On November 1, 2019, the Board of Immigration Appeals (BIA or Board) sustained the DHS appeal of a grant of Respondent’s application for an INA §209(c) waiver of inadmissibility and adjustment of status by the Immigration Judge (IJ), who also denied a concurrent request for deferral of removal under the Convention Against Torture (CAT). The BIA ordered respondent removed.
The applicant had been admitted to the U.S. as a refugee but never adjusted status to permanent resident. He was subsequently convicted in New Jersey of conspiracy to commit robbery, false imprisonment, and attempt to cause bodily injury and sentenced to 9 and a half years in prison. DHS issued a notice to appear (NTA), initially charging Respondent with removability per INA §212(a)(2)(A)(i)(I) for conviction of a crime involving moral turpitude (CIMT) but withdrew that charge and substituted one under INA §237(a)(2)(A)(iii) for conviction of an aggravated felony per §101(a)(43)(U), conspiracy to commit an aggravated felony theft offense for which the term of imprisonment is at least 1 year, under §101(a)(43)(G). Before the IJ, Respondent conceded removability (conspiracy to commit robbery is an aggraded felony) and inadmissibility (it is also a CIMT) and therefore applied for a §209(c) waiver to establish adjustment eligibility.
The opinion declared the issue presented to be whether, in the adjudication of a 209(c) waiver request by one found to be violent or dangerous – who must thus demonstrate exceptional and extremely unusual hardship – the applicant’s hardship may be considered, in addition to the hardship that qualifying relatives may suffer as a result of the respondent’s removal.
At the beginning of its analysis, the Board noted that a refugee who has been physically present to the U.S. for at least 1 year and who has not acquired permanent residence, may apply to adjust status under §209(a)(1); if not admissible, he may request a §209(c) waiver. That section, stated the BIA, waives certain criminal grounds of inadmissibility under §212(a) “for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest.” In Matter of Jean, 23 I&N Dec. 373 (A.G. 2002), the Attorney General (AG) had articulated a heightened standard under which “violent or dangerous individuals” will not be granted a 209(c) waiver “except in extraordinary circumstances, such as those involving national security or foreign policy considerations, or cases in which [one] clearly demonstrates that the denial of status adjustment would result in exceptional and extremely unusual hardship.” And, depending on the gravity of the underlying crime, found the AG, “such a showing might still be insufficient.”
As to the IJ’s finding that Respondent is a violent or dangerous individual because his robbery offense involved threating the victim with bodily injury, falsely imprisoning him, and causing him to suffer serious bodily injury, the appeal argued that Respondent is not violent or dangerous and the IJ erred in applying Jean’s heightened standard. The BIA disagreed, discerning no error: the record indicated Respondent “committed a home invasion robbery, bound the victim with duct tape, pushed him down the stairs, and caused him to suffer severe injuries, including broken bones.”
In regards to the IJ’s conclusion that Respondent and his U.S. citizen son would suffer exceptional and extremely unusual hardship if the applicant was removed, DHS asserted the IJ erred, arguing that only hardship to qualifying relatives can be considered The Board thus found that a “threshold determination” had to be made whether, in adjudicating an §209(c) waiver for a violent or dangerous individual who therefore had to show a heightened degree of hardship, the applicant’s hardship could be considered along with that of qualifying relatives in the event of removal. The decision concluded that Matter of Jean imposes no limitation in this respect and one may satisfy the requirement by establishing a heightened level of hardship to himself or to his qualifying relatives. The BIA was unpersuaded by the DHS’s argument that the waiver of criminal grounds in §212(h) and in cancellation of removal in §240A(b)(1) limits hardship to a respondent’s family members and that the hardship standard in Jean is similar, finding that §209(c) contains no statutory hardship requirement like those sections and there is “consequently no equivalence” between these provisions. The Board therefore concluded the IJ properly considered the hardship to both Respondent and his son.
However, the BIA agreed with the Department that Respondent had not established that denial of his adjustment application would result in exceptional and extremely unusual hardship, contradicting the IJ’s finding that his U.S. citizen son’s “serious medical and behavioral health issues” and his required future heart surgery, along with his girlfriend’s need for financial and childcare assistance, rose to that level. That finding was “clearly erroneous.” The decision focused on the fact that Respondent has not held a job since he was 19 (before his son’s birth), had been arrested when his son was 2 months old, had been in prison ever since, and during that time had sent his girlfriend $20. The Board also disbelieved Respondent’s claim that he had established a strong connection with his son, based on the record evidence “showing that their relationship has consisted of phone calls and hour-long visits to the prison”. In sum, the BIA was “not persuaded” that the medical, financial, and emotional hardships to Respondent’s son, in the aggregate, met the required threshold.
As to Respondent’s hardship, the opinion acknowledged that he had entered the U.S. as a refugee but that fact carried less weight in this context, where every respondent seeking a 209(c) waiver entered as a refugee. Because Respondent had not established exceptional and extremely unusual hardship if he was removed, he has not proven the “extraordinary circumstances required for a favorable exercise of discretion” per Jean.
Regarding discretion, the Board noted that the IJ had concluded that Respondent had “demonstrated substantial steps towards rehabilitation in prison”, but again was not persuaded by his testimony. Because he had been incarcerated since 2011, his rehabilitation was difficult to assess so the BIA did not afford significant weight to his claim of rehabilitation or that he would remain sober upon release from jail. The decision stressed Jean’s unequivocal statement that discretion should not be exercised favorably with respect to those who have been convicted of dangerous or violent crimes, except in the most exceptional circumstances. In fact, concluded the Board, even if Respondent has established such circumstances via the necessary showing of hardship, it would not have granted the waiver and adjustment of status in the exercise of discretion as he has not shown “any truly compelling countervailing equities that would outweigh the serious negative factors in his case.”
Lastly, as to deferral of removal under CAT, the BIA was again unpersuaded by Respondent’s claim that the Cuban government would more likely than not take an interest in him and persecute him because his family and other relatives fled to the U.S. as refugees despite his father’s claim that he cannot return because of his past actions, finding no clear error in the IJ’s factual findings in this regard. Nor had the IJ erred in finding Respondent had not proven he will be imprisoned under conditions amounting to torture or that general evidence of Cuban human rights violations indicate that he would be personally at risk of torture. He thus had not met his burden of proof to establish that he will more likely than not be tortured in Cuba. The Department’s appeal was sustained, the waiver and adjustment granted vacated, and Respondent ordered removed. Matter of C-A-S-D-, 27 I&N Dec. 692 (BIA 2019).