777 F.3d 807
6th Cir.2015Background
- Fayzullina, a Russian national, entered the U.S. in 2005 on a nonimmigrant visa, married Matthew Grey in 2006, and obtained adjustment to lawful permanent resident in 2008.
- A federal indictment alleged a sham marriage and false statements; Fayzullina pled guilty to Count 2 for making/using a materially false writing in violation of 18 U.S.C. § 1001(a)(3) and was sentenced to two years’ probation.
- DHS served a Notice to Appear in 2010 with amended allegations that she procured adjustment of status by willfully misrepresenting material facts and that she was convicted under 18 U.S.C. § 1001.
- The IJ found Allegations 5 and 6 proved, amended the charging statute from §1001(a)(2) to §1001(a)(3) sua sponte, and concluded she was removable under 8 U.S.C. §§ 1227(a)(1)(A) (inadmissibility at time of adjustment) and 1227(a)(2)(A)(i) (crime involving moral turpitude within five years of admission).
- Fayzullina applied for waivers under 8 U.S.C. § 1227(a)(1)(H) and § 1182(h); IJ and BIA denied relief (§1227(a)(1)(H) only applies to paragraph (a)(1) removability; §1182(h) requires 7 years continuous presence, which she lacked).
- The BIA affirmed; the Sixth Circuit denied review, holding the conviction under §1001(a)(3) is categorically a crime involving moral turpitude, the NTA amendment did not prejudice Fayzullina, and she was ineligible for the requested waivers.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether conviction under 18 U.S.C. §1001(a)(3) is a "crime involving moral turpitude" for removal under §1227(a)(2)(A)(i) | §1001(a)(3) is not categorically a CIMT or at least the court should examine specifics | §1001(a)(3) involves deliberate dishonesty (materiality and scienter) and is categorically a CIMT | Held: §1001(a)(3) is categorically a CIMT; conviction supports removal under §1227(a)(2)(A)(i) |
| Whether Fayzullina's misrepresentation was material for inadmissibility under §1182(a)(6)(C)(i) and removal under §1227(a)(1)(A) | Misrepresentation was not shown to be material | Guilty plea and statement of facts establish material false written and oral statements to CIS | Held: Sufficient evidence showed materiality; removable under §1227(a)(1)(A) |
| Whether IJ's sua sponte amendment of the NTA (correcting statute from §1001(a)(2) to §1001(a)(3)) violated due process | Amendment deprived her of notice and prejudiced her defense | She had notice of the nature of the conviction and was not prejudiced; pleading errors are harmless absent prejudice | Held: No due process violation—no substantial prejudice shown |
| Whether Fayzullina was eligible for waivers (§1227(a)(1)(H) or §1182(h)) | §1227(a)(1)(H) should waive removability tied to fraud; §1182(h) can be applied nunc pro tunc | §1227(a)(1)(H) applies only to paragraph (a)(1) and not to removability under (a)(2); §1182(h) requires 7 years continuous presence, which she lacks; nunc pro tunc relief not available | Held: Ineligible for §1227(a)(1)(H) (removability also under (a)(2)); ineligible for §1182(h) (did not satisfy 7-year presence requirement) |
Key Cases Cited
- Ruiz-Lopez v. Holder, 682 F.3d 513 (6th Cir. 2013) (Chevron deference to BIA construction of moral turpitude term)
- Kellermann v. Holder, 592 F.3d 700 (6th Cir. 2010) (deliberate falsity to government agency supports CIMT removal)
- Ghani v. Holder, 557 F.3d 836 (7th Cir. 2009) (upholding BIA approach to fraud-related moral turpitude)
- Yeremin v. Holder, 738 F.3d 708 (6th Cir. 2013) (categorical/modified-categorical framework and fraud-based CIMT analysis)
- Taggar v. Holder, 736 F.3d 886 (9th Cir. 2013) (§1227(a)(1)(H) waiver does not apply to removability under other paragraphs)
- Gourche v. Holder, 663 F.3d 882 (7th Cir. 2011) (same conclusion on §1227(a)(1)(H) scope)
- Imran v. Holder, [citation="531 F. App'x 749"] (6th Cir. 2013) (admissions to fictitious or false statements both constitute CIMT)