V-X
26 I. & N. Dec. 147
BIA2013Background
- Respondent (Albanian national) entered U.S. on parole in 2003 and was granted derivative asylum in 2004.
- In 2007 respondent pled guilty in Michigan to delivery/conspiracy to deliver marijuana and received a "youthful trainee" disposition (deferred adjudication/probation); in 2008 he was convicted of second-degree home invasion.
- DHS charged respondent as inadmissible under INA §212(a)(2) (drug offenses, moral turpitude, controlled-substance trafficking) and sought termination of his asylum status under INA §208(c).
- Immigration Judge found respondent inadmissible, denied asylum, withholding, and CAT protection, and ordered removal, but did not rule on DHS’s termination-of-asylum request.
- BIA dismissed parts of the appeal, remanded for the IJ to decide termination of asylum first, and directed reconsideration of aggravated-felony/particular-serious-crime and relief issues in light of Moncrieffe v. Holder.
Issues
| Issue | Respondent's Argument | DHS/Immigration Judge Argument | Held |
|---|---|---|---|
| Whether the IJ should first decide termination of respondent’s asylum status before removability/relief issues | Termination not resolved; removal should not proceed while asylum stands | Termination may be adjudicated in conjunction with removal proceedings under 8 C.F.R. §1208.24(f) | Remand: IJ must make threshold determination on termination of asylum status before entry of executable removal order |
| Whether a grant of asylum constitutes an "admission" making respondent "in and admitted" for deportability under INA §237(a) | Grant of asylum should be treated as an "admission," so respondent is deportable (not inadmissible) and cannot be charged under §212 | Respondent entered on parole (not admitted); grant of asylum does not equal statutory "admission" | Held: Grant of asylum is not an "admission" under INA §101(a)(13)(A); respondent properly charged as inadmissible under §212(a) |
| Whether Michigan "youthful trainee" adjudication qualifies as an immigration "conviction" under INA §101(a)(48)(A) | Defendant: youthful trainee is not a conviction (deferred adjudication) | DHS: Michigan youthful-trainer disposition qualifies as a conviction for immigration purposes | Held: Follows Matter of Devison and Sixth Circuit precedent; Michigan youthful trainee is a "conviction" for immigration purposes |
| Whether the marijuana offense is an aggravated felony / "particularly serious crime" barring asylum/withholding | Respondent argued limited-scale marijuana offense may not be aggravated felony; eligibility for relief should be reconsidered | IJ found offense an aggravated felony and a particularly serious crime; denied asylum/withholding | Held: Remanded for reconsideration in light of Moncrieffe v. Holder; IJ to reassess aggravated-felony and particularly-serious-crime findings and impact on termination/removability |
| Convention Against Torture (CAT) protection claim | Respondent fears torture by Albanian Socialist Party members due to family political history | IJ found insufficient credible evidence of likelihood of torture or state acquiescence | Held: Denied—claim speculative and fails to show public-official instigation or acquiescence |
Key Cases Cited
- Moncrieffe v. Holder, 133 S. Ct. 1678 (2013) (Supreme Court decision affecting aggravated-felony analysis for certain small-scale marijuana distribution offenses)
- Uritsky v. Gonzales, 399 F.3d 728 (6th Cir. 2005) (interpreting Michigan "youthful trainee" procedures and supporting conclusion that they do not correspond to FJDA juvenile adjudications)