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Interim Decision #3499

In re K-A-, Respondent

Decided as amended on June 23, 20041

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) Pursuant to 8 C.F.R. § 1209.2(c) (2004), once an asylee has been placed in removal

proceedings, the Immigration Judge and the Board of Immigration Appeals have exclusive

jurisdiction to adjudicate the asylee’s applications for adjustment of status and a waiver

of inadmissibility under sections 209(b) and (c) of the Immigration and Nationality Act,

8 U.S.C. §§ 1159(b) and (c) (2000). Matter of H-N-, 22 I&N Dec. 1039 (BIA 1999),

distinguished.

(2) Termination of a grant of asylum pursuant to section 208(c)(2) of the Act, 8 U.S.C.

§ 1158(c)(2) (2000), is not mandatory with respect to an asylee who qualifies for and

merits adjustment of status and a waiver of inadmissibility under sections 209(b) and (c)

of the Act.

FOR RESPONDENT: Ian Bratlie, Esquire, York, Pennsylvania

FOR THE DEPARTMENT OF HOMELAND SECURITY:2

Assistant Chief Counsel

Raphael A. Sánchez,

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, 8 U.S.C. §§ 1159(b) and

(c) (2000), respectively. The appeal will be dismissed.

1

On our own motion, we amend the May 20, 2004, order in this case. The amended order

makes editorial changes consistent with our designation of the case as a precedent.

2

The functions of the Immigration and Naturalization Service have been transferred to the

Department of Homeland Security pursuant to the Homeland Security Act of 2002, Pub. L.

No. 107-296, 116 Stat. 2135. The transfer occurred on March 1, 2003. See Matter of D-J-,

23 I&N Dec. 572, 573 n.1 (A.G. 2003).

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Interim Decision #3499

I. BACKGROUND

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, 8 U.S.C. § 1227(a)(2)(A)(i) (2000), and as an alien convicted of an

aggravated felony under section 237(a)(2)(A)(iii) of the Act. On May 30, 2003,

the DHS also issued a notice of intent to terminate the respondent’s asylee

status on the ground that she had been convicted of an aggravated felony.

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

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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, 8 U.S.C. § 1101(a)(42)(A) (2000), that she is not

“firmly resettled” in any foreign country, and that she is admissible to the United

States as an immigrant. Section 209(b) of the Act. With respect to the

admissibility requirement, however, section 209(c) of the Act confers

discretionary authority on the Attorney General to waive certain grounds of

inadmissibility “for humanitarian purposes, to assure family unity, or when it is

otherwise in the public interest.”

To implement the statutory requirements of section 209 of the Act, the

Attorney General has promulgated two separate regulations. The first

regulation, 8 C.F.R. § 1209.1 (2004), applies to aliens who were admitted to the

United States as refugees pursuant to section 207 of the Act, 8 U.S.C. § 1157

(2000 & Supp. I 2001). This regulation was the subject of our decision in

Matter of H-N-, supra. The second regulation, 8 C.F.R. § 1209.2 (2004),

applies to aliens—such as the present respondent—who were granted asylum

pursuant to section 208 of the Act, 8 U.S.C. § 1158 (2000 & Supp. I 2001),

while physically present in the United States or while seeking admission at a

port of entry. Thus, the first question to be decided on appeal is whether

8 C.F.R. § 1209.2 confers authority upon the Immigration Judge to adjudicate

the respondent’s applications for adjustment of status and a waiver of

inadmissibility. We conclude that it does.

As the Immigration Judge observed in her October 7, 2003, interim decision,

8 C.F.R. § 1209.2(c) specifies that applications for adjustment of status under

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section 209 of the Act “can be filed and considered only in proceedings under

section 240 of the Act” if the applicant has been placed in such proceedings by

the DHS.3 This language is unequivocal and admits of no other interpretation

than that Immigration Judges possess original and exclusive jurisdiction to

adjudicate applications for adjustment of status filed by aliens granted asylum

under section 208 of the Act who, like the respondent, have been placed in

removal proceedings.

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 8 C.F.R. § 1240.11(a) (2004)—the regulation governing

Immigration Judges’ authority to adjudicate applications for adjustment of status

in removal proceedings—which provides in pertinent part that Immigration

Judges have authority to adjudicate requests for waivers of inadmissibility “[i]n

conjunction with any application for creation of status of an alien lawfully

admitted for permanent residence made to an immigration judge.” 8 C.F.R.

§ 1240.11(a)(2) (emphasis added). Similarly, in elucidating the scope of

Immigration Judges’ authority in general, 8 C.F.R. § 1240.1(a)(2) (2004)

provides that “[s]ubject to any specific limitation prescribed by the Act and [the

regulations], immigration judges shall . . . exercise the discretion and authority

conferred upon the Attorney General by the Act as is appropriate and necessary

for the disposition of . . . cases.” Reading these regulations in conjunction with

the express language of 8 C.F.R. § 1209.2(c), and recognizing that a section

209(c) waiver is often a sine qua non for adjustment of status under section

209(b), we conclude that an Immigration Judge’s jurisdiction over an application

for section 209(b) adjustment filed by an asylee in removal proceedings

necessarily implies the existence of supplemental jurisdiction over that same

asylee’s request for a waiver under section 209(c) of the Act.4 Accordingly, we

conclude that the Immigration Judge correctly asserted jurisdiction over the

respondent’s applications for such relief.

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

3

As a result of the transfer of the functions of the Immigration and Naturalization Service

to the Department of Homeland Security, the regulations in chapter I of the Code of Federal

Regulations were transferred or duplicated to a new chapter V, so the regulation cited by the

Immigration Judge, 8 C.F.R. § 209.2(c), is now codified at 8 C.F.R. § 1209.2(c). See Aliens

and Nationality; Homeland Security; Reorganization of Regulations, 68 Fed. Reg. 9824, 9835

(Feb. 28, 2003), 2003 WL 553495.

4

To the extent that dicta in Matter of H-N-, supra, may be read to support a contrary

result, we withdraw from that part of the decision.

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a grant of asylum does not automatically entitle an alien to lawful permanent

resident status in the United States, and that an asylum grant may be terminated

by the Attorney General if any of the following apply: (1) the alien ceases to be

a “refugee” under section 101(a)(42)(A) of the Act “owing to a fundamental

change in circumstances”; (2) the alien is determined by the Attorney General

to be undeserving of asylum protection on grounds of national security or as a

result of criminal or persecutory acts of the alien, or because the alien is firmly

resettled in a foreign country; (3) the alien may be removed to a safe third

country by means of a bilateral or multilateral agreement; (4) the alien has

returned to his or her country of nationality as an actual or potential permanent

resident; or (5) the alien has acquired a new nationality and enjoys the protection

of the country of his or her new nationality.

It is undisputed that the respondent’s asylee status is subject to termination

based upon her admitted aggravated felony conviction. See 8 C.F.R.

§§ 1208.13(c)(2)(i)(D), 1208.24(a)(3) (2004). Moreover, the Immigration

Judge plainly had authority to order the respondent’s asylee status terminated.

See 8 C.F.R. § 1208.24(f) (2004). The DHS insists, however, that the

Immigration Judge wasobliged to terminate the respondent’s asylee status prior

to considering whether she was eligible for relief under section 209 of the Act.

According to the DHS, any other approach would defeat congressional intent by

permitting asylees convicted of aggravated felonies to apply for section 209

relief despite the fact that they would presently be ineligible for asylum itself.

Both section 208(c)(2) of the Act and its implementing regulation, 8 C.F.R.

§ 1208.24, provide that the Attorney General may determine whether an

enumerated basis for termination of asylum exists and that the Attorney General

may terminate an alien’s asylee status if such a basis is found to exist. The

statute, by its terms, does not provide for automatic termination of asylee

status; rather, it authorizes—but does not compel—the Attorney General to act.

Viewing the statutory and regulatory language in this light, we find no reversible

error in the Immigration Judge’s decision to defer judgment on the termination

question pending consideration of the respondent’s applications for relief under

sections 209(b) and (c) of the Act.

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 8 C.F.R. § 1208.24 as if it

were mandatory, so as to avoid frustrating an unspoken but implied

congressional “policy” against permitting aliens convicted of aggravated

felonies to seek section 209 relief. We are not persuaded by the DHS’s

argument.

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,

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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.

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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.

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