In re Jean

• Citation: 23 I&N Dec. 373
• Decision Date: 02 May 2002
• Docket Number: File A25 452 154,Interim Decision Number 3472
• Parties: In re Melanie Beaucejour JEAN, Respondent<SMALL><SUP>1</SUP></SMALL>
• Court: U.S. DOJ Board of Immigration Appeals

23 I&N Dec. 373

In re Melanie Beaucejour JEAN, Respondent¹

Interim Decision Number 3472

File A25 452 154

Board of Immigration Appeals

Decided May 2, 2002

(1) The 30-day period set forth in 8 C.F.R. § 3.38(b) (2002) for filing an appeal to the Board of Immigration Appeals is mandatory and jurisdictional, and it begins to run upon the issuance of a final disposition in the case.

(2) The Board of Immigration Appeals' authority under 8 C.F.R. § 3.1(c) (2002) to certify cases to itself in its discretion is limited to exceptional circumstances, and is not meant to be used as a general cure for filing defects or to otherwise circumvent the regulations, where enforcing them might result in hardship.

(3) In evaluating the propriety of granting an otherwise inadmissible alien a discretionary waiver to permit adjustment of status from refugee to lawful permanent resident pursuant to section 209(c) of the Immigration and Nationality Act, 8 U.S.C. § 1159(c) (2000), any humanitarian, family unity preservation, or public interest considerations must be balanced against the seriousness of the criminal offense that rendered the alien inadmissible.

(4) Aliens who have committed violent or dangerous crimes will not be granted a discretionary waiver to permit adjustment of status from refugee to lawful permanent resident pursuant to section 209(c) of the Act except in extraordinary circumstances, such as those involving national security or foreign policy considerations, or cases in which an alien clearly demonstrates that the denial of status adjustment would result in exceptional and extremely unusual hardship. Depending on the gravity of the alien's underlying criminal offense, such a showing of exceptional and extremely unusual hardship might still be insufficient.

(5) Aliens who have committed violent or dangerous crimes will not be granted asylum, even if they are technically eligible for such relief, except in extraordinary circumstances, such as those involving national security or foreign policy considerations, or cases in which an alien clearly demonstrates that the denial of status adjustment would result in exceptional and extremely unusual hardship. Depending on the gravity of the alien's underlying criminal offense, such a showing of exceptional and extremely unusual hardship might still be insufficient.

IN REMOVAL PROCEEDINGS

By previous Order, I directed the Board of Immigration Appeals ("BIA" or "Board") to refer this case to me for review pursuant to 8 C.F.R § 3.1(h)(1)(i) (2002).² Overruling the decision of an immigration judge, a BIA panel declared that the respondent's conviction for second-degree manslaughter did not render her ineligible for asylum or withholding of removal, and that the likely hardship her family would endure if she were returned to Haiti merited adjusting her status from refugee to lawful permanent resident. For the reasons set forth below, I now reverse the BIA's decision and hold that the interests of the respondent's family and the general public would be ill-served by granting her lawful permanent residency in the United States. I further conclude that the respondent is not entitled to any alternative relief from removal.³

I.

Respondent Melanie Beaucejour Jean is a forty-five-year-old foreign national from Plaisance, Haiti. Accompanied by her husband and five children, she was conditionally admitted into the United States as a refugee in November 1994 pursuant to section 207 of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1157 (1994).⁴

In August 1995, the respondent pled guilty in the County Court for Monroe County, New York, to one count of second-degree manslaughter in connection with the March 30, 1995 death of nineteen-month-old R---- J----. According to the respondent's signed confession, R---- J---- had been left in her care that day by the boy's mother — who was also the sister-in-law of the respondent's husband — in an apartment the two families shared in Rochester, New York. Early in the afternoon, the young child fell off a couch in the apartment and began to cry. The respondent reacted by striking the toddler's buttocks two or three times with her open hand in an attempt to quiet him. When this effort proved unsuccessful, she picked the boy up by the armpits and shook him. She then hit him two or three times on the top of his head with her fist. Finally, she picked him up again and shook him until he lost consciousness. Upon observing that the child was no longer breathing and that his eyes, although open, had stopped blinking, the respondent placed him on a bed just off the living room. She neither called 911 nor sought any other emergency assistance. When her husband returned to the apartment with the child's mother approximately one hour later, the respondent told them that R---- J---- had passed out in their absence.

The medical examiner's report described bruises to R---- J----'s head, chest, and back; internal hemorrhages of the lungs, pancreas, and diaphragm; and acute subdural and spinal epidural hemorrhages. The report determined that R---- J---- died from bleeding and swelling inside his skull caused by blunt trauma, and that the death was a homicide.

During her plea colloquy with the Monroe County Court judge, the respondent maintained that she did not attempt to contact emergency personnel after shaking the child into an unconscious state because, in the interim, she was preoccupied with a long-distance telephone conversation and thought the boy was in bed sleeping. She added that phoning emergency officials would have been difficult inasmuch as she does not speak English well and thus may not have been understood.⁵ A month after the plea hearing, the court sentenced her to two-to-six years' incarceration.

Following the completion of her state sentence, the respondent requested an adjustment of her status from "refugee" to "lawful permanent resident" pursuant to INA § 209(a), 8 U.S.C. § 1159(a) (1994 & Supp. V 1999). The Immigration and Naturalization Service ("INS") denied this application in July 1999 and commenced formal removal proceedings against her as an inadmissible alien convicted of a crime of moral turpitude.⁶ See INA §§ 212(a)(2)(A)(i)(I),240(a), 8 U.S.C. §§ 1182(a)(2)(A)(i)(I), 1229a(a) (1994 & Supp. V 1999). Although the respondent did not contest the fact that she was inadmissible in light of her manslaughter conviction — indisputably, a crime of moral turpitude — she sought a waiver of inadmissibility under INA § 209(c), citing her fear of persecution upon return to Haiti as well as her desire to keep her family together in the United States. In addition, she requested asylum pursuant to INA § 208, 8 U.S.C. § 1158 (Supp. V 1999), and withholding or deferral of removal pursuant to both INA § 241(b)(3), 8 U.S.C. § 1231(b)(3) (Supp. V 1999), and Article 3 of the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment ("Convention Against Torture"), see 8 C.F.R. §§ 208.16-208.18 (2002) (regulations implementing Convention).

An immigration judge ruled that the respondent's second-degree manslaughter conviction constituted an "aggravated felony" within the meaning of the INA and, on this basis, declared her ineligible for all relief from removal.⁷ IJ Oral Decision (Aug. 18, 1999) at 1-2. The respondent appealed to the BIA, which reversed the immigration judge's decision. Relying on its opinion in Matter of Sweetser, Interim Decision 3390 (BIA 1999), the Board concluded that the respondent's criminal conviction did not amount to a "crime of violence" — the necessary predicate for classifying the offense as an "aggravated felony" under the facts of this case — "because there was no substantial risk that physical force would be used in the commission of the crime." BIA Decision (Dec. 16, 1999) at 2. The Board then remanded the case back to the immigration judge for the purpose of giving the respondent "an opportunity to apply for any relief from removal for which she may be eligible." Id.

On remand, the immigration judge conducted several evidentiary hearings and issued two decisions which, in combination, denied all relief requested by the respondent. Addressing the adjustment of status issue, the judge found that a determination regarding the propriety of such a discretionary grant of relief required a balancing of "the adverse factors evidencing [the respondent's] undesirability as a permanent resident [against] the social and humane considerations presented on her behalf." IJ Decision (May 4, 2000) at 3. After weighing these considerations, the judge concluded that there was no sound basis for a grant of lawful permanent residency to the respondent. Id. at 3-5.

The immigration judge next held that the respondent had no right to asylum. He noted that not only did the respondent fail to demonstrate an objectively reasonable fear of persecution in Haiti, but the nature of her criminal conviction rendered her ineligible for such relief. Id. at 5-10. On the latter point, the judge reasoned that, unlike the Colorado criminally negligent child abuse statute that the BIA examined in Sweetser, second-degree manslaughter in New York required an affirmative act on the part of the offender. Id. at 8-10. As a result, the offense satisfied the criteria for a "crime of violence," and thus qualified as an "aggravated felony" under the INA. Id.

The immigration judge's finding regarding the risk of persecution to the respondent also supported the rejection of her application for withholding of removal under INA § 241. Having determined that the respondent failed to demonstrate the "well-founded fear of persecution" necessary to qualify for asylum, the judge held that the respondent necessarily fell short in her effort to meet the far more demanding "clear probability of persecution" standard required to obtain relief under section 241. Id. at 10 (citing INS v. Stevic, 467 U.S. 407, 430 (1984)).

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