we have jurisdiction when, inter alia, statute instructs that “the visa ‘shall’ issue if those requirements are met”
How later courts described this case
- we have jurisdiction when, inter alia, statute instructs that “the visa ‘shall’ issue if those requirements are met”
- noting “no explicit reference to ‘discretion’ as in Urena-Tavarez”
- argument that “BIA failed to apply the proper legal standard . . . . raises a question of law
- finding due process violation in designation of claim as frivolous pursuant to 8 U.S.C. § 1158(d)(6)
Written by the judges who cited it.
The opinion
Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
7-18-2006
Alaka v. Atty Gen USA
Precedential or Non-Precedential: Precedential
Docket No. 05-1632
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-1632
OYENIKE ALAKA,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES;
SECRETARY OF DEPARTMENT OF
HOMELAND SECURITY,
Respondents
On Petition for Review of an Order of
The Board of Immigration Appeals
(No. A91-581-986)
Argued March 9, 2006
Before: AMBRO and BECKER,* Circuit Judges,
STAGG,** District Judge
(Opinion filed July 18, 2006)
Joseph C. Hohenstein, Esquire (Argued)
Orlow & Orlow
620 Chestnut Street, Suite 656
Philadelphia, PA 19106
Counsel for Petitioner
Peter D. Keisler
Assistant Attorney General
Civil Division
Christopher C. Fuller
Senior Litigation Counsel
Linda S. Wernery, Esquire
Lyle D. Jentzer, Esquire
Thankful T. Vanderstar, Esquire (Argued)
U.S. Department of Justice
Office of Immigration Litigation
P.O. Box 878, Ben Franklin Station
Washington, D.C. 20044
Counsel for Respondent
*
This case was argued before the panel of Judges Ambro,
Becker and Stagg. Judge Becker died before the filing of this
opinion. It is filed by a quorum of the panel. 28 U.S.C. § 46(d).
**
Honorable Tom Stagg, Senior District Judge for the Western
District of Louisiana, sitting by designation.
2
OPINION OF THE COURT
AMBRO, Circuit Judge
Oyenike Alaka petitions for review of a final order of
removal issued by the Board of Immigration Appeals (“BIA”).
We conclude that the immigration judge (“IJ”) erred in finding
Alaka ineligible for withholding of removal as a person
convicted of a “particularly serious crime,” and accordingly we
grant her withholding of removal petition and remand to the
BIA. We do not have jurisdiction to consider the IJ’s
conclusion that Alaka abandoned her lawful permanent resident
status, and therefore deny her petition for cancellation of
removal and relief under former § 212(c) of the Immigration and
Nationality Act (“INA”).
I. Factual Background
Alaka is a citizen of Nigeria who entered the United
States without inspection in November, 1984. She received
permanent resident status on December 1, 1990. When Alaka
attempted to reenter the United States in 2001 after a trip
abroad, the Immigration and Naturalization Service (“INS”)1
1
Since March 1, 2003, the INS has been merged into the
Department of Homeland Security, and is now called the Bureau
of Immigration and Customs Enforcement. However, since the
case began as an INS matter, we shall continue to refer to the
3
denied her admission because she had been convicted of a crime
involving moral turpitude. Alaka sought relief from removal by
asserting claims of persecution and torture in Nigeria. She was
ultimately denied this relief, in part because her numerous trips
outside the United States added up to an abandonment of her
lawful permanent resident status. There are thus two sets of
facts relevant to this petition: Alaka’s criminal history and her
trips abroad.2
In 1992, Alaka was convicted in the United States for
aiding and abetting bank fraud in violation of 18 U.S.C. §§ 1344
and 2. She was indicted on three counts for conduct involving
fraudulent checks. The sentencing court found the total
intended loss to be $47,969. Alaka was convicted, however, on
only one count, for which the actual loss was $4,716.68. She
argued at sentencing that the finding of intended loss should be
based only on the charge for which she was convicted, but the
INS.
2
Because we do not reach the merits of Alaka’s persecution
and torture claims, we do not provide a detailed description of
her experiences in Nigeria. In summary, Alaka is a member of
the Yoruba tribe in Nigeria and a Christian. Her husband owned
a complex of stores and shops in Lagos, Nigeria, some of which
he rented to Ibo and Hausa tribesmen. The Oodua People’s
Congress (“OPC”) is a Yoruba tribal organization that attempts
to exercise control over the Yoruba sections of Nigeria. On two
occasions, in January and June of 2001, Alaka claims the OPC
came to her home and beat her husband for renting property to
non-Yorubas.
4
Court held that her conduct as to all three charges was part of a
“common scheme or plan,” and thus the loss amount was
properly derived from all the charges. Alaka was sentenced to
eight months incarceration, and three years supervised release,
and was required to pay $4,716.68 in restitution.
Alaka was also convicted and incarcerated twice outside
the United States. In 1994, she was convicted in France for a
drug-related offense and was sentenced to approximately one
and a half years incarceration. In 1998, a Canadian court
convicted her of fraud (for over $5,000 Canadian dollars) and
unlawful possession and use of a credit card. She received a
three-month sentence for the fraud charge and a concurrent
thirty-day sentence for the credit card offense. The United
States Government was not able to produce a record of
conviction for these offenses, and it is uncontested that the exact
details of the foreign convictions are unknown.
Since becoming a permanent resident in 1990, Alaka has
left the United States on nine occasions. She has taken four
trips to Nigeria (one of which included the trip to France that
resulted in her 1994 drug conviction), and five trips to Canada.
Her longest absences from the United States were twenty-two
months she spent abroad from 1994 to 1995 (the bulk of which
time was spent incarcerated in France), and her eight-month
visit to Nigeria in 2001. During that last trip, Alaka married a
Nigerian citizen who is the father of two of her three sons. The
events that occurred during that visit were what prompted her to
return to the United States and form the basis of her claims for
relief now before us.
5
II. Procedural History
Alaka was detained by the INS on August 8, 2001, when
she attempted to reenter the United States. A notice to appear
was issued on November 19, 2001, charging her with
removability under 8 U.S.C. § 1182(a)(2)(A)(i)(I) as an
individual who is ineligible for admission on the basis of a
conviction for a crime involving moral turpitude (specifically,
aiding and abetting bank fraud).3 Alaka admitted she was
inadmissible as charged,4 but requested cancellation of removal
under 8 U.S.C. § 1229b(a) and relief under former § 212(c) of
the INA, 8 U.S.C. § 1182(c) (repealed 1996).5
3
Alaka was charged as being inadmissible even though she
had lawful permanent resident status because she had been
convicted of a crime involving moral turpitude. 8 U.S.C. §
1101(a)(13)(C)( v) (“An alien lawfully admitted for permanent
residence in the United States shall not be regarded as seeking
an admission into the United States for purposes of the
immigration laws unless the alien . . . has committed an offense
[involving moral turpitude pursuant to § 1182(a)(2)]”).
4
Alaka does not dispute that aiding and abetting bank fraud is
a crime of moral turpitude.
5
Under this now-repealed provision, deportable aliens who
had accrued seven years of lawful permanent residence in the
United States could request discretionary relief from deportation
by arguing that the equities weighed in favor of their remaining
in this country. Section 304(b) of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”)
repealed § 212(c) relief entirely, replacing it with cancellation
6
In July 2002, the IJ found that the time Alaka spent
abroad caused her to abandon her permanent resident status, and
she was thus ineligible for cancellation of removal and § 212(c)
relief. Had Alaka not abandoned her resident status, the IJ
stated he “would have found her eligible, as a matter of law, to
apply for discretionary relief of the two applications
[cancellation of removal and § 212(c) relief].” Alaka responded
that she would apply for withholding of removal pursuant to 8
U.S.C. § 1231(b)(3) and withholding of removal under Article
3 of the United Nations Convention Against Torture and Other
Forms of Cruel, Inhuman, or Degrading Treatment or
Punishment (“CAT”).6
of removal under 8 U.S.C. § 1229b. Under the new provision,
removal can be cancelled for a lawful permanent resident if he
or she has been lawfully admitted for at least five years, has
resided in the United States continuously for seven years after
having been admitted in any status, and has not been convicted
of an aggravated felony. 8 U.S.C. § 1229b(a). However,
Ҥ 212(c) relief remains available for aliens . . . whose
convictions were obtained through plea agreements and who,
notwithstanding those convictions, would have been eligible for
§ 212(c) relief at the time of their plea under the law then in
effect.” INS v. St. Cyr, 533 U.S. 289, 326 (2001). We have
extended St. Cyr to make § 212(c) relief available to aliens who
declined a plea offer and went to trial in reliance on the
availability of § 212(c) relief. Ponnapula v. Ashcroft, 373 F.3d
480, 496 (3d Cir. 2004).
6
G.A. Res 39/46, U.N. GAOR, 39th Sess., Supp. No. 51, at
197, U.N. Doc. A/39/51 (1984).
7
In February 2003, the IJ restated his conclusion that
Alaka was ineligible for cancellation of removal and 212(c)
relief, ruled against her claims for withholding of removal and
relief under the CAT, and ordered her removed to Nigeria.7
Though the IJ found Alaka to be credible, and stated that her
experience in Nigeria could support a finding of persecution on
the basis of, at least in part, political opinion, the “particularly
serious” nature of her bank fraud crime under 8 U.S.C. §
1231(b)(3)(ii) precluded his review of her withholding of
removal claim. The IJ also denied Alaka’s application for CAT
relief because there was no evidence to suggest it was more
likely than not that she would be tortured in Nigeria by, or with
the acquiescence of, the Nigerian government.
Alaka filed a timely motion for reconsideration with the
IJ, challenging the designation of her bank fraud offense as
“particularly serious.” The IJ denied the motion, stating that
“while I do not recall with specificity all of the factors which led
me to find [Alaka’s] conviction to be a ‘particularly serious
crime’ for purposes of withholding of removal . . ., [Alaka’s]
brief, well presented as it is, does not convince me that I erred.”
Alaka appealed both the removal order and the denial of
her motion to reconsider, and the BIA adopted and affirmed
both decisions of the IJ with only a brief discussion.
7
IIRIRA eliminated the previous legal distinction between
deportation and removal proceedings, and we use the terms
interchangeably here. See Avila-Macias v. Ashcroft, 328 F.3d
108, 111-12 (3d Cir. 2003).
8
On appeal, Alaka reasserts her claims that she is eligible
for cancellation of removal, § 212(c) relief, and withholding of
removal.8 She has not briefed the CAT claim, and we
accordingly consider it waived. United States v. Pelullo, 399
F.3d 197, 222 (3d Cir. 2005); see also Lie v. Ashcroft, 396 F.3d
530, 532 n.1 (3d Cir. 2005).9
III. Discussion
A. Jurisdiction
Alaka’s status as a person convicted of a crime involving
moral turpitude raises jurisdictional questions under 8 U.S.C.
§ 1252(a)(2)(C) and (D) that are typically addressed at the outset
of an opinion. See, e.g., Ilchuk v. Att’y General, 434 F.3d 618,
621 (3d Cir. 2006). Here, however, we first consider whether
we have jurisdiction under 8 U.S.C. § 1252(a)(2)(B)(ii) (which
8
We have always retained jurisdiction to determine our own
jurisdiction, Papageorgiou v. Gonzales, 413 F.3d 356, 357 (3d
Cir. 2005), and we review those questions de novo. Valansi v.
Ashcroft, 278 F.3d 203, 207 (3d Cir. 2002). We likewise apply
de novo review to any constitutional and legal questions raised
by a petitioner. Ilchuk v. Att’y Gen., 434 F.3d 618, 621 (3d Cir.
2006). “When the BIA defers to an IJ, a reviewing court must,
as a matter of logic, review the IJ’s decision to assess whether
the BIA’s decision to defer was appropriate.” Abdulai v.
Ashcroft, 239 F.3d 542, 549 n.2 (3d Cir. 2001).
9
Alaka even admits in a footnote in her brief that “the people
[Alaka] fears, the OPC, are not state actors as required under the
CAT.” Pet.’s Brief at 30 n.10.
9
precludes review of a decision “the authority for which is
specified . . . to be in the discretion of the Attorney General or
the Secretary of Homeland Security”), and then move on to
evaluate to what extent our jurisdiction is limited by Alaka’s
moral turpitude conviction pursuant to 8 U.S.C. § 1252(a)(2)(C)
and (D) (which limit our review to constitutional questions and
questions of law where the petitioner is removable by reason of
having committed a crime of moral turpitude).10
1. Does 8 U.S.C. § 1252(a)(2)(B)(ii) strip us
of jurisdiction over Alaka’s withholding of
removal claim?
The Government argues that we do not have jurisdiction
to consider Alaka’s withholding of removal claim in light of 8
U.S.C. § 1252(a)(2)(B)(ii). We disagree. Withholding of
removal (“withholding”) is a mandatory form of relief from
removal “if the Attorney General decides that the alien’s life or
freedom would be threatened in [the country to which the alien
will be deported] because of the alien’s race, religion,
nationality, membership in a particular social group, or political
opinion.” 8 U.S.C. § 1231(b)(3)(A). An alien is ineligible for
withholding, however, if, inter alia, “the Attorney General
decides that . . . the alien, having been convicted by a final
10
As “federal courts are not generally obligated to address
jurisdictional issues in any particular order,” we accordingly
organize our jurisdictional discussion in the manner that best
lends itself to the questions in this case. In re Hechinger Inv.
Co. of Del., Inc., 335 F.3d 243, 250-51 (3d Cir. 2003) (internal
quotation marks and citation omitted).
10
judgment of a particularly serious crime[,] is a danger to the
community of the United States.” 8 U.S.C.
11
§ 1231(b)(3)(B)(ii). This provision specifies that
an alien who has been convicted of an aggravated
felony (or felonies) for which the alien has been
sentenced to an aggregate term of imprisonment
of at least 5 years shall be considered to have
committed a particularly serious crime. The
previous sentence shall not preclude the Attorney
General from determining that, notwithstanding
the length of sentence imposed, an alien has been
11
The BIA has interpreted this language to mean that a
petitioner convicted of a “particularly serious crime” necessarily
constitutes a danger to the community. Matter of Carballe, 19
I. & N. Dec. 357, 360 (BIA 1986). Every Circuit Court that has
considered the question has deferred to the BIA’s interpretation
pursuant to Chevron U.S.A., Inc. v. Natural Res. Def. Council,
Inc., 467 U.S. 837, 842-45 (1984). See Mosquera-Perez v.
I.N.S., 3 F.3d 553, 559 (1st Cir. 1993); Ahmetovic v. I.N.S., 62
F.3d 48, 53 (2d Cir. 1995); Yousefi v. I.N.S., 260 F.3d 318, 327-
28 (4th Cir. 2001); Martins v. I.N.S., 972 F.2d 657, 661 (5th Cir.
1992); Hamama v. I.N.S., 78 F.3d 233, 240 (6th Cir. 1996);
Garcia v. I.N.S., 7 F.3d 1320, 1323 (7th Cir. 1993);
Kankamalage v. I.N.S., 335 F.3d 858, 861 n.2 (9th Cir. 2003);
Al-Salehi v. I.N.S., 47 F.3d 390, 396 (10th Cir. 1995);
Crespo-Gomez v. Richard, 780 F.2d 932, 934 (11th Cir. 1986).
Because we conclude that Alaka was not convicted of a
“particularly serious crime,” we do not consider the BIA’s
conclusion that no “separate determination of dangerousness ”
is required.
11
convicted of a particularly serious crime.
Because Alaka was sentenced to fewer than five years for her
bank fraud offense, her crime is not automatically designated as
“particularly serious.” The IJ (acting as agent for the Attorney
General) determined she had been convicted of a “particularly
serious crime” based on the individual facts of her case. Alaka
challenges that determination on appeal, and the Government
argues we do not have jurisdiction to review it pursuant to 8
U.S.C. § 1252(a)(2)(B)(ii).
That subsection, added to the INA in 1996 as part of the
Illegal Immigration Reform and Immigrant Responsibility Act
of 1996 (“IIRIRA”), precludes judicial review of a “decision or
action of the Attorney General or the Secretary of Homeland
Security the authority for which is specified under this
subchapter to be in the discretion of the Attorney General or the
Secretary of Homeland Security” (other than the granting of
asylum). 8 U.S.C. § 1252(a)(2)(B)(ii). The “subchapter” to
which this section refers is Subchapter II in Chapter 12 of Title
8 of the United States Code, and includes all of the statutory
provisions at issue in this case. See Urena-Tavarez v. Ashcroft,
367 F.3d 154, 158 (3d Cir. 2004).
We conclude that the exception to eligibility for
withholding at 8 U.S.C. § 1231(b)(3)(B)(ii) is not a decision
“the authority for which is specified under this subchapter to be
in the discretion of the Attorney General or the Secretary of
Homeland Security.” 8 U.S.C. § 1252(a)(2)(B)(ii). The
jurisdiction-stripping language of § 1252(a)(2)(B)(ii) applies not
to all decisions the Attorney General is entitled to make, but to
12
a narrower category of decisions where Congress has taken the
additional step to specify that the sole authority for the action is
in the Attorney General’s discretion. Put another way, the
Attorney General’s general authority to arrive at an outcome
through the application of law to facts is distinct from the issue
of whether Congress has “specified” that the decision lies in the
Attorney General’s discretion and is thus unreviewable.12 As we
noted in Soltane v. U.S. Dept. of Justice,
if “discretion” under § 125[2](a)(2)(B)(ii) means
nothing more than the application of facts to
12
Accordingly, we see no conflict with House Conference
Report No. 104-828, stating that “the Attorney General retains
the authority to determine other circumstances in which an alien
has been convicted of a particularly serious crime, regardless of
the length of sentence.” H.R. Rep. No. 104-828, at 216 (1996).
This report highlights only the uncontested fact that the Attorney
General may reach one of multiple possible outcomes and does
not suggest that his discretion is “specified” in the statute. We
likewise see no conflict with the Attorney General’s observation
that, “[w]ith respect to aggravated felony convictions for which
a lesser sentence has been imposed [,] . . . Congress explicitly
empowered the Attorney General to make the relevant
determination.” In re Y-L-, 23 I. & N. Dec. 270, 273 (BIA
2002). We read this to mean only that the Attorney General has
the ability to make this determination, not that discretion has
been “specified” for purposes of 8 U.S.C. § 1252(a)(2)(B)(ii).
Again, the relevant jurisdictional bar applies only when the
discretion is “specified” in the statute, not in every instance
where the Attorney General has the authority to apply the law to
the facts of a case.
13
principles, then it is hard to imagine any action by
the Attorney General under the relevant title that
would not be deemed discretionary. For example,
the substantial evidence standard under which we
review many immigration actions contemplates
that in some cases there will be a range of
acceptable outcomes among which an adjudicator
might reasonably choose. 8 U.S.C.
§ 1252(b)(4)(B).
381 F.3d 143, 148 n.3 (3d Cir. 2004) (internal quotation marks
and citations omitted).
“The key to § 1252(a)(2)(B)(ii) lies in its requirement
that the discretion giving rise to the jurisdictional bar must be
‘specified’ by statute.” Id. at 146. “‘Specify’ means ‘[t]o
mention specifically,’ Black’s Law Dictionary 1399 (6th ed.
1990); that is, the language of the statute in question must
provide the discretionary authority.” Spencer Enters., Inc. v.
United States, 345 F.3d 683, 689 (9th Cir. 2003); see also
Soltane, 381 F.3d at 146.
There are two sentences in § 1231(b)(3)(B) that might
suggest discretion. First, the provision states that withholding
is not available “if the Attorney General decides that” one of
four conditions is present. (Emphasis added.) One of those
conditions is when “the alien . . [has] been convicted . . . of a
14
particularly serious crime.” 8 U.S.C. § 1231(b)(3)(B)(ii).13
Second, it directs that the Attorney General is not precluded
from “determining” that an alien has been convicted of such a
crime, regardless of the length of the sentence imposed. Id.
The terms “decide[]” or “determin[e]” are not, standing
alone, sufficient to “specify” discretion. Indeed, we have
exercised jurisdiction over another of the four conditions that the
“Attorney General decides.” In McAllister v. Att’y Gen., 444
F.3d 178, 189 (3d Cir. 2006), we exercised jurisdiction over
whether the BIA erred in denying withholding on the ground
that “the alien is a danger to the security of the United States.”14
13
The three other conditions, not applicable in this case, are
(i) the alien ordered, incited, assisted, or
otherwise participated in the persecution of an
individual because of the individual's race,
religion, nationality, membership in a particular
social group, or political opinion; . . . (iii) there
are serious reasons to believe that the alien
committed a serious nonpolitical crime outside the
United States before the alien arrived in the
United States; or (iv) there are reasonable grounds
to believe that the alien is a danger to the security
of the United States.
8 U.S.C. § 1231(b)(3)(B).
14
Jurisdiction was not explicitly discussed in McAllister, but,
in light of our “inherent obligation to satisfy ourselves that
appellate jurisdiction attaches,” we consider the evaluation of
15
8 U.S.C. § 1231(b)(3)(B)(iv). As with the “particularly serious
crime” condition, the Attorney General “decides” this question,
which in turn depends on his “determin[ation] that an alien has
engaged in terrorist activities.” McAllister, 444 F.3d at 189
(citing 8 U.S.C. § 1231(b)(3)(B)). That language, however, did
not preclude our review of the Attorney General’s decision to
deny withholding. Id.
We have likewise reviewed the merits of a petitioner’s
objection to the designation of his claim as frivolous, another
condition that “the Attorney General determines.” Muhanna v.
Gonzales, 399 F.3d 582, 589 (3d Cir. 2005) (finding due process
violation in designation of claim as frivolous pursuant to 8
U.S.C. § 1158(d)(6)).15 Similarly, we regularly exercise
jurisdiction over the question of agency error in denying
withholding for failure to support the claim, even though this too
is something the Attorney General “decides.” See, e.g., Ilchuk,
434 F.3d at 624 (citing 8 U.S.C. § 1231(b)(3)(A) and reversing
the merits as evidence of an implicit conclusion that jurisdiction
exists. Adapt of Phila. v. Phila. Hous. Auth., 433 F.3d 353, 361
n.10 (3d Cir. 2006).
15
8 U.S.C. § 1158(d)(6) provides:
If the Attorney General determines that an alien
has knowingly made a frivolous application for
asylum and the alien has received the notice under
paragraph (4)(A), the alien shall be permanently
ineligible for any benefits under this chapter,
effective as of the date of a final determination on
such application.
16
BIA’s denial of withholding when that relief is available only “if
the Attorney General decides that the alien’s life or freedom
would be threatened . . . .”) (emphasis added).
By way of contrast, Congress knows how to “specify”
discretion and has done so repeatedly in other provisions of the
INA. Within the category of “[d]enials of discretionary relief”
at § 1252(a)(2)(B), subsection (i) precludes review over
discretionary decisions in five enumerated sections of the INA,
each of which refers explicitly to discretion.16 Moreover, there
are no less than thirty-two additional provisions in the very
subchapter of the INA referenced by 8 U.S.C.
§ 1252(a)(2)(B)(ii) that make explicit the grant of “discretion”
to the Attorney General or the Secretary of Homeland
1 7
S e c u r i t y .
16
See 8 U.S.C. § 1182(h) and (h)(2) (“[t]he Attorney General
may, in his discretion”) (“the Attorney General, in his
discretion); 8 U.S.C. § 1182(i) (“[t]he Attorney General may, in
the discretion of the Attorney General”); 8 U.S.C. §
1229b(b)(2)(D) (“within the sole discretion of the Attorney
General”); 8 U.S.C. § 1229c (“in the discretion of the Attorney
General”); and 8 U.S.C. § 1255 (“by the Attorney General, in
his discretion”) (“in the sole discretion of the Attorney
General”).
17
See 8 U.S.C. § 1103(a)(5)(he “shall, in his discretion,
appoint . . . employees”); 8 U.S.C. § 1157(c)(1) (“the Attorney
General may, in the Attorney General's discretion ”); 8 U.S.C.
§ 1159(b) (“in the [Homeland Security] Secretary’s or the
Attorney General’s discretion”); 8 U.S.C. § 1181(b) (“the
Attorney General in his discretion”); 8 U.S.C. §
17
1182(a)(3)(D)(iv) (“[t]he Attorney General may, in the Attorney
General’s discretion”); 8 U.S.C. § 1182(a)(9)(B)(v) (“[t]he
Attorney General has sole discretion ”); 8 U.S.C. § 1182(d)(1)
(“[t]he Attorney General, in the Attorney General’s discretion”);
8 U.S.C. § 1182(d)(3)(A) (“in the discretion of the Attorney
General”); 8 U.S.C. § 1182(d)(5)(A) (“in his discretion”); 8
U.S.C. § 1182(d)(11) (“[t]he Attorney General may, in his
discretion”); 8 U.S.C. § 1182(d)(12) (“[t]he Attorney General
may, in the discretion of the Attorney General”); 8 U.S.C. §
1182(g)(1) (“in the discretion of the Attorney General”); 8
U.S.C. § 1182(g)(3) (“in the discretion of the Attorney
General”); 8 U.S.C. § 1183 (“in the discretion of the Attorney
General”); 8 U.S.C. § 1184(c)(6)(F) (“as the Attorney General
determines, in his sole discretion”); 8 U.S.C. § 1184(d)(1) (“the
Secretary of Homeland Security in his discretion”); 8 U.S.C. §
1186a(c)(4) (“in the Attorney General’s discretion”); 8 U.S.C.
§ 1186a(d)(3) (“in the Attorney General’s discretion”); 8 U.S.C.
§ 1203(b) (“the Attorney General may, in his discretion”); 8
U.S.C. § 1225(a)(4) (“in the discretion of the Attorney
General”); 8 U.S.C. § 1225(b)(1)(A)(iii)(I) (“in the sole and
unreviewable discretion of the Attorney General”); 8 U.S.C. §
1227(a)(1)(E)(iii) (“[t]he Attorney General may, in his
discretion”); 8 U.S.C. § 1227(a)(1)(H) (“in the discretion of the
Attorney General”); 8 U.S.C. § 1227(a)(7)(B) (“the sole
discretion of the Attorney General”); 8 U.S.C. § 1259 (“in the
discretion of the Attorney General”); 8 U.S.C. § 1281(a) (“in the
discretion of the Attorney General”); 8 U.S.C. § 1281(c) (“in the
discretion of the Attorney General”); 8 U.S.C. § 1286 (“in the
discretion of the Attorney General”); 8 U.S.C. § 1302(c) (“[t]he
Attorney General may, in his discretion”); 8 U.S.C. § 1305(b)
(“[t]he Attorney General may in his discretion”); 8 U.S.C.
§ 1321(a) (“in the discretion of the Attorney General”); 8
18
“It is a fundamental canon of statutory construction that where
sections of a statute do not include a specific term used
elsewhere in the statute, the drafters did not wish such a
requirement to apply.” United States v. Mobley, 956 F.2d 450,
452-53 (3d Cir. 1992). If Congress had wanted to specify the
discretion to make the “particularly serious” determination, it
would have employed the same explicit language used in other
provisions of the same statute. Cf. Spencer Enters., Inc., 345
F.3d at 689.
Although the explicit use of language granting discretion
– such as “the Attorney General may, in his discretion” –
would presumably trigger the application of § 1252(a)(2)(B)(ii),
the jurisdictional bar might still apply even in the absence of that
language. Indeed, the three cases from our Court analyzing the
application of § 1252(a)(2)(B)(ii) to other agency determinations
that were allegedly unreviewable have not relied exclusively, or
even primarily, on the presence or absence of the word
“discretion.” On the one hand, in Soltane, we held that a
preference visa determination under 8 U.S.C. § 1153(b)(4)18 was
U.S.C. § 1330(a) (“in the discretion of the Attorney General”);
and 8 U.S.C. § 1353 (“within the discretion . . . of the Attorney
General”).
18
8 U.S.C. § 1153(b)(4) provides:
Visas shall be made available, in a number not to
exceed 7.1 percent of such worldwide level, to
qualified special immigrants described in section
1101(a)(27) of this title (other than those
described in subparagraph (A) or (B) thereof), of
19
not a decision “the authority for which is specified under this
subchapter to be in the discretion of the Attorney General or the
Secretary of Homeland Security” when: (a) the definition for the
term in question was “fairly detailed and specific[;]” (b) there
was “no explicit reference to ‘discretion;’” and (c) the statute
instructs that “the visa ‘shall’ issue if those requirements are
met.” 381 F.3d at 147.
In contrast, in Jilin Pharm. USA, Inc. v. Chertoff, 447
F.3d 196 (3d Cir. 2006), we held that the discretion to revoke a
visa19 has been “specified” sufficiently to bar our review when:
(a) the statute states the Secretary of Homeland Security “may”
(rather than “shall”) revoke approval of a visa petition; (b) the
statute states that approval may be revoked “at any time,”
language that “connotes a level of discretion;” (c) the only
arguable limit on discretion, the requirement of “good and
sufficient cause,” was itself committed to the Secretary’s
which not more than 5,000 may be made available
in any fiscal year to special immigrants described
in subclause (II) or (III) of section
1101(a)(27)(C)(ii) of this title, and not more than
100 may be made available in any fiscal year to
special immigrants, excluding spouses and
children, who are described in section
1101(a)(27)(M) of this title.
(emphasis added).
19
8 U.S.C. § 1155 provides that “[t]he Secretary of Homeland
Security may, at any time, for what he deems to be good and
sufficient cause, revoke the approval of any petition approved
by him under section 1154 of this title.”
20
discretion; and (d) the cause requirement, that petitioners
asserted limited discretion, was “so subjective as to provide no
meaningful legal standard.” Id. at 203-05.
Similarly, in Urena-Tavarez we found that a hardship
waiver determination under 8 U.S.C. § 1186a(c)(4)20 is a
decision “the authority for which is specified . . . to be in the
discretion of the Attorney General.” 367 F.3d at 161. This is
because, in addition to the fact that the statute uses the language
“in the Attorney General’s discretion,” it: (a) states the Attorney
General “may” (rather than “shall”) grant a waiver; and (b) adds
“another layer of protection from review” by giving the
Attorney General “sole discretion” to decide “what evidence is
credible and the weight” to give it. Urena-Tavarez, 367 F.3d at
159-60.
In our case, the determination of a “particularly serious
offense” is more like the decision considered in Soltane, and less
like the ones in Jilin and Urena-Tavarez, for the following
reasons. First, there is no explicit reference in
§ 1231(b)(3)(B)(ii) to the Attorney General’s “discretion” to
make the determination, and certainly no added “layer of
protection from review” in the form of an additional explicit
20
8 U.S.C. § 1186a(c)(4) provides that “[t]he Attorney
General, in the Attorney General’s discretion, may remove the
conditional basis of the permanent resident status for an alien
. . . . The determination of what evidence is credible and the
weight to be given that evidence shall be within the sole
discretion of the Attorney General.”
(emphases added).
21
reference to the Attorney General’s discretion. Soltane found
the absence of such explicit language persuasive, 381 F.3d at
147 (noting “no explicit reference to ‘discretion’ as in
Urena-Tavarez”), just as the presence of such language was
critical in Urena-Tavarez. 367 F.3d at 159-60.
Second, Soltane, Jilin and Urena-Tavarez each focus on
the import of either “shall” or “may.” Soltane, 381 F.3d at 147
(we have jurisdiction when, inter alia, statute instructs that “the
visa ‘shall’ issue if those requirements are met”); Jilin, 447 F.3d
at 203 (“language [that Attorney General may revoke approval]
is indicative of administrative discretion for purposes of §
1252(a)(2)(B)(ii)” (emphasis in original)); Urena-Tavarez, 367
F.3d at 160 (no jurisdiction when, inter alia, statute instructs
that the Attorney General “may” grant a waiver when certain
legal requirements are met). The exception contained at 8
U.S.C. § 1231(b)(3)(B) does not use “may,” and instead says the
mandatory bar on removal “does not apply to an alien” if the
Attorney General determines one of four factors is present. The
provision mandates a particular outcome once a determination
has been made. It is thus more like “shall” than “may,” and
more like the statute in Soltane, 381 F.3d at 147, over which we
exercised jurisdiction.21
21
We note that in Chong v. Dist. Dir., I.N.S., we stated that
§ 1231(b)(3)(B) “grants the Attorney General discretion to
determine whether that alien has committed a ‘particularly
serious crime.’” 264 F.3d 378, 387 (3d Cir. 2001). Chong
merely notes that the Attorney General has the authority to make
the decision, not that the discretion to do so has been “specified”
in the statute. Id. Furthermore, we discussed in dicta the
22
Third, our Court has observed that “the question of
whether discretionary authority has been specified by statute
should be considered by examining the statute as a whole.”
Soltane, 381 F.3d at 147. Withholding of removal pursuant to
8 U.S.C. § 1231(b)(3) is a mandatory prohibition against
removal when certain facts are present. As the statute instructs,
“the Attorney General may not remove an alien to a country if
the Attorney General decides that the alien’s life or freedom
would be threatened . . . .” 8 U.S.C. 1231(b)(3)(A) (emphasis
added). See, e.g., Wang v. Att’y Gen., 423 F.3d 260, 270 n.4 (3d
Cir. 2005) (regarding “exercise of discretion with respect to
[petitioner’s] asylum claim, there is no analogue to this
discretion in the context of mandatory withholding relief”). Any
evaluation of the “discretionary” nature of the “particularly
serious crime” determination should be conducted in light of the
mandatory character of withholding.
Finally, and most importantly, the statutes found to
specify discretion in Jilin and Urena-Tavarez contain language
that serves to elevate the decision – out of the broader class of
determinations the Attorney General is entitled to make – into
the narrower category of decisions where discretion has been
“specified.” As described above, the language of the statute in
Urena-Tavarez made the judicial intent to preclude judicial
review “not merely fairly discernible, [but] express and
manifest.” 367 F.3d at 158 (internal quotation marks omitted).
consequences “if we reversed the Board’s finding that
[petitioner] committed a ‘particularly serious crime,” suggesting
jurisdiction to do so. Id. at 385-86.
23
Indeed, the statute specifies that the decision to issue a hardship
waiver is “in the Attorney General’s discretion” and additionally
grants discretion over evidentiary decisions. Id. at 159-60.
Similarly, in Jilin, the statute specified that the revocation
decision can be made “at any time,” and “for what [the
Secretary of Homeland Security] deems to be a good and
sufficient cause.” 447 F.3d at 203. We concluded that
particular terminology indicates that the decision “is solely
vested in the Secretary’s discretion.” Id. at 204. In sharp
contrast, the statute before us contains no amplifying language.
It merely grants the Attorney General the ability to “decide[]”
that an alien’s offense is “particularly serious,” and allows him
to “determin[e]” that “notwithstanding the length of the
sentence.” 8 U.S.C. § 1231(b)(3)(B).
We note that our conclusion threatens to bring us into
conflict with the Ninth Circuit Court of Appeals, the only other
Circuit Court to address this question squarely in a precedential
opinion.22 In 2001 – prior to the passage of the REAL ID Act of
2005, Pub. L. No. 109-13, 119 Stat. 231 (2005) (“REAL ID
Act”), discussed in more detail in the next section – the Ninth
Circuit held it did not have jurisdiction to review a “particularly
serious crime” decision because it was “based upon an exercise
of the BIA’s discretion.” Matsuk v. INS, 247 F.3d 999, 1002
22
The Sixth Circuit Court of Appeals has issued an
unpublished decision holding that “as to the initial question of
whether the alien committed a serious crime . . . [,] we lack
jurisdiction to review the BIA’s discretionary determination.”
Celaj v. Ashcroft, 121 Fed. Appx. 608, 611 (6th Cir., Jan. 31,
2005).
24
(9th Cir. 2001). The Court subsequently reaffirmed this holding
in two other pre-REAL ID Act cases. Spencer Enters., Inc., 345
F.3d at 690 (“[u]nder the language of the statute, this decision
[on withholding of removal] is left entirely to the discretion of
the Attorney General, with no governing statutory standards”);
Unuakhaulu v. Gonzales, 416 F.3d 931, 935 (9th Cir. 2005)
(“[W]hen the Attorney General decides that the alien’s offense
was a ‘particularly serious crime,’ § 1231(b)(3)(B), we lack
jurisdiction to review such a decision because it is
discretionary.”).23
In a recent decision, however, that takes the REAL ID
Act into account, the Ninth Circuit minimized the effect of the
jurisdictional bar established in Matsuk. In Afridi v. Gonzales,
442 F.3d 1212, 1218 (9th Cir. 2006), the Court held that “the
BIA’s interpretation of the term ‘particularly serious crime’ [is]
a question of law” over which it could exercise jurisdiction
pursuant to § 1252(a)(2)(D). It stated that, “[w]hile we cannot
reweigh evidence to determine if the crime was indeed
particularly serious, we can determine whether the BIA applied
the correct legal standard in making its determination.” Id.
Thus, the petitioner’s claim that the BIA had “failed to engage
in a case-specific analysis” in determining that his crime was
“particularly serious” – in contrast to a claim on the merits of
the decision – was one over which the Court could exercise
23
Unuakhaulu is identified as a pre-REAL ID Act case
because it was filed on December 20, 2004, although the
opinion was amended on July 18, 2005 and the order was
amended on August 4, 2005. The case, however, does not
mention either the REAL ID Act or § 1252(a)(2)(D).
25
jurisdiction. Id. at 1220.
In addition, we take note of two Seventh Circuit Court of
Appeals cases stating in dicta that courts of appeals may
exercise jurisdiction over the determination whether an offense
is “particularly serious.” In Bosede v. Ashcroft, 309 F.3d 441
(7th Cir. 2002), the Court decided there was no jurisdiction to
consider the petitioner’s claim when he had not raised it before
the IJ or BIA, but it considered whether the IJ’s designation of
an offense as a “particularly serious” crime was correct. 309
F.3d at 447-48 (petitioner “may well have been prejudiced by
the IJ and BIA determinations that he committed a ‘particularly
serious crime’ . . . [, but] he must present the facts that underlie
his claim to the agency before this court can do anything”).
Next, in Ali v. Ashcroft, 395 F.3d 722, 730 (7th Cir. 2005), the
Court considered the petitioner’s claim that his crime was not
“particularly serious,” but concluded
[a]s to the question of whether Ali has rebutted
the presumption that his conviction was for a
“particularly serious crime,” we find he has not
exhausted his administrative remedies on this
point. Ali has not presented his arguments to the
BIA, and we cannot review these arguments now
in the first instance.
395 F.3d at 730. Both of these cases imply that the Seventh
Circuit Court would have exercised jurisdiction over the
“particularly serious crime” question had the petitioners
properly argued their claims at the agency level.
26
“The Supreme Court has held that only a showing of
‘clear and convincing evidence’ is sufficient to support a finding
that Congress intended to preclude judicial review of an
administrative action.” Urena-Tavarez, 367 F.3d at 158
(quoting Bd. of Governors of the Fed. Reserve Sys. v. MCorp
Fin., Inc., 502 U.S. 32, 44 (1991)). We do not find “clear and
convincing evidence” of that intent in light of the use of
“specified” in § 1252(a)(2)(B)(ii), the failure of Congress to
specify the Attorney General’s discretion in § 1231(b)(3)(B)(ii)
as it did in other provisions of the same subchapter, the factors
our Court has considered relevant in determining whether
discretion is specified, and the mandatory nature of withholding
of removal. We therefore conclude that the words “decide[]”
and “determin[e],” without any other indication that these words
“specif[y]” discretion to the Attorney General, are insufficient
to pull the “particularly serious crime” determination out from
the broad class of reviewable decisions that require the
application of law to fact into the narrower class of decisions
where judicial review is precluded by § 1252(a)(2)(B)(ii).
2. Is our jurisdiction precluded by 8 U.S.C.
§ 1252(a)(2)(C)?
The second jurisdictional question in this case arises from
8 U.S.C. § 1252(a)(2)(C), which divests courts of “jurisdiction
to review any final order of removal against an alien who is
removable by reason of having committed a criminal offense,”
including, inter alia, “a crime involving moral turpitude.” 8
U.S.C. § 1182(a)(2)(A)(i)(I). It is uncontested that the
jurisdiction-stripping language of § 1252(a)(2)(C) applies to
27
Alaka.24 A disputed question nonetheless remains – whether 8
U.S.C. § 1252(a)(2)(D) applies to restore jurisdiction over at
least some of her claims.
Section 1252(a)(2)(D) was added by § 106(a)(1)(A)(iii)
of the REAL ID Act, and states that no limitations or
prohibitions on judicial review “shall be construed as precluding
review of constitutional claims or questions of law.”25 Our
24
Alaka does not contend that aiding and abetting bank fraud
is not a crime of moral turpitude. Moreover, we conclude that
§ 1252(a)(2)(C) limits our jurisdiction here, even though the
statute appears to apply only to an alien who is removable by
reason of having committed a crime of moral turpitude and
Alaka was actually charged as being inadmissible for having
done the same. This discrepancy is clarified by the section of
the INA governing removal proceedings, which states that “[a]n
alien placed in proceedings under this section may be charged
with any applicable ground of inadmissibility under section
1182(a) of this title [including crimes involving moral
turpitude].” 8 U.S.C. § 1229a(a)(2). Put another way,
inadmissibility is simply another form of removability. See
Balogun v. Ashcroft, 270 F.3d 274, 279 (5th Cir. 2001) (“if an
alien is inadmissible for having committed offenses specified in
§ 1182(a), he is removable as well”) (emphasis in original); see
also Vuksanovic v. Att’y Gen., 439 F.3d 1308, 1310 (11th Cir.
2006) (citing § 1252(a)(2)(C) as a jurisdictional limit for claims
by alien who is “inadmissible or removable by reason of having
committed a crime involving moral turpitude”).
25
Section 1252(a)(2)(D), which allows consideration of legal
and constitutional questions, also serves as an exception to the
28
Court has defined the latter to include “pure questions of law,
and . . . issues of application of law to fact, where the facts are
undisputed and not the subject of challenge.” Kamara v. Att’y
Gen., 420 F.3d 202, 211 (3d Cir. 2005) (internal quotation
marks and citations omitted). Thus, “despite the changes of the
REAL ID Act, factual or discretionary determinations continue
to fall outside [our] jurisdiction.” Sukwanputra v. Gonzales, 434
F.3d 627, 634 (3d Cir. 2006). The Government argues that
Alaka “has not raised either a constitutional or a legal claim
sufficient to trigger the REAL ID Act’s exception to the
jurisdictional bar.” Resp.’s Brief at 6. Alaka insists, as she
must, that each of her claims for relief satisfies the exception.
We therefore need to determine, as to each claim, whether it
involves a constitutional or legal question over which we have
jurisdiction, and only then may we analyze the merits.
(a) abandonment of lawful permanent
resident status
Alaka challenges the IJ’s determination that she was
ineligible for possible relief under former § 212(c) of the INA,
and cancellation of removal under 8 U.S.C. § 1229b, on the
ground that she had abandoned her lawful permanent resident
status, a prerequisite for both forms of relief. See 8 U.S.C. §
1229b(a)(1) (to be eligible for cancellation, alien must be
“lawfully admitted for permanent residence for not less than 5
years”) and 8 C.F.R. § 212.3(f)(2) (to be considered for § 212(c)
relief alien must have “maintained lawful domicile in the United
jurisdictional limits imposed by § 1252(a)(2)(B).
29
States . . . as . . . a lawful permanent resident . . . for at least
seven consecutive years immediately preceding the filing of the
application”).
Alaka claims that the conclusion that she abandoned her
permanent legal resident status is based on legal error, and the
Government argues it is a factual question that we do not have
jurisdiction to review. In this particular context, we agree with
the Government. The basic test for evaluating whether a lawful
permanent resident has abandoned that status by virtue of
traveling abroad is “whether [the petitioner’s] extended trips
[outside the United States] constitute ‘temporary visits abroad.’”
Singh v. Reno, 113 F.3d 1512, 1514 (9th Cir. 1997); see also
Moin v. Ashcroft, 335 F.3d 415, 419 (5th Cir. 2003); Ahmed v.
Ashcroft, 286 F.3d 611, 612-13 (2d Cir. 2002). A trip is
“temporary” if it is (1) “relatively short,” or (2) if not short, the
petitioner had “a continuous, uninterrupted intention to return to
the United States during the entirety of his visit.” Singh, 113
F.3d at 1514 (internal quotation marks and citations omitted).
As to intent, “[t]he issue is not whether the petitioner had the
intent to return ultimately, but the intent to return to the United
States within a relatively short period.” Id.
Here, Alaka’s trips abroad (lasting up to twenty-two
months) were not short; thus, the critical issue was whether she
had the requisite uninterrupted intent to return to the United
States. Determining a petitioner’s intent is a fact-based inquiry.
See Katebi v. Ashcroft, 396 F.3d 463, 466 (1st Cir. 2005)
(considering “fact-intensive question of whether [the petitioner]
abandoned his permanent residence status”); Khodagholian v.
Ashcroft, 335 F.3d 1003, 1006 (9th Cir. 2003) (“[w]hether [the
30
petitioner] abandoned his [permanent residence status] is an
intrinsically fact-specific question”); Chavez-Ramirez v. I.N.S.,
792 F.2d 932, 934 (9th Cir. 1986) (“BIA’s conclusions
concerning an alien’s intent are essentially factual”). We do not
have jurisdiction to review the merits of the IJ’s factual
conclusion here, and accordingly dismiss Alaka’s petition as to
her claims for cancellation of removal and § 212(c) relief.26
(b) “particularly serious
crime” determination
We do, however, have jurisdiction over Alaka’s
challenge to the denial of withholding of removal. She has
raised a question of law by asserting that the IJ made a legal
error in determining that her crime was “particularly serious.”
Specifically, she claims the IJ erred because an offense must be
an aggravated felony to qualify as a “particularly serious crime,”
and her conviction for bank fraud does not constitute an
26
We emphasize that we may not exercise jurisdiction over
this issue because it would require review of the IJ’s factual
determination; our jurisdiction is not barred merely because
cancellation of removal is a discretionary form of relief. See
Cruz v. Att’y Gen., --- F.3d ----, No. 05-2764, 2006 WL
1687393, *8 (3d Cir., June 21, 2006) (holding that “we would
have jurisdiction to review the BIA’s decision” that the
petitioner was “ineligible . . . for sua sponte relief”); Pinho v.
Gonzales, 432 F.3d 193, 203-04 (3d Cir. 2005) (distinguishing
between unreviewable decision to grant discretionary relief and
reviewable decision that alien is legally ineligible for
discretionary relief).
31
aggravated felony. In other words, she claims the IJ applied the
wrong legal standard and erroneously classified her offense as
an aggravated felony. Whether an IJ applied the correct legal
standard is a question of law. See, e.g., Afridi, 442 F.3d at 1218
(argument that “BIA failed to apply the proper legal standard .
. . . raises a question of law). Whether a petitioner has been
convicted of an aggravated felony is also a legal question. Ng
v. Att’y Gen., 436 F.3d 392, 394-95 (3d Cir. 2006). We thus
have jurisdiction over whether the IJ misapplied the law in
determining whether Alaka’s bank fraud conviction was
“particularly serious.”
B. Merits
Having established our jurisdiction to consider Alaka’s
legal questions regarding the designation of her offense as
“particularly serious,” we now tackle the merits. Alaka
contends an offense cannot be “particularly serious” if it is not
an aggravated felony and her offense was not; thus the IJ’s
“particularly serious” designation was a legal error. We
consider each part of this argument in turn.
1. Does an offense have to be an aggravated
felony to be “particularly serious”?
Alaka insists that to be eligible for classification as a
“particularly serious crime,” an offense must be an aggravated
felony as defined in the INA at 8 U.S.C. § 1101(a)(43). This is
an issue of first impression in our Circuit, and we conclude that
Alaka is correct. The plain language and structure (i.e.,
context) of the statute indicate that an offense must be an
32
aggravated felony to be sufficiently “serious.” “Perhaps the
most fundamental principle of statutory construction is that
words in a statute must be given their ordinary meaning
whenever possible.” Okeke v. Gonzales, 407 F.3d 585, 593 (3d
Cir. 2005). Moreover, “[i]n matters of statutory interpretation,
the ‘plain meaning’ of statutory language is often illuminated by
considering not only ‘the particular statutory language’ at issue,
but also the structure of the section in which the key language is
found, ‘the design of the statute as a whole and its object . . . . ”
United States v. Tupone, 442 F.3d 145, 151 (3d Cir. 2006)
(citing United States v. Schneider, 14 F.3d 876, 879 (3d Cir.
1994)); see also Zheng v. Gonzales, 422 F.3d 98, 116 (3d Cir.
2005) (expressly looking to the text and structure of a statute to
discern Congressional intent); M.A. ex rel. E.S. v.
State-Operated Sch. Dist. of the City of Newark, 344 F.3d 335,
348 (3d Cir. 2003) (it would be a mistake to “squint[ ]
myopically” at the phrase in question and interpret it in
isolation, rather than in the context of the “text and structure” of
the statute as a whole). The Supreme Court has consistently
endorsed this view as well. See, e.g., Alexander v. Sandoval,
532 U.S. 275, 289 n.7 (2001) (“interpretive inquiry begins with
the text and structure of the statute”); see also City of Rancho
Palos Verdes v. Abrams, 544 U.S. 113, 127 (2005) (Breyer, J.,
concurring) (“context, not just literal text, will often lead a court
to Congress’ intent in respect to a particular statute”).
Here, the text and structure of the statute suggest that an
offense must be an aggravated felony to be “particularly
serious.” For ease of reference, we repeat the text of 8 U.S.C.
§ 1231(b)(3)(B):
33
[A]n alien who has been convicted of an
aggravated felony (or felonies) for which the alien
has been sentenced to an aggregate term of
imprisonment of at least 5 years shall be
considered to have committed a particularly
serious crime. The previous sentence shall not
preclude the Attorney General from determining
that, notwithstanding the length of sentence
imposed, an alien has been convicted of a
particularly serious crime.
The second sentence, authorizing the Attorney General to
determine when a conviction is “particularly serious,” is clearly
tied to the first; it explicitly refers back to the “previous
sentence,” and accordingly implies that it is limited to
aggravated felonies. Cf. United States v. McLaughlin, 164 F.3d
1, 20 (D.C. Cir. 1998) (holding that “[b]y using the word ‘thus,’
the Court clearly linked its reference [in the second sentence] to
the previous sentence’s discussion”).
We therefore conclude that an offense must be an
aggravated felony in order to be classified as a “particularly
serious crime.” See Chong, 264 F.3d at 387 (describing
“particularly serious” determination in the context “where a
court has sentenced an alien to less than five years for an
aggravated felony”) (emphasis added); Afridi, 442 F.3d at 1220
n.4 (referring to the determination of “whether aggravated
felony convictions resulting in sentences of less than five years
are particularly serious crimes”) (emphasis added); Acero v.
INS, No. Civ. A. 04-1223 (DGT), 2005 WL 615744 *8 n.4
(E.D.N.Y. Mar. 16, 2005) (“Particularly serious crimes are a
34
subset of aggravated felonies, as defined by the statute.”).
2. Was Alaka’s offense an aggravated
felony?
Alaka alleges that the IJ’s conclusion that her conviction
was for an aggravated felony was incorrect. She asserts that the
IJ improperly relied on the sentencing report and used the wrong
loss amount in making his determination. While we conclude
that the IJ properly considered the factual findings in the
sentencing report, we agree with Alaka that the loss amount tied
to the dismissed charges was improperly considered as part of
the aggravated felony analysis.27
27
Our analysis does not track exactly the decision making
process of the IJ because of the manner in which Alaka’s case
unfolded. In an earlier hearing, the IJ concluded that Alaka had
been convicted of an aggravated felony, on the ground that the
intended loss was more than $10,000. His consideration of the
sentencing report was conducted in the context of the
“particularly serious” determination, not the aggravated felony
analysis. In other words, the IJ determined the loss amount was
over $10,000 in one context, and then addressed in detail the
question of multiple victims, multiple charges and the total loss
amount in a separate discussion of the “particularly serious”
nature of her conduct. We have imported the IJ’s consideration
of the sentencing memorandum from the “particularly serious”
discussion into the aggravated felony analysis because each
requires analysis of some of the same factors.
35
Alaka was convicted of violating 18 U.S.C. §§ 1344
(bank fraud) and 2 (aiding and abetting). Section 1344 states a
person is guilty of bank fraud if he or she
knowingly executes, or attempts to execute, a
scheme or artifice (1) to defraud a financial
institution; or (2) to obtain any of the moneys,
funds, credits, assets, securities, or other property
owned by, or under the custody or control of, a
financial institution, by means of false or
fraudulent pretenses, representations, or promises.
The INA defines “aggravated felony” to include an offense that
“involves fraud or deceit in which the loss to the victim or
victims exceeds $10,000.” 8 U.S.C. § 1101(a)(43)(M)(i).28
Alaka concedes that her bank fraud offense involves fraud, but
she challenges the IJ’s determination that the loss exceeded
$10,000.
When evaluating whether an offense is an aggravated
felony, we presumptively apply the categorical approach.
Francis v. Reno, 269 F.3d 162, 171 (3d Cir. 2001). This
approach prohibits consideration of evidence other than the
statutory definition of the offense, thus not taking into account
the particular facts underlying a conviction. Singh v. Ashcroft,
383 F.3d 144, 147-48 (3d Cir. 2004). However, “the formal
28
Section 1101(a)(43)(U) of the INA provides that the term
“aggravated felony” also includes “an attempt or conspiracy to
commit an offense described in (section 101(a)(43)).”
36
categorical approach properly may be abandoned . . . when the
terms of the statute on which removal is based invites inquiry
into the facts of the underlying conviction.” Knapik v. Ashcroft,
384 F.3d 84, 92 n.8 (3d Cir. 2004).
We have already determined that 8 U.S.C. §
1101(a)(43)(M)(i) invites further inquiry because it specifies a
mandatory loss amount. Nugent v. Ashcroft, 367 F.3d 162, 175
(3d Cir. 2004). Furthermore, our Court has held that “[t]he
record of conviction includes the indictment, plea, verdict, and
sentence.” Partyka v. Att’y Gen., 417 F.3d 408, 416 (3d Cir.
2005) (internal quotation marks and citations omitted). We may
also consider “any explicit factual findings by the trial judge.”
Shepard v. United States, 544 U.S. 13, 16 (2005). Thus, the IJ
did not err in examining the District Court’s factual findings as
articulated in the sentencing report.
That said, we hold it was legal error for the IJ to consider
the amount of intended loss for all of the charges rather than the
single count for which she was convicted.29 In reaching our
29
We review this question of law de novo, Ilchuk, 434 F.3d at
621, though not without considering whether the BIA’s or IJ’s
“interpretation and application of immigration law [are] subject
to deference under the principles of Chevron.” Paripovic v.
Gonzales, 418 F.3d 240, 244 n.4 (3d Cir. 2005). As our Court
has explained:
Under Chevron . . . we review an agency’s
construction of a statute it administers under a
two-step inquiry. If congressional intent is clear
37
conclusion, we find the opinions of our sister Circuit Courts
instructive. The Seventh, Ninth and Tenth Circuits have each
been faced with cases where, as here, the petitioner had pled
guilty to bank fraud in violation of 18 U.S.C. § 1344, the INS
argued that the offense was an aggravated felony under 8 U.S.C.
§ 1101(a)(43)(M)(I), and the court had to determine whether
conduct underlying dismissed charges could be considered in
deciding this issue. Knutsen v. Gonzales, 429 F.3d 733 (7th
Cir. 2005); Khalayleh v. INS, 287 F.3d 978 (10th Cir. 2002);
Chang v. INS, 307 F.3d 1185 (9th Cir. 2002). Our agreement
from the statute’s language, we must give effect
to it as written. If Congress’s intent is silent or
ambiguous, we must decide if the agency’s action
is based on a permissible construction of the
statute.
Knapik, 384 F.3d at 87 (internal quotation marks and citations
omitted). Thus deference is inappropriate when Congress has
“directly spoken to the precise question at issue.” Chevron, 467
U.S. at 842; see also Mendez-Reyes v. Att’y Gen., 428 F.3d 187,
191 (3d Cir. 2005). “If Congress has done so, the inquiry is at
an end; the court ‘must give effect to the unambiguously
expressed intent of Congress.’ ” FDA v. Brown & Williamson
Tobacco Corp., 529 U.S. 120, 132 (2000) (quoting Chevron,
467 U.S. at 843). As explained below, we find that 8 U.S.C. §
1101(a)(43)(M)(I) is unambiguous and we therefore need not
defer to the IJ’s interpretation. See Knutsen v. Gonzales, 429
F.3d 733, 736 (7th Cir. 2005) (holding that 8 U.S.C. §
1101(a)(43)(M)(I) is unambiguous); Khalayleh v. INS, 287 F.3d
978, 980 (10th Cir. 2002) (same); Chang v. INS, 307 F.3d
1185,1188 (9th Cir. 2002) (same).
38
with the analysis in these cases leads us to reach the following
conclusions.
First, “the plain and unambiguous language of the statute
. . . predicates removal on a convicted offense resulting in losses
greater than $10,000.” Knutsen, 429 F.3d at 736 (citing 8
U.S.C. §§ 1227(a)(2)(A)(iii), 1101(a)(43)(M)(I)) (emphasis in
original)). As the Seventh Circuit concluded, “[t]his plain
language forecloses inclusion of losses stemming from
unconvicted offenses.” Id. at 736-37; see also Chang, 307 F.3d
at 1190 (holding that “the $10,000 loss requirement” of 8 U.S.C.
§ 1101(a)(43)(M)(I) cannot be divorced from the “conviction
requirement”). A focus on the conduct that resulted in a
conviction is thus our analytical starting point.
Second, in light of the statute’s focus on a “conviction,”
it is the plea agreement that controls our analysis here. In other
words, because it is the plea agreement that establishes the
offense for which the defendant will be convicted, it is to that
agreement, and not the indictment or the sentence, that we look
in determining the intended loss. We find the logic of Chang
particularly persuasive on this point. In that case, Chang had
been charged with 14 counts of bank fraud, “each count
corresponding to a bad check that he allegedly passed.” 307
F.3d at 1187. In his plea agreement, Chang agreed that his
restitution should fall within the $20,000 to $40,000 range, and
he was ultimately ordered to pay over $32,000, an amount that
was based on “numerous other alleged fraudulent transactions
to which Chang did not plead guilty.” Id. at 1188. The
agreement, however, specified that Chang was pleading guilty
to a single count for which the loss to the victim was $605.30.
39
Id. at 1187. The Ninth Circuit concluded that
[t]he written plea agreement between Chang and
the government prevents the INS from treating
Chang’s bank fraud conviction as an aggravated
felony. The INS must take the plea agreement as
the agency finds it, and in this case, . . . [t]he text
of the plea agreement . . . definitively establishes
that the only offense of which Chang was
convicted falls about $9,400 shy of qualifying as
an aggravated felony.
Id. at 1190.
As the Seventh Circuit observed, Chang “supports the
basic and sensible proposition that courts should strive to honor
the contractual agreement reached between a defendant and the
government.” Knutsen, 429 F.3d at 739. This is particularly
true because
uncertainty on whether the loss amounts specified
in a plea agreement will control in subsequent
removal proceedings does not benefit either party.
Defendants may be less willing to enter into plea
agreements in light of the uncertainty of their
effect in any future immigration proceedings. As
a result, the government may be forced to expend
unnecessary time and resources litigating and
appealing cases that otherwise could have been
40
resolved through a plea agreement.
Id; see also Chang, 307 F.3d at 1192 (“Allowing an IJ or the
INS to rely on . . . dismissed counts to trump the loss amount
agreed to by both an alien defendant and the government in a
plea agreement would surely lead to sandbagging of many
non-citizen criminal defendants.”).
Similarly, in Knutsen, the petitioner had been indicted on
two counts of bank fraud, but pled guilty to only one, for which
the loss amount was $7,350. Id. at 735. The second count, with
a loss amount of $12,930.96, was dismissed. Id. For purposes
of the Sentencing Guidelines, Knutsen acknowledged that the
total loss from the offense of conviction and the related conduct
(which encompassed the facts of the dismissed charge) exceeded
$20,000, and he was ultimately ordered to pay more than
$22,000. Id. Despite Knutsen’s stipulation as to the total loss,
and the fact that the charges were crimes against a single victim,
the Seventh Circuit held that to be “consistent with the statute .
. . the court should focus narrowly on the loss amounts that are
particularly tethered to convicted counts alone,” and considered
only the loss amount tied to the convicted charge by the plea
agreement. Id. at 739-40. Because our consideration is limited
to the offense of conviction, we look only to the charges to
which the petitioner pled guilty, and not to conduct that was
neither admitted nor proven beyond a reasonable doubt.
An exception to the strict emphasis on the plea agreement
was articulated by the Tenth Circuit. Khalayleh, 287 F.3d at
980. There, the Court recognized that the loss amount for the
aggravated felony determination was limited to the offense of
41
conviction, and further noted that an order of restitution that
took unconvicted conduct into account was not necessarily
relevant to the loss calculation for immigration purposes. In that
case, however, the count to which the petitioner had pled guilty
“did not allege a discrete fraud . . . [but] alleged a scheme to
defraud that encompassed a number of checks.” Id. Put another
way, “the separate counts were essentially mirror images of one
another, and merely segmented the component acts of a larger
fraudulent scheme.” Knutsen, 429 F.3d at 737 (describing the
indictment in Khalayleh). Under those circumstances, the Court
used the amount of restitution ordered, over $24,000, to
conclude that the offense was an aggravated felony. Id.
We hold that on the facts before us the loss amount
relevant to Alaka’s aggravated felony determination is
$4,716.68 – the loss suffered by the victim of the count to which
Alaka pled guilty. That conclusion is not affected by the
District Court’s conclusion, for sentencing purposes, that
Alaka’s conduct as to the dismissed charges was “part of a
common scheme or plan as the offense of conviction.”
Allowing the loss calculated for sentencing purposes to
supersede the amount designated in the plea agreement “would
divorce the $10,000 loss requirement from the conviction
requirement, [citing 8 U.S.C. § 1227(a)(2)(A)(iii)], because
relevant conduct for sentencing purposes need not be admitted,
charged in the indictment, or proven to a jury.” Chang, 307
F.3d at 1190; see also Knutsen, 429 F.3d at 740 (as noted above,
holding that loss amount was not more than $10,000 when
petitioner stipulated “for purposes of sentencing” that the total
loss exceeded $20,000 but pled guilty to count with loss of
$7,350). We do not consider the loss charged in the indictment,
42
tabulated for restitution purposes, or calculated for sentencing;
we determine the loss amount as the “plea agreement spells it
out for us in black and white.” Chang, 307 F.3d at 1191
(holding that “although the plea agreement gave the district
court authority to order restitution with respect to all the checks
Chang wrote, it also specifically provided the amount to be
considered when determining the amount of loss for purposes of
the aggravated felony definition”).
Here, as was the case in Knutsen and Chang, Alaka
“unmistakably pled guilty only to [one count], and . . . the plea
agreement plainly documented that loss at [less than $10,000].”
Knutsen, 429 F.3d at 739; see also Chang, 307 F.3d at 1191
(“although the indictment can be read to allege a scheme as
well, the plea agreement narrows the scope of the indictment –
in particular, the relevant loss to the victim”). Therefore, Alaka
is not an aggravated felon because she has not been convicted of
an offense that resulted in a loss to the victim of more than
$10,000. Because her offense is not an aggravated felony, it
cannot be a “particularly serious crime,” and we accordingly
grant Alaka’s petition as it relates to her withholding of removal
claim.
3. Can dismissed charges be considered in
determining whether an offense was
“particularly serious”?
Our analysis of the aggravated felony conviction leads us
to conclude further that the IJ similarly erred as a matter of law
in considering the dismissed charges when determining whether
Alaka’s offense was “particularly serious.” The unambiguous
43
language of 8 U.S.C. § 1231(b)(3)(B)(ii) limits the IJ’s
consideration to deciding if the petitioner has been “convicted
by a final judgment of a particularly serious crime.” (emphasis
added). The plain meaning of § 1231(b)(3)(B)(ii) is that an
alien can only become ineligible for withholding of removal on
the basis of a “conviction.” As noted, if the “intent of Congress
is clear, both this Court and the agency must give effect to that
legislative intent.” Knutsen, 429 F.3d at 736 (citing Chevron,
467 U.S. at 842-43). We agree with the conclusion of the
Fourth Circuit Court of Appeals in Yousefi v. I.N.S., 260 F.3d
318, 229-30 (4th Cir. 2001), that “[w]e can find no authority for
the proposition that dismissed counts or crimes . . . may be
considered in determining whether a specific crime is a
particularly serious one.” (citing 8 U.S.C. § 1231(b)(3)(B)(ii)).
Thus, even if we had determined that the bank fraud offense was
an aggravated felony, we would still need to remand to the BIA
for reconsideration – without taking the dismissed charges into
account – of the “particularly serious crime” designation.
IV. Conclusion
The determination of Alaka’s offense as a “particularly
serious crime” is not a decision conferring unreviewable
discretion on the Attorney General. We therefore have
jurisdiction to hold that an offense must be an aggravated felony
to be considered a “particularly serious crime” and Alaka’s bank
fraud conviction was not an aggravated felony. Dismissed
charges ispo facto are not convictions, and thus are not taken
into account in either the aggravated felony or “particularly
serious crime” analysis.
44
We accordingly grant Alaka’s petition for review of her
withholding of removal claim, vacate the BIA’s decision insofar
as it affirmed the conclusion that she committed a “particularly
serious crime,” and remand to the BIA for proceedings
consistent with this opinion.
As we do not have jurisdiction to review the BIA’s
affirmance of the IJ’s determination that Alaka abandoned her
lawful permanent resident status and was ineligible for either §
212(c) relief or cancellation of removal, we dismiss her petition
for review of those claims.
45