This court’s review is limited to the decision of the BIA because it did not adopt the decision and order of the IJ. If, as the BIA held, the petitioner is removable for having committed a CIMT, then this court generally lacks jurisdiction to review his deportation order.
An alien is inadmissible if he has been convicted of a CIMT, or an attempt or conspiracy to commit such a crime. This court generally accords Chevron deference to the BIA’s decisions construing ambiguous statutory terms in the INA, and this court must uphold the BIA’s construction unless it is arbitrary, capricious, or manifestly contrary to the statute.
The exact definition of “moral turpitude” has never been fully settled, but it refers generally to conduct that is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general. “Moral turpitude” has been defined as an act which is per se morally reprehensible and intrinsically wrong or malum in se, so it is the nature of the act itself and not the statutory prohibition of it which renders a crime one of moral turpitude. Among the tests to determine if a crime involves moral turpitude is whether the act is accompanied by a vicious motive or a corrupt mind. Any crime which involves intent to defraud as one of its elements is a CIMT. In ascertaining whether a crime is a CIMT, this court must first examine the statute itself to determine whether the inherent nature of the crime involves moral turpitude. If the statute defines a crime in which moral turpitude necessarily inheres, then the conviction is for a crime involving moral turpitude for immigration purposes, and this court’s analysis ends. However, if the statute contains some offenses which involves moral turpitude and others which do not, it is to be treated as a “divisible” statute, and this court looks to the record of conviction, meaning the indictment, plea, verdict, and sentence, to determine the offense of which the respondent was convicted.
The statutory provision at 18 U.S.C. §1001 criminalizes making a false statement to a government agency, and 18 U.S.C. § 371 criminalizes conspiracy to make a false statement.
As the BIA noted, this court has previously determined that a conviction under 18 U.S.C. § 1001 is a CIMT. In Kabongo v. I.N.S., 837 F.2d 753 (6th Cir. 1988), this court held that convictions for making false statements in violation of § 1001 and obtaining student loan funds by fraud and false statements in violation of 20 U.S.C. § 1097(a) involved moral turpitude. Furthermore, this court has held in Zaitona v. I.N.S., 9 F.3d 432 (6th Cir. 1993), that making a false statement is a CIMT where materiality and knowledge are shown.
Under the “categorical approach,” first articulated by the Supreme Court in Taylor v. U.S., 495 U.S. 575 (1990), this court must first look to the inherent nature of the crimes as defined by statute and interpreted by the courts and as limited and described by the record of conviction to determine whether the offenses are ones involving moral turpitude for the purposes of the deportation statute. If there is no categorical match, and the court finds that the statute of conviction criminalizes both conduct that does and does not qualify as a CIMT, then the court should apply a more modified approach. Under this analysis, deemed the “modified categorical approach” by some courts, the court conducts a limited examination of documents in the record to determine whether the particular offense for which the alien was convicted constitutes a CIMT.
Where the indictment states that the petitioner “did unlawfully, willfully, and knowingly conspire . . . to knowingly and willfully make false, fictitious, and fraudulent statements or representations concerning a material fact within the jurisdiction of a department or an agency of the United States, and in particular to [the United States Agency for International Development] for the purpose of obtaining grant funds, in violation of Title 18, United States Code, Section 1001,” and “to defraud the United States . . . in violation of Title 18, United States Code, section 371, it is clear from these charges, set forth in the conjunctive, that the petitioner was convicted of conspiring to act fraudulently.
Furthermore, where the indictment states that the petitioner “knowingly and willfully made and caused to be made a false, fictitious, and fraudulent material statement and representation . . . in violation of Title 18, United States Code, Section 1001”, this charge, similarly listed in conjunctive language, also proves the fraudulent aspect of the petitioner’s actions. Thus, this court holds that the BIA correctly dismissed the appeal because the petitioner was removable for having been convicted of a CIMT. This court holds that the BIA properly determined that petitioner’s convictions for making a false, fictitious, or fraudulent statement to a governmental agency and for conspiracy to defraud the United States or commit the offense of making a false, fictitious, or fraudulent statement to a governmental agency constitute CIMT under INA
§ 212(a)(2)(A)(i)(I).
Section 212(c) of the Immigration and Nationality Act, before it was repealed by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub.L. 104-208, 110 Stat. 3009 (1996), allowed the Attorney General to readmit to the United States an otherwise inadmissible permanent resident alien under certain conditions, but did not allow the Attorney General to admit such an alien if he had been convicted of one or more aggravated felonies and had served a term of imprisonment of at least 5 years.
In place of § 212(c) relief, Congress enacted INA § 240A, which consolidates the relief formerly known as “suspension of deportation,” with provisions of the former § 212(c) to create a new form of relief called “cancellation of removal.” Cancellation of removal allows the Attorney General to cancel removal proceedings for certain resident aliens. Cancellation, like former § 212(c) relief both before and after the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (April 24, 1996) (“AEDPA”) amendments, is not available to aliens whose criminal convictions qualify as aggravated felonies.
In I.N.S. v. St. Cyr, 533 U.S. 289 (2001), the Supreme Court held that INA § 212(c) relief remains available for aliens whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for § 212(c) relief at the time of their plea under the law then in effect. The Supreme Court reasoned that because plea agreements involve a quid pro quo between a criminal defendant and the government.
In exchange for some perceived benefit, defendants waive several of their constitutional rights (including the right to a trial) and grant the government numerous “tangible benefits, such as promptly imposed punishment without the expenditure of prosecutorial resources. In Atkinson v. Att’y Gen., 479 F.3d 222 (3d Cir. 2007), the Third Circuit extended the holding of St. Cyr to aliens who, prior to the repeal of § 212(c), were convicted (after trial) of an aggravated felony that would not have rendered them ineligible for § 212(c) relief. The Second, Fifth, Eighth, and Tenth Circuits have also concluded that the repeal of § 212(c) cannot be applied retroactively to aliens whose convictions resulted from a jury trial and not from a plea of guilty. However, the Respondent counters that seven circuit courts (First, Second, Fourth, Fifth, Seventh, Ninth, and Eleventh) have held that aliens who proceeded to trial are not entitled to apply for relief under former § 212(c) after its repeal.
In Ferguson v. Att’y Gen., 563 F.3d 1254 (11th Cir. 2009), petition for cert. filed, 78 U.S.L.W. 3107 (Aug. 28, 2009) (No. 09-263), the Eleventh Circuit addressed the question whether IIRIRA’s repeal of the INA’s § 212(c) waiver provision has an impermissible retroactive effect on aliens, like Sandra Ferguson, who were convicted of deportable criminal offenses before IIRIRA’s effective date? The court denied the petition for relief and held that reliance is a component of the retroactivity analysis as it applies to aliens, deportable for criminal offenses, who wish to show that IIRIRA’s repeal of § 212(c) has an impermissible retroactive effect. The court held that where the petitioner did not plead guilty but was convicted by a jury, and where aside from her decision to go to trial, the petitioner pointed to no other “transactions” or “considerations already past” on which she relied, the Eleventh Circuit, joining the majority of circuits, declined to extend St. Cyr to aliens who were convicted after a trial because such aliens’ decisions to go to trial do not satisfy St. Cyr’s reliance requirement. Therefore, § 212(c) relief is not available to such aliens.
Applying the reasoning in Ferguson, this court concludes that IIRIRA’s repeal of § 212(c) does not have an impermissible retroactive effect on the petitioner because, in choosing to proceed to trial, he did not abandon any rights or admit guilt in reliance on continued eligibility for § 212(c) relief. This court declines to adopt the Third Circuit’s approach. Rather, this court finds the reasoning of the majority of circuits persuasive and now joins them in declining to extend
St. Cyr, to aliens, like the petitioner, who, prior to the repeal of § 212(c), were convicted after a trial. Therefore, this court finds that the petitioner is ineligible to seek a waiver of inadmissibility under former INA § 212(c) because he was convicted by a jury.
An “aggravated felony” includes an offense that involves fraud or deceit in which the loss to the victims exceeds $10,000. The petitioner’s argument that his conviction is not an aggravated felony because the amount of loss was not an element of the crime and, as a result, the jury did not make a finding on the amount of loss is without merit given the Supreme Court’s decision in Nijhawan v. Holder, 129 S.Ct. 2294 (2009). In Nijhawan, the Supreme Court held the $10,000 threshold in 8 U.S.C. § 1101(a)(43)(M)(i) refers to the particular circumstances in which an offender committed a fraud or deceit crime on a particular occasion, rather than to an element of the fraud or deceit crime. This court holds that the petitioner’s convictions under 18 U.S.C. §§ 371 and 1001 constituted aggravated felonies as defined at INA § 101(a)(43)(M)(i), rendering the petitioner ineligible for cancellation of removal. The petition for review is therefore denied.
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