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Matter of V-X-, Respondent

Decided June 26, 2013

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) A grant of asylum is not an “admission” to the United States under section

101(a)(13)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(13)(A)

(2006).

(2) When termination of an alien’s asylum status occurs in conjunction with removal

proceedings pursuant to 8 C.F.R. § 1208.24 (2013), the Immigration Judge should

ordinarily make a threshold determination regarding the termination of asylum status

before resolving issues of removability and eligibility for relief from removal.

(3) An adjudication of “youthful trainee” status pursuant to section 762.11 of the

Michigan Compiled Laws is a “conviction” under section 101(a)(48)(A) of the Act

because such an adjudication does not correspond to a determination of juvenile

delinquency under the Federal Juvenile Delinquency Act, 18 U.S.C. §§ 5031-5042

(2006). Matter of Devison, 22 I&N Dec. 1362 (BIA 2000), followed.

FOR RESPONDENT: Marshal E. Hyman, Esquire, Troy, Michigan

FOR THE DEPARTMENT OF HOMELAND SECURITY: Jason A. Ritter, Assistant

Chief Counsel

BEFORE: Board Panel: PAULEY, GUENDELSBERGER, and GREER, Board

Members.

PAULEY, Board Member:

In a decision dated February 16, 2012, an Immigration Judge found

the respondent inadmissible under section 212(a)(2)(A)(i)(I) of the

Immigration and Nationality Act, 8 U.S.C. § 1182(a)(2)(A)(i)(I) (2006),

as an alien convicted of a crime involving moral turpitude; section

212(a)(2)(A)(i)(II), as an alien convicted of a controlled substance

violation; and section 212(a)(2)(C), as an alien who the Attorney General

knows or has reason to believe is or has been an illicit trafficker in any

controlled substance. The Immigration Judge also found him ineligible for

asylum, withholding of removal, and protection under the Convention

Against Torture and Other Cruel, Inhuman or Degrading Treatment

or Punishment, adopted and opened for signature Dec. 10, 1984, G.A.

Res. 39/46. 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc. A/RES/39/708
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(1984) (entered into force June 26, 1987; for the United States

Apr. 18, 1988) (“Convention Against Torture”), and ordered him removed

from the United States.

The respondent has appealed, arguing that he is neither inadmissible as

charged nor ineligible for the requested relief. The respondent’s request for

oral argument is denied. The appeal will be dismissed in part. The record

will be remanded, however, for the Immigration Judge to address the

Department of Homeland Security’s (“DHS”) request to terminate the

respondent’s asylum status. On remand, the Immigration Judge should also

reconsider the respondent’s eligibility for asylum, withholding of removal,

and adjustment of status in light of the Supreme Court’s intervening

precedent in Moncrieffe v. Holder, 133 S. Ct. 1678 (2013).

I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of Albania who entered the

United States in 2003. In 2004, the DHS granted him asylum as a

derivative beneficiary of his father’s asylum application under section

208(b)(3) of the Act, 8 U.S.C. § 1158(b)(3) (2000).

In 2007 the respondent entered a guilty plea in Michigan to charges that

he delivered marijuana, conspired to deliver marijuana, and knowingly kept

a vehicle for the purpose of keeping or selling controlled substances in

violation of sections 333.7401(2)(d)(iii), 750.157a, and 333.7405(1)(d) of

the Michigan Compiled Laws, respectively. As a result of that guilty plea,

in January 2008 the respondent was designated a “youthful trainee” under

sections 762.11 of the Michigan Compiled Laws, which means that the

sentencing court deferred adjudication of his guilt and ordered him to serve

a term of rehabilitative probation with an eye to the eventual dismissal

of the charges. In August 2008, the respondent was convicted of

second-degree home invasion in violation of section 750.110a(3) of the

Michigan Compiled Laws, for which he was sentenced to 3 years of

probation, including 300 days of probationary incarceration.

Based on the respondent’s convictions, the Immigration Judge found

him inadmissible to the United States. She also determined that the

respondent is ineligible for asylum and withholding of removal on the

ground that his drug offense was a “particularly serious crime” under

sections 208(b)(2)(A)(ii) and 241(b)(3)(B)(ii) of the Act, 8 U.S.C.

§ 1231(b)(3)(B)(i) (2006). Finally, the Immigration Judge denied the

respondent’s application for protection under the Convention Against

Torture on the merits and ordered him removed to Albania.
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II. ANALYSIS

The respondent raises a number of arguments on appeal, of which some

pertain to his removability from the United States and others to his

eligibility for relief from (or protection against) removal. We shall address

each argument in turn. However, we find it necessary to first address an

important threshold issue that the parties have not discussed on appeal—

namely, the termination of the respondent’s asylum status.

A. Termination of Asylum Status

Because the respondent was granted asylum in 2004, he cannot be

removed from the United States unless and until his asylum status is

terminated. Section 208(c) of the Act; see also Matter of A-S-J-, 25 I&N

Dec. 893, 895 (BIA 2012); 8 C.F.R. § 1208.22 (2013). The regulations

contemplate that termination of an alien’s asylum status may occur in

conjunction with removal proceedings. 8 C.F.R. § 1208.24(f) (2013). But

ordinarily issues of removability and eligibility for relief from removal

should be deferred until a threshold determination is made regarding the

termination of asylum status.1 We note in this regard that the statutory

grounds for termination of asylum status are narrower than the grounds

of removability. Compare section 208(c)(2) of the Act (grounds for

termination of asylum status), with sections 212(a) and 237(a) of the Act,

8 U.S.C. § 1227(a) (2006) (grounds of removability).

The DHS filed a notice of intent to terminate the respondent’s asylum

status with the Immigration Judge shortly after filing the notice to appear,

and it requested resolution of the termination issue during the course

of the respondent’s removal proceedings, as contemplated by 8 C.F.R.

§ 1208.24(f). However, the Immigration Judge’s decision includes no

analysis of the termination issue and does not order the respondent’s

asylum status terminated. As a result, the Immigration Judge’s removal

order cannot be executed at this time, and we have no alternative but

to remand the record for entry of a new decision with respect to the

termination of the respondent’s asylum status.

In cases with unresolved questions regarding the termination of asylum

status, it may often be advisable for us to remand the record without

1 As we held in Matter of K-A-, 23 I&N Dec. 661 (BIA 2004), an Immigration Judge

need not reach the issue of termination of asylum status if the alien is eligible for, and

deserving of, some form of relief that would make termination of asylum status moot,

such as adjustment of status under section 209 of the Act, 8 U.S.C. § 1159 (2006).
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addressing other appellate issues, some of which could be rendered moot

depending on whether asylum status is terminated. On the facts of this

case, however, we find it unnecessary to withhold adjudication of all of the

respondent’s appellate arguments.

B. Asylum as an “Admission”

The respondent’s first argument is that the removal proceedings

should be terminated because the DHS improperly charged him with

inadmissibility under section 212(a)(2) of the Act. According to the

respondent, as an alien granted asylum he is subject only to deportability

charges under section 237(a) of the Act, not inadmissibility charges. In

support of that argument, the respondent invokes Matter of D-K-, 25 I&N

Dec. 761, 765–70 (BIA 2012), which was issued during the pendency of

this appeal, where we held in pertinent part that aliens “admitted” to the

United States as “refugees” under section 207 of the Act, 8 U.S.C. § 1157

(2006), are susceptible to deportability charges, but not inadmissibility

charges. We find the respondent’s argument unpersuasive.

Charges of deportability under section 237(a) of the Act pertain to aliens

who are “in and admitted to the United States,” a phrase that applies to

aliens who have been “admitted” under section 101(a)(13)(A) of the Act,

8 U.S.C. § 1101(a)(13)(A) (2006), or who have been granted lawful

permanent resident status from within the United States. See Matter of

Alyazji, 25 I&N Dec. 397, 399 (BIA 2011). The respondent does not claim

that he was ever “admitted” within the meaning of section 101(a)(13)(A).

The Immigration Judge found that the respondent was “paroled” into the

United States in 2003,2and he does not argue to the contrary on appeal.

Furthermore, the respondent has not adjusted his status to that of a lawful

permanent resident. Accordingly, despite his asylum status, the respondent

is not “in and admitted to the United States” within the meaning of section

237(a). He is therefore properly charged under section 212(a) of the Act.

Matter of D-K-, 25 I&N Dec. 761, is inapposite here because it involved

an alien who was formally “admitted” into the United States as a “refugee”

after inspection at a port of entry in accordance with sections 101(a)(13)(A)

and 207 of the Act. The respondent, who was granted asylum from within

the United States after entering on parole, was never admitted as a refugee.

Moreover, although the respondent’s grant of asylum conferred a lawful

status upon him, it did not entail an “admission.”

2

Parole is not an “admission.” Section 101(a)(13)(B) of the Act.
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The respondent has identified nothing in the language of the Act to

support his contention that Congress understood a grant of asylum to be a

form of “admission” into the United States. Instead, he points to language

in Matter of S-A-, 22 I&N Dec. 1328, 1337 (BIA 2000), where we granted

an alien’s asylum application and purported to order her “admitted to the

United States as an asylee.” We acknowledge that the cited language is

misleading because it conflates the distinct concepts of “admission to

asylum status” and “admission into the United States.”3That said, we do

not view this passing statement in Matter of S-A- as embodying a holding

that a grant of asylum is tantamount to an “admission” under section

101(a)(13)(A) of the Act. The respondent’s status as an inadmissible or

deportable alien was not a disputed issue in Matter of S-A-, and our

statement purporting to “admit” her was therefore gratuitous.

The respondent also seeks to analogize his grant of asylum to a grant of

lawful permanent resident status, which we have recognized may qualify as

an “admission,” even though it does not fit the statutory definition of that

term. See, e.g., Matter of Alyazji, 25 I&N Dec. at 390-404. We are not

convinced by this argument, however, because a grant of asylum is simply

not akin to a grant of lawful permanent resident status.

We have found that adjustment of status can be a form of admission

because adjustees have always been deemed to be assimilated to the status

of aliens admitted at the border with immigrant visas. E.g., Matter of Smith,

11 I&N Dec. 325, 326-27 (BIA 1965), superseded on other grounds by

Matter of Hom, 16 I&N Dec. 112 (BIA 1977). We have also stated that

where an alien has not otherwise been admitted to the United States,

declining to consider adjustment of status as an “admission” would result in

bizarre and absurd consequences, among them being the fact that “many

lawful permanent residents would be considered inadmissible, despite their

lawful status, based on their presence in the United States without having

been admitted.” Matter of Alyazji, 25 I&N Dec. at 399; see also Matter of

Koljenovic, 25 I&N Dec. 219 (BIA 2010); Matter of Rodarte, 23 I&N Dec.

905 (BIA 2006); Matter of Rosas, 22 I&N Dec. 616 (BIA 1999). The

3 The regulation governing adjustment of status for asylees also refers to a grant of

asylum as a form of admission. See 8 C.F.R. § 1209.2 (2013) (“The provisions of this

section shall be the sole and exclusive procedure for adjustment of status by an asylee

admitted under section 208 of the Act.” (Emphasis added.)). That characterization is

substantially contradicted, however, by 8 C.F.R. § 1208.14(c) (2013), which clarifies

that a grant of asylum does not require a threshold inspection for admissibility, the

sine qua non of an “admission,” either at a port of entry or through adjustment of status.

On the contrary, 8 C.F.R. § 1208.14(c) contemplates that an inspection for inadmissibility

will occur only “[i]f the asylum officer does not grant asylum.” (Emphasis added.)
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rationale of our adjustment of status cases does not extend to a grant of

asylum, however, because no absurd or bizarre consequences flow in the

asylum context from applying the literal language of the “admission”

definition. Cf. Matter of Reza, 25 I&N Dec. 296 (BIA 2010) (holding that a

grant of Family Unity Program benefits was not an “admission,” even

though it may have conferred a lawful status on the beneficiary).

In conclusion, the respondent’s asylum status does not qualify him as an

alien “in and admitted” to the United States within the meaning of section

237(a) of the Act. He is therefore subject to removal under section 212(a)

as an inadmissible alien, and he was properly charged as such.

C. Michigan “Youthful Trainee” Adjudication as a “Conviction”

Having concluded that the respondent was properly charged under

section 212(a) of the Act, we now turn to the validity of the charges

themselves. As noted, the Immigration Judge found that the respondent’s

2007 Michigan drug conviction renders him inadmissible under sections

212(a)(2)(A)(i)(I) and (II) of the Act, as an alien convicted of a crime

involving moral turpitude and a controlled substance violation, respectively.

He was also found inadmissible under section 212(a)(2)(C) as an alien who

the Attorney General knows or has reason to believe is or has been an illicit

trafficker in any controlled substance. On appeal, the respondent’s

sole argument is that the conviction does not qualify as a “conviction” at

all because it resulted in a “youthful trainee” designation rather than a

judgment of guilt. We disagree with that assertion.

In Matter of Devison, 22 I&N Dec. 1362 (BIA 2000), we held that

the term “conviction” under section 101(a)(48)(A) of the Act, 8 U.S.C.

§ 1101(a)(48)(A) (Supp. IV 1998), does not encompass any State court

adjudication which corresponds to a determination of juvenile delinquency

under the Federal Juvenile Delinquency Act, 18 U.S.C. § 5031–5042 (1994

& Supp. II 1996) (“FJDA”). In order for a State youthful offender

disposition to be analogous to an FJDA adjudication, however, it must be

civil in nature and must be such that it can neither be deemed a “conviction”

ab initio nor ripen into a conviction upon the occurrence or nonoccurrence

of subsequent events. See Matter of Devison, 22 I&N Dec. at 1371. As the

United States Court of Appeals for the Sixth Circuit has recognized, the

Michigan “youthful trainee” procedures at issue here do not conform to

these FJDA requirements. Uritsky v. Gonzales, 399 F.3d 728, 734–35 (6th

Cir. 2005). The respondent maintains that Matter of Devison should

be reexamined, but we conclude that it was properly decided and we

decline his request to reconsider it. Accordingly, we conclude that the
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respondent’s “youthful trainee” adjudication under Michigan law qualified

as a conviction for immigration purposes.

D. Aggravated Felony and Particularly Serious Crime

We now turn to the respondent’s eligibility for relief from (or protection

against) removal. As we noted earlier, the Immigration Judge found the

respondent ineligible for asylum and withholding of removal on the ground

that the offense underlying his 2008 Michigan conviction for delivery of

marijuana was an “aggravated felony” and a “particularly serious crime.”

Apart from his contention that a Michigan youthful trainee adjudication is

not a conviction for immigration purposes, which we have rejected, the

respondent has not disputed that he was convicted of an aggravated felony.

We note, however, that during the pendency of this appeal the

Supreme Court decided Moncrieffe v. Holder, 133 S. Ct. 1678, which

pertains to the “aggravated felony” status of certain small-scale marijuana

distribution offenses that were not for remuneration. We find that

Moncrieffe necessitates a remand for the Immigration Judge and the

parties to reconsider the aggravated felony and particularly serious crime

issues. The Immigration Judge should also consider what impact, if any,

Moncrieffe has on the issue of termination of asylum and on the

respondent’s removability under section 212(a)(2)(C) of the Act.

E. Convention Against Torture

The respondent also applied for protection under the Convention

Against Torture below, but the Immigration Judge denied that application,

concluding that the respondent had not established that he will more likely

than not be “tortured” in Albania. Under the Convention Against Torture,

“torture” means:

(1) an act causing severe physical or mental pain or suffering; (2) intentionally

inflicted; (3) for a proscribed purpose; (4) by or at the instigation of or with the

consent or acquiescence of a public official who has custody or physical control of

the victim; and (5) not arising from lawful sanctions.

Matter of J-E-, 23 I&N Dec. 291, 297 (BIA 2002); see also 8 C.F.R.

§ 1208.18(a) (2013).

The respondent’s application for Convention Against Torture protection

is based on his fear of harm at the hands of members of the Albanian

Socialist Party, who the respondent believes have a lingering grievance

against his family (particularly his sister and his father) because of their

support of the rival Albanian Democratic Party during the late 1990s. As
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the Immigration Judge determined, however, the respondent has adduced

no credible evidence to suggest that Socialist Party members commit acts

of torture against political rivals in present-day Albania. Nor has the

respondent demonstrated that any Albanian public official would instigate,

consent to, or acquiesce in such torture, should it occur. In this regard, we

note, as did the Immigration Judge, that the Albanian Government has been

controlled by the Albanian Democratic Party since 2005. While we have

no wish to minimize the respondent’s fear of returning to Albania, his claim

is too speculative to warrant a grant of protection under the Convention

Against Torture. Accordingly, the respondent’s request for such protection

will be denied.

F. Adjustment of Status and Other Relief

Although he did not seek adjustment of status below, the respondent

claims on appeal that he should be allowed to apply for adjustment under

section 209(b) of the Act in conjunction with a waiver of inadmissibility

under section 209(c). On remand, the Immigration Judge should determine

whether, in light of Moncrieffe v. Holder, 133 S. Ct. 1678, the respondent is

eligible for such relief or remains inadmissible under section 212(a)(2)(C)

of the Act—a ground of inadmissibility that cannot be waived under section

209(c).

III. CONCLUSION

In conclusion, we agree with the Immigration Judge that the respondent

is removable on the section 212(a)(2)(A) charges and that he did not

establish eligibility for protection under the Convention Against Torture.

Nevertheless, we find it necessary to remand the record so the Immigration

Judge can decide in the first instance whether the respondent’s existing

asylum status—conferred in 2004—can and, if so, should be terminated.

Upon resolving that issue, the Immigration Judge should then conduct such

further proceedings and enter such further orders as she deems appropriate

under the circumstances with respect to the respondent’s applications for

asylum and withholding of removal, as well as his potential eligibility for

adjustment of status.

ORDER: The appeal is dismissed in part.

FURTHER ORDER: The record is remanded to the Immigration

Judge for a determination whether the respondent’s asylum status may be

terminated and for the entry of such further orders as may be appropriate in

light of that determination.