BIA Upholds Authority Of Immigration Judges To Grant Waivers For Asylees Seeking To Adjust To LPR Status

IMMIGRATION LAW & POLICY

Removal Procedures and Defenses

BIA upholds authority of immigration judges to grant waivers for asylees seeking to adjust to LPR status
Immigrants' Rights Update, Vol. 18, No. 5, August 9, 2004

The Board of Immigration Appeals has ruled that immigration judges have exclusive jurisdiction to adjudicate applications for adjustment of status filed by asylees in removal proceedings and for waivers of admissibility under sections 209(b) and (c) of the Immigration and Nationality Act. The BIA also concluded that an IJ is not required to terminate asylum status pursuant to INA section 208(c)(2) for an asylee who has been convicted of an aggravated felony where the asylee qualifies for and merits adjustment of status and a waiver of inadmissibility. The BIA issued its precedent decision on appeal from an IJ decision granting adjustment and a waiver to a Nigerian asylee.

The respondent in this case, Ms. K-A-, was admitted to the U.S. as a nonimmigrant visitor in 1992 and was granted asylum in 1995. She is the mother of two U.S. citizen children, one of whom suffers from cerebral palsy. In 2001, she was convicted of second-degree criminal possession of a forged instrument and sentenced to at least one year in prison. In 2003, the Dept. of Homeland Security initiated removal proceedings against the respondent, charging her with being removable for having been convicted for an aggravated felony and for having committed a crime of moral turpitude within five years of admission, as the offense was committed in 1997. The DHS also issued a notice of intent to terminate the respondent’s asylum status, based on the aggravated felony conviction.

At the respondent’s removal hearing, the DHS formally requested that the IJ terminate her asylum status. The IJ declined to do so, finding that the respondent’s applications for adjustment of status and a waiver of inadmissibility constituted “relief from termination” as well as relief from removal. The IJ granted this relief, finding that a favorable exercise of discretion was warranted based on the hardship that the respondent’s removal to Nigeria would cause to her disabled citizen child. The DHS appealed, resulting in the BIA precedent decision.

The DHS raised two issues on appeal. First, it contended that it has original jurisdiction over asylee applications for adjustment and waivers under INA sec. 209 and that an IJ may consider such applications only when they are renewed in proceedings after an initial denial by the DHS. In making this argument, the DHS relied on the BIA’s decision in Matter of H-N-, 22 I. & N. Dec. 1039 (BIA 1999), in which the BIA held that an IJ could exercise jurisdiction over a refugee’s application for a sec. 209(c) waiver only after it was first denied by the Immigration and Naturalization Service (the predecessor to the DHS). The BIA rejected this argument, distinguishing H-N- because different regulations govern refugee and asylee adjustment. The BIA noted that the regulation for asylee adjustment—8 CFR sec. 1209.2(c)—expressly provides that adjustment applications for asylees who are in proceedings can be filed and considered only in proceedings.

The second argument raised by the DHS was that the IJ should have granted the motion to terminate asylum status before considering whether the respondent should be granted adjustment and a waiver. However, the BIA concluded that termination is not mandated by the statute, which provides that the attorney general “may” terminate the status. INA § 208(c)(2). The BIA concluded that the IJ acted properly in denying the motion to terminate and granting adjustment and a waiver in this case. The BIA noted that because these waivers are discretionary, and because only in exceptional circumstances should they be granted to individuals convicted of dangerous or violent crimes, asylees who have been convicted of an aggravated felony will be able to obtain this relief only in rare situations.

Matter of K-A-, 23 I. & N. Dec. 661 (BIA 2004).