Written by: Stephen Manning

We here at Immigration Slip Opinion have been keeping on eye on the BIA. We’ve posted about some recent significant BIA decisions. In this post, we concentrate on issues presently before the BIA that could be resolved by precedent decisions. It’s the Ghost of Immigration Past and the Ghost of Immigration Future.

The BIA has been very busy of late. In addition to an increase in precedent decisions (7 already in 2010; 34 in 2009), it is hearing oral arguments in more cases now than in the past. Recently, it also requested supplemental briefing on specific issues in a number of cases, providing insight into some of its concerns. In one case, it even sought participation of amicus curiae – a request that AILA fulfilled. Here is a summary of what’s brewing at the BIA:

“Aging out” issues: K-2 and CSPA

There are at least seven cases currently before the BIA that raise the question of whether Congress intended that a K-2 visa holder, admitted to the United States as the child of a fiancé(e) of a U.S. citizen, would become ineligible for adjustment of status upon turning 21. In briefs submitted as amici curiae, the American Immigration Council (Immigration Council) and AILA argue that such a result would produce absurd results and could not have been Congress’s intent. After all, the statute permits – and DHS practice allows – a child of a fiancée to enter the country on a K-2 visa up until his or her 21st birthday. In numerous cases, children enter with only a few days to spare before turning 21. Interpreting the statute as allowing these children to enter until age 21, but then also requiring that an adjustment be completed before they turn 21, is simply unreasonable. The only reasonable interpretation of the statute is that a K-2 child must be under 21 at admission but not at the time of adjustment. A recent favorable 10th Circuit decision doesn’t go quite this far, but should help convince the BIA that DHS is wrong. We have asked the BIA to schedule oral argument on this issue and to decide these cases together.

On a related “aging-out” issue, the BIA asked the parties in a CSPA case to submit supplemental briefs on the meaning of the requirement that a child have “sought to acquire” LPR status within one year of visa availability. Both DHS and DOS interpret this requirement narrowly as being limited to filing an application for an immigrant visa or adjustment of status. As explained in an amicus brief that the Immigration Council filed with the BIA, this interpretation conflicts with at least two unpublished BIA decisions, both of which concluded – quite sensibly – that because Congress did not use the word “filed” it could not have meant to limit this phrase to the act of “filing.”

Asylum-related concerns

In In re C-T-L, the BIA invited amicus curiae briefing on the question of whether the “one central reason” standard adopted by the REAL ID Act, and indisputably applicable in asylum cases, also applies to withholding of removal cases. Engaging in a comprehensive statutory interpretation analysis, AILA’s amicus brief demonstrates that this standard does apply to withholding cases. At the same time, AILA urges the BIA to reconsider an earlier precedential asylum case that unlawfully restricts the meaning of the “one central reason” standard. Unfortunately, AILA is not alone as amicus. The anti-immigrant Federation for American Immigration Reform (FAIR) submitted an amicus brief which argues for the opposite result, although without the same thorough analysis found in AILA’s brief.

Last month, the BIA also heard oral argument in another asylum case in which the Northwest Immigrant Rights Project (NWIRP), the Immigration Council, and AILA all participated as amici. There, the BIA was concerned with whether, under National Cable & Telecomm. Ass’n v. Brand X Internet Services, 545 U.S. 967 (2005) (Brand X), it could refuse to follow Ninth Circuit precedent that sets forth the “disfavored group” analysis for asylum cases. At oral argument, counsel for NWIRP (Matt Adams), representing amici, explained how the disfavored group standard arises directly from the asylum statute itself and is an entirely reasonable doctrine, not inconsistent with the case law of the other circuits. For these reasons, amici argue that the Board must apply this standard in cases arising in the Ninth Circuit.

Matter of Shanu and the meaning of “admission”

In a case that ultimately was dismissed on other grounds, the BIA requested briefing and set oral argument on whether Matter of Shanu, 23 I&N Dec. 754 (BIA 2005), remains viable since it now has been rejected by four courts of appeals. Another case raising Shanu remains pending before the BIA, however, and the Board recently indicated to the Immigration Counsel, amicus in the case, that it would ask for additional briefing and set oral argument in that case instead. Shanu holds that the term “admission” in INA § 237(a)(2)(A)(i)(I) includes “adjustment of status,” a conclusion the courts have rejected as inconsistent with the statutory definition of this term. Section 237(a)(2)(A)(i) provides that a person who is convicted of a crime involving moral turpitude committed within five years after the date of “admission” is removable. As a result, under Shanu, the date of a person’s adjustment may trigger the five year inadmissibility period even if the person previously had a lawful admission consistent with the statutory definition. In its amicus brief, the Immigration Council argues that the statute unambiguously provides that the date of adjustment is not the date of “admission” for purposes of this statute.

Watch for future postings on developments in these and other cases at the Board.

– guest blogging by Mary Kenney, Senior Attorney, American Immigration Council.