BIA Interprets Real ID Act in Relief from Removal Context

This week the BIA released a decision interpreting the application of the REAL ID Act of 2005, Division B of Pub. L. No. 109-13, 119 Stat. 231

(enacted May 11, 2005), on applications for relief from removal. See Matter of Almanza-Arenas, 24 I&N Dec. 771 (BIA 2009). As a preliminary matter, the BIA clarified that the REAL ID Act applies to all applications for relief filed on or after May 11, 2005. “[I]t is the date the application for relief was filed that governs, rather than the date the Notice to Appear was filed.”

In addition, Almanza-Arenas compounds the difficulty of obtaining discretionary relief from removal in two ways. First, the BIA held that the respondent bears the burden of proving that his conviction was not a crime involving moral turpitude (CIMT). There was no question that the plea agreement in this case (involving a divisible statute) left much ambiguity about whether a CIMT occurred. Nonetheless, the BIA determined that it was the respondent’s burden to clear up that ambiguity so as to establish eligibility for Cancellation of Removal. One IJ we’re familiar with takes this requirement to mean that the respondent has to prove that am ambiguous conviction is not an aggravated felony even where DHS hasn’t alleged that the conviction is an aggravated felony.

Second, the respondent also has the burden of providing corroborating evidence requested by the Immigration Judge (IJ) to support his claim and explain why such evidence is not available if it is not submitted. Given the nature of immigration detention, this will likely mean that a lot of attorneys will have to work hard at getting transcripts and other conviction documents from old convictions in jurisdictions many states away. Good luck figuring out, for example, how to get a plea hearing transcript for a 15-year-old conviction from a state trial court where you don’t know the first thing about that court’s procedure.

Some ideas for practitioners: Often, the first mention of “missing” corroborating evidence comes in an IJ’s decision. I have seen a number of cases where an IJ points out that the respondent failed to produce certain corroborating evidence–but only says so in the decision, not at the hearing itself. The BIA noted that the situation in Almanza-Arenas was different: “There is no question that the Immigration Judge explained on the record that

the respondent was expected to obtain additional conviction documents, including a transcript of his criminal proceeding, and continued the case to

give him ample opportunity to comply.” Perhaps this leaves an opening for situations in which the IJ does not request, on the record, certain documents or does make such a request but refuses to grant the respondent an “ample” continuance to try to get the requested documents.