Cite as 25 I&N Dec. 623 (BIA 2011) Interim Decision #3731
623
Matter of Benno RIVENS, Respondent
Decided October 19, 2011
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) In order to establish that a returning lawful permanent resident alien is to be treated
as an applicant for admission to the United States, the Department of Homeland
Security has the burden of proving by clear and convincing evidence that one of the six
exceptions to the general rule for lawful permanent residents set forth at section
101(a)(13)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(13)(C)
(2006), applies.
(2) The offense of accessory after the fact is a crime involving moral turpitude, but only if
the underlying offense is such a crime.
FOR RESPONDENT: Howard R. Brill, Esquire, Hempstead, New York
FOR THE DEPARTMENT OF HOMELAND SECURITY: Susan Marie Beschta, Assistant
Chief Counsel
BEFORE: Board Panel: PAULEY, GREER, and WENDTLAND, Board Members.
PAULEY, Board Member:
This case primarily addresses the issue of which party bears the burden
of proof for establishing whether a returning lawful permanent resident
is to be treated as an applicant for admission and is therefore subject to the
inadmissibility grounds for removal, rather than the deportability grounds.
It also addresses whether the respondent has been convicted of a crime
involving moral turpitude—specifically, under what circumstances the
offense of accessory after the fact constitutes such a crime, and whether the
Immigration Judge employed the correct legal analysis in determining that the
respondent’s specific offense of being an accessory after the fact to the crime
of making materially false statements or entries in violation of 18 U.S.C.
§ 1001 (2000) is not such a crime. The Department of Homeland Security
(“DHS”) has appealed from the Immigration Judge’s June 2, 2009, decision
terminating the removal proceedings against the respondent. The appeal will
be sustained in part, and the record will be remanded to the Immigration Judge.Cite as 25 I&N Dec. 623 (BIA 2011) Interim Decision #3731
624
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native of Romania and citizen of Israel who is a lawful
permanent resident of the United States. On August 7, 1992, he was convicted
in New York following a guilty plea to the offense of offering a false
instrument for filing in the second degree in violation of section 175.30 of the
New York Penal Law, for which he was sentenced to a term of 1 year of
conditional discharge. The respondent was also convicted on May 26, 2000,
in the United States District Court for the Southern District of New York
upon a guilty plea to the offense of accessory after the fact in violation
of 18 U.S.C. § 3 (2000), for which he was sentenced to a term of 2 years
of probation, was assessed $100, and was required to pay restitution in the
amount of $154,496. On March 29, 2007, the respondent applied for
admission to the United States as a returning lawful permanent resident.
On September 7, 2007, the DHS served the respondent with a Notice
to Appear on the basis of these convictions, charging that he is inadmissible
as an alien convicted of a crime involving moral turpitude 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). The Immigration Judge determined that neither
offense constituted a crime involving moral turpitude and found that the
respondent was not removable as charged. He therefore terminated the
removal proceedings.
II. ANALYSIS
A. Default Judgment
As an initial matter, we find no basis to affirm the Immigration Judge’s
decision to impose a “default judgment” against the DHS. The Immigration
Judge did not provide, and we do not discern, any legal support for his
conclusions that the DHS was required to submit a written brief to the
Immigration Judge in support of the charge of removability, rather than resting
upon verbal arguments at the hearing, and that the failure to comply with
such a requirement permitted a “default judgment.” We therefore decline
to endorse this portion of the Immigration Judge’s decision.
B. Burden of Proof Under Section 101(a)(13)(C) of the Act
The DHS also contests the Immigration Judge’s determination that it bore
the burden of establishing the respondent’s inadmissibility, rather than
requiring the respondent to establish that he was not inadmissible. Section
101(a)(13)(C)(v) of the Act, 8 U.S.C. § 1101(a)(13)(C)(v) (2006), providesCite as 25 I&N Dec. 623 (BIA 2011) Interim Decision #3731
1 We note that the Supreme Court recently granted certiorari on the question whether the
definition of “admission” in section 101(a)(13)(C) of the Act applies to a returning lawful
permanent resident who committed an offense identified in section 212(a) before the
effective date of section 101(a)(13)(C). Vartelas v. Holder, 620 F.3d 108 (2d Cir. 2010),
cert. granted, 79 U.S.L.W. 3594, 80 U.S.L.W. 3016 (U.S. Sept. 27, 2011) (No. 10-1211),
2011 WL1032166. The outcome of that case could potentially affect the respondent’s
inadmissibility for his 1992 offense of offering a false instrument, but it would not seem
to have relevance with respect to his 2000 accessory after the fact offense.
2 We have placed the burden of proof on the Government with respect to the status
of returning lawful permanent residents for over 35 years. See Matter of Kane, 15 I&N Dec.
258 (BIA 1975). During this time, the relevant statutory and regulatory provisions have
consistently allowed readmission after an absence of less than 1 year upon the presentation
of the equivalent of a Permanent Resident Card and have permitted discretionary
readmission of lawful permanent residents after a “temporary visit abroad,” absent the
otherwise-required documents. Compare the differing versions of sections 101(a)(27)(A)
and 211(b) of the Act, 8 U.S.C. §§ 1101(a)(27)(A) and 1181(b), from 1970, 1982, and 2006;
compare also 8 C.F.R. § 211.1(a)(2) (2011) with prior versions of the regulation at 8 C.F.R.
§ 211.1(b) in 1974 and 1987.
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in pertinent part that lawful permanent residents, such as the respondent, who
are returning to the United States after traveling abroad, “shall not be regarded
as seeking an admission into the United States for purposes of the immigration
laws unless the alien . . . has committed an offense identified in section
212(a)(2).”1
Sections 240(c)(2) and (3)(A) of the Act, 8 U.S.C. §§ 1229a(c)(2) and
(3)(A) (2006), now expressly allocate the general burden of proof where
an alien is an “applicant for admission,” claims to be “lawfully present in the
United States pursuant to a prior admission,” or “has been admitted.”
However, the Act remains silent with respect to the burden and standard
of proof required to determine that an alien is an “applicant for admission”
under sections 240(c)(2)(A) and 101(a)(13)(C) of the Act. See generally
Matter of Collado, 21 I&N Dec. 1061, 1063-65 (BIA 1998). Moreover, the
regulatory presumption benefitting lawful permanent residents who present
a valid unexpired Permanent Resident Card (Form I-551) after a temporary
absence of less than 1 year does not suggest an applicable burden or standard
of proof under circumstances where the presumption does not apply. See
8 C.F.R. § 211.1(a)(2) (2011).
As a matter of first impression with respect to the application of section
101(a)(13)(C) of the Act, we find no reason to depart from our longstanding
case law holding that the DHS bears the burden of proving by clear and
convincing evidence that a returning lawful permanent resident is to be
regarded as seeking an admission.2
See Matter of Huang, 19 I&N Dec. 749,
754 (BIA 1988) (citing Woodby v. INS, 385 U.S. 276, 286 (1966), holding,Cite as 25 I&N Dec. 623 (BIA 2011) Interim Decision #3731
3
See section 240(c)(3)(A) of the Act (stating that “the Service has the burden of
establishing by clear and convincing evidence that, in the case of an alien who has been
admitted to the United States, the alien is deportable”). Although Congress has omitted the
term “unequivocal” that was included in the standard announced in Woodby v. INS, 385 U.S.
at 286, we have no occasion to determine whether, or to what degree, this has effected
a substantive change.
4 We acknowledge that in a recent published decision, the United States Court of Appeals
for the Third Circuit appears to have reached a different conclusion. In Doe v. Att’y Gen.
of U.S., No. 10-2272, 2011 WL 3930281 (3d Cir. Sept.8, 2011), the court found that the
DHS could meet its burden of establishing that the exception in section 101(a)(13)(C)(v)
of the Act had been met by showing that there was “probable cause to believe” that the
alien had committed one of the crimes identified in section 212(a)(2) of the Act. Id. at *5.
We respectfully disagree with this determination, because we find that it is based
on an apparent misapprehension of the legal effect of treating a returning lawful permanent
resident as an applicant for admission. See Matter of Lok, 18 I&N Dec. 101 (BIA 1981)
(holding that a lawful permanent resident retains such status until the entry of a final
administrative order of removal), aff’d, 681 F.2d 107 (2d Cir. 1982). In any event, it is not
determinative in this case, which arises in a different circuit. See Matter of K-S-, 20 I&N
Dec. 715 (BIA 1993); see also Matter of Anselmo, 20 I&N Dec. 25, 30-32 (BIA 1989).
626
in the absence of a statutory standard, that “no deportation order may be
entered unless it is found by clear, unequivocal, and convincing evidence that
the facts alleged as grounds for deportation are true”); Matter of Kane, 15 I&N
Dec. 258, 264 (BIA 1975); see also Landon v. Plasencia, 459 U.S. at 21, 35
(1982) (acknowledging the Board’s practice at that time of placing the burden
of proof on the Government with respect to returning lawful permanent
residents in exclusion proceedings ). Given this historical practice and the
absence of any evidence that Congress intended a different allocation
or standard of proof to apply in removal cases arising under current section
101(a)(13)(C) of the Act, we hold that the respondent—whose lawful
permanent resident status is uncontested—cannot be found removable under
the section 212(a) grounds of inadmissibility unless the DHS first proves
by clear and convincing evidence3
that he is to be regarded as an applicant for
admission, in this case by having “committed an offense identified in section
212(a)(2).”4 Section 101(a)(13)(C)(v) of the Act. Thus, we find that the
Immigration Judge properly allocated the burden of proof to the DHS in this
matter and correctly employed a “clear and convincing” legal standard.
There remains an open question of who then bears the burden of showing
admissibility, or a lack of inadmissibility, once it has been determined that
an alien is an applicant for admission. However, we do not reach this issue,
because it is unnecessary to address it to resolve the matter before us. The
exception to the general rule in section 101(a)(13)(C) of the Act that
potentially renders the respondent an applicant for admission, namely,Cite as 25 I&N Dec. 623 (BIA 2011) Interim Decision #3731
5 This approach makes sense, because to be convicted of accessory after the fact under
18 U.S.C. § 3, a defendant must not only know that the person he or she assisted committed
some felony offense but must also know what the particular offense was. See, e.g.,
United States v. Osborn, 120 F.3d 59, 63 (7th Cir. 1997); United States v. Henning, 77 F.3d
346, 350 (10th Cir. 1996); United States v. Bissonette, 586 F.2d 73, 76 (8th Cir. 1978).
627
the commission of an offense identified in section 212(a)(2), coincides with
the ground of inadmissibility charged by the DHS in the Notice to Appear, that
is, a conviction for a crime involving moral turpitude under section
212(a)(2)(A)(i)(I) of the Act. Thus, if the DHS establishes that the respondent
is an applicant for admission under section 101(a)(13)(C)(v) of the Act, it will
have de facto established the respondent’s inadmissibility.
We now turn to the question whether the DHS has met its burden of
proving by clear and convincing evidence that the respondent, a returning
lawful permanent resident, is to be regarded as an applicant for admission
because he committed an offense identified in section 212 of the Act, in this
case, a crime involving moral turpitude under section 212(a)(2)(A)(i)(I) of the
Act.
C. Inadmissibility Under Section 212(a)(2)(A)(i)(I) of the Act
We first address the respondent’s conviction for accessory after the fact
under 18 U.S.C. § 3. In 2000, that provision stated in pertinent part,
“Whoever, knowing that an offense against the United States has been
committed, receives, relieves, comforts or assists the offender in order
to hinder or prevent his apprehension, trial or punishment, is an accessory after
the fact.” We have held that an alien convicted of accessory after the fact
to manslaughter was convicted of a crime involving moral turpitude because
the underlying offense, which was found to be voluntary manslaughter, was
a crime involving moral turpitude. Matter of Sanchez-Marin, 11 I&N Dec.
264 (BIA 1965), modified on other grounds, Matter of Franklin, 20 I&N Dec.
867 (BIA 1994); see also Cabral v. INS, 15 F.3d 193 (1st Cir. 1994). We find
this approach to be appropriate here and conclude that we must look to the
underlying or substantive crime to determine whether it involved moral
turpitude.5
The respondent argues on appeal that we are precluded from examining the
underlying statute, citing to Matter of Batista-Hernandez, 21 I&N Dec. 955
(BIA 1997). In that case, we concluded that the offense of accessory after the
fact to a drug-trafficking crime, in violation of 18 U.S.C. § 3, was not
considered an inchoate crime and was not sufficiently related to a controlled
substance violation to support a finding of deportability pursuant to former
section 241(a)(2)(B)(i) of the Act, 8 U.S.C. § 1251(a)(2)(B)(i) (1994).Cite as 25 I&N Dec. 623 (BIA 2011) Interim Decision #3731
628
However, we expressly declined to address the question whether an accessory
after the fact offense would also be a crime involving moral turpitude where
the underlying or substantive crime of which the alien was convicted involved
moral turpitude. Instead, we observed that “the issue whether the respondent’s
conviction might establish his deportability arising from a conviction for
a crime involving moral turpitude is not before us.” Id. at 957.
The respondent contends that the holding in Matter of Batista-Hernandez
regarding the lack of “relatedness” of an accessory after the fact offense to the
underlying controlled substance violation also dictates a finding that the
accessory offense here lacks the attributes of a crime involving moral
turpitude. We are not persuaded that the latter conclusion follows from the
former, because the two issues are distinct. Acting as an accessory after the
fact is generally treated as a less serious offense than the crime committed
by the principal. See, e.g., 18 U.S.C. § 3 (providing that the penalty for
an accessory after the fact conviction is one-half the maximum penalty
prescribed for the punishment of the principal). In light of that fact, it makes
sense to find that an accessory conviction is only one for a crime
involving moral turpitude when the aid is knowingly provided to help the
principal escape prosecution or punishment for a base or vile crime. The
turpitudinousness of the offense in that circumstance is not on account of the
“relatedness” of the aid to the underlying crime of the principal. It is rather
because helping a base criminal escape justice is more reflective of a breach
of duty owed to society than when the principal has committed an offense
that is not itself base or vile. Accordingly, we conclude that Matter of
Batista-Hernandez is not controlling.
In addition, the respondent points out that in Gonzales v. Duenas-Alvarez,
549 U.S. 183 (2007), the Supreme Court indicated that while aiding and
abetting offenses are necessarily included in the principal offense, accessory
after the fact is distinct from the principal offense in all States and under
Federal law. Thus, he argues that a conviction for accessory after the fact
should not trigger the same immigration consequences as the underlying
substantive offense. In support of his argument, he cites to the decision of the
United States Court of Appeals for the Ninth Circuit in Navarro-Lopez
v. Gonzales, 503 F.3d 1063 (9th Cir. 2007) (en banc), overruled on other
grounds by United States v. Aguila-Montes de Oca, No. 05-50170, 2011 WL
3506442 (9th Cir. Aug. 11, 2011).
However, in our view Navarro-Lopez is reasonably read only as finding
that the California accessory after the fact conviction in that case was not for
a crime involving moral turpitude because the underlying offense was itself not
a crime involving moral turpitude. Id. at 1071 (indicating that “[t]o hold that
a conviction for accessory after the fact is necessarily a crime of moral
turpitude leads to an absurd result where a principal who commits a crimeCite as 25 I&N Dec. 623 (BIA 2011) Interim Decision #3731
6 We acknowledge that the Third and Eleventh Circuits have disagreed with the
procedural analysis set forth in Silva-Trevino, in particular with respect to the ability to go
(continued…)
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may not have undertaken a morally turpitudinous act, but the person who gave
the principal food and shelter necessarily did”). Indeed, much of the Ninth
Circuit’s decision in Navarro-Lopez focused on examples of cases where
a person was convicted of harboring or concealing principals who had
not themselves committed crimes involving moral turpitude. Id. at 1072-73
(“Aiding and abetting such crimes would not demonstrate conduct involving
moral turpitude. Acting as an accessory after the fact to such crimes should
not necessarily do so either.”).
However, we need not conclusively identify the proper interpretation
of Navarro-Lopezto decide this case, because it arises in the jurisdiction of the
Second Circuit. We are not bound to follow the published decisions of a court
outside the circuit in whose jurisdiction the matter arises. See Matter of K-S-,
20 I&N Dec. 715 (BIA 1993); see also Matter of Anselmo, 20 I&N Dec. 25,
30-32 (BIA 1989). Thus, we must look to the underlying or substantive crime
in this case to determine whether it involved moral turpitude.
The conviction documents from the respondent’s 2000 conviction establish
that he pled guilty to Count 51 of the indictment. That count charges the
respondent with having knowingly received, relieved, comforted, and assisted
another person in order to hinder and prevent the apprehension, trial, and
punishment of said person whom he “helped . . . to conceal the falsity of the
Payrolls he had submitted in violation of Title 18, United States Code, Section
1001.”
To determine whether an offense in violation of 18 U.S.C. § 1001
constitutes a crime involving moral turpitude, we employ the framework set
forth by the Attorney General in Matter of Silva-Trevino, 24 I&N Dec. 687
(A.G. 2008). Under that framework, we first employ a categorical approach,
under which the criminal statute at issue is examined to ascertain whether
moral turpitude is intrinsic to all offenses that have a “realistic probability”
of being prosecuted under that statute. Id. at 689-90, 696-98. Second, if the
issue cannot be resolved under the categorical approach, we use a modified
categorical approach, which requires inspection of specific documents
comprising the alien’s record of conviction to discern the nature of the
underlying conviction. Id. at 690, 698-99. Finally, if the record of conviction
is inconclusive, the Attorney General has held that, because moral turpitude
is not an element of the crime, we may consider evidence beyond the record
of conviction in evaluating whether the alien’s offense constitutes a crime
involving moral turpitude. Id. at 690, 699-701.6Cite as 25 I&N Dec. 623 (BIA 2011) Interim Decision #3731
(…continued)
beyond the record of conviction in the third stage. Sanchez Fajardo v. U.S. Att’y Gen., Nos.
09-12962, 09-14845, 2011 WL 4808171 (11th Cir. Oct. 12, 2011); Jean-Louis v. Att’y Gen.
of the U.S., 582 F.3d 462 (3d Cir. 2009). However, the Seventh Circuit seemingly deferred
to the methodology in Matter of Silva-Trevino in Mata-Guerrero v. Holder, 627 F.3d 256
(7th Cir. 2010). This matter arises in the Second Circuit, which has not yet addressed
the decision in Silva-Trevino, and in the absence of otherwise controlling authority, we and
the Immigration Judges are bound to apply the procedural framework set forth by the
Attorney General in that case.
7 Violations of prior versions of 18 U.S.C. § 1001 have been determined not to categorically
be crimes involving moral turpitude. See, e.g., Matter of Marchena, 12 I&N Dec. 355 (R.C.
1967); Matter of G-, 8 I&N Dec. 315 (BIA 1959). But see Ghani v. Holder, 557 F.3d 836
(7th Cir. 2009) (addressing a more recent version of the statute).
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The Immigration Judge’s decision in this case does not meaningfully
analyze whether an offense under 18 U.S.C. § 1001 is a crime involving moral
turpitude under the Silva-Trevino framework, and we express no opinion
on the subject.7 We find a similar lack of meaningful analysis concerning the
respondent’s conviction under section 175.30 of the New York Penal Law.
We therefore find it appropriate to remand the record for the Immigration
Judge to determine whether either of the respondent’s convictions is for
a crime involving moral turpitude under section 212(a)(2)(A)(i)(I) of the Act.
If either conviction is found to be for a crime involving moral turpitude,
it would render the respondent an applicant for admission and, in effect,
inadmissible under section 212 of the Act. Accordingly, the DHS’s appeal
will be sustained in part, and the record will be remanded to the Immigration
Judge.
ORDER: The appeal of the Department of Homeland Security is
sustained in part.
FURTHER ORDER: The record is remanded to the Immigration Judge
for further proceedings consistent with the foregoing opinion and for the entry
of a new decision.