Rene Montes MAYORGA, Petitioner v. ATTORNEY GENERAL UNITED STATES STATES of America, Respondent.
No. 13-2011.
United States Court of Appeals, Third Circuit.
June 27, 2014.
128
Argued: April 8, 2014.
Eric H. Holder, Jr., Esq., Thomas W. Hussey, Esq., Gary J. Newkirk, Esq., Anthony P. Nicastro, Esq., United States Department of Justice Office of Immigration Litigation, (Argued) Washington, D.C., Attorneys for Respondent.
Before: HARDIMAN, SLOVITER and BARRY Circuit Judges.
OPINION
SLOVITER, Circuit Judge.
This case gives this court another opportunity to analyze the meaning of a Crime Involving Moral Turpitude (“CIMT“), a provision of the Immigration and Nationality Act (“INA“),
I.
Mayorga is a native of El Salvador. He entered the United States as a teenager in 1988 without inspection and without being paroled. Though there is some dispute about the exact events triggering Mayorga‘s flight to the United States, it is clear that a desire to flee the then on-going civil war in El Salvador was a precipitating cause. Mayorga filed an application for asylum in 1995, and has had work authorization since that time.4 He is married to a U.S. citizen and has five children under the age of fifteen—three biological children and two step-children. All of the children are U.S. citizens.
On June 16, 2010, Mayorga pled guilty in the United States District Court for the Northern District of California to engaging in the unlicensed business of firearms dealing, in violation of
At his removal hearing before the IJ, Mayorga conceded his removability under
Mayorga appealed the IJ‘s denial of cancellation of removal on the basis that he had been convicted of a CIMT to the BIA. The BIA issued a brief opinion which did not discuss whether Mayorga‘s crime was categorically a CIMT, but which did agree with the IJ that Mayorga‘s conviction did render him ineligible for cancellation of removal. See App. 22-25. Mayorga appealed the BIA‘s decision to this court.
II.
The Attorney General argues that because Mayorga is concededly removable on the uncontested charge as an alien present in the United States without being admitted or paroled, we should not reach the question of whether his conviction is a CIMT. (Appellee‘s Br. at 13) Inasmuch as the question of the justiciability of Mayorga‘s claim is a threshold issue, we need to discuss it before turning to the subsequent questions. At the outset, we recognize that Mayorga conceded that he was removable as an alien present in the United States without having been admitted or paroled; moreover, his term of imprisonment prevents him from meeting the “good moral character” standards for cancellation of removal and voluntary departure. Mayorga thus faces removal and a ten-year bar on returning to the United States regardless of whether his conviction was for a crime which is categorically a CIMT.
The Supreme Court has held that “collateral consequences” can justify a suit when the consequences would lead to “concrete and continuing injury.” See Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998). Injuries that are merely speculative could not justify suit in cases such as this one, where the most immediate and direct harm that flows from a CIMT conviction—removal from the United States—would apply anyway. Although Mayorga would be inadmissible for a significant period of time on the basis of either ground for removal, the additional harm caused by a lifetime ban, as opposed to a ten-year bar, is certainly “concrete and continuing,” meeting the standard set out in Spencer. Furthermore, there is nothing “speculative” about the difference between a lifetime ban and a ten-year bar.
The significant, concrete, and continuing detriment that Mayorga faces if we approve the IJ‘s determination that his crime was categorically a CIMT refutes the government‘s contention that any ruling on this matter would be a mere advisory opinion. As noted, if the crime Mayorga was convicted of is categorically a CIMT, he faces a potential lifetime ban on admissibility to the United States.
Mayorga also easily meets the requirement set out in Lewis v. Continental Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990), that “a litigant must ... be threatened with[] an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision” (citations omitted). Here Mayorga is threatened with a lifetime ban on reentry to the United States—surely an “actual injury“—which would be traceable to the IJ‘s decision on the CIMT charge, and would be redressable by a favorable decision from this court. As the Supreme Court has elsewhere noted, when “the plaintiff is himself an object of the action ... at issue ... there is ordinarily little question that the action ... has caused him injury, and that a judgment preventing or requiring the action will redress it.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561-62, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).10
This court has not yet had the opportunity to address the particular sort of justiciability issue raised by Mayorga, but when we have considered somewhat similar circumstances, we have consistently taken into account the collateral consequences of IJ decisions. See, e.g., Steele v. Blackman, 236 F.3d 130, 134 n. 4 (3d Cir.2001) (“Erroneous conviction of an aggravated felony will have several continuing and serious legal consequences ... including serving as a permanent bar preventing his return to the United States to visit his family.“). In earlier cases such as Steele, however, the IJ decision that the petitioner sought to have overturned had not only the collateral consequence of a lifetime ban on entry to the United States, but also the direct consequence of ruling on the merits of the petitioner‘s removal. Steele therefore differs from the present case in an important way, and cannot on its own establish that Mayorga‘s petition is justiciable. However, while we cannot and do not rely merely on Steele here, it does provide further support for Mayorga‘s contention that significant collateral consequences in an immigration case, such as the lifetime ban on entry to the United States at issue here, render his petition justiciable. See also Alwan v. Ashcroft, 388 F.3d 507, 510-11 (5th Cir.2004); Kamagate v. Ashcroft, 385 F.3d 144, 149-51 (2d Cir.2004); Tapia Garcia v. I.N.S., 237 F.3d 1216, 1218 (10th Cir.2001); Chong v. District Dir., I.N.S., 264 F.3d 378, 383-86 (3d Cir.2001). For these reasons, we hold that we may hear Mayorga‘s challenge to the merits of the IJ‘s CIMT determination, and will now turn to that issue.
III.
Mayorga pled guilty to violating
In her opinion issued at the end of removal proceedings, the IJ declared that Mayorga‘s offense was a ”malum in se crime which involves moral turpitude,” and that it was “not a petty offense because he was sentenced to 46 months in prison,” and that Mayorga was therefore inadmissible. See App. 9, 10. The IJ further stated that
The respondent‘s offense is a malum in se crime which involves moral turpitude. Certain commercial trades require a license due to their inherent potential risk to the public welfare, health, and safety, and the Court would include unlicensed dealing in firearms in that category. Just as selling illegal controlled substances without a license creates a public risk, so does, by its very nature, illicit dealing in firearms without a license. The respondent‘s decision to circumvent the government‘s need to track the dealing of weapons is categorically turpitudinous.
See App. 9.
While “moral turpitude” has long been a problematic notion, both the BIA and this court have held that it is “conduct that is inherently base, vile, or depraved, contrary to the accepted rules of morality and the duties owed to other persons, either individually or to society in general.” Totimeh v. Att‘y Gen., 666 F.3d 109, 114 (3d Cir.2012) (quoting Knapik v. Ashcroft, 384 F.3d 84, 89 (3d Cir.2004)). Furthermore, “[i]t is the nature of the act itself and not the statutory prohibition of it which renders a crime one of moral turpitude.” Totimeh, 666 F.3d at 114 (quoting Matter of Flores, 17 I. & N. Dec. 225, 227 (BIA 1980)).
In deciding whether an alien‘s criminal conviction is for a CIMT, we apply the “categorical” approach. Jean-Louis v. Att‘y Gen., 582 F.3d 462, 465-66 (3d Cir.2009). Following this approach, we “look to the elements of the statutory ... offense, not to the specific facts, reading the applicable statute to ascertain the least culpable conduct necessary to sustain a conviction under the statute.” Id. (internal quotation and citation omitted). The “possibility of conviction for non-turpitudinous conduct, however remote, is sufficient to avoid removal.” Id. at 471.11
On its face, the crime Mayorga was convicted of is a regulatory/licensing offense. While the IJ stated that Mayorga‘s crime was malum in se, or inherently wrongful, such a conclusion is highly dubious, and inconsistent with precedent. In Matter of Abreu-Semino, 12 I. & N. Dec. 775, 776 (BIA 1968), a long-standing BIA precedential opinion, the BIA held that “the violation of a regulatory, or licensing, or revenue provision of a statute is not a
We recognize that the intentional violation of even regulatory offenses might involve significant moral content,12 but our application of the categorical approach, forecloses this line of reasoning in this case. Mayorga‘s crime of conviction is obviously one that could be violated unintentionally and in a non-turpitudinous manner. For example, a dealer who inadvertently let his or her license lapse would be in violation of
IV.
The final question we must face is what disposition is appropriate. The BIA, in its review of the IJ‘s decision, provided only cursory discussion of the CIMT issue, and the government contends that we should therefore remand the issue to the BIA so that it may decide the issue. Remand to the BIA is, in this instance, unnecessary. The IJ, in her opinion, explains why she concluded that Mayorga‘s crime was a CIMT. Furthermore, though the BIA‘s discussion was cursory, it did note this part of the IJ‘s decision. See App. 23. In particular, one element of the BIA‘s opinion, agreeing with the IJ that Mayorga was ineligible for cancellation of removal under
Ideally, the BIA would have provided more analysis, explaining why it accepted the IJ‘s (erroneous) reasoning on the CIMT issue. However, the record does indicate that the BIA recognized the issue and therefore had opportunity to consider it. There is no indication in the BIA‘s decision that it had decided not to consider the issue. Rather, the best interpretation is that the BIA merely adopted the IJ‘s reasoning, which we have concluded was not persuasive. When the BIA adopts an IJ‘s reasoning without significantly adding to it, we may review the IJ‘s reasoning. See Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir.2004). Moreover, the issue of the scope of a CIMT is a legal one, and this court is the forum that must decide legal issues. There is therefore no reason to remand this case to the BIA.
V.
For the reasons stated above, we hold that Mayorga would suffer a serious adverse consequence if his crime of conviction were found to categorically be a CIMT, and that his challenge to the IJ‘s
HARDIMAN, Circuit Judge.
Petitioner Rene Montes Mayorga seeks review of an order of the Board of Immigration Appeals (BIA) because he claims it bans him from forever reentering the United States. In fact, the order under review has no effect on Mayorga‘s ability to reenter the country after ten years. Because the order Mayorga appeals from has not caused his stated injury, Mayorga lacks standing to challenge the agency‘s determination that he committed a crime involving moral turpitude (CIMT). For that reason, I would dismiss Mayorga‘s petition.
To establish standing Mayorga must show: (1) an injury in fact, (2) a causal connection between the injury and the conduct complained of, and (3) a likelihood that the injury will be redressed by a favorable decision. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). “To have standing at the appellate stage ... a litigant must demonstrate ‘injury caused by the judgment rather than injury caused by the underlying facts.‘” Tachiona v. United States, 386 F.3d 205, 211 (2d Cir. 2004) (quoting 15A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3902, at 63 (2d ed.1992)). Thus, Mayorga must show that the removal order caused the lifetime ban of which he complains.
Although the Immigration Judge (IJ) ordered Mayorga‘s removal from the United States, the lifetime ban was not at issue before the IJ nor the BIA. Although it is true that an IJ‘s holding that an alien committed a CIMT could result in a lifetime ban, that is only so when collateral estoppel applies to the holding. Absent the collateral estoppel effect of a CIMT determination, causation is lacking.
In this case, the IJ‘s determination that Mayorga committed a CIMT has no collateral estoppel effect, as the Government rightly conceded at oral argument.1 If, after his ten-year ban expires, Mayorga wishes to seek reentry into the United States, the IJ‘s CIMT determination would play no role in the agency‘s.2 Accordingly
The standing requirement is not an idle formality, as the procedural history of Mayorga‘s case demonstrates. By requiring litigants to demonstrate injury in fact, causation, and redressability, courts are protected from adjudicating issues that are not subject to vigorous, adversarial presentations that inform our judgments. See Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). As I shall briefly describe, as it relates to the CIMT issue, Mayorga‘s case was the antithesis of the vigorous, adversarial presentation we typically see.
The parties gave the CIMT issue short shrift before the IJ. At one hearing, the Government on was wholly unprepared to litigate the CIMT charge—arguing that the wrong crime was a CIMT until the IJ cut the lawyer off. At the next hearing, the Government gave a nine-sentence argument, relying only on an unnamed, unpublished decision of the BIA. Unbeknownst to the Government, the Seventh Circuit had already reversed the BIA in that case. See Ali v. Mukasey, 521 F.3d 737, 739-40 (7th Cir.2008). Mayorga never countered the Government‘s hollow argument. Even worse, at a prior hearing, Mayorga actually conceded that he had been convicted of a CIMT (an admission the IJ declined to accept). On this remarkably sparse record, the IJ held that Mayorga‘s firearms crime was a CIMT. Only three paragraphs in the IJ‘s fourteen-page decision discussed the CIMT issue, and its analysis adopts word-for-word the reasoning of the opinion of the BIA that was reversed by the Seventh Circuit in Ali.
Following Mayorga‘s appeal of the IJ‘s removal order, the BIA said nothing about whether it agreed with the IJ‘s CIMT analysis; it merely noted that determination in passing. This was no oversight by the BIA, since neither Mayorga‘s brief nor the Government‘s brief discussed the CIMT issue.3
After losing his appeal to the BIA, Mayorga filed a petition for review with this Court. In motions practice before us, Mayorga referenced various arguments, but never asked us to review the CIMT issue. Instead, the motions panel noticed the IJ‘s dubious CIMT reasoning and the Seventh Circuit‘s reversal of the case upon which the IJ had relied.4 At the same time, the motions panel recognized that the CIMT issue might not be justiciable, so we requested briefing on both the CIMT issue and its justiciability. Mayorga briefed both issues, but the Government demurred on the merits of the CIMT question, instead arguing that Mayorga‘s petition was not justiciable, and if it were, remand to the agency would be appropriate.
For the reasons stated, I respectfully dissent.