News From the Courts

Posted on: October 3rd, 2017
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BIA Affirms Aiding and Abetting Under California Law is Aggravated Felony

In March 2008, an Immigration Judge found Juan Delgado, a native and citizen of Mexico and lawful permanent resident of the United States, removable as a result of a 2005 conviction of an aggravated felony. The judge also denied his applications for relief from removal, a decision appealed by Delgado.
In December 2005, Delgado was found guilty of five counts of robbery, the first of which he received a sentence of five years of incarceration and one year for each of the remaining four charges. In determining if this offense is an aggravated felony, the Board utilized a categorical approach. Inconsequential to this approach were the idiosyncratic specifics of Delgado’s case, but rather whether his State statute of conviction adhered to the Federal definition of the offense.
The generic definition of theft is “taking of property or an exercise of control over property without permission with the criminal intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less than total or permanent.” Citing precedential cases, the Board concluded that extortionate takings, such as those perpetrated through force or fear, adhere to the generic definition of aggravated felony theft, which equated the conviction Delgado faced with aggravated felony theft.
Delgado contested that the language of the violation of which he was convicted prevented such an equation from being possible. Under section 211 of the California penal code, the “taking of property” carries with it an element not only of seizure but also an element of asportation, or taking the property away. Delgado contested that the taking away of property necessitates a perpetrator, but as an aider and abettor, he could not qualify as a perpetrator. Since he argued that he did not execute this integral aspect of the definition of the law, then he could not be held accountable for its qualification as an aggravated felony.
The Board disagreed with this logic. Though it did not disagree that he did not meet the asportation element previously mentioned, it argued the element to be applicable to a specific subset of thefts; not adhering to this particular element of the definition does not exclude an individual’s qualification for the entire category. Since this indicated that Delgado’s conviction was under section 211, which was classified as an aggravated felony, Delgado’s offense was categorically an aggravated felony. Additionally, an aider and abettor assumes the same responsibility as the initial perpetrator in the crime; Delgado did not commit the initial taking of the property but his aiding and abetting made him just as responsible for the crime.
For these reasons, the Board dismissed Delgado’s appeal.

For more information, view the full case.

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BALCA Affirms Denial of Second PERM While First PERM Is Pending Before BALCA

A petition filed in late July 2012 by an employer applying for permanent employment was denied by a Certifying Officer (CO) on the basis of the application’s congruity to another pending application before the Board of Alien Labor Certification Appeals (BALCA) which was filed by the same employer for the same alien to be appointed to the same position. In October of the same year, the employer, contending difference between the two applications, submitted a Request for Reconsideration. Outlining the differences, the employer noted the job requirements, the skill level determined by the Prevailing Wage Determination (PWD), and the offered salary were all dissimilar. Also presented by the employer was an excerpt from a FAQ from the Program Electronic Review Management (PERM) which stated that the job identified and the salary requirements must be identical to be considered an identical job offer. The CO denied the employer’s Request for Reconsideration a month later, asserting that the SOC/O*NET (OES) codes and job duties for the position listed in the application were the same as the position in the other application. This led the CO to the conclusion that the applications for the same alien for the same position.

The CO transmitted the file to BALCA, which issued a Notice of Docketing in late June 2013, and in July, the employer filed a statement of intent to proceed. The employer resubmitted its Request for Reconsideration on July 24, 2013. On March 2, 2017, BALCA issued an Order Requiring Certification on Mootness, and five days later, the employer filed a response contesting the case was not moot.

The regulations specifically state that processing more than one application for the same person in the same position is barred, “a new application for the same occupation for the same alien cannot be filed while a request for review is pending with the Board of Alien Labor Certification Appeals.” The employer’s application was denied by the CO for this reason, and the employer’s reconsideration request revolves around the incongruity of the applications due to the PWD determination of a different skill level and education requirement.

In April 2008, the New York State Department of Labor issued a PWD for the employer, after the employee submitted information identifying the position title as “Medical & Health Services Manager.” The employer also listed in the application for a foreign worker named “Christine A. Ignacio” a graduate degree in dentistry and one-month training as a dentist as the job requirements for the position. The listed responsibilities for the position were to “[p]lan, direct or coordinate medicine and health services in clinics; manage organizations or similar organizations.  Oversee administrative tasks including bookeepping [sic], buying equipment and supplies; supervise employees.” The New York State Department of Labor came to conclusion, after analyzing the information the employer provided, that the skill level for the position listed was 1 and it warranted an annual prevailing wage of $65,125.00.

Almost four years later, in March 2012, the employer received a PWD from the U.S. Department of Labor for a position entitled “Medical and Health Services Manager.” The job requirements listed for this position were a Doctor of Dental Medicine and 12 months experience in the position of Dentist, and the responsibilities listed were to “[p]lan, direct or coordinate medicine and health services in clinics; no pts. care; manage organizations, oversee administrative tasks including bookkeeping, buying equipment and supplies; supervise employees.” The U.S. Department of Labor decided that, after weighing the information provided, the skill level for this position was 2 and that the prevailing wage should be $115,170.00.

While the employee, job site, job title, and all other aspects of the application were identical, the difference between the two was in regard to the skills and experience required and the financial compensation. BALCA determined that this increase in prevailing wage was a direct result of the heightened requirements of Doctor of Dental Medicine instead of a graduate degree in Dentistry and 12 months experience as a dentist instead of one-month training. This did not, however, constitute to BALCA an entirely different position. The employers evidence of the FAQ was also inadequate, due to it pertaining to applications filed under pre-PERM program and applications re-filed under PERM regulations, as was not the situation in her instance. BALCA pointed out that the employer had the capability to withdraw the pending appeal and file a new petition, but since two applications were submitted for the same alien and the same position, which is against regulations, they affirmed the decision of the CO.

For more information, view the full case.

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