25 I. & N. Dec. 623
BIA2011Background
- Rivens is a returning lawful permanent resident (LPR) who is a native of Romania and citizen of Israel.
- He pled guilty in 1992 to offering a false instrument for filing under NY Penal Law § 175.30, receiving a 1-year conditional discharge.
- In 2000 he pled guilty to accessory after the fact in violation of 18 U.S.C. § 3, with 2 years' probation and restitution.
- On March 29, 2007, Rivens applied for admission to the United States as a returning LPR.
- DHS served a Notice to Appear on September 7, 2007 alleging inadmissibility under § 212(a)(2)(A)(i)(I) for a crime involving moral turpitude; the IJ found no CIMT and terminated proceedings.
- DHS appealed; Board remanded for further proceedings, sustaining the appeal in part and remanding for a new IJ decision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Who bears the burden of proof under 101(a)(13)(C)? | DHS bears clear and convincing burden to show applicant for admission. | Rivens bears burden to show not inadmissible. | DHS bears the burden; clear and convincing standard applies. |
| Is Rivens' accessory after the fact a crime involving moral turpitude (CIMT)? | Accessory after the fact to a base crime can be CIMT based on underlying offense. | The nexus to CIMT is not clear and must be analyzed via Silva-Trevino framework. | Remand to determine whether either conviction qualifies as CIMT under § 212(a)(2)(A)(i)(I). |
| Application of the Silva-Trevino framework to 18 U.S.C. § 1001 in CIMT analysis? | Silva-Trevino framework should guide categorization and, if necessary, evidence beyond record. | Not explicitly resolved by IJ; need full Silva-Trevino analysis on conviction. | Remand for proper Silva-Trevino analysis; the IJ did not adequately apply the framework. |
| Whether the record should be remanded for CIMT determination? | Yes, to determine if convictions involve CIMT under § 212(a)(2). | Remand is necessary to properly apply framework and underlying offenses. | Record remanded for further CIMT determination. |
| Is the default-judgment holding by IJ reviewable? | DHS was not properly denied; default judgment unsupported. | Not necessary to decide for resolution of CIMT issue. | The Board declines to sustain the default judgment aspect; not dispositive to CIMT remand. |
Key Cases Cited
- Matter of Huang, 19 I&N Dec. 749 (BIA 1988) (DHS bears burden to prove applicant for admission by clear and convincing evidence)
- Woodby v. INS, 385 U.S. 276 (U.S. 1966) (clear, unequivocal, and convincing evidence standard when ground for deportation)
- Matter of Kane, 15 I&N Dec. 258 (BIA 1975) (burden on Government in returning LPR cases)
- Landon v. Plasencia, 459 U.S. 21 (U.S. 1982) (discussion of readmission and burden in context of LPR status)
- Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008) (framework for evaluating CIMT—categorical, modified categorical, and beyond-conviction evidence)
- Matter of Batista-Hernandez, 21 I&N Dec. 955 (BIA 1997) (limited relation of accessory after the fact to underlying offenses; not controlling for CIMT in all contexts)
- Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir. 2007) (accessory after the fact not necessarily CIMT where underlying offense not CIMT)
- Mata-Guerrero v. Holder, 627 F.3d 256 (7th Cir. 2010) (circuit approach to Silva-Trevino considerations)
- Ghani v. Holder, 557 F.3d 836 (7th Cir. 2009) (statutory interpretation issues in CIMT context)