BIA Addresses Asylum Grant as Admission
By Susan Schreiber
Does a grant of asylum constitute an "admission"? Can an immigration judge make findings about an asylee's removability without first determining whether to terminate asylum status? And is a Michigan "youthful trainee" disposition a conviction under immigration law? These are the issues that the Board addressed in a recent decision regarding an asylee from Albania who was placed in removal proceedings after being convicted of controlled substance offenses and home invasion. Matter of V-X, 26 I&N Dec. 147 (BIA 2013).
In V-X, an Albanian national who was paroled into the United States in 2003 and granted derivative asylee status in 2004, was placed in removal proceedings and charged with three grounds of crime-based inadmissibility. The charges were based on his 2007 offenses for delivery of marijuana, conspiracy to deliver marijuana, and having a vehicle for the purpose of keeping or selling controlled substances. V-X had been sentenced for these offenses as a "youthful trainee" under a Michigan deferred adjudication scheme that provides for dismissal of charges after successful completion of probation. He was then convicted in 2008 of home invasion, and sentenced to a period of probation as well as probationary incarceration. In subsequent removal proceedings, the immigration judge found V-X inadmissible under INA § 212(a)(2) for being convicted of a crime of moral turpitude and a controlled substance violation, and also as a person believed to be a drug trafficker. The Judge further concluded that V-X was ineligible for relief from removal.
On appeal, the Board first determined that the IJ improperly found V-X removable as charged and ineligible for relief without first addressing the issue of termination of his asylum status. Noting that the regulations at 8 CFR § 1208.24 allow for termination of asylum status in conjunction with removal proceedings, the Board found that ordinarily issues of removability and eligibility for relief should be deferred until a "threshold determination" is made regarding termination of asylum status. Because the IJ failed to make such a determination, the Board ordered that the record be remanded for the entry of a new decision.
The Board next addressed the V-X's contention that the grant of asylum constituted an admission, thereby making him subject to grounds of deportability, not inadmissibility. Rejecting this argument, the Board concluded that deportability charges under INA § 237(a) apply only to noncitizens who are "in and admitted to the United States" or granted LPR status, and that V-X does not fall within either category because he was paroled into the United States and is not an LPR. In the Board's assessment, the grant of asylum confers a lawful status, but does not entail an admission, nor is it analogous to a grant of a lawful permanent resident status, which qualifies as an admission in certain circumstances. See, e.g. Matter of Alyazji, 25 I&N Dec. 397 BIA 2011). Acknowledging that language in Matter of S-A, 22 I&N Dec. 1328, 1337 (BIA 2000) refers to a noncitizen's "admission to the U.S. as an asylee," the Board characterized this as a misleading "passing statement" that was not part of the holding of the case.
Finally, while upholding the IJ’s finding that Michigan youthful trainee dispositions constitute convictions, the Board determined that a recent Supreme Court decision issued during the pendency of the appeal nevertheless required remanding the case to the IJ because of its potential impact on the assessment of termination of asylum and eligibility for relief. As the Board noted, the Supreme Court decision in Moncrieffe v. Holder, 133 S. Ct 1678, addresses when a small-scale marijuana distribution offense is not an aggravated felony drug trafficking offense. On remand, the IJ was directed to assess the issues of termination of asylum, inadmissibility as a drug trafficker under 212(a)(2)(C) and eligibility for a 209(c) waiver in light of the Moncrieffe decision.