Cite as 26 I&N Dec. 147 (BIA 2013) Interim Decision #3785
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Matter of V-X-, Respondent
Decided June 26, 2013
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) A grant of asylum is not an “admission” to the United States under section
101(a)(13)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(13)(A)
(2006).
(2) When termination of an alien’s asylum status occurs in conjunction with removal
proceedings pursuant to 8 C.F.R. § 1208.24 (2013), the Immigration Judge should
ordinarily make a threshold determination regarding the termination of asylum status
before resolving issues of removability and eligibility for relief from removal.
(3) An adjudication of “youthful trainee” status pursuant to section 762.11 of the
Michigan Compiled Laws is a “conviction” under section 101(a)(48)(A) of the Act
because such an adjudication does not correspond to a determination of juvenile
delinquency under the Federal Juvenile Delinquency Act, 18 U.S.C. §§ 5031-5042
(2006). Matter of Devison, 22 I&N Dec. 1362 (BIA 2000), followed.
FOR RESPONDENT: Marshal E. Hyman, Esquire, Troy, Michigan
FOR THE DEPARTMENT OF HOMELAND SECURITY: Jason A. Ritter, Assistant
Chief Counsel
BEFORE: Board Panel: PAULEY, GUENDELSBERGER, and GREER, Board
Members.
PAULEY, Board Member:
In a decision dated February 16, 2012, an Immigration Judge found
the respondent inadmissible under section 212(a)(2)(A)(i)(I) of the
Immigration and Nationality Act, 8 U.S.C. § 1182(a)(2)(A)(i)(I) (2006),
as an alien convicted of a crime involving moral turpitude; section
212(a)(2)(A)(i)(II), as an alien convicted of a controlled substance
violation; and section 212(a)(2)(C), as an alien who the Attorney General
knows or has reason to believe is or has been an illicit trafficker in any
controlled substance. The Immigration Judge also found him ineligible for
asylum, withholding of removal, and protection under the Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment, adopted and opened for signature Dec. 10, 1984, G.A.
Res. 39/46. 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc. A/RES/39/708Cite as 26 I&N Dec. 147 (BIA 2013) Interim Decision #3785
148
(1984) (entered into force June 26, 1987; for the United States
Apr. 18, 1988) (“Convention Against Torture”), and ordered him removed
from the United States.
The respondent has appealed, arguing that he is neither inadmissible as
charged nor ineligible for the requested relief. The respondent’s request for
oral argument is denied. The appeal will be dismissed in part. The record
will be remanded, however, for the Immigration Judge to address the
Department of Homeland Security’s (“DHS”) request to terminate the
respondent’s asylum status. On remand, the Immigration Judge should also
reconsider the respondent’s eligibility for asylum, withholding of removal,
and adjustment of status in light of the Supreme Court’s intervening
precedent in Moncrieffe v. Holder, 133 S. Ct. 1678 (2013).
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Albania who entered the
United States in 2003. In 2004, the DHS granted him asylum as a
derivative beneficiary of his father’s asylum application under section
208(b)(3) of the Act, 8 U.S.C. § 1158(b)(3) (2000).
In 2007 the respondent entered a guilty plea in Michigan to charges that
he delivered marijuana, conspired to deliver marijuana, and knowingly kept
a vehicle for the purpose of keeping or selling controlled substances in
violation of sections 333.7401(2)(d)(iii), 750.157a, and 333.7405(1)(d) of
the Michigan Compiled Laws, respectively. As a result of that guilty plea,
in January 2008 the respondent was designated a “youthful trainee” under
sections 762.11 of the Michigan Compiled Laws, which means that the
sentencing court deferred adjudication of his guilt and ordered him to serve
a term of rehabilitative probation with an eye to the eventual dismissal
of the charges. In August 2008, the respondent was convicted of
second-degree home invasion in violation of section 750.110a(3) of the
Michigan Compiled Laws, for which he was sentenced to 3 years of
probation, including 300 days of probationary incarceration.
Based on the respondent’s convictions, the Immigration Judge found
him inadmissible to the United States. She also determined that the
respondent is ineligible for asylum and withholding of removal on the
ground that his drug offense was a “particularly serious crime” under
sections 208(b)(2)(A)(ii) and 241(b)(3)(B)(ii) of the Act, 8 U.S.C.
§ 1231(b)(3)(B)(i) (2006). Finally, the Immigration Judge denied the
respondent’s application for protection under the Convention Against
Torture on the merits and ordered him removed to Albania.Cite as 26 I&N Dec. 147 (BIA 2013) Interim Decision #3785
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II. ANALYSIS
The respondent raises a number of arguments on appeal, of which some
pertain to his removability from the United States and others to his
eligibility for relief from (or protection against) removal. We shall address
each argument in turn. However, we find it necessary to first address an
important threshold issue that the parties have not discussed on appeal—
namely, the termination of the respondent’s asylum status.
A. Termination of Asylum Status
Because the respondent was granted asylum in 2004, he cannot be
removed from the United States unless and until his asylum status is
terminated. Section 208(c) of the Act; see also Matter of A-S-J-, 25 I&N
Dec. 893, 895 (BIA 2012); 8 C.F.R. § 1208.22 (2013). The regulations
contemplate that termination of an alien’s asylum status may occur in
conjunction with removal proceedings. 8 C.F.R. § 1208.24(f) (2013). But
ordinarily issues of removability and eligibility for relief from removal
should be deferred until a threshold determination is made regarding the
termination of asylum status.1 We note in this regard that the statutory
grounds for termination of asylum status are narrower than the grounds
of removability. Compare section 208(c)(2) of the Act (grounds for
termination of asylum status), with sections 212(a) and 237(a) of the Act,
8 U.S.C. § 1227(a) (2006) (grounds of removability).
The DHS filed a notice of intent to terminate the respondent’s asylum
status with the Immigration Judge shortly after filing the notice to appear,
and it requested resolution of the termination issue during the course
of the respondent’s removal proceedings, as contemplated by 8 C.F.R.
§ 1208.24(f). However, the Immigration Judge’s decision includes no
analysis of the termination issue and does not order the respondent’s
asylum status terminated. As a result, the Immigration Judge’s removal
order cannot be executed at this time, and we have no alternative but
to remand the record for entry of a new decision with respect to the
termination of the respondent’s asylum status.
In cases with unresolved questions regarding the termination of asylum
status, it may often be advisable for us to remand the record without
1 As we held in Matter of K-A-, 23 I&N Dec. 661 (BIA 2004), an Immigration Judge
need not reach the issue of termination of asylum status if the alien is eligible for, and
deserving of, some form of relief that would make termination of asylum status moot,
such as adjustment of status under section 209 of the Act, 8 U.S.C. § 1159 (2006).Cite as 26 I&N Dec. 147 (BIA 2013) Interim Decision #3785
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addressing other appellate issues, some of which could be rendered moot
depending on whether asylum status is terminated. On the facts of this
case, however, we find it unnecessary to withhold adjudication of all of the
respondent’s appellate arguments.
B. Asylum as an “Admission”
The respondent’s first argument is that the removal proceedings
should be terminated because the DHS improperly charged him with
inadmissibility under section 212(a)(2) of the Act. According to the
respondent, as an alien granted asylum he is subject only to deportability
charges under section 237(a) of the Act, not inadmissibility charges. In
support of that argument, the respondent invokes Matter of D-K-, 25 I&N
Dec. 761, 765–70 (BIA 2012), which was issued during the pendency of
this appeal, where we held in pertinent part that aliens “admitted” to the
United States as “refugees” under section 207 of the Act, 8 U.S.C. § 1157
(2006), are susceptible to deportability charges, but not inadmissibility
charges. We find the respondent’s argument unpersuasive.
Charges of deportability under section 237(a) of the Act pertain to aliens
who are “in and admitted to the United States,” a phrase that applies to
aliens who have been “admitted” under section 101(a)(13)(A) of the Act,
8 U.S.C. § 1101(a)(13)(A) (2006), or who have been granted lawful
permanent resident status from within the United States. See Matter of
Alyazji, 25 I&N Dec. 397, 399 (BIA 2011). The respondent does not claim
that he was ever “admitted” within the meaning of section 101(a)(13)(A).
The Immigration Judge found that the respondent was “paroled” into the
United States in 2003,2
and he does not argue to the contrary on appeal.
Furthermore, the respondent has not adjusted his status to that of a lawful
permanent resident. Accordingly, despite his asylum status, the respondent
is not “in and admitted to the United States” within the meaning of section
237(a). He is therefore properly charged under section 212(a) of the Act.
Matter of D-K-, 25 I&N Dec. 761, is inapposite here because it involved
an alien who was formally “admitted” into the United States as a “refugee”
after inspection at a port of entry in accordance with sections 101(a)(13)(A)
and 207 of the Act. The respondent, who was granted asylum from within
the United States after entering on parole, was never admitted as a refugee.
Moreover, although the respondent’s grant of asylum conferred a lawful
status upon him, it did not entail an “admission.”
2
Parole is not an “admission.” Section 101(a)(13)(B) of the Act.Cite as 26 I&N Dec. 147 (BIA 2013) Interim Decision #3785
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The respondent has identified nothing in the language of the Act to
support his contention that Congress understood a grant of asylum to be a
form of “admission” into the United States. Instead, he points to language
in Matter of S-A-, 22 I&N Dec. 1328, 1337 (BIA 2000), where we granted
an alien’s asylum application and purported to order her “admitted to the
United States as an asylee.” We acknowledge that the cited language is
misleading because it conflates the distinct concepts of “admission to
asylum status” and “admission into the United States.”3
That said, we do
not view this passing statement in Matter of S-A- as embodying a holding
that a grant of asylum is tantamount to an “admission” under section
101(a)(13)(A) of the Act. The respondent’s status as an inadmissible or
deportable alien was not a disputed issue in Matter of S-A-, and our
statement purporting to “admit” her was therefore gratuitous.
The respondent also seeks to analogize his grant of asylum to a grant of
lawful permanent resident status, which we have recognized may qualify as
an “admission,” even though it does not fit the statutory definition of that
term. See, e.g., Matter of Alyazji, 25 I&N Dec. at 390-404. We are not
convinced by this argument, however, because a grant of asylum is simply
not akin to a grant of lawful permanent resident status.
We have found that adjustment of status can be a form of admission
because adjustees have always been deemed to be assimilated to the status
of aliens admitted at the border with immigrant visas. E.g., Matter of Smith,
11 I&N Dec. 325, 326-27 (BIA 1965), superseded on other grounds by
Matter of Hom, 16 I&N Dec. 112 (BIA 1977). We have also stated that
where an alien has not otherwise been admitted to the United States,
declining to consider adjustment of status as an “admission” would result in
bizarre and absurd consequences, among them being the fact that “many
lawful permanent residents would be considered inadmissible, despite their
lawful status, based on their presence in the United States without having
been admitted.” Matter of Alyazji, 25 I&N Dec. at 399; see also Matter of
Koljenovic, 25 I&N Dec. 219 (BIA 2010); Matter of Rodarte, 23 I&N Dec.
905 (BIA 2006); Matter of Rosas, 22 I&N Dec. 616 (BIA 1999). The
3 The regulation governing adjustment of status for asylees also refers to a grant of
asylum as a form of admission. See 8 C.F.R. § 1209.2 (2013) (“The provisions of this
section shall be the sole and exclusive procedure for adjustment of status by an asylee
admitted under section 208 of the Act.” (Emphasis added.)). That characterization is
substantially contradicted, however, by 8 C.F.R. § 1208.14(c) (2013), which clarifies
that a grant of asylum does not require a threshold inspection for admissibility, the
sine qua non of an “admission,” either at a port of entry or through adjustment of status.
On the contrary, 8 C.F.R. § 1208.14(c) contemplates that an inspection for inadmissibility
will occur only “[i]f the asylum officer does not grant asylum.” (Emphasis added.)Cite as 26 I&N Dec. 147 (BIA 2013) Interim Decision #3785
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rationale of our adjustment of status cases does not extend to a grant of
asylum, however, because no absurd or bizarre consequences flow in the
asylum context from applying the literal language of the “admission”
definition. Cf. Matter of Reza, 25 I&N Dec. 296 (BIA 2010) (holding that a
grant of Family Unity Program benefits was not an “admission,” even
though it may have conferred a lawful status on the beneficiary).
In conclusion, the respondent’s asylum status does not qualify him as an
alien “in and admitted” to the United States within the meaning of section
237(a) of the Act. He is therefore subject to removal under section 212(a)
as an inadmissible alien, and he was properly charged as such.
C. Michigan “Youthful Trainee” Adjudication as a “Conviction”
Having concluded that the respondent was properly charged under
section 212(a) of the Act, we now turn to the validity of the charges
themselves. As noted, the Immigration Judge found that the respondent’s
2007 Michigan drug conviction renders him inadmissible under sections
212(a)(2)(A)(i)(I) and (II) of the Act, as an alien convicted of a crime
involving moral turpitude and a controlled substance violation, respectively.
He was also found inadmissible under section 212(a)(2)(C) as an alien who
the Attorney General knows or has reason to believe is or has been an illicit
trafficker in any controlled substance. On appeal, the respondent’s
sole argument is that the conviction does not qualify as a “conviction” at
all because it resulted in a “youthful trainee” designation rather than a
judgment of guilt. We disagree with that assertion.
In Matter of Devison, 22 I&N Dec. 1362 (BIA 2000), we held that
the term “conviction” under section 101(a)(48)(A) of the Act, 8 U.S.C.
§ 1101(a)(48)(A) (Supp. IV 1998), does not encompass any State court
adjudication which corresponds to a determination of juvenile delinquency
under the Federal Juvenile Delinquency Act, 18 U.S.C. § 5031–5042 (1994
& Supp. II 1996) (“FJDA”). In order for a State youthful offender
disposition to be analogous to an FJDA adjudication, however, it must be
civil in nature and must be such that it can neither be deemed a “conviction”
ab initio nor ripen into a conviction upon the occurrence or nonoccurrence
of subsequent events. See Matter of Devison, 22 I&N Dec. at 1371. As the
United States Court of Appeals for the Sixth Circuit has recognized, the
Michigan “youthful trainee” procedures at issue here do not conform to
these FJDA requirements. Uritsky v. Gonzales, 399 F.3d 728, 734–35 (6th
Cir. 2005). The respondent maintains that Matter of Devison should
be reexamined, but we conclude that it was properly decided and we
decline his request to reconsider it. Accordingly, we conclude that theCite as 26 I&N Dec. 147 (BIA 2013) Interim Decision #3785
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respondent’s “youthful trainee” adjudication under Michigan law qualified
as a conviction for immigration purposes.
D. Aggravated Felony and Particularly Serious Crime
We now turn to the respondent’s eligibility for relief from (or protection
against) removal. As we noted earlier, the Immigration Judge found the
respondent ineligible for asylum and withholding of removal on the ground
that the offense underlying his 2008 Michigan conviction for delivery of
marijuana was an “aggravated felony” and a “particularly serious crime.”
Apart from his contention that a Michigan youthful trainee adjudication is
not a conviction for immigration purposes, which we have rejected, the
respondent has not disputed that he was convicted of an aggravated felony.
We note, however, that during the pendency of this appeal the
Supreme Court decided Moncrieffe v. Holder, 133 S. Ct. 1678, which
pertains to the “aggravated felony” status of certain small-scale marijuana
distribution offenses that were not for remuneration. We find that
Moncrieffe necessitates a remand for the Immigration Judge and the
parties to reconsider the aggravated felony and particularly serious crime
issues. The Immigration Judge should also consider what impact, if any,
Moncrieffe has on the issue of termination of asylum and on the
respondent’s removability under section 212(a)(2)(C) of the Act.
E. Convention Against Torture
The respondent also applied for protection under the Convention
Against Torture below, but the Immigration Judge denied that application,
concluding that the respondent had not established that he will more likely
than not be “tortured” in Albania. Under the Convention Against Torture,
“torture” means:
(1) an act causing severe physical or mental pain or suffering; (2) intentionally
inflicted; (3) for a proscribed purpose; (4) by or at the instigation of or with the
consent or acquiescence of a public official who has custody or physical control of
the victim; and (5) not arising from lawful sanctions.
Matter of J-E-, 23 I&N Dec. 291, 297 (BIA 2002); see also 8 C.F.R.
§ 1208.18(a) (2013).
The respondent’s application for Convention Against Torture protection
is based on his fear of harm at the hands of members of the Albanian
Socialist Party, who the respondent believes have a lingering grievance
against his family (particularly his sister and his father) because of their
support of the rival Albanian Democratic Party during the late 1990s. AsCite as 26 I&N Dec. 147 (BIA 2013) Interim Decision #3785
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the Immigration Judge determined, however, the respondent has adduced
no credible evidence to suggest that Socialist Party members commit acts
of torture against political rivals in present-day Albania. Nor has the
respondent demonstrated that any Albanian public official would instigate,
consent to, or acquiesce in such torture, should it occur. In this regard, we
note, as did the Immigration Judge, that the Albanian Government has been
controlled by the Albanian Democratic Party since 2005. While we have
no wish to minimize the respondent’s fear of returning to Albania, his claim
is too speculative to warrant a grant of protection under the Convention
Against Torture. Accordingly, the respondent’s request for such protection
will be denied.
F. Adjustment of Status and Other Relief
Although he did not seek adjustment of status below, the respondent
claims on appeal that he should be allowed to apply for adjustment under
section 209(b) of the Act in conjunction with a waiver of inadmissibility
under section 209(c). On remand, the Immigration Judge should determine
whether, in light of Moncrieffe v. Holder, 133 S. Ct. 1678, the respondent is
eligible for such relief or remains inadmissible under section 212(a)(2)(C)
of the Act—a ground of inadmissibility that cannot be waived under section
209(c).
III. CONCLUSION
In conclusion, we agree with the Immigration Judge that the respondent
is removable on the section 212(a)(2)(A) charges and that he did not
establish eligibility for protection under the Convention Against Torture.
Nevertheless, we find it necessary to remand the record so the Immigration
Judge can decide in the first instance whether the respondent’s existing
asylum status—conferred in 2004—can and, if so, should be terminated.
Upon resolving that issue, the Immigration Judge should then conduct such
further proceedings and enter such further orders as she deems appropriate
under the circumstances with respect to the respondent’s applications for
asylum and withholding of removal, as well as his potential eligibility for
adjustment of status.
ORDER: The appeal is dismissed in part.
FURTHER ORDER: The record is remanded to the Immigration
Judge for a determination whether the respondent’s asylum status may be
terminated and for the entry of such further orders as may be appropriate in
light of that determination.