In re K-A-, Respondent
Interim Decision #3499
U.S. Department of Justice, Executive Office for Immigration Review, Board of Immigration Appeals
Decided as amended on June 23, 2004
23 I&N Dec. 661 (BIA 2004)
Board Panel: FILPPU, COLE, and HESS, Board Members. COLE, Board Member.
(2) Termination of a grant of asylum pursuant to section 208(c)(2) of the Act,
FOR RESPONDENT: Ian Bratlie, Esquire, York, Pennsylvania
FOR THE DEPARTMENT OF HOMELAND SECURITY:2 Raphael A. Sánchez, Assistant Chief Counsel
BEFORE: Board Panel: FILPPU, COLE, and HESS, Board Members.
COLE, Board Member:
The Department of Homeland Security (“DHS”), formerly the Immigration and Naturalization Service, appeals from the decision of an Immigration Judge dated October 7, 2003, granting the respondent‘s application for adjustment of status in conjunction with a waiver of inadmissibility pursuant to sections 209(b) and (c) of the Immigration and Nationality Act,
The respondent, a native and citizen of Nigeria, was admitted to the United States in September 1992 as a nonimmigrant visitor. On March 6, 1995, she was granted asylum in the United States. She is the mother of two United States citizen children, one of whom suffers from cerebral palsy. On August 21, 1997, she committed the offense of second-degree criminal possession of a forged instrument in violation of section 170.25 of the New York Penal Law. This crime resulted in a 2001 conviction, for which the respondent was sentenced to a term of imprisonment of at least 1 year.
The present removal proceedings commenced on April 16, 2003, when the DHS filed a Notice to Appear (Form I-862) with the Immigration Court. The Notice to Appear charged that the respondent is subject to removal from the United States as an alien convicted of a crime involving moral turpitude committed within 5 years after admission under section 237(a)(2)(A)(i) of the Act,
At a hearing before the Immigration Judge on June 9, 2003, the DHS formally requested that the Immigration Judge terminate the respondent‘s status as an asylee. On July 2, 2003, the respondent conceded that she was removable as charged but expressed an intention to file an application for adjustment of status under section 209(b) of the Act in conjunction with a request for a waiver of inadmissibility under section 209(c).
On October 7, 2003, the Immigration Judge issued a written interim decision in support of her jurisdiction to adjudicate the respondent‘s applications for relief. Although the Immigration Judge acknowledged that the respondent‘s asylee status was subject to termination, she concluded that the respondent‘s adjustment of status would constitute “relief from termination.” In a formal oral decision, also issued on October 7, 2003, the Immigration Judge granted the respondent‘s applications in the exercise of discretion based on the hardship that the respondent‘s removal to Nigeria would cause to her severely disabled United States citizen child. The DHS filed this timely appeal, which is opposed by the respondent.
II. ISSUES ON APPEAL
On appeal, the DHS argues that the Immigration Judge lacked jurisdiction to adjudicate the respondent‘s applications for relief under section 209 of the Act. Specifically, the DHS asserts that it has original jurisdiction over applications for adjustment of status and waivers of inadmissibility under section 209 of the Act, and that an Immigration Judge may consider such applications, if at all, only if they have been renewed in removal proceedings after administrative denial by the DHS. To support this argument, the DHS relies on our decision in Matter of H-N-, 22 I&N Dec. 1039 (BIA 1999), which held that an Immigration Judge could exercise jurisdiction over a refugee‘s application for a section 209(c) waiver only after that application had been denied administratively by the former Immigration and Naturalization Service. It is undisputed that the respondent‘s applications for relief were never submitted to the DHS for consideration.
Alternatively, the DHS argues that the Immigration Judge erred in adjudicating the respondent‘s application for section 209 relief when her asylee status was subject to termination because of her admitted aggravated felony conviction. According to the DHS, the Immigration Judge was obliged to adjudicate its request for termination of the respondent‘s asylee status before considering any of her applications for relief.
III. ANALYSIS
A. Adjustment of Status Under Section 209(b) of the Act
Section 209 of the Act grants the Attorney General authority to define standards by which an alien granted refugee status or asylum may apply to become a lawful permanent resident of the United States, subject to various statutory limitations. To be eligible for adjustment of status under section 209 of the Act, an alien who has been granted asylum must actually apply for such relief and must demonstrate to the Attorney General‘s satisfaction that she has been physically present in the United States for at least 1 year after being granted asylum, that she continues to be a “refugee” under section 101(a)(42)(A) of the Act,
To implement the statutory requirements of section 209 of the Act, the Attorney General has promulgated two separate regulations. The first regulation,
As the Immigration Judge observed in her October 7, 2003, interim decision,
The regulation‘s text contains no similar language expressly granting Immigration Judges the authority to adjudicate waiver requests under section 209(c) of the Act. We conclude, however, that the existence of such authority is conferred by
B. Termination of Asylee Status in Removal Proceedings
We now turn to the second question raised on appeal: whether the Immigration Judge erred by adjudicating applications for section 209 relief filed by an alien whose status as an asylee was subject to termination because of her conviction for an aggravated felony. Section 208(c)(2) of the Act provides that
It is undisputed that the respondent‘s asylee status is subject to termination based upon her admitted aggravated felony conviction. See
Both section 208(c)(2) of the Act and its implementing regulation,
The DHS‘s position on appeal—that the Attorney General is obliged to terminate asylee status whenever possible—does not find support in the plain language of the statute or regulation. In essence, the DHS urges us to construe the permissive language of section 208(c)(2) and
It is axiomatic that when interpreting the Immigration and Nationality Act, we look first to the terms of the statute itself; if those terms, on their face, constitute a plain expression of congressional intent, they must be given effect. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984). Moreover, the legislative purpose is presumed to be expressed by the ordinary meaning of the words used. INS v. Phinpathya, 464 U.S. 183, 189 (1984). In this instance, Congress plainly employed permissive language to describe the Attorney General‘s role in terminating an alien‘s asylee status. Such language denotes a conferral of discretionary authority, not a mandate.
The Supreme Court has acknowledged that the verb “may” can be interpreted to mean “shall” under certain circumstances. United States v. Rodgers, 461 U.S. 677, 706 (1983). Such a construction is particularly disfavored, however, when Congress has employed the two different verbs in adjacent statutory passages. Anderson v. Yungkau, 329 U.S. 482, 485 (1947) (stating that “when the same Rule uses both ‘may’ and ‘shall,’ the normal inference is that each is used in its usual sense—the one act being permissive, the other mandatory”); see also Sheppard v. Riverview Nursing Center, Inc., 88 F.3d 1332, 1338 (4th Cir. 1996).
Section 208(c)(1) of the Act contains three subparagraphs, which respectively provide that the Attorney General “shall not remove or return” an alien granted asylum to his or her country of nationality, “shall authorize” an alien granted asylum to engage in employment, and “may allow” such an alien to travel abroad. (Emphasis added.) Section 208(c)(2), at issue here, provides that if the Attorney General determines that a valid ground for termination exists, an alien‘s asylee status “may be terminated.” (Emphasis added.) Finally, section 208(c)(3) provides that the removal of an alien who is described in paragraph (2) “shall be directed by the Attorney General.” (Emphasis added.) We conclude that Congress, by systematically employing “may” and “shall” in the language of each paragraph of section 208(c), manifested its understanding of the difference between the two verbs and communicated its intention that they be interpreted in accordance with their ordinary meanings.
The DHS expresses concern that an Immigration Judge‘s discretionary decision to defer the termination of asylee status will permit some aliens convicted of aggravated felonies to obtain relief under section 209(b) of the Act that would not otherwise be available to them. Even were we to assume that the DHS has valid concerns on this score, it should be emphasized that relief under sections 209(b) and (c) of the Act is discretionary. The Attorney General has communicated in unequivocal terms that he is not inclined to exercise his discretion favorably with respect to aliens who have been convicted of dangerous or violent crimes except in the most exceptional circumstances. Matter of Jean, 23 I&N Dec. 373, 383 (A.G. 2002). Indeed, even nonviolent aggravated felonies will generally constitute significant negative factors militating strongly against a favorable exercise of discretion.
Thus, an alien convicted of an aggravated felony will become the beneficiary of the Attorney General‘s discretion under sections 209(b) and (c) only in those rare situations where he or she successfully demonstrates the existence of truly compelling countervailing equities, such as those present in the instant case.
IV. CONCLUSION
In sum, we conclude that the Immigration Judge possessed original and exclusive jurisdiction to adjudicate the respondent‘s application for adjustment of status under section 209(b) of the Act, and that the Immigration Judge‘s jurisdiction over that application necessarily implied the existence of supplemental jurisdiction over her application for a waiver of inadmissibility under section 209(c). Furthermore, although the Immigration Judge had authority to terminate the respondent‘s asylee status on the basis of her aggravated felony conviction, the Immigration Judge did not commit reversible error when she deferred consideration of the DHS‘s termination request pending adjudication of the respondent‘s applications for relief under section 209 of the Act. Accordingly, the appeal will be dismissed.
ORDER: The appeal of the Department of Homeland Security is dismissed.