Etumai Mtoched v. Loretta E. Lynch

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ETUMAI FELIX MTOCHED, No. 13-70295

Petitioner,

Agency No.

v. A087-957-052

LORETTA E. LYNCH, Attorney

General, OPINION

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

October 9, 2014—Honolulu, Hawaii

Filed May 22, 2015

Before: A. Wallace Tashima, Johnnie B. Rawlinson,

and Richard R. Clifton, Circuit Judges.

Opinion by Judge Clifton

2 MTOCHED V. LYNCH

SUMMARY*

Immigration

The panel denied Etumai Mtoched’s petition for review

from the Board of Immigration Appeals’ order removing him

based on his conviction for assault with a dangerous weapon

under Commonwealth of the Northern Mariana Islands law,

6 N. Mar. I. Code § 1204(a).

The panel held that United States immigration laws could

properly be applied to Mtoched within the CNMI, even

though he entered the territory, committed the crime, and was

convicted before U.S. immigration laws were extended to the

CNMI pursuant to 48 U.S.C. § 1806. The panel held that

such application was not impermissibly retroactive, and that

it did not infringe upon CNMI’s right to self-government in

violation of the terms of the Covenant to Establish a

Commonwealth of the Northern Mariana Islands in Political

Union with the United States.

The panel also held that Mtoched’s conviction constituted

a crime involving moral turpitude, making him removable

under the Immigration and Nationality Act. The panel

concluded that § 1204(a) is divisible into three subparts all

involving bodily injury to another person with a dangerous

weapon. Applying the modified categorical approach, the

panel held that because Mtoched's conviction entailed

purposeful conduct, more than simply reckless conduct, it

demonstrated evil intent and constituted a CIMT.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

MTOCHED V. LYNCH 3

The panel also held that Mtoched was statutorily

ineligible for an INA § 212(h) waiver of inadmissibility,

because under 8 C.F.R. § 1245.1(f) a waiver for an alien

within the United States is available only in connection with

an application for adjustment of status, even if he is not

eligible to apply for adjustment.

COUNSEL

Joseph E. Horey, O’Conner, Berman, Dotts & Banes, Saipan,

MP, for Petitioner.

Anthony W. Norwood (argued) and Jesse M. Bless, United

States Department of Justice, Washington, D.C., for

Respondent.

OPINION

CLIFTON, Circuit Judge:

Etumai Mtoched, a citizen of Palau and a resident of the

Commonwealth of the Northern Mariana Islands (“CNMI”),

petitions for review of an order of removal from the United

States. That order was entered based on Mtoched’s

conviction for assault with a dangerous weapon under CNMI

law, 6 N. Mar. I. Code § 1204(a).

One set of issues raised by Mtoched’s petition arises from

CNMI’s unique posture in relationship with United States

immigration law. Prior to 2009, CNMI could be described as

being outside the immigration boundary of the United States.

Accordingly, United States immigration laws, including the

4 MTOCHED V. LYNCH

Immigration and Nationality Act (“INA”), did not apply to

CNMI. Instead, the CNMI government was itself responsible

for enacting and administering laws governing immigration

into and deportation from CNMI. That changed when most

of the United States immigration laws, including the INA,

were extended to CNMI via legislation codified as 48 U.S.C.

§ 1806, contained within the Consolidated Natural Resources

Act of 2008 (“CRNA”), Pub. L. 110-229, 122 Stat. 754,

effective on November 28, 2009. Shortly thereafter, the

Department of Homeland Security initiated proceedings

against Mtoched that culminated in the order of removal that

is the subject of this petition. Mtoched challenges that order

as a violation of CNMI’s right to self-government and as an

impermissible retroactive application of law. We reject those

challenges and conclude that United States immigration laws

may properly be applied and enforced within CNMI to

Mtoched even though he entered that territory, committed the

crime, and suffered the conviction upon which the removal

order is based prior to the extension of United States

immigration laws to the Commonwealth.

Mtoched also challenges the determination that his

conviction was for a crime involving moral turpitude

(“CIMT”), making him removable under the INA. We

disagree and conclude that it was.

In addition, we reject his contention that he is eligible for

a waiver of inadmissibility under§ 212(h) of the INA,

8 U.S.C. § 1182(h). The Board of Immigration Appeals

(“BIA”) held that he was ineligible because, under the

governing regulation, an application for such a waiver can

only be made by someone already within the United States

together with an application for adjustment of status, and

Mtoched was not eligible to submit an application for

MTOCHED V. LYNCH 5

adjustment of status. We accept the BIA’s interpretation. As

a result, we deny Mtoched’s petition for review.

I. Background

The Northern Mariana Islands are located in the western

Pacific Ocean, north of Guam. Formerly Spanish colonies

before the Spanish American War, they were governed

thereafter by Germany, then Japan. Following World War II,

the islands were administered by the United States as part of

the Trust Territory of the Pacific Islands pursuant to a

Trusteeship Agreement with the United Nations Security

Council. Though other portions of the former trust territories

decided to become independent nations, these islands elected

to enter into a closer and more lasting relationship with the

United States. Years of negotiation culminated in 1975 with

the signing of the Covenant to Establish a Commonwealth of

the Northern Mariana Islands in Political Union with the

United States (hereinafter “Covenant”), Pub. L. 94-241, 90

Stat. 263 (1976). After a period of transition, in 1986 the

trusteeship terminated, and CNMI was fully launched. See

generally United States ex. rel. Richards v. Leon Guerrero,

4 F.3d 749, 751–52 (9th Cir. 1993).

Etumai Mtoched is a citizen of Palau who has lived for

many years in CNMI. Palau was previously part of the Trust

Territories and is now an independent nation that has entered

into a Compact of Free Association with the United States.

Mtoched says that he moved to Saipan, the largest island in

the CNMI, in 1991 and has remained there ever since.

Because Mtoched moved to Saipan before United States

immigration laws were extended over CNMI, he was

admitted by CNMI immigration officials applying CNMI law.

6 MTOCHED V. LYNCH

Mtoched was convicted in 1994 for assault with a

dangerous weapon under 6 N. Mar. I. Code § 1204(a). He

was specifically charged with having “purposely stabbed [the

victim] under his arm pit with a knife, causing bodily injury”

to the victim. Mtoched pled no contest. The court accepted

the plea and found him guilty. He was sentenced to five

years in jail, but the jail time was suspended subject to

community service and the payment of restitution.

A few months after the effective date for the extension of

United States immigration laws over CNMI, the federal

government initiated removal proceedings against Mtoched.

The Notice to Appear cited his conviction for assault with a

dangerous weapon as a crime of moral turpitude, making him

removable under 8 U.S.C. § 1182(a)(2)(A)(i)(I).

Mtoched moved to terminate the removal proceedings.

The immigration judge (“IJ”) denied the motion to terminate

the removal proceeding in a written opinion. She determined

that Mtoched’s conviction was for a CIMT, applying the

modified categorical approach. The IJ also rejected the

argument that application of the INA would have an unlawful

retroactive effect. Mtoched then notified the IJ of his

application for a § 212(h) waiver, which could permit him to

avoid removal despite his conviction. The IJ determined that

Mtoched was ineligible for such a waiver on the grounds that

an application for that kind of waiver by an alien within the

United States must be submitted in conjunction with an

application for an adjustment of status, which Mtoched had

not submitted and was not eligible to submit. The IJ

ultimately entered an order of removal, directing that he be

removed to Palau if he failed to voluntarily depart.

MTOCHED V. LYNCH 7

Mtoched appealed the order to the BIA. The BIA upheld

the IJ’s determination that Mtoched had been convicted of a

CIMT. The BIA also agreed that the application of United

States immigration laws to Mtoched had no impermissible

retroactive effect, noting that Mtoched had been deportable

under the previously applicable CNMI immigration laws as

well. The BIA declined to consider Mtoched’s argument that

the extension of the INA to CNMI was impermissible as a

violation of the Commonwealth’s right to self-government

under the Covenant, concluding that it was beyond the

Board’s jurisdiction. The BIA also upheld the IJ’s denial of

a § 212(h) waiver, agreeing with the IJ that such a waiver

may be requested by an alien within the United States only

with an application for adjustment of status.

Mtoched filed a timely petition for review.

II. Extension of the INA to CNMI

Mtoched presents two separate arguments challenging the

application of the INA to remove him from the United States.

One is that the application violates the terms of the Covenant

and infringes upon CNMI’s right to self-government. The

other is that it represents an unlawfully retroactive application

of law years after his entry into CNMI in 1991 and his

conviction for a crime in 1994. We are not persuaded by

either argument.

1. The Alleged Violation of the Covenant

Mtoched argues that he cannot be removed because the

extension of the INA to CNMI violated the terms of the

Covenant and thus cannot have the force of law. Essentially

similar arguments were made by the CNMI government itself

8 MTOCHED V. LYNCH

when it sought to enjoin application and enforcement of

United States immigration laws to the Commonwealth after

Congress adopted the legislation extending those laws to

CNMI. The United States District Court for the District of

Columbia rejected that effort in Commonwealth of the

Northern Mariana Islands v. United States, 670 F. Supp. 2d

65 (D.D.C. 2009), holding that the extension was lawful in a

decision that substantially relied upon and quoted from our

court’s decision in Richards. Id. at 80–91. We agree with

that decision and adopt its reasoning. “Congress was

authorized to enact the challenged provisions of the CNRA

by the plain and unambiguous terms of Section 503 of the

Covenant.” Id. at 91.

2. Retroactivity

Mtoched argues that the extension of the INA to CNMI

and the subsequent application of the INA to him, years after

his crime and conviction, has an impermissible retroactive

effect.

There is a presumption in American law against

retroactive legislation. Vartelas v. Holder, 132 S. Ct. 1479,

1486 (2012). In Landgraf v. USI Film Products, 511 U.S.

244 (1994), the Supreme Court established a two-step test to

determine whether a statute has an impermissible retroactive

effect. The first question is “whether Congress has expressly

prescribed the statute's proper reach.” Id. at 280. If so, then

the analysis ends and the statute should be applied as

Congress determined. Id. If there is no express command in

the statute, “the court must determine whether the new statute

would have retroactive effect, i.e., whether it would impair

rights a party possessed when he acted, increase a party’s

liability for past conduct, or impose new duties with respect

MTOCHED V. LYNCH 9

to transactions already completed.” Id. If so, the

presumption against retroactive application should apply. Id.

The BIA concluded that the statute, 48 U.S.C. § 1806, did

not express a clear intent to make the legislation retroactive.

The government acknowledges the same in its arguments to

us. As a result, we must consider the second Landgraf

question. After doing so, we conclude that application of the

INA to Mtoched is proper.

Mtoched was already subject to possible deportation

under the prior CNMI law because he was convicted of a

felony, a deportable offense under that law. See 3 N. Mar. I.

Code § 4340(d) (repealed) and 6 N. Mar. I. Code § 102(i).

Mtoched admits that to be true. On that level, therefore, the

application of the INA does not constitute a change. Mtoched

was deportable before, under the prior CNMI immigration

laws, and he remains deportable under the INA.

Mtoched argues, however, that deportation under prior

CNMI law was subject to the discretion of the CNMI

Attorney General. Under the CNMI law that previously

applied, the CNMI Attorney General had “ultimate discretion

as to when and whether to bring prosecutions and actions for

deportations pursuant to [the former CNMI immigration

laws].” 3 N. Mar. I. Code § 4312(d)(4) (repealed). The

CNMI Attorney General did not bring such proceedings

against Mtoched.

Mtoched further argues that there is substantially less

discretion available under the INA than was assigned to the

CNMI Attorney General under the prior law, at least for

someone in Mtoched’s situation, an alien who is removable

or excludable on the grounds of having committed a crime.

10 MTOCHED V. LYNCH

He points, for example, to an INA section limiting the

exercise of discretion by the United States Attorney General

to waive an alien’s criminal conduct. See 8 U.S.C. § 1182(h).

We are not persuaded by his argument.

For one thing, Mtoched has not established that the CNMI

Attorney General had actually exercised discretion in his

favor at any time while CNMI law applied, or that discretion

would have been exercised if the matter had been raised. All

that he has established is that CNMI deportation proceedings

had not been commenced against him. The failure to initiate

deportation proceedings is not the same as an actual exercise

of discretion. Mtoched has not demonstrated that he had a

right to discretionary relief or even a substantial prospect of

obtaining relief of any formal kind.

The presumption against the retroactive application of law

is triggered when such application would “tak[e] away or

impai[r] vested rights acquired under existing laws, or

creat[e] a new obligation, impos[e] a new duty, or attac[h] a

new disability, in respect to transactions or considerations

already past.” Vartelas, 132 S. Ct. at 1486–87 (quoting

Justice Story in Soc’y for Propagation of Gospel v. Wheeler,

22 F.Cas. 756, 767 (No. 13,156) (CCNH 1814)). Mtoched

had no vested right to avoid deportation under CNMI law.

Although the closure of a door to apply for discretionary

relief can in some circumstances constitute “a new

disability,” INS v. St. Cyr, 533 U.S. 289, 321 (2001), Mtoched

points to nothing other than the failure to initiate proceedings

against him to support the notion that the prior CNMI law

was more favorable to him. The fact that the federal

government, as the new enforcement authority, has more

resources or might be more aggressive in enforcement than

the CNMI Attorney General does not represent the kind of

MTOCHED V. LYNCH 11

“new disability” against which the presumption against

retroactivity is intended to protect.

Moreover, Mtoched’s argument fails to appreciate that the

federal government still maintains significant discretion. In

particular, there is at least some degree of discretion inherent

in the decision whether to initiate removal proceedings

against a given individual. As the Supreme Court has

observed, a “principal feature of the removal system is the

broad discretion exercised by immigration officials.” Arizona

v. United States, 132 S. Ct. 2492, 2499 (2012). All that

Mtoched demonstrated in connection with the prior CNMI

law was that the CNMI Attorney General could decide “when

and whether to bring prosecutions and actions for

deportation.” 3 N. Mar. I. Code § 4312(d)(4) (repealed).

That discretion is not unlike the discretion that federal

authorities have. His arguments about the limitations on the

discretion of the United States Attorney General all involve

the exercise of discretion after removal proceedings have

been commenced and after the alien has been found otherwise

removable. Mtoched did not establish that the CNMI

authorities could not have acted to deport him under prior law

or that he had any legal basis under CNMI law to avoid

deportation. That the federal government has commenced

removal proceedings against him does not represent an

impermissibly retroactive application of law.

III. Crime involving Moral Turpitude

Under 8 U.S.C. § 1182(a)(2)(A)(i)(I), an alien may be

removed from the United States if convicted of a CIMT.

Mtoched argues that his conviction was not for a crime that

constituted a CIMT. We disagree.

12 MTOCHED V. LYNCH

Mtoched was convicted under 6 N. Mar. I. Code

§ 1204(a). That statute provided that a “person commits the

offense of assault with a dangerous weapon if he or she

threatens to cause, attempts to cause, or purposely causes

bodily injury to another with a dangerous weapon.” The

statute is thus divisible into three distinct subparts, all

involving bodily injury to another person with a dangerous

weapon: (1) threaten to cause, (2) attempt to cause, or

(3) purposely cause. Mtoched was charged with the third

variation, “purposely stabbing” a named individual with a

knife “causing bodily injury.” In his plea agreement, Mtoched

agreed to that as the factual basis for the conviction.1

“[T]he federal generic definition of a CIMT is a crime

involving fraud or conduct that (1) is vile, base, or depraved

and (2) violates accepted moral standards. Non-fraudulent

CIMTs almost always involve an intent to harm someone.”

Saavedra-Figueroa v. Holder, 625 F.3d 621, 626 (9th Cir.

2010) (internal quotation marks and citations omitted).

1

The determination of whether a conviction is for a crime that represents

a CIMT is based on application of the categorical approach. Marmolejo-

Campos v. Holder, 558 F.3d 903, 912(9th Cir. 2009) (en banc). This court

first determines if the relevant statute has the same elements as a generic

crime. Descamps v. United States, 133 S. Ct. 2276, 2283 (2013) (citing

Taylor v. United States, 495 U.S. 575, 600 (1990)). If the statute has the

same elements as the generic crime, or sweeps more narrowly, then the

crime is a categorical match, but if its sweep is broader than the generic

crime’s elements, then it fails the test. Id. (citations omitted). If the

statute of conviction is divisible into subparts, each with separate

elements, like the CNMI statute at issue here, some of which are

categorical matches and some of which are not, the modified categorical

approach may be used. Rodriguez-Castellon v. Holder, 733 F.3d 847, 853

(9th Cir. 2013) (citing Descamps, 133 S. Ct. at 2285).

MTOCHED V. LYNCH 13

Convictions for simple assault and battery often do not

constitute convictions for CIMTs because such crimes sweep

in reckless activity, which does not require a finding of

willfulness or other evil intent necessary for a CIMT. See

Fernandez-Ruiz v. Gonzales, 468 F.3d 1159, 1165–67 (9th

Cir. 2006) (rejecting a conviction under Arizona’s class 2

misdemeanor assault, a general assault statute, as a CIMT,

because it penalized reckless conduct). But convictions for

assault can qualify as morally turpitudinous “if they

necessarily involve aggravating factors that significantly

increase their culpability, such as the intentional infliction of

serious bodily injury on another.” Latter-Singh v. Holder,

668 F.3d 1156, 1161 (9th Cir. 2012) (internal quotation marks

and citations omitted).

The offense of “purposely causing” bodily injury with a

dangerous weapon requires evil intent and thus qualifies as a

CIMT. Though we have found no decision by the CNMI

Supreme Court that interprets the term “purposely” in 6 N.

Mar. I. Code § 1204(a), the dictionary definition of the word

“purposely” according to the 1981 edition of Webster’s New

Third International Dictionary, two years before the statute

was last revised, is “with a deliberate or an express purpose.”

Webster’s Third New International Dictionary of the English

Language Unabridged 1847 (1981); see Webster’s Third New

International Dictionary of the English Language

Unabridged 1847 (2002) (same definition). Black’s Law

Dictionary defines purposely similarly as “[i]n such a manner

that the actor engaged in prohibited conduct with the

intention of causing the social harm that the law was designed

to prevent.” Black’s Law Dictionary 1431 (10th ed. 2014).

To be sure, terms delineating criminal mental intent

sometimes have different meanings in different contexts.

14 MTOCHED V. LYNCH

See, e.g., Ratzlaf v. United States, 510 U.S. 135, 141 (1994)

(“‘Willful’ . . . is a word of many meanings, and its

construction is often influenced by its context.” (internal

quotation marks and amendments omitted)). As used in this

statute, though, it is plain that the term “purposely” is

intended to have a meaning comparable with “intentionally,”

a specific intent to injure that pushes the assault committed

by Mtoched into the realm of a CIMT. Latter-Singh,

668 F.3d at 1161–62. Because Mtoched’s conviction entailed

purposeful conduct, more than simply reckless conduct, it

demonstrated evil intent and constituted a CIMT.

IV. Section 212(h) Waiver

Mtoched argues that he should be allowed to apply for a

waiver under 8 U.S.C. § 1182(h), commonly called a § 212(h)

waiver, which in some circumstances may permit an alien to

overcome the effect of having committed a CIMT. The BIA

held that he was statutorily ineligible for such a waiver.

Mtoched’s problem is that he has already been admitted

into the United States. The Attorney General has exercised

authority granted to him under 8 U.S.C. § 1182(h)(2) to issue

a regulation providing that an application for adjustment of

status “shall be the sole method of requesting the exercise of

discretion under sections 212(g), (h), (i), and (k) of the Act,

as they relate to the inadmissibility of an alien in the United

States.” 8 C.F.R. § 1245.1(f); see Matter of Rivas, 26 I. & N.

Dec. 130, 132 (BIA 2013), petition denied in Rivas v. U.S.

Atty. Gen., 765 F.3d 1324 (11th Cir. 2014) (an alien “in the

country in removal proceedings . . . must file a concurrent

adjustment application in order to seek a waiver of the

grounds of removal.”).

MTOCHED V. LYNCH 15

Two other federal circuits have upheld that limitation.

Poveda v. U.S. Atty. Gen., 692 F.3d 1168, 1176 (11th Cir.

2012) (“The new interpretation by the Board of section

212(h)—that an alien within the United States must apply for

an adjustment of his status to receive a hardship waiver—is

reasonable.”); Cabral v. Holder, 632 F.3d 886, 891 (5th Cir.

2011) (“because Cabral was an alien inside the United States

who had not filed a concurrent application for adjustment of

status under § 1255, he was ineligible to apply for a § 212(h)

waiver”); see also Klementanovsky v. Gonzales, 501 F.3d

788, 791-93 (7th Cir. 2007) (concluding that the limited

availability of a waiver of inadmissibility of an alien within

the United States did not deprive an alien of equal

protection).

Under that regulation, the BIA has specifically held that

aliens seeking admission to the United States while present in

the CNMI after November 28, 2009, may only seek a waiver

in conjunction with an application for adjustment of status.

Matter of Valdez, 25 I. & N. Dec. 824, 828 (BIA 2012). That

covers Mtoched, who has applied for a waiver but who has

not submitted an application for adjustment of status.2

When a court reviews a regulation promulgated by an

agency charged with administering such a statute, the first

question is whether Congress spoke clearly to the matter.

Chevron U.S.A. Inc. v. Natural Res. Def. Council, 467 U.S.

837, 842 (1984). If the intent of Congress is clear in the

statutory language, then that ends the inquiry. Id. at 842–43.

If not, the court generally defers to an agency’s determination

2

Mtoched may not adjust his status, because he is a citizen of Palau who

may enter the United States as a non-immigrant under the section 141 of

the Compact of Free Association with the Republic of Palau.

16 MTOCHED V. LYNCH

in its regulation unless it is “arbitrary, capricious, or

manifestly contrary to the statute.” Id. at 843–44. When the

BIA interprets a provision of the INA in a published decision

of three members of the board, this court applies the same

analysis and deference as outlined in Chevron. Federiso v.

Holder, 605 F.3d 695, 697 (9th Cir. 2010).

The Attorney General is expressly authorized under

8 U.S.C. § 1182(h)(2) to prescribe regulations regarding that

provision, and responsibility for adjudicating removal

proceedings is assigned to the Attorney General and his

designees. The statute says that an alien may seek a § 212(h)

waiver when he is “applying or reapplying for a visa, for

admission to the United States, or for adjustment of status.”

8 U.S.C. § 1182(h)(2). The regulation issued by the Attorney

General is consistent with the statutory language. 8 C.F.R.

§ 1245.1(f). Matter of Rivas, a published decision by a three

member panel of the BIA, confirms the regulation’s direction

that a § 212(h) waiver for an alien within the United States is

available only in connection with an application for

adjustment of status, even for someone who is not eligible to

apply for adjustment of status. Matter of Rivas, 26 I. & N.

Dec. at 132. Mtoched has not established that the regulation

and its interpretation are arbitrary, capricious, or manifestly

contrary to the statute. We thus defer to the agency’s

interpretation. Mtoched was not eligible to apply for a

§ 212(h) waiver.

V. Conclusion

The petition for review is DENIED.