Afamasaga v. Sessions
884 F.3d 1286
| 10th Cir. | 2018Background
- Petitioner Paulo Afamasaga, a Samoan national, entered the U.S. on a B-2 visa in 1998 and remained beyond the authorized period.
- In 2011 he pleaded guilty to 18 U.S.C. § 1542 (making a false statement in a passport application), admitting he falsely claimed birth in American Samoa to obtain citizenship-related benefits; he received time served.
- DHS initiated removal proceedings for overstaying; the Immigration Judge sustained removability and pretermitted cancellation of removal, deeming him inadmissible under 8 U.S.C. § 1182(a)(2) based on a conviction for a crime involving moral turpitude (CIMT).
- The BIA (single-member decision) affirmed, holding § 1542 is categorically a CIMT.
- The Tenth Circuit exercised statutory jurisdiction to review legal questions and denied Afamasaga’s petition for review, concluding § 1542 categorically constitutes a CIMT and upholding ineligibility for cancellation of removal.
Issues
| Issue | Petitioner’s Argument | Government’s Argument | Held |
|---|---|---|---|
| Whether § 1542 is categorically a crime involving moral turpitude (CIMT) | § 1542 might reach conduct that is not a CIMT; petitioner asserted a realistic possibility of non-CIMT applications | § 1542 necessarily involves deceit and intent to induce government action, and thus is a CIMT | § 1542 is categorically a CIMT; petitioner offered no realistic counterexample |
| Appropriate analytic approach | Apply categorical approach; petitioner claims statute might criminalize non-CIMT conduct | Government urges comparison of statute to established CIMT definitions and precedent treating fraud-related offenses as CIMTs | Court applied categorical approach and precedent on fraud-related CIMTs |
| Precedential deference to agency interpretations | Petitioner challenged BIA’s nonprecedential decision; argued court should independently assess CIMT | Government relied on BIA/AG interpretations and related precedent recognizing false-statement offenses as CIMTs | Court treated prior BIA/AG and judicial interpretations as persuasive and reasonable, applying Chevron-style deference where appropriate |
| Relevance of Flores-Molina (false-statements ordinance not CIMT) | Petitioner relied on Flores-Molina to show false-statement offenses can be non-CIMTs | Government distinguished Flores-Molina because that ordinance lacked intent to affect official’s decision; § 1542 requires intent to induce issuance | Court distinguished Flores-Molina and found § 1542 requires the requisite intent, supporting CIMT classification |
Key Cases Cited
- Flores-Molina v. Sessions, 850 F.3d 1150 (10th Cir. 2017) (explains categorical approach and when false-statement offenses may or may not be CIMTs)
- de Leon v. Lynch, 808 F.3d 1224 (10th Cir. 2015) (CIMT is a question of law reviewed de novo)
- Hernandez-Carrera v. Carlson, 547 F.3d 1237 (10th Cir. 2008) (discusses deference to Attorney General/BIA interpretations of the INA)
- Garcia v. Holder, 584 F.3d 1288 (10th Cir. 2009) (alien convicted of a CIMT is ineligible for cancellation of removal)
- Efagene v. Holder, 642 F.3d 918 (10th Cir. 2011) (defines moral turpitude as inherently base, vile, or depraved conduct)
- Browder v. United States, 312 U.S. 335 (1941) (characterizes passport procurement by false statement as fraud)
- Rodriguez v. Gonzales, 451 F.3d 60 (2d Cir. 2006) (holds § 1542 categorically a CIMT)