A Case Study for Immigration Court Backlogs

The BIA's restatement of the obvious

By Andrew R. Arthur on October 30, 2017

The Board of Immigration Appeals (BIA) issued a precedent decision earlier this month in Matter of Vella. While correctly decided, this decision is a case study in the convoluted nature of immigration law, and consequently the reason why it takes so long for the immigration courts to issue orders removing criminal aliens.

The respondent in that case is an Italian national who has been a lawful permanent resident of the United States since his admission in that status in 1967. He was convicted previously in 2007 for "conspiracy to operate an illegal gambling business in violation of 18 U.S.C. §§ 371 and 1955 (2006)."

During that previous proceeding, respondent conceded that he was removable from the United States because he had been convicted of an "aggravated felony" as that term is defined in sections 101(a)(43)(J) and (U) of the INA. Notwithstanding the fact that he was already a lawful permanent resident and that he was removable as an alien convicted of an "aggravated felony", he applied for "adjustment of status" under section 245(a) of the INA as relief from removal.

That provision states, in pertinent part:

  1. The status of an alien who was inspected and admitted or paroled into the United States ... may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed.

The term "aggravated felony" was added to section 101(a)(43) of the INA and designated as a ground of deportability by section 7342 of the Anti-Drug Abuse Act of 1988. The term was subsequently amended by section 501 of the Immigration Act of 1990 (IMMACT 90), and again by section 222 of the Immigration and Nationality Technical Corrections Act of 1994, and again by section 440(e) of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), and again by section 320 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). The ground of deportability was redesignated by section 305(a)(2) of IIRIRA. The purpose of these amendments was to expand the scope of removability of criminal aliens, and to limit the relief available to those aliens.

Notwithstanding Congress's intent, aliens like Vella who have been convicted of certain aggravated felonies can avoid removal by readjusting their status under section 245(a) of the INA, even if they are already lawful permanent residents. Specifically, under Matter of Rainsford, if an alien is removable based upon a ground of deportability (set forth in section 237 of the INA) for which there is no corresponding ground of inadmissibility (under section 212 of the INA), the alien can readjust his status, and remain in the United States notwithstanding the prior ground of deportability. Which Vella did, in 2009.

Not satisfied to have avoided removal based on an aggravated felony conviction once, however, respondent reoffended. Specifically, in February 2015 he was convicted of conspiracy to commit extortion in violation of 18 U.S.C. § 1951(a) (2012), commonly known as the "Hobbs Act". That provision states:

Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined under this title or imprisoned not more than twenty years, or both.

The immigration judge found that, based on this conviction, respondent was removable under sections 101(a)(43)(G) (theft or burglary offense for which the term of imprisonment was at least one year) and (U) (attempt or conspiracy to commit an aggravated felony) of the INA, a finding that Vella did not contest. He did, however, apply for waiver under section 212(h) of the INA. That section provides a waiver of certain grounds of inadmissibility for:

[A]n immigrant who is the spouse, parent, son, or daughter of a citizen of the United States or an alien lawfully admitted for permanent residence if it is established to the satisfaction of the Attorney General that the alien's denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien.

Among those grounds of inadmissibility is a conviction for a "crime involving moral turpitude [such as theft] or an attempt or conspiracy to commit such a crime" under section 212(a)(2)(A)(i)(I) of the INA. There are, however, a number of exceptions to a waiver under section 212(h) of the INA, including that:

No waiver shall be granted under this subsection in the case of an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence if either since the date of such admission the alien has been convicted of an aggravated felony or the alien has not lawfully resided continuously in the United States for a period of not less than 7 years immediately preceding the date of initiation of proceedings to remove the alien from the United States. [Emphasis added.]

Vella admitted that he had been "inspected, admitted, and physically entered the country as a lawful permanent resident after consular processing abroad in 1967." He also admitted that "his 2007 and 2015 offenses are aggravated felonies." Vella argued, however, that this bar in section 212(h) of the INA did not apply to him because the term "previously" as used therein "refers only to the most recent time he obtained lawful permanent resident status, which was in 2009 when he was granted adjustment of status," and that he was not "admitted" on that occasion.

The Board of Immigration Appeals (BIA) did not accept his interpretation, however. Instead, it relied on a Second Circuit decision in which that court considered an application for waiver under section 212(h) of the INA made by an alien who had been ordered deported and who had reentered illegally using his "defunct" green card. As the circuit court held:

Congress's use of the present perfect tense [in section 212(h)] — "has ... been admitted" — is significant here. ... Use of this tense evinces Congress's intent to include any previous admission for lawful permanent residence within the ambit of

Section 212(h), including admission in the indefinite past. ... As explained, the present perfect tense can refer either to a time in the indefinite past or a past action that has continuing relevance—that "comes up to and touches the present." Use of "previously" in Section 212(h) therefore clarifies that the statute does not apply only to aliens who were and still are admitted as [lawful permanent residents], but also to those who were at some earlier time admitted as [lawful permanent residents].

Applying this decision to Vella's case, the BIA concluded that respondent's 2009 adjustment of status "does not preclude a finding that he is ineligible for a waiver under" section 212(h) of the INA.

Had the BIA accepted Vella's argument, he putatively could have continued to commit the same aggravated felony in the United States and sought waivers under section 212(h) of the INA indefinitely, notwithstanding Congress's clear direction that aliens convicted of such serious offenses should be removed, subject only to limited avenues of relief. The fact that it took 10 years from his first conviction for an offense that Congress singled out for harsh treatment for Vella to be ordered removed is contrary to the spirit of the cited legislation and this commonsense principle.

The current adjustment of status provision was intended by Congress "to obviate the need for departure and reentry for aliens temporarily in the United States" to obtain permanent resident status. That it has become a form of relief for aliens who are already lawfully admitted for permanent residence is more a factor of the accretion of bad precedent than a volitional act by Congress to grant relief to criminal aliens. This is especially true in the case of aliens removable because they have been convicted of "aggravated felonies", crimes that Congress has designated as especially serious.

The fact that Matter of Rainford can be applied to aggravated felony convictions appears to have resulted from oversights in the legislation defining and amending the term "aggravated felony" and the consequences therefor cited above, not an active determination by Congress to render certain aliens who have been convicted of aggravated felonies eligible for relief. There is no "aggravated felony" ground for inadmissibility, but this is likely because of the fact that at the time Congress initially created a ground of deportability for aliens convicted of "aggravated felonies", as then defined, that ground of deportability applied to aliens who had entered the United States illegally as well as to those who had entered legally. It was only as a result of section 301 of IIRIRA that aliens entering illegally were subject to inadmissibility, as opposed to "deportability" or "removability", and therefore unaffected by the grounds of removability for aliens convicted of aggravated felonies.

The attorney general should use his certification authority to assess whether it is appropriate to apply adjustment of status as a de facto waiver for criminal convictions, as the BIA did in Matter of Rainford, and he should do so in the case of aliens who have been convicted of aggravated felonies. Congress has expressly limited the relief that is available to such aliens in other contexts. For example, under section 240A(a)(3) of the INA, an alien who has been "convicted of any aggravated felony" is ineligible for cancellation of removal for certain permanent residents. And, under sections 208(a)(2)(A)(ii) and (B)(i) of the INA, an alien convicted of an aggravated felony is ineligible for asylum. The availability of adjustment of status under section 245(a) of the INA as a waiver for those already admitted as lawful permanent residents is a judicially crafted form of relief, and given this fact, it could be undone by precedent.

In any event, the BIA logically applied the plain language of the INA in Matter of Vella in denying a waiver under section 212(h) of the INA to an alien convicted of an aggravated felony who had already sought recourse to adjustment of status as a means of defeating his removal on other aggravated felony grounds.

This case is symbolic of the reasons why the immigration court is clogged with cases, and exemplifies the difficulties facing ICE in removing aliens convicted of serious crimes. Twice that agency had to seek the removal of the respondent, and twice the immigration court had to deal with Vella's criminality. Had the BIA not ruled as it did, it likely would not have been the last time that ICE had to engage in this exercise, or that the court had to utilize docket space to deal with Mr. Vella.