Parikh v. Gonzales , 155 F. App'x 635 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-2072
ABHIJIT PARIKH,
Petitioner,
versus
ALBERTO R. GONZALES, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals. (A76-145-383)
Argued: September 19, 2005 Decided: November 18, 2005
Before SHEDD, Circuit Judge, HAMILTON, Senior Circuit Judge, and
Joseph R. GOODWIN, United States District Judge for the Southern
District of West Virginia, sitting by designation.
Petition for review denied by unpublished per curiam opinion.
ARGUED: Dean Edwards Wanderer, DEAN E. WANDERER & ASSOCIATES,
Fairfax, Virginia, for Petitioner. Carol Federighi, UNITED STATES
DEPARTMENT OF JUSTICE, Office of Immigration Litigation,
Washington, D.C., for Respondent. ON BRIEF: Peter D. Keisler,
Assistant Attorney General, M. Jocelyn Lopez Wright, Assistant
Director, UNITED STATES DEPARTMENT OF JUSTICE, Office of
Immigration Litigation, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Abhijit Parikh was admitted to the United States as a
conditional resident on June 2, 2000. J.A. 5, 91. In 2003,
following his conviction for six offenses associated with credit
card fraud, the Government initiated deportation proceedings
pursuant to 8 U.S.C. §§ 1227(a)(2)(A)(i) and (ii). The Immigration
Judge found that Parikh qualified for deportation under either
subsection and the Board of Immigration Appeals (BIA) affirmed.
J.A. 61, 209. Parikh appeals. As explained herein, we deny
Parikh’s petition for review.
I.
Abhijit Parikh, while a student at James Madison University,
fraudulently used a credit card to obtain goods from a Wal-Mart and
a Hess gas station on August 29, 2003. J.A. 7–18. Specifically,
he obtained milk, cigarettes, gas, an x-box video game system, and
several video games. J.A. 69. He pleaded guilty and was convicted
of two counts of credit card fraud, two counts of using a false
statement to obtain credit, and two counts of receiving goods via
credit card fraud. Petr.’s Br. 2. The two counts of credit card
fraud, in violation of Virginia Code section 18.2-195, are Class 1
misdemeanors that carry a maximum penalty of one year imprisonment.
J.A. 5.
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The Government instituted deportation proceedings and claimed
Parikh was subject to removal in two ways under the Immigration and
Nationality Act (INA). J.A. 3–6. The first was under section
237(a)(2)(A)(i) of the INA, which provides:
Any alien who is convicted of a crime involving moral
turpitude committed within five years after the date of
admission, and is convicted of a crime for which a
sentence of one year or longer may be imposed, is
deportable.
8 U.S.C. § 1227(a)(2)(A)(i) (2000). The Government also contended
that Parikh was subject to removal under section 237(a)(2)(A)(ii)
of the INA, which provides:
Any alien who at any time after admission is convicted of
two or more crimes involving moral turpitude, not arising
out of a single scheme of criminal misconduct, regardless
of whether confined therefor and regardless of whether
the convictions were in a single trial, is deportable.
8 U.S.C. § 1227(a)(2)(A)(ii) (2000). The Immigration Judge found
Parikh removable under either section. J.A. 61.
Parikh timely filed an appeal with the BIA. J.A. 69. While
the appeal was pending, however, the Virginia state court ruled on
a Petition for Writ of Error Corum Vobis that Parikh had filed.
J.A. 68–71. Parikh requested that the Virginia state court modify
his convictions to prevent deportation. He asserted he would not
have pleaded guilty to the original charges had he known he would
be deported. Petr.’s Br. 10. In his Petition, Parikh stated:
If the Petitioner, the Judge, or the Counsel for the
Petitioner had been aware of the future removal
requirement caused by their decisions, each could have
acted or advised differently as the consequences of
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deportation on the Petitioner and his family would have
far - far harsher effects than the sentence imposed.
J.A. 92. The state court chose to modify all of Parikh’s
convictions by changing each of them to convictions for making a
false statement to obtain credit in violation of Virginia Code
section 18.2-186(A), a Class 2 misdemeanor that carries a maximum
sentence of six months imprisonment. Va. Code Ann. 18.2-11 (2005).
Because the new convictions did not carry maximum penalties of one
year imprisonment, Parikh filed a motion to remand with the BIA in
addition to the direct appeal. J.A. 182–83.
The BIA was unpersuaded by Parikh’s argument that the vacated
convictions had no effect. The BIA explained that the state
court’s decision to vacate the original convictions had no effect
on the immigration proceedings because the original convictions
were vacated "for reasons unrelated to the merits of the underlying
criminal proceedings." J.A. 209. Because Parikh failed to
identify any procedural or substantive defects in the underlying
criminal proceedings, he remained "convicted" for immigration
purposes. J.A. 209. The BIA affirmed the Immigration Judge’s
ruling that Parikh was deportable under either section. This
appeal followed.
II.
The court has jurisdiction to review the petition to the
extent it raises constitutional claims or questions of law. 8
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U.S.C. § 1252(a)(2)(D). Because Parikh’s petition raises legal
issues, specifically the nature of his convictions, this court has
jurisdiction to review Parikh’s petition for removal. This court
agrees with the Immigration Judge and the BIA’s findings that
Parikh is removable under either section.
A.
First, Parikh is removable under section 237(a)(2)(A)(i).
Parikh’s vacated convictions, which carry maximum penalties of
imprisonment of at least one year, still govern for immigration
purposes. The substituted convictions that have maximum penalties
of six months imprisonment do not govern this review.
If an alien’s conviction is vacated because of a defect in the
underlying criminal proceedings, the BIA has ruled that the alien
is no longer "convicted" as defined by the Illegal Immigration
Reform and Immigrant Responsibility Act (IIRIRA).1 J.A. 209. The
1
In 1996, Congress passed the IIRIRA, which provided a
definition of "conviction" for immigration purposes. 8 U.S.C.
§ 1101(a)(48)(A) (2000). According to the statute, an alien is
"convicted" when a court enters a formal judgment of guilt against
him. Id. This definition, however, does not explain the effect of
an order entered after the conviction that substitutes a new
sentence. As a result, the BIA’s interpretation of the statute
will govern if it is reasonable. See Chevron v. Natural Res. Def.
Council, Inc., 467 U.S. 837, 843 (1984) ("[I]f the statute is
silent or ambiguous with respect to the specific issue, the
question for the court is whether the agency’s answer is based on
a permissible construction of the statute."). Immigration law’s
highly complex regulatory scheme makes deference in this area
"particularly apropos." Pauley v. Bethenergy Mines, Inc., 501 U.S.
680, 697 (1991).
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alien, however, remains "convicted" for immigration purposes if the
original conviction is vacated for reasons not related to the
merits of the underlying criminal proceedings. In re Pickering, 23
I. & N. Dec. 621, 624 (BIA 2003). The BIA has explained that
"there is a significant distinction between convictions vacated on
the basis of a procedural or substantive defect in the underlying
proceedings and those vacated because of post-conviction events,
such as rehabilitation or immigration hardships." Id.As the Tenth Circuit recently explained, the treatment of
vacated convictions is well settled. Cruz-Garza v. Ashcroft, 396
F.3d 1125, 1129 (10th Cir. 2005). Courts considering this issue
have deferred to the BIA’s approach.2 This court joins its sister
circuits in finding the BIA’s approach reasonable and entitled to
Chevron deference.
2
Herrera-Inirio v. INS, 208 F.3d 299, 304-06 (1st Cir. 2000);
Acosta v. Ashcroft, 341 F.3d 218, 225 (3d Cir. 2003); Gill v.
Ashcroft, 335 F.3d 574, 578 (7th Cir. 2003); Ikenokwalu-White v.
INS, 316 F.3d 798, 804 (8th Cir. 2003); Cruz-Garza, 396 F.3d at
1128-29; Resendiz-Alcaraz v. U.S. Atty. Gen., 383 F.3d 1262,
1270-71 (11th Cir. 2004).
The only courts that have not deferred to the BIA’s approach
are the Fifth Circuit, which has adopted a narrower reading of
"conviction," Renteria-Gonzalez v. INS, 322 F.3d 804, 812-13 (5th
Cir. 2002) (allowing removal even if the vacated conviction was
vacated on grounds relating to the merits of the underlying
criminal proceeding), and the Ninth Circuit, which originally found
the BIA’s approach "highly unpersuasive," Lujan-Armendariz v. INS,
222 F.3d 728, 742 (9th Cir. 2000), but is now more in line with
other courts. Murillo-Espinoza v. INS, 261 F.3d 771, 774 (9th Cir.
2001) (finding the BIA’s approach to be a "permissible construction
of the statute”).
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In this case, the BIA found that the only evidence in the
record indicating the basis for vacating Parikh’s original
convictions was his Petition for Writ of Error Corum Vobis. J.A.
209. In the Petition, Parikh states he did not know that pleading
guilty to the charges he faced would trigger deportation
proceedings. J.A. 90-93. Parikh does not challenge the underlying
substance of his conviction or sentence. In fact, in his Petition,
Parikh states, "It is clear that the sentence imposed by the Judge
was appropriate but not a sever[e] one." J.A. 92. Parikh failed
to offer any evidence that he was challenging the substance of the
underlying criminal proceedings, which caused the BIA to conclude
that his original convictions were vacated solely for immigration
hardships. J.A. 209. Therefore, the original convictions remain
convictions for the purposes of this proceeding and make Parikh
removable under section 237(a)(2)(A)(i). J.A. 209.
B.
Parikh also is removable under section 237(a)(2)(A)(ii)
because he received multiple convictions for crimes of moral
turpitude that did not arise out of a single scheme of criminal
misconduct. The BIA has interpreted this section’s reference to
conduct not arising from a single scheme "to mean when an alien has
performed an act, which, in and of itself, constitutes a complete,
individual, and distinct crime, he is deportable when he again
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commits such an act, even though one may closely follow the other,
be similar in character, and even be part of an overall plan of
criminal misconduct." In re Adetiba, 20 I. & N. Dec. 506, 509–11
(BIA 1992). This court has accepted the BIA’s interpretation of
this subsection as reasonable and controlling. Akindemowo v. INS,
61 F.3d 282, 286 (4th Cir. 1995).
The fact that all of Parikh’s convictions cover conduct
occurring on the same day is irrelevant. One set of the
convictions arises from Parikh’s fraud upon a Hess gas station and
the other set arises from his fraud upon Wal-Mart. The presence of
separate victims supports a finding that the offenses did not
constitute a single scheme of conduct. See id. at 287 (finding
fraudulent checks made out to separate victims weighed against
single scheme). The presence of separate convictions, the
existence of an opportunity to reflect upon one crime before
committing another, and the existence of a time period between the
two offenses also weigh against finding that the offenses
constituted a single scheme. Id. In this case, Parikh received
separate convictions and some time elapsed between the fraud on
Wal-Mart and the fraud on the gas station. The court agrees with
the Immigration Judge and the BIA in finding that Parikh was
convicted of multiple offenses of moral turpitude not arising from
a single scheme.
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III.
While Parikh’s appeal was pending with the BIA, he also
submitted an application for a waiver of inadmissibility pursuant
to section 212(h) of the INA. J.A. 209. The BIA found Parikh
ineligible for a waiver of inadmissibility because he had not
accrued seven years of lawful residence in the United States. The
BIA also noted that the waiver application was not accompanied by
a fee receipt, a fee waiver, or an approved Form I-130 establishing
he had an immigrant visa immediately available. J.A. 209. This
court finds that the BIA did not err in denying Parikh’s request
for a waiver of inadmissibility.
IV.
Accordingly, the court denies Parikh’s petition for review
because Parikh is removable under section 237(a)(2)(A)(i) or
237(a)(2)(A)(ii) of the INA. The court also finds that the BIA did
not err in denying his request for a waiver of inadmissibility
under section 212(h).
PETITION FOR REVIEW DENIED
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