Blog Archive

A Jamaican man was convicted of conspiracy to commit a robbery, and on this basis was found to be removable as an aggravated felon.  Respondent filed a motion to terminate, but this was denied by the Immigration Judge, so he appealed, asserting that his conspiracy conviction did not require a finding of commission of an overt act, and thus is not an aggravated felony under 101(a)(43).

The BIA agreed with the Respondent, finding that the Immigration Judge went too far in considering evidence that showed that the conspirators actually did carry out the alleged robbery, saying that only the offense that is actually charged can be considered.  Thus, a conviction for conspiracy to commit a theft cannot be considered a theft offense under 101(a)(43)(G), even if there is evidence that the theft was completed.  On the issue of the conspiracy conviction, for the purposes of 101(a)(43)(U), the court held that the conspiracy does not require the commission of an overt act.  This conclusion was based on the Supreme Court decisions in Whitfield v. US, 543 U.S. 209 and United v. Shabani, 513 U.S. 10, which found that Congress had intentionally removed language from the statute negating the need to show an overt act to sustain a finding of conspiracy under the Act.  They also looked at the common law meaning of the term conspiracy, which met the same conclusion.  Thus, the court held that conspiracy under 101(a)(43)(U) does not require a finding of the commission of an overt act in furtherance of the conspiracy by one of the conspirators, and the Respondent was thus still removable.

Matter of Richardson, 25 I&N Dec. 226 (BIA 2010).

A Chinese couple applied for asylum on the basis of their two United States citizen children.  The family alleged that the wife would be subjected to forced sterilization and the family to be subjected to fines because having two children is a violation of the China’s one-child-only policy.

As evidence of their claim, they submitted affidavits from family members and friends, newspaper articles about the country policy, and an affidavit from the wife’s mother stating that she has spoken with the local Family Planning office that would have jurisdiction over the family, whom informed her that the family would be subjected to the alleged penalties.

The Immigration Judge found the respondents’ testimony credible and the evidence submitted compelling enough to grant their application for asylum.  The Government appealed, alleging that they did not adequately meet their burden of proof.

The BIA reconsidered the respondents’ applications, and, agreeing with the Government, held that they did not meet their burden of proof.  The Appellate court found especially compelling State Department country reports that stated that US officials were not aware of any official policy in China that mandates sterilization because of the birth of two or more children abroad and instead reported that the government policy of prohibited the use of physical coercion to force sterilization.  The court deemphasized the articles submitted by the Respondents on the basis that they were not adequately authenticated, having to titled author and failing to provide any specific details that supported the Respondents’ contentions.  The court similarly disqualified the affidavits of the family members and friends, specifically stating that they should not be given heavy evidentiary weight since they are not subject to cross-examination and also failed to provide sufficient detail to meet the high burden of proof for fear of persecution.  Because they were not able to show that any specific evidence to show that the wife would likely to subjected to forced sterilization, and that no evidence was submitted to show that the fines would be severe enough to put them at an economic disadvantage, the court vacated the Immigration Judge’s grant of asylum.

Matter of H-L-H- & Z-Y-Z-, 25 I&N Dec. 209 (BIA 2010).

A Peruvian man came to America on a nonimmigrant work visa, but overstayed and subsequently engaged in unauthorized employment.  DHS later approved an I-140 on his behalf, but then issued him a Notice to Appear shortly after.  He argued before the Immigration Judges that based on his approved I-140, he should be eligible for adjustment of status under INA 245(i).  The Government argued that he is not eligible because of his period of unauthorized employment.  The Immigration Judge agreed with the Government and denied his application for Adjustment of Status.  On appeal, the alien argued that the unauthorized employment provisions of second 245(c) do not apply to adjustment of status under 245(i).  The Government rebutted this argument by asserting that, instead, section 245(k)’s unauthorized employment provision does.

The BIA looked at the plain language of the INA as a whole, and determined that the Attorney General does not regard unauthorized employment as a bar to adjustment of status, and instead, the Act means to specifically exempt aliens who would otherwise be barred from applying for adjustment of status because of unauthorized employment.

Thus, the Court held that an alien who is eligible for adjustment of status under 245(i) is not barred under 245(c) because of unauthorized employment and that the exception in 245(k) applies under 245(a).

Matter of Alania-Martin, 25 I&N Dec. 231 (BIA 2010).

On February 25, 2010, the United States Court of Appeals for the Second Circuit determined that a woman’s repeated returns to her home country was not enough, in and of itself, to bar her claim for asylum.  Petitioner Nan Marie Kone grew up in Cote d’Ivori (the Ivory Coast) in a community that practiced female genital mutilation (FGM).  Since being subjected to the ritual as a young girl, she has had to cope with both the physical and mental harm she suffered.

Ms. Kone first came to the United States in 2002, and between the years began traveling back and forth between her home country and then United States.  During many of her times she returned to her home country, she suffered maltreatment, whether being arrested for her political believes or having family members murdered for their religious beliefs.  Following tumultuous events, she would seek refuge in the United States, but never gave up the hope that eventually the political and ethnic strife in her home country would be resolved.  Eventually, this hope dissipated, and she sought out asylum in the United States in 2005.

This petition was denied, based primarily on the evidence of her repeated returns to the Ivory Coast.  Asylum is based on the premise that a safe-haven will be given to those who face persecution in their home countries.  A finding of past persecution creates a rebuttable presumption that fear of future persecution is well-founded.  Evidence of FGM is generally held to be fundamental evidence of past persecution.  This places the burden on the government to show that by a preponderance of the evidence, the reasons for this fear no longer exist, because of changed circumstances.  In Ms. Kone’s case, the government argued that the evidence of her frequent visits back to her home country were enough to meet the burden of proof to show a change of circumstances.  Though the trial court agreed with this argument, the appellate court for the Second Circuit disagreed.  They instead held that while it may be relevant evidence, such evidence alone is not enough to meet the preponderance of the evidence standard.  Based on this finding, the court remanded the case for a new trial to reevaluate the circumstances surrounding Ms. Kone’s case in light of this new rule.

This holding, that the simple fact of safe return on a particular occasion does not negate the potential of future harm, can help provide precedence for many immigrants who are torn between facing heinous treatment in their home country and living a better life in the United States, at the cost of abandoning their family, friends, and previous lives.  By allowing more leeway for those who don’t up and leave their lives in one final move, this helps many of those in the worst situations have a greater chance of having hope of a better life once they have made their final decisions.

Jose Padilla, a legal permanent resident, originally from Honduras has legally resided in the United States for forty years and served in the United States Army during Vietnam faces deportation after a plea bargain on drug charges. He was thoughtful enough to ask his counsel if his plea would effect his status and he was told  that he “did not have to worry about immigration status since he had been in the country so long.”  That statement could not be more wrong.

Mr. Padilla (no relationship to the al-Quida suspect) now faces permanent deportation from a country that has been the lawful home to him and his family for forty years.  He has petitioned to set aside his guilty plea and go to trial.  His case is now pending a decision by the U.S. Supreme Court.

Click here to read the law and rationale the Supreme Court will use to reach a decision

The short answer, YES, if it relates to a procedural immigration matter and not expressly prohibited by a statute,  it may be reviewed as held in the January 2010 Supreme Court decision of Kucana v Holder.  cf 130 S. Ct. 827, (2010). This by no means implies that the Albanian immigrant Agron Kucana will ultimately prevail in his motion to reopen his removal proceedings.  The Supreme Court merely reversed the lower court decision against judicial review and remanded the case for further consideration consistent with the Supreme Court’s decision.

Agron Kucana arrived in the United States under a three month Business Visa, he then applied for asylum, however he OVERSLEPT and arrived fifteen minutes after his hearing and was therefore ordered removed in absentia.  This saga brings up many important factors in immigration law, including congressional intent, executive discretion and the court’s ability to or in some cases the court’s inability to review.  This inability to review is often unique in immigration matters as the congress has nearly plenary power to create immigration law and in many cases can prohibit judicial review.

Click here to read the law and rationale that the Supreme Court used to reach their decision.