Zulfia FAYZULLINA, Petitioner, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.
No. 13-4335.
United States Court of Appeals, Sixth Circuit.
Jan. 6, 2015.
777 F.3d 607
But here the term we interpret—“liable party“—embraces only one of these meanings, namely “liable.” And as shown above State Farm fits within that meaning in its capacity as Coman‘s insurer. The subrogation provision in its contract with the Pauls therefore applies.
Finally, the Pauls argue that we must read the policy as they do because this case comes to us on a motion to dismiss. But our interpretation of the policy is a legal question, see Lager, 896 N.E.2d at 669; and in answering it we owe no deference to the Paul‘s interpretation in their complaint. Berrington, 696 F.3d at 607.
The Pauls otherwise admit in their reply brief that their remaining arguments are not grounds to reverse the district court‘s decision. So we need not address them.
The district court‘s judgment is affirmed.
Jesse Lloyd Busen, Office of Immigration Litigation, U.S. Department of Justice Office of Immigration Litigation, Washington, DC, for Respondent.
BEFORE: GUY, ROGERS, and DONALD, Circuit Judges.
ROGERS, Circuit Judge.
Zulfia Fayzullina, a native and citizen of Russia, challenges the order of her removal for having provided a materially false writing regarding her marital and residential status and for having been convicted of providing a materially false document to the government, a crime of moral turpitude. Sufficient evidence supports the conclusion that she made the false writing, that it was material, and that she committed a crime of moral turpitude when she submitted it to the government. For that reason, and because neither of the provisions for waiver of removal upon which Fayzullina relies applies in this case, her petition for review lacks any tenable basis.
Then, on August 5, 2009, a federal grand jury indicted Fayzullina and Grey. The indictment included three counts against Fayzullina. Count 1 charged that Grey and Fayzullina had married “for the purpose of evading a provision of the immigration laws of the United States.” Count 2 charged that Fayzullina “did knowingly and willfully make and use a material false writing and document by presenting to the CIS an I-485, Application to Register Permanent Residence or Adjust Status, knowing the same to be false; that is false and misleading information regarding his [sic] marital status including his [sic] residence information.” Count 4 alleged that Fayzullina and Grey made material false statements so that a third party could receive compensation and so that another third party could evade the immigrations laws.
Fayzullina pled guilty to Count 2 of the indictment in exchange for dismissal of Counts 1 and 4. The federal district court entered judgment against Fayzullina on March 24, 2010, finding her guilty of violating
[W]hoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully . . . makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry . . . shall be fined under this title [or] imprisoned not more than 5 years. . . .
On September 30, 2010, the Department of Homeland Security (DHS) initiated removal proceedings against Fayzullina by serving her with a Notice to Appear (NTA). The original NTA included only four factual allegations, but DHS subsequently amended it by striking the third and fourth allegations and replacing them with four new allegations, for a total of six allegations. Fayzullina admitted the first four allegations in the amended NTA, but denied Allegations 5 and 6. Allegation 5 charged that Fayzullina:
procured [her] admission, visa, adjustment, or other documentation or benefit by fraud or by willfully misrepresenting a material fact, to wit: [she] knowingly provided false representations regarding [her] marriage to Matthew Grey in [her] I-485 adjustment of status application and [she] knowingly provided false statements regarding [her] marriage to Matthew Grey at [her] adjustment of status interview in order to procure [her] admission, visa, adjustment, or other documentation or benefit by fraud or by willfully misrepresenting a material fact.
A.R. 168. Allegation 6 charged that:
On or about March 22, 2010, after pleading guilty, [Fayzullina was] convicted in the U.S. District Court for the Southern District of Ohio . . . of Making a False Statement and Representation in violation of
18 U.S.C. § 1001(a)(2) [sic] and [she was] sentenced to probation for a period of two years for this offense (although the statutory maximum sentenceof five years imprisonment could have been imposed).
While Fayzullina acknowledged having pled guilty to lying about her marriage in her I-485, she denied Allegation 5 because, she said, the government had not adequately established that her misrepresentation was material. Fayzullina also denied Allegation 6, on the ground that she had never been convicted of violating
The IJ adopted Allegations 5 and 6. With respect to Allegation 5, he concluded that Fayzullina‘s guilty plea was sufficient to sustain the factual allegation with respect to her I-485 statements, and also that a Statement of Facts submitted to the district court and prepared and signed by Fayzullina admitted that she made false statements at the adjustment of status interview. That admission, the IJ found, established that Fayzullina had knowingly lied to the CIS officer at her adjustment of status interview.
Regarding Allegation 6, the IJ acknowledged that the charging document listed the wrong statute of conviction—
Next, the IJ addressed the government‘s two stated bases for removability:
The IJ also concluded that Fayzullina was removable under
Fayzullina moved the IJ to reconsider his finding that she was removable under
After the IJ denied her motion for reconsideration on removal, Fayzullina applied for waiver of removal under
is the spouse, parent, son, or daughter of a citizen of the United States or of an alien lawfully admitted to the United States for permanent residence; and . . . was in possession of an immigrant visa or equivalent document and was otherwise admissible to the United States at the time of such admission except for those grounds of inadmissibility specified under paragraphs (5)(A) and (7)(A) of section 1182(a) of this title which were a direct result of that fraud or misrepresentation.
is the spouse, parent, son, or daughter of a citizen of the United States . . . [and] it is established to the satisfaction of the Attorney General that the alien‘s denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien. . . . No waiver shall be granted under this subsection in the case of an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence if . . . the alien has not lawfully resided continuously in the United States for a period of not less than 7 years immediately preceding the date of initiation of proceedings to remove the alien from the United States.
Id. at
The IJ determined that Fayzullina did not meet either section‘s criteria for relief. First, he found Fayzullina was not eligible for waiver under
The Respondent was convicted of a crime involving moral turpitude. The Respondent‘s inadmissibility under INA § 212(a)(2)(A)(i)(I) is the direct result of that conviction. The underlying fraud is an indirect cause, and is thus not covered by INA § 237(a)(1)(H).
A.R. 135. The IJ concluded that, because Fayzullina‘s removability was not the direct result of fraud or misrepresentation, she was not eligible for waiver of removal under
The IJ next found that Fayzullina did not meet the requirements for eligibility under
The BIA also upheld each of the IJ‘s findings pretermitting waiver. First, the BIA held that
None of Fayzullina‘s arguments warrants granting her petition for review.
First, notwithstanding Fayzullina‘s argument, a violation of
The BIA has “long held that crimes involving fraud or making false statements have been found to involve moral turpitude.” Matter of Pinzon, 26 I. & N. Dec. 189, 193 (BIA 2013); see also Matter of Correa-Garces, 20 I. & N. Dec. 451, 454 (BIA 1992). Its construction of ambiguous statutory provisions—like the term “crime involving moral turpitude“—is entitled to Chevron deference. Ruiz-Lopez v. Holder, 682 F.3d 513, 516 (6th Cir.2012). Consequently, this court “must uphold the BIA‘s construction [of
This court‘s precedents, too, stand for the proposition that crimes of deliberate dishonesty involving material facts categorically involve moral turpitude. For example, in Kellermann v. Holder, we held that pleading guilty to having “unlawfully, willfully, and knowingly conspire[d] . . . to
These cases make clear that crimes of making deliberately dishonest statements involving material facts are inherently crimes involving moral turpitude. Those elements—materiality and knowledge—are manifestly present in Fayzullina‘s case. Indeed, she pled guilty to “mak[ing] or us[ing] any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry.”
It makes no difference that the aforementioned cases construed statutory language other than the current version of
Fayzullina also argues that the IJ and the BIA failed to apply the correct framework in analyzing her claims, but her argument is without merit in the circumstances of this case. We have recently explained that, when a court considers whether conviction under a criminal stat
In determining whether a conviction under a federal statute fits the BIA‘s definition of a crime involving moral turpitude, we apply what are known as the categorical and modified-categorical approaches. First, the categorical approach is applied, in which we consider whether the full range of conduct encompassed by the statute constitutes a crime of moral turpitude. We thus look to the elements of the offense, rather than than the underlying facts of the specific case. If the full range of conduct encompassed by the statute constitutes a crime of moral turpitude, then the conviction is for an offense qualifying as a crime involving moral turpitude.
Yeremin v. Holder, 738 F.3d 708, 715 (6th Cir.2013) (citations and internal quotation marks omitted). What the BIA did in this case is fully consistent with this first step. The BIA concluded accurately that “both the Board and the [Sixth Circuit] . . . have held that an offense under
A person who pleads guilty under
The IJ, moreover, did not violate Fayzullina‘s due process rights by sua sponte amending Allegation 6 of the NTA to reflect that she had pled guilty to violating
Fayzullina suggests two ways the IJ‘s sua sponte amendment may have prejudiced her, but neither is persuasive. First, she says that she lacked “notice of the correct subsection” underlying the charge of removability. That claim is undermined by the fact that, in her pleadings before the IJ, Fayzullina repeatedly addressed argument to the correct paragraph of the statute, notwithstanding the typographical error. In her motion for reconsideration,
Finally, the BIA properly concluded that Fayzullina is ineligible for waiver under either of the two provisions upon which she relies. First, Fayzullina argues that she is eligible for waiver of removal under
Fayzullina disputes this reading of the statute, contending that it fails to “address the language that
Second, Fayzullina argues that she is eligible for a waiver under
Relying on Matter of Tanori, 15 I. & N. Dec. 566 (BIA 1976), and Matter of San
The petition for review is denied.