Mercurius Jallim v. U.S. Attorney General
712 F. App'x 970
| 11th Cir. | 2017Background
- Mercurius Jallim, a St. Lucia native, became a lawful permanent resident in 2006 and was convicted in Georgia (2007) of financial identity fraud.
- In July 2015 he re-entered the U.S.; DHS served an NTA charging inadmissibility under 8 U.S.C. § 1182(a)(2)(A)(i)(I) (crime involving moral turpitude).
- DHS later added an inadmissibility charge for fraud/misrepresentation on his adjustment-of-status application under 8 U.S.C. § 1182(a)(6)(C)(i).
- At the IJ hearing Jallim at first admitted removability, later contested being classified as an "arriving alien" (inadmissible) and sought to deny removability; he relied on Matter of Pena (BIA) to argue returning LPRs generally are not "seeking admission."
- The IJ and BIA held Jallim fits the statutory exception in 8 U.S.C. § 1101(a)(13)(C)(v) because he had been convicted of a crime involving moral turpitude, so he could be treated as seeking admission and charged as inadmissible; the IJ sustained inadmissibility charges and ordered removal.
- On appeal to this Court, Jallim challenged classification and alleged the BIA/IJ failed to give reasoned consideration; the Eleventh Circuit denied in part and dismissed in part.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a returning lawful permanent resident may be charged as "seeking admission" (inadmissible) despite LPR status | Jallim: Matter of Pena bars charging a returning LPR with inadmissibility absent an exception; he contends he was improperly charged | DHS/BIA: § 1101(a)(13)(C) contains exceptions (including conviction for a crime involving moral turpitude) that permit treating an LPR as seeking admission | Held: Jallim fits the § 1101(a)(13)(C)(v) exception (crime involving moral turpitude); properly charged as inadmissible; petition denied on this point |
| Whether the BIA failed to give reasoned consideration to Jallim's contention that he did not fall within the statutory exception | Jallim: BIA's conclusion that he fell within an exception was arbitrary, lacked reasoned consideration | BIA: Jallim did not present the specific argument to the BIA that his conviction falls outside § 1101(a)(13)(C)(v); argument was waived; BIA addressed Matter of Pena and explained distinction | Held: Jallim failed to exhaust/waive the specific reasoned-consideration argument; in any event BIA adequately considered issues; claim rejected |
| Whether court has jurisdiction to review these claims (statutory limitations) | Jallim: challenges classification and due process | Respondent: § 1252(a)(2)(C) strips review for orders based on crimes involving moral turpitude; only colorable constitutional/legal questions preserved | Held: Court lacks jurisdiction over merits of removal based on moral-turpitude conviction, but retains jurisdiction to review pure legal and colorable constitutional claims; Jallim's legal argument was reviewable and rejected; other claims dismissed |
Key Cases Cited
- Lopez v. U.S. Att'y Gen., 504 F.3d 1341 (11th Cir. 2007) (review of BIA decisions and when to review IJ reasoning)
- Vuksanovic v. U.S. Att'y Gen., 439 F.3d 1308 (11th Cir. 2006) (§ 1252(a)(2)(C) jurisdiction-stripping for crimes involving moral turpitude)
- Alvarado v. U.S. Att'y Gen., 610 F.3d 1311 (11th Cir. 2010) (de novo review of subject-matter jurisdiction)
- Malu v. U.S. Att'y Gen., 764 F.3d 1282 (11th Cir. 2014) (court may review whether BIA gave reasoned consideration)
- Amaya-Artunduaga v. U.S. Att'y Gen., 463 F.3d 1247 (11th Cir. 2006) (exhaustion requirement for claims to be considered on appeal)
- Cole v. U.S. Att'y Gen., 712 F.3d 517 (11th Cir. 2013) (standard for determining whether BIA provided reasoned consideration)
- Gonzalez-Oropeza v. U.S. Att'y Gen., 321 F.3d 1331 (11th Cir. 2003) (lack of jurisdiction where constitutional claim is meritless)