Bloggings on Deportation And Removal
Editor's note: Here are the latest entries from Matthew Kolken's blog
Dec 10, 2009
Board of Immigration Appeals finds a way to look to the facts that resulted in a conviction rather than evaluating the underlying statute
The Board of immigration Appeals has ruled in Matter of Martinez-Serrano, Int. Dec. 3666, 25 I&N Dec. 151 (BIA 2009) has ruled that: (1) An alien’s conviction for aiding and abetting other aliens to evade and elude examination and inspection by immigration officers in violation of 18 U.S.C. § 2(a) (2006) and 8 U.S.C. § 1325(a)(2) (2006) establishes that the convicted alien is removable under section 237(a)(1)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(1)(E)(i) (2006); and (2) Where the facts underlying the respondent’s conviction demonstrated that she knowingly assisted other aliens to enter the United States in violation of law, clear and convincing evidence established that she is removable under section 237(a)(1)(E)(i) of the Act. The case involves a native and citizen of Mexico who obtained her Green Card on December 1, 1990. Approximately sixteen years later she was convicted for violating 18 U.S.C. § 2(a) (2006) because allowed 15 undocumented individuals to hide in her house. This is a misdemeanor offense, and she was sentenced to 90 days in jail. She was also charged with violating 8 U.S.C. § 1325(a)(2) (2006) for harboring illegal aliens. This charge was dropped as part of her plea agreement. In her plea agreement the Respondent admitted that she harbored 15 individuals in her home, that she knew that the individuals were in the United States without authorization, and that the reason she was harboring them was to assist them in eluding examination by Immigration authorities. The Respondent was placed in removal proceedings and charged with removal under section 237(a)(1)(E)(i) of the Act for knowingly aiding and abetting a noncitizen to enter the United States in violation of law. The respondent denied that she assisted the aliens to enter the country. At the individual hearing the DHS introduced the respondent’s conviction record which included her plea agreement. The Immigration Judge found that although the evidence showed that the respondent harbored aliens after their entry, there was insufficient evidence to establish that she helped them enter the country illegally. As a result the IJ found that the ground of removal was not sustained by the Department, and terminated the proceedings. The Department appealed. The Board of Immigration Appeals reviewed the case and concluded that the removal ground that the respondent was charged did not require a conviction, the factual basis for the criminal charges brought against the respondent was tied to their manner of entry, and she maintained a specific intent to harbor them specifically to assist them in eluding inspection or examination by immigration officials. The Board disagreed with the Immigration Judge's finding that he was precluded from looking at the underlying facts of the respondent’s conviction, and the Board found that the Immigration Judge erred in refusing to consider the documents in the record stating the factual basis for the respondent’s conviction. As a result the Board sustained the Department's appeal finding that they established by clear and convincing evidence that the respondent knowingly assisted aliens to enter the United States in violation of law and as a result she is removable as charged. The case has been remanded back to the Immigration Judge for consideration of any relief from removal that may be available.
BIA Decision: Stepchild is a qualifying relative for Cancellation of Removal
The Board of Immigration Appeals has ruled that a stepchild who meets the definition of a “child” under section 101(b)(1)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1101(b)(1)(B) (2006), is a qualifying relative for purposes of establishing exceptional and extremely unusual hardship for cancellation of removal under section 240A(b)(1)(D) of the Act, 8 U.S.C. § 1229b(b)(1)(D) (2006). See Matter of Portillo-Gutierrez, ID 3665, 25 I&N Dec. 148 (BIA 2009)
The case involved a 30-year-old native and citizen of
The Immigration Judge found that the Respondent was statutorily eligible for cancellation of removal but denied the requested relief because he found that the Respondent's step-child was not a qualifying relative for the purpose of establishing the requisite hardship.
The Board disagreed and remanded the record back to the Immigration Judge so that he could reevaluate his findings concerning the hardship that the Respondent’s family might suffer if he is removed from the
Matthew Kolken is a trial lawyer with experience in all aspects of United States Immigration Law – including Immigration Courts throughout the United States, and appellate practice before the Board of Immigration Appeals, the U.S. District Courts, and U.S. Courts of Appeals. He is admitted to practice in the courts of the State of New York , the United States District Court for the Western District of New York, the United States Court of Appeals for the Second Circuit, and is a member of the American Immigration Lawyers Association (AILA).
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.