Maniar v. Garland ( 2021 )

Case: 18-60667 Document: 00515869853 Page: 1 Date Filed: 05/20/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
May 20, 2021
No. 18-60667
Lyle W. Cayce
Clerk
Rajen Maniar,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A098 275 719
Before Barksdale, Elrod, and Ho, Circuit Judges.
James C. Ho, Circuit Judge:
The Board of Immigration Appeals (BIA) determined that Rajen
Maniar is removable from the United States for having committed an
aggravated felony under 8 U.S.C. § 1101(a)(43)(U). That provision defines
“aggravated felony” to include, inter alia, any “attempt or conspiracy to
commit an offense” enumerated in § 1101(a)(43). Maniar claims that the
BIA erred because, he contends, § 1101(a)(43)(U) requires proof of an overt
act in furtherance of the conspiracy. But we need not decide that question,
because we conclude that Maniar’s conviction for conspiracy to commit
money laundering plainly constitutes an aggravated felony under
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§ 1101(a)(43)(D). And his remaining contentions are either meritless or
unexhausted. Accordingly, the petition for review is denied in part and
dismissed in part.
I.
Maniar lawfully entered the United States on an H1B visa. In 2017,
he pleaded guilty to three federal offenses—including conspiracy to commit
money laundering in violation of 18 U.S.C. § 1956(h)—and was ordered to
pay over $26 million in restitution. He served just one month of
imprisonment as a result of his cooperation with the United States
Attorney’s office.
The government then initiated removal proceedings against Maniar.
The immigration judge (IJ) found Maniar removable under the Immigration
and Nationality Act (INA) because he was “convicted of an aggravated
felony.” 8 U.S.C. § 1227(a)(2)(A)(iii). Specifically, the IJ determined that
Maniar had committed an aggravated felony as defined in
(1) § 1101(a)(43)(D) (an offense described in 18 U.S.C. §§ 1956–57 involving
more than $10,000); (2) § 1101(a)(43)(M) (a crime of fraud, deceit, or tax
evasion involving more than $10,000); and (3) § 1101(a)(43)(U) (an
“attempt or conspiracy to commit an offense described in this paragraph”).
In finding Maniar removable under the conspiracy provision, the IJ
rejected Maniar’s argument that § 1101(a)(43)(U) covers only convictions
that required proof of an overt act in furtherance of the conspiracy. Cf.
Whitfield v. United States, 543 U.S. 209, 211 (2005) (holding that a conviction
for conspiracy to commit money laundering in violation of 18 U.S.C.
§ 1956(h) does not require proof of an overt act). In short, the IJ determined
that it is irrelevant that Maniar’s crime did not require proof of an overt act—
it’s still an aggravated felony under 8 U.S.C. § 1101(a)(43)(U).
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Maniar then attempted to avoid removal by adjusting his immigration
status. As part of that process, Maniar sought to obtain a waiver of
inadmissibility under 8 U.S.C. § 1182(h). But the IJ determined that Maniar
is inadmissible under § 1182(a)(2)(I)(ii)—which covers “a knowing . . .
conspirator . . . with others in an offense . . . described in [18 U.S.C. § 1956or § 1957]”—and that waivers are not available for aliens who are
inadmissible on those grounds.
While his appeal was pending before the BIA, Maniar filed two
additional motions. First, he moved to terminate his removal proceedings on
the ground that his notice to appear was defective under Pereira v. Sessions,
138 S. Ct. 2105 (2018). Second, he moved to acquire the transcripts of all the
hearings related to his removal proceedings.
The BIA ruled that Maniar’s 18 U.S.C. § 1956(h) conviction is an
aggravated felony under the conspiracy definition of 8 U.S.C.
§ 1101(a)(43)(U), agreeing with the IJ that § 1101(a)(43)(U)—like 18 U.S.C.
§ 1956(h)—does not require proof of an overt act in furtherance of the
conspiracy. The BIA also affirmed the IJ’s conclusion that Maniar is
ineligible for a waiver of inadmissibility, declined to terminate the
proceedings under Pereira, and ruled that all of the allegedly non-transcribed
hearings had in fact been continued. Maniar petitions this court for review.
II.
A.
“We must begin by determining whether we have jurisdiction to
review the BIA’s decision.” Rodriguez v. Holder, 705 F.3d 207, 210 (5th Cir.
2013) (quoting Nehme v. INS, 252 F.3d 415, 420 (5th Cir. 2001)). The
government claims that we lack jurisdiction to consider Maniar’s petition
under the “criminal alien review bar” of 8 U.S.C. § 1252(a)(2)(C). That
provision generally “limits the scope of [judicial] review [of a final order of
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removal] where the removal rests upon the fact that the alien has committed
certain crimes, including aggravated felonies.” Guerrero-Lasprilla v. Barr,
140 S. Ct. 1062, 1067 (2020).
But another provision of the INA expressly “permits judicial review
of ‘constitutional claims or questions of law.’” Id. at 1071 (quoting 8 U.S.C.
§ 1252(a)(2)(D)). See also Nasrallah v. Barr, 140 S. Ct. 1683, 1690 (2020)
(explaining that, in cases “involving noncitizens convicted of [certain]
crimes,” “a court of appeals may review constitutional or legal challenges to
a final order of removal, but . . . not . . . factual challenges”).
We have previously held that “whether a conviction qualifies as an
aggravated felony” is a “question[] of law.” Shroff v. Sessions, 890 F.3d 542,
544 (5th Cir. 2018). And that is precisely the type of question presented
here—whether Maniar has committed an aggravated felony under 8 U.S.C.
§ 1101(a)(43)(U). Accordingly, we have statutory jurisdiction over this
claim.
B.
We decline to answer Maniar’s legal question, however. For it does
not ultimately matter whether Maniar has committed an aggravated felony
under 8 U.S.C. § 1101(a)(43)(U). That is because he has clearly committed
an aggravated felony under § 1101(a)(43)(D).
Section 1101(a)(43)(D) defines “aggravated felony” to include those
offenses that are “described in section 1956 of Title 18 (relating to laundering
of monetary instruments) . . . if the amount of funds exceeded $10,000.”
That provision easily applies here. Maniar pleaded guilty to conspiracy to
commit money laundering in violation of 18 U.S.C. § 1956(h), and the funds
involved well exceeded $10,000. A § 1956(h) violation is obviously “an
offense described in section 1956 of Title 18.” 8 U.S.C. § 1101(a)(43)(D).
Accordingly, Maniar is removable because he has committed an “aggravated
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felony” under the plain language of § 1101(a)(43)(D). See id.
§ 1227(a)(2)(A)(iii) (“Any alien who is convicted of an aggravated felony at
any time after admission is deportable.”).
C.
Maniar contends that, because the BIA based its conclusion on
§ 1101(a)(43)(D) in conjunction with § 1101(a)(43)(U), we would violate the
Chenery doctrine if we were to base our decision solely on § 1101(a)(43)(D),
as we do today.
It is a “foundational principle of administrative law that a court may
uphold agency action only on the grounds that the agency invoked when it
took the action.” Michigan v. EPA, 576 U.S. 743, 758 (2015) (citing SEC v.
Chenery Corp. (Chenery I), 318 U.S. 80, 87 (1943)). We have accordingly
recognized that “[w]e may usually only affirm the BIA on the basis of its
stated rationale.” Luna-Garcia v. Barr, 932 F.3d 285, 291 (5th Cir. 2019)
(emphasis added). See also Kwon v. INS, 646 F.2d 909, 916 (5th Cir. 1981)
(en banc) (citing SEC v. Chenery Corp. (Chenery II), 332 U.S. 194 (1947)).
But our circuit precedents have made clear that this rule is not
absolute, at least in the immigration context. See Luna-Garcia, 932 F.3d at
291. (“[I]n certain circumstances, there may be limited exceptions to this
rule.”). Indeed, “[e]ven if there is a reversible error in the BIA’s analysis,
affirmance may be warranted ‘where there is no realistic possibility that[] . . .
the . . . BIA would have reached a different conclusion.’” Id. (quoting
Enriquez-Gutierrez v. Holder, 612 F.3d 400, 407 (5th Cir. 2010)). See also
Nguhlefeh Njilefac v. Garland, 992 F.3d 362, 365 (5th Cir. 2021) (“[E]ven if
the [BIA] erred at some point in its analysis, we can still uphold its ultimate
decision if there is no realistic possibility that [its] conclusion would have
been different absent the error.”) (quotations omitted). As the Supreme
Court has observed, “[t]o remand would be an idle and useless formality.
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Chenery does not require that we convert judicial review of agency action into
a ping-pong game.” Morgan Stanley Cap. Grp. v. Pub. Util. Dist. 1 of
Snohomish Cnty., 554 U.S. 527, 545 (2008) (quoting NLRB v. Wyman-Gordon
Co., 394 U.S. 759, 766 n.6 (1969) (plurality opinion)).
Maniar committed an aggravated felony under the plain language of
§ 1101(a)(43)(D). We find “no realistic possibility that the BIA would reach
another outcome than to dismiss [Maniar’s] appeal.” Luna-Garcia, 932 F.3d
at 292. “Accordingly, we . . . deny [Maniar’s] petition for review on th[is]
alternative ground[].” Id.1
III.
The remainder of Maniar’s claims are either meritless or
unexhausted.
First, Maniar disputes the BIA’s determination that he is ineligible for
an adjustment of status, arguing that he is eligible to receive a waiver of
inadmissibility under 8 U.S.C. § 1182(h).
The Attorney General may adjust the status of an alien, but only if the
alien is “admissible . . . for permanent residence.” 8 U.S.C. § 1255(a). And
“[a]ny alien . . . who . . . the Attorney General knows . . . has been[] a knowing
1
Of course, if the meaning of the statutory terms were at all in doubt, we would be
obliged to allow the agency an opportunity to interpret the statute in the first instance. See
Negusie v. Holder, 555 U.S. 511, 517 (2009) (explaining that “[w]hen the BIA has not spoken
on ‘a matter that statutes place primarily in agency hands,’” such as the interpretation of
“ambiguous statutory terms,” the “ordinary rule is to remand to ‘giv[e] the BIA the
opportunity to address the matter in the first instance in light of its own expertise’”)
(quoting INS v. Orlando Ventura, 537 U.S. 12, 16–17 (2002) (per curiam)). Cf. Pereira, 138
S. Ct. at 2113 (explaining that a court “need not resort to Chevron deference” when
“Congress has supplied a clear and unambiguous answer to the interpretive question at
hand”).
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aider, abettor, assister, conspirator, or colluder . . . in an offense described
in [18 U.S.C. § 1956 or § 1957] . . . is inadmissible.” Id. § 1182(a)(2)(I)(ii).
Maniar responds that the Attorney General may “waive the
application” of certain inadmissibility provisions—“subparagraphs
(A)(i)(I), (B), (D), and (E) of subsection (a)(2) and subparagraph (A)(i)(II).”
Id. § 1182(h). But noticeably absent from this list of waivable provisions is
subparagraph (I)(ii) of subsection (a)(2).
Maniar nevertheless insists he cannot be inadmissible under
§ 1182(a)(2)(I)(ii) because that provision—unlike 18 U.S.C. § 1956(h)—
allegedly requires proof of an overt act in furtherance of the conspiracy.
Whatever the merits of this argument may be, we lack jurisdiction to
consider it. This court may review final orders of removal “only if . . . the
alien has exhausted all administrative remedies.” 8 U.S.C. § 1252(d). And
“[a]n alien fails to exhaust his administrative remedies” when he does not
raise an issue “in the first instance before the BIA.” Wang v. Ashcroft, 260
F.3d 448, 452–53 (5th Cir. 2001).
Here, Maniar failed to alert the BIA to his “overt act” challenge to
the IJ’s determination that he is statutorily ineligible for a waiver of
inadmissibility—even though he raised a very similar argument in response
to the IJ’s separate determination that he is statutorily removable. Thus,
Maniar failed to exhaust his administrative remedies and we lack jurisdiction.
Vazquez v. Sessions, 885 F.3d 862, 868 (5th Cir. 2018) (“The exhaustion
requirement is statutorily mandated; ‘an alien’s failure to exhaust his
administrative remedies serves as a jurisdictional bar to our consideration of
the issue.’”) (quoting Wang, 260 F.3d at 452).
Second, Maniar asserts that the record supporting the IJ’s decision is
“insufficient” because the IJ allegedly failed to transcribe certain hearings.
According to Maniar, he “is prejudiced by at least one missing transcript”—
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the transcript of the hearing in which the IJ allegedly said it would not accept
a late brief from the government. Had he access to this transcript, Maniar
assures us, he would be able to “make a complete due process argument or
an argument about the immigration judge acting as an advocate and not an
impartial adjudicator.”
As best we can tell, this is a due process challenge. But “[d]ue process
challenges to deportation proceedings require an initial showing of
substantial prejudice.” Anwar v. INS, 116 F.3d 140, 144 (5th Cir. 1997). And
Maniar does not explain how the IJ’s failure to transcribe hearings or reject
the government’s brief did (or even could) affect the analysis of the purely
legal issues that the BIA and this court review de novo. Maniar thus fails to
demonstrate any prejudice, let alone substantial prejudice. So his due
process challenge fails.
Finally, Maniar argues that neither the IJ nor the BIA ever acquired
jurisdiction over his removal proceedings because his notice to appear was
defective. He contends that his notice’s failure to name the time and place
of future removal proceedings constitutes a fatal defect under 8 U.S.C.
§ 1229(a)(1)(G)(i) and the Supreme Court’s decision in Pereira.
We have already “join[ed] the overwhelming chorus of our sister
circuits” in rejecting attempts to “extend Pereira’s narrow holding beyond
the stop-time rule context.” Pierre-Paul v. Barr, 930 F.3d 684, 689 (5th Cir.
2019), abrogated in part on other grounds by Niz-Chavez v. Garland, 141 S. Ct.
1474, 1479–80 (2021). It is “the regulations, not 8 U.S.C. § 1229(a), [that]
govern what a notice to appear must contain to constitute a valid charging
document.” Id. at 693. And “[u]nder the regulations, a notice to appear is
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sufficient to commence proceedings even if it does not include the time, date,
or place of the initial hearing.” Id. In sum, Pereira does nothing for Maniar.2
***
To the extent Maniar argues that the BIA erred in finding him
ineligible for a waiver of inadmissibility, his petition is dismissed. In all other
respects, the petition is denied.
2
Nor does Niz-Chavez affect our duty to follow our panel precedent in Pierre-Paul.
In Niz-Chavez, the Court held that, “[t]o trigger the stop-time rule, the government must
serve ‘a’ notice containing all the information Congress has specified”—“‘a’ single
document containing the required information, not a mishmash of pieces with some
assembly required.” 141 S. Ct. at 1480. By contrast, our decision in Pierre-Paul involved
the use of a notice to appear as a charging document under INA regulations—not for
purposes of the stop-time rule under 8 U.S.C. § 1229(a). To be sure, Niz-Chavez
undermines one of the rationales of our decision in Pierre-Paul—namely, that a “two-step
process comports with relevant statutory language.” Pierre-Paul, 930 F.3d at 691. But Niz-
Chavez does not dislodge our ultimate holding in Pierre-Paul that it is “the regulations, not
8 U.S.C. § 1229(a), [that] govern what a notice to appear must contain to constitute a valid
charging document.” Id. at 693. Nor does it alter our conclusion that “Pereira does not
extend outside the stop-time rule context.” Id. at 689. To the contrary, Niz-Chavez itself
described its decision as “the next chapter” of the Pereira saga. 141 S. Ct. at 1479.
Accordingly, Pierre-Paul remains the law of our circuit. See, e.g., Gruver v. La. Bd. of
Supervisors for La. State Univ. Agric. & Mech. Coll., 959 F.3d 178, 181 (5th Cir. 2020) (“For
a Supreme Court decision to constitute a change in the law that enables a panel to take a
fresh look at an issue, it must mark an unequivocal change, not a mere hint of how the Court
might rule in the future.”) (quotations omitted).
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