Judge Garry Malphrus – Page 3 – immigrationcourtside.com

BIA DEFINES “RAPE” – MATTER OF KEELEY, 27 I&N DEC 146 (BIA 2017)

Matter of Keeeley, 27 I&N Dec. 146 (BIA 2017)

BIA HEADNOTE:

(1) The term “rape” in section 101(a)(43)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(A) (2012), encompasses an act of vaginal, anal, or oral intercourse, or digital or mechanical penetration, no matter how slight. Perez-Gonzalez v. Holder, 667 F.3d 622 (5th Cir. 2012), not followed.

(2) The term “rape” also requires that the underlying sexual act be committed without consent, which may be shown by a statutory requirement that the victim’s ability to appraise the nature of the conduct was substantially impaired and the offender had a culpable mental state as to such impairment.

PANEL: Appellate Immigration Judges PAULEY, MALPHRUS, and MULLANE

DECISION BY: Judge Pauley

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Perhaps not surprisingly, the BIA chose not to follow the decision of the Fifth Circuit Court of Appeals in Perez-Gonzalez v. Holder, 667 F.3d 622 (5th Cir. 2012) which offered a rape definition slightly more favorable to respondents. The Fifth Circuit generally is known as an very conservative, pro-Government body, hardly the Ninth Circuit or even the Seventh Circuit. But, then, what do Article III Judges know about criminal law and statutory construction?

PWS

10-21-17

BIA SAYS “NO” TO BATTERED SPOUSE WAIVER FOR THOSE ABUSED BY FOREIGN SPOUSE! — Matter of PANGAN-SIS, 27 I&N Dec. 130 (BIA 2017)

3904

Matter of PANGAN-SIS, 27 I&N Dec. 130 (BIA 2017)

BIA HEADNOTE:

An alien seeking to qualify for the exception to inadmissibility in section 212(a)(6)(A)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(A)(ii) (2012), must satisfy all three subclauses of that section, including the requirement that the alien be “a VAWA self-petitioner.”

PANEL: Appellate Immigration Judges Malphrus, Mullane & Creppy

OPINION BY: Judge Mullane

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Let’s break this down into simple human terms. A Guatemalan woman suffered an extended period of domestic abuse in Guatemala at the hands of her husband. That caused her to flee to the United States and enter without inspection. The woman told the truth to authorities.

Rather than granting her temporary refuge, the U.S. Government sought to remove the woman. The woman was fortunate enough to get a good lawyer who made sophisticated arguments in favor of her remaining. She also was fortunate to have a U.S. Immigration Judge who listened to those arguments and granted her a humanitarian waiver. This waiver allowed her to remain in the United States, but did not give her any permanent status nor did it put her in line for a green card.

The Government (“DHS”) did not want the woman to remain, even in a more or less “limbo status.” So, they appealed to the BIA.

The BIA agreed with the woman that the waiver statute was ambiguious and therefore the Immigration Judge had plausibly interpreted it in her favor. But, the BIA found that a “better interpretation” would impose additional requirements that woman and those similarly situated could never meet. The BIA noted that Congress was only concerned about domestic violence in the United States that was being used as “leverage” against a foreign national by his or her US citizen or green card holding spouse.

Inferentially, the BIA found that Congress could not possibly have intended to help other victims of domestic violence that occurred outside the United States. That would potentially allow every abused spouse in the world to seek a discretionary waiver that would save them from abuse by granting them limited refuge in the United States.

The BIA sent the case back to the Immigration Judge so that the DHS can continue its efforts to remove her to Guatemala where she will be further abused by her Guatemalan spouse. Her lawyer can help her apply for asylum and withholding of removal based on a prior BIA decision Matter of A-R-C-G- that benefitted victims of domestic violence.

However the DHS is likely to oppose that relief. Otherwise, the DHS would have already offered to settle the case based on A-R-C-G-. That’s what used to happen routinely in my court in Arlington prior to the Trump Administration. The woman is credible and appears to fit squarely within A-R-C-G-.

But, if the Immigration Judge grants relief under A-R-C-G- or the Convention, Against Torture (“CAT”), the DHS probably will appeal again to the BIA. As part of the Administration’s enforcement program, the DHS wants the BIA to help them “send a message” that victims of domestic violence might as well continue to suffer abuse or preferably die (thus solving the problem from a U.S. Immigration Enforcement standpoint) at the hands of their abusers rather than seeking refuge in the United States. Bad things that happen to good people in other countries are just not our problem. America First!

The BIA Appellate Judges work for Jeff Sessions. They understand even better than Immigration Judges in the field that “not getting with the Administration’s Enforcement program” of sending consistently negative messages to asylum seekers could result in their being reassigned to other jobs by Jeff Sessions. Some of those jobs have no real duties (“Hallwalkers”).

Jeff Sessions hates all migrants and particularly Hispanic migrants fleeing from Central America. He hates them almost as much as he hates LGBTQ Americans.

Jeff tells everyone who will listen that all Hispanic migrants and most Hispanic citizens who live among them are criminals, drug dealers, and gang members. Even those who aren’t actually criminals are going to take great jobs that Americans would like to have such as picking lettuce, milking cows, shucking oysters, making beds, washing dishes, climbing up trees, cleaning bathrooms, sweeping floors, removing dangerous and moldy storm damage, taking off and putting on roofs in 120 degree heat, pounding drywall, taking care of other folks’ children, mowing laws, and changing adult diapers for senior cizens who can’t do it themselves.

While the United States might sometimes claim to be a bastion of freedom and humanitarian ideals, that is usually only when lecturing other countries on their failings or touting the superiority of our system over every other system in the world. Nobody should seriously expect the United States to act on those humanitarian ideals, particularly when it comes to helping women and children from the Northern Triangle of Central America.

PWS

10-07-17

DOUBLE WHAMMY: BIA “BRAND X’s” Ninth Circuit On Material Misrepresentation & Extrajudicial Killings — Effectively Overrules Article III’s Interpretation! — Matter of D-R-, 27 I&N Dec. 105 ( BIA 2017)!

https://www.justice.gov/sites/default/files/pages/attachments/2017/09/14/3902_0.pdf

PANEL: BIA Appellate Immigration Judges Grant, Malphrus, Mullane

OPINION BY: Judge Malphrus

HEADNOTES:

“(1) A misrepresentation is material under section 212(a)(6)(C)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(C)(i) (2012), when it tends to shut off a line of inquiry that is relevant to the alien’s admissibility and that would predictably have disclosed other facts relevant to his eligibility for a visa, other documentation, or admission to the United States. Forbes v. INS, 48 F.3d 439 (9th Cir. 1995), not followed.

(2) In determining whether an alien assisted or otherwise participated in extrajudicial killing, an adjudicator should consider (1) the nexus between the alien’s role, acts, or inaction and the extrajudicial killing and (2) his scienter, meaning his prior or contemporaneous knowledge of the killing. Miranda Alvarado v. Gonzales, 449 F.3d 915 (9th Cir. 2006), not followed.”

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Chief Justice John Marshall must be turning over in his grave at how with Chevron and Brand X the Supremes have turned the judicial authority of the United States over to administrative judges within the Executive Branch. Why have an Article III Judiciary at all if it is too timid, afraid, or unqualified to rule on questions of law?

PWS

09-18-17

NEW BIA PRECEDENT: CAL. ROBBERY IS CATEGORICAL AGFEL — Matter of Delgado, 27 I&N Dec. 100 (BIA 2017)

3901

BIA HEADNOTE:

“Robbery under section 211 of the California Penal Code, which includes the element of asportation of property, is categorically an aggravated felony theft offense under section 101(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(G) (2012), regardless of whether a violator merely aided or abetted in the asportation of property stolen by a principal.”

PANEL: BIA Appellate Immigration Judges Pauley, Guendelsberger, Malphrus

OPINION BY: Judge Pauley

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PWS

09-12-17

NEW PRECEDENT: BIA SAYS ADJUSTMENT TO LPR STATUS TERMINATES ASYLUM STATUS — MATTER OF N-A-I-, 27 I&N Dec. 72 (BIA 2017)

https://www.justice.gov/eoir/page/file/986401/download

BIA Headnotes:

“(1) An alien who adjusts status under section 209(b) of the Immigration and Nationality Act, 8 U.S.C. § 1159(b) (2012), changes his or her status from that of an alien granted asylum to that of an alien lawfully admitted for permanent residence, thereby terminating the alien’s asylee status. Matter of C-J-H-, 26 I&N Dec. 284 (BIA 2014), clarified.

(2) The restrictions on removal in section 208(c)(1)(A) of the Act, 8 U.S.C. § 1158(c)(1)(A) (2012), do not apply to an alien granted asylum whose status is adjusted to that of an alien lawfully admitted for permanent residence pursuant to section 209(b) of the Act.”

PANEL: BIA APPELLATE IMMIGRATION JUDGES, MALPHRUS, MULLANE, LIEBOWITZ

OPINION BY: JUDGE MALPHRUS

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This seems to follow to BIA’s previous jurisprudence in this area.

PWS

08-04-17

BIA PRECEDENT: SD Receipt Of Stolen Motor Vehicle NOT An Agfel — Lacks Mens Rea — Matter Of DEANG, 27 I&N Dec. 57 (BIA 2017) — Split Panel!

https://www.justice.gov/eoir/page/file/974211/download

BIA HEADNOTES:

(“1) An essential element of an aggravated felony receipt of stolen property offense under section 101(a)(43)(G) of the Act, 8 U.S.C. § 1101(a)(43)(G) (2012), is that an offender must receive property with the “knowledge or belief” that it has been stolen, and this element excludes a mens rea equivalent to a “reason to believe.”

(2) A conviction for receipt of a stolen motor vehicle under section 32-4-5 of the South Dakota Codified Laws categorically does not define an aggravated felony receipt of stolen property offense under section 101(a)(43)(G) of the Act because it is indivisible with respect to the necessary mens rea and only requires, at a minimum, that an offender have a “reason to believe” that the vehicle received was stolen.”

BIA PANEL: Appellate Immigration Judges Pauley, Creppy, & Malphrus

OPINION BY: Judge Pauley

DISSENTING OPINION: Judge Malphrus

Here’s an excerpt from Judge Malphrus’s dissent:

“I cannot agree with the majority’s conclusion that the respondent’s receipt of stolen property offense does not qualify as an aggravated felony under section 101(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(G) (2012). I agree that our task is to determine the generic, contemporary meaning of the phrase “receipt of stolen property” in section 101(a)(43)(G) by surveying the Federal and State statutes as they existed in 1994, when Congress added the phrase “receipt of stolen property” to section 101(a)(43) of the Act, as well as the Model Penal Code. See Taylor v. United States, 495 U.S. 575, 592, 598 (1990); see also Matter of Alvarado, 26 I&N Dec. 895, 897 (BIA 2016). However, there was simply no consensus regarding the mens rea standard for receipt of stolen property offenses in 1994. I cannot conclude that Congress intended to adopt a mens rea that, according to the majority, would preclude offenses in 21 jurisdictions, as well as a Federal offense, from qualifying as aggravated felonies.”

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Read the complete majority and dissenting opinions at the link. This is a very rare (these days) “split panel” on a BIA precedent.

PWS

06-18-17

NEW PRECEDENT: Applicant Bears Burden Of Showing Mandatory Denial Inapplicable: MATTER OF M-B-C-, 27 I&N Dec. 31 (BIA 2017)

https://www.justice.gov/eoir/page/file/967306/download#31

BIA HEADNOTE:

“Where the record contains some evidence from which a reasonable factfinder could conclude that one or more grounds for mandatory denial of an application for relief may apply, the alien bears the burden under 8 C.F.R. § 1240.8(d) (2016) to prove by a preponderance of the evidence that such grounds do not apply.”

PANEL: Appellate Immigration Judges Malphrus, Mullane, Liebowitz

OPINION BY: Judge Mullane

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This was an unusual case, with lots of competing evidence on both sides. But, normally, this issue came up in routine NACARA or even TPS cases.

Here’s a more “normal”scenario.” The respondent was a private in the El Salvaoran Army during the Civil War in the 1980s. The DHS introduces old country reports and excerpts from the “El Rescate Database” showing that the respondent’s unit was in the department where human rights abuses took place. That’s sufficient to shift the burden to the respondent. to prove he did not engage in persecution.

The respondent testifies that he performed routine duties around the base and was never involved on combat, never harmed any civilian, and never witnessed any civilian being harmed.

That’s the case! Now the Immigration Judge has to make a decision on that skimpy evidence.

Things to keep in mind:

!) The U.S. Government was supporting the Salvadoran military during the Civil War. Indeed, a number of the individuals that DHS now claims were “persecutors of others” received military training in the U.S. or from U.S. officers.

2) The INS and the Immigration Courts summarily rejected asylum claims from individuals who suffered severe human rights violations amounting to persecution inflicted by the Salvadoran Government, the Armed Forces, the Civil Patrol, and entities aligned with them, such as so-called “death squads.”

Victim or persecutor,

Friend or foe,

The U.S. system,

Is a tough go.

PWS

05-19-17

NEW BIA PRECEDENT: Motivation Irrelevant In “Persecutor Bar” Case — Matter of J.M. ALVARADO, 27 I&N Dec. 27 (BIA 2017)

https://www.justice.gov/eoir/page/file/964491/download

Here is the BIA headnote:

“The persecutor bar in section 241(b)(3)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1231(b)(3)(B)(i) (2012), applies to an alien who assists or otherwise participates in the persecution of an individual because of that person’s race, religion, nationality, membership in a particular social group, or political opinion, without regard to the alien’s personal motivation for assisting or participating in the persecution.”

PANEL: Appellate Immigration Judges Malphrus, Mullane, Liebowitz

OPINION BY: Judge Malphrus

PWS

05-11-17

PRECEDENT: BIA Opines On “Divisibility” In Agfel Cases — Matter of CHAIREZ-CASTREJON, 27 I&N Dec. 21 (BIA 2017)

https://www.justice.gov/eoir/page/file/959656/download

Here’s the BIA headnote:

“In determining whether a statute is divisible under Mathis v. United States, 136 S. Ct. 2243 (2016), Immigration Judges may consider or “peek” at an alien’s conviction record only to discern whether statutory alternatives define “elements” or “means,” provided State law does not otherwise resolve the question.”

PANEL: Appellate Immigration Judges Pauley, Greer, Malphrus

OPINION BY: Judge Pauley

CONCURRING OPINION BY: Judge Malphrus

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This case is unusual because BIA Judges seldom file “separate opinions” in published decisions these days.

In his concurring opinion, Judge Garry D. Malphrus appears to be both questioning whether the Supreme Court’s approach to statutory “divisibility” analysis comports with congressional intent in immigration matters and inviting Congress to perhaps change the INA so that the BIA and the Immigration Judges could examine the facts of the case, as set forth in the record of conviction, to determine whether the individual should be removed. Judge Malphrus says in his conclusion:

“Here, we must presume that the respondent committed the least of the acts criminalized within the range of conduct punishable under his statute of conviction. See Moncrieffe v. Holder, 133 S. Ct. 1678, 1684–85 (2013). This is true even though the respondent’s plea agreement indicates that he did more—specifically, that he knowingly discharged a firearm at another, and thus he committed an aggravated felony crime of violence. See id.

The approach to divisibility required by Descamps and Mathis will result in immigration proceedings being terminated for many aliens who have committed serious crimes in the United States. See, e.g., Ramirez v. Lynch, 810 F.3d 1127, 1134–38 (9th Cir. 2016) (reversing the order of removal upon concluding that the California statute proscribing felony child abuse was not divisible, and thus it was improper to consider the conviction records in determining whether the alien’s conviction constituted an aggravated felony crime of violence). [footnote omitted]. It is for Congress to determine whether this approach is consistent with its intent regarding the immigration consequences of such criminal conduct.”

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Another observation: How could an unrepresented respondent charged under this section possibly defend himself consistent with due process when the law is so complex and convoluted. This particular respondent was fortunate enough to have a lawyer, and as we can see, he was able to achieve a favorable result. But, recent studies have shown that the overwhelming number of respondents in detention (as individuals charged as “agfels” must be) must proceed without counsel. http://wp.me/p8eeJm-Gv

PWS

04-24-17

PRECEDENT: BIA Gives Guidance On Admin Closing & Avetisyan — PD Should Not Be A Factor Unless Parties Agree — Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017)

https://www.justice.gov/eoir/page/file/958526/download

BIA Headnotes:

“(1) The primary consideration for an Immigration Judge in evaluating whether to administratively close or recalendar proceedings is whether the party opposing administrative closure has provided a persuasive reason for the case to proceed and be resolved on the merits. Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), clarified.

(2) In considering administrative closure, an Immigration Judge cannot review whether an alien falls within the enforcement priorities of the Department of Homeland Security, which has exclusive jurisdiction over matters of prosecutorial discretion.”

Panel: Appellate Immigration Judges Malphrus, Mullane, & Creppy

Opinion by Judge Malphrus.

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While at first blush it might appear that the unrepresented respondent “won” this appeal, the victory is likely to be phyrric at best.

There was a time (now apparently gone) when the DHS gave individual Assistant Chief Counsel broader authority to offer prosecutorial discretion (“PD”) in cases that were not enforcement priorities.

In Arlington, where I was an Immigration Judge, the Assistant Chief Counsel were very reasonable and fair, and usually agreed to “short docket” hearings on well-documented asylum cases that fell squarely within the BIA precedents. Consequently, when they offered “PD” in an asylum case it usually was a “signal” that they saw the equities in the case, but also had difficulties with the asylum application that would require them to fully litigate the case and probably appeal a grant. Since the Assistant Chief Counsel in Arlington did not normally contest asylum cases unless there were significant proof or legal issues involved, their views had great credibility with both the private bar and with me.

Generally, in such situations I “suggested” that counsel accept the proffer of PD and continue to work with the Assistant Chief Counsel on overcoming her or his problem with the asylum case. If the parties eventually were able to reach agreement that the case could be heard on the “short docket” (30 minutes or less), I would be happy to restore the case to the docket upon joint motion. Usually, counsel got my “message.”

The few cases that went forward after “PD” had been turned down by counsel usually proved to be “losers” for the respondent, either before me or before the BIA. In a couple of cases, where I could see the respondent’s case “going south in a hurry,” I simply stopped the hearing and granted the DHS motion for Administrative Closing for PD over the respondent’s objection. I don’t think anyone ever appealed. But, under Matter of W-Y-U-, I probably could not have done that.

I suspect that when this unrepresented respondent eventually gets his wish and has a merits asylum hearing, he will lose. At that point, the DHS, even prior to the Trump Administration, would be unlikely to exercise PD, even if there were outstanding equities.

Sometimes in litigation you get what you ask for, and later wish you hadn’t asked.

PWS

04-19-17

PRECEDENT: BIA Finds “Assault with a deadly weapon or force likely to produce great bodily injury under California law is categorically a crime involving moral turpitude.” — Matter of Wu, 27 I&N Dec. 8 (BIA 2017)

Here’s the link to the full opinion:

https://www.justice.gov/file/957431/download

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BIA PANEL: Appellate Immigration Judges Malphrus, Mullane, & Creppy

OPINION BY: Judge Malphrus

PWS

04-14-17

New From BIA — Matter of Kim, 26 I&N Dec. 912 (BIA 2017) — CA Mayhem A COV

https://www.justice.gov/eoir/page/file/933996/download

BIA headnote:

“The crime of mayhem in violation of section 203 of the California Penal Code, which requires a malicious act that results in great bodily injury to another person, necessarily involves the use of violent force and is therefore categorically a crime of violence under 18 U.S.C. § 16(a) (2012).”

PANEL: JUDGES PAULEY, MALPHRUS, MULLAINE

Decision by Judge Malphrus

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PWS

01/31/17

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