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Lory D. Rosenberg on Appeal Matters

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  1. Much Sound and Fury: Matter of E-F-H-L-, 27 I&N Dec. 226 (A.G. 2018)


    Attorney General Sessions' decision of March 5, 2018, vacating Matter of E-F-H-L-, 26 I&N Dec. 319 (BIA 2014), may be motivated by any number of explanations, as Judge Paul Schmidt of Immigration Courtside thoughtfully suggests. Seehttp://immigrationcourtside.com/2018/03/06/sessions-goes-deep-to-undermine-due-process-matter-of-e-f-h-l-27-in-dec-226-a-g-2018/.

    Nevertheless, the AG’s cryptic and unreasoned ruling will predictably engender more litigation and take up more court time than arguably may be saved by denying all asylum seekers access to the due process protections codified in the statute and regulations, and reiterated in numerous currently standing BIA precedents and federal circuit court decisions.

    First, he vacated a 4 year old precedent decision of the Board of Immigration Appeals, an action that should not be taken lightly. Cf. Matter of E-F-H-L- 26 I&N Dec. 319 (BIA 2014)(remanding with instructions to honor the guarantee of a full evidentiary hearing on an asylum claim). The AG contends that “[b]ecause the application for relief which served as the predicate for the evidentiary hearing required by the Board has been withdrawn with prejudice, the Board’s decision is effectively mooted.” Matter of E-F-H-L-, 27 I&N Dec. 226 (A.G. 2018). To the contrary, it is worth noting that, historically, many of the Board’s precedent decisions, which have been rendered moot by federal circuit court reversals or remands, have nonetheless remained in force and served as precedent in all cases other than that of the named respondent.

    Assuming the AG’s decision was more than a knee-jerk, irrational, result-oriented response to an IJ’s administrative close order, but a decision fit for an Attorney General, he is expected to have read the Board's reasoning in reaching the outcome it reached in E-F-H-L- (BIA). The Board plainly recognized the applicability of the statutory provisions that guarantee "​a reasonable opportunity to examine the evidence against the alien, to present evidence on the alien’s own behalf, and to cross-examine witnesses presented by the Government.” See ​section 240(b)(4)(B) of the Act, 8 U.S.C. § 1229a(b) (4)(B)(2012)​(governing ​procedures in removal proceedings)​. In contrast, the AG’s opinion contains no reasoning what so ever and reveals no effort to respect the terms of the statute, much less to distinguish them in any way.

    Second, the Board's decision in E-F-H-L- also cited to governing ​"​regulations implementing these statutory provisions in the context of asylum and withholding of removal applications​,” which provide that,


    • such applications for relief filed with the Immigration Court will be decided “after an evidentiary hearing to resolve factual issues in dispute,” 8 C.F.R. § 1240.11(c)(3) (2013).
    • ​such an evidentiary hearing will entail​ the respondent “shall be examined under oath on his or her application and may present evidence and witnesses in his or her own behalf,” 8 C.F.R. § 1240.11(c)(3)(iii). ​
    • such regulations also apply to applications for withholding or deferral of removal under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ​(citation omitted).


    The Board specifically recognized that “[t]hese regulations clearly give the Immigration Judge ‘the authority . . . to properly control the scope of any evidentiary hearing,’ 8 C.F.R. § 1240.11(c)(3)(ii) . . .” and to discontinue or limit an evidentiary hearing “in the interests of efficiency, including by limiting testimony and focusing issues.” Nonetheless, the Board ruled in E-F-H-L- that, at a minimum, there must be an evidentiary hearing, which includes “an opportunity for the respondent to present evidence and witnesses in his or her own behalf.” See 8 C.F.R. § 1240.11(c)(3). In contrast, the AG’s opinion offers no colorable justification for abrogating these regulations, which remain in force, making his action in vacating the Board’s precedent in E-F-H-L-ultra vires.

    Third, the Board’s decision refers to numerous Board precedent decisions standing for the principles elucidated concerning the need for taking oral testimony and for a meaningful evidentiary hearing in adjudicating asylum applications. See e.g., Matter of Fefe,​ 20 I&N Dec. 116, 118 (BIA 1989); Matter of Mogharrabi, 19 I&N Dec. 439, 445 (BIA 1987); Matter of Interiano-Rosa, 25 I&N Dec. 264, 266 (BIA 2010); cf. Matter of Ruiz, 20 I&N Dec. 91, 93 (BIA 1989) (holding that in absentia proceedings should have been reopened once the alien established reasonable cause for his failure to appear, because he retained the right to present his asylum claim at a full evidentiary hearing, regardless of whether prima facie eligibility for relief had been shown).Matter of C-B-, 25 I&N Dec. 888, 890−91 (BIA 2012); Matter of A-S-, 21 I&N Dec. 1106 (BIA 1998). No matter what the Attorney General’s vacation of the Board’s E-F-H-L- precedent is read to mean, the AG fails to indicate that any of these other Board precedents governing evidentiary hearings are disturbed or no longer in effect and they remain in force.

    What is more, the Board’s decision recognized that numerous federal courts of appeal nationwide have endorsed and upheld the statutory and regulatory promise of a full and fair evidentiary hearing. See e.g., Litvinov v. Holder, 605 F.3d 548, 555−56 (8th Cir. 2010); Hoxha v. Gonzales, 446 F.3d 210, 214, 217−18 (1st Cir. 2006); Arulampalam v. Ashcroft, 353 F.3d 679, 688 (9th Cir. 2003). See also Sankoh v. Mukasey, 539 F.3d 456, 467 (7th Cir. 2008); Islam v. Gonzales, 469 F.3d 53, 55 (2d Cir. 2006); Mekhoukh v. Ashcroft, 358 F.3d 118, 129 & n.14 (1st Cir. 2004); cf. Oshodi v. Holder, 729 F.3d 883, 889−93 (9th Cir. 2013) (en banc) (holding that an alien’s Fifth Amendment due process right to a full and fair hearing, which includes the opportunity to present evidence and testify on one’s behalf, was violated where the Immigration Judge denied relief solely on an adverse credibility finding after refusing to allow the alien to testify to the contents of his applications). Notably, the AG’s decision vacating E-F-H-L- does not trigger Brand X authority such that the rulings of these federal courts are supplanted or no longer control administrative hearings taking place within the jurisdiction of those courts. Cf. National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U.S. 967, 982 (2005) (“A court’s prior judicial construction of a statute trumps an agency construction otherwise entitled to Chevron deference where the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion.”)

    Accordingly, for reasons of statutory, regulatory, and administrative precedential authority, and reasons of federal acquiescence, the AG’s vacation of Matter of E-F-H-L has no impact on the right to an evidentiary hearing on an asylum application. By the AG’s own admission in the case vacated, the respondent had withdrawn his asylum application with prejudice upon remand in favor of administrative closure to permit an I-130 petition to be adjudicated. Thus, the AG’s ruling vacating E-F-H-L- cannot stand for any principled holding with respect to the right to an evidentiary hearing in asylum cases.

    In fact, the IJ’s order of administrative closure of the removal hearing, while allowing USCIS to engage in a timely adjudication of a petition that ultimately might confer lawful status on the respondent, had the mutually beneficial effect of freeing up the court’s time to attend to its heavily backlogged docket. Upon recalendaring in the instant case, the respondent may wish to challenge his previous “withdrawal with prejudice” and seek to re-raise his asylum claim on due process grounds.

    Moreover, in light of the AG’s decision, respondents in general would be well-advised to exercise their statutory and regulatory rights to a full evidentiary hearing in their asylum claims, notwithstanding the potential availability of other forms of relief. Likewise, attorneys would be well-advised to consider their obligations in relation to Matter of Lozada, before counseling respondents to withdraw viable applications. The AG’s decision sends a clear message that notwithstanding their best intentions, IJs intentions to fairly resolve removal hearings may be disrupted without notice.

    Beyond inefficiently and ineffectively usurping the IJ’s authority to control his or her docket, it is unclear just what the AG intended to accomplish. We are left, perhaps, with much “sound and fury, signifying nothing.” Shakespeare, Macbeth Act 5, scene 5.






    c. Lory D. Rosenberg

    Updated 03-06-2018 at 08:44 PM by Lrosenberg

  2. Much Sound and Fury: Matter of E-F-H-L-, 27 I&N Dec. 226 (A.G. 2018)


    Attorney General Sessions' decision of March 5, 2018, vacating Matter of E-F-H-L-, 26 I&N Dec. 319 (BIA 2014) be motivated by any number of explanations, as Judge Paul Schmidt of Immigration Courtside thoughtfully suggests. Seehttp://immigrationcourtside.com/2018/03/06/sessions-goes-deep-to-undermine-due-process-matter-of-e-f-h-l-27-in-dec-226-a-g-2018/.

    Nevertheless, the AG’s cryptic and unreasoned ruling will predictably engender more litigation and take up more court time than arguably may be saved by denying all asylum seekers access to the due process protections codified in the statute and regulations, and reiterated in numerous currently standing BIA precedents and federal circuit court decisions.

    First, he vacated a 4 year old precedent decision of the Board of Immigration Appeals, an action that should not be taken lightly. Cf. Matter of E-F-H-L- 26 I&N Dec. 319 (BIA 2014)(remanding with instructions to honor the guarantee of a full evidentiary hearing on an asylum claim). The AG contends that “[b]ecause the application for relief which served as the predicate for the evidentiary hearing required by the Board has been withdrawn with prejudice, the Board’s decision is effectively mooted.” Matter of E-F-H-L-, 27 I&N Dec. 226 (A.G. 2018). To the contrary, it is worth noting that, historically, many of the Board’s precedent decisions, which have been rendered moot by federal circuit court reversals or remands, have nonetheless remained in force and served as precedent in all cases other than that of the named respondent.

    Assuming the AG’s decision was more than a knee-jerk, irrational, result-oriented response to an IJ’s administrative close order, but a decision fit for an Attorney General, he is expected to have read the Board's reasoning in reaching the outcome it reached in E-F-H-L- (BIA). The Board plainly recognized the applicability of the statutory provisions that guarantee "​a reasonable opportunity to examine the evidence against the alien, to present evidence on the alien’s own behalf, and to cross-examine witnesses presented by the Government.” See ​section 240(b)(4)(B) of the Act, 8 U.S.C. § 1229a(b) (4)(B)(2012)​(governing ​procedures in removal proceedings)​. In contrast, the AG’s opinion contains no reasoning what so ever and reveals no effort to respect the terms of the statute, much less to distinguish them in any way.

    Second, the Board's decision in E-F-H-L- also cited to governing ​"​regulations implementing these statutory provisions in the context of asylum and withholding of removal applications​,” which provide that,


    • such applications for relief filed with the Immigration Court will be decided “after an evidentiary hearing to resolve factual issues in dispute,” 8 C.F.R. § 1240.11(c)(3) (2013).
    • ​such an evidentiary hearing will entail​ the respondent “shall be examined under oath on his or her application and may present evidence and witnesses in his or her own behalf,” 8 C.F.R. § 1240.11(c)(3)(iii). ​
    • such regulations also apply to applications for withholding or deferral of removal under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ​(citation omitted).


    The Board specifically recognized that “[t]hese regulations clearly give the Immigration Judge ‘the authority . . . to properly control the scope of any evidentiary hearing,’ 8 C.F.R. § 1240.11(c)(3)(ii) . . .” and to discontinue or limit an evidentiary hearing “in the interests of efficiency, including by limiting testimony and focusing issues.” Nonetheless, the Board ruled in E-F-H-L- that, at a minimum, there must be an evidentiary hearing, which includes “an opportunity for the respondent to present evidence and witnesses in his or her own behalf.” See 8 C.F.R. § 1240.11(c)(3). In contrast, the AG’s opinion offers no colorable justification for abrogating these regulations, which remain in force, making his action in vacating the Board’s precedent in E-F-H-L-ultra vires.

    Third, the Board’s decision refers to numerous Board precedent decisions standing for the principles elucidated concerning the need for taking oral testimony and for a meaningful evidentiary hearing in adjudicating asylum applications. See e.g., Matter of Fefe,​ 20 I&N Dec. 116, 118 (BIA 1989); Matter of Mogharrabi, 19 I&N Dec. 439, 445 (BIA 1987); Matter of Interiano-Rosa, 25 I&N Dec. 264, 266 (BIA 2010); cf. Matter of Ruiz, 20 I&N Dec. 91, 93 (BIA 1989) (holding that in absentia proceedings should have been reopened once the alien established reasonable cause for his failure to appear, because he retained the right to present his asylum claim at a full evidentiary hearing, regardless of whether prima facie eligibility for relief had been shown).Matter of C-B-, 25 I&N Dec. 888, 890−91 (BIA 2012); Matter of A-S-, 21 I&N Dec. 1106 (BIA 1998). No matter what the Attorney General’s vacation of the Board’s E-F-H-L- precedent is read to mean, the AG fails to indicate that any of these other Board precedents governing evidentiary hearings are disturbed or no longer in effect and they remain in force.

    What is more, the Board’s decision recognized that numerous federal courts of appeal nationwide have endorsed and upheld the statutory and regulatory promise of a full and fair evidentiary hearing. See e.g., Litvinov v. Holder, 605 F.3d 548, 555−56 (8th Cir. 2010); Hoxha v. Gonzales, 446 F.3d 210, 214, 217−18 (1st Cir. 2006); Arulampalam v. Ashcroft, 353 F.3d 679, 688 (9th Cir. 2003). See also Sankoh v. Mukasey, 539 F.3d 456, 467 (7th Cir. 2008); Islam v. Gonzales, 469 F.3d 53, 55 (2d Cir. 2006); Mekhoukh v. Ashcroft, 358 F.3d 118, 129 & n.14 (1st Cir. 2004); cf. Oshodi v. Holder, 729 F.3d 883, 889−93 (9th Cir. 2013) (en banc) (holding that an alien’s Fifth Amendment due process right to a full and fair hearing, which includes the opportunity to present evidence and testify on one’s behalf, was violated where the Immigration Judge denied relief solely on an adverse credibility finding after refusing to allow the alien to testify to the contents of his applications). Notably, the AG’s decision vacating E-F-H-L- does not trigger Brand X authority such that the rulings of these federal courts are supplanted or no longer control administrative hearings taking place within the jurisdiction of those courts. Cf. National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U.S. 967, 982 (2005) (“A court’s prior judicial construction of a statute trumps an agency construction otherwise entitled to Chevron deference where the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion.”)

    Accordingly, for reasons of statutory, regulatory, and administrative precedential authority, and reasons of federal acquiescence, the AG’s vacation of Matter of E-F-H-L has no impact on the right to an evidentiary hearing on an asylum application. By the AG’s own admission in the case vacated, the respondent had withdrawn his asylum application with prejudice upon remand in favor of administrative closure to permit an I-130 petition to be adjudicated. Thus, the AG’s ruling vacating E-F-H-L- cannot stand for any principled holding with respect to the right to an evidentiary hearing in asylum cases.

    In fact, the IJ’s order of administrative closure of the removal hearing, while allowing USCIS to engage in a timely adjudication of a petition that ultimately might confer lawful status on the respondent, had the mutually beneficial effect of freeing up the court’s time to attend to its heavily backlogged docket. Upon recalendaring in the instant case, the respondent may wish to challenge his previous “withdrawal with prejudice” and seek to re-raise his asylum claim on due process grounds.

    Moreover, in light of the AG’s decision, respondents in general would be well-advised to exercise their statutory and regulatory rights to a full evidentiary hearing in their asylum claims, notwithstanding the potential availability of other forms of relief. Likewise, attorneys would be well-advised to consider their obligations in relation to Matter of Lozada, before counseling respondents to withdraw viable applications. The AG’s decision sends a clear message that notwithstanding their best intentions, IJs intentions to fairly resolve removal hearings may be disrupted without notice.

    Beyond inefficiently and ineffectively usurping the IJ’s authority to control his or her docket, it is unclear just what the AG intended to accomplish. We are left, perhaps, with much “sound and fury, signifying nothing.” Shakespeare, Macbeth Act 5, scene 5.





  3. Much Sound and Fury: Matter of E-F-H-L-, 27 I&N Dec. 226 (A.G. 2018)


    Attorney General Sessions' decision of March 5, 2018, vacating Matter of E-F-H-L-, 26 I&N Dec. 319 (BIA 2014) be motivated by any number of explanations, as Judge Paul Schmidt of Immigration Courtside thoughtfully suggests. Seehttp://immigrationcourtside.com/2018/03/06/sessions-goes-deep-to-undermine-due-process-matter-of-e-f-h-l-27-in-dec-226-a-g-2018/.

    Nevertheless, the AG’s cryptic and unreasoned ruling will predictably engender more litigation and take up more court time than arguably may be saved by denying all asylum seekers access to the due process protections codified in the statute and regulations, and reiterated in numerous currently standing BIA precedents and federal circuit court decisions.

    First, he vacated a 4 year old precedent decision of the Board of Immigration Appeals, an action that should not be taken lightly. Cf. Matter of E-F-H-L- 26 I&N Dec. 319 (BIA 2014)(remanding with instructions to honor the guarantee of a full evidentiary hearing on an asylum claim). The AG contends that “[b]ecause the application for relief which served as the predicate for the evidentiary hearing required by the Board has been withdrawn with prejudice, the Board’s decision is effectively mooted.” Matter of E-F-H-L-, 27 I&N Dec. 226 (A.G. 2018). To the contrary, it is worth noting that, historically, many of the Board’s precedent decisions, which have been rendered moot by federal circuit court reversals or remands, have nonetheless remained in force and served as precedent in all cases other than that of the named respondent.

    Assuming the AG’s decision was more than a knee-jerk, irrational, result-oriented response to an IJ’s administrative close order, but a decision fit for an Attorney General, he is expected to have read the Board's reasoning in reaching the outcome it reached in E-F-H-L- (BIA). The Board plainly recognized the applicability of the statutory provisions that guarantee "​a reasonable opportunity to examine the evidence against the alien, to present evidence on the alien’s own behalf, and to cross-examine witnesses presented by the Government.” See ​section 240(b)(4)(B) of the Act, 8 U.S.C. § 1229a(b) (4)(B)(2012)​(governing ​procedures in removal proceedings)​. In contrast, the AG’s opinion contains no reasoning what so ever and reveals no effort to respect the terms of the statute, much less to distinguish them in any way.

    Second, the Board's decision in E-F-H-L- also cited to governing ​"​regulations implementing these statutory provisions in the context of asylum and withholding of removal applications​,” which provide that,


    • such applications for relief filed with the Immigration Court will be decided “after an evidentiary hearing to resolve factual issues in dispute,” 8 C.F.R. § 1240.11(c)(3) (2013).
    • ​such an evidentiary hearing will entail​ the respondent “shall be examined under oath on his or her application and may present evidence and witnesses in his or her own behalf,” 8 C.F.R. § 1240.11(c)(3)(iii). ​
    • such regulations also apply to applications for withholding or deferral of removal under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ​(citation omitted).


    The Board specifically recognized that “[t]hese regulations clearly give the Immigration Judge ‘the authority . . . to properly control the scope of any evidentiary hearing,’ 8 C.F.R. § 1240.11(c)(3)(ii) . . .” and to discontinue or limit an evidentiary hearing “in the interests of efficiency, including by limiting testimony and focusing issues.” Nonetheless, the Board ruled in E-F-H-L- that, at a minimum, there must be an evidentiary hearing, which includes “an opportunity for the respondent to present evidence and witnesses in his or her own behalf.” See 8 C.F.R. § 1240.11(c)(3). In contrast, the AG’s opinion offers no colorable justification for abrogating these regulations, which remain in force, making his action in vacating the Board’s precedent in E-F-H-L-ultra vires.

    Third, the Board’s decision refers to numerous Board precedent decisions standing for the principles elucidated concerning the need for taking oral testimony and for a meaningful evidentiary hearing in adjudicating asylum applications. See e.g., Matter of Fefe,​ 20 I&N Dec. 116, 118 (BIA 1989); Matter of Mogharrabi, 19 I&N Dec. 439, 445 (BIA 1987); Matter of Interiano-Rosa, 25 I&N Dec. 264, 266 (BIA 2010); cf. Matter of Ruiz, 20 I&N Dec. 91, 93 (BIA 1989) (holding that in absentia proceedings should have been reopened once the alien established reasonable cause for his failure to appear, because he retained the right to present his asylum claim at a full evidentiary hearing, regardless of whether prima facie eligibility for relief had been shown).Matter of C-B-, 25 I&N Dec. 888, 890−91 (BIA 2012); Matter of A-S-, 21 I&N Dec. 1106 (BIA 1998). No matter what the Attorney General’s vacation of the Board’s E-F-H-L- precedent is read to mean, the AG fails to indicate that any of these other Board precedents governing evidentiary hearings are disturbed or no longer in effect and they remain in force.

    What is more, the Board’s decision recognized that numerous federal courts of appeal nationwide have endorsed and upheld the statutory and regulatory promise of a full and fair evidentiary hearing. See e.g., Litvinov v. Holder, 605 F.3d 548, 555−56 (8th Cir. 2010); Hoxha v. Gonzales, 446 F.3d 210, 214, 217−18 (1st Cir. 2006); Arulampalam v. Ashcroft, 353 F.3d 679, 688 (9th Cir. 2003). See also Sankoh v. Mukasey, 539 F.3d 456, 467 (7th Cir. 2008); Islam v. Gonzales, 469 F.3d 53, 55 (2d Cir. 2006); Mekhoukh v. Ashcroft, 358 F.3d 118, 129 & n.14 (1st Cir. 2004); cf. Oshodi v. Holder, 729 F.3d 883, 889−93 (9th Cir. 2013) (en banc) (holding that an alien’s Fifth Amendment due process right to a full and fair hearing, which includes the opportunity to present evidence and testify on one’s behalf, was violated where the Immigration Judge denied relief solely on an adverse credibility finding after refusing to allow the alien to testify to the contents of his applications). Notably, the AG’s decision vacating E-F-H-L- does not trigger Brand X authority such that the rulings of these federal courts are supplanted or no longer control administrative hearings taking place within the jurisdiction of those courts. Cf. National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U.S. 967, 982 (2005) (“A court’s prior judicial construction of a statute trumps an agency construction otherwise entitled to Chevron deference where the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion.”)

    Accordingly, for reasons of statutory, regulatory, and administrative precedential authority, and reasons of federal acquiescence, the AG’s vacation of Matter of E-F-H-L has no impact on the right to an evidentiary hearing on an asylum application. By the AG’s own admission in the case vacated, the respondent had withdrawn his asylum application with prejudice upon remand in favor of administrative closure to permit an I-130 petition to be adjudicated. Thus, the AG’s ruling vacating E-F-H-L- cannot stand for any principled holding with respect to the right to an evidentiary hearing in asylum cases.

    In fact, the IJ’s order of administrative closure of the removal hearing, while allowing USCIS to engage in a timely adjudication of a petition that ultimately might confer lawful status on the respondent, had the mutually beneficial effect of freeing up the court’s time to attend to its heavily backlogged docket. Upon recalendaring in the instant case, the respondent may wish to challenge his previous “withdrawal with prejudice” and seek to re-raise his asylum claim on due process grounds.

    Moreover, in light of the AG’s decision, respondents in general would be well-advised to exercise their statutory and regulatory rights to a full evidentiary hearing in their asylum claims, notwithstanding the potential availability of other forms of relief. Likewise, attorneys would be well-advised to consider their obligations in relation to Matter of Lozada, before counseling respondents to withdraw viable applications. The AG’s decision sends a clear message that notwithstanding their best intentions, IJs intentions to fairly resolve removal hearings may be disrupted without notice.

    Beyond inefficiently and ineffectively usurping the IJ’s authority to control his or her docket, it is unclear just what the AG intended to accomplish. We are left, perhaps, with much “sound and fury, signifying nothing.” Shakespeare, Macbeth Act 5, scene 5.





  4. BIA and Reprehensible Determinations

    In Matter of J-G-D-F-, 27 I&N Dec. 82 (BIA 2017), the BIA has ruled that the Oregon crime of burglary of a dwelling is a crime involving moral turpitude (CIMT) even though a defendant can be convicted of burglary under the Oregon statute for entering or remaining in an unoccupied home. The Board's analysis is somewhat confounding, ultimately favoring a categorical conclusion that is clearly to the disadvantage of those in the respondent's position.

    (In one fell swoop, the BIA rejected the respondent's request for withholding and deferral of removal under the Convention Against Torture (CAT) on the basis that the respondent failed to identify an acceptable particular social group as the reason for the threat to his life or freedom and fear of torture, ruling that, "he asserted that he would be targeted by criminals because he would be recognized as someone who has lived in the United States for a long period of time based on his clothing and accent. However, this proposed group lacks particularity, because it is amorphous and lacks definable boundaries. As described, the proposed group could include persons of any age, sex, or background." Id. at 86.)

    There are two central issues presented: Does the Oregon statute in question and, if divisible, the crime of which the respondent was convicted under the Oregon statute, amount to a generic burglary? Assuming it amounts to a burglary, is the crime of which the respondent was convicted a CIMT, involving reprehensible conduct and some degree of scienter?

    A few comments in response to the precedential aspects of this decision are warranted.

    A conviction of the crime of burglary does not make removal inevitable, not only because there may be post-conviction remedies available, but because the underlying offense is not necessarily a crime involving moral turpitude or an aggravated felony conviction.

    As we know, burglary convictions must be analyzed according to the state law under which the crime is defined. The elements of the offense described under state law must match the elements contained in the generic definition of burglary, i.e., unlawful entry into or remaining in a building or structure with the intent to commit a crime. Taylor v. U.S., 495 U.S. 575 (1990).

    The respondent argued that the statute was overbroad. Although the respondent asserted that “a violation of the statute does not necessarily involve reprehensible conduct or a culpable mental state since it does not require that a defendant unlawfully enter a dwelling or intend to commit a crime involving moral turpitude at the time he or she enters the building,” id. at 83, the BIA rejected the respondent's arguments.

    The BIA concluded instead that the statute was divisible “with respect to whether a first degree burglary offense involved entering or remaining unlawfully in a dwelling, as opposed to a building other than a dwelling.” Id. at 84-85. Cf. Mathis v. United States, 136 S. Ct. 2243,2249 (2016) (deeming a statute to be divisible if “it list[s] elements in the alternative, and thereby define[s] multiple crimes”)

    Under section 164.205(2), the term “dwelling” means a building which regularly or intermittently is occupied by a person lodging therein at night, whether or not a person is actually present. However, the BIA ruled that the statute was not divisible as to whether the building was occupied or not, cutting of any examination of the record with respect to that aspect of the crime.

    The records in the instant case contained no equivocation regarding the nature of the respondent's conviction. In fact, once the statute in the instant case was treated as divisible as to “entering or remaining unlawfully,” the record clearly identified the crime of which the respondent was convicted. As the BIA stated expressly, "the judgment and plea agreement for the respondent’s conviction show that he pleaded to “Burglary I” as charged in Count 2 of the charging document, which alleged that the offense occurred 'in an occupied dwelling.'” Consequently, the BIA affirmed the IJ's conclusion that, "according to the respondent’s record of conviction, he was convicted under the prong of section 164.225 that requires entering or remaining unlawfully in a “dwelling” with the intent to commit a crime." Id. at 86.

    But that begs the question.

    Today's decision in Matter of J-G-D-F-, expands on the BIA’s prior precedent in Matter of Louissaint, 24 I&N Dec. 754, 756 (BIA 2009), and distorts the longstanding BIA standard requiring that crimes involving moral turpitude must contain “two essential elements: reprehensible conduct and a culpable mental state,” Matter of Silva-Trevino, 26 I&N Dec. 826, 834 (BIA 2016). Prior to Louissant, the BIA honored the reasonable limitation that a crime was to be considered a CIMT only if the crime accompanying the unlawful entry was itself turpitudinous.

    In Louissaint, the BIA held that the “conscious and overt act of unlawfully entering or remaining in an occupied dwelling with the intent to commit a crime is inherently ‘reprehensible conduct’ committed ‘with some form of scienter.’” Matter of F-G-D-F-, supra. at 87 (quoting Matter of Louissaint, 24 I&N Dec. at 758 (citation omitted)). The rationale underlying this conclusion was the fact that the building was occupied and the victim’s presence involved an expectation of privacy and security. By drawing the conclusion that every unlawful entry of a dwelling, whether occupied or not at the time of the offense, amounts to "reprehensible conduct" the BIA evades prior caselaw which had focused on the specific crime that was intended. Cf. Matter of M-, 2 I&N Dec. 721 (BIA, A.G. 1946).


    c. 2017 Lory D. Rosenberg, www.Loryrosenberg.com

    Updated 08-18-2017 at 05:07 PM by Lrosenberg

  5. Why President Trump's VOICE is Misplaced and Serves No One


    The VOICE office announced by President Trump in his SOTU speech on Tuesday night is the most disturbing, offensive, and misplaced priority he could have chosen to address the pressing need for immigration reform.

    Moreover, it astonishes me how anyone with an understanding of the reality of the overwhelmingly positive immigrant contributions to our workforce, our communities, and our society as a whole could applaud such folly. It is mind-boggling that a person who purports to understand immigration law can honestly praise its introduction. Cf. N. Rappoport, Opinion Contributor, The Hill, “On immigrant crime, Trump's right. Americans deserve more data” (3/1/17).

    Establishment of such a new office panders to unsubstantiated, and in fact, soundly refuted, fears of an immigrant crime wave, and fosters public hysteria that is utterly unfounded. Are there serious crimes committed by immigrants? Yes, although very few are violent offenses. They generally involve violations of state, not federal, law, and they are duly prosecuted and punished in our courts, without regard to the perpetrator’s immigration status. Any claimed value to the victim in connecting ICE to removable aliens for “information” is pure fantasy.

    Moreover, proportionately, the immigrant crime rate is minimal compared to the crimes committed by the native population in the United States. See Ewing, W and Rumbaut, R., SPECIAL REPORT The Criminalization of Immigration in the United States, http://www.americanimmigration council.org/research/criminalization-immigration-united-states. A federal program for victims of crime committed by an immigrant as opposed to a United States citizen, erroneously propagates the destructive misconception that immigrants are mostly criminals. Cf. Spenkuch, Jörg L., Understanding the Impact of Immigration on Crime, 16 American Law and Economics Review 1,177-219 (2014),
    https://doi.org/10.1093/aler/aht017.

    As leading scholar on immigrants and crime, Professor Ruben G. Rumbaut
    has stated,

    "It [the VOICE office] will serve further to drive up fear and to sigmatize entire immigrant populations as criminals, using rare anecdotes to publicize misleading claims, even though every research study over many decades shows exactly the opposite: immigrants, including the undocumented, have the lowest crime (both violent and property crimes) and the lowest incarceration rates in the US."

    What is more, the policy changes anticipated since President Trump’s inauguration may dismantle much needed agency resources that support implementation of critical humanitarian and domestic violence efforts, such as VAWA and other critical programs that have been part of DHS's portfolio. Those are the most important victim support resources that are needed. Information collection and communication can be achieved easily and made available to victims, policymakers, and scholars alike through accurate agency reporting.

    There are more than adequate local police programs, as well as private and faith-based programs, available to victims of all crime in their communities. That is where victims will find the information and restitution they may seek. One would think an administration that seeks to reduce the the federal bureaucracy and rely upon the states to address all but those problems that demand federal intervention would shrink from imposing a duplicative and unnecessary venture that is likely to offer little more than one night of celebrity in a television audience.

    Trump’s self-indulgent VOICE office paints a target on the backs of honorable, hard-working immigrants - and others who look like immigrants - in our population. He may derive satisfaction from the publicity of such a pointless gesture, but the office’s establishment does nothing to reform a deeply broken system that victimizes immigrants and citizens alike each day that nothing is done to reform it.

    c.2017 Lory D. Rosenberg
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