In re Melanie Beaucejour JEAN, Respondent
File A25 452 154
U.S. Department of Justice Office of the Attorney General
Decided May 2, 2002
23 I&N Dec. 373 (A.G. 2002)
Interim Decision #3472
The 30-day period set forth in 8 C.F.R. § 3.38(b) (2002) for filing an appeal to the Board of Immigration Appeals is mandatory and jurisdictional, and it begins to run upon the issuance of a final disposition in the case.- The Board of Immigration Appeals’ authority under
8 C.F.R. § 3.1(c) (2002) to certify cases to itself in its discretion is limited to exceptional circumstances, and is not meant to be used as a general cure for filing defects or to otherwise circumvent the regulations, where enforcing them might result in hardship. - In evaluating the propriety of granting an otherwise inadmissible alien a discretionary waiver to permit adjustment of status from refugee to lawful permanent resident pursuant to section 209(c) of the Immigration and Nationality Act,
8 U.S.C. § 1159(c) (2000), any humanitarian, family unity preservation, or public interest considerations must be balanced against the seriousness of the criminal offense that rendered the alien inadmissible. - Aliens who have committed violent or dangerous crimes will not be granted a discretionary waiver to permit adjustment of status from refugee to lawful permanent resident pursuant to section 209(c) of the Act except in extraordinary circumstances, such as those involving national security or foreign policy considerations, or cases in which an alien clearly demonstrates that the denial of status adjustment would result in exceptional and extremely unusual hardship. Depending on the gravity of the alien’s underlying criminal offense, such a showing of exceptional and extremely unusual hardship might still be insufficient.
- Aliens who have committed violent or dangerous crimes will not be granted asylum, even if they are technically eligible for such relief, except in extraordinary circumstances, such as those involving national security or foreign policy considerations, or cases in which an alien clearly demonstrates that the denial of status adjustment would result in exceptional and extremely unusual hardship. Depending on the gravity of the alien’s underlying criminal offense, such a showing of exceptional and extremely unusual hardship might still be insufficient.
IN REMOVAL PROCEEDINGS
By previous Order, I directed the Board of Immigration Appeals (“BIA” or “Board”) to refer this case to me for review pursuant to
I.
Respondent Melanie Beaucejour Jean is a forty-five-year-old foreign national from Plaisance, Haiti. Accompanied by her husband and five children, she was conditionally admitted into the United States as a refugee in November 1994 pursuant to section 207 of the Immigration and Nationality Act (“INA”),
In August 1995, the respondent pled guilty in the County Court for Monroe County, New York, to one count of second-degree manslaughter in connection with the March 30, 1995 death of nineteen-month-old R-J-. According to the respondent’s signed confession, R-J- had been left in her care that day by the boy’s mother – who was also the sister-in-law of the respondent’s husband – in an apartment the two families shared in Rochester, New York. Early in the afternoon, the young child fell off a couch in the apartment and began to cry. The respondent reacted by striking the toddler’s buttocks two or three times with her open hand in an attempt to quiet him. When this effort proved unsuccessful, she picked the boy up by the armpits and shook him. She then
The medical examiner’s report described bruises to R-J-’s head, chest, and back; internal hemorrhages of the lungs, pancreas, and diaphragm; and acute subdural and spinal epidural hemorrhages. The report determined that R-J- died from bleeding and swelling inside his skull caused by blunt trauma, and that the death was a homicide.
During her plea colloquy with the Monroe County Court judge, the respondent maintained that she did not attempt to contact emergency personnel after shaking the child into an unconscious state because, in the interim, she was preoccupied with a long-distance telephone conversation and thought the boy was in bed sleeping. She added that phoning emergency officials would have been difficult inasmuch as she does not speak English well and thus may not have been understood.5 A month after the plea hearing, the court sentenced her to two-to-six years’ incarceration.
Following the completion of her state sentence, the respondent requested an adjustment of her status from “refugee” to “lawful permanent resident” pursuant to INA § 209(a),
An immigration judge ruled that the respondent’s second-degree manslaughter conviction constituted an “aggravated felony” within the meaning of the INA and, on this basis, declared her ineligible for all relief from removal.7 IJ Oral Decision (Aug. 18, 1999) at 1-2. The respondent appealed to the BIA, which reversed the immigration judge’s decision. Relying on its opinion in Matter of Sweetser, Interim Decision 3390 (BIA 1999), the Board concluded that the respondent’s criminal conviction did not amount to a “crime of violence” – the necessary predicate for classifying the offense as an “aggravated felony” under the facts of this case – “because there was no substantial risk that physical force would be used in the commission of the crime.” BIA Decision (Dec. 16, 1999) at 2. The Board then remanded the case back to the immigration judge for the purpose of giving the respondent “an opportunity to apply for any relief from removal for which she may be eligible.” Id.
The immigration judge next held that the respondent had no right to asylum. He noted that not only did the respondent fail to demonstrate an objectively reasonable fear of persecution in Haiti, but the nature of her criminal conviction rendered her ineligible for such relief. Id. at 5-10. On the latter point, the judge reasoned that, unlike the Colorado criminally negligent child abuse statute that the BIA examined in Sweetser, second-degree manslaughter in New York required an affirmative act on the part of the offender. Id. at 8-10. As a result, the offense satisfied the criteria for a “crime of violence,” and thus qualified as an “aggravated felony” under the INA. Id.
The immigration judge’s finding regarding the risk of persecution to the respondent also supported the rejection of her application for withholding of removal under INA § 241. Having determined that the respondent failed to demonstrate the “well-founded fear of persecution” necessary to qualify for asylum, the judge held that the respondent necessarily fell short in her effort to meet the far more demanding “clear probability of persecution” standard required to obtain relief under section 241. Id. at 10 (citing INS v. Stevic, 467 U.S. 407, 430 (1984)).
In a separate opinion issued weeks later, the judge denied the respondent’s claims for withholding or deferral of removal under the Convention Against Torture as well. He found that the record failed to support the respondent’s allegation that those individuals or entities in Haiti who had purportedly attacked her husband and burned her family’s home years earlier continued to persecute opponents of the former military regime. See IJ Decision (May 25, 2000) at 3. He further noted that there was no credible evidence that such individuals or entities, to the extent they are still engaged in political violence, would find the respondent if she took up residence somewhere other than the village where she had previously lived. Id.
II.
Before turning to the merits, I must first examine the INS’s contention that the BIA lacked jurisdiction to hear the respondent’s post-remand appeal because it was untimely. INS regulations dictate that appeals from the rulings of immigration judges must “be filed directly with the [BIA] within 30 calendar days after the stating of an Immigration Judge’s oral decision or the mailing of an Immigration Judge’s written decision.”
Counsel for the respondent filed two post-remand notices of appeal with the BIA in this case, responding separately to the immigration judge’s two post-remand decisions. The immigration judge’s initial decision on remand, which denied the respondent’s applications for adjustment of status, asylum, and withholding of removal under the INA, was dated May 4, 2000. It was mailed to the respondent that same day, see Karimian-Kaklaki v. INS, 997 F.2d 108, 111 (5th Cir. 1993) (date of INS transmittal letter accepted as dispositive evidence of the mailing date, absent specific evidence to the contrary), accompanied by a notification form warning that the decision would become final unless an appeal was filed with the BIA “within 30 calendar days of the date of the mailing of this written decision.” The immigration judge later issued a second post-remand decision, denying the respondent’s remaining claims under the Convention Against Torture, on May 25, 2000. This latter decision was also mailed on the date of its issuance, and contained
The respondent’s first notice of appeal, which was filed on June 6, 2000, indicated explicitly that she was appealing from the immigration judge’s May 4 ruling. Her second notice of appeal, which was filed on June 28, 2000, stated specifically that she was challenging the immigration judge’s May 25 ruling. The INS maintains that both appeals were untimely inasmuch as the first was filed thirty-three days after the first decision, while the second was filed thirty-four days after the second decision. Although I agree with the INS that the respondent failed to preserve her challenge to the immigration judge’s adverse decision on the Convention Against Torture claim, I reach this conclusion for different reasons than those advanced by the INS. As for the respondent’s appeal of the denial of her other requested relief, I find that her notice was timely.
At the time of the immigration judge’s initial post-remand ruling, there was no final disposition in the case. Any appeal at that moment, therefore, would have been interlocutory in nature. Yet interlocutory appeals are discouraged in immigration proceedings, and the BIA properly declines to review non-final decisions of immigration judges except in highly unusual circumstances. See Matter of Morales, 21 I&N Dec. 130, 131-32 (BIA 1996) (BIA ordinarily does not consider interlocutory appeals, but makes occasional exceptions “to address important jurisdictional questions regarding the administration of the immigration laws or to correct recurring problems in the handling of cases before” immigration judges). In light of this practice, I believe it would be unreasonable to construe
The June 6 notice of appeal did not, however, preserve the respondent’s objections to the substance of the immigration judge’s May 25 decision, i.e., the rejection of her application for relief under the Convention Against Torture. To perfect an appeal to the BIA, a litigant must file a timely notice on a Form EOIR-26. See
The respondent’s June 6 notice of appeal refers exclusively to the immigration judge’s May 4 decision denying her application for relief under the INA, and contains no reference whatsoever to the May 25 decision denying her Convention Against Torture claim. Although this latter claim is identified in the respondent’s subsequent June 28 notice of appeal, that notice was rendered nugatory because it was filed more than thirty days after the immigration judge’s final disposition in the case.9 While there may be rare cases where special circumstances would support a decision to consider issues not properly presented to the BIA in a timely-filed Form EOIR-26, this is not such a case. The Board here, as it often does, ordered simultaneous briefing on the merits, an approach that allows a more expeditious resolution of cases on the docket, and one that would not be feasible if the Board failed to enforce the requirement that appellants clearly specify the reasons for their appeals. Because the record in this case provides no indication of the kind of special circumstances that might justify an exception to this procedural requirement, the respondent’s appeal of the adverse ruling on her Convention Against Torture claim shall be dismissed.10
The BIA addressed only one of the proposed forms of relief in this case. Its determination that the respondent was entitled to a waiver of inadmissibility and a discretionary adjustment of status from refugee to lawful permanent resident effectively mooted her requests for asylum and withholding of removal. Because I find the Board’s resolution of the adjustment of status issue to be in error, I must examine the respondent’s eligibility for these alternative remedies.
A. Adjustment of Refugee Status
Aliens, like the respondent, who have been admitted (or conditionally admitted) into the United States as refugees can seek an adjustment of status only under INA § 209. See
In the case at bar, the INS charged the respondent with being inadmissible by virtue of her conviction for a crime involving moral turpitude. See id. § 212(a)(2)(A)(i)(I). She did not contest this charge and, indeed, conceded her statutory inadmissibility. Nevertheless, she sought a waiver pursuant to INA § 209(c), a provision empowering the Attorney General to waive most disqualifying barriers to an alien refugee’s admissibility under INA § 212(a) “for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest.”11
Although INA § 209(c) was enacted into law more than twenty years ago as part of the Refugee Act of 1980, Pub. L. No. 96-212, § 201(b), 94 Stat. 102, 106, there appears to be only one published decision discussing the merits of a requested discretionary waiver of inadmissibility under this provision. Specifically, in Matter of H-N-, Interim Decision 3414 (BIA 1999), the BIA upheld an immigration judge’s grant of lawful permanent residency under INA § 209(c) to an otherwise inadmissible refugee who had been convicted of second-degree robbery. I find the majority opinion in H-N- to be wholly unconvincing. The majority there treated the applicant’s crime – participation in a burglary in which one of the applicant’s co-conspirators shot a woman to death in front of her children – as a virtual afterthought. Citing nothing more than the American citizenship of the applicant’s children, the legal residency of her husband, and a number of letters from family and friends, the majority found “strong equities” in the applicant’s favor and thus affirmed the immigration judge’s discretionary grant of relief. The seriousness of the underlying offense was all but lost on the Board. Part II of the opinion of Board Member Filppu, who dissented from the decision to confer lawful permanent residency on the applicant, combines a far more thorough review of the record with a much greater appreciation of the harmfulness of the criminal conduct at issue, and reflects the result I would reach if that case were before me today.12
As deeply troubling as the ruling in H-N- is, I find the Board’s decision in this case even more difficult to accept. The Board here cited testimony and “lengthy letters” provided by members of the respondent’s family, as well as the fact that the respondent’s husband and children are permanent legal residents, as evidence that her removal would cause the family “severe emotional hardship.” BIA Decision (Mar. 1, 2001) at 2. On the strength of this scant summary, the Board found that she “met the standard for granting” a waiver of inadmissibility and an adjustment of status. Id.
To be sure, the respondent’s removal will undoubtedly impose a strain on her family. Her husband and children testified as to the difficulties they experienced during her nearly six years of incarceration in the custody of the State of New York and the INS. Although the record makes clear that the respondent’s family exhibited admirable strength and resiliency during that period, I do not doubt that her removal to Haiti will be a source of additional hardship for them. Administrative evaluations of requests for waivers of inadmissibility under INA § 209(c) cannot, however, focus solely on family hardships, but must consider the nature of the criminal offense that rendered an alien inadmissible in the first place.
In my judgment, that balance will nearly always require the denial of a request for discretionary relief from removal where an alien’s criminal conduct is as serious as that of the respondent. Congress has authorized the Attorney General under section 209(c) to waive an alien’s inadmissibility, notwithstanding certain otherwise disqualifying convictions, “for humanitarian reasons, to assure family unity, or when it is otherwise in the public interest.” Congress did not compel the Attorney General to do so.13 It would not be a prudent exercise of the discretion afforded to me by this provision to grant favorable adjustments of status to violent or dangerous individuals except in extraordinary circumstances, such as those involving national security or foreign policy considerations, or cases in which an alien clearly demonstrates that the denial of status adjustment would result in exceptional and extremely unusual hardship. Moreover, depending on the gravity of the alien’s underlying criminal offense, such a showing might still be insufficient. From
B. Asylum
The respondent also sought asylum pursuant to INA § 208. Eligibility for such relief is restricted to aliens who may be classified as a “refugees” under the INA, i.e., persons who are “unable or unwilling to return to [their native country] because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” INA § 101(a)(42)(A),
Establishing “refugee” status is not the only hurdle an alien seeking asylum must clear in order to be considered eligible for such relief. Indeed, there are a series of exceptions outlined in INA § 208(b)(2) under which all aliens – including “refugees” – are statutorily barred from asylum. As relevant here, an alien convicted of a “particularly serious crime,” defined for these purposes as any “aggravated felony,” may not be granted asylum under any circumstances. See INA § 208(b)(2)(A)(ii), (B)(i). Furthermore, even if asylum eligibility is established, the decision whether to grant an application is committed to the Attorney General’s discretion. See INS v. Aguirre-Aguirre, 526 U.S. 415, 420 (1999).
The immigration judge declared the respondent ineligible for asylum for two independently sufficient reasons. First, he found that the respondent failed to demonstrate “a continuing[,] genuine and credible fear of persecution” if removed to Haiti or, alternatively, a history of persecution so severe as to justify an unwillingness to return there irrespective of current conditions in the country. IJ Decision (May 4, 2000) at 7. This finding is well-supported in the record.
The judge also found that the respondent had been convicted of an aggravated felony. Although Congress has delineated multiple categories of
The BIA subsequently rejected the immigration judge’s “crime of violence” determination, concluding that the absence of a “substantial risk that physical force would be used in the commission of the crime” foreclosed such a characterization. I question the validity of the Board’s reasoning. An individual is guilty of second-degree manslaughter under New York law when he or she “recklessly causes the death of another person.”
Ultimately, however, it is unnecessary for me to resolve whether the respondent’s conviction constitutes a “crime of violence” or whether she has otherwise satisfied the eligibility standards for asylum. Even assuming that the respondent not only qualifies as a “refugee,” but that her criminal conviction does not preclude her eligibility, she is manifestly unfit for a discretionary grant of relief. For the same reasons articulated in the earlier discussion of the respondent’s application for adjustment of status, I am highly disinclined to exercise my discretion – except, again, in extraordinary circumstances, such as those involving national security or foreign policy considerations, or cases in which an alien clearly demonstrates that the denial of relief would result in exceptional and extremely unusual hardship – on behalf of dangerous or violent felons seeking asylum. As with applications for adjustment of status, even a showing of exceptional and extremely unusual hardship may be inadequate to justify a grant of asylum, depending on the nature of the alien’s crime. The respondent’s criminal conduct in connection with the homicide of R-J- is sufficiently severe as to make the conferral of asylum upon her entirely inappropriate. Her claim, therefore, is denied.
Finally, the respondent asserts that she is legally entitled to withholding of removal pursuant to INA § 241(b)(3)(A), a statute prohibiting the Attorney General from returning an alien to a country where the alien’s life or freedom would be threatened because of his or her race, religion, nationality, membership in a particular social group, or political opinion. The applicant bears the burden of proving his or her right to such relief,
As was the case with the respondent’s asylum claim, the immigration judge and BIA disagreed over the impact of the respondent’s criminal conviction on her threshold eligibility for withholding of removal. INA § 241(b)(3)(B) provides that aliens convicted of any “aggravated felony” for which an aggregate term of imprisonment of at least five years was imposed are statutorily ineligible for withholding of removal.14 Based on the reasoning set forth in the preceding section, I find the Board’s determination that second-degree manslaughter in New York is not a “crime of violence” (and thus not an “aggravated felony”) to be quite suspect. There is, as noted earlier, on-point authority to the contrary.
Once again, however, it is unnecessary for me to address the proper characterization of the respondent’s criminal offense because there are other, clearer grounds for the denial of her claim for relief. In particular, she has failed to prove that her life or freedom would be threatened in Haiti on the basis of race, religion, nationality, membership in a particular social group, or political opinion.
The respondent seeks to avail herself of the regulatory presumption of future persecution. Under this doctrine, if an applicant can demonstrate that he or she “suffered past persecution in the proposed country of removal” on account of one of the five factors enumerated in section 241(b)(3)(A), then “it
(A) There has been a fundamental change in circumstances such that the applicant’s life or freedom would not be threatened on account of any of the five grounds mentioned in this paragraph upon the applicant’s removal to that country; or
(B) The applicant could avoid a future threat to his or her life or freedom by relocating to another part of the proposed country of removal and, under all the circumstances, it would be reasonable to expect the applicant to do so.
Id. § 208.16(b)(1)(i)(A), (B).
The respondent maintains that she is likely to be persecuted by members of the former Haitian Army as well as the Ton Ton Macoutes, a private Haitian death squad first organized by former President François Duvalier. To support this claim, the respondent and her husband testified at the removal hearing that the husband was assaulted and nearly killed in the early 1990s as a result of his work with the Fanmi Lavalas, a political party headed by then-opposition leader Jean-Bertrand Aristide. They further alleged that Haitian soldiers burned the home shared by the respondent and her husband, as well as the homes of many of their relatives. The soldiers also purportedly killed the father and two cousins of the respondent’s husband.
Although clearly tragic, these events do not demonstrate that any past persecution was directed at the respondent. As the immigration judge correctly noted, the attacks described at the hearing were all targeted at the respondent’s husband, not at the respondent herself.16 IJ Decision (May 4, 2000) at 7. The respondent did testify that she was a member of “Committee
Furthermore, even assuming that the respondent could establish a presumption of future persecution based on the events detailed above, she still would be entitled to no relief here. The political climate in Haiti has changed dramatically since the respondent left in 1994, and it is no longer likely that her life or freedom would be threatened there. The respondent asserts that she is likely to suffer a loss of life or freedom at the hands of former Haitian Army soldiers or Ton Ton Macoute rebels if she returns to the country. The record, however, offers no solid basis for such a claim. The State Department’s 1998 report on Haiti, which the respondent’s counsel explicitly referenced at the removal hearing, documents the significant alteration of the Haitian political landscape since 1994. See Bureau of Democracy, Human Rights, and Labor, Dep’t of State, Country Report on Human Rights Practices – Haiti (Feb. 1999). The Report recounts not only the disbanding of the Haitian Army in 1995, but also the 1997 election of President René Preval, the Fanmi Lavalas candidate who succeeded Jean-Bertrand Aristide in the first peaceful transfer of power between elected administrations in Haiti’s post-independence history. It notes that the government, although beset by pockets of corruption, “generally respect[s] the human rights of its citizens.” Id. at 2. The Haitian National Police force, the country’s principal domestic law enforcement agency, is described as a flawed but improving organization. Id. Although excessive use of force by the police reportedly resulted in eleven deaths during 1998, the State Department concluded that “these killings generally were not political in character,” but were instead largely attributable to poor training and discipline. Id. at 3.17
The State Department’s most recent country report also fails to bolster the respondent’s claim. See Bureau of Democracy, Human Rights, and Labor, Dep’t of State, Country Report on Human Rights Practices – Haiti (Mar. 2002). That report points out that members of the former opposition party to which the respondent’s husband belonged now occupy most key government positions, including the national law enforcement institutions. Moreover, Aristide was elected to a second term as President in February 2001, and the Fanmi Lavales maintained control of the Haitian Senate in the 2000 elections. In short, the record simply does not support the respondent’s claim that her life or freedom would be threatened if she were returned to Haiti. Accordingly, her application for withholding of removal is denied.
IV.
For the foregoing reasons, the decision of the BIA is reversed and the case is remanded with instructions to dismiss the respondent’s appeal.