K-A

Cite as 

 (BIA 2004)                                 Interim Decision #3499




                             In re K-A-, Respondent
                      Decided as amended on June 23, 20041
                           U.S. Department of Justice
                     Executive Office for Immigration Review
                         Board of Immigration Appeals

(1) Pursuant to 

(c) (2004), once an asylee has been placed in removal
   proceedings, the Immigration Judge and the Board of Immigration Appeals have exclusive
   jurisdiction to adjudicate the asylee’s applications for adjustment of status and a waiver
   of inadmissibility under sections 209(b) and (c) of the Immigration and Nationality Act,
   

(b) and (c) (2000). Matter of H-N-, 

 (BIA 1999),
   distinguished.

(2) Termination of a grant of asylum pursuant to section 208(c)(2) of the Act, 

(c)(2) (2000), is not mandatory with respect to an asylee who qualifies for and
   merits adjustment of status and a waiver of inadmissibility under sections 209(b) and (c)
   of the Act.

FOR RESPONDENT: Ian Bratlie, Esquire, York, Pennsylvania

FOR THE DEPARTMENT OF HOMELAND SECURITY:2                            Raphael A. Sánchez,
Assistant Chief Counsel

BEFORE: Board Panel: FILPPU, COLE, and HESS, Board Members.

COLE, Board Member:

   The Department of Homeland Security (“DHS”), formerly the Immigration
and Naturalization Service, appeals from the decision of an Immigration Judge
dated October 7, 2003, granting the respondent’s application for adjustment of
status in conjunction with a waiver of inadmissibility pursuant to sections
209(b) and (c) of the Immigration and Nationality Act, 

(b) and
(c) (2000), respectively. The appeal will be dismissed.



1
  On our own motion, we amend the May 20, 2004, order in this case. The amended order
makes editorial changes consistent with our designation of the case as a precedent.
2
  The functions of the Immigration and Naturalization Service have been transferred to the
Department of Homeland Security pursuant to the Homeland Security Act of 2002, 

 Stat. 2135. The transfer occurred on March 1, 2003. See Matter of D-J-,

, 573 n.1 (A.G. 2003).

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                             I. BACKGROUND
   The respondent, a native and citizen of Nigeria, was admitted to the United
States in September 1992 as a nonimmigrant visitor. On March 6, 1995, she
was granted asylum in the United States. She is the mother of two United States
citizen children, one of whom suffers from cerebral palsy. On August 21, 1997,
she committed the offense of second-degree criminal possession of a forged
instrument in violation of section 170.25 of the New York Penal Law. This
crime resulted in a 2001 conviction, for which the respondent was sentenced to
a term of imprisonment of at least 1 year.
   The present removal proceedings commenced on April 16, 2003, when the
DHS filed a Notice to Appear (Form I-862) with the Immigration Court. The
Notice to Appear charged that the respondent is subject to removal from the
United States as an alien convicted of a crime involving moral turpitude
committed within 5 years after admission under section 237(a)(2)(A)(i) of the
Act, 

(a)(2)(A)(i) (2000), and as an alien convicted of an
aggravated felony under section 237(a)(2)(A)(iii) of the Act. On May 30, 2003,
the DHS also issued a notice of intent to terminate the respondent’s asylee
status on the ground that she had been convicted of an aggravated felony.
   At a hearing before the Immigration Judge on June 9, 2003, the DHS formally
requested that the Immigration Judge terminate the respondent’s status as an
asylee. On July 2, 2003, the respondent conceded that she was removable as
charged but expressed an intention to file an application for adjustment of status
under section 209(b) of the Act in conjunction with a request for a waiver of
inadmissibility under section 209(c).
   On October 7, 2003, the Immigration Judge issued a written interim decision
in support of her jurisdiction to adjudicate the respondent’s applications for
relief. Although the Immigration Judge acknowledged that the respondent’s
asylee status was subject to termination, she concluded that the respondent’s
adjustment of status would constitute “relief from termination.” In a formal oral
decision, also issued on October 7, 2003, the Immigration Judge granted the
respondent’s applications in the exercise of discretion based on the hardship that
the respondent’s removal to Nigeria would cause to her severely disabled United
States citizen child. The DHS filed this timely appeal, which is opposed by the
respondent.

                         II. ISSUES ON APPEAL
    On appeal, the DHS argues that the Immigration Judge lacked jurisdiction to
adjudicate the respondent’s applications for relief under section 209 of the Act.
Specifically, the DHS asserts that it has original jurisdiction over applications
for adjustment of status and waivers of inadmissibility under section 209 of the
Act, and that an Immigration Judge may consider such applications, if at all, only
if they have been renewed in removal proceedings after administrative denial by
the DHS. To support this argument, the DHS relies on our decision in Matter

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of H-N-, 

 (BIA 1999), which held that an Immigration Judge
could exercise jurisdiction over a refugee’s application for a section 209(c)
waiver only after that application had been denied administratively by the former
Immigration and Naturalization Service. It is undisputed that the respondent’s
applications for relief were never submitted to the DHS for consideration.
   Alternatively, the DHS argues that the Immigration Judge erred in
adjudicating the respondent’s application for section 209 relief when her asylee
status was subject to termination because of her admitted aggravated felony
conviction. According to the DHS, the Immigration Judge was obliged to
adjudicate its request for termination of the respondent’s asylee status before
considering any of her applications for relief.

                               III. ANALYSIS
       A. Adjustment of Status Under Section 209(b) of the Act
   Section 209 of the Act grants the Attorney General authority to define
standards by which an alien granted refugee status or asylum may apply to
become a lawful permanent resident of the United States, subject to various
statutory limitations. To be eligible for adjustment of status under section 209
of the Act, an alien who has been granted asylum must actually apply for such
relief and must demonstrate to the Attorney General’s satisfaction that she has
been physically present in the United States for at least 1 year after being
granted asylum, that she continues to be a “refugee” under section
101(a)(42)(A) of the Act, 

(a)(42)(A) (2000), that she is not
“firmly resettled” in any foreign country, and that she is admissible to the United
States as an immigrant. Section 209(b) of the Act. With respect to the
admissibility requirement, however, section 209(c) of the Act confers
discretionary authority on the Attorney General to waive certain grounds of
inadmissibility “for humanitarian purposes, to assure family unity, or when it is
otherwise in the public interest.”
   To implement the statutory requirements of section 209 of the Act, the
Attorney General has promulgated two separate regulations. The first
regulation, 

 (2004), applies to aliens who were admitted to the
United States as refugees pursuant to section 207 of the Act, 

(2000 & Supp. I 2001). This regulation was the subject of our decision in
Matter of H-N-, supra. The second regulation, 

 (2004),
applies to aliens—such as the present respondent—who were granted asylum
pursuant to section 208 of the Act, 

 (2000 & Supp. I 2001),
while physically present in the United States or while seeking admission at a
port of entry. Thus, the first question to be decided on appeal is whether

 confers authority upon the Immigration Judge to adjudicate
the respondent’s applications for adjustment of status and a waiver of
inadmissibility. We conclude that it does.
   As the Immigration Judge observed in her October 7, 2003, interim decision,

(c) specifies that applications for adjustment of status under

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section 209 of the Act “can be filed and considered only in proceedings under
section 240 of the Act” if the applicant has been placed in such proceedings by
the DHS.3 This language is unequivocal and admits of no other interpretation
than that Immigration Judges possess original and exclusive jurisdiction to
adjudicate applications for adjustment of status filed by aliens granted asylum
under section 208 of the Act who, like the respondent, have been placed in
removal proceedings.
   The regulation’s text contains no similar language expressly granting
Immigration Judges the authority to adjudicate waiver requests under section
209(c) of the Act. We conclude, however, that the existence of such authority
is conferred by 

(a) (2004)—the regulation governing
Immigration Judges’ authority to adjudicate applications for adjustment of status
in removal proceedings—which provides in pertinent part that Immigration
Judges have authority to adjudicate requests for waivers of inadmissibility “[i]n
conjunction with any application for creation of status of an alien lawfully
admitted for permanent residence made to an immigration judge.” 

(a)(2) (emphasis added). Similarly, in elucidating the scope of
Immigration Judges’ authority in general, 

(a)(2) (2004)
provides that “[s]ubject to any specific limitation prescribed by the Act and [the
regulations], immigration judges shall . . . exercise the discretion and authority
conferred upon the Attorney General by the Act as is appropriate and necessary
for the disposition of . . . cases.” Reading these regulations in conjunction with
the express language of 

(c), and recognizing that a section
209(c) waiver is often a sine qua non for adjustment of status under section
209(b), we conclude that an Immigration Judge’s jurisdiction over an application
for section 209(b) adjustment filed by an asylee in removal proceedings
necessarily implies the existence of supplemental jurisdiction over that same
asylee’s request for a waiver under section 209(c) of the Act.4 Accordingly, we
conclude that the Immigration Judge correctly asserted jurisdiction over the
respondent’s applications for such relief.
        B. Termination of Asylee Status in Removal Proceedings
  We now turn to the second question raised on appeal: whether the
Immigration Judge erred by adjudicating applications for section 209 relief filed
by an alien whose status as an asylee was subject to termination because of her
conviction for an aggravated felony. Section 208(c)(2) of the Act provides that

3
   As a result of the transfer of the functions of the Immigration and Naturalization Service
to the Department of Homeland Security, the regulations in chapter I of the Code of Federal
Regulations were transferred or duplicated to a new chapter V, so the regulation cited by the
Immigration Judge, 

(c), is now codified at 

(c). See Aliens
and Nationality; Homeland Security; Reorganization of Regulations, 

, 9835
(Feb. 28, 2003), 

.
4
   To the extent that dicta in Matter of H-N-, supra, may be read to support a contrary
result, we withdraw from that part of the decision.

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a grant of asylum does not automatically entitle an alien to lawful permanent
resident status in the United States, and that an asylum grant may be terminated
by the Attorney General if any of the following apply: (1) the alien ceases to be
a “refugee” under section 101(a)(42)(A) of the Act “owing to a fundamental
change in circumstances”; (2) the alien is determined by the Attorney General
to be undeserving of asylum protection on grounds of national security or as a
result of criminal or persecutory acts of the alien, or because the alien is firmly
resettled in a foreign country; (3) the alien may be removed to a safe third
country by means of a bilateral or multilateral agreement; (4) the alien has
returned to his or her country of nationality as an actual or potential permanent
resident; or (5) the alien has acquired a new nationality and enjoys the protection
of the country of his or her new nationality.
   It is undisputed that the respondent’s asylee status is subject to termination
based upon her admitted aggravated felony conviction. See 

(c)(2)(i)(D), 1208.24(a)(3) (2004). Moreover, the Immigration
Judge plainly had authority to order the respondent’s asylee status terminated.
See 

(f) (2004). The DHS insists, however, that the
Immigration Judge wasobliged to terminate the respondent’s asylee status prior
to considering whether she was eligible for relief under section 209 of the Act.
According to the DHS, any other approach would defeat congressional intent by
permitting asylees convicted of aggravated felonies to apply for section 209
relief despite the fact that they would presently be ineligible for asylum itself.
   Both section 208(c)(2) of the Act and its implementing regulation, 

, provide that the Attorney General may determine whether an
enumerated basis for termination of asylum exists and that the Attorney General
may terminate an alien’s asylee status if such a basis is found to exist. The
statute, by its terms, does not provide for automatic termination of asylee
status; rather, it authorizes—but does not compel—the Attorney General to act.
Viewing the statutory and regulatory language in this light, we find no reversible
error in the Immigration Judge’s decision to defer judgment on the termination
question pending consideration of the respondent’s applications for relief under
sections 209(b) and (c) of the Act.
   The DHS’s position on appeal—that the Attorney General is obliged to
terminate asylee status whenever possible—does not find support in the plain
language of the statute or regulation. In essence, the DHS urges us to construe
the permissive language of section 208(c)(2) and 

 as if it
were mandatory, so as to avoid frustrating an unspoken but implied
congressional “policy” against permitting aliens convicted of aggravated
felonies to seek section 209 relief. We are not persuaded by the DHS’s
argument.
   It is axiomatic that when interpreting the Immigration and Nationality Act, we
look first to the terms of the statute itself; if those terms, on their face,
constitute a plain expression of congressional intent, they must be given effect.
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 

 (1984). Moreover, the legislative purpose is presumed to be
expressed by the ordinary meaning of the words used. INS v. Phinpathya,

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 (1984). In this instance, Congress plainly employed
permissive language to describe the Attorney General’s role in terminating an
alien’s asylee status. Such language denotes a conferral of discretionary
authority, not a mandate.
   The Supreme Court has acknowledged that the verb “may” can be interpreted
to mean “shall” under certain circumstances. United States v. Rodgers,

 (1983). Such a construction is particularly disfavored,
however, when Congress has employed the two different verbs in adjacent
statutory passages. Anderson v. Yungkau, 

 (1947) (stating
that “when the same Rule uses both ‘may’ and ‘shall,’ the normal inference is
that each is used in its usual sense—the one act being permissive, the other
mandatory”); see also Sheppard v. Riverview Nursing Center, Inc., 

 (4th Cir. 1996).
   Section 208(c)(1) of the Act contains three subparagraphs, which
respectively provide that the Attorney General “shall not remove or return” an
alien granted asylum to his or her country of nationality, “shall authorize” an
alien granted asylum to engage in employment, and “may allow” such an alien
to travel abroad. (Emphasis added.) Section 208(c)(2), at issue here, provides
that if the Attorney General determines that a valid ground for termination
exists, an alien’s asylee status “may be terminated.” (Emphasis added.) Finally,
section 208(c)(3) provides that the removal of an alien who is described in
paragraph (2) “shall be directed by the Attorney General.” (Emphasis added.)
We conclude that Congress, by systematically employing “may” and “shall” in
the language of each paragraph of section 208(c), manifested its understanding
of the difference between the two verbs and communicated its intention that
they be interpreted in accordance with their ordinary meanings.
   The DHS expresses concern that an Immigration Judge’s discretionary
decision to defer the termination of asylee status will permit some aliens
convicted of aggravated felonies to obtain relief under section 209(b) of the Act
that would not otherwise be available to them. Even were we to assume that the
DHS has valid concerns on this score, it should be emphasized that relief under
sections 209(b) and (c) of the Act is discretionary. The Attorney General has
communicated in unequivocal terms that he is not inclined to exercise his
discretion favorably with respect to aliens who have been convicted of
dangerous or violent crimes except in the most exceptional circumstances.
Matter of Jean, 

 (A.G. 2002). Indeed, even nonviolent
aggravated felonies will generally constitute significant negative factors
militating strongly against a favorable exercise of discretion.
Thus, an alien convicted of an aggravated felony will become the beneficiary of
the Attorney General’s discretion under sections 209(b) and (c) only in those
rare situations where he or she successfully demonstrates the existence of truly
compelling countervailing equities, such as those present in the instant case.




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                            IV. CONCLUSION
   In sum, we conclude that the Immigration Judge possessed original and
exclusive jurisdiction to adjudicate the respondent’s application for adjustment
of status under section 209(b) of the Act, and that the Immigration Judge’s
jurisdiction over that application necessarily implied the existence of
supplemental jurisdiction over her application for a waiver of inadmissibility
under section 209(c). Furthermore, although the Immigration Judge had
authority to terminate the respondent’s asylee status on the basis of her
aggravated felony conviction, the Immigration Judge did not commit reversible
error when she deferred consideration of the DHS’s termination request pending
adjudication of the respondent’s applications for relief under section 209 of the
Act. Accordingly, the appeal will be dismissed.
   ORDER: The appeal of the Department of Homeland Security is dismissed.




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