Schubler v. Holder, Jr.
472 F. App'x 867
10th Cir.2012Background
- Schubler is a German-born LPR since 1969 who was convicted in 1998 of wire fraud and related offenses, with restitution ordered; she briefly left the U.S. in 2003 and sought admission as an arriving alien later that year, being paroled in; DHS issued an NTA charging inadmissibility under CIMT grounds; at a 2006 IJ hearing she admitted removability and later asserted the petty offense exception under 8 U.S.C. § 1182(a)(2)(A)(ii)(II); she sought to terminate proceedings to allow CIS to adjudicate her pending I-130 and LPR status application; the IJ denied termination and held her removable for the CIMT; the BIA denied her appeal and motion for reconsideration; the petition for review to the Tenth Circuit followed
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Meaning of the petty offense exception threshold | Schubler argues the maximum penalty should be the Guideline range used by the sentencing court | BIA held the maximum penalty means the statutory maximum for the crime | Statutory maximum governs the phrase |
| IJ jurisdiction over petty offense determination and CIS exclusivity | IJ lacked jurisdiction to determine inadmissibility or terminate to let CIS adjust status | IJ had authority under §1229a(a)(1); regulation §1245.2(a)(1)(ii) does not apply here because no adjustment was adjudicated | IJ jurisdiction proper; §1245.2(a)(1)(ii) does not bar the IJ from ruling on the petty offense issue in this context |
| Reviewability of CIS determination as to petty offense eligibility | CIS’s determination should receive deference | Review limited; not raised before BIA, so not reviewable | CIS determination not reviewable; jurisdictional challenge remains reviewable |
| Whether the BIA properly denied reconsideration on the petty offense issue | BIA misinterpreted the statutory term | BIA applied the correct statutory interpretation and standard of review | BIA did not abuse discretion; statute interpreted as statutory maximum |
Key Cases Cited
- Mendez-Mendez v. Mukasey, 525 F.3d 828 (9th Cir. 2008) (maximum penalty possible refers to statutory maximum)
- Mejia-Rodriguez v. Holder, 558 F.3d 46 (1st Cir. 2009) (statutory maximum governs petty offense exception)
- Vartelas v. Holder, 620 F.3d 108 (2d Cir. 2010) (supports statutory-maximum interpretation)
- Rivera-Zurita v. INS, 946 F.2d 118 (10th Cir. 1991) (review limits where issues not raised before BIA)