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Interim Decision #3472

In re Melanie Beaucejour JEAN, Respondent1

File A25 452 154

Decided May 2, 2002

U.S. Department of Justice

Office of the Attorney General

(1) 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.

(2) 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.

(3) 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.

(4) 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.

(5) 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 8 C.F.R.

1

In publishing this opinion in its current format, the Attorney General is invoking his

discretion pursuant to 8 C.F.R. § 208.6(a) (2002).

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§ 3.1(h)(1)(i) (2002). 2 Overruling the decision of an immigration judge, a BIA

panel declared that the respondent’s conviction for second-degree

manslaughter did not render her ineligible for asylum or withholding of

removal, and that the likely hardship her family would endure if she were

returned to Haiti merited adjusting her status from refugee to lawful

permanent resident. For the reasons set forth below, I now reverse the BIA’s

decision and hold that the interests of the respondent’s family and the general

public would be ill-served by granting her lawful permanent residency in the

United States. I further conclude that the respondent is not entitled to any

alternative relief from removal. 3

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”), 8 U.S.C. § 1157 (1994). 4

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

My review of BIA decisions is de novo. See Deportation Proceedings of Joseph Patrick

Doherty, 12 Op. O.L.C. 1, 4 (1988) (“[W]hen the Attorney General reviews a case pursuant

to 8 C.F.R. § 3.1(h), he retains full authority to receive additional evidence and to make de

novo factual determinations.”).

3

This published decision is binding on the BIA and is intended to overrule any BIA decisions

with which it is inconsistent. See Iran Air v. Kugelman, 996 F.2d 1253, 1260 (D.C. Cir.

1993) (administrative judges “are entirely subject to the agency on matters of law”); see also

8 C.F.R. § 3.1(g).

4

The opinions of both the immigration judge and the BIA inaccurately characterize the nature

of the respondent’s entry into the United States. She was neither paroled nor permanently

admitted into the country. Rather, she was conditionally admitted as a refugee under INA

§ 207, which had the effect of deferring her admissibility inspection and examination by federal

immigration officials. See Matter of Garcia-Alzugaray, 19 I&N Dec. 407, 408-10 (BIA

1986).

2

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hit him two or three times on the top of his head with her fist. Finally, she

picked him up again and shook him until he lost consciousness. Upon

observing that the child was no longer breathing and that his eyes, although

open, had stopped blinking, the respondent placed him on a bed just off the

living room. She neither called 911 nor sought any other emergency

assistance. When her husband returned to the apartment with the child’s

mother approximately one hour later, the respondent told them that R-J- had

passed out in their absence.

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-Jdied 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), 8 U.S.C. § 1159(a) (1994 & Supp. V 1999). The

Immigration and Naturalization Service (“INS”) denied this application in July

1999 and commenced formal removal proceedings against her as an

inadmissible alien convicted of a crime of moral turpitude.6 See INA

§§ 212(a)(2)(A)(i)(I), 240(a), 8 U.S.C. §§ 1182(a)(2)(A)(i)(I), 1229a(a) (1994

& Supp. V 1999). Although the respondent did not contest the fact that she

5

At the plea colloquy, the respondent also sought to retreat from some of the more damning

admissions in her earlier written confession. Without making any factual findings regarding

these post hoc attacks on the confession, the Monroe County judge, in a not altogether clear

discussion, seemingly concluded that New York law permitted him to accept the respondent’s

guilty plea to second-degree manslaughter as charged in the indictment based on her failure to

seek medical help when R-J- stopped breathing.

6

A month earlier, the INS had prematurely initiated removal proceedings against the

respondent without affording her an opportunity to seek an adjustment of status under INA

§ 209. The agency corrected this deficiency by terminating the earlier removal proceeding,

adjudicating her application, and commencing a new removal proceeding. See Hr’g Tr.

(July 21, 1999) at 13-14.

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was inadmissible in light of her manslaughter conviction – indisputably, a

crime of moral turpitude – she sought a waiver of inadmissibility under INA

§ 209(c), citing her fear of persecution upon return to Haiti as well as her

desire to keep her family together in the United States. In addition, she

requested asylum pursuant to INA § 208, 8 U.S.C. § 1158 (Supp. V 1999),

and withholding or deferral of removal pursuant to both INA § 241(b)(3),

8 U.S.C. § 1231(b)(3) (Supp. V 1999), and Article 3 of the Convention

Against Torture and Other Cruel, Inhuman, or Degrading Treatment or

Punishment (“Convention Against Torture”), see 8 C.F.R. §§ 208.16-208.18

(2002) (regulations implementing Convention).

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.

7

Although the immigration judge’s reasoning is not entirely clear from his brief oral decision,

he appears to have improperly analyzed the respondent’s adjustment of status application

under INA § 245, 8 U.S.C. § 1255 (1994 & Supp. V 1999), which bars relief to aliens

convicted of crimes involving moral turpitude, see INA § 245(a)(2) (restricting adjustments of

status to aliens who meet INA § 212 standards of admissibility), rather than INA § 209, which

contains no such express proscription. As noted in Part III.A., infra, individuals like the

respondent who have been admitted (or conditionally admitted) into the United States as

refugees can seek an adjustment of status only under section 209. With respect to the

respondent’s INA-based claims for asylum and withholding of removal, the immigration judge

obviously grounded his ineligibility determination on statutory provisions precluding the grant

of such relief to aliens convicted of “aggravated felonies,” see id. § 208(b)(2) (asylum), or

“particularly serious crimes,” see id. § 241(b)(3)(B) (withholding of removal). But the

rationale for the judge’s denial of all relief under the Convention Against Torture is nowhere

reflected in the decision. An aggravated felony conviction could not have formed the

necessary predicate because an alien’s criminal history is irrelevant in examining his or her

entitlement to deferral of removal under the Convention. See Matter of Y-L-, A-G- & R-S-R-,

23 I&N Dec. 270, 279 (A.G. 2002).

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On remand, the immigration judge conducted several evidentiary hearings

and issued two decisions which, in combination, denied all relief requested

by the respondent. Addressing the adjustment of status issue, the judge found

that a determination regarding the propriety of such a discretionary grant of

relief required a balancing of “the adverse factors evidencing [the

respondent’s] undesirability as a permanent resident [against] the social and

humane considerations presented on her behalf.” IJ Decision (May 4, 2000)

at 3. After weighing these considerations, the judge concluded that there was

no sound basis for a grant of lawful permanent residency to the respondent.

Id. at 3-5.

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.

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Following the issuance of these adverse decisions, the respondent pursued

a second administrative appeal to the BIA, which once again reversed the

immigration judge. In a cursory opinion, the Board chastised the immigration

judge for not adhering to its earlier ruling that the respondent’s second-degree

manslaughter conviction did not represent a “crime of violence.” BIA

Decision (Mar. 1, 2001) at 1-2. The Board then held that, under its own view

of the evidence, the respondent had established her eligibility for a waiver of

inadmissibility and an adjustment of status from refugee to lawful permanent

resident. Id. at 2. Finally, the Board concluded in a single sentence that “the

equities,” when weighed against the respondent’s criminal conviction,

warranted the grant of such discretionary relief. 8 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.” 8 C.F.R. § 3.38(b)

(2002). The effective date of any such appeal is the day the notice of appeal

is received by the Board. Id. § 3.38(c). This deadline is mandatory and

jurisdictional. Da Cruz v. INS, 4 F.3d 721, 722 (9th Cir. 1993).

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

8

Having granted the respondent’s application for adjustment of status to lawful permanent

resident, the BIA did not address her claims for asylum and withholding or deferral of removal.

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an identical warning that it would become final unless appealed within thirty

days.

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 8 C.F.R. § 3.38(b) to require litigants to file notices

of appeal with the BIA from non-final decisions in order to preserve their

objections to such rulings. Accordingly, the notice of appeal filed by the

respondent on June 6 – twelve days after the issuance of the May 25 final

decision in the case – was timely.

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 8 C.F.R. § 3.38(b). The instructions therein state

unequivocally that the appellant must “specify the reasons for appeal” on that

form, even if a separate brief or statement will be filed. See Form EOIR-26,

Notice of Appeal to the BIA of Decision of Immigration Judge (General

Instructions VII-VIII). The failure to adhere to this directive may result in the

dismissal of the appeal. See Soriano v. INS, 45 F.3d 287, 287 (8th Cir.

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1995) (per curiam); Nazakat v. INS, 981 F.2d 1146, 1148 (10th Cir. 1992);

Matter of Lodge, 19 I&N Dec. 500, 501 (BIA 1987); 8 C.F.R.

§ 3.1(d)(2)(i)(D).

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

9

There is a suggestion in the supplemental briefing that the BIA could have asserted

jurisdiction over the Convention Against Torture claim via certification pursuant to 8 C.F.R.

§ 3.1(c). See 8 C.F.R. § 3.39 (2002) (“Except when certified to the Board, the decision of the

Immigration Judge becomes final . . . upon expiration of the time to appeal . . . .”). The

Board, however, never certified any issue in this case, and such certification cannot be done

implicitly. Moreover, while section 3.1(c) allows the Board to certify issues “in its discretion,”

that discretion is not unbounded. To the contrary, much like discretionary decisions to reopen

proceedings sua sponte under section 3.2(c), it 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.” Matter of J-J-, 21 I&N Dec. 976,

984 (BIA 1997).

10

As an alternative holding, I find that the respondent’s Convention Against Torture claim

also fails on the merits. For largely the same reasons articulated in the discussion in Part III.C.

of the respondent’s claim for withholding of removal, I find she has failed to establish that she

is more likely than not to endure torture upon return to Haiti. Nor has she demonstrated, as

the Convention requires, that the harms she fears would be inflicted by, or with the

acquiescence of, government officials acting under color of law. See Matter of Y-L-, A-G- &

R-S-R-, 23 I&N Dec. at 279. Finally, it is not at all clear that much of the harm to which the

respondent alleges she would be exposed is even covered by Article 3 of the Convention. See

Matter of J-E-, 23 I&N Dec. 291, 297-303 (BIA 2002).

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III.

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 8 C.F.R. § 209.1 (2002) (“The provisions of this

section [implementing section 209 of the INA] shall provide the sole and

exclusive procedure for adjustment of status by a refugee admitted under

section 207 of the [INA] whose application is based on his or her refugee

status.”). Section 209(a) provides that a refugee who has been physically

present in the United States for at least one year and whose conditional

admission status has not been previously terminated must return (or be

returned) to INS custody for inspection and examination to determine

eligibility for lawful permanent residency. If, after conducting this

examination, an immigration officer concludes that the alien seeking

permanent residency “is not clearly and beyond a doubt entitled to be

admitted,” he or she must be detained for a removal proceeding. See INA

§ 235(b)(2)(A), 8 U.S.C. § 1225(b)(2)(A) (2000). The INS is free to charge

the alien in the ensuing proceeding, which is overseen by an immigration

judge, with any applicable ground of inadmissibility or deportability. See

INA § 240(a).

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

11

In accordance with the governing regulatory scheme, the respondent initially submitted her

(continued...)

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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-Nto 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.

(...continued)

application for an adjustment of status directly to the INS. See 8 C.F.R. § 209.1(b). After she

received an adverse decision, she renewed the claim in her removal proceeding before an

immigration judge. See id. § 209.1(e) (“There is no appeal of the denial of an application [for

status adjustment] by the [INS], but such denial will be without prejudice to the alien’s right

to renew the application in removal proceedings under [INA § 240].”).

12

A threshold legal issue in H-N-, which was the focus of most of the opinions in that case,

involved a jurisdictional issue regarding the authority of immigration judges and the Board to

adjudicate waivers of inadmissibility under INA § 209(c). I do not address that issue here.

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The Board’s analysis, which makes no attempt to balance claims of

hardship to the respondent’s family against the gravity of her criminal offense,

is grossly deficient. The opinion marginalizes the depravity of her crime,

stating simply that the panel had “weighed the equities in this case against the

respondent’s criminal conviction” and concluded that discretionary relief was

warranted. Id. Little or no significance appears to have been attached to the

fact that the respondent confessed to beating and shaking a nineteen-monthold child to death, or that her confession was corroborated by a coroner’s

report documenting a wide-ranging collection of extraordinarily severe

injuries.

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

13

By drafting INA § 209(c) to provide that the Attorney General “may” waive certain bars

to admission, Congress clearly left this matter to my discretion. Cf. Lopez v. Davis, 531 U.S.

230, 238-42 (2001) (statute providing that Bureau of Prisons “may” reduce sentences of

inmates completing drug treatment program imposes no obligation to do so and allows for

categorical exclusions; application is left to the Bureau’s sound discretion).

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its inception, the United States has always been a nation of immigrants; it is

one of our greatest strengths. But aliens arriving at our shores must

understand that residency in the United States is a privilege, not a right. For

those aliens, like the respondent, who engage in violent criminal acts during

their stay here, this country will not offer its embrace. The BIA’s grant of

lawful permanent residency is reversed.

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), 8 U.S.C. § 1101(a)(42)(A)

(2000); see also INA § 208(b)(1) (“The Attorney General may grant asylum

to an alien . . . if the Attorney General determines that such alien is a refugee

within the meaning of section 101(a)(42)(A).”). The applicant bears the

burden of proving his or her “refugee” status. See 8 C.F.R. § 208.13(a)

(2002).

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. AguirreAguirre, 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

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offenses that constitute “aggravated felonies” – a term of art defined in INA

§ 101(a)(43), 8 U.S.C. § 1101(a)(43) (2000) – the only category pertinent

here is “crimes of violence.” See INA § 101(a)(43)(F) (an aggravated felony

includes “a crime of violence (as defined in [18 U.S.C. § 16]) . . . for which

the term of imprisonment [is] at least one year”). After examining the

elements of the second-degree manslaughter statute to which the respondent

pled guilty, the judge held that this offense represented a “crime of violence”

and thus met the definition of an “aggravated felony.”

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.” N.Y. Penal Law

§ 125.15(1) (McKinney 1998). At least two federal judges have squarely

held that second-degree manslaughter in New York represents a “crime of

violence” for purposes of the INA. See Gibson v. Ashcroft, No.

01-Civ-9400, 2002 WL 461579, at *3 (S.D.N.Y. Mar. 26, 2002); Johnson v.

Vomacka, No. 97-Civ-5687, 2000 WL 1349251, at *4 (S.D.N.Y. Sept. 20,

2000).

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.

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C. Withholding of Removal

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, 8 C.F.R.

§ 208.16(b), and must make the requisite showing by a preponderance of the

evidence. Matter of S-V-, Interim Decision 3430 (BIA 2000) (citing Stevic,

467 U.S. at 429-30).

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 seconddegree 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

14

The respondent received an indeterminate two-to-six-year sentence upon her conviction for

second-degree manslaughter. Sentences for variable periods of time generally are treated as

sentences for the maximum period specified. See, e.g., United States v. Galicia-Delgado,

130 F.3d 518, 520-21 (2d Cir. 1997); People v. Washington, 191 N.E. 7, 8 (N.Y. 1934). In

the immigration context in particular, the courts and the BIA, in applying statutory provisions

that categorize crimes by length of incarceration, have found that indeterminate sentences

should be treated as sentences for the maximum term imposed. See, e.g., Picardo v. INS,

104 F.3d 756, 759 (5th Cir. 1997); Matter of S-S-, 21 I&N Dec. 900, 901-03 (BIA 1997).

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shall be presumed that the applicant’s life or freedom would be threatened in

the future in the country of removal on the basis of the original claim.”

8 C.F.R. § 208.16(b)(1)(i). 15 This presumption may be rebutted, however, if

the immigration judge finds, by a preponderance of the evidence, that:

(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

15

If, on the other hand, an applicant cannot show that the fear of future threat to life or

freedom is related to past persecution, then the applicant continues to bear the burden of proof

that it is more likely than not he or she would suffer such harm in the future. See 8 C.F.R.

§ 208.16(b)(1)(iii).

16

It bears noting here that the respondent never argued in her removal proceeding that a

presumption of persecution could be established through an “imputed political opinion” theory

– i.e., that the alleged persecutors put her life or freedom in jeopardy because they attributed

the political views of her husband to her. See, e.g., Lwin v. INS, 144 F.3d 505, 509-0 (7th

Cir. 1998); Sangha v. INS, 103 F.3d 1482, 1489-0 (9th Cir. 1997). Even if such a contention

had been made, however, its merit would be questionable. Indeed, the record suggests that

the violence inflicted upon the respondent’s home and non-blood relatives was committed in

an effort to find the respondent’s husband, not on account of political opinions attributed

(erroneously or otherwise) to the respondent.

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1991 Haiti,” a social group supposedly regarded by the Haitian Army as an

opposition political faction. See Hr’g Tr. (Feb. 11, 2000) at 92. Yet, she

offered no evidence that this affiliation would have been sufficient to make

her an independent target of either the Haitian Army or the Ton Ton

Macoutes.

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

17

The Report references only two instances of potentially politically-motivated violence

against critics of the former military regime. The incident cited by the respondent as evidence

of a continuing risk to her – i.e., the shooting death of Father Jean Pierre Louis, whom the

Report identifies as “an outspoken [critic] of the 1991-94 military regime” – is described as a

possible political murder. Country Report at 4. The other incident involved Haitian National

Police engaging in warrantless arrests and beatings of members of a political group allied with

the Fanmi Lavalas. Id. These events occurred, however, in the aftermath of a riot during

which members of the Fanmi Lavalas killed a police commissioner, burned his body, and

stormed a prison. Id. at 4-5. There is no indication of any systemic threat to the lives or

freedom of supporters of the current regime.

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Although I am not required to investigate whether State Department

publications that the respondent neither cited nor submitted could form the

foundation of a claim for relief, I have examined the key publications and find

they provide no such support. The Department of State’s latest asylum

profile on Haiti, published four years ago, describes dramatic human rights

improvements in Haiti following the September 1994 international

intervention to restore the country’s democratically-elected government. See

Bureau of Democracy, Human Rights, and Labor, Dep’t of State, Profile of

Asylum Claims and Country Conditions – Haiti (Mar. 31, 1998). The report

states that “[t]he repression once found in Port-au-Prince and the countryside

has been brought to an end, and people are no longer systematically subjected

to human rights violations as an instrument of state policy.” Id. at 5.

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.

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