641 F. App'x 376
5th Cir.2016Background
- Samba, a Burundian national, was granted asylum ~20 years earlier and became a lawful permanent resident in 2004.
- In 2008 he pleaded guilty to nine counts of tax fraud under 26 U.S.C. § 7206(2); he received two years probation and ~$151,907 restitution.
- On attempting reentry in 2012, DHS served a Notice to Appear charging removal for a crime involving moral turpitude; at the immigration hearing Samba (through counsel) conceded the allegations.
- Samba applied for asylum, withholding of removal, a waiver under §1182(h), and CAT relief; the IJ denied relief, finding his tax offense a "particularly serious crime," and the BIA affirmed (Samba abandoned the waiver and CAT claims by not briefing them).
- Samba petitioned the Fifth Circuit challenging (1) removability (counsel's concession), (2) the particularly-serious-crime finding barring asylum/withholding, and (3) whether a separate dangerousness determination was required; the court denied in part and dismissed in part for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument (Samba) | Defendant's Argument (Government/BIA/IJ) | Held |
|---|---|---|---|
| Removability: Was Samba bound by counsel's concession that his tax conviction is a crime involving moral turpitude? | Counsel's concession was erroneous; the tax offense is not a crime involving moral turpitude. | Counsel's formal admission before the IJ binds the client absent egregious circumstances; none shown. | Concession binds Samba; BIA did not err. Petition denied as to removability. |
| Particularly Serious Crime: Did the IJ/BIA err in finding the tax offense is a "particularly serious crime" barring asylum/withholding? | The IJ gave too little weight to mitigating factors (short sentence, cooperation) and thus misapplied factors. | The BIA applied the correct legal standard, examined elements and Frentescu factors, and found no clear error. | Reviewable as a question of law; court finds BIA applied correct standard and denies petition on the merits. |
| Need for separate dangerousness finding: Is a separate judicial finding that Samba "constitutes a danger to the community" required to bar asylum/withholding? | A separate finding of dangerousness is required under the statute. | The BIA did not address this argument; government contends standard application sufficed. | Dismissed for lack of jurisdiction because Samba failed to exhaust the argument before the BIA. |
| Miscellaneous motions (seal, appoint counsel, stay/reconsideration) | Samba sought sealing, appointed counsel, and other relief. | Government opposed; public access and no exceptional circumstances for counsel. | Motions denied: sealing denied, counsel not appointed, stay/reconsideration moot. |
Key Cases Cited
- Beltran-Resendez v. I.N.S., 207 F.3d 284 (5th Cir. 2000) (review limited to BIA decision and IJ to extent it affects BIA ruling)
- Enriquez-Gutierrez v. Holder, 612 F.3d 400 (5th Cir. 2010) (legal and constitutional issues reviewed de novo)
- Hakim v. Holder, 628 F.3d 151 (5th Cir. 2010) (jurisdiction to review legal standard applied to particularly serious crime determination)
- Petrov v. Gonzales, 464 F.3d 800 (7th Cir. 2006) (weighing of Frentescu factors is discretionary and not a question of law)
- Omari v. Holder, 562 F.3d 314 (5th Cir. 2009) (exhaustion requirement before BIA for judicial review)