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BIA Holds The Categorical And Modified Categorical Approaches Provide The Proper Framework As To Whether A Conviction Is For A Crime Involving Moral Turpitude (CIMT), Finding That Unless The Controlling Federal Circuit Case law Requires Otherwise, The Realistic Probability Test – Focusing On The Minimum Conduct That Has A Realistic Probability Of Being Prosecuted Under The Statute – Should Be Applied In Determining Whether An Offense Is A Categorical CIMT. The Board Also Holds That, Under The “Minimum Reading” Approach Of The Fifth Circuit, A Conviction For Indecency With A Child Per Texas Penal Code §21.11(a)(1) Is Not A Categorical CIMT And One Engaged In Sexual Abuse Of A Minor Need Not Make A Heightened Evidentiary Showing Of Hardship Or Other Factors To Obtain A Favorable Exercise Of Discretion.

December 6, 2016 Philip Levin

On October 12, 2016, the Board of Immigration Appeals (BIA or Board), on remand from the Attorney General, developed a uniform standard to determine whether a particular criminal offense is a crime involving moral turpitude (CIMT). Respondent had been convicted of indecency with a child under Texas Penal Code §21.11(a)(1) and consequently charged by the Department of Homeland Security (DHS) with removability as an aggravated felon per INA§§101(a)(43)(A) and 237(a)(2)(A)(iii). He requested adjustment of status relief but the Immigration Judge (IJ) found him ineligible for a CIMT conviction, making him inadmissible per §212(a)(2)(A)(i)(I). On initial appeal to the BIA, the Board held that he was not inadmissible because §21.11(a)(1) penalizes non-moral  turpitudinous  conduct and the record of conviction (ROC) did not contain any information about his conduct; the case was remanded to the IJ.

About one year later, the Attorney General directed the BIA to refer the case to him, vacated the decision and instructed IJs and the Board that, when examining whether a conviction is for a CIMT , they should use the categorical approach and see if there is a “realistic probability” the criminal law would be applied to non-turpitudinous conduct;  if the categorical approach does not answer the inquiry, they should use the modified categorical approach and, if that is inconclusive, consider “any relevant evidence outside the record of conviction” to resolve the question. After addressing the “realistic probability” issue himself and holding that in cases of sexual misconduct with children there should be a “categorical finding” that the crime is a CIMT if it involves “intentional sexual conduct with a person the defendant knew or should have known was a child”, the Attorney General remanded the record to the BIA, which returned the case to the IJ to apply that new analytical framework.

The IJ found respondent had been convicted of a CIMT and thus ineligible to adjust, a decision affirmed by the Board on appeal. At the Fifth Circuit, however the Court of Appeals held that the phrase “convicted of” prevents one from examining evidence outside The record of conviction, vacated The BIA’s opinion and reminded. Subsequently, The Attorney General vacated the Board’s decision and remanded the record to the BIA “to develop a uniform standard for the proper construction and application” of rules as to, among other issues, when an offense involves moral turpitude;  when – and to what extent – the modified categorical approach can be used and the ROC considered in such an inquiry; and, whether one seeking discretionary relief after sexually abusing a minor must make a heightened evidentiary showing of hardship or other factors to warrant a favorable exercise of discretion.

In developing a uniform  standard for the proper construction and application of INA §212(a)(2)(A)(i)(I) as it applies to those “convicted of” a CIMT, the Board in the instant opinion concluded that the categorical and modified categorical approaches  apply as defined by recent U.S. Supreme Court precedent. As to the categorical approach, IJs and the Board will examine the applicable criminal statute to see if it fits within the generic definition of a CIMT, using the realistic probability test (focusing on the minimum conduct with a realistic probability of being prosecuted, rather than the facts of a specific case), unless controlling circuit law expressly dictates otherwise. Where the criminal statute includes CIMTs and other crimes that do not involve moral turpitude, the statute must be reviewed to see if it is divisible and therefore susceptible to the modified categorical approach, which involves analyzing the ROC to identify the exact provision a respondent has been convicted of. The Board, citing Matter of Chairez, 26 I&N Dec. 819 (BIA 2016) and Descamps v. United States, 133 S.Ct. 2276 (2013), discoursed on when a criminal statute may be seen as divisible but held that in the instant case, “respondent’s statute of conviction is indivisible”.

Applied to the matter before the Board, the new analysis held that a CIMT requires reprehensible conduct and a culpable mental state; reaffirmed the original holding that a crime involving sexual conduct by an adult with a child involves moral turpitude if the defendant knew or have known the victim was a minor; and, applied the minimum reading approach to its categorical inquiry. Thus, the BIA held that respondent’s conviction under 221.11(a)(1) is not a categorical CIMT because it punishes behavior that does not require the perpetrator to know the victim was a minor. Because the statute is not divisible, respondent is not inadmissible for conviction of a CIMT.

Collaterally, the Board concluded that it is not necessary to devise an additional framework regarding a heightened evidentiary showing because there already exists a “well – established framework for evaluating discretionary determinations” under which IJs examine the actual facts of a crime, considering evidence outside the ROC to “balance positive and negative factors” and under which the applicant “bears the ultimate burden of showing that he or she merits a favorable exercise of discretion.” Because the IJ has broad latitude in this regard, he or she can consider the victim’s age as well as other factors to determine “the full scope of the conduct and the harm involved”, according the factors appropriate weight in coming to a conclusion. The record was thus remanded to the IJ to adjudicate respondent’s application for relief in proceedings consistent with this opinion. Matter of Silva-Trevino, 26 I&N Dec. 826 (BIA 2016).

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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.
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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.

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.