Ashish Sijapati v. Dana Boente
848 F.3d 210
| 4th Cir. | 2017Background
- Petitioner Ashish Sijapati, a Nepalese national, first admitted on an L-2 visa on January 25, 2001; he left briefly and reentered on January 18, 2003 under the same visa.
- He adjusted status to lawful permanent resident in March 2005.
- On December 12, 2007, Sijapati was convicted of felony embezzlement (crime involving moral turpitude).
- DHS charged removability under 8 U.S.C. § 1227(a)(2)(A)(i) (crime of moral turpitude committed within five years after "the date of admission").
- Immigration judge and the BIA applied Matter of Alyazji, treating the relevant "date of admission" as the admission that made the alien present when the offense occurred (here, January 18, 2003).
- Fourth Circuit reviewed whether the BIA’s interpretation is entitled to Chevron deference and denied Sijapati’s petition for review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| What does "the date of admission" mean in § 237(a)(2)(A)(i)? | "Date of admission" should be the initial/first admission (Jan 25, 2001), not subsequent re-entries; statute requires start of current/most recent continuous admission. | BIA (and government) interpret "the date of admission" as the admission by virtue of which the alien was present when the crime was committed (i.e., the admission that makes the alien present). | Court: Phrase is ambiguous; defer to BIA’s Alyazji construction (admission making the alien present when crime occurred). |
| Is Alyazji entitled to Chevron deference? | Alyazji is unreasonable and leads to absurd results (resets 5-year clock on brief re-entries). | Alyazji is a permissible construction of an ambiguous statute and reasonably applies statutory text and structure. | Court: Alyazji is a reasonable BIA interpretation; Chevron deference applies to the precedential decision. |
| Does applying Alyazji here render Sijapati removable under the five-year rule? | Applying first admission would make conviction outside five-year window so not removable. | Using the re-entry date (Jan 18, 2003) places conviction within five years, so removable. | Court: Using re-entry date, conviction (Dec 12, 2007) falls within five years; petitioner removable—petition denied. |
| Are policy/ fairness objections (differential treatment of nonimmigrants vs LPRs) a basis to reject Alyazji? | Treating re-entries as resetting the clock is unfair to nonimmigrants and inconsistent with LPR rules. | Congress may treat classes differently; BIA’s interpretation is permissible. | Court: Policy concerns do not render the BIA’s statutory construction unreasonable. |
Key Cases Cited
- Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (agency interpretations entitled to deference when statute ambiguous)
- INS v. Aguirre-Aguirre, 526 U.S. 415 (BIA interpretations of ambiguous immigration statutes may receive Chevron deference)
- INS v. Cardoza-Fonseca, 480 U.S. 421 (administrative interpretation through adjudication can give concrete meaning to ambiguous terms)
- Ojo v. Lynch, 813 F.3d 533 (4th Cir.) (statutory-interpretation principles; focus on text/context before agency deference)
- Hosh v. Lucero, 680 F.3d 375 (4th Cir.) (standard of review for statutory questions and deference to BIA)