Al-Sharif v. United States Citizenship & Immigration Services

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

__________________

No. 12-2767

_________________

NIZAR AL-SHARIF,

Appellant

v.

UNITED STATES CITIZENSHIP

AND IMMIGRATION SERVICES

_________________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 10-cv-01435)

District Judge: Honorable Claire C. Cecchi

__________________

Argued before Original Panel on June 13, 2013

Submitted Sua Sponte En Banc on August 15, 2013

Before: McKEE, Chief Judge, RENDELL,

AMBRO, FUENTES, SMITH, FISHER, JORDAN,

HARDIMAN, GREENAWAY, JR., VANASKIE, SCIRICA

and VAN ANTWERPEN, Circuit Judges.

(Filed: August 19, 2013)

Thomas E. Moseley [ARGUED]

Suite 2600

One Gateway Center

Newark, NJ 07102-0000

Attorneys for Plaintiff-Appellant

Bradley B. Banias

Timothy M. Belsan [ARGUED]

United States Department of Justice

Office of Immigration Litigation

Room 6417

P.O. Box 868

Ben Franklin Station

Washington, DC 20001

Michael Campion

Kristin L. Vassallo

Office of United States Attorney

970 Broad Street

Room 700

Newark, NJ 07102-0000

Attorneys for Defendant-Appellee

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OPINION OF THE COURT

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HARDIMAN, Circuit Judge.

2

Nizar Al-Sharif applied for United States citizenship,

but his application was denied because he had been convicted

of conspiracy to commit wire fraud, which the United States

Citizenship and Immigration Services (USCIS) determined to

be an aggravated felony. Al-Sharif contested the denial in the

District Court, which entered summary judgment in favor of

USCIS. In this appeal, Al-Sharif argues that he is entitled to

citizenship because, under our decision in Nugent v. Ashcroft,

367 F.3d 162 (3d Cir. 2004), his conviction was not for an

aggravated felony. After oral argument before a panel of this

Court, we elected sua sponte to hear the case en banc in order

to determine whether Nugent remains good law. For the

reasons discussed below, we hold that it does not, and will

affirm the judgment of the District Court.

I

Al-Sharif is a lawful permanent resident of the United

States. In 1992, he and others arranged to connect callers in

Israel to callers in countries with no direct phone service to

Israel, for a fee, by routing the calls through an apartment in

New Jersey. Al-Sharif rented the apartment and set up phone

service there using a false name and Social Security number.

Afterwards, he abandoned the apartment without leaving a

forwarding address or paying the phone bill.

As a result of this scheme, Al-Sharif pleaded guilty in

1993 to conspiracy to commit wire fraud in violation of 18

U.S.C. § 371, with a stipulation that his fraud caused a loss to

the victim of between $120,000 and $200,000. He was

sentenced to six months’ home confinement and five years’

probation, and was ordered to pay $128,838 in restitution to

the phone company.

3

In 2004, Al-Sharif applied to become a naturalized

citizen of the United States. On his application, he truthfully

disclosed his conviction for conspiracy to commit wire fraud.1

As a result, his application was denied by USCIS. In the

view of USCIS, Al-Sharif’s conviction was for an

“aggravated felony” under 8 U.S.C. § 1101(a)(43)(M)(i),

which precluded him, under 8 U.S.C. § 1101(f)(8), from

demonstrating “good moral character,” as required for

naturalization under 8 U.S.C. § 1427(a)(3). Al-Sharif sought

review in the District Court, arguing that his conviction was

not an “aggravated felony” for naturalization purposes. The

District Court disagreed, and granted summary judgment to

USCIS. Al-Sharif filed this timely appeal.

II2

A

Section 1101(a)(43) of Title 8 lists several categories

of offenses that are considered “aggravated felon[ies]” for

immigration purposes. In particular, § 1101(a)(43)(G) makes

any “theft offense (including receipt of stolen property) or

burglary offense for which the term of imprisonment [is] at

1

In 2006, the Government charged Al-Sharif with

deportability as a result of his conviction; however, an

immigration judge granted Al-Sharif a waiver of deportation.

2

The District Court had jurisdiction under 8 U.S.C. §

1421(c). We have jurisdiction under 28 U.S.C. § 1291. We

review the District Court’s summary judgment de novo.

Gonzalez v. Sec’y of Dep’t of Homeland Sec., 678 F.3d 254,

257 (3d Cir. 2012).

4

least one year” an aggravated felony, and § 1101(a)(43)(M)(i)

makes any “offense” that “involves fraud or deceit in which

the loss to the victim or victims exceeds $10,000” an

aggravated felony.3 Although some of these categories of

aggravated felonies can overlap, each category is separate

from the others, and a particular conviction may constitute an

aggravated felony under multiple sections of § 1101(a)(43).

See Bobb v. Att’y Gen., 458 F.3d 213, 217–18 (3d Cir. 2006)

3

We note that Al-Sharif was convicted of conspiracy,

which is an aggravated felony under 8 U.S.C.

§ 1101(a)(43)(U). However, because § 1101(a)(43)(U) only

applies to “an attempt or conspiracy to commit an offense

described in this paragraph,” we must review the underlying

substantive offense to determine whether it is “an offense

described in this paragraph.” See In re S-I-K-, 24 I. & N.

Dec. 324, 326 (BIA 2007) (requiring the government to prove

that “at least one of the unlawful acts that was the object of

the conspiracy was an offense” described in another

paragraph of § 1101(a)(43)); see also Nijhawan v. Att’y Gen.,

523 F.3d 387, 399 (3d Cir. 2008) (looking to the underlying

object of the conspiracy to determine if the alien committed

an aggravated felony). Because the language of the statute

and In re S-I-K- require an examination of the elements of the

substantive offense when analyzing whether a conspiracy is

an aggravated felony, USCIS correctly based its denial of Al-

Sharif’s naturalization application on § 1101(a)(43)(M)(i),

which deals with fraud. This approach is in accord with that

of many of our sister circuits. See, e.g., Conteh v. Gonzales,

461 F.3d 45, 57 (1st Cir. 2006); Kamagate v. Ashcroft, 385

F.3d 144, 152–53 (2d Cir. 2004).

5

(explaining that forgery can be an aggravated felony under

both § 1101(a)(43)(M)(i) and § 1101(a)(43)(R)).

In his plea agreement, Al-Sharif stipulated that his

conspiracy to commit wire fraud caused a loss of more than

$10,000. Nevertheless, he argues that Nugent dictates that he

is not an aggravated felon because his offense was a hybrid

theft/fraud offense and he was not sentenced to at least one

year in prison.

In Nugent, an alien was convicted in Pennsylvania

state court of theft by deception in violation of 18 Pa. Cons.

Stat. § 3922 for passing a bad check worth $4,831, and was

sentenced to a period of six to twenty-three months’

imprisonment. 367 F.3d at 163, 169. We found that the

alien’s offense was both a “theft offense” as defined in

§ 1101(a)(43)(G), id. at 174, and an offense “involving fraud

or deceit” as defined in § 1101(a)(43)(M)(i), id. at 177. As a

result, we held that “to qualify as an aggravated felony under

the INA [the alien’s offense] must meet the requirements of

Section 1101(a)(43)(M)(i), loss to the victim of more than

$10,000, in addition to Section 1101(a)(43)(G), term of

imprisonment of at least one year.” Id. at 174–75 (emphasis

added). This theory—that an alien convicted of an offense

that is both a “theft offense” and an offense “involv[ing]

fraud or deceit” is an aggravated felon only if he satisfies both

the loss threshold of § 1101(a)(43)(M)(i) and the

imprisonment threshold of § 1101(a)(43)(G)—has since

become known as the “hybrid offense” theory. See Bobb, 458

F.3d at 215.

In the nine years since this Court adopted the hybrid

offense theory in Nugent, we have never found another hybrid

offense. See Matter of Garcia-Madruga, 24 I. & N. Dec. 436,

6

439 n.4 (BIA 2008).4 Rather, in Bobb, we declined to find

that an offense that was both “relat[ed] to . . . forgery,” as

defined in § 1101(a)(43)(R), and “involve[d] fraud or deceit,”

as defined in § 1101(a)(43)(M)(i), was a hybrid offense. 458

F.3d at 226. In doing so, we explicitly limited Nugent to

“classificational schemes in which one classification is

entirely a subset of another.” Id. The hybrid offense theory,

Bobb explained, could not apply to “separate universal

classifications which intersect, but which have separate and

independent elements.” Id.

While our holding in Bobb reaffirmed the basic

premise of the hybrid offense theory, it raised a serious

question about the theory’s scope. When read literally,

Bobb’s statement that the hybrid offense theory is “restricted

to classificational schemes in which one classification is

entirely a subset of another” seems to suggest that the hybrid

offense theory would not even apply to § 1101(a)(43)(G) and

§ 1101(a)(43)(M)(i) because the classification “theft offense”

is not entirely a subset of “an offense . . . involv[ing] fraud or

deceit.” This conclusion, and the rule that “no subsequent

panel overrules the holding in a precedential opinion of a

previous panel,” Covell v. Bell Sports, Inc., 651 F.3d 357,

4

Other than Bobb, the only cases from our Circuit that

discuss Nugent’s hybrid offense theory are a handful of not

precedential opinions. See Familia v. Att’y Gen., 507 F.

App’x 234, 238–39 (3d Cir. 2012); Minaya v. Att’y Gen., 453

F. App’x 168, 173–74 (3d Cir. 2011); Hatkewicz v. Att’y

Gen., 350 F. App’x 667, 671 (3d Cir. 2009); Mirat v. Att’y

Gen., 184 F. App’x 153, 155–56 (3d Cir. 2006). Each refused

to extend the hybrid offense theory to the relevant statute of

conviction.

7

363–64 (3d Cir. 2011) (quoting 3d Cir. I.O.P. 9.1), raised the

question of what, exactly, remained of Nugent following

Bobb.

Following Bobb, our Court has struggled with the

applicability of the hybrid offense theory to fraud conspiracy

cases, such as this one. Two panels of our Court issued not

precedential opinions finding that fraud conspiracies were not

hybrid offenses by analyzing the elements of the conspiracies,

rather than the substantive fraud offenses. See Familia v.

Att’y Gen., 507 F. App’x 234, 238–39 (3d Cir. 2012); Minaya

v. Att’y Gen., 453 F. App’x 168, 173–74 (3d Cir. 2011).

In addition, no other court of appeals has adopted

Nugent’s hybrid offense theory. Only a handful of published

opinions from our sister Circuits have dealt with the hybrid

offense theory. See, e.g., Magasouba v. Mukasey, 543 F.3d

13, 15 (1st Cir. 2008); Martinez v. Mukasey, 519 F.3d 532,

539 (5th Cir. 2008); Soliman v. Gonzales, 419 F.3d 276, 280

(4th Cir. 2005). These Circuits have all avoided applying the

theory by disposing of the cases on other grounds. See

Magasouba, 543 F.3d at 15 (“Nugent has been restricted to

classificational schemes in which one classification is entirely

a subset of another. As previously mentioned, that is not the

case here.” (internal quotation marks and citation omitted));

Martinez, 519 F.3d at 539 (“Our court has not decided

whether an offense may properly be characterized as a hybrid

fraud/theft offense, which must meet the requirements of both

subsections (G) and (M)(i).”); Soliman, 419 F.3d at 280 (4th

Cir. 2005) (“Because we are able to resolve Soliman’s

petition for review by finding that Soliman’s conviction was

not for a theft offense under Subsection (G), we need not

reach and address her alternative contention with respect to

imputing Subsection (M)(i)’s minimum threshold requirement

8

to Subsection (G).”). For its part, the Board of Immigration

Appeals (BIA) has declined to follow the hybrid offense

theory. See Garcia-Madruga, 24 I. & N. Dec. at 440 n.5

(“That [theft and fraud may be coextensive] does not mean,

however, that we subscribe to the Nugent court’s holding that

in such an instance the elements of both aggravated felony

branches must be demonstrated.” (emphasis in original)).

The Supreme Court too has recently issued an opinion

casting further doubt upon the hybrid offense theory. In

Kawashima v. Holder, 132 S. Ct. 1166 (2012), the Court

stated that: “The language of [§ 1101(a)(43)(M)(i)] is clear.

Anyone who is convicted of an offense that ‘involves fraud or

deceit in which the loss to the victim or victims exceeds

$10,000’ has committed an aggravated felony.” Id. at 1173

(emphasis added). Read literally, this statement conflicts

with Nugent, as the hybrid offense theory leaves open the

possibility that someone convicted of an offense “involv[ing]

fraud or deceit in which the loss to the victim or victims

exceeds $10,000” has not committed an aggravated felony.

This is exactly what Al-Sharif argues here: that, although his

offense falls within the definition of § 1101(a)(43)(M)(i), it is

not an aggravated felony because it is also a “theft offense”

that did not result in at least one year of imprisonment.

Mindful of this history, we now overrule Nugent’s

hybrid offense theory because it has been rejected by other

courts and conflicts with the plain language of the statute.

B

We do not overturn our precedents lightly.

“[P]recedent is to be respected unless the most convincing of

reasons demonstrates that adherence to it puts us on a course

9

that is sure error.” Citizens United v. FEC, 558 U.S. 310, 362

(2010). However, stare decisis “is not an inexorable

command.” Payne v. Tennessee, 501 U.S. 808, 828 (1991).

“[W]hen governing decisions are unworkable,” they may be

overturned. Id. at 827. This is particularly true “if the

precedent is particularly recent and has not generated any

serious reliance interests,” Morrow v. Balaski, --- F.3d ----,

2013 WL 2466892, at *16 (3d Cir. Jun. 14, 2013) (en banc)

(Smith, J., concurring), or if the precedent has “sustained

serious erosion from our recent decisions,” Lawrence v.

Texas, 539 U.S. 558, 576 (2003).

Here, the hybrid offense theory “has not generated any

serious reliance interests.” In the nine years since we have

adopted it, it has been applied by no Court of Appeals,

including our own. Rather, it has “sustained serious erosion

from . . . recent decisions.” We have greatly limited its

applicability, see Bobb, 458 F.3d at 226, the BIA has declined

to follow it, see Garcia-Madruga, 24 I. & N. Dec. at 440 n.5,

and the Supreme Court’s dicta in Kawashima has cast

substantial doubt upon it. See IFC Interconsult, AG v.

Safeguard Int’l Partners, LLC, 438 F.3d 298, 311 (3d Cir.

2006) (“[W]e pay due homage to the Supreme Court’s well-

considered dicta as [lighthouses] that guide our rulings.”).

On its merits, the hybrid offense theory cannot easily

be reconciled with the text of the statute. “[W]hen [a]

statute’s language is plain, the sole function of the courts—at

least where the disposition required by the text is not

absurd—is to enforce it according to its terms.” Sebelius v.

Cloer, 133 S. Ct. 1886, 1896 (2013). The language of

§ 1101(a)(43) is plain. Each of its subparagraphs lays out a

separate aggravated felony and there is no indication in the

statute that an offense must satisfy multiple subparagraphs in

10

order to be an aggravated felony. Thus, an offense that

“involves fraud or deceit in which the loss to the victim

exceeds $10,000” is an aggravated felony under

§ 1101(a)(43)(M)(i) regardless of whether it also meets the

requirements of some other subparagraph. As the Supreme

Court recently emphasized in Kawashima: “The language of

[§ 1101(a)(43)(M)(i)] is clear. Anyone who is convicted of an

offense that ‘involves fraud or deceit in which the loss to the

victim or victims exceeds $10,000’ has committed an

aggravated felony . . . .” 132 S. Ct. at 1173 (emphasis added).

The hybrid offense theory conflicts with the Supreme Court’s

textual interpretation insofar as it implies that at least some

fraud offenses with losses exceeding $10,000—namely, those

that are also theft offenses and for which the offender was not

sentenced to at least a year of imprisonment—are not

aggravated felonies.5 Therefore, we now overrule that theory.

Having held that Nugent is no longer the law of this

Circuit, we hold that Al-Sharif was properly deemed an

aggravated felon under § 1101(a)(43)(M)(i). Wire fraud is

clearly an offense “involv[ing] fraud or deceit,” see Doe v.

Att’y Gen., 659 F.3d 266, 274–75 (3d Cir. 2011), and Al-

Sharif’s plea agreement stipulated that he caused a loss of

between $120,000 and $200,000—well in excess of the

$10,000 threshold for a fraud to be considered an aggravated

felony. Thus, Al-Sharif’s offense was an aggravated felony

5

We also note that, under the hybrid offense theory, a

defendant who is convicted of an offense that is both theft and

fraud receives more favorable treatment than a defendant who

is convicted of either theft or fraud alone. This incongruity

reinforces further our holding that the hybrid offense theory is

inconsistent with the statute.

11

and the District Court properly entered summary judgment in

favor of USCIS.

III

Al-Sharif raises two additional arguments, but neither

is persuasive. First, he argues that the 1996 aggravated

felony definitions, which reduced the loss threshold at which

fraud becomes an aggravated felony, do not apply to him.

We rejected a nearly identical argument in Biskupski v.

Attorney General, 503 F.3d 274 (3d Cir. 2007), where we

held that the 1996 aggravated felony definitions applied

retroactively to crimes committed before 1996, so long as the

“orders or decisions of the [immigration judge] or BIA which

apply the ‘aggravated felony’ definitions” were issued after

the 1996 amendments. Id. at 283. Here, USCIS denied Al-

Sharif’s naturalization application in 2009, long after the

1996 amendments took effect. Although USCIS and not an

immigration judge or the BIA was making that determination,

our reasoning in Biskupski still applies because, until USCIS

issued a final decision, Al-Sharif “remain[ed] the subject of

administrative adjudication and ha[d] not established any

right to the benefit he [wa]s seeking to obtain by his

application.” Id. (internal quotation mark and alteration

omitted).

Second, Al-Sharif argues that the rule of lenity, which

requires courts to “constru[e] any lingering ambiguities in

deportation statutes in favor of the alien,” see INS v. Cardoza-

Fonseca, 480 U.S. 421, 449 (1987), applies to him. However,

8 U.S.C. § 1101(a)(43) is unambiguous. Section

1101(a)(43)(M)(i) is clear that an offense that “involves fraud

or deceit in which the loss to the victim or victims exceeds

$10,000” is an aggravated felony. Therefore, Al-Sharif is not

12

entitled to relief under the rule of lenity. See Kawashima, 132

S. Ct. at 1175–76 (declining to apply rule of lenity because

§ 1101(a)(43)(M) was “clear enough”); Muscarello v. United

States, 524 U.S. 125, 138–39 (1998) (rule of lenity only

applies if there is a “grievous ambiguity or uncertainty in the

statute”).

IV

For the foregoing reasons, we hold that the hybrid

offense theory of Nugent no longer remains good law and the

District Court did not err when it held that Al-Sharif was not

entitled to citizenship by virtue of his 1993 conviction for

conspiracy to commit wire fraud. Accordingly, we will

affirm the judgment of the District Court.

13