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BIA Holds That A Failure To Appear To Serve A Sentence Aggravated Felony Offense Under INA § 101 (a)(43)(Q) Merely Requires That The Underlying Offense Be “Punishable By” Imprisonment For A Term Of 5 Years Or More, Regardless Of The Sentence Respondent Is Actually Ordered To Serve.

March 21, 2016 Philip Levin

On March 17, 2016, The Board of Immigration Appeals (BIA or Board) ruled on the appeal of a respondent convicted of possessing stolen mailbox keys, a Federal felony punishable by a maximum term of imprisonment of 10 years, although the appellant was only sentenced to 2 years. However, he absconded before being taken into custody and was later apprehended and convicted of escape and failing to surrender for service of sentence. The Immigration Judge (IJ) found this latter conviction to be an aggravated felony per INA § 101(a)(43)(Q) as an offense relating to failure to appear for service of sentence.

On appeal, respondent conceded that his conviction related to a failure to appear for service of a sentence but claimed it was not an aggravated felony per (a)(43)(Q) because the underlying offense, possession of stolen mailbox keys, was not “punishable by imprisonment for a term of 5 years or more”, i.e., that although the maximum penalty was 10 years imprisonment, the term by which his offense was “punishable” was the 2 years he was ordered to serve, noting that (a)(43)(Q) is the only aggravated felony definition judging a term of imprisonment by what amount of time sentenced is “punishable” while all others look to the sentence that “may be imposed”.

Initially, the BIA parsed the plain meaning of the term “punishable” which, it stated , refers to any punishment capable of being imposed and held that “punishable by” denotes a focus on the maximum penalty that may be imposed for the offense, rather than on the sentence actually imposed, citing to several Ninth Circuit cases (the jurisdiction where their matter arose). Similarly, the Board found respondent’s reading of the term inconsistent with the U.S. Supreme Court’s line of decisions which culminated in Moncrieffe v. Holder, 133 S. Ct. 1678 (2013) and signified that the Court found “punishable by” to refer to the maximum possible sentence that may be imposed, not the punishment actually ordered.

Finding no sufficient reason to deviate from the ordinary meaning of “punishable by”, the BIA held respondent had indeed been convicted of an aggravated felony under INA § 101(a)(43)(Q), using the maximum possible penalty for his Federal felony, and dismissed the appeal. Matter of Adeniye, 26 I&N Dec. 726 (BIA 2016).

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Filed Under: Aggravated Felony, Appeal, Blog, Failure to Appear, Felony Case, Penalty, Sentence, U.S. Supreme Court Ruling Tagged With: Mailbox Keys, Theft

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TN

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. 

B-1

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.

O-1

O-1 visas are for persons of extraordinary ability in the sciences, arts, education, business or sports. 

J-1

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. 

E-1 & E-2

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. 

  • E-1: If you are a national of a country that conducts a significant volume of trade with the U.S. (or if you intend to develop trade between the U.S. and your home country) you might be eligible for entry under an E-1 visa. 
  • E-2: The E-2 visa allows investors from treaty countries to enter the U.S. for purposes of directing and developing a business, with all the commitments and risks implicit in entrepreneurial activity. 
L-1

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:

  • L-1A Intracompany Transferee Executive or Manager
  • L-1B Intracompany Transferee Specialized Knowledge
H-1B

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. 

  • Immediate Relatives: If you are the spouse, child, or parent of a U.S. citizen, we can help you obtain a green card through an Immediate Relative petition. 
  • Family-Based Preference: If your relative is a U.S. citizen or lawful permanent resident, we can assist you with your green card application through one of the family based preference categories.
Fiances

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.

Marriage

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. 

  • I-130 Petition and Adjustment of Status: If you are married to a U.S. citizen, present in the U.S. and eligible to do so, our attorneys will assist you in preparing and filing the necessary I-130 petition and I-485 adjustment of status application in the U.S.
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  • I-751, Remove Conditions on Residence: If you have been married less than two years at the time your green card was initially approved, our office will help you in the joint petition process to become a permanent resident.