Matter of GUEVARA ALFARO: Silva-Trevino’s mandatory three-step framework supports finding that intentional sexual conduct by an adult with a child is a Crime Involving Moral Turpitude (CIMT).

In Matter of GUEVARA ALFARO25 I&N; Dec. 417 (BIA 2011), the Board of Immigration Appeals (BIA) held that:
  1. Any intentional sexual conduct by an adult with a child involves moral turpitude, as long as the perpetrator knew or should have known that the victim was under the age of 16.
  2. Absent otherwise controlling authority, Immigration Judges and the Board of Immigration Appeals are bound to apply all three steps of the procedural framework set forth by the Attorney General in Matter of Silva-Trevino for determining whether a particular offense constitutes a crime involving moral turpitude.
In a decision dated April 27, 2010, an Immigration Judge terminated the removal proceedings against the respondent. The Department of Homeland Security (“DHS”) appealed from that decision. The appeal was ultimately sustained, the proceedings reinstated, and the record remanded for further proceedings.
The respondent in this case was a citizen of El Salvador  who adjusted his status to that of a lawful permanent resident in 1997. He was placed in removal proceedings after being convicted of several offenses, including unlawful sexual intercourse with a minor (statutory rape) in violation of section 261.5(d) of the California Penal Code. That section provides as follows:
Any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment in the state prison for two, three, or four years.
In Matter of Silva-Trevino the Attorney General established a three-part framework for determining whether a particular offense constitutes a crime involving moral turpitude.

 

  • First, a categorical approach must be employed under which the criminal statute at issue is examined to ascertain whether moral turpitude is intrinsic to all offenses that have a “realistic probability” of being prosecuted under that statute.
  • Second, if the issue cannot be resolved under the categorical approach, a modified categorical approach should be undertaken, which requires inspection of specific documents comprising the alien’s record of conviction (such as the indictment, the judgment of conviction, jury instructions, a signed guilty plea, or the plea transcript) to discern the nature of the underlying conviction. 
  • Finally, if the record of conviction is inconclusive, probative evidence beyond the record of conviction (such as an admission by the alien or testimony before the Immigration Judge) may be considered when evaluating whether an alien’s offense constitutes a crime involving moral turpitude. 
When applying Matter of Silva-Trevino to this case, the BIA analyzed this case as follows:
  • It first analyzed section 261.5(d) of the California Penal Code under the categorical approach. Since the statute does not require a perpetrator to have engaged in intentional sexual contact with someone he or she knew or should have known to be a child, there is a realistic probability it could be applied to conduct that does not involve moral turpitude. The offense prohibited by section 261.5(d) is therefore not a categorical crime involving moral turpitude under the first step of Silva-Trevino. 
  • Applying the second step, the BIA found that there were no documents in the record of conviction establishing that the respondent knew or should have known that his victim was a child.
  • The only remaining step of Silva-Trevino is the third, which provides for consideration of probative evidence beyond the record of conviction. For this step, the BIA analyzed the respondent’s testimony before the Immigration Judge. 
Because the BIA generally lacks the authority to make findings of fact in the course of deciding appeals (8 C.F.R. § 1003.1(d)(3)(iv)), it remanded the case for the Immigration Judge to make specific factual findings regarding whether the respondent knew or should have known that his victim was a minor, taking into consideration the respondent’s prior testimony before the Immigration Court and any other relevant evidence.

 

Matter of Nelson: Continuous residence clock for Cancellation of Removal not reset by alien’s departure and reentry – absent waiver of inadmissibility for conviction.

In Matter of Nelson, 25 I&N; Dec. 410 (BIA 2011), the Board of Immigration Appeals (BIA) addressed the question of the “stop-time” rule under section 240A(d)(1) of the Immigration and Nationality Act (INA).  More specifically, the BIA addressed the issue of whether the clock can be reset by an alien’s departure from, and reentry to, the United States after a conviction for a crime that would otherwise stop the accrual of continuous residence for purposes of determining eligibility for cancellation of removal under INA section 240A(a).

Section 240A(d)(1), which sets forth the “stop-time” rule, provides in pertinent part:

Termination of Continuous Period. For purposes of this section, any period of continuous residence or continuous physical presence in the United States shall be deemed to end (A) . . . when the alien is served a notice to appear under section 239(a), or (B) when the alien has committed an offense referred to in section 212(a)(2) that renders the alien inadmissible to the United States under section 212(a)(2) or removable from the United States under section 237(a)(2) or 237(a)(4), whichever is earliest.

The BIA held in this case that continuous residence cannot be restarted absent a waiver of inadmissibility in regard to the conviction. That is, once a foreign national has been convicted of an offense that stops the accrual of the 7-year period of continuous residence required for cancellation of removal, INA section 240A(d)(1) does not permit such residence to restart simply because the alien has departed from, and returned to, the United States.

In this case the respondent, who is from Jamaica, was admitted to the United States as a lawful permanent resident in 1994.  In 1999 he was convicted of possession of marijuana in New York. In 2000 he visited Canada for two days and returned to the United States. In removal proceedings the respondent applied for Cancellation of Removal. The Immigration Judge denied the respondent’s application for cancellation of removal under INA section 240A(a) because he failed to establish the requisite 7 years of continuous residence. Specifically, the Immigration Judge found that the respondent was admitted in 1994 and that under section 240A(d)(1) of the Act, his period of continuous residence ended in 1999 when he committed the drug offense that rendered him removable.

The BIA agreed with the Immigration Judge’s conclusion that under INA section 240A(d)(1), the period of time the respondent was in the United States after his conviction and subsequent reentry cannot be counted toward the accrual of the 7 years of continuous residence required for cancellation of removal, since the clock does not start anew when the alien departs and reenters the United States following the commission of a triggering offense.

Matter of ALYAZJI: 5-year clock for 237(a)(2)(A)(i) removability is not reset each time a foreign national is admitted (within the United States).

Matter of ALYAZJI, 25 I&N; Dec. 397 (BIA 2011), identifies when the date of admission begins to run for purposes of section 237(a)(2)(A)(i) of the Immigration and Nationality Act (INA), which in a pertinent part, authorizes the removal of any alien who “is convicted of a crime involving moral turpitude committed within five years . . . after the date of admission,” provided the crime is punishable by a sentence of imprisonment of 1 year or longer.

In Matter of ALYAZJI the Board of Immigration Appeals (BIA) held that  a conviction for a crime involving moral turpitude triggers removability under section 237(a)(2)(A)(i) only if the crime was committed within 5 years after the date of the admission by virtue of which the alien was then in the United States.  The BIA concluded that the class of aliens “in and admitted to the United States” referred to in the opening sentence of 237(a) of the INA consisted of:
  • Those who entered the United States with the permission of an immigration officer after being inspected at a port of entry; and
  • Those who entered the United States without permission or were paroled, but who subsequently became lawful permanent residents.
Under the BIA’s new understanding of the phrase “the date of admission”, the 5-year clock is not reset by a new admission from within the United States (through adjustment of status). To ascertain an alien’s deportability under section 237(a)(2)(A)(i), one must first look to the date when the crime was committed. If, on that date, the alien was in the United States pursuant to an admission that occurred within the prior 5-year period, then he is deportable. Conversely, the alien is not deportable if he committed his offense more than 5 years after the date of the admission pursuant to which he was then in the United States.

Matter of ALYAZJI overrules Matter of Shanu, 23 I&N; Dec. 754 (BIA 2005), where the BIA held that the term “admission” used in section 237(a)(2)(A)(i) referred to adjustment of status as well as admission at the border; and second, that an alien’s conviction for a crime involving moral turpitude supported removal under that section so long as the crime was committed within 5 years after the date of any admission made by the foreign national.

This case involved Alla Adel Alyazji, a Palestinian citizen who entered the United States on a temporary visa in 2001 and became a lawful permanent resident in 2006.  In January 2008, the respondent was convicted of indecent assault in violation of Pennsylvania law, based on a 2007 offense. As a result of that conviction, the Department of Homeland Security (“DHS”) initiated removal proceedings. Shortly after removal proceedings commenced, the respondent sought termination on the ground that his indecent assault conviction resulted from an offense committed more than 5 years after his “admission” as a nonimmigrant in August 2001. The Immigration Judge denied the motion based on Matter of Shanu, holding that the respondent is removable because he committed his offense less than 5 years after his “admission” to lawful permanent resident status in April 2006.
The BIA terminated removal proceedings against Mr. Alyazji concluding that when he committed his crime involving moral turpitude in 2007, he was in the United States pursuant to his 2001 admission as a nonimmigrant. Because he committed his offense more than 5 years after that “date of admission,” he was not deportable, even though he was “readmitted” by means of adjustment of status in April 2006.

Naturalization Through Military Service

The Immigration and Nationality Act (INA) provides for an expedited naturalization process for current or recently discharged members of the Army, NavyAir Force, Marine Corps, Coast Guard, and certain components of the National Guard.
On July 3, 2002 President Bush signed Executive Order 13269 authorizing all noncitizens who have served honorably in the U.S. armed forces on or after Sept. 11, 2001 to immediately file for citizenship. This order also covers veterans of certain designated past wars and conflicts. This was done pursuant to Section 329 of the INA which covers periods of service during periods of hostilities. Section 328 of the INA covers periods of service during peacetime.   Under this section, members of the U.S. armed forces and those already discharged from service may qualify for naturalization if he or she has:
  • Served honorably in the U.S. armed forces for at least one year;
  • Obtained lawful permanent resident status; and
  • Filed an application while still in the service or within six months of separation.
Every military installation has a designated point-of-contact, generally in the personnel division or the Judge Advocate General’s Office, to assist members of the military prepare and file their naturalization application packet. Here’s where members of the military can go for additional help:
Members of the military seeking to naturalize must still meet some of the basic requirements.  For example, the applicant must be a person of good moral character, have a basic command of the English language, and must also have a basic knowledge of U.S. History and Government. An applicant for naturalization must also show that he or she is attached to the principles of the Constitution of the United States, and will be required to take the Oath of Allegiance. Members of the military however are exempt from other naturalization requirements, including residence and physical presence in the United States.

What You and Your Interpreter Need to Know – 6 Suggestions for a Smoother Immigration Interview

Interpreters play an important role in our immigration system. Unlike the Immigration Court where a professional interpreter is supplied by the Court, the U.S. Citizenship and Immigration Services (USCIS) does not provide an interpreter for immigration interviews such as for an adjustment of status or naturalization interview. An applicant before USCIS, who needs interpretation, needs to supply his or her own. 
 
As I came to find out some time ago when talking with a professional interpreter, there’s actually a difference between a “translator” and an “interpreter”. Here’s the difference: an interpreter is a person who interprets orally from one language to another, whereas a translator translates written material from one language to another. 
 
Although a professional interpreter is always recommended, financial considerations many times trump this recommendation.  Most clients who need an interpreter for an interview before USCIS bring a friend or neighbor. This is not always a good thing.  When considering which friend or neighbor to ask, look for:
  • A person who is not a family member. Family members have a vested interested in your success (at least one would hope). They’re not really the most impartial people we can find. Officers know that, and it may affect your credibility. 
  • A person you can trust.  You want someone that can keep your personal information in confidence. Interviews can expose very personal and potentially embarrassing information that are best kept “in-house”.
  • A person that will be on time and has all day to spare.  Just like interviews can start right on time, interviews can take much longer than anticipated.  You want to bring a person that can be at the USCIS district office on time and can afford to stay all day.  If you’re called in for your interview at 2 p.m. and your interpreter needs to pick up her children by 2:30 p.m., I guarantee you she will prefer to pick up her children.  I don’t blame her.
  • A person that can speak better English than you. An applicant wants to make sure that the person they bring has a good command of both English and their native language.
  • A person who is in the United States lawfully and has no criminal record.   This should go without saying, but, bringing an interpreter to your interview who is not in the country lawfully or has pending matters before the same office, is not really a good idea. You want to bring an interpreter who is a U.S. citizen who has no outstanding criminal matters because it might affect not only his credibility, but yours. If not a U.S. citizen, bring a Lawful Permanent Resident (LPR).  Every state has a case information system.  For example, Virginia has a Case Status and Information page where one can look up a person’s record.  Give it a shot and see what you find.
  • A person who is not a “notario” or immigration consultant.  Use one at your own risk.  The American Immigration Lawyers Association (AILA) created a new consumer website providing information and resources to immigrants to avoid being defrauded by a notario, and where to get help if they are harmed.

Below are some suggestions for the interpreters helping out a friend or neighbor. I understand that interpreters might have a handful of suggestions for us attorneys.  If you have suggestions, please contact me and we might have you as a guest on our blog.

  • Plan ahead.  Traffic jams, getting lost, and delays at the security counter are common. Give yourself plenty of time to get to the USCIS office and plan to stay there for at least 2-3 hours. You might end up being there for 30 minutes but things could get delayed.  Also, bring your driver’s license or ID with you. The interviewing officer will make a copy of the ID and keep it in the file
  • Legal advice is best left to the attorney.  Your experiences or the experiences of others may or may not apply to the case at hand.   Avoid suggesting an answer to a particular question or coaching the person in matters that you may not be qualified in.
  • Ask for a copy of the forms submitted (or at least blank ones) to review them before the interview.  Some of the questions can be long, complicated, and right out confusing.  Reviewing the questions beforehand will give you a pretty good idea what the officer will be asking.
  • Begin interpreting as soon as the officer begins speaking.  Don’t wait for the adjudicating officer to give you a green light. Begin interpreting as soon as the officer speaks. If there’s something you don’t understand, kindly ask the officer to repeat himself.     
  • At the interview, avoid having side conversations. The officer might think you’re coaching him or her or giving them “the answer”.   
  • Remember you’re under oath.  Interpret faithfully what is being said.
Most interviews don’t take more than 30 minutes – so relax.  If you’re helping out a friend or a neighbor, you’re doing a good thing.  Yours is an important responsibility that you have to take seriously if the interview will go smoothly.  Keep these suggestions in mind and you’ll do fine. 

BALCA’s “Matter of Sanmina-SCI Corporation”: Clarifying the “Employee Referral Program” recruitment step under PERM

In Matter of Sanmina-SCI Corporation the Board of Alien Labor Certification Appeals (BALCA) found that in order to make the employee referral program recruitment step meaningful, an employer must minimally be able to document that:
  • Its employee referral program offers incentives to employees for referral of candidates;
  • That the employee referral program was in effect during the recruitment effort the employer is relying on to support its labor certification application; and 
  • That the Employer’s employees were on notice of the job opening at issue. 
In this case the employer, Sanmina-SCI Corporation, filed an Application for Permanent Employment Certification on behalf of a foreign national for the position of Software Applications Engineer.  Following an audit, the Certifying Officer denied certification on the grounds that:
  • The Employer’s Notice of Filing was only posted for nine consecutive business days because one of the posting days was Columbus Day;
  • The Employer failed to provide adequate documentation of its employees referral program with incentives. 
BALCA vacated the denial based on the Notice of Filing ground and remanded the case to permit the Employer an opportunity to present evidence as to whether Columbus Day for the Employer was a “business day” consistent with Il Cortile Restaurant, 2010-PER-683 (Oct. 12, 2010).  In Il Cortile Restaurant BALCA held that, for purposes of the Notice of Filing requirement, a “business day” is any day that the employees are working on the premises and can see the Notice of Filing. 
BALCA in this case also reversed the CO’s finding that the Employer had not adequately documented its use of an employee referral program with incentives. In its reasoning BALCA held that the Employer’s documentation was adequate to fulfill the required elements in that the Employer established that it had an employee referral program with incentives, that the program was ongoing during the recruitment for the position at issue, and that the job was advertised within the company. 
BALCA is the administrative appellate body within the U.S. Department of Labor (DOL) consisting of administrative law judges assigned to labor certification matters. As way of background, a permanent labor certification issued by the Department of Labor (DOL) allows an employer to hire a foreign worker to work permanently in the United States. In most instances, before the U.S. employer can submit an immigration petition to the Department of Homeland Security‘s U.S. Citizenship and Immigration Services (USCIS), the employer must obtain an approved labor certification request from the DOL’s Employment and Training Administration (ETA). More specifically, the DOL’s Office of Foreign Labor Certification  (within the ETA) must certify to the USCIS that there are no qualified U.S. workers able, willing, qualified and available to accept the job at the prevailing wage for that occupation in the area of intended employment and that employment of the foreign national will not adversely affect the wages and working conditions of similarly employed U.S. workers.

To review previous decisions, visit BALCA’s Digest of PERM Decisions.  DOL’s Office of Foreign Labor Certification (OFLC) also has a lot of information about the permanent labor certification process under their Program for Electronic Review Management or PERM. This includes: Policies and Regulations, Frequently Asked Questions (FAQs), Forms and Instructions, along with other useful information. 

USCIS and Immigration Court Closings Due to Inclement Weather

From time to time inclement weather forces the closing of government offices, including offices of the U.S. Citizenship and Immigration Services (USCIS) and the Executive Office for Immigration Review (EOIR).  When that happens, it’s important to know where to go or who to call to ensure an applicant is not missing an important scheduled hearing or interview. 
Here are some suggestions applicants can follow if they have an appointment scheduled with USCIS and they want to verify that the office is open for business and to obtain further instructions on rescheduling the appointment if the office is closed.
If an individual has an immigration hearing scheduled before an immigration court of the Executive Office for Immigration Review (EOIR), here are some recommendations to verify that the office is open for business. Not attending a scheduled hearing can have grave consequences.  Check ahead with more than one source to make sure.
Needless to say applicants should be contacting their attorney if they have one.  If the attorney doesn’t know whether the office is open for business, let the attorney know where to obtain the information and bill them for your time.  

Requesting Return of Original Documents from USCIS

Applicants should not submit original documents to the U.S. Citizenship and Immigration Services (USCIS) in support of an application or petition. If original documents such as passports or birth and marriage records were submitted however, USCIS provides a way to get those documents back.  To request that an original document be returned, Form G-884 should be submitted.
A few things to keep in mind when submitting the application:  
  • The application requires a notarized signature;
  • A copy of two identity documents must also be submitted;
  • No filing fee is required; and
  • The application should be filed with the USCIS office or service center that is currently processing the case, or, if a final decision has been issued, Form G-884 should be submitted to the USCIS office or service center that took the last action on the case.  The name and address of the USCIS office that adjudicated or is adjudicating the case will normally be on the bottom left-hand corner of the latest Notice of Action or receipt notice.
Additionally, be sure to specify what documents are specifically being requested along with any additional information that might assist USCIS in locating the file and the specific document requested. If requesting documents from a file not relating directly to the applicant, additional documents such as proof of the relationship or a power of attorney may be required.  
On a different post we will cover the benefits and the how to’s of obtaining a copy of an applicant’s “A-File” from USCIS through the use of a Freedom of Information Act (FOIA) request on Form G-639.  

The 112th Congress and what Naturalization Applicants Need to Re-Learn

As the members of the 112th Congress go about taking care of the business of the American people, there are a few things that naturalization applicants need to know as they prepare for their interview.  Due to the recent elections, some civics test answers will change.  More specifically, applicants should check the answers to questions 20, 23, 43, and 47 prior to their interview. The answers to the first three questions may vary depending on where the applicant lives. 
  • Question #20: “Who is one of your state’s U.S. Senators now?”  The U.S. Constitution provides for two Senators from each state for a total of 100 Senators.  Article I, Section 3, provides that “The Senate of the United States shall be composed of two Senators from each state, chosen by the legislature thereof, for six years; and each Senator shall have one vote.” To check the names of your U.S. Senators and much more information about them like where they stand on the issues that are important to you, visit the U.S. Senate’s website (top right-hand corner under “Find Your U.S. Senators”). 
  • Question #23: “Name your U.S. Representative.” With at least 63 seats changing hands in this last election cycle, there are lots of new faces as the 112th Congress convenes.  To find your congressman, visit the U.S. House of Representative’s website (top left-hand corner under “Find Your Representative”). Article I, Section 2 of the U.S. Constitution provides that “The House of Representatives shall be composed of members chosen every second year by the people of the several states, and the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature.”
  • Question #43: “Who is the Governor of your state now?”.  The Governor is the chief executive of each state and is vested with considerable limited powers.  To find the governor for your state, visit the following link
  • Lastly, Question #47 asks “What is the name of the Speaker of the House of Representatives now?”  The correct answer is John Boehner.  Mr. Boehner represents the 8th District of Ohio.  View Speaker Boehner’s remarks to the opening session of the 112th Congress
As you prepare for your interview, carefully review the study guides and other materials provided by the U.S. Citizenship and Immigration Services. Be sure to also check out my previous post with interview preparation tips. 

Commandment #5 of Applying for Naturalization: Thou Shall Prepare Well for the Interview

There are some key points that applicants should consider as they prepare for their naturalization interview before the U.S. Citizenship and Immigration Services (USCIS). 
An applicant for naturalization must meet certain requirements.  Apart from ensuring qualification – preferably before application, the applicant must prepare well.  What is a nervous applicant to do? Here are some thoughts to help along the way. 
  • Read the N-400 Naturalization Application carefully.  It’s important that the applicant understand what exactly is it that they signed and submitted to USCIS. Obviously this is best done before submitting the application.  For non-native English speakers, some of the language used in the N-400 application can be a bit confusing and intimidating.  The interviewing officer will read most of those questions verbatim.  Add to that some of the legal language peppered throughout the questionnaire, and your head can be spinning in no time. Reviewing the questions in advance will help the applicant, and the interviewing officer, to move the interview along that much more quickly.
  • Know and understand what the Oath of Allegiance really says.  An applicant for naturalization must show that he or she is attached to the principles of the Constitution of the United States, and will be required to take the Oath of Allegiance.  If the applicant doesn’t know what the oath actually says, then a question might arise as to whether the applicant really understands what he or she is doing.
I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state or sovereignty, of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by the law; that I will perform noncombatant service in the armed forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely without any mental reservation or purpose of evasion; so help me God.

  • Lastly, before heading out the door, the applicant should review carefully the list of documents needed to ensure that he or she is bringing the documents required. Any delay, even for a simple document, is many times measured in months – not weeks.  Below you will find a document checklist and a sample interview notice.  
This may very well be my last entry for this year.  If it is, I want to wish you a Merry Christmas and a prosperous and amazing New Year.  Cheers.    

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