Matter of MONTIEL, 26 I&N Dec. 555 (BIA 2015) — emoval proceedings may be delayed, where warranted, pending the adjudication of a direct appeal of a criminal conviction. Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), followed.
Decided April 17, 2015
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
FOR THE DEPARTMENT OF HOMELAND SECURITY: Jeffrey Lindblad, Assistant Chief Counsel
BEFORE: Board Panel: ADKINS-BLANCH, Vice Chairman; WENDTLAND and GREER, Board Members.
GREER, Board Member:
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Mexico who was admitted to the United States as a lawful permanent resident on March 14, 2008. He was convicted by jury on November 14, 2013, in the United States District Court for the Southern District of California, of unlawful transportation of aliens in violation of section 274(a)(1)(A)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1324(a)(1)(A)(ii) (2012). On December 16,
1 The parties filed the motion to administratively close the proceedings before the period for supplemental briefing expired. We denied the motion at that stage. However, supplemental briefing is now complete on the question whether finality is required
On June 10, 2014, the Immigration Judge held that the respondent was convicted of an aggravated felony, as defined in section 101(a)(43)(N) of the Act, 8 U.S.C. § 1101(a)(43)(N) (2012), and that notwithstanding the pendency of a direct appeal, the conviction was final for immigration purposes. The Immigration Judge therefore ordered the respondent’s removal from the United States under section 237(a)(2)(A)(iii) of the Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2012). The parties have filed a joint motion for administrative closure and submitted supplemental briefs in support of their positions regarding the question whether a conviction is final for immigration purposes during the pendency of a direct appeal.
II. ISSUE
The issue before us is whether the removal proceedings should be administratively closed at the parties’ request because a direct appeal of the respondent’s criminal conviction, which would subject him to removal, remains pending.
III. ANALYSIS
Administrative closure is used to temporarily remove a case from an Immigration Judge’s active calendar or from the Board’s docket. Matter of Gutierrez, 21 I&N Dec. 479, 480 (BIA 1996), overruled on other grounds, Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012). The administrative closure of a case does not result in a final order. It is merely an administrative convenience that allows cases to be removed from the calendar in appropriate situations, subject to being recalendared at a later date. Matter of Amico, 19 I&N Dec. 652, 654 n.1 (BIA 1988).
In Matter of Avetisyan, 25 I&N Dec. at 695, we held that in determining whether administrative closure of proceedings is appropriate, an Immigration Judge or the Board should weigh all the relevant factors presented in the case. These factors include, but are not limited to, the following: (1) the reason administrative closure is sought; (2) the basis for any opposition to administrative closure; (3) the likelihood the respondent will succeed on any petition, application, or other action he or she is pursuing outside of removal proceedings; (4) the anticipated duration of the closure; (5) the responsibility of either party, if any, in contributing to any current or anticipated delay; and (6) the ultimate outcome of removal proceedings (for example, termination of the proceedings or entry of a removal order) when the case is recalendared before the Immigration Judge or the appeal is reinstated before the Board.
Whether the pendency of a direct appeal warrants administrative closure will depend on the particular circumstances of each case. See generally Matter of Cardenas Abreu, 24 I&N Dec. 795, 797−98 (BIA 2009) (discussing the history of case law holding that, for immigration purposes, a conviction must be final, meaning that no direct appeal is pending), vacated, Abreu v. Holder, 378 F. App’x 59 (2d Cir. 2010).2 Under the circumstances presented in this case, we conclude that administrative closure is warranted as a matter of administrative efficiency.3 See id. at 802–03 (Grant, concurring) (recognizing the interests that are served by holding proceedings in abeyance, if warranted, until resolution of a pending direct appeal of right).
Regarding the Avetisyan factors, the parties have filed a joint motion seeking administrative closure to await resolution of the direct appeal of the respondent’s conviction, which is pending in the Ninth Circuit.4 Although we do not engage in a retrial to determine the likelihood of the respondent’s success with his criminal appeal, we consider the circumstances of the appeal to be relevant. In this regard, we note that the respondent was convicted as a result of a jury trial, rather than on the basis of a guilty plea. Moreover, his direct appeal concerns the validity of the underlying conviction, as opposed to the sentence imposed.
We recognize that the Ninth Circuit, in whose jurisdiction this case arises, has held that finality is not required for a conviction, as defined by section 101(a)(48)(A) of the Act, to support a charge of removability.5 Planes v. Holder, 652 F.3d 991, 996 (9th Cir. 2011). Nonetheless, should the respondent prevail on the direct appeal of his criminal conviction, he would not be subject to removal on that basis.
IV. CONCLUSION
Considering the circumstances in this case, we conclude that the removal proceedings should be administratively closed. If either party wishes to reinstate the proceedings, a written request for reinstatement may be made to the Board. The Board will take no further action in the case unless a request is received from one of the parties.
ORDER: The parties’ motion is granted and the removal proceedings are administratively closed.
3 A continuance is another mechanism to consider in these situations, particularly in the context of a detained alien’s case. Factors similar to those relevant for administrative closure may also be relevant in determining whether a case should be continued to await the outcome of a pending direct appeal. See generally Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009) (identifying factors relevant to the underlying purpose for the continuance request).
4 We note that a delay would not be warranted where a direct appeal is based on a facially frivolous argument. See Matter of Sanchez Sosa, 25 I&N Dec. 807, 815 (BIA 2012) (recognizing that a continuance should not be granted where it is being sought “as a dilatory tactic to forestall the conclusion of removal proceedings”).There is a split of authority over whether the right to file a direct appeal of a criminal conviction must be exhausted or waived for the conviction to be “final” under the statutory definition of a “conviction” for immigration purposes. See, e.g., Orabi v. Att’y Gen. of U.S., 738 F.3d 535, 541–42 (3d Cir. 2014) (holding that a “conviction” under section 101(a)(48)(A) of the Act does not support a charge of removability during the pendency of a direct appeal as of right).
An alien’s mental health as a factor in a criminal act falls within the province of the criminal courts and is not considered in assessing whether the alien was convicted of a “particularly serious crime” for immigration purposes
An alien’s mental health as a factor in a criminal act falls within the province of the
criminal courts and is not considered in assessing whether the alien was convicted of a
“particularly serious crime” for immigration purposes
Cite as 26 I&N Dec. 339 (BIA 2014) Interim Decision #3806 http://www.justice.gov/eoir/vll/intdec/vol26/3806.pdf
Matter of G-G-S-, Respondent
Decided July 17, 2014
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
This case addresses whether an alien’s mental illness should be
considered when determining if his or her criminal conviction is for a
“particularly serious crime” within the meaning of section 241(b)(3)(B) of
the Immigration and Nationality Act, 8 U.S.C. § 1231(b)(3)(B) (2012). In a
decision dated December 8, 2011, an Immigration Judge determined that
the respondent has been convicted of a particularly serious crime and is
therefore ineligible for withholding of removal under both section
241(b)(3)(A) of the Act and the Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, adopted and
opened for signature Dec. 10, 1984, G.A. Res. 39/46, 39 U.N. GAOR
Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 (1984) (entered into force
June 26, 1987; for the United States Apr. 18, 1988) (“Convention Against
Torture”). The respondent has appealed from the denial of his applications
for withholding of removal.
We hold that a person’s mental health is not a factor to be considered in
a particularly serious crime analysis and that adjudicators are constrained
by how mental health issues were addressed as part of the criminal
proceedings. Accordingly, because we conclude that the respondent has
been convicted of a particularly serious crime pursuant to section
241(b)(3)(B) of the Act and 8 C.F.R. § 1208.16(d)(2) (2013), we will
dismiss his appeal.authority to override the categorical bar that designated every aggravated
felony as a particularly serious crime. Antiterrorism and Effective Death
Penalty Act of 1996, Pub. L. No. 104-132, § 413(f), 110 Stat. 1214, 1269
(effective Apr. 24, 1996) (“AEDPA”). Interpreting the effect of the
amended provision in Matter of Q-T-M-T-, 21 I&N Dec. at 654, we applied
a rebuttable presumption in section 243(h) cases that an aggravated felony
was a particularly serious crime.
Months after the passage of the AEDPA, Congress again revised the
“particularly serious crime” clause, eliminating the categorical bar to
withholding of removal for aliens convicted of an aggravated felony and
undermining our rationale for applying a rebuttable presumption in Matter
of Q-T-M-T-. Illegal Immigration Reform and Immigrant Responsibility
Act of 1996, Div. C of Pub. L. No. 104-208, § 305(a), 110 Stat. 3009-546,
3009-597, 3009-602 (effective Apr. 1, 1997) (amending former section
243(h)(2) and recodifying it as section 241(b)(3)(B) of the Act, 8 U.S.C.
§ 1231(b)(3)(B) (Supp. II 1996)); Matter of L-S-, 22 I&N Dec. at 650–51;
Matter of S-S-, 22 I&N Dec. 458, 463 (BIA 1999), overruled in part by
Matter of Y-L-, A-G- & R-S-R-, 23 I&N Dec. 270, 273–74 (A.G. 2002).
This last revised version of the particularly serious crime clause remains in
effect and applies to the respondent’s case.
B. Current Law
The Act currently provides that an alien is ineligible for withholding of
removal if “the Attorney General decides that . . . the alien, having been
convicted by a final judgment of a particularly serious crime, is a danger to
the community of the United States.” Section 241(b)(3)(B)(ii) of the Act;
see also 8 C.F.R. § 1208.16(d)(2) (providing that an “alien who has been
convicted of a particularly serious crime shall be considered to constitute a
danger to the community”). Section 241(b)(3)(B) further states that “[f]or
purposes of [section 241(b)(3)(B)(ii)], an alien who has been convicted of
an aggravated felony . . . for which the alien has been sentenced to an
aggregate term of imprisonment of at least 5 years shall be considered to
have committed a particularly serious crime.” However, the Attorney
General is not precluded from determining that the alien has been convicted
of a particularly serious crime, regardless of the sentence imposed. Id.
Moreover, an offense need not be an aggravated felony to be a particularly
serious crime. See Delgado v. Holder, 648 F.3d 1095, 1097 (9th Cir. 2011)
(en banc) (deferring to Matter of N-A-M-, 24 I&N Dec. at 337).
We have held that for an alien who has not been convicted of an
aggravated felony or whose aggravated felony conviction did not result in
an aggregate term of imprisonment of 5 years or more, it is necessary toexamine the nature of the conviction, the type of sentence imposed, and the
circumstances and underlying facts of the conviction to determine whether
the crime was particularly serious. Matter of N-A-M-, 24 I&N Dec. at 342.
As the Ninth Circuit has noted, we have identified “‘dangerousness,’ [as]
the pivotal standard by which particularly serious crimes are judged.”
Alphonsus v. Holder, 705 F.3d 1031, 1041 (9th Cir. 2013) (citing Matter of
N-A-M-, 24 I&N Dec. at 341–43).
If the elements of an offense are found to potentially bring it within the
ambit of a particularly serious crime, all reliable information that is relevant
to the determination may be considered. Matter of N-A-M-, 24 I&N Dec. at
342. This may include the conviction records and sentencing information,
as well as other information outside the confines of a record of conviction.
Id.; see also Anaya-Ortiz v. Holder, 594 F.3d 673, 678–79 (9th Cir. 2010)
(deferring to our interpretation of the evidence that may be considered in a
particularly serious crime determination).
A particularly serious crime analysis is centered on the crime that was
committed. Matter of Carballe, 19 I&N Dec. at 360. Consequently, the
inquiry does not involve an examination of an alien’s personal
circumstances and equities, such as family or community ties or any risk of
persecution in the country of removal. Matter of L-S-, 22 I&N Dec. at 651;
Matter of Q-T-M-T-, 21 I&N Dec. at 656; Matter of K-, 20 I&N Dec. at 418
(stating that a particularly serious crime analysis “relates only to the nature
of the crime and does not vary with the nature of the evidence of
persecution”); Matter of Rodriguez-Coto, 19 I&N Dec. 208, 209–10 (BIA
1985).
The presence or absence of harm to the victim is also a pertinent factor
in evaluating whether a crime was particularly serious. See, e.g., Alphonsus
v. Holder, 705 F.3d at 1043 (recognizing “that harm to persons is the usual
requisite danger” relevant in a particularly serious crime analysis); Matter
of R-A-M-, 25 I&N Dec. 657, 661 (BIA 2012) (finding that possession of
child pornography was a particularly serious crime and noting “that the
primary victims of the distribution of child pornography are the people who
are depicted in the pornographic materials” (citing United States v. Stevens,
197 F.3d 1263, 1269 n.6 (9th Cir. 1999))); Matter of N-A-M-, 24 I&N Dec.
at 343 (finding that felony menacing was a particularly serious crime
because it is an offense against a person, and the statute of conviction
clearly required a serious threat to others); cf. Matter of L-S-, 22 I&N Dec.
at 655–56 (finding that an alien smuggling conviction, which resulted in a
3½-month sentence, was not for a particularly serious crime and noting that
the statute did not require proof of any endangerment, harm, or intended
harm and the smuggled alien suffered no actual harm).The language of the statute provides the “essential key” to determining
whether a crime is particularly serious, which is “whether the nature of the
crime is one which indicates that the alien poses a danger to the
community.” Matter of Carballe, 19 I&N Dec. at 360. Once an offense is
determined to be particularly serious, no separate determination of danger
to the community is required. 8 C.F.R. § 1208.16(d)(2); see also
Anaya-Ortiz v. Holder, 594 F.3d at 679.
C. Application to the Respondent
The respondent was convicted of assault with a deadly weapon.
Because he was not sentenced to a term of imprisonment of more than
5 years, the respondent is not barred from establishing eligibility for relief
under section 241(b)(3)(B) of the Act. We therefore evaluate the nature of
the conviction, the type of sentence imposed, and the circumstances and
underlying facts of his assault with a deadly weapon conviction to
determine whether his crime was particularly serious. See Anaya-Ortiz
v. Holder, 594 F.3d at 679; Matter of R-A-M-, 25 I&N Dec. at 659;
Matter of N-A-M-, 24 I&N Dec. at 342; Matter of Frentescu, 18 I&N Dec.
at 247.
As previously noted, we have long recognized that “crimes against
persons” are more likely to be categorized as particularly serious crimes.
See, e.g., Matter of R-A-M-, 25 I&N Dec. at 662; Matter of N-A-M-,
24 I&N Dec. at 343; Matter of L-S-, 22 I&N Dec. at 649; Matter of
Frentescu, 18 I&N Dec. at 247; see also Matter of L-S-J-, 21 I&N Dec. 973,
974−75 (BIA 1997) (finding robbery with a deadly weapon, a handgun, to
be a particularly serious crime).
In considering the circumstances of the respondent’s offense, the
Immigration Judge relied on sworn testimony given by the respondent’s
victim during the preliminary criminal hearing. According to the victim,
the respondent physically assaulted him by swinging a weightlifting bell
and grazing the side of his head, which resulted in a laceration that required
stitches. This was a dangerous act capable of causing grave injuries. The
gravity of the respondent’s offense is also reflected in his 2-year sentence to
prison.
We recognize the significance of the respondent’s mental health
struggles and sympathize with the resulting hardships he has faced.
However, based on our assessment of the nature of the respondent’s
conviction, the prison sentence imposed, and the circumstances of his
offense, we concur with the Immigration Judge that the respondent’s
conviction for assault with a deadly weapon was for a particularly serious
crimeThe respondent argues on appeal that his mental condition should be a
factor in determining whether his offense was a particularly serious crime
for purposes of section 241(b)(3)(B) of the Act. He claims that “his mental
illness prevented him from solving a complex social situation such as being
aggressively challenged by a stranger” and consequently resulted in his use
of violence. We are unpersuaded by this contention and conclude that
consideration of an alien’s mental health as a factor in the criminal act falls
within the province of the criminal courts and is not a factor to be
considered in a particularly serious crime analysis.
Whether 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. Such
fact finders 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. We
cannot go behind the decisions of the criminal judge and reassess any ruling
on criminal culpability.
Issues concerning a defendant’s mental condition at the time a crime
was committed can be raised at different phases of the criminal proceedings.
For instance, evidence of a defendant’s mental condition may give rise to a
reason to doubt his or her competency to stand trial. 4 Further, such
evidence may be submitted to establish an affirmative defense of not guilty
by reason of insanity, to show the absence of specific intent or other mental
states required for a conviction, or to be a mitigating factor for sentencing
purposes. 5 The defendant’s mental condition may also be raised in
post-conviction motions, appeals, and petitions.
Find entire case here http://www.justice.gov/eoir/vll/intdec/vol26/3806.pdf
Asylum Applicants need not establish prima facie eligibility for relief in order to have hearing on the merits
We conclude that in the ordinary course of removal proceedings, an
applicant for asylum or for withholding or deferral of removal is entitled to
a hearing on the merits of the applications, including an opportunity to
provide oral testimony and other evidence, without first having to establish
prima facie eligibility for the requested relief. See sections 240(b)(4)(B),
(c)(4)(B) of the Act; Matter of Fefe, 20 I&N Dec. at 118; 8 C.F.R.
§ 1240.11(c)(3); 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).
Accordingly, we will remand the record for the Immigration Judge to
conduct a hearing on the merits of the respondent’s applications for asylum
and withholding of removal.
A parent’s continuous physical presence and continuous residence in the United States cannot be imputed to a child
respondents’ applications for Temporary Protected Status (“TPS”) under
section 244(a) of the Immigration and Nationality Act, 8 U.S.C. § 1254a(a)
(2006). The Department of Homeland Security (“DHS”) has appealed from
that decision. The respondents oppose the appeal. The appeal will be
sustained, and the record will be remanded to the Immigration Judge.
The respondents, who are natives and citizens of El Salvador, are two
sisters whose mother was granted TPS in 2001. Both respondents arrived
in the United States as minors on August 24, 2003, and were served with
notices to appear 2 days later. They subsequently filed applications for
TPS in 2005, and removal proceedings were administratively closed while
their applications were pending. The respondents’ applications were
denied and their appeals were dismissed. They subsequently filed renewed
applications, all of which were denied. Removal proceedings were then
recalendared.
In her decision, the Immigration Judge relied on two opinions of the
United States Court of Appeals for the Ninth Circuit in finding that the
continuous physical presence and continuous residence of the respondents’
mother could be imputed to them for purposes of establishing their
eligibility for TPS because they entered the United States as unemancipated
Cite as 26 I&N Dec. 325 (BIA 2014) Interim Decision #3804
326
minors. Cuevas-Gaspar v. Gonzales, 430 F.3d 1013, 1021−29 (9th Cir.
2005); Lepe-Guitron v. INS, 16 F.3d 1021, 1025−26 (9th Cir. 1994). The
Immigration Judge consequently found the respondents eligible for TPS
and granted their applications for that relief.
Section 244(a) of the Act does not provide for “derivative” TPS status.
However, the regulations state that an applicant for TPS who is the child of
“an alien currently eligible to be a TPS registrant” may be eligible to
receive TPS through late registration. 8 C.F.R. § 1244.2(f)(2)(iv) (2013).1
The applicant must nevertheless satisfy several additional requirements,
including continuous physical presence in the United States since
the effective date of the foreign country’s most recent designation and
continuous residence in the country since the date designated by the
Attorney General. 8 C.F.R. § 1244.2(b), (c).2
The effective date of the TPS designation of El Salvador was March 9,
2001, and the Attorney General has designated February 13, 2001, as the
date by which the alien’s continuous residence in the United States must
have begun. See Designation of El Salvador Under Temporary Protected
Status Program, 66 Fed. Reg. 14,214, 14,215 (Mar. 9, 2001). Extensions
of TPS designations do not constitute new designations of TPS.
See De Leon-Ochoa v. Att’y Gen. of U.S., 622 F.3d 341, 355−56 (3d Cir.
2010); Cervantes v. Holder, 597 F.3d 229, 234−36 (4th Cir. 2010);
Extension of the Designation of El Salvador for Temporary Protected
Status, 78 Fed. Reg. 32,418, 32,418 (May 30, 2013) (stating that applicants
must meet “all TPS eligibility criteria (including continuous residence in…
