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BIA Holds Definition Of Perjury Under INA §101(a)(43)(S) Requires A Knowing Material False Statement Under Oath Where An Oath Is Authorized By Law And, Thus, A Conviction For Perjury In Violation Of California Penal Code §118(a) Qualifies As An Aggravated Felony Per §(a)(43)(S).

February 23, 2017 Philip Levin

On December 29, 2016, in a case remanded by the Ninth Circuit Court of Appeals, the Board of Immigration Appeals (BIA or Board) upheld the decision of the Immigration Judge (IJ) that a conviction for perjury under California Penal Code §118(a) is a categorical aggravated felony per INA §101(a)(43)(S) as an offense relating to perjury where the term of imprisonment is at least one year. Initially, the respondent had conceded removability and applied for various forms of relief but the IJ found him to be an aggravated felon ineligible for relief and the BIA affirmed. After the filing of a petition for review, the Ninth Circuit granted a motion to remand so the Board could consider its previous holding in Matter of Martines-Recinos, 23 I&N Dec. 175 (BIA 2001)(en banc), which found that a violation of §118(a) is a categorical aggravated felony perjury offense by comparing 18 USC §1621, the Federal perjury statute, with the elements of the California statute.

In its analysis, the BIA first noted that the Martinez-Recinos decision had not explained why the Board relied on §1621 for a generic definition of perjury. The BIA then found that “18 USC §1621 alone does not provide the generic definition of perjury for purposes of “INA §101(a)(43)(S), instead adopting a generic definition “based on how the crime of perjury was commonly defined at the time §101(a)(43)(S) was enacted”. Looking to the 1996 definitions of perjury codified in state and Federal law, the Model Penal Code, and scholarly commentary to articulate a uniform definition of perjury, the Board withdrew from Martinez-Recinos to the extent it conflicts with its’ new framework.

The decision’s survey of perjury statutes led the BIA to conclude that when “perjury” was added to (a)(43)(S) in 1996, the majority of states agreed the definition included 1) a material 2) false statement 3) made knowingly or willfully 4) while under oath, affirmation or penalty of perjury, e.g., made at an official proceeding or where an oath was required or authorized by law. This definition, held the Board, also embodies “the level of criminal liability that Congress intended when it added the offense of perjury” to the INA in 1996. Comparing the elements of §118(a) to this definition, the BIA concluded that respondent’s conviction is categorically for an offense relating to perjury under §101(a)(43)(S) as the state law “substantially emulates” the Federal crime proscribed by §1621, which is generally accepted as the acknowledged definition of perjury. In a footnote, the Board agreed with the Ninth Circuit that §118(a) is broader than that common law definition but noted that its analysis concerned the generic definition of the offense when §101(a)(43)(S) was enacted, a definition which may diverge from the common law. As such, the decision concluded that respondent’s conviction was for a categorical aggravated felony rendering him ineligible for relief and dismissed the appeal. Matter of Alvarado, 26 I&N Dec. 895 (BIA 2016).

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The TN nonimmigrant classification allows qualified Canadian and Mexican citizens to enter the U.S. and engage in professional business activities. LPPC will help you navigate through the TN application process by evaluating your eligibility, preparing supporting documentation for your application, and ultimately filing your application. 

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LPPC will guide you through the consular process to receive a B-1 visa for specific short-term business purposes ranging from contract negotiations to seminars and conferences.

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Administered by the Department of State, the J-1 visa is for students, trainees, academics, researchers, professionals or experts participating in an approved Exchange Visitor program. LPPC will assist you and your sponsor with preparing the necessary paperwork and the consular process so you can begin your program at ease. 

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E-1 visas and E-2 visas are for nationals of countries with which the United States has a treaty of friendship, commerce and navigation (FCN) or bilateral investment treaty (BIT). If you are a nonimmigrant trader or investor seeking to conduct business operations or develop a new enterprise in the U.S., we will help you file for the appropriate visa. As a recognized expert in this area, Mr. Levin will provide experienced and dependable assistance with E-1 or E-2 visa applications. 

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The L-1 visa category is for executives, managers or professionals employed by foreign affiliates of U.S companies. The L-1 visa is divided into two classifications:

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Many companies in the United States find themselves increasingly dependent on the talent, experience and energy of foreign national workers in professional, technical or specialized occupational fields. These employees typically enter the U.S. on nonimmigrant H-1B visas for “specialty occupations.” 

With extensive experience in business immigration, you can count on LPPC to guide your company or Human Resources department in preparing and filing an H-1B visa petition.

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Family preservation and reunification is a priority for our firm. Our attorneys have advised and assisted families from all over the world with entry visas, adjustment of status, and other immigration problems. 

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If you are a U.S. citizen and your fiancé/fiancée or spouse is overseas, our office will assist you to navigate the CIS requirements and regulations to have the case approved and then prepare you and your spouse for the interview at the U.S. Embassy. LPPC will also help you find the best ways to resolve any problems you encounter if a waiver is required in your case.

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Immigration through marriage is a common means of obtaining permanent residence in the U.S.  Since 1991, Philip Levin & Associates has helped hundreds of couples immigrate to the U.S. and build their lives together. 

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