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Defense Arguments: Matter Of Almanza-Arenas, 24 I&N Dec. 771 (BIA 2009)

by Kathy Brady

Matter of Almanza-Arenas was published on April 13, 2009. It made two rulings that purport to overturn established law.

  • It held that the REAL ID provisions overruled Ninth Circuit precedent, so that in the Ninth Circuit the respondent bears the burden of document production to establish that a conviction under a divisible statute is not a bar to relief.
  • It held that any conviction of a crime involving moral turpitude, or perhaps any moral turpitude conviction with a potential sentence of a year, is a bar to non-LPR cancellation, at least where the applicant entered without inspection.

This advisory discusses arguments against both of these holdings, which appear to be subject to challenge. A motion to reconsider is pending with the BIA, but unless and until that is granted advocates should appeal denials to circuit courts. Counsel should raise these and other valid arguments at all levels in the process to be sure of benefitting from a future good decision.

A. The Ninth Circuit's rule that the government has the burden of document production to show that a conviction under a divisible statute is a bar to relief applies to applications filed before or after March 11, 2005, because the REAL ID provisions that came into effect on that date did not change the prior allocation of the burden.

This argument is relevant in the Ninth Circuit, or in other circuits where counsel assert that the government bears the burden of document production in cases where a conviction under a divisible statute is a potential bar to eligibility for relief, such as cancellation.

In Sandoval-Lua v. Gonzales, 499 F.3d 1121 (9th Cir. 2007) the Ninth Circuit considered 8 CFR § 1240.8(d) (1997),1 which sets out the burden of proof in applications for relief. The regulation provides:

[T]he respondent shall have the burden of establishing that he or she is eligible for any requested benefit or privilege and that it should be granted in the exercise of discretion. If the evidence indicates that one or more of the grounds for mandatory denial of the application for relief may apply, the alien shall have the burden of proving by a preponderance of the evidence that such grounds do not apply.

The Ninth Circuit held that where the possible bar to relief is a conviction under a divisible statute, an inconclusive conviction record that is produced by the government is sufficient to meet the applicant's burden, so that he is not barred from relief.2 The record must show either that the conviction "was or was not" in the adverse category (in that case, an aggravated felony). An inconclusive record, without more, establishes that the conviction was not necessarily found to be in that category. The court held therefore that "the inconclusive record of conviction in this case" is sufficient to show that the petitioner "carries his burden to show by a preponderance of the evidence that his § 11379(a) conviction was not 'necessarily' an aggravated felony," pursuant to 8 CFR § 1240.8(d). Id. at 1132.

This decision reaffirmed other Ninth Circuit precedent that gave the government the burden of producing documents to show that a conviction under a divisible statute is a bar to relief.3

In Almanza-Arenas the BIA did not assert that Sandoval-Lua was wrongly decided, or that the Ninth Circuit owed the BIA deference under principles set out in Chevron and Brand X. Rather, it distinguished Sandoval-Lua on two bases. It held that under recently enacted REAL ID provisions, in any application filed after May 11, 2005 the applicant has the burden of document production to establish that a conviction under a divisible statute is not a bar to relief. (Mr. Sandoval-Lua had filed before this date.) In addition, the BIA found that REAL ID provisions require an applicant to produce criminal documents as corroborating evidence when an immigration judge requests it. There is a strong argument that the BIA is wrong on both counts.

1. The REAL ID standard for an applicant's burden of proof, which took effect on May 11, 2005, is effectively the same as the burden of proof standard already set out in the regulation that the Ninth Circuit construed in Sandoval-Lua. Therefore the Sandoval-Lua construction applies to applications filed under both REAL ID and the regulation.

The REAL ID provision at issue in Almanza-Arenas, INA 240(c)(4)(A), 8 USC § 1229a(c)(4)(A), provides:

In general. An alien applying for relief or protection from removal has the burden of proof to establish that the alien (i) satisfies the applicable eligibility requirements; and (ii) with respect to any form of relief that is granted in the exercise of discretion, that the alien merits a favorable exercise of discretion.

This language imposes the same standard as the regulation cited above, in that the applicant has the burden of proof to establish that he or she satisfies the applicable eligibility requirements and merits favorable exercise of discretion.4

In fact, the BIA in Almanza-Arenas did not identify any specific difference between the burden of proof requirement under § 240(c)(4)(A) and under the regulation construed in Sandoval-Lua, or why such a difference would permit a different result than under Sandoval-Lua. It only stated in a conclusory manner that Sandoval-Lua was not binding because in that case the application "was not governed by the burden of proof requirements of the REAL ID Act." Almanza-Arenas, supra at 775. Instead, the Board's main focus was on the requirement under § 240(c)(4)(B) that an applicant respond to an immigration judge's request for evidence to corroborate witness testimony.

2. The REAL ID requirement to produce corroborating evidence to boost the credibility of a testifying witness does not apply to a request for conclusive documents under the modified categorical analysis.

The Board's holding relied heavily on another section added by REAL ID, relating to requests by an immigration judge for corroborative evidence. The Board claimed that by ignoring "a specific request, pursuant to the corroboration requirements in section 240(c)(4)(B) of the Act, for the respondent to produce additional documents from the record of conviction," the respondent failed to meet his burden of proof under REAL ID. Almanza-Arenas, 24 I&N at 774. However, § 240(c)(4)(B) relates exclusively to corroborating the credibility and persuasiveness of witness testimony, and has nothing to do with production of documents from the record of conviction under the "modified categorical approach." (This is the terminology used in the Ninth Circuit; in other circuits it may be referred to as the "second step of the categorical approach"). Section 240(c)(4)(B) provides:

(B) Sustaining burden. The applicant must comply with the applicable requirements to submit information or documentation in support of the applicant's application for relief or protection as provided by law or by regulation or in the instructions for the application form. In evaluating the testimony of the applicant or other witness in support of the application, the immigration judge will determine whether or not the testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant has satisfied the applicant's burden of proof. In determining whether the applicant has met such burden, the immigration judge shall weigh the credible testimony along with other evidence of record. Where the immigration judge determines that the applicant should provide evidence which corroborates otherwise credible testimony, such evidence must be provided unless the applicant demonstrates that the applicant does not have the evidence and cannot reasonably obtain the evidence. [emphasis supplied]

This language does not change the standard set out in Sandoval-Lua. The first sentence requires the applicant to comply with requirements "as provided by law or by regulation." This means that the applicant should comply with the requirements in 8 CFR1240.8(d), as such language is interpreted by the court in Sandoval-Lua, and the same standard under § 240(c)(4)(A) discussed above, which will have the same interpretation.

The last two sentences in (B) require the applicant, upon a judge's request, to produce corroborative evidence to support the credibility or persuasiveness of witness testimony. This section is irrelevant to evidentiary requirements under the modified categorical approach. The modified categorical approach involves only documentary evidence, in the form of contemporaneous criminal court documents that conclusively establish the elements of legal admissions, judicial findings, or jury verdicts from a prior prosecution. It specifically excludes testimony of witnesses, so witness credibility is not an issue. Because this section of § 240(c)(4)(B) is directed only at bolstering witness testimony, it does not govern requests from an IJ that the respondent produce documents to prove the nature of a conviction under the modified categorical approach. In fact, under Sandoval-Lua such a request from a judge should be considered improper, as it is directing the respondent to help the government meet its burden of proof.

B. It appears that the panel held that any conviction of a crime involving moral turpitude is a bar to non-LPR cancellation, or perhaps any conviction with a potential sentence of a year, and at least where the applicant entered without inspection. None of these is a correct interpretation of the meaning of "convicted of an offense under" the crimes grounds of deportability and inadmissibility, pursuant to INA § 240A(b)(1)(C). This holding directly conflicts with on-point precedent that the panel failed to acknowledge and did not have authority to overturn.

1. Holding and Overview

In the last paragraph of Almanza-Arenas, the panel held that the respondent's conviction of a crime involving moral turpitude ("CMT") is a bar to cancellation for non-lawful permanent residents ("non-LPR cancellation") under INA § 240A(b)(1)(C), because the conviction is "described under" the CMT deportation ground. This section will discuss arguments against that holding.

Section 240A(b)(1)(C) [8 USC § 1229b(b)(1)(C)] provides in pertinent part:

The Attorney General may cancel removal of, and adjust to the status of an alien lawfully admitted for permanent residence, an alien who is inadmissible or deportable from the United States if the alien-… (C) has not been convicted of an offense under section 212(a)(2), 237(a)(2), or 237(a)(3)…5

Mr. Almanza-Arenas entered the U.S. without inspection, i.e. he was not "admitted." He was convicted of a misdemeanor under Calif. Health & Safety Code § 10851. The immigration judge held that this statute is divisible for moral turpitude purposes because it prohibits both auto theft (a CMT) and joyriding (not a CMT).6 For purposes of this discussion, we will accept the BIA's conclusion that the respondent's particular conviction was shown to be of a moral turpitude offense. But see critique of this holding in Part A, supra.

Mr. Almanza-Arenas asserted that he was not "convicted of an offense under" the CMT grounds of inadmissibility or deportability. It appears that Mr. Almanza-Arenas was not inadmissible under the moral turpitude ground, because his conviction came within the "petty offense exception."7 The exception applies to a conviction that has a potential sentence of no more than a year and a sentence imposed of no more than six months, if the offense is the first CMT the person has committed.

This advisory will not further discuss the CMT inadmissibility ground, but it is important to note that for this purpose a CMT conviction must come within the petty offense or the youthful offender exceptions8 to that ground. If it does not, the government will assert that the conviction is a bar to non-LPR cancellation because it is of "an offense under" the CMT ground of inadmissibility at INA § 212(a)(2), regardless of whether it is "an offense under" the CMT deportation ground.

The contested issue in Mr. Almanza-Arenas' case was whether he was "convicted of an offense under" the CMT deportation ground. He asserted that because he entered without inspection ("EWI"), his conviction was not "under" the moral turpitude or any other deportation ground, because the deportation grounds as a whole apply only to noncitizens who have been admitted to the United States.9

The BIA found that this argument was foreclosed by the Ninth Circuit's decision in Gonzalez-Gonzalez v. Mukasey, 390 F.3d 649 (9th Cir. 2004). There the court found that the fact that an applicant for non-LPR cancellation has not been admitted, and thus cannot be found "deportable," does not mean that he or she cannot be "convicted of an offense under" a deportation ground. The court held that the plain language of the statute did not support a construction by which "aliens who entered this country illegally would have greater rights to apply to the Attorney General for cancellation of removal on the basis of hardship than those who entered lawfully." Id. at 652.10 The court held that the phrase "convicted of an offense under" must be read as "convicted of an offense described under" the referenced grounds of deportation and inadmissibility. Ibid. (emphasis in original). Because Mr. Gonzalez' offense of conviction contained all the elements of a "crime of domestic violence" as set out in the domestic violence deportation ground at INA § 237(a)(2)(E)(i), the court found that the conviction was "described under" that deportation ground, and that Mr. Gonzalez was statutorily barred from applying for non-LPR cancellation.

The Board found that under Gonzalez-Gonzalez, Mr. Almanza-Arenas's conviction may be "described under" the deportation grounds in general, despite the fact that he had not been admitted.

The Board next turned specifically to the moral turpitude deportation ground. A noncitizen is deportable under INA § 237(a)(2)(A)(i) if he or she is "convicted of a crime involving moral turpitude committed within five years … after the date of admission," as long as the offense carries a maximum potential sentence of one year or longer.11 Without discussing these statutory requirements, the panel simply stated, "Because the respondent failed to establish that he was not convicted of a crime involving moral turpitude, he falls within the provisions of section 237(a)(2) of the Act." Matter of Almanza-Arenas, 24 I&N Dec. at 776.

Although the lack of any discussion makes it impossible to identify the standard employed by the panel, it appears that in Almanza-Arenas the panel may have disregarded all of the descriptive information in the deportation ground except for the terms "convicted" and "crime involving moral turpitude." This conflicts with the holding in prior BIA and Ninth Circuit precedent opinions, which require that (to the extent possible for a person who entered without inspection), the full text of the applicable grounds of inadmissibility or deportability must be given effect under § 240A(b)(1)(C).

The rest of this advisory outlines possible arguments against this holding in Almanza-Arenas. These include:

  • The panel failed to follow a central tenet of BIA and Ninth Circuit cases addressing the issue, which is that to the extent possible in an EWI case, the full language of the deportation or inadmissibility ground must be applied under INA§ 240A(b)(1)(C). Instead, in direct contradiction of this principle the panel appeared to subtract all limiting language from the CMT deportation ground.
  • The panel came to the opposite conclusion as other BIA precedent, including cases published after Gonzalez-Gonzalez, which found that a CMT that comes within the petty offense exception is not a bar to LPR cancellation. The panel did not distinguish, or even acknowledge the existence of, this on-point conflicting precedent. The three-judge panel did not have the authority to overturn the prior precedent, especially sub silento. Therefore the prior opinions retain legal effect and cases should be resolved under them rather than Almanza-Arenas.
  • The panel abused its discretion and acted arbitrarily because it entirely failed to explain the basis for its holding that the applicant's conviction was described under the CMT deportation ground. It did not state what language it decided to use or delete from the CMT deportation ground, or what characteristics of the conviction caused it to come within that language.
  • For the above reasons, federal courts do not owe Chevron deference to Matter of Almanza-Arenas.
  • The holding in Almanza-Arenas is limited to its facts and to the arguments upon which it explicitly ruled. For example, the opinion does not govern cases in which a single CMT conviction comes within an exception to the CMT inadmissibility ground and (a) the conviction has a potential sentence of less than one year; (b) the respondent was admitted to the United States; or (c) the respondent entered without inspection and the conviction was committed more than five years after entry

2. Arguments

a. The panel failed to follow a central tenet of BIA and Ninth Circuit cases addressing the issue, which is that to the extent possible in an EWI case, the full language of the deportation or inadmissibility ground must be applied under INA§ 240A(b)(1)(C). Instead, in direct contradiction of this principle the panel appeared to subtract all limiting language from the CMT deportation ground.

The Almanza-Arenas opinion appeared to eliminate all limiting language in the CMT deportation ground, at least as applied to persons who entered without inspection. This contradicts the well-established rule that to the extent possible, the full language of the applicable ground of deportation or inadmissibility must be applied under INA § 240A(b)(2)(C).

Established Rule. The BIA and Ninth Circuit have held repeatedly that based on the plain language of § 240A(b)(1)(C), for a conviction to serve as a bar to cancellation it must come within the full description set out in the applicable ground of deportation or inadmissibility. The exception is that the conviction of an applicant who entered without inspection can be considered "described under" the deportation grounds, despite the fact that the person was not admitted. Apart from that, the following cases hold that where a conviction does not match "the entirety" of the text in the applicable ground, it does not serve as a bar to non-LPR cancellation.

  • Cases frequently cite Matter of Garcia-Hernandez, 23 I&N Dec. 590 (BIA 2003) for this proposition. There the BIA construed the term "convicted of an offense under" the CMT inadmissibility ground, pursuant to § 240A(b)(1)(C). The BIA stated that the entire text of the inadmissibility ground must be applied to the conviction, including the exception for a petty offense.

We further find that this conviction, standing alone, does not render the respondent ineligible for cancellation of removal under section 240A(b)(1)(C) of the Act, which requires an applicant to show that he "has not been convicted of an offense under section 212(a)(2)." We view the plain language of this provision as incorporating the entirety of section 212(a)(2), including the exception for petty offenses set forth therein. Accordingly, we find that the "petty offense" exception also applies when determining eligibility for cancellation of removal…. Put in other terms, the "description" of the category of offenses encompassing crimes involving moral turpitude also includes the exception."

Id. at 593 (emphasis supplied).

  • In Matter of Gonzalez-Silva, 24 I&N Dec. 218, 219-20 (BIA 2007) the Board interpreted § 240A(b)(1)(C) in light of the Ninth Circuit's decision in Gonzalez-Gonzalez, supra. It found that a conviction of a "crime of domestic violence" is not a conviction of an offense "described under" the deportation ground at INA § 237(a)(2)(E)(i) if the conviction occurred before September 30, 1996, the effective date of the deportation ground. Again, the Board emphasized that this is because all of the descriptive language in the deportation ground, including the effective date, must be considered. The Board cited Matter of Garcia-Hernandez, supra in support of this construction. Id. at 219.
  • In Mota v. Mukasey, 543 F.3d 1165 (9th Cir. 2008) the Ninth Circuit found that the applicant could apply for non-LPR cancellation, because the court stated that it agreed with the BIA's holding in Matter of Gonzales-Silva that a conviction prior to the effective date of § 237(a)(2)(E)(i) is not "described under" that deportation ground.12 The Ninth Circuit held that in Ms. Mota's case the BIA had erred as a matter of law when it rejected the applicant's claim based on Gonzalez-Gonzalez. Id. at 1168.
  • In Matter of Gonzalez-Zoquiapan, 24 I&N 549 (BIA 2008), published less than a year before Almanza-Arenas, the Board considered whether a conviction was a bar to cancellation because it was described under the prostitution ground of inadmissibility at INA § 212(a)(2)(D)(ii). The opinion quoted the prostitution inadmissibility ground in its entirety, provided a detailed discussion of the legislative history and elements of various offenses described in the ground, and ultimately found that the respondent's conviction for soliciting a prostitute for himself did not match. Id. at 550-554. Further, the BIA found that if this offense were to constitute a moral turpitude offense, it still would not bar non-LPR cancellation because the conviction would come within the petty offense exception to the inadmissibility ground, and under Matter of Garcia-Hernandez this is not a bar to cancellation under § 240A(b)(1)(C). See also Cisneros-Perez v. Gonzales, 451 F.3d 1053 (9th Cir. 2006) (applying modified categorical analysis to require government to prove entire statutory description of "crime of domestic violence").

BIA's Approach in Matter of Almanza-Arenas. The panel in Almanza-Arenas failed to acknowledge the existence of any of the above opinions. Its holding conflicts with the central tenet of the opinions, by failing to apply the descriptive language in the CMT deportation ground.

Under INA § 237(a)(2)(A)(i), a single conviction of a crime involving moral turpitude is a basis for deportation only if

I) the offense was committed "within five years … after the date of admission" and
(II) the conviction is one for which "a sentence of one year or longer may be imposed."

Potential sentence of one year or longer. Although the Almanza-Arenas panel did not discuss this, it appears that it failed to give effect to the requirement that the conviction carry a potential sentence of at one year or longer. The panel did not cite or discuss this requirement, and did not identify the maximum potential sentence for the respondent's misdemeanor conviction in its description of the case. (As a matter of California law, it appears that the maximum possible sentence of his misdemeanor conviction reduced from a felony under Calif. Veh. Code § 10851 and Calif. P.C. § 17(b) is a year rather than the standard six months - but the panel did not mention the applicable law or note the conclusion.)

Assuming that the panel deleted this requirement, it clearly conflicts with the well-established rule that the full description of deportation or inadmissibility grounds must be applied under INA § 240A(b)(1)(C).13

Committed within five years. It also appears that the panel did not give effect to the requirement that the CMT was committed "within five years … after the date of admission." The opinion does not cite or discuss this language from the deportation ground, or supply relevant information about the conviction such as the date the offense was committed. Because the statutory language combines "admission" with a substantive five-year requirement, it presents a real question in how it applies to a respondent who entered without inspection -- but it is not a question that the BIA is permitted to simply ignore. Instead, the Board must reach some decision that includes consideration of its two mandates: to the extent possible the entire text of the deportation ground should be treated as part of the description, and the deportation grounds in general should apply to a conviction of an applicant who was not admitted.

Because the panel provided no discussion, it is not clear how it would treat a noncitizen who had been admitted. Would the full language of § 237(a)(2) apply to a cancellation applicant who overstayed a tourist visa, so that the conviction would not bar cancellation unless it had a potential sentence of at least a year and was committed within five years of admission? In that scenario, two persons who entered the U.S. - one on a tourist visa and one who entered without inspection - would have opposite case outcomes if each were convicted of a one-year misdemeanor committed six years after their arrival in the U.S. The person who overstayed could apply for cancellation, while the person who entered without inspection could not.

Proposed solution for EWI applicants. Eliminating the five-year clause entirely in the case of applicants who entered without inspection, but applying it in the case of applicants who were admitted, arguably is not a permissible outcome under the plain language of the statute. In Gonzalez-Gonzalez v. Ashcroft, supra, the petitioner argued that a conviction of a noncitizen who, like him, entered without inspection never can be "under" a deportation ground. The court rejected this on the grounds that "[u]nder Gonzalez's construction, aliens who entered this country illegally would have greater rights to apply to the Attorney General for cancellation of removal on the basis of hardship than those who entered lawfully. The plain words of the statute do not support this conclusion in the present context." 390 F.3d at 652. Neither do the plain words of the statute appear to support the conclusion that aliens who enter illegally should have fewer rights to apply for cancellation than those who entered with inspection and overstayed.

Congress intended for there to be a crucial distinction in how noncitizens are treated under the CMT deportation ground, based upon whether they do or do not commit a CMT for a five year period in the United States. There is no indication that Congress intended for this distinction to disappear when it provided that a conviction "under" the deportation ground will bar non-LPR cancellation. Rather than delete the entire statutory phrase "committed within five years …. after date of admission," arguably the correct course is to construe "admission" as "entry" in the case of an EWI applicant. This will give meaning to the clear Congressional intent - which was that persons who commit a CMT soon after arriving in the U.S. are deportable, compared to persons who do not commit such an offense for five years or more - without creating an absurd solution that arbitrarily benefits or disadvantages EWI's.

In other cases where "admission" and "entry" are at issue, the Board and federal courts have construed "admission" to avoid an absurd result. See, e.g., Matter of Rosas, 22 I&N Dec. 616 (BIA 1999) (in the case of a noncitizen who entered without inspection, "adjustment to permanent residency" will be construed as an "admission" so that the deportation grounds will apply); Ocampo-Duran v. Ashcroft, 254 F.3d 1133 (9th Cir. 2001). See also Shivaraman v. Ashcroft, 360 F.3d 1142 (9th Cir. 2004); Abdelqadar v. Gonzales, 413 F.3d 668 (7th Cir. 2005); Zhang v. Mukasey, 509 F.3d 315 (6th Cir. 2007). Matter of Shanu, 23 I&N Dec. 754 (BIA 2005), regarding when adjustment of status or other event is taken as an "admission" to start the five years referenced in the CMT deportation ground. The Ninth Circuit has held that being granted other status in the U.S. can be held the equivalent of "admission" for purposes of applying for cancellation for permanent residents under § 240A(a).14 The term "entry" is contained in the definition of "admission" at INA § 101(a)(13)(A).15

Or, counsel can argue that while in general the deportation grounds apply to an EWI, the deportation ground based on a single CMT conviction cannot apply to an EWI, because eliminating the limit that the conviction must occur five years after admission would frustrate the intent of Congress and wrongly grant an EWI fewer rights than a person who was admitted. This does not conflict with Gonzalez-Gonzalez, which held only that the deportation grounds in general may describe a conviction despite EWI status.

The BIA or the courts may interpret the statute in other ways than this. However, the BIA's action in failing even to consider the descriptive language in § 237(a)(2)(A)(i)(I) constitutes misreading the plain language of the statute and abusing its discretion by failing to address a key issue.

b. This three-judge panel in Almanza-Arenas did not have authority to overrule other BIA precedent decisions, including cases published after Gonzalez-Gonzalez, that had addressed the same question and come to the opposite conclusion, holding that a CMT that comes within the petty offense exception is not a bar to non-LPR cancellation. The Almanza-Arenas panel did not distinguish, or even acknowledge the existence of, this on-point conflicting precedent. Therefore the prior opinions retain legal effect and cases must be resolved under them rather than Almanza-Arenas.

Published in 2003, Matter of Garcia-Hernandez, supra, considered the same relevant fact situation as did Matter of Almanza-Arenas. In both cases the cancellation applicant had entered without inspection, and had been convicted of a moral turpitude offense with a potential sentence of a year (we will assume that this is the case in Almanza-Arenas), which also came within the petty offense exception to the moral turpitude inadmissibility ground. In Garcia-Hernandez the Board found that the applicant was eligible for non-LPR cancellation.

While Garcia-Hernandez was published before Gonzalez-Gonzalez, it was cited in the first BIA case to interpret Gonzalez-Gonzalez, for the proposition that the entire text of a ground of deportability or inadmissibility should apply under § 240A(b)(1)(C). Matter of Gonzalez-Silva, 24 I&N Dec. 218, 219 (BIA 2007) (holding that a "crime of domestic violence" that occurred before the effective date of INA § 237(a)(2)(E)(i) is not "described under" that ground.)

In 2008 the BIA relied on Matter of Garcia to hold that a CMT conviction did not bar eligibility for cancellation, again because it came within the petty offense exception to the inadmissibility ground. There the CMT conviction had a maximum possible sentence of six months. Matter of Gonzalez-Zoquiapan, 24 I&N 549, 554 (BIA 2008).

In April 2009, Matter of Almanza-Arenas held that the petty offense exception was "irrelevant for purposes of determining whether he is eligible for cancellation of removal under section 240A(b)(1)(C)."16 In contrast, in Garcia-Hernandez and Gonzalez-Zoquiapan the Board had found the petty offense exception to be determinative.

The Almanza-Arenas panel did not discuss or acknowledge any of the above precedent opinions. It did not distinguish their holdings based on the individual facts, or hold that Gonzalez-Gonzalez implicitly overruled one or the other.17 The three-judge panel did not have legal authority to overturn the panel decisions in Garcia-Hernandez and Gonzalez-Zoquiapan. A precedent decision may be overturned only by the BIA en banc18 or if the case is certified to the Attorney General.19

An agency may not reverse or decline to follow its own precedent without acknowledgement or adequate explanation. As the U.S. Supreme Court recently stated, "To be sure, the requirement that an agency provide reasoned explanation for its action would ordinarily demand that it display awareness that it is changing position. An agency may not, for example, depart from a prior policy sub silento or simply disregard rules that are still on the books." FCC v. Fox Television Stations, 128 S.Ct. 1800, 1811 (2009). Courts have regularly criticized the BIA as abusing its discretion and acting arbitrarily when it departs from established precedent without explanation. See, e.g., discussion and citations in Galvez-Vergara v. Gonzales, 484 F.3d 798, 802-803 (5th Cir. 2007).

Under federal regulation the prior BIA precedent decisions still have legal force and should govern cases in removal proceedings. See Matter of E-L-H-, 23 I&N Dec. 814 (BIA 2005) (en banc), interpreting 8 CFR 1003.1(a), (g) ("[W]e find that under the plain language of the regulatory provision addressing the controlling effect of Board precedent decisions, and the recently promulgated case management regulations requiring prompt and timely adjudication of Board decisions, a Board precedent decision applies to all proceedings involving the same issue unless and until it is modified or overruled by the Attorney General, the Board, Congress, or a Federal court.").

c. The panel acted improperly because it provided no discussion or explanation of its holding that the respondent was statutorily barred from applying for cancellation, so that it is not possible to ascertain the legal standard it employed or how the standard applied to the respondent's case.

Federal regulation provides that "the Board, through precedent decisions, shall provide clear and uniform guidance to the Service, the immigration judges, and the general public on the proper interpretation and administration of the Act and its implementing regulations." 8 CFR 1003.1(d). The BIA acted arbitrarily and abused its discretion by publishing an opinion that failed to provide the minimum information necessary to understand what legal standard it set out and to whom it applies.

The Almanza-Arenas panel adequately discussed the basis for its finding that the deportation grounds in general apply to the respondent's conviction, under Gonzalez-Gonzalez. However, that finding was not sufficient to resolve the case. To hold that the respondent was statutorily barred from cancellation, the Board had to find that the respondent's conviction was "described" under the CMT deportation ground in particular. The Board provided no explanation whatsoever to support this finding. Specifically, it failed to state which descriptive language in the CMT deportation ground it employed, amended or discarded under § 240A(b)(1)(C), its rationale for this choice, and how the conviction at issue came within the chosen language.

As discussed above, the CMT deportation ground at § 237(a)(2) provides that a single CMT conviction will cause deportability only if it carries a potential sentence of at least a year, and if the offense was committed within five years after admission. There do not appear to be published decisions as to whether or when the latter requirement can "describe" an EWI applicant's conviction under § 240A(b)(1)(C). It appears that the panel in Almanza-Arenas deleted the maximum potential sentence requirement, the "committed the offense within five years" requirement, or both. It is not possible to tell, because the panel does not cite or discuss either requirement, and did not provide information about the conviction that would show it had considered the requirements (i.e., it did not provide information on the maximum possible sentence for the conviction, or the date that the offense was committed). The panel stated only, "Because the respondent failed to establish that he was not convicted of a crime involving moral turpitude, he falls within the provisions of section 237(a)(2) of the Act."

Now the government is using this single conclusory sentence to assert that any conviction of a CMT is a statutory bar to LPR cancellation. Applicants, and especially detained applicants, are suffering significantly because the government is advancing this unreasonable statement, based on the lack of any specific discussion in Almanza-Arenas.

The BIA's failure to adequately explain its holding constitutes an abuse of discretion that requires reversal. See, e.g., Anderson v. McElroy, 953 F.2d 803, 806 (2d Cir. 1992) ("However, the BIA's cryptic order denying the stay, although ostensibly based on the full record, is devoid of any reasoning and thus also is an abuse of discretion. See Wong Wing Hang v. INS, 360 F.2d 715, 719 (2d Cir. 1966). Where the BIA's discretion is 'exercised irrationally or in bad faith' it is an abuse of discretion. Bertrand v. Sava, 684 F.2d 204, 213 (2d Cir. 1982). When faced with cursory, summary or conclusory statements from the BIA, we cannot presume anything other than such an abuse of discretion, since 'the BIA's denial of relief can be affirmed only on the basis articulated in the decision . . . and we cannot assume that the BIA considered factors that it failed to mention in its decision.' Mattis v. INS, 774 F.2d 965, 967 (9th Cir. 1985) (citation omitted)").

An administrative agency's failure to articulate a basis for a decision creates the kind of chaos, inefficiency and human suffering that we are seeing based on this opinion. "The administrative process will best be vindicated by clarity in its exercise…..[I]t will avoid needless litigation and make for effective and expeditious enforcement of the [National Labor Relations Board's] order to require the Board to disclose the basis of its order." Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 197 (U.S. 1941).

This rule is especially important where the decision conflicts with a precedent decision, where there is an even greater need for courts to understand the reasoning underlying a decision. The precedent decision does not lose effect just because a later decision, without explanation, departs from it. As the First Circuit stated regarding the BIA,

"Moreover, there is no way we can determine from the AWO whether the Board reviewed the case and found a legitimate way of distinguishing the Touarsi case in denying Haoud's asylum claim…. Notwithstanding the fact that Haoud brought Touarsi to its attention, the Board failed to render a decision consistent with or fully explained as reasonably departing from its own precedent in Touarsi. As the regulation clearly sets out, "Except as they may be modified or overruled by the Board or the Attorney General, decisions of the Board shall be binding on all officers and employees of the Service or Immigration Judges in the administration of the Act." 8 C.F.R. § 1003.1(g).

Haoud v. Ashcroft, 350 F.3d 201, 207 (1st Cir. 2003).

d. This holding is not due deference from federal courts.

An agency decision that departs from precedent without adequate explanation does not merit deference from a reviewing court. See cases cited in Part b, supra, and see generally discussion and citations in Marmolejo-Campos v. Holder, 553 F.3d 903, 920 (9th Cir. 2009)(en banc)(J. Berzon dissenting opinion); Shardar v. Att'y Gen. of the US, 503 F.3d 308, 314-16 (3rd Cir. 2007); Zhao v. US Dept. of Justice, 265 F.3d 83, 96-97 (2nd Cir. 2001) (failure to explain a decision adequately provides ground for reversal).

Even absent the factor of conflicting precedent, a BIA decision that fails to adequately explain the basis for the decision is not due deference. See cases cited in Part c, supra.

e. The ruling in Almanza-Arenas was limited to its facts and to the arguments upon which it explicitly ruled. For example, the opinion does not govern cases in which a CMT conviction comes within an exception to the CMT inadmissibility ground and (a) the conviction has a potential sentence of less than one year; (b) the respondent was admitted to the United States; or (c) the respondent entered without inspection and the conviction was committed more than five years after entry

Where possible, along with contesting Almanza-Arenas counsel should distinguish the client's case and not permit the decision to be applied to cases outside the holding on facts or law. Some government attorneys are asserting that Almanza-Arenas stands for the rule that any CMT is a bar to cancellation, because any CMT is "described under" the CMT deportation ground. In fact, the BIA did not announce a legal standard to govern future cases in Almanza-Arenas, as it has the authority to do. In the one paragraph in which it considered the issue, rather than stating a rule such as, "Any moral turpitude conviction will come within § 237(a)(2) and bar an alien from § 240A(b)(1) cancellation," the Board stated only, "Because the respondent failed to establish that he was not convicted of a crime involving moral turpitude, he falls within the provisions of section 237(a)(2) of the Act." The Board did not discuss the situation of anyone other than Mr. Almanza-Arenas, did not overturn prior case law, and did not address all possible issues - or at least did not make its reasoning known - that might be contained in such a case.

Therefore the Board did not rule on, and the case does not govern, at least three other groups of applicants who have been convicted of a single CMT offense. Recall that besides meeting one of the below criteria, the conviction at issue also must come within the petty offense or youthful offender exception to the CMT inadmissibility ground.20

  1. An applicant, whether EWI or admitted, who was convicted of an offense that comes within the petty offense exception and has a potential sentence of less than a year. This offense does not come within the deportation ground at all, because that requires a sentence of at least a year. Counsel should cite Matter of Gonzalez-Zoquiapan, 24 I&N 549, 554 (BIA 2008).
  2. An applicant who entered with inspection, for example on a border-crossing card or temporary visa. The entire description in the CMT deportation ground, including the "five years after date of admission" language, must be applied to the conviction.
  3. An applicant who entered without inspection and makes a showing that he or she committed an offense with a potential sentence of a year more than five years after "entry," or some other appropriate construction of "five years after admission" that counsel identifies. There is no indication that Mr. Almanza-Arenas made such a showing, and the issue is not discussed in the opinion. Therefore the opinion cannot be cited as precluding this argument.

Copyright notice is retained by ILRC. Reprinted with permission, (c) 2009.


End Notes

1The regulation was published as 8 CFR 240.8 in 1997 and re-numbered as 8 CFR 1240.8 in 2003.

2See discussion at 488 F.3d 1131-1132.  The court found that this based on the nature of the categorical approach, as set out in Supreme Court decisions Taylor v. United States, 495 U.S. 575, 599-602 (1990) and Shepard v. United States, 544 U.S. 13, 19-21 (2005).  At p. 1132 the Ninth Circuit stated (emphasis in original):   

[T]he record must be enough to prove that an alien either was or was not convicted of conduct which constituted an aggravated felony for purposes of the modified categorical analysis. When the record of conviction contains a charging document that lists conduct that does constitute an aggravated felony and conduct that does not constitute an aggravated felony, the conclusion is that the jury was not necessarily required to find the elements of the generic aggravated felony in order to convict on that document. Without more, it cannot be said as a matter of law that such conviction was for the generic crime. [citations]. Hence the conclusion that an inconclusive record of conviction is sufficient to demonstrate an alien petitioner was not "necessarily" convicted of the generic crime.

3 See, e.g., Cisneros-Perez v. Gonzales, 451 F.3d 1053, 1058 (9th Cir. 2006) (where the government failed to produce conclusive documents under the modified categorical analysis to show the “domestic relationship,” and therefore failed to show that the respondent was convicted of a crime of domestic violence, the respondent was not barred from applying for non-LPR cancellation under the domestic violence deportation ground);  Kepilino v. Gonzales, 454 F.3d 1057 (9th Cir. 2006) (government had burden to prove that applicant for admission was inadmissible under the prostitution ground, based on a conviction under a divisible statute), and discussion in Defending Immigrants in the Ninth Circuit, § 11.0 (2009, www.ilrc.org).

4The REAL ID text does not include a sentence from 8 CFR 1240.8(d), quoted above, that provides, “If the evidence indicates that one or more of the grounds for mandatory denial of the application for relief may apply, the alien shall have the burden of proving by a preponderance of the evidence that such grounds do not apply.”  However, the fact that REAL ID did not include this sentence does not change the applicability of Sandoval-Lua.   The preponderance of the evidence standard set out in that sentence in 8 CFR 1240.8(d) also applies under the REAL ID language at § 240(c)(4)(A), because it is well-established in immigration proceedings that the party charged with the burden of proof always must establish the facts by a preponderance of the evidence unless another standard is specifically indicated, e.g. “clear and convincing evidence.”  See, e.g., discussion in Matter of Acosta, 19 I&N Dec. 211, 216 (B.I.A. 1985).  Also, 8 CFR 1240.8(d) continues to govern applications filed today.  The regulation has not been amended or withdrawn since REAL ID, and does not appear to be ultra vires to the statute.

5 See 8 USC § 1229b(b)(1)(C), barring relief based on conviction “of an offense under 8 USC §§ 1182(a)(2), 1227(a)(2), or 1227(a)(3).   Sections 1182(a)(2) and 1227(a)(2) include most of the crimes grounds of inadmissibility and deportability, respectively.  Section 1229(b)(1)(C)  includes a waiver for certain convictions of a crime of domestic violence, where the defendant was primarily a victim of domestic violence.  See paragraph (b)(5).

6This distinction has a long history in case law.  In Almanza-Arenas, supra at n. 3. the BIA stated that it saw no reason to disturb the IJ’s finding that the statute was divisible in this way.  This is apart from the issue of accessory after the fact as an element of § 10851.    

7INA § 212(a)(2)(A)(ii)(II), 8 USC § 1182(a)(2)(A)(ii)(II).  While the opinion did not discuss the maximum possible sentence or sentence imposed for the respondent’s conviction, the parties appear to agree that he came within the petty offense exception. 

8INA § 212(a)(2)(A)(ii)(I) 8 USC § 1182(a)(2)(A)(ii)(I) provides an exception for a CMT committed while under the age of 18, if the offense was committed and the person released from any resulting imprisonment at least five years prior to the date of the current application, and  if the person has committed no other CMT offense.  This exception is used by persons who were convicted as an adult for offenses committed while under 18.  If the disposition was in juvenile delinquency proceedings, it is not a “conviction” for immigration purposes and the youthful offender exception s not needed.

9See first paragraph of INA § 237(a), 8 USC § 1227(a), providing “Any alien (including an alien crewman) in and admitted to the United States shall, upon the order of the Attorney General, be removed if the alien is within one or more of the following classes of deportable aliens…”  

10In addition, the opinion contrasted § 240A(b)(1)(C) with the equivalent bar to VAWA cancellation, which applies only if the noncitizen actually is “deportable” or “inadmissible” for a conviction; see INA § 240A(b)(2)(A)(iv).  The court stated, “When Congress desired that the cancellation of removal statute be interpreted as Gonzalez-Gonzalez suggests, it knew how to do so.”  Id. at  653, n. 3.

11INA § 237(a)(2)(A)(i), 8 USC § 1227(a)(2)(A)(i).   Notice that a conviction with a potential sentence of exactly a year can be a basis for deportability, but not for inadmissibility if it comes within the petty offense exception.

12543 F.3d at 1168.  In Mota the conviction was for an offense held to be a “crime of child abuse,” which is contained in the same deportation section, INA § 237(a)(2)(E)(ii), 8 USC § 1227(a)(2)(E)(ii), and has the same effective date, as the “crime of domestic violence” discussed in Gonzales-Silva.

13Requirements pertaining to actual or potential sentence are a common part of inadmissibility and deportability grounds, and the Board has applied sentence descriptions before under § 240A(b)(1)(C).  In Matter of Gonzalez-Zoquiapan  and Matter of Garcia-Hernandez, the Board held that the requirement in the petty offense exception that an offense have a potential conviction of  one year or less was within the “description” of the inadmissibility ground.  Subtracting the sentence requirement would entirely gut the ground of inadmissibility based on conviction of two or more offenses of any type with an aggregate sentence of at least five years imposed, under INA § 212(a)(2)(B).  See Ramos-Godinez v. Mukasey, 295 Fed. Appx. 733 (5th Cir. 2008) (multiple convictions with an aggregate sentence of at least five years imposed, as described in INA § 212(a)(2)(B), are held to bar cancellation under § 240A(b)(1)(C)). 

14Garcia-Quintero v. Gonzales, 455 F.3d 1006, 1015-18 (9th Cir. 2006), construing “admitted” to include a grant of Family Unity status for purposes of establishing seven years residence required for LPR cancellation.  See also Yepez-Razo v. Gonzales, 445 F.3d 1216, 1217 (9th Cir. 2006) (Family Unity beneficiary was “lawfully residing” in the United States from the date of her acceptance into the FUP, which rendered her eligible for a § 212(h) waiver from removal).

15INA 101(a)(13)(A), 8 USC § 1101(a)(13)(A) provides:  “The terms ‘admission’ and ‘admitted’ mean, with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.”

16Almanza-Arenas, 24 I&N Dec. at 776.

17Given that Almanza-Arenas said nothing about its own reasoning, it would have been difficult to distinguish the reasoning of the other opinions. The panel could have attempted to distinguish the facts from other prior decisions, but it did not.  It might have argued that the Ninth Circuit decision in Gonzalez-Gonzalez implicitly overruled Matter of Garcia-Hernandez, but in fact the Ninth Circuit has not yet spoken as to how it will construe the CMT deportation ground, and Garcia-Hernandez did not discuss the deportation ground at all so that it is difficult to know whether it assumed the deportation grounds in general did not apply to a noncitizen who entered without inspection, or found without discussion that the conviction was not committed “within five years of admission” and was committed before the effective date of the domestic violence ground.  It might seem easy to distinguish the 2008, post-Gonzalez-Gonzalez decision Matter of Gonzalez-Zoquiapan from Almanza-Arenas, since Mr. Gonzalez-Zoquiapan’s conviction had only a six-month maximum sentence and so should not be held to be ‘described under” the moral turpitude deportation ground, with its requirement that the conviction have a maximum possible sentence of at least a year.   However, it appears likely that Almanza-Arenas did not apply the requirement that the conviction must have a potential sentence of at least a year, so that rule would not be a basis to distinguish the cases.

18See 8 CFR 1003.1(a)(5) providing in pertinent part that the Board may “consider any case en banc, or reconsider as the Board en banc any case that has been considered or decided by a three-member panel.”

19See 8 CFR 1003.1(h).

20As discussed in Part B.1, supra, a conviction that is “described under” the CMT inadmissibility ground will bar non-LPR cancellation, even if the offense is not “described under” the CMT deportation ground.  If the offense comes within the petty offense or youthful offender exception, it is not ‘described under” the CMT ground of inadmissibility.  See INA § 212(a)(2)(A)(ii), 8 USC § 1182(a)(2)(A)(ii) and see Matter of Garcia-Hernandez, Matter of Gonzales-Zoquiapan, supra.


About The Author

Kathy Brady is a senior staff attorney at the Immigrant Legal Resource Center, a national nonprofit back-up center located in San Francisco. She has written extensively in this area, and is the primary author of Defending Immigrants in the Ninth Circuit: Impact of Convictions under California and Other State Laws (May 2009 Update available at (www.ilrc.org). She has written briefs in key Ninth Circuit decisions, and is a founding member of the Immigrant Justice Network and the Defending Immigrants Partnership. In 2007 she received the Carol King Award for advocacy from the National Immigration Project of the National Lawyers Guild.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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