26 I. & N. Dec. 274
BIA2014Background
- Respondent (Mexican national) entered without inspection, later adjusted to lawful permanent resident; while in the U.S. he (an Army member) pled guilty in a 2000 general court-martial to false statements, forcible sodomy (Article 125, UCMJ), and indecent assault and received 18 months’ confinement.
- Immigration Judge found respondent removable under INA § 237(a)(2)(A)(iii) (aggravated felony after admission) and § 237(a)(2)(A)(ii) (two or more CIMTs), denied a standalone § 212(h) waiver, and ordered removal to Mexico.
- Respondent appealed, arguing: adjustment of status is not an “admission”; forcible sodomy is neither a crime of violence nor a CIMT; offenses arose from the same event; and he is eligible for a § 212(h) waiver.
- BIA reaffirmed Matter of Rosas that adjustment of status constitutes an “admission” for removability under § 237(a)(2)(A)(iii), to avoid a loophole where adjustees who commit aggravated felonies would not be removable.
- The BIA treated the MCM specification “by force and without consent” as the functional equivalent of an element (because it must be pled and proved beyond a reasonable doubt), held forcible sodomy is a crime of violence under 18 U.S.C. § 16, and concluded the aggregate 18‑month sentence satisfies the one‑year sentencing threshold for an aggravated felony.
- The BIA held respondent ineligible for a standalone § 212(h) waiver under its later precedent in Matter of Rivas, so the appeal was dismissed.
Issues
| Issue | Respondent's Argument | DHS's Argument | Held |
|---|---|---|---|
| Whether post‑entry adjustment to LPR status constitutes an “admission” for removability under INA § 237(a)(2)(A)(iii) | Adjustment is not an admission because respondent initially entered without inspection and §101(a)(13)(A) defines admission as lawful entry after inspection | Adjustment assimilates the alien to an admitted LPR; otherwise adjustees who commit aggravated felonies would escape removability | Adjustment is an "admission" for §237(a)(2)(A)(iii); Matter of Rosas reaffirmed and applied to avoid absurd loophole |
| Whether respondent’s sodomy conviction (UCMJ Article 125 with specification “by force and without consent”) is a crime of violence under 18 U.S.C. § 16 | Force is not an element of 10 U.S.C. § 925; MCM specifications are sentencing gradings, not elements | MCM specifications are required to be pled and proved beyond a reasonable doubt and function as elements for immigration purposes | The MCM specification is the functional equivalent of an element; forcible sodomy is a crime of violence under §16(a) and §16(b) |
| Whether the 18‑month aggregate sentence meets the aggravated felony ≥1 year sentencing requirement | Aggregate sentence should not be applied to the sodomy conviction individually | The general/aggregate sentence applies to each conviction under applicable precedent | Aggregate 18 months satisfies the one‑year threshold for an aggravated felony |
| Whether respondent is eligible for a standalone § 212(h) waiver of inadmissibility | Respondent relies on older entry doctrine (Matter of Sanchez) and Third Circuit law to claim eligibility | Under BIA precedent (Matter of Rivas) standalone § 212(h) waiver is unavailable to non‑arriving aliens charged under §237 unless tied to adjustment | Respondent is ineligible for a standalone § 212(h) waiver; Rivas controls |
Key Cases Cited
- Ocampo‑Duran v. Ashcroft, 254 F.3d 1133 (9th Cir.) (rejects a loophole letting adjustees avoid removal for aggravated felonies)
- Hanif v. Attorney General, 694 F.3d 479 (3d Cir.) (holds adjustees may not be "admitted" for §212(h) waiver analysis)
- Jean‑Louis v. Attorney General, 582 F.3d 462 (3d Cir.) (limits when grading factors count as elements under state law)
- Apprendi v. New Jersey, 530 U.S. 466 (U.S.) (statutory sentencing factors that increase penalty must be treated like elements)
- Leocal v. Ashcroft, 543 U.S. 1 (U.S.) (guidance on categorical approach and crimes of violence analysis)
- Noyd v. Bond, 395 U.S. 683 (U.S.) (Military Rules/MCM have force unless inconsistent with statute)
- Descamps v. United States, 133 S. Ct. 2276 (U.S.) (analysis on divisibility in categorical approach)