Stop-Time Rule and Petty Offenses

In Matter of Garcia, 25 I&N Dec. 332(BIA 2010), the Board of Immigration Appeals (BIA) has clarified the interplay between the petty offense exemption and other sections in the Immigration and Nationality Act (INA).  This time the conflict surrounds the Stop-Time Rule set out in Section 240A(d)(1) of the INA, which provides that any period of physical presence in the United States shall end upon the commission of an offense referred to in section 212(a)(2) of the INA.  Mr. Garcia had committed the offense of misdemeanor assault and battery, domestic, in violation of Oklahoma law.  The maximum punishment for such a crime is 1 year, and Mr. Garcia was sentenced to 3 years of probation. 

The IJ concluded that this was, indeed, a crime involving moral turpitude that had been committed with 5 years of entry and was thus “referred to in section 212(a)(2)” of the INA resulting in Mr. Garcia’s physical presence being stopped short of the seven years needed for Cancellation of Removal for Certain Lawful Permanent Residents. 

No so says the BIA.  Why?  Because the offense is a petty offense as set out in 212(a)(2)(i) in that the maximum penalty is a year or less, and the respondent was not sentenced to a term of imprisonment exceeding six months.  A petty offense, having been carved out of the category of crimes involving moral turpitude in 212(a)(2), could not be “referred to” in 212(a)(2) and therefore did not stop the respondent’s ongoing physical presence needed for cancellation.

The BIA distinguished Matter of Cortez, 25 I&N Dec. 301 (BIA 2010) because the crime in question there, while not a petty offense, was described in 237(a)(2) which disqualified Cortez for non-LPR Cancellation.  Such a conviction is no barrier to LPR Cancellation.  The Cortez case had nothing to do with the Stop-Time Rule but only concerned itself with whether a crime described in 237(a)(2) had been committed.  Here the issue concerned the Stop-Time Rule and the commission of a crime referred to in 212(a)(2).  Had Mr. Cortez been an LPR, he might have qualified for LPR Cancellation under Garcia.

Statutes must be read carefully to make sure respondents who commit crimes have physical presence, and these two cases should be understood in order to make that determination.

How Many Generations are Grandfathered under 245(i)?

The BIA answers this question in Matter of Legaspi, 25 I&N Dec. 328 (BIA 2010) handed down on September 1, 2010.  The question presented by the case is whether the spouse of an alien who is grandfathered for purposes of section 245(i) can independently adjust his status. 

Mr. Legaspi is married to Ms. Blanco who as a child qualified as a derivative beneficiary under a petition filed by her paternal grandfather on behalf of her father in 1987.  Ms. Blanco is grandfathered under 245(i) although when she adjusted, she did not utilize her grandfather’s petition but rather on an employment based immigrant visa filed in 2002.

Legaspi now claims, in his attempt to adjust by means of his marriage to Ms. Blanco, that he, like her, is qualified under 245(i).  As a result, he argues, it makes no difference that he is now out of status. 

The BIA holds that he cannot independently adjust his status under 245(i) because he bears no relationship to the principal beneficiary of the 1987 petition.  In support of the holding, the BIA relies upon section 245(i)(1)(B) and 203(d) fo the Act which states that grandfathering only applies in a situation where the derivative is accompanying or following to join the principal alien.  Here the principal alien is Ms. Blanco’s father.  Since Mr. Legaspi is not in that category, he is not grandfathered. 

Moreover, the BIA points out that the reason Ms. Blanco would be a derivative of her grandfather’s petition for her father is because she is a “child” of the principal beneficiary and to be a “child” she must be unmarried.  The BIA concludes that Mr. Legaspi could not qualify under Ms. Blanco’s grandfather’s petition because to do so would preclude Ms. Blanco from qualifying in her own right.  She would be disqualified because of her marriage to Mr. Lesgapi.  It only stands to reason, says the BIA, that if the marriage would prevent Ms. Blanco from being a beneficiary, her husband could not benefit either. 

While it is true that once an individual is qualified under 245(i), he or she is always qualified under 245(i), we now know that you cannot create more 245(i) qualified individuals simply by marrying them.

When is a Petty Offense Not a Petty Offense?

Recently the Board of Immigration Appeals (BIA) handed down its decision in Matter of Cortez, 25 I&N Dec. 301 (BIA 2010).  In it, the BIA ruled that Mr. Cortez did not qualify for Cancellation of Removal (COR) because he had been convicted of misdemeanor welfare fraud punishable by not more than 12 months in jail.  The BIA acknowledged that the crime was a misdemeanor and that under INA § 212(a)(2)(ii)(II), it would not be a crime involving moral turpitude (CIMT) because it fell within the petty offense exception because the maximum penalty did not exceed a year and the term of imprisonment was not in excess of six months.  As such, because it was a petty offense under INA § 212(a)(2), Mr. Cortez is still eligible for COR.  This was, in fact, the exact holding by the BIA in Matter of Garcia-Hernandez, 23 I&N Dec. 590 (BIA 2003).

 It seems as if Mr. Cortez is in the clear.  His offense is clearly a petty offense.  Not so, says the BIA.  Not only does Mr. Cortez have to clear the 212(a)(2) hurdle, he must also clear the 237(a)(2) hurdle.  Under INA § 240A((b)(1)(C) one does not qualify for COR if one has been convicted of an offense under section 212(a)(2) OR 237(a)(2).  The latter section provides that an alien convicted of a CIMT within five years of admission and has been convicted of a crime for which a sentence of one year or longer may be imposed is deportable.

Again, at first glance, Mr. Cortez still qualifies because his conviction did not occur within five years of admission.  That, however, doesn’t make any difference to the BIA.  They conclude that “only the language specifically pertaining to the criminal offense, such as the offense itself and the sentence imposed or potentially imposed, should be considered”  The date the offense occurred does not describe the offense and is not relevant to the proceedings.  As a result, Mr. Cortez does not qualify for COR because even though his offense is a petty offense, he has been convicted of an offense “described under” 237(a)(2) because the crime is punishable by a maximum sentence of a year or more. 

 This case raises all sorts of problems.  First, if the BIA took into consideration of the petty offense exemption under 212(a)(2), why would it not take into consideration the time limitation under 237(a)(2).  Both of those limiters are set out in each section.  How can the BIA ignore one but dramatically emphasize the other.  Does this create a violation of the Due Process or Equal Protection Clauses?  Should not the statute be read and interpreted as a whole?  It stands to reason that if Congress wanted to exempt petty offenders under 212(a)(2), it would also excuse those who have lived in the United States over certain period of time.  The BIA cannot change or ignore the law passed by Congress.  After all if you can’t remove an alien for CIMT’s committed after five years of residence, why shouldn’t the alien qualify for COR? 

 The case will most likely be appealed but it appears, for the time being, that any CIMT punishable by a maximum of one year, will disqualify an otherwise eligible applicant for COR even if the offense is a petty offense.

Jack Richbourg is an attorney practicing immigration law.  He spends most of his time representing individual in immigration court or in appeals from the immigration court.  You can reach him at 901-682-6455.  Do not rely on the contents of this blog as legal advice.  Advice in a particular case depends upon its own unique set of facts.  Always have a personal consultation with a licensed attorney before taking or refraining from taking any action. 

NEWS FROM THE IMMIGRATION COURTS: Can an IJ rule an asylum application is frivolous without hearing it? Yes, says BIA.

The withdrawal of an Asylum Application after the frivolous filing warnings have been given does not mean the Immigration Judge cannot make a frivolous finding even though the application was withdrawn and never heard on the merits.  So said the Board of Immigration Appeals (BIA) on August 25, 2010, in its decision in Matter of X-M-C-, 25 I&N Dec. 322 (BIA 2010).

In that case the respondent had legally entered the United States in 1998 from China as a non-immigrant P-3 visa via fraudulent means.  She filed an asylum application with USCIS which she later admitted contained materially false information.  About one month after the actual filing, she repeated the fraud under oath before an asylum officer and compounded her deception by stating that she was married and had two children when she did not.  Her application was referred to the IJ.

At the master hearing, the IJ delivered the frivolous filing warnings and gave the respondent the opportunity to discuss the warnings with her lawyer.  Afterwards she informed the IJ that she wanted him to consider her application on the merits. 

Later, the respondent withdrew her asylum application and applied for adjustment of status contingent upon the approval of her spouse’s Petition for Alien Relative (I-130).  At a hearing on the adjustment application, the respondent truthfully relayed to the IJ that the contents of her asylum contents were false that she had submitted fraudulent documents, and that she had lied to the asylum officer about having a husband and two children, something which would, at the very least, complicate her present marriage petition. 

Government counsel argued that adjustment should be denied because her asylum application was frivolous. The IJ agreed holding that a later withdrawal and recantation of her deliberately fabricated asylum application did not alter the fact that the filing was frivolous.  He denied the adjustment pursuant to INA § 208(d)(6) (2006) even thought the asylum application was never presented to him and was never ruled upon by him on the merits. 

The case was appealed to the BIA and later to the Ninth Circuit who remanded the case to the BIA with two questions:  First:  Can a frivolous finding be made in the absence of a final decision on the merits of the asylum application.  Second:  Can a frivolous finding be made where the asylum application has been withdrawn?  The BIA answered both these question in the affirmative.

To justify its affirmative responses to the inquiries from the Ninth Circuit, the BIA made reference to both the Act and the Regulations.  First it notes that the Act states, “

If the Attorney General determines that an alien has knowingly made a frivolous application for asylum and the alien has received the notice under paragraph (4)(A), the alien shall be permanently ineligible for any benefits under this Act, effective as of the date of a final determination on such application.  INA § 208(d)(6) (emphasis added)

Based upon the BIA’s emphasis on the word “made” they conclude that a frivolous finding can be triggered once the application is made and not necessarily when the application is ultimately heard by an IJ.

Likewise, the Regulation at 8 CFR § 1208.20(2010) state:

For applications filed on or after April 1, 1997, an application is subject to the provisions of section 208(d)(6) of the Act only if a final order by an immigration judge or the Board of Immigration Appeals specifically finds that the alien knowingly filed a frivolous asylum application.  (emphasis added).

Highlighting the word “filed” the BIA finds that an asylum application is subject to a frivolous finding immediately upon the filing or the making of it.  Citing In Re Y-L-, 24 I&N Dec. 151 (BIA 2007), the BIA holds that the frivolous finding is a “preemptive finding” making the need to hear the asylum application on the merits “pointless.”  X-M-C, at 324. 

Regarding the Ninth Circuit’s second question, the BIA answered that the withdrawal of the asylum application does not render the application moot and that a frivolous finding can attach even though withdrawn.  The BIA reasons that otherwise unscrupulous asylum seekers could file frivolous claim and then avoid the consequences of doing so by withdrawing the application before the hearing on the merits of the claim before the IJ.  This, the BIA deduces, would be an abuse of the system.  The BIA relies on Lazar v. Gonzales, 500 F.3d 469 (6^th Cir. 2007), where the Sixth Circuit upheld a frivolous finding when the respondent recanted and withdrew his application after a withering cross-examination from government counsel during the course of the individual hearing on the asylum case.  The BIA also relied upon Barreto-Clao v. U.S. Att’y Gen., 275 F.3d 1334, 1339 (11^th Cir. 2001) where the respondent’s first application contained fraud and was replaced by a later, revised application. 

The BIA held that once an applicant is given warnings and still swears to the application, a subsequent recantation and withdrawal does not render the application moot.  It can still be the basis of a frivolous finding although withdrawn and not heard. 

Of course, the case is not concluded.  It will be reviewed by the Ninth Circuit, but this situation should be of some concern to immigration practitioners.  Many times a lawyer may not have an in-depth familiarity with the details of an asylum claim at the master hearing when the frivolous filing warning is given and the application is sworn to before the IJ.  Sometimes it is only later that the attorney, after a detailed review of the client’s case, will realize that it has no basis or is fabricated, but according to X-M-C-, it is too late to withdraw the application at that point.  The moral of the story is do not allow your client to swear to the application before the IJ if you are not totally familiar with the particulars of the asylum case and have evaluated it in the context of a frivolous filing. 

Naturally, if the application is frivolous, the attorney would have no choice but withdraw it and pursue other remedies if they are available, but that will not prevent DHS from cross-examining the client on the facts set out in the asylum application.  At that point the attorney must object because the asylum case is not relevant to the adjustment or cancellation or other relief being pursued now.  This objection may not be sustained because the credibility of the respondent will always be an issue in any case before the IJ and if the respondent has made misrepresentations to the government, the IJ will want to hear about it. 

The case raises other issues as well.  Does this case stand for the proposition that an asylum case can be denied and held to be frivolous without a hearing of any sort?.  Due process would suggest that this is not the case.  There has to be a finding or a determination of frivolousness and the results are extreme. The frivolous filer becomes permanently ineligivle for all benefits under the Act including adjustment and cancellation.  Findings that serious cannot be made without a fair hearing on the issue of frivolousness.  This hearing can be in the context of an adjustment or cancellation hearing that delves into the facts in the asylum application, but there must be a fair hearing on the matter. 

One hopes that most cases will not be as blatant as this one where the respondent admitted the fraud in the application.  Barring that there must be a hearing inquiring to the truth or falseness of the issues in the asylum case before a finding of a frivolous finding can be made.   

Jack Richbourg is an attorney practicing immigration law.  He spends most of his time representing individual in immigration court or in appeals from the immigration court.  You can reach him at 901-682-6455.  Do not rely on the contents of this blog as legal advice.  Advice in a particular case depends upon its own unique set of facts.  Always have a personal consultation with a licensed attorney before taking or refraining from taking any action.