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Matter of Guzman-Martinez, 25 I&N Dec. 845 (BIA 2012) plus comments


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  • 1. Cite as 25 I&N Dec. 845 (BIA 2012) Interim Decision #3759 Matter of Ignacio GUZMAN MARTINEZ, Respondent Decided June 29, 2012 U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals Pursuant to section 101(a)(13)(C)(iii) of the Immigration and Nationality Act, 8 U.S.C.§ 1101(a)(13)(C)(iii) (2006), a lawful permanent resident of the United States maybe treated as an applicant for admission in removal proceedings if the Departmentof Homeland Security proves by clear and convincing evidence that the returning residentengaged in “illegal activity” at a United States port of entry.FOR RESPONDENT: Arnold S. Jaffe, Esquire, Santa Barbara, CaliforniaFOR THE DEPARTMENT OF HOMELAND SECURITY: Tasha Gailys, Assistant ChiefCounselBEFORE: Board Panel: COLE, PAULEY, and GREER, Board Members.GREER, Board Member: In a decision dated February 14, 2011, an Immigration Judge terminated This action wasremoval proceedings against the respondent, concluding that the Department against BIAof Homeland Security (“DHS”) had improperly charged the respondent with Precedent. Seeinadmissibility to the United States based on alleged illegal activity discovered commentaryat a port of entry. The DHS has appealed from that decision. The appeal will starting on pagebe sustained, the proceedings will be reinstated, and the record will 6 of this remanded to the Immigration Judge. I. FACTUAL AND PROCEDURAL HISTORY The respondent, a native and citizen of Mexico, has been a lawfulpermanent resident of the United States since 2004. On July 31, 2005, aftervisiting Mexico, he presented himself for inspection at the San Ysidro,California, port of entry. During the inspection process, immigration officersconcluded that the respondent was attempting to bring an undocumentedjuvenile alien into the United States in violation of law. Accordingly, theofficers paroled the respondent into the United States and initiatedremoval proceedings by filing a notice to appear, which charged him with 845
  • 2. Cite as 25 I&N Dec. 845 (BIA 2012) Interim Decision #3759inadmissibility under section 212(a)(6)(E)(i) of the Act, 8 U.S.C.§ 1182(a)(6)(E)(i) (2000), as an alien who “at any time knowingly hasencouraged, induced, assisted, abetted, or aided any other alien to enteror to try to enter the United States in violation of law.” After several evidentiary hearings, the Immigration Judge dismissedthe charge and terminated the removal proceedings “without prejudice,”concluding that the notice to appear had been “improvidently issued” by theDHS. According to the Immigration Judge, the DHS’s decision to charge therespondent with inadmissibility was inconsistent with section 101(a)(13)(C)of the Act, 8 U.S.C. § 1101(a)(13)(C) (2006), which establishes a rebuttablepresumption that returning lawful permanent residents “shall not be regardedas seeking an admission into the United States for purposes of the immigrationlaws.” On appeal, the DHS counters that the notice to appear was notimprovidently issued and that the evidence in this case is sufficient to rebut thestatutory presumption against treating a returning lawful permanent residentas an applicant for admission. II. ANALYSIS As the Immigration Judge determined, section 101(a)(13)(C) of the Actestablishes a presumption against treating a returning lawful permanentresident as an applicant for admission in removal proceedings. Thatpresumption may be rebutted, however, if the DHS establishes by clear andconvincing evidence that one or more of six statutory exceptions applies.Matter of Rivens, 25 I&N Dec. 623 (BIA 2011). Here, the DHS invokes theexception in section 101(a)(13)(C)(iii) of the Act, which authorizes a returninglawful permanent resident to be regarded as an applicant for admissionif he “has engaged in illegal activity after having departed the United States.” The term “illegal activity” is not defined in the Act. As a matterof semantics, it is possible to interpret the term broadly to encompass anyactivity that is “[f]orbidden by law” or “unlawful.” Black’s Law Dictionary763 (8th ed. 1999) (defining the term “illegal”). On the other hand, we aremindful of the Supreme Court’s caveat that “[a] word in a statute may or maynot extend to the outer limits of its definitional possibilities. Interpretationof a word or phrase depends upon reading the whole statutory text, consideringthe purpose and context of the statute, and consulting any precedentsor authorities that inform the analysis.” Dolan v. U.S. Postal Serv., 546 U.S.481, 486 (2006). A contextual reading of section 101(a)(13)(C)(iii) suggests 846
  • 3. Cite as 25 I&N Dec. 845 (BIA 2012) Interim Decision #3759that Congress understood the term “illegal activity” to mean criminal activity,1as opposed to other forms of “illegal” activity, such as torts, breachesof contracts, or noncriminal regulatory violations. We need not define theouter limits of the term in this case, however, because there is no seriousdispute that the conduct alleged here—knowingly attempting to bringan undocumented alien into the United States—is “illegal activity” under anyreasonable construction. See sections 212(a)(6)(E)(i), 237(a)(1)(E)(i), 274(a)of the Act, 8 U.S.C. §§ 1182(a)(6)(E)(i), 1227(a)(1)(E)(i), 1324(a) (2006). The Immigration Judge appeared to acknowledge that attempting to bringan undocumented alien into the United States was “illegal activity,” but henevertheless concluded that section 101(a)(13)(C)(iii) did not apply to therespondent because his illegal activity did not occur after he had “departed theUnited States,” but rather as he “crossed the border” back into it. In otherwords, the Immigration Judge read section 101(a)(13)(C)(iii) as applying onlyto illegal activity engaged in abroad or on the high seas, but not to activitycommitted during the inspection process at a United States port of entry.2We disagree with that interpretation. There is no dispute that illegal activity committed by a returning lawfulpermanent resident after his lawful reentry into the United States would nottrigger application of section 101(a)(13)(C)(iii) because in such a case theoffending conduct would have occurred while the lawful permanent residentwas “in and admitted” to the United States within the meaning of section237(a) of the Act, thereby making him subject to the grounds of deportability.Matter of Alyazji, 25 I&N Dec. 397, 406 (BIA 2011). But the same cannot1 Section 101(a)(13)(C)(iii) was enacted pursuant to section 301(a) of the IllegalImmigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L.No. 104-208, 110 Stat. 3009-546, 3009-575, but its language is derived verbatim from thetext of an earlier House bill. H.R. 2202, 104th Cong. § 301(a) (1996). The report of theHouse Judiciary Committee issued in conjunction with H.R. 2202 reflects that theamendment to section 101(a)(13) was intended to “preserve[] a portion of the Fleuti doctrineby stating that a returning lawful permanent resident shall not be regarded as seekingadmission unless the alien . . . has engaged in criminal activity after having left the U.S.”H.R. Rep. No. 104-469, pt. 1, at 225 (1996) (emphasis added) (footnote omitted); see alsoRosenberg v. Fleuti, 374 U.S. 449 (1963).2 In so concluding, the Immigration Judge found that the notice to appear had been“improvidently issued.” On appeal, the DHS contends that the phrase “improvidentlyissued” applies exclusively to notices to appear that are either cancelled by the Governmentbefore jurisdiction vests with the Immigration Judge or dismissed on the Government’smotion thereafter. See 8 C.F.R. §§ 239.2(a)(6), 1239.2(c) (2012). While the DHS raisesa valid point, it is nevertheless evident that the Immigration Judge employed the phrase“improvidently issued” to convey nothing more than his own legal judgment that the chargeset forth in the notice to appear was incorrect. 847
  • 4. Cite as 25 I&N Dec. 845 (BIA 2012) Interim Decision #3759be said of a returning lawful permanent resident who engages in illegal activitywhile undergoing inspection at a port of entry. When a lawful permanentresident voluntarily leaves the United States, he remains outside this countryfor immigration purposes until he completes the inspection process uponreturn.3 An alien does not meaningfully “enter” the United States simplyby setting foot in a port of entry. See Matter of Patel, 20 I&N Dec. 368 (BIA1991).4 Furthermore, although the illegal activity alleged here—aliensmuggling—may have been discovered at a port of entry, that does not meanit began there. On the contrary, a single incident of alien smuggling mayinvolve a course of illegal conduct “engaged in” on both sides of the border. Thus, in our view the most natural reading of section 101(a)(13)(C)(iii)is that it covers any alien who engages in illegal activity after departing fromthe United States but before reentering after inspection. Accordingly,a returning lawful permanent resident who is shown by clear and convincingevidence to have engaged in illegal activity at the port of entry (for exampleby attempting to bring an undocumented alien into the United States) is in thesame position vis-à-vis section 101(a)(13)(C)(iii) as a lawful permanentresident who engaged in illegal activity on foreign soil or the high seas. Bothare subject to charges of inadmissibility upon return. III. CONCLUSION In conclusion, if the DHS adduces clear and convincing evidence that therespondent was knowingly attempting to bring an undocumented alien into theUnited States in violation of law at the San Ysidro port of entry on July 31,2005, it will thereby have established that the respondent is an applicant foradmission despite his lawful permanent resident status, in which case a chargeof inadmissibility would be appropriate. Because the Immigration Judgeincorrectly determined that the respondent could not be treated as an applicantfor admission by virtue of conduct committed at the port of entry, he did notdecide whether the evidence was sufficient to establish that the respondent did,in fact, engage in “illegal activity.” The record will be remanded for furtherproceedings with respect to that question and for the entry of a new decision.3 A lawful permanent resident who departs the United States but evades inspection uponreturn is treated as an applicant for admission pursuant to section 101(a)(13)(C)(vi) of theAct, without regard to his commission of other “illegal activity.”4 If a lawful permanent resident is permitted to reenter the United States after inspectionby an immigration officer but is thereafter determined to have engaged in illegal activitybefore reentry, the alien may be subject to a charge of deportability under section237(a)(1)(A) of the Act for having been inadmissible at the time of a prior entry. 848
  • 5. Cite as 25 I&N Dec. 845 (BIA 2012) Interim Decision #3759 ORDER: The appeal of the Department of Homeland Security issustained, the decision of the Immigration Judge is vacated, and the removalproceedings are reinstated. FURTHER ORDER: The record is remanded to the Immigration Judgefor further proceedings consistent with the foregoing opinion and for the entryof a new decision. 849
  • 6. Comments for USCIS’ AAO Regulatory Update.Considering the changes that have taken place since the time of the following BIA PrecedentDecision from 1980, Matter of Ramirez-Sanchez; the question of the proper consideration of theexercise of prosecutorial discretion by the various players is warranted.The first prong of the eight-prong holding in Matter of Ramirez-Sanchez, bars the IJ and the BIAfrom revisiting the decision to institute Deportation (now Removal) Proceedings. At the time ofthat decision, the BIA was a semi-autonomous arm of the Department of Justice that providedappellate review of certain administrative immigration decisions. INS still contained theImmigration Court and Immigration Judges and District Directors. The BIA heard all appealsfrom IJ Decisions and certain appeals from District Directors. The Regional Commissioners, theCommissioner, and the Associate Commissioner, Examinations also heard appeals from DistrictDirectors (and later, Service Center Directors). The Executive Office of Immigration Review(EOIR) was created in 1983, to gather the Immigration Courts and BIA into one distinct DOJAgency. Around the same time INS, through the Associate Commissioner, Examinations formedan Administrative Appeals Unit (AAU) to hear certain appeals from the District Directors (andlater, Service Center Directors). AAU later was renamed as the Administrative Appeals Office(AAO) in 1994.While there were some reorganizations and shifted authorities earlier, they were all within theDepartment of Justice (DOJ). In 2002, Congress passed the Homeland Security Act (HSA 2002)in response to the terrorist attacks of September 11, 2001. The Department of Homeland Security(DHS) was created. INS and many other agencies were combined and reorganized. DHS cameinto existence on March 1, 2003. INS ceased to exist and three new immigration agencies wereestablished within DHS. EOIR remained in DOJ. AAO moved into DHS along with the rest ofINS and landed in USCIS, the “benefits determination” agency.ICE and CBP are the “law enforcement” immigration agencies. USCIS, CBP and ICE can allissue a Notice to Appear (NTA) in order to place an alien in Removal Proceedings.The oddball situation of the existence of particularized but broad appellate authority is onlypresent in USCIS. The primary deciding officials can have their initial or primary decisionschallenged to, reconsidered and/or reopened by, or reviewed on certification to the AAO. Onetype of ICE decision can be appealed to AAO, bond breaches. ICE decides its own initialSEVP/SEVIS school designation, withdrawals and appeals on those decisions, itself. One othertype of decision can be appealed to FDNS within USCIS (S non-immigrant statusdeterminations).AAO is in a unique position as its reviews of certain denials or revocations, and/or appeals ormotions or even certifications of them, may be dispositive of whether or not an NTA can beissued. In such a situation, this one appellate body may be in a position to order the issuance ofan NTA, block issuance of an NTA, make a recommendation on the issuance an NTA, or washtheir hands of expressing any opinion on that consideration altogether. This is a Policy Decisionthat USCIS should address in its AAO regulatory review.Comments on AAO Regulation Update from Joseph P. Whalen (June 30, 2011) Page 1
  • 7. Interim Decision 2820Volume 17 (Page 503) Cite as: 17 I&N Dec. 503 (BIA 1980) United States Department of Justice Board of Immigration Appeals MATTER OF RAMIREZ-SANCHEZ In Deportation Proceedings A-23007472 Decided by Board August 25, 1980 (1) The decision to institute deportation proceedings involves the exercise of prosecutorial discretion and is one which neither the immigration judge nor this Board reviews. (2) Once deportation proceedings are commenced, the immigration judge must find the respondent deportable if the evidence sustains the charge. (3) Where the name on Service records is identical to the respondents name, in the absence of a denial by the respondent that those documents relate to him, we may infer that those records do pertain to him. (4) Counsels comments in support of a motion to suppress are not evidence. (5) Where Forms I-274 (Request for Return to Mexico) advised the respondent of his right to counsel and to a deportation hearing, there was substantial compliance with 8 C.F.R. 287.3 despite the failure of the record to indicate that the respondent was advised that any statement he made could be used against him in a subsequent proceeding. (6) Where there was substantial compliance with 8 C.F.R. 287.3, in the absence of any claim of any right to remain in the United States, there was no prejudice to the respondent from the admission into evidence from Service files of Forms I-274 reflecting that the respondent had twice previously requested and received voluntary departure. (7) Where copies of Forms I-274 offered into evidence were properly certified by the District Director pursuant to 8 C.F.R. 103.7(d)(2) and 287.6, and the respondent did not challenge the authenticity or accuracy of those documents, the immigration judges refusal to require the Service to produce for cross- examination the agents who completed the forms was proper. (8) The facts that the respondent twice requested and accepted voluntary departure andComments on AAO Regulation Update from Joseph P. Whalen (June 30, 2011) Page 2
  • 8. that, even with the assistance of counsel, he has not alleged any right to remain in the United States constitute persuasive evidence of alienage.CHARGE:Order: Act of 1952--Sec. 241(a)(2) [8 U.S.C. 1251(a)(2) ]--Entry without inspectionON BEHALF OF RESPONDENT:Kenneth A. Leshen, Esquire5228 Whittier BoulevardLos Angeles, California 90022BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board MembersIn a decision dated November 17, 1978, an immigration judge found the respondent deportableunder section 241(a)(2) of the Immigration and Nationality Act, 8 U.S.C. 1251(a)(2), for havingentered the United States without inspection. The immigration judge denied voluntary departureand ordered the respondent deported. The respondent has appealed. The appeal will bedismissed. *****The respondent is a married male approximately 23 years of age, allegedly a native and citizen ofMexico. A written argument in support of a motion to suppress contained in the record reflectsthat the respondent was arrested by Service officers on May 17, 1978, at the Sbicca Shoe Factoryin South El Monte, California.At the hearing, the respondent testified that his name is Mario Ramirez-Sanchez. His counselindicated that the respondent is the person named in the Order to Show Cause. The respondentthen invoked his rights against self-incrimination under the Fifth Amendment and refused toanswer further questions regarding deportability.To establish deportability, the Service introduced two sets of documents from Service File No.A23 007 472 pertaining to one Mario Ramirez-Sanchez. Each set of documents included FormsI-213 (Record of Deportable Alien), I-274 (Request for Return to Mexico), and WR-424. Thesesets of documents which were prepared on March 3, 1977, and September 9, 1977, respectively,indicate, inter alia, that Mario Ramirez-Sanchez twice entered the United States withoutinspection by paying a smuggler, and that in both instances he requested and was allowedvoluntarily to return to Mexico. Both Forms I-213 show Sbicca, El Monte, California (therespondents most recent employer) as the last or current employer. The respondent refused toidentify the signatures on the Forms I-274, but did not deny that he signed those documents. Theimmigration judge found that these documents established the respondents deportability byclear, convincing, and unequivocal evidence.On appeal, the respondent contends that the Order to Show Cause was facially insufficient torequire him to answer it, that the documentary evidence introduced at the hearing should haveComments on AAO Regulation Update from Joseph P. Whalen (June 30, 2011) Page 3
  • 9. been suppressed or at least that he should have been granted a separate hearing on his motion tosuppress during which he could have testified without his testimony being considered againsthim on the issue of deportability, and that he was denied the right to cross- examine the agentswho prepared the documents admitted into evidence against him. 1/ His contentions werepreserved for appeal by appropriate objections below.The respondents challenge to the Order to Show Cause is in essence a contention thatdeportation proceedings were improperly instituted. Every proceeding to determine thedeportability of an alien in the United States is commenced by the issuance of an Order to ShowCause. 8 C.F.R. 242.1. The decision to institute deportation proceedings involves the exercise ofprosecutorial discretion and is one which neither the immigration judge nor this Board reviews.Matter of Marin, 16 I & N Dec. 581 (BIA 1978); Matter of Geronimo, 13 I & N Dec. 680 (BIA1971). Once deportation proceedings are commenced, the immigration judge must orderdeportation if the evidence supports the charge. Guan Chow Tok v. INS, 538 F.2d 36 (2Cir.1976). Thus, the question is whether the evidence submitted established deportability and notwhether the Order to Show Cause should have been issued.To be admissible in deportation proceedings, evidence must be relevant and probative and its usemust not be fundamentally unfair. Hoonsilapa v. INS, supra; Marlowe v. INS, 457 F.2d 1314 (9Cir.1972); Matter of Toro, Interim Decision 2784 (BIA 1980). The use of admissions obtainedfrom a respondent involuntarily to establish deportability is fundamentally unfair. Matter ofGarcia, Interim Decision 2778 (BIA 1980). An objection to the admissibility of a statement onthe ground that it was involuntarily obt ained must be supported by specific and detailedstatements based on personal knowledge or other evidence, and a prima facie case must beshown before the Service is required to justify the manner in which the statement was obtained.Matter of Garcia, supra; cf. Matter of Rojas-Flores, 15 I & N Dec. 722 (BIA 1976); Matter ofWong, 13 I & N Dec. 820 (BIA 1971); Matter of Tang, 13 I & N Dec. 691 (BIA 1971).The respondents motion to suppress the evidence offered by the Service was insufficient andproperly denied. There is no evidence that the prior statements of Mario Ramirez-Sanchez weremade involuntarily. The respondents offer of proof in support of his motion is a mixed legal andfactual declaration by counsel, not based on counsels personal knowledge and nevercorroborated personally by the respondent. The respondent stood mute at the hearing, refusing totestify on the issue of deportability on the ground that his answers might incriminate him. In abrief to the immigration judge, his counsel argued that if the respondent were allowed to testifywithout his testimony being considered against him, the respondent would testify that at thetimes the statements in question were taken, he was detained in the custody of Service agents, hewas nervous and fearful, and that the agents misrepresented if not suppressed his rights tocounsel and to a hearing.Counsels arguments are not evidence and even if they were, they would not constitute a primafacie showing that the statements were involuntarily given. The statement lacks factual detailsfrom which we could conclude that there may have been coercion or duress. There is noallegation of physical abuse, hours of interrogation, denial of food or drink, threats or promises,Comments on AAO Regulation Update from Joseph P. Whalen (June 30, 2011) Page 4
  • 10. or interference with any attempt by the respondent to exercise his rights. Compare Matter ofGarcia, supra.The record does not reflect that the respondent was advised that any statement that he madecould be used in a subsequent proceeding. However, we find substantial compliance with 8C.F.R. 287.3 in that both Forms I-274 advised the respondent, in both English and Spanish, ofhis right to consult a lawyer and his right to ask for a hearing to determine his right to remain inthe United States. Despite these warnings, the respondent acknowledged his alienage andrequested voluntary departure. As the respondent, now with assistance of counsel, has offered noevidence or even an allegation of any right to remain in the United States, we infer that noneexisted at the time of his requests for voluntary departure. Under these circumstances we find noprejudice to the respondent (Matter of Garcia-Flores, supra) and that use of the documentsdescribed above is fundamentally fair. 2/As the names on the documents from the Services files and the respondents name are identicaland the respondent has not denied that the documents pertain to him or that the informationcontained in those documents is true, they are clearly relevant and clearly probative of alienage.U.S. v. Rebon-Delgado, 467 F.2d 11 (9 Cir.1972); Matter of Leyva, 16 I & N Dec. 118 (BIA1977); Matter of Li, 15 I & N Dec. 514 (BIA 1975); Matter of Cheung, 13 I & N Dec. 794 (BIA1971). Further, aside from the verbal admissions made by the respondent, the facts that he twicerequested and accepted voluntary departure to Mexico and that, even with the assistance ofcounsel, he has not alleged any right to remain in the United States constitute persuasiveevidence of alienage. The respondent has offered no evidence to establish the time and mannerof his entry into the United States as required by section 291 of the Act.We find the evidence of deportability to be clear, convincing, and unequivocal. See Woodby v.INS, 385 U.S. 276 (1966). Accordingly, the appeal will be dismissed.ORDER: The appeal is dismissed. FOOTNOTES FOR INTERIM DECISION #28201/ The respondent devoted several pages of his brief on appeal to the question whether his apprehension by Serviceagents at his place of employment was legally sufficient. This issue was not raised before the immigration judge andthe facts of the arrest are not set forth in the record. Moreover, no evidence seized in connection with therespondents arrest was offered into evidence at the hearing. It is well established that an illegal arrest alone does notinvalidate subsequent deportation proceedings other wise legally sufficient. U.S. ex. rel. Bilokumsky v. Tod, 263U.S. 149 (1923); Medina-Sandoval v. INS, 524 F.2d 658 (9 Cir.1975). It is also settled that the respondents identityis not suppressible. See Smith v. INS, 585 F.2d 600 (3 Cir.1978); Hoonsilapa v. INS, 575 F.2d 735 (9 Cir.1978),Wong Chung Che v. INS, 565 F.2d 166 (1 Cir.1977); Katris v. INS, 562 F.2d 866 (2 Cir.1977); Guzman-Flores v.INS, 496 F.2d 1245 (7 Cir.1974).2/ The immigration judges refusal to require the Service to produce for cross-examination the agents who recordedthe respondents statements was not error. The copies of those documents which were admitted were properlycertified as official records of the Service by the District Director pursuant to 8 C.F.R. 287.6. A District Director isauthorized by 8 C.F.R. 103.7(d)(2) to certify copies of files, documents, and records in the custody of his office. Asthe respondent did not challenge the authenticity or accuracy of those documents, no further authentication wasrequired. Compare Matter of Exantus and Pierre, 16 I & N Dec. 382 (BIA 1977).Comments on AAO Regulation Update from Joseph P. Whalen (June 30, 2011) Page 5