Chun Yu Zhao v. Attorney General United States , 646 F. App'x 175 ( 2016 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 14-4792
_____________
CHUN YU ZHAO,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
_____________
On Petition for Review of an Order
of the Board of Immigration Appeals
(Agency No. A098-359-673)
Immigration Judge: Andrew Arthur
______________
Submitted Under Third Circuit L.A.R. 34.1(a)
January 29, 2016
______________
Before: VANASKIE, SHWARTZ, and RESTREPO, Circuit Judges.
(Opinion Filed: April 5, 2016)
______________
OPINION*
______________
VANASKIE, Circuit Judge.
Petitioner Chun Yu Zhao challenges a removal order issued by an Immigration
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
Judge (“IJ”) and affirmed by the Board of Immigration Appeals (“BIA”). She contends
that her status as a naturalized United States citizen at the time of her federal felony
convictions insulates her from being deported. Because the BIA did not err in holding
that Zhao’s post-conviction denaturalization rendered her amenable to removal for the
commission of an aggravated felony, we will deny Zhao’s petition for review.
I.
We write primarily for the parties, who are familiar with the facts and procedural
history of this case. Accordingly, we set forth only those matters essential to our
analysis.
Zhao is a native of the People’s Republic of China. She entered the United States
as a visitor and later adjusted her status to lawful permanent resident in April of 2005
based upon her marriage to David Cone, a United States citizen. In September of 2008,
Zhao was naturalized as a United States citizen based upon that marriage. Two years
later, she and her husband were indicted in the United States District Court for the
Eastern District of Virginia on charges relating to the importation and sale of purportedly
counterfeit computer network systems. Zhao was also charged with improperly obtaining
naturalization in violation of 18 U.S.C. § 1425. Zhao pled not guilty and the case
proceeded to a jury trial in May of 2011. The jury convicted Zhao on a number of
charges, including unlawfully procuring naturalization, in violation of 18 U.S.C. § 1425,
and trafficking in counterfeit goods and labels, in violation of 18 U.S.C. § 2320. On
2
September 9, 2011, the District Court sentenced Zhao to five years’ imprisonment and
ordered restitution in the amount of $2.7 million.1
The criminal judgment set in motion a number of immigration-related
consequences. Five days after imposing the sentence, the District Court, based upon the
jury’s verdict that Zhao was guilty of unlawfully procuring her naturalization, issued an
order cancelling Zhao’s naturalization pursuant to 8 U.S.C. § 1451(e).2 The September
14, 2011 order declared Zhao’s naturalization void ab initio, asserting that Zhao “is not
now, and has never been, a United States citizen.” A.R. 495. The Order further provided
that Zhao “is forever restrained and enjoined from claiming any rights, privileges or
1
Zhao appealed her judgment of conviction. The United States Court of Appeals
for the Fourth Circuit, on April 15, 2013, affirmed in part and vacated in part Zhao’s
convictions. United States v. Cone, 714 F.3d 197 (4th Cir. 2013). While two counts of
conviction were vacated, significantly, the Court of Appeals’ decision left undisturbed
Zhao’s convictions for trafficking in counterfeit goods and unlawfully procuring her
naturalization. On remand for resentencing, the District Court reduced Zhao’s prison
term from 60 months to time served, approximately 40 months, and reduced the
restitution amount to $2.1 million.
2
Section 1451(e) of Title 8 U.S.C. provides:
When a person shall be convicted under section 1425 of title 18 of
knowingly procuring naturalization in violation of law, the court in
which such conviction is had shall thereupon revoke, set aside, and
declare void the final order admitting such person to citizenship, and
shall declare the certificate of naturalization of such person to be
canceled. Jurisdiction is conferred on the courts having jurisdiction of
the trial of such offense to make such adjudication.
3
advantages under any document which evidences United States citizenship and which
was obtained as a result of her unlawful naturalization.” Id.3
On December 23, 2013, Zhao was served with a Notice to Appear, charging her
with being subject to removal from the United States under 8 U.S.C. § 1227(a)(2)(A)(ii),
for having been convicted of two crimes involving moral turpitude not arising out of a
single scheme of criminal conduct, and under 8 U.S.C. § 1227(a)(2)(A)(iii), for having
been convicted of an aggravated felony. The IJ reviewing her case ordered her removal
under both statutory provisions. In ordering her removal, the IJ rejected Zhao’s argument
that she was not subject to removal because she was a United States citizen when she was
convicted of the removable offenses. Zhao’s argument rested heavily upon Costello v.
INS, 376 U.S. 120 (1964), which held that the petitioner in that case could not be
removed based upon convictions that were obtained after he was naturalized but before
his naturalization was canceled. The IJ found that Costello was limited to its peculiar
facts, as recognized by the BIA in Matter of Rossi, 11 I. & N. Dec. 514 (BIA 1966), and
Matter of Gonzalez-Muro, 24 I. & N. Dec. 472 (BIA 2008), which affirmed the removal
of aliens even though they were naturalized citizens of the United States when they were
convicted of removable offenses.
3
Following Zhao’s resentencing, the District Court granted Zhao’s “Unopposed
Motion to Vacate and Reenter Order Canceling Certificate of Naturalization Nunc Pro
Tunc to December 16, 2013,” A.R. 190, and that Order was reentered as of December 16,
2013, the date the amended judgment of conviction was filed.
4
The BIA agreed with the IJ’s assessment of Costello as well as the IJ’s conclusion
that Zhao’s case is governed by Rossi and Gonzalez-Muro. Observing that Zhao had
been convicted of unlawfully obtaining naturalization in violation of 18 U.S.C. § 1425and that her naturalization certificate had been declared void ab initio, the BIA stated that
“[i]t follows then, that [Zhao’s] fraudulently obtained status would not protect her from
any future immigration consequences.” A.R. 4 (citing Monet v. INS, 791 F.2d 752, 754–
55 (9th Cir. 1986)). The BIA, citing our decision in Park v. Attorney General, 472 F.3d
66 (3d Cir. 2006), also concluded that Zhao’s convictions for trafficking in counterfeit
goods in violation of 18 U.S.C. § 2320 were aggravated felonies for which she was
removable under 8 U.S.C. § 1227(a)(2)(A)(iii). Accordingly, the BIA dismissed Zhao’s
appeal. This petition for review followed.
II.
We have jurisdiction to review final decisions of the BIA under 8 U.S.C. §
1252(a)(1). We review the BIA’s factual findings for substantial evidence and the BIA’s
legal determinations de novo. See Demandstein v. Att’y Gen., 639 F.3d 653, 655 (3d Cir.
2011).
III.
Section 1227(a)(2)(A)(iii) of Title 8 U.S.C. provides that “[a]ny alien who is
convicted of an aggravated felony at any time after admission is deportable.” The term
“alien” is defined in 8 U.S.C. § 1101(a)(3) as “any person not a citizen or national of the
United States.” Zhao falls within the definition of “alien” as a consequence of the
5
cancellation of her certificate of naturalization. Zhao, relying upon Costello, argues that
her removal is precluded because, like Costello, she was a naturalized United States
citizen when she was convicted of removable offenses and only later had her
naturalization certificate declared void ab initio. We disagree with Zhao’s reading of
Costello, and instead agree with the BIA that Costello is distinguishable from this case.
Costello addressed the question of whether a naturalized citizen could be deported
for crimes committed after his naturalization. See Costello, 376 U.S. at 121. The Court
held that the statute was subject to two equally plausible readings, one permitting
deportation regardless of previous naturalization, based on a person's status as an alien at
the time of removal, the other requiring a person to have been an alien at the time of
conviction. Id. at 124-25. Because the statutory language was subject to multiple
interpretations, the Supreme Court relied heavily on the fact that the statutory scheme
considered in Costello contained an important restriction on the deportation of an alien
convicted of crimes involving moral turpitude. At the time of Costello’s conviction,
Section 241(b)(2) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1251(b)(2)
(repealed), provided that an alien convicted of crimes involving moral turpitude could not
be deported if “the court sentencing such alien for such crime[s] shall make, at the time
of first imposing judgment or passing sentence, or within thirty days thereafter, a
recommendation . . . that such alien not be deported.” Costello, 376 U.S. at 126-27.
Costello could not seek such a judicial recommendation against deportation, known as a
“JRAD,” because he was a United States citizen when he was convicted of deportable
6
offenses. Id. at 126–27. Indeed, unlike Zhao, he was not prosecuted for having
improperly procured his naturalization as part of the income tax evasion prosecution that
formed the basis for the deportation proceedings. And unlike Zhao, Costello was not
denaturalized at the time that the judgment of conviction was entered or within thirty
days thereafter.4 The Court reasoned that Costello’s naturalization “put him in a much
more disadvantageous position than he would have occupied if he had never acquired a
naturalization certificate at all.” Id. at 131. Finding this result to be incongruous, the
Court held that Costello could not be deported because he had not been able to request a
JRAD, “a procedure so intrinsic a part of the legislative scheme.” Id. at 128.
Two years after Costello was decided, the BIA, in Matter of Rossi, considered a
deportation order of a person who, like Costello and Zhao, was a naturalized citizen when
he was convicted of a removable offense and later was denaturalized. 11 I. & N. Dec. at
514-15. Also like Zhao, but unlike Costello, Rossi, having been convicted of drug
trafficking charges, was not entitled to seek a JRAD. Id. at 517. Thus, Rossi did not
suffer the same disadvantage as did Costello. On this basis, the BIA concluded that
Costello was not controlling and Rossi could be deported even though he was convicted
years before he was denaturalized. Id.
More recently, in Matter of Gonzalez-Muro, the BIA reaffirmed its position that
“Costello was ‘primarily predicated on the provisions of section 241(b) [of the
4
Costello’s certificate of naturalization was cancelled approximately five years
after his conviction for income tax evasion and approximately three years after the
Supreme Court affirmed his conviction. Costello, 376 U.S. at 121.
7
Immigration and Nationality Act, 8 U.S.C. § 1251(b)] and the fact that Costello, being a
naturalized citizen at the time of his convictions, was deprived of any opportunity of
requesting the sentencing court to recommend against his deportation.’” 24 I. & N. Dec.
at 473 (quoting Matter of Rossi, 11 I. & N. Dec. at 515-16). Because Gonzalez-Muro, a
naturalized citizen at the time of his conviction of a removable offense, “could not have
obtained a valid recommendation against deportation at the time that he was convicted,”
id., he could not avail himself of the limited holding in Costello.
As in Rossi and Gonzalez-Muro, Zhao was not entitled to seek a JRAD at the time
of her conviction because the provision of the INA the Supreme Court relied upon in
Costello no longer exists. Accordingly, Costello is not applicable. We agree, as the BIA
has recognized for 50 years, that Costello rested on the fact that the petitioner was
unfairly deprived of the opportunity to seek a JRAD. When that fact is removed, there is
no impediment to the removal of an alien who has been denaturalized simply because she
was a naturalized citizen when she was convicted of a removable offense. Because there
was no possibility of a JRAD here, the BIA properly applied its precedent in Rossi and
distinguished the facts of this case from Costello to find that Zhao is subject to being
removed as a consequence of the cancellation of her certificate of naturalization.5
5
Zhao’s post-conviction collateral attack on her conviction for unlawfully
procuring naturalization in violation of 18 U.S.C. § 1425 was rejected by the District
Court. See United States v. Zhao, Nos. 1:14-cv-1787 (GBL) and 1:10-cr-317 (GBL),
2015 WL 4523487 (E.D. Va. July 23, 2015). The United States Court of Appeals for the
Fourth Circuit declined to issue Zhao a certificate of appealability. See United States v.
Zhao, No. 15-7493, ___ Fed. App’x ___, 2016 WL 519095 (4th Cir. Feb. 10, 2016).
8
The BIA also properly followed our decision in Park to conclude that Zhao’s
conviction on two counts of trafficking in counterfeit goods and labels in violation of 18
U.S.C. § 2320 qualified as aggravated felonies for purposes of ordering her removal
pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii).6 Zhao concedes that Park necessitates a
finding that convictions under 18 U.S.C. § 2320 constitute aggravated felonies under 8
U.S.C. § 1101(a)(43)(R) for the purpose of being removable under 8 U.S.C. §
1227(a)(2)(A)(iii), but contends that Park was wrongly decided. Zhao has preserved her
challenge to Park for purposes of en banc or Supreme Court consideration, but we must
follow it here. See In re Lemington Home for the Aged, 659 F.3d 282, 294 n.6 (3d Cir.
2011) (noting that a panel of our Court is bound by a prior published opinion of another
panel). Thus, because, as we explained above, Zhao was an alien at the time that she was
convicted under 18 U.S.C. § 2320, we must conclude that she is removable pursuant to 8
U.S.C. § 1227(a)(2)(A)(iii).7
6
The INA provides that “offense[s] relating to commercial bribery, counterfeiting,
forgery, or trafficking in vehicles the identification numbers of which have been altered
for which the term of imprisonment is at least one year” qualify as aggravated felonies. 8
U.S.C. §1101(a)(43)(R). In Park, we held that convictions under 18 U.S.C. § 2320necessarily constitute aggravated felonies under section 1101(a)(43)(R) because such
convictions “relat[e] to counterfeiting.” 472 F.3d at 72.
7
In light of this determination, we decline Zhao’s request to address the IJ’s
determination that she is also removable under 8 U.S.C. § 1227(a)(2)(A)(ii) for having
committed crimes involving moral turpitude. Indeed, it is not readily apparent that we
have jurisdiction to address that question. The BIA noted that Zhao had not
“meaningfully contested the [IJ’s] finding that she is also removable under [8 U.S.C.
§1227(a)(2)(A)(ii)] for having committed two or more crimes of moral turpitude not
arising out of a single scheme of criminal misconduct.” A.R. 5. If the BIA is correct that
9
IV.
For the reasons set forth herein, we hold that Zhao is deportable under 8 U.S.C. §
1227(a)(2)(A)(iii). Accordingly, we will deny her petition for review of the BIA’s order
dismissing her appeal and authorizing her removal from the United States.8
Zhao did not properly raise such arguments before it, the issue would not be exhausted
and would not be subject to review by this Court. See 8 U.S.C. § 1252(d)(1);
Abdulrahman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir. 2003). Even if Zhao had
properly raised the issue before the BIA, we would still be precluded from considering
her alternative arguments, because we must review the BIA's decision solely on the
grounds it used, and are "powerless to decide in the first instance issues that [the BIA]
does not reach." Konan v. Att'y Gen., 432 F.3d 497, 501 (3d Cir. 2005). In any event,
because we do not need to reach the question of Zhao’s deportability under 8 U.S.C. §
1227(a)(2)(A)(ii), we need not reach the question of whether this issue was properly
exhausted.
8
Because we are denying the petition for review, the Government's motion to
remand this case to the BIA and its motion to expedite consideration of its motion to
remand are moot.
10