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ImmIGRATION APRIL 02, 2021 | The Indian Eye 48

The law does not compel the impossible– Or does it?:

Matter of c-c- and awuku-asare v. Garland

david isaacsOn of which he was later ac- the impossible. Id. at 222. Matter of C-C-, 3 I&N deportable.”
quitted. Awuku-Asare v. The Tenth Circuit up-
Garland, ___ F.3d ___, No. Matter of Ruiz-Massieu, 22 Dec. at 221-222. held the removal order
“lex non cogiT ad 19-9516 (slip op. March 16, I&N Dec. at 841. Daniel Kofi Awuku- against Mr. Awuku-Asare,

iMPossiBilia.” 2021). The original Matter of Asare recently found rejecting his argument that
The BIA’s 1948 deci-
deportability for failure to
n English, as translat- sion in Matter of C-C- is not C-C- decision, which I will himself in somewhat sim- maintain status requires
ilar circumstances to Mr.
ed by the Court of Ap- publicly available online in take the liberty of excerpt- C-C-, except that he was “that the nonimmigrant’s
Ipeals for the Eleventh its entirety (although it can ing even without a hyper- a student charged with failure to maintain status
Circuit, that means: “The be obtained from sources link, provides additional rape rather than a seaman must have been caused by
law does not compel the such as Westlaw and Lex- details: charged with drug smug- some affirmative act per-
doing of impossibilities.” In is), as the Department of The appellant, a native gling. As the Court of Ap- formed by the nonimmi-
1948, citing this principle, Justice’s online collection and citizen of China, male, peals for the Tenth Circuit grant or that the failure to
the Board of Immigration of precedent decisions only 44 years of age, last entered recounted in its March 16 maintain status was other-
Appeals (BIA) held that goes back to Volume 8 cov- the United States at the opinion in Awuku-Asare v. wise the nonimmigrant’s
a nonimmigrant seaman ering 1958-1960. The de- port of Boston, Mass., July Garland, fault.” Awuku-Asare, slip
could not be deported for cision was, however, sum- 30, 1947, as a seaman. He Awuku-Asare entered op. at 7. Such an interpre-
having failed to leave the marized in the more recent was admitted for a period the country on a non- tation, the Tenth Circuit
United States timely when, and thus publicly available not to exceed 29 days. The immigrant F-1 visa and held, “necessarily adds text
at the time he was sup- Matter of Ruiz-Massieu, 22 record indicates that the could lawfully remain in to an unambiguous statute.
posed to leave, he was in jail I&N Dec 833 (BIA 1999), appellant intended to re- the United States so long And that is something we
pending trial for a crime of as follows: ship foreign at the time of as he complied with the cannot do.” Id.
which he was later acquit- Matter of C-C-, 3 I&N said entry. conditions of his visa. Rel- As in Matter of C-C-,
ted. Matter of C-C-, 3 I&N Dec. 221 (BIA 1948), in- The appellant testified evant here, maintaining however, the interpreta-
Dec. 221, 222 (BIA 1948). volved an alien who was that he was arrested by an F-1 visa status requires tion of the statute that led
But last week, the Court held in custody pending tri- customs officials at Boston maintaining a full course to the issuance of an order
of Appeals for the Tenth al for a criminal charge past the day after his arrival and of study at an approved ed- against Mr. Awuku-Asare
Circuit affirmed the BIA’s the time of his authorized charged with smuggling ucational institution. But would seem to have re-
removal order against a stay. The Board held that opium. The record indi- Awuku-Asare did not com- quired him to do the im-
student who had failed to he was not deportable as an cates that he was acquitted ply with this full-course-of- possible. He could no more
attend classes while in jail overstay under the principle of this charge in the Dis- study requirement because attend classes in person
pending trial for a crime that the law does not compel trict Court of the United at his college while incar-
States at Boston, Mass., he was incarcerated for ap- cerated than C-C- could
on October 17, 1947. The proximately 13 months for have left the United States
warrant for the appellant’s a crime of which he was ul- while incarcerated. (Atten-
arrest in deportation pro- timately acquitted. dance at other educational
ceedings was issued Octo- Awuku-Asare, slip op. at 2. programs for incarcerated
ber 1, 1947, while he was inmates likely would not
in custody awaiting trial on According to the Tenth have sufficed, since main-
the narcotic charge and pri- Circuit, an Immigration tenance of F-1 student
or to his acquittal. He had Judge ordered Awuku- status requires attendance
been in custody since the Asare removed and “[t]he at “an institution of higher
day following his admission BIA sustained the remov- learning which awards rec-
on July 30, 1947. ability charge. . . determin- ognized associate, bache-
This case is to be distin- ing that “[a]s a result of lor’s, master’s, doctorate,
guished from a case where his arrest and detention,” or professional degrees,”
the alien’s criminal act Awuku-Asare could not 8 CFR 214.2(f)(6)(ii), as
caused his incarceration. “pursue the requisite ‘full well as the completion of
Here, by judicial finding, course of study.’” Awuku- proper transfer procedures
the appellant was not guilty Asare, slip op. at 3. (quot- with the assistance of the
of a criminal act. An alien ing 8 C.F.R. § 214.2(f)(5) new receiving school, 8
cannot be prevented from (i)). Awuku-Asare was thus CFR 214.2(f)(8).) The BIA

m of departing from the United found removable under and then the Tenth Circuit,
States in accordance with INA § 237(a)(1)(C)(i), 8
CYRUS D. MEHTA & PARTNERS PLLC the terms of his admission U.S.C. § 1227(a)(1)(C)(i), however, did not follow

and then be found deport- which provides that “Any Matter of C-C- and give
able for not so departing. alien who was admitted as a efit of the principle “Lex

Mr. Awuku-Asare the ben-

  “Lex non cogit ad impossi- nonimmigrant and who has
   
­ bilia.” The appellant should failed to maintain the non- non cogit ad impossibilia.”
€
‚   It appears that Mat-
be given a reasonable peri- immigrant status in which ter of C-C- may not have
od of time within which to the alien was admitted or been cited by the BIA or
depart. Failure to so depart to which it was changed . .
by Mr. Awuku-Asare’s
2 6th Floor would then render the ap- . or to comply with the con- counsel before the Tenth

    pellant deportable. ditions of any such status, is Circuit (he represented

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