Bare v. Barr, No. 17-73269 (9th Cir. 2020)
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The Ninth Circuit denied a petition for review of the BIA's decision, holding that petitioner has adequately exhausted his particularly serious crime argument but that the BIA and IJ did not err in concluding that petitioner'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.
The panel also held that the termination of petitioner's grant of asylum by reopening his asylum-only proceeding was not error, and the IJ did not have jurisdiction to consider his request for an adjustment of status because of the limited scope of such proceedings. The panel stated that petitioner's request for an adjustment of status should have been made to the USCIS, not the IJ.
Court Description: 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 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.
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