630 F. App'x 464
6th Cir.2015Background
- Diana Sellers, a Russian national, entered the U.S. on a visitor visa and later obtained conditional lawful permanent resident status based on a sham marriage to a U.S. citizen.
- She pleaded guilty to making false statements in violation of 18 U.S.C. § 1001(a)(2) concerning her sham marriage; she received probation and her permanent resident status was terminated.
- The government charged removability under multiple INA grounds: fraud/willful misrepresentation (INA § 212/237), termination of conditional residence (INA § 237(a)(1)(D)), and conviction of a crime involving moral turpitude (CIMT) within five years of admission (INA § 237(a)(2)(A)(i)).
- The immigration judge found Sellers removable as having been convicted of a CIMT under § 1001(a)(2) and ineligible for the § 237(a)(1)(H) waiver; Sellers’ motion to reconsider and request for a § 212(h) waiver nunc pro tunc were denied.
- The Board of Immigration Appeals (BIA) dismissed Sellers’s appeal, relying on BIA precedent holding § 1001(a)(2) categorical as a CIMT, on limits of the § 237(a)(1)(H) waiver, and on its decision that § 212(h) waivers require concurrent adjustment-of-status eligibility.
- The Sixth Circuit denied Sellers’s petition for review, upholding the BIA’s rulings on removability, waiver ineligibility, and non-justiciability of the charging decision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether conviction under 18 U.S.C. § 1001(a)(2) is a crime involving moral turpitude (CIMT) | § 1001(a)(2) can encompass offenses without fraudulent intent or materiality; thus not categorically a CIMT; at most needs modified categorical analysis | § 1001(a)(2) requires knowledge and materiality; its minimum conduct involves deceit that impairs gov’t functions and therefore is categorically a CIMT | Court upheld BIA: § 1001(a)(2) categorically defines a CIMT; alternatively, record shows Sellers’ offense involved material deception anyway |
| Whether Sellers is eligible for a waiver under INA § 237(a)(1)(H) | Her CIMT conviction directly resulted from the prior fraud/misrepresentation and thus should be waivable under § 237(a)(1)(H) | The waiver applies only to grounds within paragraph (1) of § 237(a); CIMT removability appears in paragraph (2) and is not covered | Court affirmed BIA: § 237(a)(1)(H) does not waive removability based on CIMT convictions |
| Whether Sellers is eligible for a waiver under INA § 212(h) (nunc pro tunc) | She reentered the U.S. in 2009 and was thus inadmissible on return; § 212(h) should be available and granted retroactively | § 212(h) waivers are available only in connection with an application for visa, admission, or adjustment of status; Sellers did not apply for adjustment and is ineligible | Court affirmed BIA: § 212(h) requires concurrent adjustment-of-status application; Sellers ineligible; factual/timeliness problems further negate the claim |
| Whether charging her as removable (rather than inadmissible) was arbitrary and capricious | Charging choice deprived her of waiver eligibility and was therefore arbitrary | Charging decisions are prosecutorial and not judicially reviewable under 8 U.S.C. § 1252(g) | Court held claim nonjusticiable: lacks jurisdiction to review charging discretion |
Key Cases Cited
- Khalili v. Holder, 557 F.3d 429 (6th Cir. 2009) (treating BIA opinion as the final agency determination and describing standard of review)
- Kellermann v. Holder, 592 F.3d 700 (6th Cir. 2010) (discussing modified categorical approach and when false-statement offenses involve moral turpitude)
- Fayzullina v. Holder, 111 F.3d 807 (6th Cir. 2015) (holding that false-statement convictions involving materiality and knowledge constitute crimes involving moral turpitude)
- United States v. Lutz, 154 F.3d 581 (6th Cir. 1998) (defining materiality under § 1001 as having tendency or capacity to influence a federal agency)
- Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999) (describing limits on judicial review of prosecutorial discretion under 8 U.S.C. § 1252(g))