Ibrahim Bare v. William Barr ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
IBRAHIM FARHAB BARE, No. 17-73269
Petitioner,
Agency No.
v. A073-436-746
WILLIAM P. BARR, Attorney General,
Respondent. OPINION
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted August 7, 2019
San Francisco, California
Filed September 16, 2020
Before: Diarmuid F. O’Scannlain, Eugene E. Siler, * and
Jacqueline H. Nguyen, Circuit Judges.
Opinion by Judge Siler
*
The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
2 BARE V. BARR
SUMMARY **
Immigration
Denying Ibrahim Bare’s petition for review of a decision
of the Board of Immigration Appeals, the panel held that:
1) the BIA did not err in concluding that Bare’s conviction
for being a felon in possession of a firearm or ammunition,
in violation of 18 U.S.C. §§ 922(g)(1) and 924(A)(2),
constitutes a particularly serious crime barring withholding
of removal; and 2) the IJ lacked jurisdiction to consider
Bare’s request for adjustment of status in “asylum-only”
proceedings.
Bare, a native and citizen of Somalia, came to the United
States as a stowaway, was placed in “asylum-only”
proceedings for stowaways, and was granted asylum in
1997. Asylum-only proceedings are limited to determining
eligibility for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). An IJ later
granted the government’s motion to reopen in order to
terminate Bare’s asylum grant based on his conviction. The
IJ determined that he lacked jurisdiction to consider Bare’s
request for an adjustment of status, and denied withholding
of removal and CAT relief. The BIA affirmed.
As a preliminary matter, the panel concluded that Bare
exhausted his challenges related to the first factor of the test
for whether a crime is particularly serious. The panel next
concluded that the BIA did not abuse its discretion in
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
BARE V. BARR 3
concluding that Bare’s conviction for being a felon in
possession of a firearm was a particularly serious crime
barring withholding of removal. First, the panel rejected
Bare’s contention that the agency erred by not explicitly
considering the elements of the offense, concluding that the
agency’s analysis was sufficient under the circumstances.
Second, the panel rejected Bare’s contention that the crime
is a “status offense” and is, therefore, categorically excluded
from being particularly serious. The panel noted that it
would be anomalous if a conviction for the offense where
the sentence is less than five years’ imprisonment was
categorically excluded from being a particularly serious
crime, but where the sentence is five years’ imprisonment or
more, is defined as per se particularly serious by statute.
Third, the panel concluded that it was proper for the IJ to
consider the circumstances in which Bare came into
possession of the relevant firearms, the effect of his business
on the community, and other acts going to his mental state.
Next, the panel concluded that the IJ lacked jurisdiction
to consider Bare’s request for adjustment of status because
Bare was in “asylum-only” proceedings. Bare argued that
he lost his status as a stowaway when granted asylum and,
therefore, reopening his asylum-only proceedings was
improper; instead, he should have been in removal
proceedings under § 240 of the Immigration and Nationality
Act, in which an IJ can grant adjustment of status.
The panel first concluded that Bare’s grant of asylum did
not terminate his stowaway status, explaining that the plain
meaning of the statute and the statutory context make clear
that a stowaway retains stowaway status when granted
asylum. The panel next concluded that, because Bare
retained his stowaway status, there was no bar to reopening
his asylum-only proceeding to terminate asylum, and further
4 BARE V. BARR
explained that regulations allow asylum to be terminated by
reopening a case, and the case to be reopened here was
Bare’s asylum-only proceeding.
The panel also rejected Bare’s contention that, even in
asylum-only proceedings, he should have been able to apply
for adjustment. The panel explained that allowing the IJ to
consider that request would contradict the limits on asylum-
only proceedings, and is unnecessary because Bare has
another avenue to seek adjustment. Specifically, the panel
explained that Bare met all the requirements to apply for
adjustment, provided that he also sought and received a
waiver, but that the application should have been made to the
United States Citizenship and Immigration Service, which
retains the authority to consider his request.
COUNSEL
Kari E. Hong (argued), Boston College Law School,
Newton, Massachusetts, for Petitioner.
Michael C. Heyse (argued), Acting Senior Litigation
Counsel; Mary Jane Candaux, Assistant Director; Joseph H.
Hunt, Assistant Attorney General; Office of Immigration
Litigation, Civil Division, United States Department of
Justice, Washington, D.C.; for Respondent.
BARE V. BARR 5
OPINION
SILER, Circuit Judge:
Ibrahim Farhab Bare, a native and citizen of Somalia,
petitions for review of a decision of the Board of
Immigration Appeals (“BIA”) dismissing his appeal. Bare
came to the United States as a stowaway in 1996, requested
asylum, and was placed in “asylum-only” proceedings
before an immigration judge (“IJ”). Bare was granted
asylum in 1997. Over a decade later, the government moved
to reopen Bare’s asylum-only proceeding to terminate his
grant of asylum based on his conviction for being a felon in
possession of a firearm or ammunition, in violation of
18 U.S.C. §§ 922(g)(1) and 924(a)(2). 1 The IJ granted the
motion and reopened Bare’s asylum-only proceeding. In the
reopened proceeding, Bare requested to adjust his status to
that of a lawful permanent resident, but the IJ refused to
consider his request, reasoning that an IJ in asylum-only
proceedings lacks jurisdiction to adjust status. Bare then
requested a continuance to allow him to apply for an
adjustment of status with the United States Citizenship and
Immigration Services (“USCIS”). The IJ terminated Bare’s
asylum without addressing his continuance request. The IJ
then denied Bare’s request for withholding of removal,
finding that his conviction constituted a particularly serious
crime making him ineligible for it. Finally, the IJ denied
Bare’s requests for withholding and deferral of removal
under the Convention Against Torture (“CAT”). Bare
appealed to the BIA, which affirmed the IJ’s decision.
1
For simplicity, we will omit “or ammunition” when referring to
Bare’s conviction throughout this opinion.
6 BARE V. BARR
Bare now petitions for review of the BIA’s order
affirming the IJ’s findings and decision, arguing that the BIA
and IJ erred in two conclusions: (1) that his firearm
conviction constitutes a particularly serious crime; and
(2) that the IJ lacked jurisdiction to consider his request for
an adjustment of status. The government contends that Bare
has not exhausted his particularly serious crime argument.
However, we conclude that Bare has adequately exhausted
his particularly serious crime argument but the BIA and IJ
did not err in concluding that his firearm conviction
constitutes a particularly serious crime, thus making him
ineligible for withholding of removal. The termination of
Bare’s grant of asylum by reopening his asylum-only
proceeding was not error, and the IJ did not have jurisdiction
to consider Bare’s request for an adjustment of status
because of the limited scope of such proceedings. Bare’s
request for an adjustment of status should have been made
to the USCIS, not the IJ. Therefore, we deny review.
I.
A.
Bare entered the United States in 1996 at the age of
seventeen as a stowaway aboard a ship. He requested
asylum and was placed into “asylum-only” exclusion
proceedings. An IJ granted Bare asylum in 1997. Over the
next fifteen years, Bare lived as an asylee in the United
States, but never applied for an adjustment of status to
become a lawful permanent resident. During this time, Bare
entered into a relationship with a woman, whom he considers
his common-law wife, and they have two children together.
His wife has another child from a previous relationship
whom Bare identifies as his stepson. While an asylee, Bare
had three felony convictions prior to his conviction at issue
BARE V. BARR 7
here: possession of burglary tools in 2000 and resisting
arrest in both 2001 and 2002.
In 2009, Bare and his wife moved to Whippoorwill,
Arizona, a small community deep in the Navajo Nation.
Shortly thereafter, Bare began operating an unlicensed
pawnshop out of his home, where he also sold alcohol and
drugs. His pawnshop dealt in firearms as well, which is how
he came into possession of the firearms he was convicted of
possessing. Not surprisingly, Bare’s business attracted
trouble for this quiet, rural community. There was an influx
of vandalism, crime, violence, and unsavory characters.
During his time in Whippoorwill, there was a series of
incidents where Bare exhibited aggressive and threatening
behavior toward others, including children: he verbally
berated a child at his daughter’s school, he boarded a school
bus full of middle-school students and cursed and threatened
them with violence, he pointed a rifle at a teenager and
threatened to kill him for allegedly stealing a television from
him, and he was part of a group that beat a teenager with a
baseball bat.
The incident leading to the revocation of Bare’s asylum
occurred at his house in 2012. One night, a neighbor upset
about a pawn transaction came to Bare’s house. Bare and
his children were sleeping in the house, so his wife answered
the door. An argument ensued which woke up Bare, who
joined in. The situation escalated when Bare pointed a pistol
at the unarmed neighbor. As the neighbor left, Bare fired the
pistol into the air. The police later recovered the pistol and
five rounds of ammunition from Bare’s house. As a result,
Bare was charged with being a felon in possession of a
firearm.
Federal agents went to Bare’s home with an arrest
warrant a month later, after he failed to appear in court.
8 BARE V. BARR
Inside the house agents found two rifles and hundreds of
rounds of ammunition of various calibers.
Bare was convicted by a jury of two counts of being a
felon in possession of a firearm in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2). He was eventually sentenced to
54 months’ imprisonment. See United States v. Bare,
806 F.3d 1011, 1015–17 (9th Cir. 2015) (discussing the
appellate history of the case and upholding the 54-month
sentence).
B.
As a result of his conviction, the Department of
Homeland Security (“DHS”) filed a motion with the IJ to
reopen Bare’s asylum-only proceeding from 1997 to
terminate his grant of asylum. The IJ granted the
government’s motion to reopen the proceeding. In the
proceeding, Bare applied to the IJ for an adjustment of status,
but the IJ concluded that he did not have the authority to
consider it because Bare was in a reopened asylum-only
proceeding and, in asylum-only proceedings, an IJ cannot
consider requests for an adjustment of status. Bare then
requested the IJ defer a decision on whether to terminate his
asylum in order to allow him time to apply for an adjustment
of status with the USCIS. The IJ terminated Bare’s asylum
status without ruling on, or mentioning, his pending
continuance request. Next, the IJ denied Bare’s request for
withholding of removal, finding that his firearm conviction
was a particularly serious crime which made him ineligible
for withholding of removal. Finally, the IJ denied Bare’s
request for withholding and deferral of removal under the
CAT. After the hearing, the IJ denied Bare’s motion to
reconsider his continuance request to allow him to apply to
USCIS for an adjustment of status.
BARE V. BARR 9
The BIA affirmed the IJ’s decision, finding that (1) the
IJ did not have jurisdiction over his adjustment of status
request and (2) Bare’s firearm conviction was a particularly
serious crime, barring withholding of removal. Bare now
seeks review of the BIA’s order affirming the IJ’s findings
and decision.
II.
We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1).
To the extent the BIA’s decision arises from asylum-only
proceedings, the BIA’s denial of Bare’s appeal is the
functional equivalent of a final order of removal. See Bao
Tai Nian v. Holder, 683 F.3d 1227, 1230 (9th Cir. 2012).
A.
1.
As a preliminary matter, the government contends that
we lack jurisdiction over Bare’s specific argument that his
firearm conviction is a status offense and cannot be a
particularly serious crime because he failed to exhaust the
argument by adequately raising the issue before the BIA.
We disagree.
Exhaustion requires a non-constitutional legal claim to
the court on appeal to have first been raised in the
administrative proceedings below, Barron v. Ashcroft,
358 F.3d 674, 678 (9th Cir. 2004), and to have been
sufficient to put the BIA on notice of what was being
challenged, Alvarado v. Holder, 759 F.3d 1121, 1128 (9th
Cir. 2014). A petitioner must do more than make a “general
challenge to the IJ’s decision.” Zara v. Ashcroft, 383 F.3d
927, 930 (9th Cir. 2004). But this does not require the issue
to have been raised in a precise form during the
10 BARE V. BARR
administrative proceeding. Vizcarra-Ayala v. Mukasey,
514 F.3d 870, 873 (9th Cir. 2008); see Diaz-Jimenez v.
Sessions, 902 F.3d 955, 959 (9th Cir. 2018) (“We do not
employ the exhaustion doctrine in a formalistic manner.”
(quoting Ren v. Holder, 648 F.3d 1079, 1083 (9th Cir.
2011))). Rather, the petitioner may raise a general argument
in the administrative proceeding and then raise a more
specific legal issue on appeal. See Moreno-Morante v.
Gonzales, 490 F.3d 1172, 1173 n.1 (9th Cir. 2007). What
matters is that the BIA was sufficiently on notice so that it
“had an opportunity to pass on this issue.” Zhang v.
Ashcroft, 388 F.3d 713, 721 (9th Cir. 2004) (per curiam).
In his brief to the BIA, Bare argued that “the IJ failed to
consider the appropriate factors and relied on improper
evidence in making the particular[ly] serious
determination.” The government contends that this was
insufficient to put the BIA on notice that he was challenging
the IJ’s failure to address the first factor of the test used to
determine if a crime is particularly serious. Bare’s
contention in his brief to the BIA was that the IJ “failed to
consider the appropriate factors.” There are only three
factors. See Flores-Vega v. Barr, 932 F.3d 878, 884 (9th
Cir. 2019) (noting that, although there were four factors, the
fourth factor no longer requires an independent inquiry).
Bare’s brief to the BIA also argued that the IJ erred when
considering the third factor by improperly weighing
evidence, so that cannot be the factor that Bare claims the IJ
“failed to consider.” The IJ in his written opinion explicitly
noted the second factor, but did not explicitly consider the
first factor. Thus, when considered in the context provided
by the IJ’s written decision, Bare’s brief gave the BIA
sufficient notice that he was challenging the IJ’s failure to
consider the first factor.
BARE V. BARR 11
The government also contends that Bare’s argument was
too general to put the BIA on notice of his specific argument
that being a felon in possession of a firearm is a “status
offense” and thus cannot be a particularly serious crime
because it necessarily fails the first factor.
We have previously found exhaustion in cases where the
argument to the BIA was more general than the argument
made to the BIA here. See, e.g., Moreno-Morante, 490 F.3d
at 1173 n.1 (finding a grandfather’s general claim before the
BIA that he was the de facto parent of his two grandchildren
constituted administrative exhaustion of his later specific
statutory argument that his grandchildren came within the
definition of “child” in the applicable statute); Zhang,
388 F.3d at 721 (finding administrative exhaustion where
the petitioner’s brief to the BIA merely stated that he was
seeking reversal of IJ’s denial of relief under the CAT, but
did not include any legal arguments or provide a specific
basis on which he was challenging the IJ’s CAT
determination). Therefore, the BIA was sufficiently on
notice and Bare exhausted his legal claims before the BIA,
so we have jurisdiction.
2.
“Pursuant to 8 U.S.C. § 1252(a)(2)(B)(ii), we ‘lack
jurisdiction over the BIA’s ultimate determination that
[Bare] committed a particularly serious crime.’” Flores-
Vega, 932 F.3d at 884 (quoting Anaya-Ortiz v. Holder,
594 F.3d 673, 676 (9th Cir. 2010)). “But we retain
jurisdiction to ‘determine whether the BIA applied the
correct legal standard.’” Id. (quoting Anaya-Ortiz, 594 F.3d
at 676). We review for an abuse of discretion. See Arbid v
Holder, 700 F.3d 379, 385 (9th Cir. 2012) (per curiam).
Under the abuse-of-discretion standard, we may reverse the
BIA’s decision only if the BIA acted “arbitrarily,
12 BARE V. BARR
irrationally, or contrary to law.” Id. (quoting Singh v. INS,
213 F.3d 1050, 1052 (9th Cir. 2000)). Our review is “limited
to ensuring that the agency relied on the ‘appropriate factors’
and ‘[]proper evidence’ to reach this conclusion.”
Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1077 (9th
Cir. 2015) (alteration in original) (quoting Anaya-Ortiz,
594 F.3d at 676).
With several exceptions, an alien is entitled to
withholding of removal where “the alien’s life or freedom
would be threatened in [the country of removal] because of
the alien’s race, religion, nationality, membership in a
particular social group, or political opinion.” 8 U.S.C.
§ 1231(b)(3)(A). One exception is when the alien has been
convicted of a “particularly serious crime.” Id.§ 1231(b)(3)(B)(ii). There are two ways in which a crime
can be a particularly serious crime: (1) an aggravated felony
resulting in an aggregate sentence of imprisonment of at
least five years is per se a particularly serious crime, or
(2) the Attorney General may “designate offenses as
particularly serious crimes through case-by-case
adjudication as well as regulation,” Delgado v. Holder,
648 F.3d 1095, 1098 (9th Cir. 2011) (en banc). See 8 U.S.C.
§ 1231(b)(3)(B)(iv). Since Bare received less than five
years’ imprisonment, our inquiry is under the latter category.
In In re Frentescu, 18 I. & N. Dec. 244, 247 (B.I.A.
1982), the BIA developed a multi-factor test to determine on
a case-by-case basis whether a crime is particularly serious.
Subsequent cases have altered and refined the analysis. See
In re N-A-M-, 24 I. & N. Dec. 336, 342 (B.I.A. 2007),
overruled in part on other grounds by Blandino-Medina v.
Holder, 712 F.3d 1338, 1347–48 (9th Cir. 2013). The
factors to be considered are: (1) “the nature of the
conviction,” (2) “the type of sentence imposed,” and (3) “the
BARE V. BARR 13
circumstances and underlying facts of the conviction.” Id.The nature of the conviction is examined by looking at the
elements of the offense. Id. This factor serves a gatekeeping
function: “If the elements of the offense do not potentially
bring the crime into a category of particularly serious crimes,
the individual facts and circumstances of the offense are of
no consequence,” the analysis stops at the first factor, and
the alien is not barred from withholding of removal. Id. If,
however, “the elements of the offense are examined and
found to potentially bring the offense within the ambit of a
particularly serious crime,” then the other factors are
considered. Id. In considering the second and third factors,
“all reliable information may be considered . . . including the
conviction records and sentencing information, as well as
other information outside the confines of a record of
conviction.” Id.Here, the BIA affirmed the IJ’s determination that Bare’s
conviction was a particularly serious crime, precluding his
eligibility for withholding of removal. Bare challenges this
determination on three grounds. First, he argues that the
crime of being a felon in possession of a firearm is a “status
offense” whose elements do not potentially bring it within
the category of particularly serious crimes. Second, he
argues that the IJ and the BIA erred by not considering the
first Frentescu/N-A-M- factor. And third, he argues that, in
analyzing the third factor, the IJ and BIA erred by
considering impermissible facts and failing to give adequate
weight to other, permissible facts.
i.
Bare argues that the IJ and BIA erred by skipping over
the first Frentescu/N-A-M- factor and not explicitly
conducting an analysis of it before moving on to the other
factors. Because the BIA adopted and affirmed the IJ’s
14 BARE V. BARR
reasoning, and also contributed its own reasoning to the
analysis, we review both decisions. Zhi v. Holder, 751 F.3d
1088, 1091 (9th Cir. 2014). In their written decisions, the IJ
and BIA both discussed the correct standard—the
Frentescu/N-A-M- factors—for determining if a crime is
particularly serious. In particular, the IJ emphasized the
requirement that reviewing the elements of the offense
occurs first, and only if the elements of the offense
potentially bring the offense within the ambit of a
particularly serious crime is the IJ to consider the other
factors. The BIA found that the IJ “properly arrived” at the
particularly serious crime determination and noted that the
IJ had considered the nature of the conviction. Neither the
IJ nor the BIA listed the elements of felon in possession of a
firearm in their written decisions, neither explicitly
discussed the elements of the crime, and neither explicitly
stated that the crime is potentially particularly serious.
The IJ and BIA correctly noted that Bare had been
convicted of being a felon in possession of a firearm. As an
aggravated felony, his conviction is one of the types of
crimes “most likely to be” particularly serious. Guerrero,
908 F.3d at 545 (quoting Alphonsus, 705 F.3d at 1043).
Unlike some state crimes—where it frequently is not
obvious on its face what the crime actually is, what the
elements are, or what an analogous federal offense would be
(if there even is one)—felon in possession of a firearm is a
straightforward, well-known federal crime with simple
elements. Cf. Hernandez-Vasquez v. Holder, 430 F. App’x
448, 452–53 (6th Cir. 2011) (considering the wide variety of
crimes that fall under Ohio’s felony child endangerment
statute to determine which of them the alien had been
convicted of and what the elements of that variant of the
crime were); N-A-M-, 24 I. & N. Dec. at 343 (examining the
elements of Colorado’s felony menacing statute). Although
BARE V. BARR 15
the IJ did not analyze the elements of felon in possession of
a firearm in isolation, he referenced facts that went directly
to each element in his analysis as supporting the conclusion
that Bare’s conviction constitutes a particularly serious
crime: Bare “possessed a firearm,” which he obtained “as a
result of his pawn shop operation,” he “had already been
convicted of a felony,” and he knew he was not allowed to
possess a firearm because he “hid the gun in a bag of dog
food to avoid having the authorities find it.” See United
States v. Benamor, 937 F.3d 1182, 1186 (9th Cir. 2019) (“To
convict someone under § 922(g)(1), the government must
prove four elements: (1) the defendant was a felon; (2) the
defendant knew he was a felon; (3) the defendant knowingly
possessed a firearm or ammunition; and (4) the firearm or
ammunition was in or affecting interstate commerce.”).
Similarly, the BIA noted that Bare “fired a gun . . . which he
illegally possessed.” Therefore, where the crime is a
common federal crime with simple and straightforward
elements and is an aggravated felony, the maximum possible
sentence for the crime is more than five years’
imprisonment, and the IJ or BIA noted facts which
correspond to all the elements of the offense as weighing in
favor of the crime being particularly serious, we see no
reason to put form over substance. Under these
circumstances, we will not require an explicit consideration
of the elements of the offense.
Bare directs our attention to Luziga v. Attorney General,
937 F.3d 244, 253–54 (3d Cir. 2019), where the Third
Circuit found that the IJ skipping over the first N-A-M- factor
was error and remanded to the BIA to apply the first N-A-M-
factor to determine whether the elements of the petitioner’s
conviction potentially fall within the ambit of a particularly
serious crime. There, the IJ not only “skipp[ed] right over
the preliminary consideration of elements,” but also “made
16 BARE V. BARR
no reference to the elements of [the petitioner’s] offense.”
Id. at 253–54. And further, while the BIA claimed to
consider the elements in its opinion, it “listed as ‘elements’
specific offense characteristics such as loss amount” which
were not elements of the offense. Id. at 254. Here, however,
the IJ and BIA did not erroneously claim that non-elements
were elements and the IJ referenced facts going to all the
elements of the crime and found that they pointed in favor of
its being particularly serious. Therefore, we do not find an
abuse of discretion under these circumstances.
ii.
Bare next contends that the crime of felon in possession
of a firearm is a “status offense” not involving an element of
violence, endangerment, recklessness, injury, or use of a
weapon and is, therefore, categorically excluded from being
a particularly serious crime because it necessarily fails the
first Frentescu/N-A-M- factor. Our review is limited to
whether it is an abuse of discretion for the BIA to conclude
that being a felon in possession of a firearm can ever be a
particularly serious crime where the sentence is less than five
years’ imprisonment. See Arbid, 700 F.3d at 385.
The first Frentescu/N-A-M- factor requires only that the
elements of the offense “potentially bring the offense within
the ambit of a particularly serious crime.” N-A-M-, 24 I. &
N. Dec. at 342 (emphasis added). This determination is
made without regard to the individual facts or circumstances
in the case, but only by reviewing the elements of the crime.
Id. Thus, this factor’s inquiry is whether—under any factual
circumstances—the offense could be a particularly serious
crime or whether it is so minor that it is categorically
excluded from being particularly serious.
BARE V. BARR 17
In considering the elements of an offense, the BIA is to
“place the alien’s conviction along a spectrum of
seriousness.” Guerrero v. Whitaker, 908 F.3d 541, 544 (9th
Cir. 2018). On one end of the spectrum, we have previously
used a “minor traffic infraction” as an example of a crime
that would per se not be a particularly serious crime. Id. On
the other end, we have used a “heinous, violent crime” as an
example of a crime that would be particularly serious under
any factual circumstances. Id. Between these two extremes,
a review of cases demonstrates that it is a low standard for a
crime to potentially be a particularly serious crime. We have
previously upheld a decision by the BIA that mail fraud can
constitute a particularly serious crime. Arbid, 700 F.3d
at 385. Other circuits have upheld the BIA’s determination
that a variety of crimes can constitute particularly serious
crimes, including: aggravated identity theft, Valerio-
Ramirez v. Sessions, 882 F.3d 289, 299–300 (1st Cir. 2018);
evidence tampering, Denis v. Att’y Gen., 633 F.3d 201, 216
(3d Cir. 2011); securities fraud, Kaplun v. Att’y Gen.,
602 F.3d 260, 267–68 (3d Cir. 2010); and reckless
endangerment, Nethagani v. Mukasey, 532 F.3d 150, 155 (2d
Cir. 2008). In attempting to delineate the other side of the
boundary—crimes that are per se excluded from being
particularly serious crimes—Bare points to no case, and we
are unable to find any, in which a court concluded that a
particular felony is per se not particularly serious.
We have also previously recognized that the statute
treating aggravated felonies which result in imprisonment
for at least five years as per se particularly serious crimes
suggests that aggravated felonies are “the types of crimes
most likely to be [particularly serious crimes] even when the
aggregate sentence is less than five years.” Guerrero, 908
F.3d at 545 (quoting Alphonsus v. Holder, 705 F.3d 1031,
1043 (9th Cir. 2013)). Because felon in possession of a
18 BARE V. BARR
firearm is an aggravated felony, see 8 U.S.C.
§ 1101(a)(43)(E)(ii), we would expect it to fall toward the
more serious end of the spectrum and be among “the types
of crimes most likely to be” particularly serious crimes under
the Frentescu/N-A-M- analysis. Guerrero, 908 F.3d at 545.
It would be anomalous if a conviction for being a felon in
possession of a firearm where the sentence is less than five
years’ imprisonment was categorically excluded from being
a particularly serious crime, but where the sentence is five
years’ imprisonment or more, it is per se particularly serious.
We, therefore, conclude that it is not an abuse of discretion
to conclude that the crime of being a felon in possession of
a firearm can potentially be particularly serious.
iii.
Finally, Bare argues that, even if the first factor is met,
the BIA erred by relying on improper evidence in reaching
its conclusion that his conviction constitutes a particularly
serious crime. He contends that the IJ and BIA erred by not
considering facts relating to the crime of being a felon in
possession, such as discussing the nature of his three prior
felonies or his claim that he possessed firearms and
ammunition for self-defense. He also contends that the IJ
and BIA erred by considering facts which did not directly go
to an element of the offense, such as the fact that he fired the
weapon. According to Bare, the IJ and BIA should be
limited to considering only what he did to be convicted of
the offense.
The BIA may consider “all reliable information” in
determining whether a crime constitutes a particularly
serious crime, which is a wide-reaching inquiry and includes
consideration of conviction records, sentencing information,
and “other information outside the confines of a record of
conviction.” N-A-M-, 24 I. & N. Dec. at 342; see also
BARE V. BARR 19
Anaya-Ortiz, 594 F.3d at 678. “[N]othing in the language of
the ‘particularly serious crime’ provisions in the
[Immigration and Nationality Act (“INA”)] limits the scope
of permissible evidence.” Anaya-Ortiz, 594 F.3d at 678.
Here, all the information that the BIA considered was
introduced in Bare’s criminal case during sentencing so, as
sentencing information, falls within the information
specifically allowed to be considered. See N-A-M-, 24 I. &
N. Dec. at 342. But, Bare contends that, since the
information does not go toward the elements of the crime, it
should not be considered. Most of the evidence considered
by the IJ went to the manner in which Bare possessed the
firearms and ammunition, namely how he came into
possession of the firearms and ammunition (through the
operation of an unlicensed pawnshop that trafficked in
firearms, drugs, and alcohol), how he possessed the firearm
(by firing it inside a house to threaten a neighbor during a
verbal altercation, which presented a safety risk to other
individuals inside the house), and his mental state relating to
possessing the firearm (that he knew he could not possess a
firearm, so he hid it inside a bag of dog food). This
information is within the realm of what the IJ and BIA could
consider. See id. at 337, 343 (considering, in evaluating
whether a conviction for felony menacing in Colorado was a
particularly serious crime, both the act that constituted the
felony menacing—threatening to kill someone after
retrieving two knives—but also the circumstance in which
the felony menacing occurred—after he was caught
performing a nonconsensual sexual act on a person who was
asleep); see also Denis, 633 F.3d at 216 (finding that the BIA
did not err in concluding that a conviction for tampering with
evidence was a particularly serious crime by considering the
tampering included “violently dismembering and concealing
his victim”).
20 BARE V. BARR
The IJ also considered the effect that Bare’s pawn
business had on the community and other instances of Bare’s
making threats or being violent—information contained in
the government’s sentencing memorandum. Bare testified
before the IJ and denied the threats or acts of violence, but
here he does not challenge the reliability of the sentencing
memorandum. Rather, Bare contends that it is improper
evidence because it does not relate to his felon in possession
conviction. See Alaka v. Att’y Gen., 456 F.3d 88, 109 (3d
Cir. 2006) (“Dismissed charges ipso facto are not
convictions, and thus are not taken into account in . . . the
. . . ‘particularly serious crime’ analysis.”), overruled on
other grounds by Bastardo-Vale v. Att’y Gen., 934 F.3d 255(3d Cir. 2019); Yousefi v. INS, 260 F.3d 318, 329–30 (4th
Cir. 2001) (per curiam) (“We can find no authority for the
proposition that dismissed counts or crimes not relied upon
by the Service may be considered in determining whether a
specific crime is a particularly serious one.”). However, IJs
may consider evidence about the alien which does not go to
an element of the crime “as part of the separate
determination of dangerousness.” Gomez-Sanchez v.
Sessions, 892 F.3d 985, 993–94 (9th Cir. 2018). We allow
this even though a separate dangerousness determination is
no longer considered independently as a factor in the
particularly serious crime analysis. Id. at 991.
“[D]angerousness remains the ‘essential key’ to determining
whether the individual’s conviction was for a particularly
serious crime.” Id. (quoting Alphonsus, 705 F.3d at 1041).
In considering the seriousness of the crime, the IJ is
“assessing whether the circumstances of the crime are so
serious as to justify removal to a country where there is a
significant risk of persecution.” Id. at 994. Therefore, it was
proper for the IJ to consider the circumstances in which Bare
came into possession of the firearms he was convicted of
possessing, the effect of that broader business on the
BARE V. BARR 21
community, and other acts which go to his mental state.
Noting again that our review “is limited to ensuring that the
agency relied on the ‘appropriate factors’ and ‘[]proper
evidence’ to reach this conclusion,” Avendano-Hernandez,
800 F.3d at 1077 (alteration in original), and that we “cannot
reweigh evidence to determine if the crime was indeed
particularly serious,” Blandino-Medina, 712 F.3d at 1343,
we cannot say that the evidence the BIA relied on to
conclude that Bare’s conviction is particularly serious was
an abuse of its discretion.
Therefore, as the BIA did not abuse its discretion in
concluding that Bare’s conviction for being a felon in
possession of a firearm constitutes a particularly serious
crime, Bare is ineligible for withholding of removal.
B.
Bare contends that the IJ erred by refusing to consider
his request for an adjustment of status. The IJ determined
that, because Bare was in asylum-only proceedings, he did
not have jurisdiction to consider a request for an adjustment
of status; the BIA agreed with the IJ’s conclusion. Bare
argues that he lost his status as a stowaway when granted
asylum and, therefore, reopening his asylum-only
proceedings to terminate his grant of asylum was improper.
Bare contends that as an asylee he should have instead been
in INA § 240 removal proceedings, 8 U.S.C. § 1229a, in
which an IJ can grant a request for an adjustment of status.
In the alternative, Bare argues that, (1) even if he is still a
stowaway, he should nonetheless have been in INA § 240
proceedings because of his status as an asylee and (2) even
if asylum-only proceedings were proper, the IJ nonetheless
had authority to adjudicate his request for an adjustment of
status because of his status as an asylee. The government
contends that Bare was properly in asylum-only proceedings
22 BARE V. BARR
and that the IJ correctly determined that he did not have
jurisdiction to consider Bare’s request for an adjustment of
status. In supplemental briefing, the government suggests
that the USCIS, not the IJ, was the appropriate adjudicator
of his request for an adjustment of status.
1.
We begin by addressing Bare’s eligibility to apply for an
adjustment of status. All asylees meeting the statutory
requirements may apply for an adjustment of status.
8 U.S.C. § 1159(b). One of the requirements is that the
asylee “is admissible.” Id. § 1159(b)(5). Bare’s firearm
conviction makes him inadmissible, but the statute provides
that the Secretary of Homeland Security (“DHS Secretary”)
or the Attorney General may waive all but five of the
grounds for inadmissibility listed in 8 U.S.C. § 1182(a) “for
humanitarian purposes, to assure family unity, or when it is
otherwise in the public interest.” Id. § 1159(c). Bare’s
inadmissibility as a result of his conviction is waivable, so
he could apply to have his status adjusted and for a waiver
of the admissibility requirement. 2 See id.
Neither the government’s motion to reopen Bare’s
asylum-only case, nor the IJ’s granting the motion,
terminated his asylum. See 8 C.F.R. § 1208.24(f). Bare
remained an asylee until the IJ terminated his asylum. See
id. As a result, Bare remained eligible to apply for an
adjustment of status and a waiver, at the very least, until his
asylum was terminated by the IJ. See 8 U.S.C. § 1159(b); cf.
Siwe v. Holder, 742 F.3d 603, 612 (5th Cir. 2014) (holding
2
As discussed infra, an alien’s status as a stowaway is also
waivable. See 8 U.S.C. §§ 1159(c), 1182(a)(6)(D).
BARE V. BARR 23
that an alien whose asylum has been terminated may still
apply for an adjustment of status).
2.
Since Bare was eligible to apply for an adjustment of
status, and the IJ refused to consider his application because
of an IJ’s limited jurisdiction in asylum-only proceedings,
we must determine what avenue Bare could have used to
apply for an adjustment of status. That is, could he have
applied to the IJ in asylum-only proceedings, or was he
limited to applying to an IJ in INA § 240 proceedings or to
the USCIS? To answer this question requires us to
determine whether the government was required to terminate
his asylum in INA § 240 proceedings or whether doing so by
reopening his asylum-only proceeding was permissible.
Before we can do that, we must first resolve the issue of
Bare’s status: did he lose his status as a stowaway when
granted asylum?
Bare argues that he lost his status as a stowaway when
he was granted asylum. The government argues that, when
Bare lost his asylee status, “[t]hat returned him to the
stowaway status he possessed prior to obtaining asylum,”
which suggests the government agrees with Bare’s assertion
that a grant of asylum terminates an alien’s prior status.
However, neither of these positions is consistent with the
statutory text. Instead, the statute is clear that a grant of
asylum is not a change in status—from a stowaway to an
asylee—but confers on the stowaway an additional status as
an asylee. See 8 U.S.C. §§ 1158(b)(1)(A), 1159.
“When interpreting a statute, we are guided by the
fundamental canons of statutory construction and begin with
the statutory text.” United States v. Neal, 776 F.3d 645, 652
(9th Cir. 2015). The statute governing asylum, 8 U.S.C.
24 BARE V. BARR
§ 1158, provides that an alien “may apply for asylum,” id.
at § 1158(a)(1), and that the DHS Secretary or Attorney
General “may grant asylum to an alien who has applied,” id.
at § 1158(b)(1)(A) (emphasis added). The operative word in
the statute is “grant,” which is not defined in the statute or
by regulation. The applicable dictionary definition of
“grant” means to “give, bestow, [or] confer.” Grant, Merriam-
Webster Unabridged Dictionary, https://unabridged.merriam-
webster.com/unabridged/grant. In this context, the word
“grant” conveys the receiving of a status. It does not convey
a termination of a prior status or a change from one status to
another. Thus, the express terms of the statute make clear
that a grant of asylum to an alien provides a new status which
does not terminate or change any status that the alien already
held.
This understanding of the import of a grant of asylum in
§ 1158 is consistent with the surrounding statutory context.
See Dolan v. U.S. Postal Serv., 546 U.S. 481, 486 (2006)
(“Interpretation of a word or phrase depends upon reading
the whole statutory text, considering the purpose and context
of the statute, and consulting any precedents or authorities
that inform the analysis.”). Most notable is § 1159, which
addresses asylees adjusting their status to that of a lawful
permanent resident. It provides that the DHS Secretary or
Attorney General “may adjust to the status of an alien
lawfully admitted for permanent residence the status of any
alien granted asylum” who meets certain requirements.
8 U.S.C. § 1159(b) (emphasis added). When read together,
Congress provides that an alien may be “grant[ed]” asylum
and afterwards that alien may have his or her status
“adjust[ed] to” that of a lawful permanent resident. Id.§§ 1158(b)(1)(A), 1159(b). Both § 1158 and § 1159 were
enacted as part of the Refugee Act of 1980, as sections § 208
and § 209, respectively. See Pub. L. No. 96-212, §§ 208,
BARE V. BARR 25
209, 94 Stat. 102, 105–06. “It is a well-established canon of
statutory interpretation that the use of different words or
terms within a statute demonstrates that Congress intended
to convey a different meaning for those words.” SEC v.
McCarthy, 322 F.3d 650, 656 (9th Cir. 2003). We “must
presume that Congress intended a different meaning when it
uses different words in connection with the same subject.”
Ariz. Health Care Cost Containment Sys. v. McClellan,
508 F.3d 1243, 1250 (9th Cir. 2007). Congress, then, must
have intended something different by using “grant” to
describe an alien becoming an asylee and “adjust to” to
describe that same alien later becoming a lawful permanent
resident.
To determine what Congress intended by using “grant”
in § 1158, we must also examine the meaning of “adjust to”
in § 1159. Although we have not considered the meaning of
“adjust to” in § 1159 and whether an asylee loses his or her
status as an asylee when adjusting to the status of a lawful
permanent resident, the BIA and several other circuits have. 3
In In re N-A-I-, 27 I. & N. Dec. 72 (B.I.A. 2017), the BIA
considered whether aliens who had been granted asylum
retain the status of an asylee when they adjust their status to
that of a lawful permanent resident. There, the respondent
had adjusted his status to that of a lawful permanent resident
and he argued to the BIA that he could not be removed
3
When we were previously faced with this question, we did not
decide whether an adjustment of status terminates an alien’s grant of
asylum because the result was the same either way in that case. See
Robleto-Pastora v. Holder, 591 F.3d 1051, 1059 (9th Cir. 2010)
(“Without deciding and regardless of whether Robleto simultaneously
holds asylee and [lawful permanent resident] status, we conclude that he
is ineligible for relief from removal under . . . 8 U.S.C. § 1159, and that
his petition must therefore be denied.”).
26 BARE V. BARR
because his asylum status had never been terminated—i.e.,
that his adjustment of status did not terminate his status as
an asylee. Id. at 73. The BIA held that “an alien’s
adjustment from the status of an alien granted asylum to that
of an alien lawfully admitted for permanent residence
pursuant to [§ 1159(b)] terminates the alien’s asylee status.”
Id. at 74. The BIA based this determination “on the statutory
language, as well as the relevant regulatory provisions, case
law, and legislative history.” Id. at 75. Because “adjustment
of status” is not defined by statute, the BIA looked to the
dictionary definition of “adjust” which means “to bring to a
more satisfactory state,” or “to change the position of.” Id.
(quoting Adams v. Holder, 692 F.3d 91, 97 (2d Cir. 2012)
(quoting Webster’s Third New International Dictionary 27
(1986))). The BIA concluded that “[a]n adjustment of status
. . . involves a change from one status to another status, not
the acquisition of an additional status. In other words, an
alien whose status is changed does not retain his or her
previous status.” Id. An adjustment of status “extinguishes
the alien’s asylee status.” Id.The BIA’s decision in N-A-I- was appealed to the Fifth
Circuit. Ali v. Barr, 951 F.3d 275 (5th Cir. 2020). In Ali,
the Fifth Circuit affirmed the BIA’s determination that an
alien loses the status of an asylee when adjusting his or her
status. The court emphasized that, not only is the use of
“adjust” important, but so is the use of the word “to,” which
“indicates the alien’s status is altered in a more fundamental
sense—the alien goes from one status to another.” Id. at 280.
Citing several dictionary definitions, the court noted that
“[t]he word ‘to’ also denotes the arrival at a new terminus.”
Id. The court concluded, “[o]n the plain text, then, the BIA
was correct to conclude a new [lawful permanent resident]
discards his old asylee status.” Id.BARE V. BARR 27
The Fourth Circuit has also considered this issue and
reached the same conclusion. Mahmood v. Sessions,
849 F.3d 187 (4th Cir. 2017). It concluded that an
adjustment of status in § 1159(b) “describes a process of
‘adjustment’ from the former ‘to’ the latter. A provision that
addresses two statuses and provides for the adjustment from
one ‘to’ the other appears clearly to indicate a change to and
not an accretion of the second status.” Id. at 191. And the
Second Circuit, in considering adjustments of status under a
different statutory provision, similarly concluded that an
adjustment of status is a change from one status to another.
Adams, 692 F.3d at 97–98.
Thus, the surrounding statutory context confirms our
interpretation of “grant.” Congress’s use of “adjust to” in
§ 1159 to convey a change from one status to another status
supports our conclusion that Congress’s use of “grant” in
§ 1158 was intended to convey something different: the
addition of a status rather than a change from one status to
another. See McCarthy, 322 F.3d at 656 (“Congress’s
explicit decision to use one word over another in drafting a
statute is material.”).
That a grant of asylum does not terminate an alien’s
status as a stowaway is also consistent with the larger
statutory scheme. See Choin v. Mukasey, 537 F.3d 1116,
1120 (9th Cir. 2008) (considering the statutory scheme in
interpreting the meaning of a term in the INA); Bona v.
Gonzales, 425 F.3d 663, 670 (9th Cir. 2005) (same). Not all
asylees are eligible to adjust their status. See 8 U.S.C.
§ 1159(b). Instead, only asylees meeting certain
requirements are eligible to adjust their status. See id.(listing five eligibility requirements for an asylee to be able
to adjust his or her status). One of the requirements is that
the asylee “is admissible . . . at the time of examination for
28 BARE V. BARR
adjustment.” Id. § 1159(b)(5). The statute also includes a
waiver provision which allows the DHS Secretary or
Attorney General to waive most of the grounds for
inadmissibility listed in § 1182(a) “for humanitarian
purposes, to assure family unity, or when it is otherwise in
the public interest.” Id. § 1159(c). The waiver provision
lists several grounds for inadmissibility in § 1182(a) which
do not constitute an inadmissibility for purposes of adjusting
one’s status. Id. § 1159(b), (c). And the waiver provision
also includes several grounds for inadmissibility which
cannot be waived. Id. § 1159(c). Thus, § 1159(b) and (c)
create four categories of asylees with respect to adjustments
of status: (1) admissible asylees who may adjust their status
(provided they meet the other four criteria); (2) inadmissible
asylees whose inadmissibility does not make them ineligible
to adjust their status; (3) inadmissible asylees who can seek
a waiver of the admissibility requirement to adjust their
status; and (4) inadmissible asylees who cannot seek a
waiver of the admissibility requirement and are statutorily
barred from adjusting their status.
A stowaway is not admissible under § 1182(a). See id.
§ 1182(a)(6)(D) (“Any alien who is a stowaway is
inadmissible.”). Being a stowaway is not one of the grounds
for inadmissibility listed in § 1159(c) that is excepted from
the admissibility requirement and it is also not included in
the list of grounds for inadmissibility that cannot be waived.
See id. § 1159(c). Thus, a stowaway-asylee would fall into
the category of inadmissible asylees who can seek a waiver
of the admissibility requirement to adjust his or her status.
The operation of § 1159 is thus consistent with a stowaway’s
retaining his or her status when granted asylum. If an alien
lost the status as a stowaway when granted asylum, it would
be expected that a stowaway’s inadmissibility would be
BARE V. BARR 29
included in § 1159(c)’s list of grounds of inadmissibility that
do not require a waiver.
Not only is a stowaway retaining his or her status when
granted asylum consistent with § 1159(c), the opposite is
inconsistent with § 1159(c). Some grounds of
inadmissibility that do not need a waiver and some that are
non-waivable necessarily would have preceded the alien’s
being granted asylum. The former category includes “[a]ny
alien who seeks to enter the United States for the purpose of
performing skilled or unskilled labor” without certain
certifications having been made by the Secretary of Labor.
Id. § 1182(a)(5)(A)(i) (emphasis added). 4 The latter
category includes “[a]ny alien who, during the period
beginning on March 23, 1933, and ending on May 8, 1945,
under the direction of, or in association with . . . the Nazi
government of Germany” who “ordered, incited, assisted, or
otherwise participated in the persecution of any person
because of race, religion, national origin, or political
opinion.” 5 8 U.S.C. § 1182(a)(3)(E)(i). Similarly,
individuals who participated in genocide, torture, or
4
The other two categories of aliens listed in § 1182(a)(5) would also
have had their respective grounds for inadmissibility prior to being
granted asylum. See 8 U.S.C. § 1182(a)(5)(B) (providing that “[a]n alien
. . . who is coming to the United States principally to perform services as
a member of the medical profession is inadmissible” unless certain
requirements are met (emphasis added)); id. § 1182(a)(5)(C) (providing
that “any alien who seeks to enter the United States for the purpose of
performing labor as a health-care worker, other than a physician, is
inadmissible” unless certain requirements are met (emphasis added)).
5
Any alien with this status would necessarily have had it prior to
being granted asylum. This ground of inadmissibility was added in 1978,
see Pub. L. No. 95-549, § 101, 92 Stat. 2065, 2065 (1978), and it was
made a non-waivable inadmissibility for purposes of an asylee adjusting
his or her status in 1980, Refugee Act of 1980 § 209, 94 Stat. at 106.
30 BARE V. BARR
extrajudicial killing cannot have their inadmissibility
waived. 6 Id. § 1182(a)(3)(E)(ii), (iii). 7 If an alien lost his or
6
“Any alien who a consular officer or the Attorney General knows,
or has reasonable ground to believe, seeks to enter the United States to
engage solely, principally, or incidentally in” espionage, sabotage,
violate export controls, any other unlawful activity, or overthrow the
government, 8 U.S.C. § 1182(a)(3)(A) (emphasis added), is also
prohibited from having these grounds for inadmissibility—which
necessarily would have preceded a grant of asylum—waived, see id.§ 1159(c).
7
Although these aliens are not eligible for asylum in the first place,
see 8 U.S.C. § 1158(b)(2)(A)(i), (iii) (providing that asylum may not be
granted to an alien who “participated in the persecution of any person on
account of race, religion, nationality, membership in a particular social
group, or political opinion” or if “there are serious reasons for believing
that the alien has committed a serious nonpolitical crime outside the
United States prior to the arrival of the alien in the United States”), they
have not always been ineligible for asylum. The original version of the
asylum statute did not include any exceptions regarding who could be
granted asylum. See Refugee Act of 1980 § 208, 94 Stat. at 105. An
exception providing that aliens convicted of aggravated felonies could
not apply for, or be granted, asylum was added in 1990. See Immigration
Act of 1990, Pub. L. No. 101-649, § 515, 104 Stat. 4978, 5053. And the
current exceptions, with subsequent minor changes, were added in 1996.
See Illegal Immigration Reform and Immigrant Responsibility Act of
1996, Pub. L. No. 104-208, div. C, § 604, 110 Stat. 3009, 3009-690 to -
694. Meanwhile, the waiver provision for adjustments of status, enacted
in the Refugee Act of 1980, § 209, has remained largely intact with only
minor modifications. See Immigration Act of 1990 § 603, 104 Stat.
at 5082 (modifying the waiver provision to correspond with formatting
modifications to § 1182). Additional classes of inadmissible aliens have
also been added to § 1159(c), thus adding to the class of non-waivable
grounds. See, e.g., Intelligence Reform and Terrorism Prevention Act of
2004, Pub. L. No. 108-458, § 5501, 118 Stat. 3638, 3740 (adding torture
and extrajudicial killing). Thus, at least at one point in time, some
inadmissible aliens could receive a grant of asylum but that
inadmissibility precluded the alien from later being able to adjust his or
her status. See 8 U.S.C. §§ 1158, 1159(c), 1182(a)(14), (15), (25), (32),
(33) (1982) (specifying several categories of aliens who could be granted
BARE V. BARR 31
her status when granted asylum, there would be no need for
these grounds for inadmissibility to be included as
exceptions to the waiver requirement. Cf. Neal, 776 F.3d
at 652 (“We must ‘interpret [the] statut[e] as a whole, giving
effect to each word and making every effort not to interpret
a provision in a manner that renders other provisions of the
same statute inconsistent, meaningless or superfluous.’”
(alteration in original) (quoting Boise Cascade Corp. v. EPA,
942 F.2d 1427, 1432 (9th Cir. 1991))). For the inclusion of
these inadmissibility grounds not to be meaningless or
superfluous, aliens granted asylum must retain their previous
inadmissibility status when granted asylum. See id.; Bosley
Med. Inst., Inc. v. Kremer, 403 F.3d 672, 681 (9th Cir. 2005)
(“We try to avoid, where possible, an interpretation of a
statute ‘that renders any part of it superfluous and does not
give effect to all of the words used by Congress.’” (quoting
Nevada v. Watkins, 939 F.2d 710, 715 (9th Cir. 1991))).
Bare relies on two cases to argue that he lost his status as
a stowaway when granted asylum—neither is persuasive.
He first relies on a quote from N-A-I- which provides that
“an alien whose status is changed does not retain his or her
previous status.” 27 I. & N. Dec. at 75. When put into
context, this quote does not support Bare’s argument, but
actually undermines it. It states:
An adjustment of status under the Act
involves a change from one status to another
status, not the acquisition of an additional
status. In other words, an alien whose status
is changed does not retain his or her previous
asylum despite being inadmissible—and whose inadmissibility
necessarily existed prior to their grant of asylum—but who could not
adjust their status).
32 BARE V. BARR
status. In the context of [§ 1159(b)], the
adjustment entails a change from “the status
of an[] alien granted asylum” to “the status of
an alien lawfully admitted for permanent
residence,” which extinguishes the alien’s
asylee status.
Id. (second alteration in original) (emphasis added). In
N-A-I-, the BIA concluded that an adjustment of status is a
“change from one status to another” because of the
dictionary definitions of “adjust,” one of which was “to
change the position of.” Id. (citation omitted). But here, the
operative phrase is not “adjust to” but “grant,” whose
definition does not convey a change from one status to
another. So, not only does this quote from N-A-I- not
support his argument, as discussed supra, N-A-I-’s
conclusion regarding the import of an adjustment of status
supports our conclusion that a grant of asylum is the
“acquisition of an additional status” rather than “a change
from one status to another status.” Id.
Bare also relies on Marincas v. Lewis, 92 F.3d 195(3d Cir. 1996), which concluded that “Congress clearly and
unambiguously intended that the Attorney General establish
a uniform asylum procedure that is to be applied irrespective
of an alien’s status as a stowaway.” Id. at 201. Based on
this, Bare contends that all aliens must be on equal footing
after they are granted asylum with regard to applying for an
adjustment of status. But Marincas does not support this
contention. In Marincas, the Immigration and
Naturalization Service (“INS”), the forerunner to the USCIS,
had two different procedures for aliens seeking asylum: one
for stowaways and one for all other aliens seeking asylum.
Id. at 199–200. The INS’s procedures for stowaways were
less favorable to the applicant than the procedures provided
BARE V. BARR 33
for other aliens applying for asylum. Id. “Section 1158(a),
however, mandates that the asylum procedure established by
the Attorney General be applied irrespective of an alien’s
status, which clearly would include aliens with stowaway
status.” Id. at 201. In other words, Marincas held that
§ 1158(a) required that the procedure for adjudicating
asylum claims by stowaways be the same procedure as used
for adjudicating asylum claims by other aliens who are
eligible to apply for asylum. Marincas says nothing about
how asylees are to be treated with regard to one another
when applying for an adjustment of status.
Unlike § 1158(a), where the Marincas court found clear
congressional intent in the use of the phrase “irrespective of
such alien’s status,” § 1159 does not use that phrase, nor
anything like it. Bare points to the text of § 1159(b) that
refers to “any alien granted asylum,” and claims that
disadvantaging a stowaway once he or she has been granted
asylum by virtue of his or her stowaway status would be
inconsistent with “Congress’s directive for adjustment of
status to be available to ‘any alien granted asylum.’” But
that is not what Congress provided. Congress did not
provide that all asylees could adjust their status. Instead,
Congress provided that asylees who meet five criteria are
eligible to adjust their status, and provided that some asylees
who do not meet the five criteria can obtain a waiver of the
admissibility requirement. 8 U.S.C. § 1159(b). Congress
also barred some asylees from being able to adjust their
status. Id. at § 1159(c). Thus, contrary to Bare’s assertion,
Congress in § 1159 explicitly provided that not all asylees
are eligible to adjust their status and, unlike § 1158, that
there can be different procedures for how asylees apply for
an adjustment of status (i.e., requiring some asylees to also
apply for a waiver).
34 BARE V. BARR
To conclude, as both Bare and the government would
have us do, that an alien loses his or her previous status when
granted asylum would be to ignore the plain meaning of the
statute as well as Congress’s explicit decision to use the
word “grant” rather than “adjust to.” The plain meaning of
the statute and the statutory context make clear that a
stowaway retains his or her status as a stowaway when
granted asylum. As a result, Bare is not entitled to INA
§ 240 proceedings to have his grant of asylum terminated by
no longer being a stowaway.
3.
Bare contends that his status as an asylee entitles him to
INA § 240 removal proceedings even if he also retains his
stowaway status. The government contends that it was
permissible for Bare’s asylum to be terminated by reopening
his asylum-only proceeding and that, in such proceedings,
the IJ does not have authority to consider an adjustment of
status request.
No statute provides a procedure for how a grant of
asylum is to be terminated. The asylum statute explains the
circumstances under which the Attorney General may
terminate asylum but does not provide a procedure for how
the Attorney General is to do so. See 8 U.S.C. § 1158(c)(2).
The statute includes a section titled “[r]emoval when asylum
is terminated,” which provides: “An alien [whose asylum
may be terminated] is subject to any applicable grounds of
inadmissibility or deportability under section[s] 1182(a) and
1227(a) of this title, and the alien’s removal or return shall
be directed by the Attorney General in accordance with
sections 1229a [INA § 240] and 1231 of this title.” Id.
§ 1158(c)(3). By its terms, this section does not explain how
asylum is to be terminated, but only governs removal “when
asylum is terminated.” Id. (emphasis added); see also
BARE V. BARR 35
Robleto-Pastora v. Holder, 591 F.3d 1051, 1058 n.5 (9th
Cir. 2010) (stating that § 1158(c)(3) “simply provides that
asylum may be terminated under specific circumstances and
says nothing about formal termination proceedings”).
The procedures for how to terminate asylum are
provided by regulation. Where, as here, asylum was granted
by an IJ, the IJ may reopen the case to terminate a grant of
asylum. 8 C.F.R. §§ 208.24(f), 1208.24(f). The USCIS may
make a motion to an IJ to have a case reopened. See id.§ 1003.23(b)(1), (3). There is no time limit for how long
after a case is closed that the government may seek to reopen
it. See id. §§ 1003.23(b)(1), 1208.24(f).
The authority for asylum-only procedures for stowaways
is 8 U.S.C. § 1225, which provides that “[a]n arriving alien
who is a stowaway is not eligible to apply for admission or
to be admitted” but a stowaway “may apply for asylum” if
the stowaway is “found to have a credible fear of
persecution.” Id. § 1225(a)(2). However, “[i]n no case may
a stowaway be considered an applicant for admission or
eligible for a hearing under section 1229a [INA § 240].” Id.
The procedures in asylum-only proceedings are the same
procedures as in INA § 240 removal proceedings, but the
scope of review is “limited to a determination of whether the
alien is eligible for asylum or withholding or deferral of
removal, and whether asylum shall be granted in the exercise
of discretion.” 8 C.F.R. § 1208.2(c)(3)(i). In addition, “all
parties are prohibited from raising or considering any other
issues, including but not limited to issues of admissibility,
deportability, eligibility for waivers, and eligibility for any
other form of relief.” Id.Bare argues that 8 C.F.R. § 1208.24(g) requires INA
§ 240 removal proceedings to terminate his grant of asylum.
Section 1208.24(g) provides:
36 BARE V. BARR
Termination of asylum for arriving aliens. If
the Service determines that an applicant for
admission who had previously been granted
asylum in the United States falls within
conditions set forth in § 1208.24 and is
inadmissible, the Service shall issue a notice
of intent to terminate asylum and initiate
removal proceedings under [INA § 240]. The
alien shall present his or her response to the
intent to terminate during proceedings before
the immigration judge.
This section addresses what to do with “applicant[s] for
admission who had previously been granted asylum” who
are found to be inadmissible. Id. The phrase “applicant for
admission” is used to refer to a subset of aliens. See 8 U.S.C.
§ 1225(a)(1) (stating that “[a]n alien present in the United
States who has not been admitted or who arrives in the
United States . . . shall be deemed for purposes of this
chapter an applicant for admission”). Stowaways are
specifically excluded from being applicants for admission.
Id. § 1225(a)(2) (“In no case may a stowaway be considered
an applicant for admission . . . .”); see also 8 C.F.R.
§§ 235.1(f)(4) (providing that “[a]n alien stowaway is not an
applicant for admission”), 1235.1(d)(4) (providing that “[a]n
alien stowaway is not an applicant for admission”). Since,
as 8 C.F.R. § 1208.24(g) indicates, an alien’s status as “an
applicant for admission” continues after the alien has been
granted asylum, see also In re V-X-, 26 I. & N. Dec. 147, 150
(B.I.A. 2013) (“[A]lthough the [alien’s] grant of asylum
conferred a lawful status upon him, it did not entail an
‘admission.’”), to include stowaways who have been granted
asylum within § 1208.24(g) would contravene 8 U.S.C.
§ 1225(a)’s clear mandate that “[i]n no case may a stowaway
be considered an applicant for admission.” So, § 1208.24(g)
BARE V. BARR 37
is not applicable to Bare because a stowaway-asylee is not
“an applicant for admission who had previously been
granted asylum” but a non-applicant for admission who has
previously been granted asylum.
Because Bare retains his status as a stowaway, there is
no statutory or regulatory bar to the government’s moving to
reopen, and the IJ’s reopening, his asylum-only proceeding
for the purpose of terminating his grant of asylum. Asylum
may be terminated by reopening a case. 8 C.F.R.
§ 1208.24(f). Since Bare’s asylum was granted in an
asylum-only proceeding, the case to be reopened would be
that same asylum-only proceeding. Bare provides no
compelling reason why § 1208.24(f) should not apply here
to allow the government to reopen the asylum-only
proceedings to terminate his grant of asylum. Therefore,
terminating Bare’s asylum through reopening his asylum-
only proceedings was not error.
Even though Bare is appropriately in asylum-only
proceedings, he nonetheless contends that the prohibition on
an IJ in such proceedings from considering his adjustment of
status and waiver requests must give way to allow him to
vindicate his eligibility to adjust his status. But not only
would allowing the IJ to consider Bare’s request for an
adjustment of status contradict the limitations on asylum-
only proceedings in 8 C.F.R. § 1208.2(c)(3)(i), it is also
unnecessary because he has another avenue available to seek
an adjustment of status.
An IJ in INA § 240 removal proceedings has the
authority to adjudicate requests for an adjustment of status,
see 8 C.F.R. § 1240.11(a)(1)–(2), and that authority is
exclusive, see 8 C.F.R. §§ 209.2(c), 1209.2(c). On the other
hand, an IJ in asylum-only proceedings is prohibited from
considering requests for an adjustment of status. See
38 BARE V. BARR
8 C.F.R. § 1208.2(c)(3)(i). Since asylum-only proceedings
are not INA § 240 proceedings, the exclusivity provision for
INA § 240 proceedings does not apply and the IJ is not the
exclusive avenue for an alien to seek an adjustment of status.
See 8 U.S.C. § 1225(a)(2) (stating that “[i]n no case may a
stowaway be . . . eligible for a hearing under [INA § 240]”);
8 C.F.R. §§ 209.2(c) (“If an alien has been placed in
removal, deportation, or exclusion proceedings, the
application [for an adjustment of status] can be filed and
considered only in proceedings under [INA § 240].”),
1209.2(c). As a result, an application for an adjustment of
status is to be “filed in accordance with the form
instructions.” 8 C.F.R. § 209.2(c). The form is I-485 and it
is filed with the USCIS. Id. § 1209.2(c). Thus, the USCIS
retains the authority to consider Bare’s request for an
adjustment of status and for waiver even when he had an
open asylum-only proceeding before an IJ. That is where
Bare’s request should have been directed.
We note that this process causes a potential conflict
between the applicable regulation and the instructions to the
I-485 form. An application to the USCIS for an adjustment
of status is to be filed “in accordance with the form
instructions,” id. § 209.2(c), and the form instructions
themselves are incorporated into the regulations, id.
§ 103.2(a). But the form instructs applicants with
proceedings before an IJ to file their application with the IJ
rather than the USCIS. See Form I-485, Instructions (“If you
are in proceedings in Immigration Court . . . you should file
this application with the appropriate Immigration Court.”).
Although the form instructions have the force of regulation,
they are instructions to applicants applying for an adjustment
of status. As such, they are intended to help an alien with
the practical procedures for applying, not to be a lengthy,
legalistic explanation accounting for every possible
BARE V. BARR 39
circumstance. It is no surprise, then, that the form
instructions do not address the situation here given that it
appears to be exceedingly rare, if not unique. Further,
although form instructions can override some contrary
regulations in 8 C.F.R. Chapter I, id. § 103.2(a)(1), the
exclusivity provision is found in both Chapters I and V, see
id. §§ 209.2(c), 1209.2(c), and the limitations on an IJ’s
authority in asylum-only proceedings is found in Chapter V,
see id. § 1208.2(c)(3)(i). Therefore, the form instructions
should not be read so broadly as to create an inconsistency
between them and the regulation—e.g., one stating apply to
the USCIS and the other stating apply to the IJ—and, even
if they were to, they cannot overcome the contrary
regulations in Chapter V. Therefore, USCIS remains the
way in which an asylee in reopened asylum-only
proceedings is to apply for an adjustment of status despite
any perceived form instructions to the contrary.
We also note that, by having a different decisionmaker
for whether to grant a request for an adjustment of status and
whether to terminate a grant of asylum, a grant of asylum
may be terminated by an IJ prior to the USCIS’s acting on
an adjustment of status application. Here, for example, the
IJ declined Bare’s motion for a continuance to allow him to
apply for an adjustment of status with the USCIS and
terminated his grant of asylum. Unlike the Fifth Circuit, we
have not considered whether a former asylee can apply for
an adjustment of status, see Siwe, 742 F.3d at 612, much less
that a former asylee who is a stowaway can apply for an
adjustment of status. If a former asylee who is a stowaway
could not adjust his or her status, there is a potential that an
asylee could be denied the opportunity to adjust his or her
status as a result of this bifurcation of authority, as the IJ
might act faster in terminating a grant of asylum than the
USCIS in considering whether to grant an adjustment of
40 BARE V. BARR
status and a waiver. This is problematic because, as we
previously determined, an asylee in reopened asylum-only
proceedings can still apply for an adjustment of status (and
any necessary waivers). The resolution of these issues goes
beyond the case we have been presented. This is an issue for
a later court to decide if Bare applies for an adjustment of
status with the USCIS and the USCIS refuses to consider it.
To resolve this case, it is enough to conclude that Bare met
all of the requirements to apply for an adjustment of status,
provided he also sought and received a waiver, and that his
application was to be made to the USCIS, not the IJ.
PETITION FOR REVIEW IS DENIED.