In re Rivens
| Decision Date | 19 October 2011 |
| Docket Number | Interim Decision #3731 |
| Citation | 25 I&N Dec. 623 |
| Parties | Matter of Benno RIVENS, Respondent |
| Court | U.S. DOJ 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.
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.
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.
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), providesin 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) (); Matter of Kane, 15 I&N Dec. 258, 264 (BIA 1975); see also Landon v. Plasencia, 459 U.S. at 21, 35 (1982) (). 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,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.
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. §...
To continue reading
Request your trial