Amouzadeh v. WinfreyAmouzadeh v. Winfrey
Manoutcher Amouzadeh appeals the district court‘s denial of his
I
Amouzadeh, a native of Iran, first entered the United States in 1978 as a student. After marrying a United States citizen, Amouzadeh‘s status was adjusted to that of a lawful permanent resident, and on September 21, 1995, he became a citizen of the United States by naturalization. However, on September 5, 1995, just two weeks prior to his final naturalization hearing, Amouzadeh was arrested on charges that he was part of a conspiracy to possess cocaine with the intent to distribute. He was convicted on September 4, 1996 of that crime.
At his final naturalization hearing, Amouzadeh was asked whether he had, since petitioning for naturalization, “knowingly committed any crime or offense, for which [he had] not been arrested; or [had been] arrested, cited, charged, indicted, convicted, fined or imprisoned for breaking or violating any law or ordinance including traffic violations?” Amouzadeh falsely stated, under oath, that he had only been cited for a traffic violation since petitioning for naturalization. Amouzadeh‘s false statement formed the basis of his later section 1425(a) conviction for knowingly procuring naturalization contrary to law. On March 21, 2001, as a result of his section 1425(a) conviction, Amouzadeh‘s United States citizenship was revoked.4
The Immigration and Naturalization Service (“INS“) initiated removal proceedings on April 12, 2001, charging that Amouzadeh was removable under INA § 237(a)(2)(A)(iii),5 as an alien convicted of an aggravated felony (drug trafficking conviction), and under INA § 237(a)(2)(A)(ii),6 as an alien convicted of two crimes involving moral turpitude (drug trafficking conviction and unlawful procurement of natu56
Amouzadeh later filed a section 2241 habeas petition in the district court, challenging his removal on two grounds: (1) the BIA erred in determining that his section 1425(a) conviction was a crime involving moral turpitude, and (2) in the alternative, even if his section 1425(a) conviction was a crime involving moral turpitude, the BIA erred in concluding that he could not apply concurrently for relief from removal under current INA § 240(A) and former INA § 212(c). The district court denied Amouzadeh‘s habeas petition. Amouzadeh appealed.
II
While Amouzadeh‘s habeas petition was pending on appeal, Congress passed the REAL ID Act of 2005 (the “Act“), which divested the federal district courts of jurisdiction to hear habeas petitions attacking removal orders, effective May 11, 2005.7 The Act provides that “a petition for review filed with the appropriate court of appeals ... shall be the sole and exclusive means for judicial review of an order of removal ....”8 The Act also requires district courts to transfer any pending habeas cases challenging an order of removal to the appropriate court of appeals; the courts of appeals are to treat the habeas petitions as timely-filed petitions for review.9 The Act does not, however, address how courts of appeals should treat habeas petitions that were pending on appeal on May 11, 2005 when the Act became effective. We recently held that such habeas petitions “are [also] properly converted into petitions for review.”10 Therefore, because Amouzadeh‘s habeas petition was pending on appeal on the Act‘s effective date, we convert it into a petition for review of the underlying BIA decision. We have jurisdiction over Amouzadeh‘s converted-petition because it involves a question of law11—whether a violation of section 1425(a) is a crime involving moral turpitude.
III
The INA provides that an alien is deportable if he has been convicted of two or more crimes involving moral turpitude.12 The INA does not, however, “define the term ‘moral turpitude[,]’ and legislative history does not reveal congressional intent regarding which crimes are turpitudinous. Instead, Congress left the interpretation of [the term] to both the BIA and the federal courts.”13 Consequently,
First, we accord substantial deference to the BIA‘s definition of the term “moral turpitude.” Second, we review de novo whether the elements of the state or federal [offense at issue] fit the BIA‘s definition of a [crime involving moral turpitude]. Importantly, this two-step approach provides both consistency—concerning the meaning of moral turpitude—and a proper regard for the BIA‘s administrative role—interpretation of federal immigration laws, not state and federal criminal statutes.14
The BIA, through its administrative decisions, has crafted the following definition of the term “moral turpitude“:
Moral turpitude refers generally to conduct that shocks the public conscience as being inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general. Moral turpitude has been defined as an act which is per se morally reprehensible and intrinsically wrong, or malum in se, so it is the nature of the act itself and not the statutory prohibition of it which renders a crime one of moral turpitude. Among the tests to determine if a crime involves moral turpitude is whether the act is accompanied by a vicious motive or a corrupt mind.15
When determining whether a particular law meets the BIA‘s definition of “moral turpitude,” we employ a categorical approach that focuses “on the inherent nature of the crime, as defined in the statute ..., rather than the circumstances surrounding the particular transgression.”16 Under the categorical approach, we read the statute at its minimum, taking into account “the minimum criminal conduct necessary to sustain a conviction under the statute.”17 An offense is a crime involving moral turpitude if the minimum reading of the statute necessarily reaches only offenses involving moral turpitude.18 However, “if the orbit of the statute may include offenses not inherently entailing moral turpitude,” then the crime is not a crime involving moral turpitude.19 “An exception to this general rule is made if the statute is divisible into discrete subsections of acts that are and those that are not [crimes involving moral turpitude].”20 If the statute is divisible, “we look at the alien‘s record of conviction to determine whether he has been convicted of a subsection that qualifies as a [crime involving moral turpitude].”21
Section 1425(a) provides that “[w]hoever knowingly procures or at
Amouzadeh contends that section 1425(a) is broad enough to punish behavior that is not “accompanied by a vicious motive or a corrupt mind”24 and therefore does not specify a crime involving moral turpitude. For example, Amouzadeh contends that an innocent misstatement during the naturalization process, made without any intent to deceive, can form the basis of a section 1425(a) conviction. To accept Amouzadeh‘s argument, this court would have to read the term “knowingly” in section 1425(a) as imposing no mens rea requirement, other than the requirement of knowingly applying for naturalization. Although we have not directly addressed this argument, the Ninth Circuit has found it unpersuasive. In United States v. Pasillas-Gaytan, the Ninth Circuit concluded that the government cannot sustain a section 1425(a) conviction merely by showing that the defendant intentionally applied for naturalization but rather must show that the defendant acted with a culpable state of mind.25 We agree.
In Pasillas-Gaytan, an alien was charged with violating section 1425(a) by knowingly misrepresenting his criminal record in a naturalization hearing.26 At trial, the alien did not dispute that he made the misrepresentation.27 Instead, he claimed that the misrepresentation was an innocent mistake, due to his poor understanding of English and his limited education.28 The jury was instructed that it could convict the alien of violating section 1425(a) if the government proved that he “knowingly” acquired naturalization and that such naturalization was “contrary to law.”29
The Ninth Circuit concluded that “[s]ince applying for naturalization, absent the oddest circumstances, is necessarily a knowing act, the jury charge essentially made section 1425 a strict liability offense, one which imposes criminal liability without regard to the defendant‘s state of mind at the time he sought naturalization.”30 The Court found the jury instruction improper because such an interpretation of section 1425(a) would violate “[t]he general rule ... that criminal statutes do not impose strict liability.”31 “‘[P]articular3031
would criminalize completely innocent conduct .... It would apply to defendants who did not understand the documents they were signing .... It would also apply to those who innocently apply for citizenship outside the statutory time periods for making such application, and those who innocently apply for citizenship but are not sufficiently proficient in the English language to qualify for citizenship.33
The Ninth Circuit has thus rejected Amouzadeh‘s argument that Congress intended section 1425(a) to impose no mens rea requirement, other than the requirement of intentionally applying for naturalization. Rather, the court concluded that section 1425(a) required a culpable state of mind—namely, that the defendant “either knew he was not eligible for naturalization due to his prior conviction, or knowingly misstated his criminal record on his application or in his interview.”34
We agree with the Ninth Circuit‘s conclusion that to sustain a section 1425(a) conviction, the government must prove that the defendant acted with a culpable state of mind.35 An alien may violate section 1425(a) by seeking naturalization with the knowledge that the applicant is ineligible for naturalization, or has knowingly misrepresented facts or presented false documents. We have no basis for concluding that Congress intended to criminalize the procurement of naturalization that is contrary to law when the applicant or procurer does not know that the naturalization is contrary to law. We therefore find unavailing Amouzadeh‘s argument that section 1425(a) encompasses behavior that is not morally turpitudinous.
We note that the BIA concluded that the term “contrary to law,” though not defined by the statute, generally refers to violations of
The BIA relied on two federal district court cases, United States v. Biheiri38 and United States v. Rogers.39 In Biheiri, the court stated that “‘[c]ontrary to law’ must include ‘contrary to
Nevertheless, the BIA‘s ultimate conclusion that Amouzadeh‘s violation of
IV
Amouzadeh next argues that, even if a violation of
The BIA contends that Amouzadeh failed to raise the question of whether these sections apply concurrently in either his direct appeal to the BIA or in a motion to reopen and has therefore failed to exhaust his administrative remedies.45 Amouzadeh contends that because “the BIA, on its own initiative, chose to address [the concurrent relief claim], ... [he] fulfilled his statutory requirement to exhaust his administrative remedies.” It is not entirely clear whether the BIA did address Amouzadeh‘s concurrent relief claim, but even assuming it did, the claim has no merit.
A waiver under section 212(c) does not remove an aggravated felony conviction from an alien‘s record. The conviction still exists for purposes of section 240A(a). The BIA held in In re Balderas that “since
* * *
For the foregoing reasons, we DENY Amouzadeh‘s converted-petition for review.
Notes
[W]hoever ... knowingly and willfully falsifies, conceals, or covers up any trick, scheme, or device a material fact[, or] makes any false, fictitious or fraudulent statement or representation ... shall be fined under this title or imprisoned not more than 5 years, or both.
Whoever knowingly makes any false statement under oath, in any case, proceeding, or matter relating to, or under, or by virtue of any law of the United States relating to naturalization, citizenship, or registry of aliens ... [s]hall be fined under this title or imprisoned not more than five years or both.