BIA HOLDS THAT AN APPLICANT FOR ADJUSTMENT OF STATUS UNDER INA §209(b) MUST POSSES ASYLEE STATUS AT THE TIME OF ADJUSTMENT AND, THUS, AN APPLICANT WHOSE ASYLEE STATUS HAS BEEN TERMINATED CANNOT ADJUST TO LAWFUL PERMANENT RESIDENT STATUS UNDER THIS PROVISION.
On February 24, 2022, the Board of Immigration Appeals (BIA or Board) dismissed a respondent’s appeal of an order by the Immigration Judge (IJ) denying his motion to terminate proceedings as well as all of his applications for relief; Respondent had filed for adjustment of status (AOS) with a waiver of inadmissibility, withholding of removal, and CAT protection. The applicant had been granted asylum as his father’s derivative in 2012 but had subsequently been convicted of the federal crimes of bank fraud and aggravated identity theft, placed in removal proceedings, and charged with removability under, among other grounds, INA §237(a)(2)(A)(iii) as one convicted of an aggravated felony involving fraud or deceit in which the loss to the victim or victims exceeds $10,000, as defined by §101(a)(43)(M)(i). Respondent conceded removability. Because it claimed his aggravated felony conviction qualified as a particularly serious crime for purposes of asylum, DHS moved to terminate his asylee status before the IJ; the motion was granted.
Respondent moved to terminate proceedings per Pereira v. Sessions, 138 S.Ct. 2105 (2018) on the ground that the IJ lacked jurisdiction over his proceedings because the Notice to Appear (NTA) did not specify the time and date of his initial removal hearing. The motion was denied and Respondent applied for relief, as above; the IJ denied all applications.
The BIA initiated its analysis by examining the AOS denial, stating that in determining whether one may apply for adjustment under §209(b) after his or her asylee status has been terminated, it began by considering whether §209 “clearly and unambiguously answers this question.” The text and legislative history of 209(b) “do not reveal whether Congress clearly intended adjustment of status under this provision to be available to respondents whose asylee status has been terminated.” The Board first noted that Respondent and the dissent had contended that “granted” in this phrase should be read as a past tense verb so that one may AOS if, at any time in the past, he or she was granted asylum – regardless of whether the applicant currently holds such status. Yet, the opinion maintained, Congress could have intended to use the past participle “granted” as an adjective, describing one’s “present status”. Because the statutory language “is reasonably susceptible to different interpretations,” the BIA found that §209(b) is ambiguous in this context. However, because both the statute and applicable regulation require applicants to possess an initial “status” before they may adjust, it concluded that this “status” must be asylee status.
Further, relying on Matter of Blancas, 23 I&N Dec. 458 (BIA 2002), the Board had previously held in Matter of Castillo Angulo, 27 I&N Dec. 194 (BIA 2018) that the phrase “admitted in any status” in §240A(a)(2) requires a cancellation applicant under that provision to possess “some form of lawful status at the time of admission that would allow him or her to enter into the United Status as an immigrant or nonimmigrant.” It thus held that §209(b) uses the phrase “the status of any alien granted asylum” to describe one who possesses lawful asylee status at the time of AOS. As a result, one who lacks such a status at the time of adjustment “is ineligible for relief under this provision.”
The BIA also believed that Respondent’s and the dissent’s interpretation of §209(b) rendered the term “status” in the above-referenced phrase surplusage, reasoning that if Congress had intended any asylee to be eligible to AOS under §209(b), regardless of whether he or she is currently in asylee status, it could have just said that an applicant must be “any alien granted asylum” and omitted the term “status” from the phrase. By adding the words “status”, concluded the decision, “Congress signaled it only intended respondents possessing the legal standing of an asylee to be eligible for adjustment under” §209(b).
The Board next explained that it had previously held that IJs have the discretion to defer judgment on the termination of one’s asylee status based on an aggravated felony conviction pending consideration of his or her eligibility to AOS per 209(b) with a §209(c) waiver, citing to Matter of K-A, 23 I&N Dec. 661 (BIA 2004). Holding that one whose asylee status has been terminated could still AOS under 209(b) would render K-A- “meaningless”, found the opinion; additionally, considering that IJs have the discretion to defer ruling on a termination motion, the BIA’s approach would not “vitiate” the 209(c) waiver, which allows adjudicators to waive certain grounds of removability. The majority, therefore, held that the phrase “the status of any alien granted asylum” requires a 209(b) AOS applicant to possess asylee status at the adjustment, and thus one whose asylee status has been terminated “cannot adjust to lawful permanent resident status under this provision.” The Board also expressly disagreed with the contrary Fifth Circuit Court of Appeals precedent.
The decision next affirmed the IJ’s ruling that the Respondent is statutorily ineligible for withholding of removal and for CAT protection because of his particularly serious criminal conviction. The IJ found that the elements of his bank fraud and identity theft convictions potentially brought these offenses within the ambit of a particularly serious crime. The BIA noted that, while Respondent’s crime did not physically harm his victims, “he engaged in extensive fraud and counterfeiting, stealing a name and identity of another and using it to enrich himself with tens of thousands of dollars.” Considering the nature of Respondent’s conviction, the underlying facts, and the length of the sentence imposed (44 months imprisonment, 5 years supervised release, and over $73,000.00 restitution ordered), the opinion found that he had not demonstrated that §241(b)(3)(B)(ii)’s particularly serious crime bar did not apply.
The Board also affirmed the IJ’s denial of Reponent’s withholding application on the merits; he had not disputed the IJ’s finding that he did not raise a claim of past persecution and the record did not support such a claim. Additionally, the record supports the IJ’s determination that Respondent’s fear of future persecution is “speculative” because it is based on incidents that befell his father in the 1990s. No one ever harmed Respondent abroad or in the U.S.; even if the particularly serious crime bar did not apply, the IJ did not clearly err in concluding Respondent did not establish the requisite likelihood that he will be persecuted if sent home.
Similarly, the IJ did not clearly err by concluding Respondent had not shown it is more likely than not that his father’s political enemies will learn of his return home and seek him out. The Board held that she also properly determined that record evidence did not establish it is more likely than not that a foreign government official or an individual acting in an official capacity would acquiesce in his torture.
Lastly, the BIA denied Respondent’s motion to terminate proceedings. Although his NTA lacked the date and time information about his initial hearing, “he was later served with a compliant notice of hearing specifying this information.” Jurisdiction is thus properly vested with the court and no U.S. Supreme Court decision requires termination. Accordingly, the appeal was dismissed.
In a lengthy concurring and dissenting opinion, Temporary Appellate Immigration Judge Beth S. Liebmann explained that she dissented only from the majority’s conclusion that termination of Respondent’s asylee status bars him from applying to AOS under §209(b), concurring in “all other aspects of the majority’s decision”. Her disagreement was with the finding that §209(b) is “ambiguous regarding whether a noncitizen becomes ineligible for adjustment of status under that section after the noncitizen’s asylee status had been terminated.” The dissent found that the “controlling statutory language unambiguously establishes that an asylee who had not previously adjusted to lawful permanent resident status may pursue adjustment of status under section 209(b)…, even if the noncitizen’s asylee status had been terminated.”
Initially applying “traditional tools of statutory construction”, the dissent would have held that the INA “unambiguously provides that a noncitizen who had been granted asylum and not previously adjusted to lawful permanent resident status under section 209(b)” may file for AOS per 209(b), “even if the noncitizen’s asylee status has been terminated.” Further advocating consistency with prior case law, the dissent concluded that BIA precedent did not contravene her interpretation; per IJ Liebmann, her dissent followed from both Matter of C-J-H-, 26 I&N Dec. 284 (BIA 2014) and Matter of N-A-I-, 27 I&N Dec. 72. (BIA 2017). She also discerned nothing in her dissent conflicting with the holdings in Matter of K-A-, 23 I&N Dec. 661 (BIA 2004) and Matter of V-X-, 26 I&N Dec. 147 (BIA 2013). The dissent would therefore have remanded to the IJ to permit Respondent to apply for AOS under §209(b). Matter of T-C-A-, 28 I&N Dec. 472 (BIA 2022).
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