Gurdeep Atwal v. Jefferson Sessions
691 F. App'x 344
| 9th Cir. | 2017Background
- Petitioner Gurdeep Singh Atwal pleaded guilty under 18 U.S.C. § 371 to a conspiracy whose plea agreement expressly admitted conspiring to violate 18 U.S.C. § 1546(a) (visa fraud) and § 1001(a).
- The Board of Immigration Appeals (BIA) found Atwal removable under INA § 237(a)(3)(B)(iii) as one convicted of conspiring to violate 18 U.S.C. § 1546.
- Atwal sought a discretionary fraud waiver under INA § 237(a)(1)(H); the BIA pretermitted the application as unavailable for his ground of removability.
- Atwal applied for withholding of removal and relief under the Convention Against Torture (CAT); the BIA denied both for failure to show a cognizable protected ground or likelihood of torture.
- Atwal raised due process claims: IJ recusal, failure to give Miranda warnings, and alleged procedural defects at a 1997 marriage interview; the BIA rejected all as meritless or non-prejudicial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Removability under INA § 237(a)(3)(B)(iii) based on conspiracy conviction | Atwal: convicted under § 371 (general conspiracy), not § 1546, so not removable under the specific INA provision | Government: INA covers convictions for conspiring to violate § 1546; conspiracy to violate § 1546 prosecuted under § 371 suffices | Held: Removability upheld — plea admitted conspiracy to violate § 1546; conviction falls within INA § 237(a)(3)(B)(iii) |
| Use of plea agreement to identify conspiracy object | Atwal: BIA erred in relying on plea to determine which substantive offense was object of conspiracy | Government: Object of conspiracy is an essential element; courts may consult conviction documents (plea) to identify the statutory object | Held: BIA properly reviewed plea under Nijhawan/Arlt and relied on Atwal’s admission to § 1546(a) |
| Eligibility for INA § 237(a)(1)(H) fraud waiver | Atwal: argues entitlement to consideration of waiver | Government: Waiver unavailable for non-waivable grounds of removability like § 237(a)(3)(B)(iii) | Held: Waiver application properly pretermitted because ground of removability is not waivable |
| Withholding of removal / CAT relief | Atwal: feared persecution/torture upon return; asserted membership in group of persons who lived and acquired resources in U.S. | Government: Proposed group not cognizable; record shows no likelihood of individualized persecution or torture | Held: Denied — social group not cognizable; fails to show clear probability of persecution or likelihood of torture |
| Due process claims (recusal, Miranda, interview procedures) | Atwal: IJ biased; should have received Miranda; procedural defects at marriage interview prejudiced case | Government: No extrajudicial bias; Miranda not required in civil removal; no prejudice from any interview defects given Atwal’s admissions | Held: Due process claims rejected; no extrajudicial bias, Miranda inapplicable, no prejudice shown |
Key Cases Cited
- Taggar v. Holder, 736 F.3d 886 (9th Cir. 2013) (conspiracy convictions under § 371 can support removability when the object is a controlled statutory offense)
- Nijhawan v. Holder, 557 U.S. 29 (2009) (courts may consult certain conviction documents, including plea agreements, to determine the scope of a prior conviction)
- United States v. Arlt, 252 F.3d 1032 (9th Cir. 2001) (en banc) (the object-of-conspiracy is an essential element of a § 371 offense)
- Garcia v. Holder, 749 F.3d 785 (9th Cir. 2014) (standard for withholding: clear probability of persecution on account of a protected ground)
- Ramirez-Munoz v. Lynch, 816 F.3d 1226 (9th Cir. 2016) (group of persons who lived and acquired resources in the U.S. is not a cognizable particular social group)
- Ibarra-Flores v. Gonzales, 439 F.3d 614 (9th Cir. 2006) (applicant must show prejudice from procedural defects to prevail on due process challenge)