Matter of Jean: AG Overrules BIA to Limit Its Authority to Give Relief to Noncitizens Who Committed Violent Crimes

IMMIGRATION LAW & POLICY

Asylum, Refugee, and Other
Protected Statuses

MATTER OF JEAN: AG OVERRULES BIA TO LIMIT ITS AUTHORITY TO GIVE RELIEF TO NONCITIZENS WHO COMMITTED VIOLENT CRIMES
Immigrants' Rights Update, Vol. 16, No. 3, May 30, 2002

Attorney General John Ashcroft has reversed a ruling of the Board of Immigration Appeals in which the BIA had granted a waiver and adjustment of status to a refugee from Haiti. In overturning the decision, the attorney general found that because the respondent was convicted of a serious violent crime, she would have to demonstrate that denying her adjustment would cause "exceptional and extremely unusual hardship." The attorney general also denied her applications for asylum and withholding of removal and found that her appeal from the immigration judge's denial of relief under the Convention Against Torture (CAT) was untimely.

The respondent in this case, a Ms. Jean, was admitted to the United States as a refugee in November 1994. In August 1995, she pled guilty to one count of second-degree manslaughter in connection with the death of a 19-month-old child who was in her care. She was sentenced to from two to six years' incarceration.

After she completed this sentence, Jean applied for adjustment under section 209(a) of the Immigration and Nationality Act. The Immigration and Naturalization Service denied this application and then initiated removal proceedings against Jean. At her hearing, Jean requested adjustment and a waiver under INA section 209(c), and also requested asylum, withholding of removal, and relief under the CAT. The immigration judge ruled that her conviction constituted an "aggravated felony" and found that she was ineligible for any relief from removal. The IJ apparently analyzed the adjustment application under INA section 245 rather than the refugee adjustment provision of section 209, which does not require that the applicant show that he or she is of good moral character and for which nearly all grounds of inadmissibility may be waived. The IJ also did not explain why he denied deferral of removal under the CAT, for which the criminal conviction would have been irrelevant. Jean appealed to the BIA, which reversed and remanded the case, finding that the conviction did not constitute a "crime of violence" such as to constitute an "aggravated felony."

On remand, the IJ again denied adjustment, this time based on a weighing of the positive and negative equities in Jean's case. He denied asylum, again finding that the conviction constituted a "crime of violence" aggravated felony, but also finding that Jean failed to demonstrate an objectively reasonable fear of persecution. Jean and her husband had testified that the husband was assaulted and nearly killed in the early 1990s because of his work with the Fanmi Lavalas, a political party headed by Jean-Bertrand Aristide. Their home was also burned, and the father and two cousins of the husband were killed. The IJ found that because these attacks were targeted against the husband, Jean failed to establish that she would be targeted for persecution. The IJ also denied withholding of removal because Jean failed to demonstrate a risk that she would be persecuted if she were returned to Haiti. In a separate ruling issued several weeks later, the IJ also denied relief under the CAT, finding that Jean had not demonstrated that she would be in danger of attack if she were returned to Haiti.

On appeal, the BIA again reversed the IJ, finding that the conviction did not constitute a "crime of violence." The BIA also held that Jean had established eligibility for a waiver under INA section 209. Finding that the equities warranted granting a waiver, the BIA granted adjustment to lawful permanent resident status. It did not address the asylum, withholding, and CAT claims because the adjustment granted full relief. The attorney general then directed the BIA to refer the case to him for review under 8 CFR section 3.1(h)(1)(i). He then issued the decision described below, noting that "[t]his published decision is binding on the BIA and is intended to overrule any BIA decisions with which it is inconsistent."

In the decision, before turning to the merits, the attorney general found that Jean had failed to timely appeal the denial of her application for CAT relief. The IJ had denied all other relief on May 4, 2000, and his decision denying CAT relief was issued on May 25, 2000. Jean filed a notice of appeal on June 6 addressing the May 4 ruling and another notice on June 28 addressing the May 25 ruling. The INS argued that both notices of appeal were untimely because they were filed more than 30 days after the decisions they sought to review were issued. However, the attorney general found that the May 4 ruling was not a final disposition, since the CAT claim was not addressed until later. The 30-day window for filing the appeal did not begin to run until May 25, when the IJ ruled on the CAT claim. Therefore the June 6 notice of appeal was timely filed. However, since that notice did not address the CAT claim and the June 28 notice was untimely, the attorney general concluded that Jean failed to timely appeal the denial of CAT relief.

On the merits, the attorney general reversed the BIA's grant of a waiver under INA section 209(c). Ashcroft rebuked the BIA for giving "little or no significance" to the nature of the crime in this case, which involved the beating and shaking of a young child to death. The decision finds that the balance of equities "will nearly always require the denial of a request for discretionary relief from removal where an alien's criminal conduct is as serious as that of the respondent." Indeed, "It would not be a prudent exercise of the discretion afforded to me by [section 209(c)] to grant favorable adjustments of status to violent or dangerous individuals except in extraordinary circumstances, such as those involving national security or foreign policy considerations, or cases where the alien clearly demonstrates that the denial of status would result in exceptional and extremely unusual hardship"—and even such a showing "might still be insufficient."

With respect to the asylum claim, the attorney general questioned the BIA's conclusion that the second-degree manslaughter conviction was not a "crime of violence." Without resolving this issue, Ashcroft found that Jean "is manifestly unfit for a discretionary grant of relief" (emphasis in original). With respect to the withholding claim, the attorney general upheld the IJ's conclusion that Jean failed to establish a likelihood of persecution. The decision also finds that "[t]he political climate in Haiti has changed dramatically since the respondent left in 1994, and it is no longer likely that her life or freedom would be threatened there."

Concluding that Jean is not eligible for any relief, the attorney general reversed the decision of the BIA and remanded the case with instructions to dismiss the appeal.