BIA Reaffirms Use of "Circumstance-Specific" Inquiry When Determining Whether "Possession for Personal Use" Exception Applies

Criminal convictions can significantly impact whether an alien can remain in the United States regardless of the alien's immigration status. Many aliens are under the mistaken impression that the designation of a crime as a felony or misdemeanor is what is most relevant in assessing the immigration consequences of a criminal conviction. The designation of crime as a misdemeanor or felony has little bearing on whether an alien is subject removal/deportation based upon a criminal conviction. Rather, the most relevant factor in assessing the potential immigration consequences is the actual criminal conduct for which the alien has been or will be convicted. Depending upon the language of the criminal statute under which the alien was convicted and the charge of removability/deportability lodged by the Department of Homeland Security (DHS), the immigration judge will employ the “categorical approach”, “modified categorical approach”, or “circumstance-specific” inquiry to determine whether the alien is removable/deportable as charged.

Recently, the Board of Immigration Appeals (BIA) reaffirmed the use of the “circumstance-specific” inquiry when determining whether an alien is removable/deportable as an alien who after admission has been convicted of violating “any law or regulation of a State, the United States, or a foreign country relating to a controlled substance [ ], other than a single offense involving possession for one's own use of 30 grams or less of marijuana[.]” 8 U.S.C. §1227. See also Matter of Jonet Dominguez-Rodriguez, 26 I. & N. Dec. 408 (BIA 2014). Jonet Dominguez-Rodriguez was convicted on July 2, 2013 of “possessing more than 1 ounce of marijuana in violation of section 453.336 of the Nevada Revised Statutes[.]”Matter of Jonet Dominguez-Rodriguez, 26 I. & N. Dec. at 408-409. The Immigration Judge (IJ) “concluded that the respondent [was] not removable based on his determination that the minimum conduct punishable under section 453.336 of the Nevada Revised Statutes involved possession of 30 grams or less of marijuana for personal use.” Id. at 409. DHS had sought to introduce documents from the record of conviction in order to establish the respondent's criminal conduct involved possession of more than 30 grams of marijuana, but the IJ precluded such evidence from the administrative record. See Id. The IJ concluded the U.S. Supreme Court's decision in Moncrieffe v. Holder “forbade such 'circumstance-specific' inquiry and required termination of the proceedings unless the DHS could establish that the respondent was convicted of possessing more than 30 grams of marijuana by reference to documents included in the 'record of conviction' under the 'modified categorical approach,' such as the judgment, charging document, or plea agreement.” Id. citing Moncrieffe v. Holder, 133 S. Ct. 1678 (2013).

However, the BIA sustained DHS's appeal, reinstated the removal proceedings, and remanded the matter to the IJ for further consideration. In reversing the IJ's termination of the removal proceedings, the BIA noted “[t]he Supreme Court and the lower Federal courts have recognized, however, that the categorical approach is inapplicable in removal proceedings when the immigration provision under review 'call[s] for a “circumstance-specific approach” that allows for an examination, in immigration court, of the “particular circumstances in which an offender committed the crime on a particular occasion.”'” Id. at 411 citing Moncrieffe, 133 S. Ct. at 1697. The BIA, relying on its prior decision in the Matter of Davey, 26 I. & N. Dec. 37 (BIA 2012), ” remain[ed] convinced that the language of the 'possession for personal use' exception most naturally invites a circumstance-specific inquiry, not a categorical one”, Id., as it requires the adjudicator to consider very explicit facts regarding the alien's criminal conduct. This is not to say the IJ may conduct a mini trial during the alien's removal proceedings every time the “possession for personal use” exception is at issue. Id. at 413. Rather, if the conviction is satisfactory “to conclusively establish all facts relevant to prove the applicability of the 'possession for personal use' exception, the Immigration Judge's inquiry is at an end, and the removal charge must be dismissed without resort to a circumstance-specific inquiry.” Id. The IJ may only employ the “circumstance-specific” inquiry “in those instances where the applicability of the exception is not determinable by reference to the elements of the offense[.]” Id. The BIA further clarified that when using the “circumstance-specific” inquiry “DHS may proffer any evidence that is reliable and probative”, Id. at 414, to establish the alien is removable/deportable as charged in the NTA. Id. Regardless of whether “categorical approach”, “modified categorical approach”, or “circumstance-specific” inquiry is employed, DHS is required to establish an alien is removable/deportable as charged in the Notice to Appear (NTA) with “clear and convincing” evidence. Id. Once DHS sustains its burden of proof, the alien would have to be given an opportunity to challenge DHS's claim and/or evidence. Id.

The take away from decisions like the Matter of Jonet Dominguez-Rodriguez is to involve an experienced immigration attorney as early as possible in the criminal and/or immigration proceedings. Prior to a criminal conviction an experienced immigration attorney may be able to provide guidance to minimize the potential immigration consequences of said criminal conviction. After an alien has been convicted of a crime, an experienced immigration attorney can attempt to terminate the charges of removability/deportability in the NTA as well as assist the alien in preparing applications for relief from removal/deportation.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

BIA Recognizes Domestic Vioence as a Basis for Asylum

After more than fifteen years of consideration, the Board of Immigration Appeals (BIA) finally issued a groundbreaking precedential decision recognizing domestic violence may be a basis for asylum. See Matter of A-R-C-G-, 26 I. & N. Dec. 388 (BIA 2014). The BIA was first asked to consider whether a woman who was abused by her husband could be deemed a member of a social group for purposes of asylum in the Matter of R-A-. See Matter of R-A-, 22 I. & N. Dec. 906 (BIA 1999). Though the BIA agreed with the IJ's finding that the abuse suffered by R-A- rose to the level of past persecution and the Guatemalan government had been unwilling and/or unable to stop the abuse, it nonetheless concluded the abuse was not on account of one of the protected grounds (i.e. political opinion, race, religion, nationality, and/or membership in a particular social group). Id. This decision was subsequently vacated by Attorney General Janet Reno pending consideration of proposed Federal Regulations, which would have specifically provided for gender-based asylum claims. See Matter of R-A, 22 I. & N. Dec. 906 (A.G. 2001). On February 21, 2003 Attorney General John Ashcroft certified the Matter of R-A- for review and allowed for additional briefing. Id. The Matter of R-A- was again remanded to the BIA in January 2005 by Attorney General John Ashcroft “for reconsideration following final publication of the proposed rule published at 65 Fed. Reg. 76,588 (Dec. 7, 2000).” Matter of R-A-, 23 I. & N. Dec. 694 (A.G. 2005). These proposed Federal Regulations were never enacted. On September 25, 2008 Attorney General Michael Mukasey certified the case yet again. He issued a decision suspending the stay of adjudication previously imposed pending enactment of the proposed Federal Regulations and again remanded the Matter of R-A- to the BIA for reconsideration of the issues presented under the present construction of United States asylum law. Matter of R-A-. 24 I. & N. Dec. 629 (A.G. 2008). The BIA subsequently remanded the Matter of R-A- to the Immigration Court in San Francisco, California on December 4, 2008 upon joint motion of the parties. This remand allowed both parties to further develop the administrative record regarding the social visibility of the respondent's proposed social group. The respondent in the Matter of R-A- was subsequently granted asylum by the Immigration Court in San Francisco, CA in December 2009.

While the Matter of R-A- was pending before the Immigration Court in San Francisco, CA, the Department of Homeland Security (DHS) “accept[ed] that in some cases, a victim of domestic violence may be a member of a cognizable particular social group and may be able to show that her abuse was or would be persecution on account of such membership.” DHS's Supplemental Brief in the Matter of L-R- dated April 13, 2009, page 12. According to DHS, the particular social group for purposes of asylum and withholding of removal for “claims based on domestic violence is best defined in light of the evidence about how the respondent's abuser and her society perceive her role within the domestic relationship.” Id. at 14. In the context of the Matter of L-R-, the evidence demonstrated the abuser believed “women should occupy a subordinate position within a domestic relationship”, Id., and “abuse of women within such a relationship can therefore be tolerated, and that societal expectations in Mexico reinforce this view.” Id. Though DHS had changed its position as to whether domestic violence could form the basis of an asylum claim, the BIA did not issue a precedential decision. Rather, the BIA remanded the matter to the Immigration Court in San Francisco, CA for further fact-finding. The respondent in the Matter of L-R- was subsequently granted asylum by the Immigration Court in San Francisco, CA on August 4, 2010.

Though the respondents in the Matter of R-A and Matter of L-R- were eventually granted asylum, there was still no precedential decision from the BIA clearly recognizing domestic violence as a basis for asylum. The lack of precedential decision from the BIA recognizing domestic violence as a basis for asylum was problematic as it left Immigration Courts throughout the country without guidance, which in turn resulted in a lack of uniformity when adjudicating such claims. On August 26, 2014, the BIA issued a precedential decision in the Matter of A-R-C-G- specifically recognizing domestic violence as a basis for asylum. The BIA concluded an asylum applicant may be able to establish the domestic violence was on account of the asylum applicant's membership in a particular social group. The BIA applied the legal principles from the Matter of W-G-R- and Matter of M-E-V-G- requiring “an applicant seeking asylum based on his or her membership in a 'particular social group' [ ] establish that the group is (1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.” Matter of A-R-C-G-, 26 I. & N. Dec. at 392. See also Matter of M-E-V-G-, 26 I. & N. Dec. 227 (BIA 2014); and Matter of W-G-R-, 26 I. & N. Dec. 208 (BIA 2014).

The proposed social group in the Matter of A-R-C-G- was “'married women in Guatemala who are unable to leave their relationship.'” Id. The BIA specifically found “the group is composed of members who share the common immutable characteristic of gender.” Id. citing Matter of Acotsa, 19 I. & N. Dec. 233 (BIA 1985). The BIA also found that marital status could also be considered an immutable characteristic “where the individual is unable to leave the relationship.” Id. at 393. The BIA further found the proposed group in the Matter of A-R-C-G- was both particular and socially distinct. Id. The BIA found that the terms used to describe the group (i.e. “married”, “women”, and “unable to leave the relationship) could be combined “to create a group with discrete and definable boundaries.” Id. The BIA reminded the adjudicator that in assessing “a group's particularity, it may be necessary to take into account the social and cultural context of the alien's country of citizenship or nationality.” Id. See also Matter of W-G-R-, 26 I. & N. Dec. at 214. The BIA further found the group was socially distinct. Id. at 394. The group's social distinction “is 'determined by the perception of the society in question, rather than by the persecutor.'” Id. at 393-394 citing Matter of W-G-R, 26 I. & N. Dec. at 217. To make a determination on social distinction where the asylum claim is based upon domestic violence, the adjudicator should consider evidence regarding “whether the society in question recognizes the need to offer protection to victims of domestic violence, including whether the country has criminal laws designed to protect domestic abuse victims, whether those laws are effectively enforced, and other sociopolitical factors.” Id. The BIA cautioned that “even within the domestic violence context, the issue of social distinction will depend on the facts and evidence in each individual case, including documented country conditions; law enforcement statistics and expert witnesses, if proffered; the respondent's past experiences; and other reliable and credible sources of information.” Id. at 394-395.

The BIA's landmark decision in the Matter of A-R-C-G- is a major victory for immigrants as it provides strong support for women who have fled to the United States after enduring horrific domestic violence. However, it is important to note that not all victims of domestic violence will qualify for asylum. A grant of asylum will depend upon the particular facts of the claim including country conditions, law enforcement statistics, expert witnesses, the asylum applicant's past experiences, and other credible evidence.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

Particularly Serious Crime and Mental Illness/Disorder

Criminal convictions can significantly impact whether an alien can remain in the United States. An alien is ineligible for a grant of asylum if he/she has “been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States.” INA §208(b)(2)(A)(ii). See also 8 C.F.R. §208.13(c)(1). For purposes of eligibility for asylum, the Immigration and Nationality Act (INA) provides “an alien who has been convicted of an aggravated felony shall be considered to have been convicted of a particularly serious crime.” INA §208(b)(2)(B)(i). Similarly, an alien will be ineligible for withholding of removal pursuant to INA §241(b)(3)(B)(ii) as an alien convicted of a particularly serious crime if he/she “has been convicted of an aggravated felony (or felonies) for which the alien has been sentenced to an aggregate term of imprisonment of at least 5 [.] ” INA §241(b)(3)(B). Regardless of the sentence imposed by the criminal court the Attorney General may determine the alien has been convicted of a particularly serious crime. Id. The Federal Regulations provide that “an alien who has been convicted of a particularly serious crime shall be considered to constitute a danger to the community.” 8 C.F.R. §208.16(d)(2).

There is no further statutory or regulatory guidance as to what constitutes a “particularly serious crime” for purposes of determining eligibility for asylum or withholding of removal under INA §241(b)(3). To determine whether a conviction constitutes a “particularly serious crime”, the Board of Immigration Appeals (BIA) has held that “such factors as the nature of the conviction, the circumstances and underlying facts of the conviction, the type of sentence imposed, and, most importantly, whether the type and circumstances of the crime indicate that the alien will be a danger to the community”, Matter of Frentescu, 18 I. & N. Dec. 244, 246 (BIA 1982), are to be examined. Another important factor to be considered is whether the victim was physically harmed by the alien's criminal conduct. See Matter of R-A-M-, 25 I. & N. Dec. 657, 661 (BIA 2012); Matter of N-A-M-, 24 I. & N. Dec. 336, 343 (BIA 2007); and Matter of L-S-, 22 I. & N. Dec. 645, 655-656 (BIA 1999). The “particularly serious crime” inquiry focuses on the crime committed not the “alien's personal circumstances and equities, such as family or community ties or any risk of persecution in the country of removal.” Matter of G-G-S-, 26 I. & N. Dec. 339, 343 (BIA 2014) citing Matter of L-S-, 22 I. & N. at 651.

In the Matter of G-G-S-, the BIA was tasked with determining “whether an alien's mental illness should be considered when determining if his or her criminal conviction is for a 'particularly serious crime'[.]” Id. at 339. The alien was a lawful permanent resident who suffered from chronic paranoid schizophrenia from an early age. Id. at 340. He was convicted of assault with a deadly weapon under California Penal Code and sentenced to a term of imprisonment of two years. Id. While the BIA “recognize[d] the significance of the respondent's mental health struggles and sympathize[d] with the resulting hardships he ha[d] faced”, Id. at 344, it nonetheless concluded his “conviction for assault with a deadly weapon was for a particularly serious crime.” Id. The BIA declined to consider the alien's mental health as a factor in determining whether his conviction was for a “particularly serious crime”. Id. at 345. According to the BIA, “[w]hether and to what extent an individual's mental illness or disorder is relevant to his or her commission of an offense and conviction for the crime are issues best resolved in criminal proceedings by the finders of fact.” Id. These factfinders are in the best position to make such a determination, because they “have expertise in the applicable State and Federal criminal law, are informed by the evidence presented by the defendant and the prosecution, and have the benefit of weighing all the factors firsthand.” Id. A criminal defendant's mental condition can be raised at various points during the criminal proceedings including determination of competency to stand trial, presentation of an affirmative defense of not guilty due to mental illness or disorder, arguments that there was an absence of the specific intent required for conviction, mitigation for purposes of sentencing, and post-conviction filings. Id. The BIA has effectively declined to reassess determinations regarding criminal culpability due to mental illness of disorder.

The take away from decisions like the Matter of G-G-S- is to involve an experienced immigration attorney as early as possible in the criminal proceedings. An experienced immigration attorney may be able to provide guidance to minimize the potential immigration consequences of a criminal conviction.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

New York State Enacts Legislation to Protect Immigrants

At a time when many states have chosen to enact legislation to drive away immigrants, the State of New York is taking significant steps to create a welcoming environment for immigrants. On August 6, 2014 Governor Cuomo signed legislation designed to improve the provision of immigration-related assistance in the State of New York. One of the primary goals of this legislation is to better protect immigrants from potential fraud and misconduct from individuals who prey on immigrant communities. This legislation created stricter assistance-provider requirements including ensuring only attorney and non-attorney representatives authorized by the Board of Immigration Appeals (BIA) can provide legal services, enhancing translation requirements, increasing civil penalties for violations, and prohibiting the use of titles designed to mislead the immigrant into believing the provider is an attorney or specialized professional.

Not only did this legislation enhance requirements on the provision of immigration-related services, but also created the new criminal offense of “immigrant assistance fraud”. The addition of these criminal offenses to the Penal Law are important as individuals who engage in “immigrant assistance fraud” often engage in conduct that jeopardizes an immigrant's future ability to qualify for immigration benefits and places the immigrant at risk of deportation from the United States while at the same time extracting significant sums of money from hardworking individuals. Under the amended Penal Law “immigrant assistance fraud” can be either a Class A misdemeanor or Class E felony depending upon whether the fraud involved less than $1,000.00 or more than $1,000.00. These new crimes will allow law enforcement to specifically target those who prey on immigrant communities.

Another key component of this legislation is the designation of the New York State Office for New Americans as a permanent executive office. The Office for New Americans was established in March 2013 by Governor Cuomo to provide support to New York State's immigrant population through the creation of opportunity centers, increasing access to English language and civics classes, connecting immigrants to business resources such as job training, developing and capitalizing on immigrants' skills, maximizing the number of Deferred Action for Childhood Arrivals (DACA) recipients, strengthening connections between immigrants and communities, preventing the fraud directed at immigrant communities, and providing State resources to better aid immigrants. The Office for New Americans has already helped over 34,000 immigrants since its inception. More information on the New York State Office for New Americans can be found at http://www.newamericans.ny.gov/.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com