IBRAHIM FARHAB BARE, Petitioner, v. WILLIAM P. BARR, Attorney General, Respondent.
No. 17-73269
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
September 16, 2020
Agency No. A073-436-746
FOR PUBLICATION
OPINION
On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted August 7, 2019 San Francisco, California
Filed September 16, 2020
Before: Diarmuid F. O‘Scannlain, Eugene E. Siler,* and Jacqueline H. Nguyen, Circuit Judges.
Opinion by Judge Siler
SUMMARY**
Immigration
Denying Ibrahim Bare‘s petition for review of a decision of the Board of Immigration Appeals, the panel held that: 1) the BIA did not err in concluding that Bare‘s conviction for being a felon in possession of a firearm or ammunition, in violation of
Bare, a native and citizen of Somalia, came to the United States as a stowaway, was placed in “asylum-only” proceedings for stowaways, and was granted asylum in 1997. Asylum-only proceedings are limited to determining eligibility for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT“). An IJ later granted the government‘s motion to reopen in order to terminate Bare‘s asylum grant based on his conviction. The IJ determined that he lacked jurisdiction to consider Bare‘s request for an adjustment of status, and denied withholding of removal and CAT relief. The BIA affirmed.
As a preliminary matter, the panel concluded that Bare exhausted his challenges related to the first factor of the tеst for whether a crime is particularly serious. The panel next concluded that the BIA did not abuse its discretion in concluding that Bare‘s conviction for being a felon in possession of a firearm was a particularly serious crime barring withholding of removal. First, the panel rejected Bare‘s contention that the agency erred by not explicitly considering the elements of the offense, concluding that the agency‘s analysis was sufficient under the circumstances. Second, the panel rejected Bare‘s contention that the crime is a “status offense” and is, therefore, categorically excluded from being particularly serious. The panel noted that it would be anomalous if a conviction for the offense where the sentence is less than five years’ imprisonment was categorically excluded from being a particularly serious crime, but where the sentence is five years’ imprisonment or more, is defined as per se particularly serious by statute. Third, the panel concluded that it was proper for the IJ to consider the circumstances in which Bare came into possession of the relevant firearms, the effect of his business on the community, and other acts going to his mental state.
Next, the panel concluded that the IJ lacked jurisdiction to consider Bare‘s request for adjustment of status because Bare was in “asylum-only” proceedings. Bare argued that he lost his status as a stowaway when granted asylum and, therefore, reopening his asylum-only proceedings was improper; instead, he should have been in removal proceedings under
The panel first concluded that Bare‘s grant of asylum did not terminate his stowaway status, explaining that the plain meaning of the statute and the statutory context make clear that a stowaway retains stowaway status when granted asylum. The panel next concluded that, because Bare retained his stowaway status, there was no bar to reopening his asylum-only proceeding to terminate asylum, and further explained that regulations allow asylum to be terminated by reopening a case, and the case to be reopened here was Bare‘s asylum-only proceeding.
The panel also rejected Bare‘s contention that, even in asylum-only proceedings, he should have been able to apply for adjustment. The panel explained that allowing the IJ to consider that request would contradict the limits on asylum-only proceedings, and is unnecessary because Bare has another avenue to seek adjustment. Specifically, the panel explained that Bare met all the requirements to apply for adjustment, provided that he also sought and received a waiver, but that the application should have been made to the United States Citizenship and Immigration Service, which retains the authority to consider his request.
COUNSEL
Kari E. Hong (argued), Boston College Law School, Newton, Massachusetts, for Petitioner.
Michael C. Heyse (argued), Acting Senior Litigation Counsel; Mary Jane Candaux, Assistant Director; Joseph H. Hunt, Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.
SILER, Circuit Judge:
Ibrahim Farhab Bare, a native and citizen of Somalia, petitions for review of a decision of the Board of Immigration Appeals (“BIA“) dismissing his appeal. Bare came to the United States as a stowaway in 1996, requested asylum, and was placed
Bare now petitions for review of the BIA‘s order affirming the IJ‘s findings and decision, arguing that the BIA and IJ erred in two conclusions: (1) that his firearm conviction constitutes a particularly serious crime; and (2) that the IJ lacked jurisdiction to consider his request for an adjustment of status. The government contends that Bare has not exhausted his particularly serious crime argument. However, we conclude that Bare has adequately exhausted his particularly serious crime argument but the BIA and IJ did not err in concluding that his firеarm conviction constitutes a particularly serious crime, thus making him ineligible for withholding of removal. The termination of Bare‘s grant of asylum by reopening his asylum-only proceeding was not error, and the IJ did not have jurisdiction to consider Bare‘s request for an adjustment of status because of the limited scope of such proceedings. Bare‘s request for an adjustment of status should have been made to the USCIS, not the IJ. Therefore, we deny review.
I.
A.
Bare entered the United States in 1996 at the age of seventeen as a stowaway aboard a ship. He requested asylum and was placed into “asylum-only” exclusion proceedings. An IJ granted Bare asylum in 1997. Over the next fifteen years, Bare lived as an asylee in the United States, but never applied for an adjustment of status to become a lawful permanent resident. During this time, Bare entered into a relationship with a woman, whom he considers his common-law wife, and they have two children together. His wife has another child from a previous relationship whom Bare identifies as his stepson. While an asylee, Bare had three felony convictions prior to his conviction at issue here: possession of burglary tools in 2000 and resisting arrest in both 2001 and 2002.
In 2009, Bare and his wife moved to Whippoorwill, Arizona, a small community deep in the Navajo Nation. Shortly thereafter, Bare began operating an unlicensed pawnshop out of his home, where he also sold alcohol and drugs. His pawnshop dealt
The incident leading to the revocation of Bare‘s asylum occurred at his house in 2012. One night, a neighbor upset about a pawn transaction came to Bare‘s house. Bare and his children were sleeping in the house, so his wife answered the door. An argument ensued which woke up Bare, who joined in. The situation escalаted when Bare pointed a pistol at the unarmed neighbor. As the neighbor left, Bare fired the pistol into the air. The police later recovered the pistol and five rounds of ammunition from Bare‘s house. As a result, Bare was charged with being a felon in possession of a firearm.
Federal agents went to Bare‘s home with an arrest warrant a month later, after he failed to appear in court. Inside the house agents found two rifles and hundreds of rounds of ammunition of various calibers.
Bare was convicted by a jury of two counts of being a felon in possession of a firearm in violation of
B.
As a result of his conviction, the Department of Homeland Security (“DHS“) filed a motion with the IJ to reopen Bare‘s asylum-only proceeding from 1997 to terminate his grant of asylum. The IJ granted the government‘s motion to reopen the proceeding. In the proceeding, Bare applied to the IJ for an adjustment of status, but the IJ concluded that he did not have the authority to consider it because Bare was in a reopened asylum-only proceeding and, in asylum-only proceedings, an IJ cannot consider requests for an adjustment of status. Bare then requested the IJ defer a decision on whether to terminate his asylum in order to allow him time to apply for an adjustment of status with the USCIS. The IJ terminated Bare‘s asylum status without ruling on, or mentioning, his pending continuance request. Next, the IJ denied Bare‘s request for withholding of removal, finding that his firearm conviction was a particularly serious crime which made him ineligible for withholding of removal. Finally, the IJ denied Bare‘s request for withholding and deferral of removal under the CAT. After the hearing, the IJ denied Bare‘s motion to reconsider his continuance request to allow him to apply to USCIS for an adjustment of status.
The BIA affirmed the IJ‘s decision, finding that (1) the IJ did not have jurisdiction over his adjustment of status request and (2) Bare‘s firearm conviction was a particularly serious crime, barring withholding of removal. Bare now seeks review of the BIA‘s order affirming the IJ‘s findings and decision.
We have jurisdiction pursuant to
A.
1.
As a preliminary matter, the government contends that we lack jurisdiction over Bare‘s specific argument that his firearm conviction is a status offense and cannot be a particularly serious crimе because he failed to exhaust the argument by adequately raising the issue before the BIA. We disagree.
Exhaustion requires a non-constitutional legal claim to the court on appeal to have first been raised in the administrative proceedings below, Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004), and to have been sufficient to put the BIA on notice of what was being challenged, Alvarado v. Holder, 759 F.3d 1121, 1128 (9th Cir. 2014). A petitioner must do more than make a “general challenge to the IJ‘s decision.” Zara v. Ashcroft, 383 F.3d 927, 930 (9th Cir. 2004). But this does not require the issue to have been raised in a precise form during the administrative proceeding. Vizcarra-Ayala v. Mukasey, 514 F.3d 870, 873 (9th Cir. 2008); see Diaz-Jimenez v. Sessions, 902 F.3d 955, 959 (9th Cir. 2018) (“We do not employ the exhaustion doctrine in a formalistic manner.” (quoting Ren v. Holder, 648 F.3d 1079, 1083 (9th Cir. 2011))). Rather, the petitioner may raise a general argument in the administrative proceeding and then raise a more specific legal issue on appeal. See Moreno-Morante v. Gonzales, 490 F.3d 1172, 1173 n.1 (9th Cir. 2007). What matters is that the BIA was sufficiently on notice so that it “had an opportunity to pass on this issue.” Zhang v. Ashcroft, 388 F.3d 713, 721 (9th Cir. 2004) (per curiam).
In his brief to the BIA, Bare argued that “the IJ failed to consider the appropriate factors and relied on improper evidence in making the particular[ly] serious determination.” The government contends that this was insufficient to put the BIA on notice that he was challenging the IJ‘s failure to address the first factor of the test used to determine if a crime is particularly serious. Bare‘s contention in his brief to the BIA was that the IJ “failed to consider the appropriate factors.” There are only three factors. See Flores-Vega v. Barr, 932 F.3d 878, 884 (9th Cir. 2019) (noting that, although there were four factors, the fourth factor no longer requires an independent inquiry). Bare‘s brief to the BIA also argued that the IJ erred when considering the third factor by improperly weighing evidence, so that cannot be the factor that Bare claims the IJ “failed to consider.” The IJ in his written opinion explicitly noted the second factor, but did not explicitly consider the first factor. Thus, when considered in the context provided by the IJ‘s written decision, Bare‘s brief gave the BIA sufficient notice that he was challenging the IJ‘s failure to consider the first factor.
The government also contends that Bare‘s argument was too general to put the BIA on notice of his specific argument that being a felon in possession of a firearm is a “status offense” and thus cannot be a particularly serious crime because it necessarily fails the first factor.
We have previously found exhaustion in cases where the argument to the BIA was more general than the argument made to the BIA here. See, e.g., Moreno-Morante, 490 F.3d at 1173 n.1 (finding a grandfather‘s general claim before the BIA that he was the de facto parent of his two grandchildren constituted administrative exhaustion of his later specific statutory argument that his grandchildren came within the definition of “child” in the applicable statute); Zhang, 388 F.3d at 721 (finding administrative exhaustion where the petitioner‘s brief to the BIA merely stated that he was seeking reversal of IJ‘s denial of relief under the CAT, but did not include any legal arguments or provide a specific basis on which he was challenging the IJ‘s CAT determination). Therefore, the BIA was sufficiently on notice and Bare exhausted his legal claims before the BIA, so we have jurisdiction.
2.
“Pursuant to
With several exceptions, an alien is entitled to withholding of removal where “the alien‘s life or freedom would be threatened in [the country of removal] because of the alien‘s rаce, religion, nationality, membership in a particular social group, or political opinion.”
In In re Frentescu, 18 I. & N. Dec. 244, 247 (B.I.A. 1982), the BIA developed a multi-factor test to determine on a case-by-case basis whether a crime is particularly serious. Subsequent cases have altered and refined the analysis. See In re N-A-M-, 24 I. & N. Dec. 336, 342 (B.I.A. 2007), overruled in part on other grounds by Blandino-Medina v. Holder, 712 F.3d 1338, 1347-48 (9th Cir. 2013). The factors to be considered are: (1) “the nature of the conviction,” (2) “the type of sentence imposed,” and (3) “the circumstances and underlying facts of the conviction.” Id. The nature of the conviction is examined by looking at the elements of the offense. Id. This factor serves a gatekeeping function: “If the elements of the offense do not pоtentially bring the crime into a category of particularly serious crimes, the individual facts and circumstances of the offense are of no consequence,” the analysis stops at the first factor, and the alien is not barred from withholding of removal. Id. If,
Here, the BIA affirmed the IJ‘s determination that Bare‘s conviction was a particularly serious crime, precluding his eligibility for withholding of removal. Bare challenges this determination on three grounds. First, he argues that the crime of being a felon in possession of a firearm is a “status offense” whose elements do not potentially bring it within the category of particularly serious crimes. Second, he argues that the IJ and the BIA erred by not considering the first Frentescu/N-A-M- factor. And third, he argues that, in analyzing the third factor, the IJ and BIA erred by considering impermissible facts and failing to give adequate weight to other, permissible facts.
i.
Bare argues that the IJ and BIA erred by skipping over the first Frentescu/N-A-M- factor and not explicitly conducting an analysis of it before moving on to the other factors. Because the BIA adopted and affirmed the IJ‘s reasoning, and also contributed its own reasoning to the analysis, we review both decisions. Zhi v. Holder, 751 F.3d 1088, 1091 (9th Cir. 2014). In their written decisions, the IJ and BIA both discussed the correct standard—the Frentescu/N-A-M- factors—for determining if a crime is particularly serious. In particular, the IJ emphasized the requirement that reviewing the elements of the offense occurs first, and only if the elements of the offense potentially bring the offense within the ambit of a particularly serious crime is the IJ to consider the other factors. The BIA found that the IJ “properly arrived” at the particularly serious crime determination and noted that the IJ had considered the nature of the conviction. Neither the IJ nor the BIA listed the elements of felon in possession of a firearm in their written decisions, neither explicitly discussed the elements of the crime, and neither explicitly stated that the crime is potentially particularly serious.
The IJ and BIA correctly noted that Bare had been convicted of being a felon in possession of a firearm. As an aggravatеd felony, his conviction is one of the types of crimes “most likely to be” particularly serious. Guerrero v. Whitaker, 908 F.3d 541, 545 (9th Cir. 2018) (quoting Alphonsus v. Holder, 705 F.3d 1031, 1043 (9th Cir. 2013)). Unlike some state crimes—where it frequently is not obvious on its face what the crime actually is, what the elements are, or what an analogous federal offense would be (if there even is one)—felon in possession of a firearm is a straightforward, well-known federal crime with simple elements. Cf. Hernandez-Vasquez v. Holder, 430 F. App‘x 448, 452-53 (6th Cir. 2011) (considering the wide variety of crimes that fall under Ohio‘s felony child endangerment statute to determine which of them the alien had been convicted of and what the elements of that variant of the crime were); N-A-M-, 24 I. & N. Dec. at 343 (examining the elements of Colorado‘s felony menacing statute). Although the IJ did not analyze the elements of felon in possession of a firearm in isolation, he referenced facts that went directly to each element in his analysis as supporting the conclusion that Bare‘s conviction constitutes a particularly serious crime: Bare “possessed a firearm,” which he obtained “as a result of his pawn shop operation,” he “had already been convicted of a felony,” and he knew he was not allowed to
Bare directs our attention to Luziga v. Attorney General, 937 F.3d 244, 253–54 (3d Cir. 2019), where the Third Circuit found that the IJ skipping over the first N-A-M- factor was error and remanded to the BIA to apply the first N-A-M- factor to determine whether the elements of the petitioner‘s conviction potentially fall within the ambit of a particularly serious crime. There, the IJ not only “skipp[ed] right over the preliminary consideration of elements,” but also “made no reference to the elements of [the petitioner‘s] offense.” Id. at 253-54. And further, while the BIA claimed to consider the elеments in its opinion, it “listed as ‘elements’ specific offense characteristics such as loss amount” which were not elements of the offense. Id. at 254. Here, however, the IJ and BIA did not erroneously claim that non-elements were elements and the IJ referenced facts going to all the elements of the crime and found that they pointed in favor of its being particularly serious. Therefore, we do not find an abuse of discretion under these circumstances.
ii.
Bare next contends that the crime of felon in possession of a firearm is a “status offense” not involving an element of violence, endangerment, recklessness, injury, or use of a weapon and is, therefore, categorically excluded from being a particularly serious crime because it necessarily fails the first Frentescu/N-A-M- factor. Our review is limited to whether it is an abuse of discretion for the BIA to conclude that being a felon in possession of a firearm can ever be a particularly serious crime where the sentence is less than five years’ imprisonment. See Arbid, 700 F.3d at 385.
The first Frentescu/N-A-M- factor requires only that the elements of the offense “potentially bring the offense within the ambit of a particularly serious crime.” N-A-M-, 24 I. & N. Dec. at 342 (emphasis added). This determination is made without regard to the individual facts or circumstances in the case, but only by reviewing the elements of the crime. Id. Thus, this factor‘s inquiry is whether—under any factual circumstances—the offense could be a particularly serious crime or whether it is so minor that it is categorically excluded from being particularly serious.
In considering the elements of an offense, the BIA is to “place the alien‘s conviction along a spectrum of seriousness.” Guerrero, 908 F.3d at 544. On one end of the spectrum, we have previously used a “minor traffic infraction” as an example of a crime that would per se not be a particularly
We have also previously recognized that the statute treating aggravated felonies which result in imprisonment for at least five years as per se particularly serious crimes suggests that aggravated felonies are “the types of crimes most likely to be [particularly serious crimes] even when the aggregate sentence is less than five years.” Guerrero, 908 F.3d at 545 (quoting Alphonsus v. Holder, 705 F.3d 1031, 1043 (9th Cir. 2013)). Because felon in possession of a firearm is an aggravated felony, see
iii.
Finally, Bare argues that, even if the first factor is met, the BIA erred by relying on improper evidence in reaching its conclusion that his conviction constitutes a particularly serious crime. He contends that the IJ and BIA erred by not considering facts relating to the crime of being a felon in possession, such as discussing the nature of his three prior felonies or his claim that he possessed firearms and ammunition for self-defense. He also contends that the IJ and BIA erred by considering facts which did not directly go to an element of the offense, such as the fact that he fired the weapon. According to Bare, the IJ and BIA should be limited to considering only what he did to be convicted of the offense.
The BIA may consider “all reliable information” in determining whether a crime constitutes a particularly serious crime, which is a wide-reaching inquiry and includes consideration of conviction records, sentencing information, and “other information outside the confines of a record of conviction.” N-A-M-, 24 I. & N. Dec. at 342; see also Anaya-Ortiz, 594 F.3d at 678. “[N]othing in the language of the ‘particularly serious crime’ provisions in the [Immigration and Nationality Act
Here, all the information that the BIA considered was introduced in Bare‘s criminal case during sentencing so, as sentencing information, falls within the information specifically allowed to be considered. See N-A-M-, 24 I. & N. Dec. at 342. But, Bare contends that, since the information does not go toward the elements of the crime, it should not be considered. Most of the evidence considered by the IJ went to the manner in which Bare possessed the firearms and ammunition, namely how he came into possession of the firearms and ammunition (through the operation of an unlicensed pawnshop that trafficked in firearms, drugs, and alcohol), how he possessed the firearm (by firing it inside a house to threaten a neighbor during a verbal altercation, which presented a safety risk to other individuals inside the house), and his mental state relating to possessing the firearm (that he knew he could not possess a firearm, so he hid it inside a bag of dog food). This information is within the realm of what the IJ and BIA could consider. See id. at 337, 343 (considering, in evaluating whether a conviction for felony menacing in Colorado was a particularly serious crime, both the act that constituted the felony menacing—threatening to kill someone after retrieving two knives—but also the circumstance in which the felony menacing occurred—after he was caught perfоrming a nonconsensual sexual act on a person who was asleep); see also Denis, 633 F.3d at 216 (finding that the BIA did not err in concluding that a conviction for tampering with evidence was a particularly serious crime by considering the tampering included “violently dismembering and concealing his victim“).
The IJ also considered the effect that Bare‘s pawn business had on the community and other instances of Bare‘s making threats or being violent—information contained in the government‘s sentencing memorandum. Bare testified before the IJ and denied the threats or acts of violence, but here he does not challenge the reliability of the sentencing memorandum. Rather, Bare contends that it is improper evidence because it does not relate to his felon in possession conviction. See Alaka v. Att‘y Gen., 456 F.3d 88, 109 (3d Cir. 2006) (“Dismissed charges ipso facto are not convictions, and thus are not taken into account in... the ‘particularly serious crime’ analysis.“), overruled on other grounds by Bastardo-Vale v. Att‘y Gen., 934 F.3d 255 (3d Cir. 2019); Yousefi v. INS, 260 F.3d 318, 329–30 (4th Cir. 2001) (per curiam) (“We can find no authority for the proposition that dismissed counts or crimes not relied upon by the Service may be considered in determining whether a specific crime is a particularly serious one.“). However, IJs may consider evidence about the alien which does not go to an elemеnt of the crime “as part of the separate determination of dangerousness.” Gomez-Sanchez v. Sessions, 892 F.3d 985, 993–94 (9th Cir. 2018). We allow this even though a separate dangerousness determination is no longer considered independently as a factor in the particularly serious crime analysis. Id. at 991. “[D]angerousness remains the ‘essential key’ to determining whether the individual‘s conviction was for a particularly serious crime.” Id. (quoting Alphonsus, 705 F.3d at 1041). In considering the seriousness of the crime, the IJ is “assessing whether the circumstances of the crime are so serious as to justify removal to a country where there is a significant risk of persecution.” Id. at 994. Therefore, it was proper for the IJ to consider the circumstances in which Bare came into possession of the firearms he was convicted of possessing, the effect of
community, and other acts which go to his mental state. Noting again that our review “is limited to ensuring that the agency relied on the ‘appropriate factors’ and ‘[]proper evidence’ to reach this conclusion,” Avendano-Hernandez, 800 F.3d at 1077 (alteration in original), and that we “cannot reweigh evidence to determine if the crime was indeed particularly serious,” Blandino-Medina, 712 F.3d at 1343, we cannot say that the evidence the BIA relied on to conclude that Bare‘s conviction is particulаrly serious was an abuse of its discretion.
Therefore, as the BIA did not abuse its discretion in concluding that Bare‘s conviction for being a felon in possession of a firearm constitutes a particularly serious crime, Bare is ineligible for withholding of removal.
B.
Bare contends that the IJ erred by refusing to consider his request for an adjustment of status. The IJ determined that, because Bare was in asylum-only proceedings, he did not have jurisdiction to consider a request for an adjustment of status; the BIA agreed with the IJ‘s conclusion. Bare argues that he lost his status as a stowaway when granted asylum and, therefore, reopening his asylum-only proceedings to terminate his grant of asylum was improper. Bare contends that as an asylee he should have instead been in INA § 240 removal proceedings,
1.
We begin by addressing Bare‘s eligibility to apply for an adjustment of status. All asylees meeting the statutory requirements may apply for an adjustment of status.
Neither the government‘s motion to reopen Bare‘s asylum-only case, nor the IJ‘s granting the motion, terminated his asylum. See
2.
Since Bare was eligible to apply for an adjustment of status, and the IJ refused to consider his application because of an IJ‘s limited jurisdiction in asylum-only proceedings, we must determine what avenue Bare could have used to apply for an adjustment of status. That is, could he have applied to the IJ in asylum-only proceedings, or was he limited to applying to an IJ in INA § 240 proceedings or to the USCIS? To answer this question requires us to determine whether the government was required to terminate his asylum in INA § 240 proceedings or whether doing so by reopening his asylum-only proceeding was permissible. Before we can do that, we must first resolve the issue of Bare‘s status: did he lose his status as a stowaway when granted asylum?
Bare argues that he lost his status as a stowaway when he was granted asylum. The government argues that, when Bare lost his asylee status, “[t]hat returned him to the stowaway status he possessed prior to obtaining asylum,” which suggests the government agrees with Bare‘s assertion that a grant of asylum terminates an alien‘s prior status. However, neither of these positions is consistent with the statutory text. Instead, the statute is clear that a grant of asylum is not a change in status—from a stowaway to an asylee—but confers on the stowaway аn additional status as an asylee. See
“When interpreting a statute, we are guided by the fundamental canons of statutory construction and begin with the statutory text.” United States v. Neal, 776 F.3d 645, 652 (9th Cir. 2015). The statute governing asylum,
This understanding of the import of a grant of asylum in
To determine what Congress intended by using “grant” in
In In re N-A-I-, 27 I. & N. Dec. 72 (B.I.A. 2017), the BIA considered whether aliens who had been granted asylum retain the status of an asylee when they аdjust their status to that of a lawful permanent resident. There, the respondent had adjusted his status to that of a lawful permanent resident and he argued to the BIA that he could not be removed because his asylum status had never been terminated—i.e., that his adjustment of status did not terminate his status as an asylee. Id. at 73. The BIA held that “an alien‘s adjustment from the status of an alien granted asylum to that of an alien lawfully admitted for permanent residence pursuant to [
The BIA‘s decision in N-A-I- was appealed to the Fifth Circuit. Ali v. Barr, 951 F.3d 275 (5th Cir. 2020). In Ali, the Fifth Circuit affirmed the BIA‘s determination that an alien loses the status of an asylee when adjusting his or her status. The court emphasized that, not only is the use of “adjust” important, but so is the use of the word “to,” which “indicates the alien‘s status is altered in a more fundamental
The Fourth Circuit has also considered this issue and reached the same conclusion. Mahmood v. Sessions, 849 F.3d 187 (4th Cir. 2017). It concluded that an adjustment of status in
Thus, the surrounding statutory context confirms our interpretation of “grant.” Congress‘s use of “adjust to” in
That a grant of asylum does not terminate an alien‘s status as a stowaway is also consistent with the larger statutory scheme. See Choin v. Mukasey, 537 F.3d 1116, 1120 (9th Cir. 2008) (considering the statutory scheme in interpreting the meaning of a term in the INA); Bona v. Gonzales, 425 F.3d 663, 670 (9th Cir. 2005) (same). Not all asylees are eligible to adjust their status. See
A stowaway is not admissible under
Not only is a stowaway retaining his or her status when granted asylum consistent with
Bare relies on two cases to argue that he lost his status as a stowaway when granted asylum—neither is persuasive. He first relies on a quote from N-A-I- which provides that “an alien whose status is changed does not retain his or her previous status.” 27 I. & N. Dec. at 75. When put into context, this quote does not support Bare‘s argument, but actually undermines it. It states:
An adjustment of status under the Act involves a change from one status to another status, not the acquisition of an additional status. In other words, an alien whose status is changed does not retain his or her previous status. In the context of [
§ 1159(b) ], the adjustment entails a change from “the status of an[] alien granted asylum” to “the status of an alien lawfully admitted for permanent residence,” which extinguishes the alien‘s asylee status.
Id. (second alteration in original) (emphasis added). In N-A-I-, the BIA concluded that an adjustment of status is a “change from one status to another” because of the dictionary definitions of “adjust,” one of which was “to change the position of.” Id. (citation omitted). But here, the operative phrase is not “adjust to” but “grant,” whose definition does not convey a change from one status to another. So, not only does this quote from N-A-I- not support his argument, as discussed supra, N-A-I-‘s conclusion regarding the import of an adjustment of status supports our conclusion that a grant of asylum is the “acquisition of an additional status” rather than “a change from one status to another status.” Id.
Bare also relies on Marincas v. Lewis, 92 F.3d 195 (3d Cir. 1996), which concludеd that “Congress clearly and unambiguously intended that the Attorney General establish a uniform asylum procedure that is to be applied irrespective of an alien‘s
Unlike
To conclude, as both Bare and the government would have us do, that an alien loses his or her previous status when granted asylum would be to ignore the plain meaning of the statute as well as Congress‘s explicit decision to use the word “grant” rather than “adjust to.” The plain meaning of the statute and the statutory context make clear that a stowaway retains his or her status as a stowaway when granted asylum. As a result, Bare is not entitled to INA § 240 proceedings to have his grant of asylum terminated by no longer being a stowaway.
3.
Bare contends that his status as an asylee entitles him to INA § 240 removal proceedings even if he also retains his stowaway status. The government contends that it was permissible for Bare‘s asylum to be terminated by reopening his asylum-only proceeding and that, in such proceedings, the IJ does not have authority to consider an adjustment of status request.
No statute provides a procedure for how a grant of asylum is to be terminated. The asylum statute explains the circumstances under which the Attorney General may terminate asylum but does not provide a procedure for how the Attorney General is
The procedures for how to terminate asylum are provided by regulation. Where, as here, asylum was granted by an IJ, the IJ may reopen the case to terminate a grant of asylum.
The authority for asylum-only procedures for stowaways is
Bare argues that
Termination of asylum for arriving aliens. If the Service determines that an applicant for admission who had previously been granted asylum in the United States falls within conditions set forth in § 1208.24 and is inadmissible, the Service shall issue a notice of intent to terminate asylum and initiate removal proceedings under [INA § 240]. The alien shall present his or her response to the intent to terminate during proceedings before the immigration judge.
This section addresses what to do with “applicant[s] for admission who had previously been granted asylum” who are found to be inadmissible.
Because Bare retains his status as a stowaway, there is no statutory or regulatory bar to the government‘s moving to reopen, and the IJ‘s reopening, his asylum-only proceeding for the purpose of terminating his grant of asylum. Asylum may be terminated by reopening a case.
Even though Bare is appropriately in asylum-only proceedings, he nonetheless contends that the prohibition on an IJ in such proceedings from considering his adjustment of status and waiver requests must give way to allow him to vindicate his eligibility to adjust his status. But not only would allowing the IJ to consider Bare‘s request for an adjustment of status contradict the limitations on asylum-only proceedings in
An IJ in INA § 240 removal proceedings has the authority to adjudicate requests for an adjustment of status, see
We note that this process causes a potential conflict between the applicable regulation and the instructions to the I-485 form. An application to the USCIS for an adjustment of status is to be filed “in accordance with the form instructions,”
We also note that, by having a different decisionmaker for whether to grant a request for an adjustment of status and whether to terminate a grant of asylum, a grant of asylum may be terminated by an IJ prior to the USCIS‘s acting on an adjustment of status application. Here, for example, thе IJ declined Bare‘s motion for a continuance to allow him to apply for an adjustment of status with the USCIS and terminated his grant of asylum. Unlike the Fifth Circuit, we have not considered whether a former asylee can apply for an adjustment of status, see Siwe, 742 F.3d at 612, much less that a former asylee who is a stowaway can apply for an adjustment of status. If a former asylee who is a stowaway could not adjust his or her status, there is a potential that an asylee could be denied the opportunity to adjust his or her status as a result of this bifurcation of authority, as the IJ might act faster in terminating a grant of asylum than the USCIS in considering whether to grant an adjustment of status and a waiver. This is problematic because, as we previously determined, an asylee in reopened asylum-only proceedings can still apply for an adjustment of status (and any necessary waivers). The resolution of these issues goes beyond the case we have been presented. This is an issue for a later court to decide if Bare applies for an adjustment of status with the USCIS and the USCIS refuses to consider it. To resolve this case, it is enough to conclude that Bare met all of the requirements to apply for an adjustment of status, provided he also sought and received а waiver, and that his application was to be made to the USCIS, not the IJ.
PETITION FOR REVIEW IS DENIED.