SOLOMAN TETTEH, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
No. 19-2357
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
April 27, 2021
PUBLISHED. Submitted: January 29, 2021. On Petition for Review of an Order of the Board of Immigration Appeals. Before WILKINSON, AGEE, and DIAZ, Circuit Judges.
Petition dismissed in part and denied in part by published opinion. Judge Diaz wrote the opinion, in which Judge Wilkinson and Judge Agee joined.
Bradley B. Banias, WASDEN BANIAS LLC, Mount Pleasant, South Carolina, for Petitioner. Joseph H. Hunt, Assistant Attorney General, Linda S. Wernery, Assistant Director, Walter Bocchini, Senior Litigation Counsel, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Soloman Tetteh, a native and citizen of Ghana, was convicted of drug and firearm offenses in Georgia. The state later pardoned him, but not before the Department of Homeland Security sought to remove Tetteh based on his convictions. The Immigration Judge (“IJ“) ordered his removal, and the Board of Immigration Appeals (“BIA“) dismissed his appeal.
Tetteh now argues that he can‘t be removed for pardoned offenses. But Tetteh didn‘t exhaust his argument that pardoned offenses don‘t qualify as convictions under the Immigration and Nationality Act,
I.
A.
Tetteh entered the United States as a student and overstayed his visa. While living in Georgia, Tetteh pleaded guilty to possessing cocaine with intent to distribute, possessing marijuana, and possessing a firearm in the commission of a crime. A state court sentenced Tetteh to one- and three-year terms of probation to run concurrently. It also applied the Georgia First Offender Act,
Tetteh subsequently applied to adjust his status from temporary to permanent resident. In that application, he averred that he had “not been arrested, convicted or confined in a prison,” and was not excludable on any grounds, including for being an alien “who ha[s] been convicted of a violation of any law or regulation relating to a narcotic drug or marihuana or who ha[s] been an illicit trafficker[]” in those substances. A.R. 407-08. Tetteh successfully obtained permanent resident status.
Tetteh then completed his probationary sentence, and the state of Georgia discharged his offenses.
B.
More than twenty years later, the Department of Homeland Security matched the Georgia convictions to Tetteh and initiated removal proceedings. The government sought Tetteh‘s removal on four grounds:
Tetteh conceded removability but sought a discretionary waiver of deportation, which may be granted to certain aliens with “a lawful unrelinquished domicile of seven consecutive years” in the United States.
Tetteh then filed a pro se motion to reopen, arguing that he was eligible for a waiver after all. The IJ denied his motion, and Tetteh appealed to the BIA. While his appeal was pending, the Georgia Board of Pardons and Paroles granted Tetteh a pardon for all of his convictions. Tetteh asked the BIA to remand his case, attaching the pardon and arguing that a waiver of the removal ground for his aggravated felony conviction could make him eligible for discretionary relief, such as voluntary departure. The BIA granted that relief, and instructed the IJ on remand to determine whether Tetteh‘s pardon qualified as a governor‘s pardon, which can waive certain grounds for removal under
C.
On remand, Tetteh secured new counsel, and the parties stipulated that Tetteh‘s pardon derived from the Georgia governor‘s authority. Tetteh also reapplied for adjustment of status and the government moved to pretermit the application.
The IJ granted the government‘s motion (thereby denying Tetteh‘s application to adjust his status), determined that Tetteh was removable despite the pardon, and again ordered his removal. The IJ first explained that Tetteh‘s offenses are “convictions” under the Immigration and Nationality Act because they “resulted from a formal judgment of guilt entered by a court, and a judge ordered some form of punishment.” A.R. 86-87 (citing
Alternatively, the IJ found that the pardon “does not waive [Tetteh‘s] remaining grounds of removability” because they aren‘t enumerated in
Tetteh again appealed, but this time, the BIA dismissed the appeal. The BIA agreed with the IJ that even if the pardon was full and unconditional, Tetteh could still be removed because of his controlled substance and firearm convictions. The BIA also affirmed the IJ‘s denial of Tetteh‘s application to adjust his status, agreeing that Tetteh was inadmissible because of his controlled substance conviction and because the government had reason to believe he was an illicit drug trafficker. In doing so, the BIA found that Tetteh had not disputed his inadmissibility based on the controlled substance conviction, and that Tetteh had thus waived that issue for purposes of adjusting his status.
This appeal followed.
II.
Tetteh argues that (1) a pardoned offense isn‘t a “conviction” as defined by the Immigration and Nationality Act; and (2) a pardon waives all grounds for removal related to the pardoned offenses, not just those listed in the Act.3 But the plain language of the relevant statutes defeats Tetteh‘s arguments.
A.
When, as here, the BIA affirms an IJ‘s decision while adding its own reasoning, we review both decisions. Marynenka v. Holder, 592 F.3d 594, 600 (4th Cir. 2010). And we review the agency‘s legal determinations de novo. Id.
B.
Before we turn to Tetteh‘s argument that a pardoned offense isn‘t a “conviction” under the Act, we must first ensure that we have jurisdiction over this issue. “A court may review a final order of removal only if the alien has exhausted all administrative remedies to the alien as of right.” See
As the government observes, Tetteh never raised his argument on the definition of “conviction” to the IJ or the BIA. That would normally preclude our review, but Tetteh contends that the claim has been exhausted because the BIA addressed it. Indeed, several of our sister circuits have found exhaustion “whenever the agency has elected to address in sufficient detail the merits of a particular issue,” even if the agency raised it sua sponte. Mazariegos-Paiz v. Holder, 734 F.3d 57, 63 (1st Cir. 2013); see id. (collecting cases).
But the BIA did not do so here. The BIA “conclude[d] that even if [Tetteh‘s] pardon was full and unconditional, [he] would remain removable as charged” for his pardoned offenses “[f]or the reasons cited by the Immigration Judge and argued by the [government] on appeal.” A.R. 3. And although the IJ considered the impact of the First Offender Act on whether Tetteh‘s offenses “qualify as ‘convictions’ for immigration purposes,”4 A.R. 73, neither the IJ nor the government addressed the effect of Tetteh‘s pardon on the same. Because this new claim hasn‘t
C.
Next, we consider (and reject) Tetteh‘s contention that a pardon waives all grounds for removal.
As the text shows, Tetteh‘s pardon waives his aggravated felony conviction as a ground for removal, but not the other grounds.6 And “when the terms of a statute are clear and unambiguous, our inquiry ends, and we should stick to our duty of enforcing the terms of the statute as Congress has drafted it.” Sigmon Coal, Inc. v. Apfel, 226 F.3d 291, 305 (4th Cir. 2000).
Resisting this logic, Tetteh argues that his pardon should waive all grounds for removal because the statute would otherwise lead to a result that would “shock the general moral or common sense.” Appellant‘s Br. at 8 (quoting Sigmon Coal, 226 F.3d at 304). If waivers are limited to aggravated felonies, Tetteh says, a pardon could “absolve a foreign national of removability for illicit trafficking in controlled substances” but not “mere possession of a controlled substance violation.” Id. at 9. He also laments that limiting the pardon waiver to the enumerated removal grounds “de facto eliminates the pardon provision because there will always be duplicative grounds of removability outside of § 1227(a)(2)(A) to charge the foreign national.” Id.
But we may ignore the plain meaning of a statute only when the literal reading “produces an outcome . . . that can truly be characterized as absurd,” such that it can‘t be what Congress intended. Sigmon Coal, 226 F.3d at 304. “[S]uch instances are, and should be, exceptionally rare.” Id. While the examples Tetteh offers give us some pause, they‘re not so shocking as to warrant our ignoring the statutory text.7
The BIA subsequently interpreted the pardon waiver to apply only to the enumerated crimes. See Matter of Suh, 23 I. & N. Dec. 626, 628 (BIA 2003) (concluding that there‘s “no legally supportable basis for inferring that a waiver is available where the statute so clearly states which removal grounds may be waived.“). And Congress has since included failure to register as a sex offender as an additional ground for removal but hasn‘t specified that it may be waived by a pardon. See Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, § 401, 120 Stat. 587 (2006).
In short, each time Congress has considered the effect of a pardon on removability, it has declined to grant a blanket waiver. The BIA has honored that legislative edict, and we are bound to do the same. We hold that the plain language of
accordingly forecloses his removal for his aggravated felony conviction, but not for his controlled substance and firearm convictions.
* * *
For these reasons, we dismiss in part and deny in part Tetteh‘s petition for review.
PETITION DISMISSED IN PART; DENIED IN PART
Notes
[A] formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where—(i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien‘s liberty to be imposed.