in that it can be broken into two parts.

The first part of the H Estrada deals with the deportability provision for a crime of domestic violence under section 237(a)(2)(E)(i). Here, the BIA held that the “circumstance-specific approach” should be used to determine the domestic nature of the offense.

In the second part of the H Estrada, the Board held that, where the respondent's original sentence was ambiguous as to whether he was sentenced to probation or to a probated term of imprisonment, a clarification order issued by the sentencing judge would be given effect for the purpose of determining what the respondent was sentenced to.

Because of the interesting nature of this decision, we wrote three separate articles about the facts [see article], the circumstance-specific approach [see article], and determining the sentence [see article].

9. Matter of M-H-Z-, 26 I&N Dec. 757 (BIA 2016)

In the Matter of M-H-Z-, the BIA held that the section 212(a)(3)(B)(iv)(VI) material support bar does not contain an implied duress exception.

The significance of this decision is that the Board held that, in order for an alien who provided material support to a terrorist organization to be exempt from section 212(a)(3)(B)(iv)(VI), he or she must procure a waiver under section 212(d)(3)(B)(i). Thus, even if the alien demonstrates that the material support was provided under duress, because there is no exception in the language of section 212(a)(3)(B)(B)(iv)(VI) itself, the alien must instead attempt to satisfy the requirements for a waiver under section 212(d)(3)(B)(i). This decision will be most relevant in the asylum and withholding of removal contexts where the material support bar may come into play.

See our full article to learn about this decision in detail [see article].

10. Matter of Gomez-Beltran, 26 I&N Dec. 765 (BIA 2016)

In the Matter of Gomez-Beltran, the BIA held that an alien cannot establish good moral character under section 101(f)(6) of the INA if, during the period for which good moral character was required, he or she gave false testimony under oath in proceedings before an Immigration Judge with the subjective intent of obtaining immigration benefits.

Because this decision deals with both good moral character determinations and testimony before an Immigration Judge, it is most important in the context of applications for cancellation of removal or voluntary departure.

See our article to learn more about this decision [see article].

11. Matter of M-J-K-, 26 I&N Dec. 773 (BIA 2016)

In the Matter of M-J-K-, the BIA held that the Immigration Judge has the discretion to select and implement appropriate mental competency safeguards in immigration proceedings. The Board has the authority to review such safeguards.

See our full article to learn more about this decision [see article].

12. Matter of Richmond, 26 I&N Dec. 779 (BIA 2016)

In the Matter of Richmond, the BIA issued a detailed analysis of the inadmissibility provision for making a false claim to U.S. citizenship that is found in section 212(a)(6)(C)(ii)(I) of the INA. The Board held that a false claim to citizenship falls within the scope of section 212(a)(6)(C)(ii)(I) “where there is direct or circumstantial evidence that the false claim was made with the subjective intent of obtaining a purpose or benefit under the [INA] or any other Federal or State Law, and where United States citizenship actually affects or matters to the purpose or benefit sought.” The Board then held that there is a distinction between the terms “purpose” and “benefit” in section 212(a)(6)(C)(ii)(I). Finally, the Board held that avoiding removal proceedings is a “purpose” under the same provision.

The Matter of Richmond is the most important precedent decision to this date interpreting the inadmissibility provision for a false claim to U.S. citizenship. The Board's decision that making a false claim to U.S. citizenship to avoid removal proceedings is a “purpose” under section 212(a)(6)(C)(ii)(I) means that the provision will cover one of the most common reasons that one would make a false claim to U.S. citizenship.

The Matter of Richmond was the second longest published decision issued by the Board in 2016. Because of its length, we wrote separate articles about the Board's analysis of the inadmissibility ground [see article] and the facts and decision in the instant case [see article]. Subsequent to the decision, the USCIS issued new policy guidance on the inadmissibility ground that incorporated the Board's decision in the Matter of Richmond. Please see our full article on the policy guidance to learn more [see article].

13. Matter of Fatahi, 26 I&N Dec. 791 (BIA 2016)

In the Matter of Fatahi, the BIA held that an Immigration Judge should consider both direct and circumstantial evidence of dangerousness, “including whether the facts and circumstances present national security considerations,” in determining whether an alien in immigration custody presents a “danger to the community at large and thus should not be released on bond pending removal proceedings.” The Board's decision gives broad authority to Immigration Judges to consider even circumstantial evidence that an alien in immigration custody presents a danger to the community. In certain cases, this will make it less likely that an alien will be granted bond.

This is the last decision that we will cover in this article. Please see our full article to learn more about the Board's decision and what it means going forward [see article].

Conclusion

The first set of precedent decisions issued by the Board in 2016 touched on a wide range of subjects, from sibling-to-sibling DNA testing, to determining when a conviction is for a crime of violence or CIMT, to a detailed analysis of the inadmissibility provision for false claims to U.S. citizenship. The breadth of these decisions, and the second set of decisions issued in 2016, will affect thousands of individuals in a multitude of cases.

To read about the second set of precedent decisions issued in 2016, please see our full article [see article].