Ashish Sijapati v. Dana BoenteAshish Sijapati v. Dana Boente
ON BRIEF: Irina Manelis, DYER IMMIGRATION LAW GROUP, P.C., Henrico, Virginia, for Petitioner. Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Shelley R. Goad, Assistant Director, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Before TRAXLER, KEENAN, and WYNN, Circuit Judges.
WYNN, Circuit Judge:
Petitioner Ashish Sijapati, a native and citizen of Nepal, seeks review of an order by the Board of Immigration Appeals ( BIA ) finding him removable under
Sijapati argues that the BIA erred in finding him removable under
I.
Sijapati first entered and was admitted to the United States on a nonimmigrant L-2 visa on January 25, 2001. On Decem-
On December 12, 2007—more than five years after Sijapati was first admitted into the United States on January 25, 2001, under the L-2 visa, but less than five years after his most recent admission on January 18, 2003, under that visa—a circuit court in Virginia convicted Sijapati of felony embezzlement and imposed an eighteen-month suspended sentence. Following his conviction, the Department of Homeland Security issued to Sijapati a Notice to Appear before the immigration court to face the charge of removability from the United States under
Sijapati then filed a renewed motion to terminate his removal proceedings which the immigration court construed to be a motion to reconsider its prior decision. In denying this second motion, the immigration court found that Alyazji controlled the determination of Sijapati‘s date of admission, and thus, that Sijapati‘s admission on January 18, 2003, was the admission pursuant to which [he] was in the United States at the time that he committed the crime involving moral turpitude but for which he [would not have been] present in the country. A.R. 219. Accordingly, the immigration court declined to terminate Sijapati‘s removal proceedings and ordered that he be granted voluntary departure in lieu of removal.
Sijapati appealed to the BIA, which adopted and affirmed the immigration court‘s determination that the BIA‘s reasoning in Alyazji le[d] to the conclusion that January 18, 2003, is the relevant date of admission in calculating ... whether [Sijapati] is removable under section 237(a)(2)(A)(i) of the [INA]. A.R. 67. From the BIA‘s dismissal of his appeal, Sijapati timely filed a petition for review in this Court.
II.
Sijapati‘s petition requires us to interpret the phrase the date of admission in
Because Chevron deference is accorded only when an agency‘s interpre-
Accordingly, we now consider whether Alyazji‘s construction of the date of admission is entitled to deference under the familiar two-step inquiry set forth in Chevron. First, we consider whether Congress has directly spoken to the precise question at issue. Chevron, 467 U.S. at 842. If Congress’ intent is clear, our inquiry comes to an end—we and the BIA must give effect to the unambiguously expressed intent of Congress. Id. at 842-43. However, if the statute is silent or ambiguous as to the specific issue, we must then determine whether the agency‘s answer is based on a permissible construction of the statute. Id. at 843.
A.
To resolve the initial inquiry under Chevron‘s first step, we focus purely on statutory construction without according any weight to the agency‘s position. Ojo v. Lynch, 813 F.3d 533, 539 (4th Cir. 2016) (quoting Mylan Pharm., Inc. v. FDA, 454 F.3d 270, 274 (4th Cir. 2006)). When interpreting a statute, we begin with the statute‘s plain language, U.S. Dep‘t of Labor v. N.C. Growers Ass‘n, 377 F.3d 345, 350 (4th Cir. 2004), as the plain language of the statute in question is ... the most reliable indicator of Congressional intent, Soliman v. Gonzales, 419 F.3d 276, 281-82 (4th Cir. 2005).
In construing the statute‘s plain language, we must consider the context in which the statutory words are used because [w]e do not ... construe statutory phrases in isolation; we read statutes as a whole. Ayes v. U.S. Dep‘t of Veterans Affairs, 473 F.3d 104, 108 (4th Cir. 2006) (alteration in original) (quoting United States v. Morton, 467 U.S. 822, 828, 104 S. Ct. 2769, 81 L. Ed. 2d 680 (1984)); see also Soliman, 419 F.3d at 282 ( We are obliged to look at the statutory language as a whole, construing each section in harmony with every other part or section, because Act[s] of Congress ... should not be read as a series of unrelated and isolated provisions. (alteration in original) (quoting Gustafson v. Alloyd Co., Inc., 513 U.S. 561, 570, 115 S. Ct. 1061, 131 L. Ed. 2d 1 (1995))).
Sijapati urges us to end our analysis at Chevron step one, arguing that the plain language of the statute unambiguously establishes that Congress intended the date of admission to correspond to the entry marking the commencement of an alien‘s current or most recent period of admission. Petitioner‘s Br. at 23. Sijapati further contends that Congress did not intend aliens in [his] position—i.e., those who leave and reenter the country during an existing period of admission—to reset the five-year clock ... upon being readmitted to the United States. Petitioner‘s Reply Br. at 2. We disagree.
By using the definite article the, Congress made clear that [t]here can be only one the date [of admission] for the purposes of
The INA is silent as to which admission should be used in determining an alien‘s removability under
B.
In reviewing the BIA‘s interpretation under the second prong of Chevron, [w]e generally give substantial deference to the BIA‘s precedential decisions interpreting the INA, because Congress conferred on the BIA decisionmaking power to decide such questions of law. Amos v. Lynch, 790 F.3d 512, 518 (4th Cir. 2015) (quoting Martinez, 740 F.3d at 909). In affording such deference, we may not substitute [our] own construction of a statutory provision for a reasonable interpretation made by the [BIA]. Chevron, 467 U.S. at 844. Thus, we must determine whether Alyazji reasonably interpreted the meaning of the date of admission in
In Alyazji, the BIA paid special attention to the phrase within five years after the date of admission, finding that the phrase‘s narrow language— a definite article ( the ) and a singular object ( date ) — most naturally connote[d] a single date. 25 I. & N. Dec. at 405. After expressly hold[ing] that the statutory phrase the date of admission necessarily refers to a single date in relation to the pertinent offense, the BIA went on to consider the issue of which date of admission applies when confronted with an alien who has been admitted more than once. Id. Con-
In addition to interpreting the phrase at issue, the BIA also provided guidance regarding how to ascertain an alien‘s deportability under
look first to the date when [the charged alien‘s] crime was committed. If, on that date, the alien was in the United States pursuant to an admission that occurred within the prior 5-year period, then he is deportable. Conversely, the alien is not deportable if he committed his offense more than 5 years after the date of the admission pursuant to which he was then in the United States.
We conclude that Alyazji‘s construction of the date of admission in
Sijapati nonetheless argues that Alyazji‘s interpretation of the date of admission is unreasonable because such a construction would lead to a patently absurd result whereby aliens who commit a [crime involving moral turpitude] within five years of their initial admission, but who are not immediately arrested and convicted, could preemptively defeat a future charge of deportability ... by simply leaving and reentering the country. Petitioner‘s Br. at 23-24. By contrast, the government asserts that, in that scenario, if the alien seeking admission did not admit to committing the crime of moral turpitude ... then the alien could be paroled in for prosecution and charged with inadmissibility ... after the conviction. Respondent‘s Br. at 18. Alyazji did not address—much less decide—what constitutes the date of admission when an alien leaves and reenters the country after committing a crime of moral turpitude. And it is far from clear that Alyazji‘s rule compels the result suggested by Sijapati. In such circumstances, we cannot say that Alyazji‘s construction is unreasonable.
Moreover, even if our ruling today [has] the unfortunate effect of rewarding [such] an alien, as Sijapati suggests, [a]s a court, ... we are obliged to give effect to the statutes as they are written and enacted. Aremu v. Dep‘t of Homeland Sec., 450 F.3d 578, 583 n.6 (4th Cir. 2006);
Sijapati further contests the reasonableness of Alyazji‘s interpretation of the date of admission on the grounds that it unfairly disadvantages nonimmigrants by automatically resetting the five-year clock every time a nonimmigrant happen[s] to travel abroad[,] ... subject[ing] aliens to deportability under [Section 237(a)(2)(A)(i)] decades after they beg[i]n residing in the United States. Petitioner‘s Reply Br. at 13. By contrast, the INA allows lawful permanent residents to make brief trips abroad without resetting their date of admission. See
Because [t]he BIA tethered its interpretation to traditional tools of statutory interpretation, and nothing leads this Court to conclude that its construction is unreasonable, Espinal-Andrades, 777 F.3d at 169, we find that the BIA‘s interpretation of the date of admission in Matter of Alyazji is reasonable.*
III.
In conclusion, we hold that the BIA‘s interpretation of the statutory phrase the date of admission in Alyazji is entitled to Chevron deference. Accordingly, Sijapati‘s January 18, 2003, re-entry into the United States— the date of the admission by virtue of which [Sijapati] was present in the United States when he committed his crime —constituted the date of admission for purposes of
PETITIONS FOR REVIEW DENIED