2016 In Review - Administrative Precedent Decisions (Part 2)

Introduction: 2016 a Year in Review #2 — Immigration Precedent Decisions

In 2016, the Board of Immigration Appeals (BIA), the Attorney General, and the Administrative Appeals Office (AAO) combined to produce 28 immigration precedent decisions. These decisions will have a significant effect on immigration law going forward. In addition to the 28 precedent decisions, the United States Citizenship and Immigration Services (USCIS) designated four AAO decisions as “adopted decisions,” meaning that the guidance therein will be binding on the USCIS going forward.

Here at myattorneyusa.com, we worked to publish articles about each of the 28 precedent decisions and 4 adopted decisions. With 2016 having come to a close, and 2017 promising to be a significant year in immigration law, we felt that it would be a good time to reflect on the year that was in new administrative precedents. In this article, we will examine the latter 14 immigration precedent decisions issued in 2016. We will provide brief summaries of each decision along with links to the corresponding full articles. In the conclusion, we will highlight the most important of these decisions for immigration law going forward.

If you have not seen it already, please read our article recapping the first 14 precedent decisions of 2016 [see article].

Additionally, please see our article recapping the four AAO adopted decisions [see article].

Please refer to the following table of contents to find the decisions that most interest you.

14. Charez and Sama / Chairez (approach to considering whether conviction is categorically a crime of violence)
15. Khan (authority to adjudicate waiver application by U petitioner)
16. Ibarra (inadmissibility for theft offense)
17. Zaragoza-Vaquero (criminal copyright infringement and CIMTs)
18. Silva-Trevino (framework for analyzing whether conviction is for a CIMT)
19. Tima (scope of deportability fraud waiver)
20. Diaz-Lizarraga (theft offense in CIMT context)
21. Obeya (theft offense in CIMT context)
22. L-T-P- (adjustment of status for Cuban parolees in limited period in 1980)
23. M-S-B- (frivolous asylum applications)
24. W-A-F-C- (proper service of notice to appear to minors)
25. Dhanasar (new analytical framework for EB2 national interest waivers)
26. Alvarado (aggravated felony perjury)

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

14. Matter of Chairez and Sama, 26 I&N Dec. 796 (AG 2016), and Matter of Chairez, 26 I&N Dec. 819 (BIA 2016)

In 2015, the Attorney General placed a stay on two BIA decisions that dealt with the proper approach to analyzing state statutes to determine whether they were aggravated felony crimes of violence. In light of the Supreme Court decision that effectively resolved the issue in Mathis v. United States [see article], the Attorney General lifted her stay the Matter of Chairez & Sama. In lifting the stay, the Attorney General remanded the record to the Board to decide the two cases for which stays had been issued.

In the Matter of Chairez, the Board issued its third published decision regarding that very case. The Board applied the categorical approach — as required by the Supreme Court decisions in Mathis and Descamps [see article] — to find that a Utah statute codifying the crime of illegal possession of a firearm was not divisible with respect to the mens rea (state of mind) necessary for the offense to qualify an as aggravated felony crime of violence.

The Board's decision in the Matter of Chairez was one of the most significant precedent decisions of 2016. The decision is generally favorable to aliens convicted of State criminal offenses in that it limits the circumstances in which adjudicators may look at the record of conviction instead of only looking at the language of the statute of conviction. In short, this means that many criminal offenses that would qualify as immigration offenses were adjudicators permitted to look at the record of conviction are excluded as such by the Board's decision in Chairez. The Board's new decision clarified its previous precedent decisions in the Matter of Chairez, 26 I&N Dec. 349 (BIA 2014), and the Matter of Chairez, 26 I&N Dec. 478 (BIA 2015).

Please see our blog post for an overview of the Chairez decisions and links to all of our articles on them, including articles about the two precedent decisions listed in this article [see blog].

15. Matter of Khan, 26 I&N Dec. 797 (BIA 2016)

In the Matter of Khan, the BIA held that Immigration Judges do not have the authority to adjudicate inadmissibility waiver requests under section 212(d)(3)(A)(ii) of the Immigration and Nationality Act (INA) for petitioners for U nonimmigrant status.

The INA includes a broad waiver provision for U visa petitioners, but vests the USCIS with the exclusive jurisdiction over such waivers. In the Matter of Khan, the Board takes the position that Immigration Judges cannot adjudicate section 212(d)(3)(A)(ii) waiver requests (this is a general waiver) for U visa petitioners. Instead, a petitioner for U nonimmigrant status must apply for a section 212(d)(14) waiver from the USCIS.

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

16. Matter of Ibarra, 26 I&N Dec. 809 (BIA 2016)

In the Matter of Ibarra, the BIA held that the provision for an aggravated felony theft offense in section 101(a)(43)(G) of the INA includes extortionate takings. Accordingly, it held that a conviction under section 211 of the California Penal Code is categorically an aggravated theft offense under section 101(a)(43)(G) of the INA.

The Matter of Ibarra is an important decision in determining the scope of section 101(a)(43)(G). The Board held that an extortion offense that is otherwise described by section 101(a)(43)(G) falls within its scope. However, the Board also made clear that embezzlement offenses are not covered by section 101(a)(43)(G).

To learn about theft offenses in this decision, please see our full article [see article].

17. Matter of Zaragoza-Vaquero, 26 I&N Dec. 814 (BIA 2016)

In the Matter of Zaragoza-Vaquero, the BIA held that a conviction for criminal copyright infringement under 17 U.S.C. 506(a)(1)(A) (2012) and 18 U.S.C. 2319(b)(1) (2012) is categorically a crime involving moral turpitude (CIMT).

In Zaragoza-Vaquero, the Board held that two federal criminal copyright statutes were categorical CIMTs. The Board noted that the federal statutes require the Government to prove beyond a reasonable doubt that the individual willfully infringed on a copyright and did so for commercial advantage or personal financial gain. It made clear that not every copyright offense — for example many civil copyright offenses — would qualify as a CIMT.

Please see our full article to learn about copyright offenses in the CIMT context [see article].

18. Matter of Silva-Trevino, 26 I&N 826 (BIA 2016)

Similarly to the Matter of Chairez issued earlier in the year, the Matter of Silva-Trevino capped a line of cases dealing with the issue of the proper approach for determining whether a conviction is for a CIMT. In 2008, the Attorney General issued the first precedent decision on Silva-Trevino, which gave Immigration Judges broad discretion to determine if an offense was a CIMT by looking beyond the language of the statute. After extensive adjudication and an adverse circuit decision, the Attorney General vacated the first precedent Silva-Trevino decision in 2015. This set the stage for the BIA to resolve the issue on remand.

In the 2016 Silva-Trevino decision, the Board held that the proper approach for determining whether a conviction is for a CIMT is the “realistic probability test.” This means that adjudicators must look to the minimum conduct that has a “realistic probability of being prosecuted” under a statute to determine if the offense is a categorical CIMT. Only if the statute is divisible may adjudicators look at the record of conviction to determine which provision of the statute the individual was convicted of violating. However, the case arose from the jurisdiction of the Fifth Circuit, which adopted a different approach called the “minimum reading” approach to determine whether a conviction was for a CIMT. For that reason, the Board applied the minimum reading approach in the instant case while taking the position that it would apply the realistic probability test in cases arising in jurisdictions where there was no contrary circuit precedent.

The Board also addressed whether an alien who had engaged in misconduct involving sexual abuse of a minor is required to make a heightened showing of hardship or other factors to establish that an application for relief warrants a favorable exercise of discretion. The Board held that such an alien need not meet a special standard for establishing eligibility for a favorable exercise of discretion.

Silva-Trevino was an extremely significant decision. Because many offenses are covered by the CIMT provisions of the INA, the standard for determining whether a conviction under a criminal statute is for a CIMT is highly important. Because there is a circuit split on this issue, it is possible that this issue will at some point reach the Supreme Court for final resolution.

Because of the length and importance of this decision, we published several articles about it. Please see our articles about the new standard for determining whether a conviction is for a CIMT [see article] and the evidentiary standard for relief for those who engaged in sexual abuse of a minor [see article]. Our articles on the first two Silva-Trevino decisions [see article] and on the AG's decision to vacate the original Silva-Trevino decision [see article] provide important background on the issues at play.

19. Matter of Tima, 26 I&N Dec. 839 (BIA 2016)

In the Matter of Tima, the BIA held that the fraud waiver found in section 237(a)(1)(H) cannot waive an alien's removability under section 237(a)(2)(A)(i) — for having committed a CIMT — even if the CIMT conviction was based on the alien's commission of the underlying fraud.

In certain cases, an alien who is removable because of fraud may also be charged as removable for having committed a CIMT based on the underlying fraud. The Board made clear in the Matter of Tima that the waiver in section 237(a)(1)(H) only waives removability for fraud, and it cannot waive removability for a CIMT even where the CIMT is based on the underlying fraud.

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

20. Matter of Diaz-Lizarraga, 26 I&N Dec. 847 (BIA 2016)

In the Matter of Diaz-Lizarraga, the BIA updated its jurisprudence on theft offenses in the CIMT context. It held that a theft offense is a CIMT if it involves the taking or exercise of control over the property of another without his or her consent, and if this taking or exercise of control is done with the intent to deprive the owner of his property “either permanently or under circumstances where the owner's property rights are substantially eroded.”

The Board's previous precedent decisions on this issue were rendered when most State theft offense statutes were worded differently than they are today. Diaz-Lizarraga provided an important update to the Board's jurisprudence on this issue. The Board read the CIMT provisions of the INA to encompass a wide range of theft offenses. Please make sure to see the next case on this list, which followed Diaz-Lizarraga.

See our full article to learn more about the Board's new jurisprudence on theft offenses in the CIMT context [see article].

21. Matter of Obeya, 26 I&N Dec. 856 (BIA 2016)

The Matter of Obeya was issued in tandem with the Matter of Diaz-Lizarraga, and it followed the reasoning of Diaz-Lizarraga. In this case, the BIA held that petit larceny in violation of section 155.25 of the New York Penal Law is categorically a CIMT. The Board reached this conclusion because the New York statute “requires an intent to deprive the owner of his property either permanently or under circumstances where the owner's property rights are substantially eroded.”

The Matter of Obeya was interesting in that it was the first application of Diaz-Lizarraga's updated rules for adjudicating when a theft offense is a CIMT outside of Diaz-Lizarraga. It is also significant in that it addresses a common petit larceny statute in New York, which is one of the United States' largest hubs for noncitizens.

Please see our full article [see article].

22. Matter of L-T-P-, 26 I&N Dec. 862 (BIA 2016)

In the Matter of L-T-P-, the BIA held that Cubans who were paroled into the United States under section 212(d)(5) of the INA between April 1, 1980, and May 18, 1980, were considered to have been admitted as refugees. It found that a Cuban who had been paroled on August 25, 1980, with a Form I-95 that was stamped “Cuban/Haitian Entrant (Status Pending)” and that indicated the parole was for “Cuban Asylum,” was ineligible to adjust status under section 209 of the INA — the adjustment provisions for refugees and asylees — because he had been neither admitted as a refugee nor later granted asylum.

In early- to mid-1980, a significant number of Cubans arrived in the United States during the Mariel boatlift, and the U.S. Government had difficulty establishing rules and procedures for dealing with the crisis. This case reflects one of the many complicated situations that arose from that period. The decision provides an interesting look into the changing situation in 1980, and it establishes a precedent that may come up in other residual cases from that period.

To learn more, please see our full article [see article].

23. Matter of M-S-B-, 26 I&N Dec. 872 (BIA 2016)

In the Matter of M-S-B-, the BIA held that an untimely application for asylum may be found to be frivolous under section 208(d)(6) of the INA. The Board had previously held this in the Matter of X-M-C-, but the Third Circuit rejected that decision. However, in the instant case, which arose from the Third Circuit, the Board held that an untimely application for asylum was frivolous because the respondent made a false statement pertaining to when he arrived in the United States, which materially affected his eligibility to apply for asylum.

In this decision, the Board followed its previous position that an untimely filed asylum application can be found to be frivolous. The decision is noteworthy because the Board held that an untimely application for asylum in the Third Circuit can be found to be frivolous under limited circumstances, notwithstanding the Third Circuit's rejection of the previous Board decision. It remains to be seen whether the Third Circuit agrees with the Board's conclusion in M-S-B-.

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

24. Matter of W-A-F-C-, 26 I&N Dec. 880 (BIA 2016)

In the Matter of W-A-F-C-, the BIA held that a when the Department of Homeland Security (DHS) seems to re-serve a respondent under the age of 14 with a notice of appearance in order to effect proper service under the regulations for serving minors under the age of 14, a continuance of proceedings should be granted for that purpose.

In effect, this decision gives the DHS a second chance to properly serve a minor under the age of 14 with a notice to appear in certain cases.

To learn more, please see our full article [see article].

25. Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016)

In the AAO's only precedent decision of 2016, it created a new analytical framework for determining when the USCIS may grant a national interest waiver to an applicant for an immigrant visa in the EB2 category. The AAO replaced its previous framework for adjudicating national interest waiver applications that had been in place since 1998.

The Matter of Dhanasar is a crucial decision in the EB2 national interest waiver context, as it completely revises the framework for adjudicating such applications. The decision promises to provide more clarity to EB2 national interest waivers and make it easier for self-petitioners to apply.

Please see our detailed articles on the new analytical framework [see article] and the facts and decision in Dhanasar [see article].

26. Matter of Alvarado, 26 I&N Dec. 895 (BIA 2016)

In the final precedent decision of 2016, the BIA revised the generic definition of perjury it uses in applying the aggravated felony perjury provision found in section 101(a)(43)(S) of the INA.

The Board changed its reasoning for how it defines generic perjury in the context of aggravated felony perjury in section 101(a)(43)(S). However, the decision is unlikely to make a significant difference in how the Board handles perjury statutes, for the new definition is very similar to the Board's previous one — which relied exclusively on a federal statute. Notably, the Board used the new definition to find that section 118(a) of the California Penal Code is categorically an offense relating to perjury, a conclusion it had reached regarding the same statute using its previous definition.

To learn more, please see our full article [see article].

Conclusion

The Board covered a variety of issues in the second set of its 2016 precedent decisions. The Matter of Chairez and the Matter of Silva-Trevino stand out as cases that should be especially important in the criminal aliens context for a long time to come. The AAO's lone precedent decision in the Matter of Dhanasar promises to be a significant decision in the employment immigration context.

It was certainly a busy year in immigration law in 2016, and we look forward to covering more important changes in the immigration law in 2017 and beyond. Please refer to the introduction for links to our other recaps of precedent and adopted decisions in 2016.