Emerald Nkomo v. Attorney General United States
930 F.3d 129
3rd Cir.2019Background
- Emerald Nkomo, a lawful permanent resident and Zimbabwean citizen, was convicted in 2017 of conspiracy to commit wire fraud (an aggravated felony) and became removable.
- About one month after sentencing (time served), the government initiated removal proceedings; Nkomo appeared and participated in those proceedings.
- The IJ found Nkomo ineligible for withholding of removal, deeming her conviction a "particularly serious crime;" the BIA adopted and independently analyzed the IJ’s decision.
- The BIA denied Nkomo’s CAT claim, finding she had not shown a likelihood of torture by or with Zimbabwe’s government acquiescence.
- Nkomo moved to remand based on Pereira (arguing her NTA was deficient because it lacked time/place), and she challenged the Board’s finding that her conviction was a "particularly serious crime."
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an NTA that omits time/place divests the IJ/BIA of jurisdiction over removal proceedings | Nkomo: Pereira defines “notice to appear” for all purposes, so an NTA lacking time/place is not a charging document and never vests IJ jurisdiction | Govt/BIA: Pereira’s holding is limited to the stop-time rule; jurisdictional regulations and their cross-references differ and allow proceedings to commence when a charging document is filed | Court: Rejected Nkomo’s jurisdictional challenge; Pereira does not strip IJ/BIA jurisdiction here |
| Whether Nkomo’s wire-fraud conviction is a “particularly serious crime” barring withholding of removal | Nkomo: Minimal role and noncustodial sentence should mitigate; Board erred by not giving these greater weight | BIA/IJ: Gravity of $40M scheme and $3M personal responsibility outweigh minimal participation; sentence is not dispositive | Court: Affirmed BIA; no legal error in finding the crime particularly serious, denying withholding |
| Whether the Board erred in denying CAT protection based on party merger and country conditions | Nkomo: Merger was symbolic; she remains at risk as outsider to ruling party and presented evidence of likely harm | BIA/IJ: Evidence showed merger reduces risk, no government targeting for decades, prior travel without incident | Court: Dismissed review for lack of jurisdiction because factual challenges to CAT findings are barred for criminal aliens |
Key Cases Cited
- Pereira v. Sessions, 138 S. Ct. 2105 (2018) (Supreme Court decision limiting when an NTA triggers the stop-time rule)
- Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984) (doctrine of administrative deference)
- Denis v. Attorney General, 633 F.3d 201 (3d Cir. 2011) (agency discretion in determining particularly serious crime)
- Kaplun v. Attorney General, 602 F.3d 260 (3d Cir. 2010) (review of BIA misapplication of precedents)
- S.E.R.L. v. Attorney General, 894 F.3d 535 (3d Cir. 2018) (standard for reviewing BIA adoption of IJ opinions)