Yamin Imran v. Eric Holder, Jr. , 531 F. App'x 749 ( 2013 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0830n.06
No. 12-4101
FILED
UNITED STATES COURT OF APPEALS Sep 13, 2013
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
YAMIN IMRAN, )
)
Petitioner, )
)
v. ) ON PETITION FOR REVIEW
) FROM THE UNITED STATES
ERIC H. HOLDER, JR., Attorney General, ) BOARD OF IMMIGRATION
) APPEALS
Respondent. )
)
BEFORE: GIBBONS, SUTTON, and KETHLEDGE, Circuit Judges.
PER CURIAM. Yamin Imran, a native and citizen of India, petitions for review of an order
of the Board of Immigration Appeals (BIA) dismissing his appeal from an immigration judge’s (IJ)
decision finding him removable as charged and denying his motion to terminate removal
proceedings.
Imran was admitted to the United States as a lawful permanent resident on February 23, 2004.
In 2006, a federal grand jury in the United States District Court for the Northern District of Ohio
charged that, on or about August 4, 2005, Imran “did knowingly and willfully make materially false,
fraudulent, and fictitious statements and representations” to a special agent of the Federal Bureau
of Investigation, in violation of 18 U.S.C. § 1001(a)(2). (A.R. 236). Imran pled guilty to the offense
and was sentenced to one year of probation.
The Department of Homeland Security subsequently initiated removal proceedings against
Imran by serving him with a notice to appear, charging him with removability under section
No. 12-4101
Imran v. Holder
237(a)(2)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(i), as an alien
convicted of a crime involving moral turpitude (CIMT) committed within five years after his
admission, for which a sentence of one year or longer may be imposed. Appearing before an IJ,
Imran admitted the factual allegations in the notice to appear but denied the charge of removability.
After briefing by the parties, the IJ found Imran removable as charged, denied his motion to
terminate the removal proceedings, and granted his request for voluntary departure. Imran filed an
appeal from the IJ’s decision, which the BIA dismissed.
In support of his petition for review, Imran contends that the BIA erred in affirming the IJ’s
finding that his conviction under 18 U.S.C. § 1001(a)(2) constitutes a CIMT. “[W]e review de novo
whether the elements of a federal crime fit the BIA’s definition of a CIMT.” Kellermann v. Holder,
592 F.3d 700, 703 (6th Cir. 2010). “Any crime which involves intent to defraud as one of its
elements is a CIMT.” Id.Imran asserts that 18 U.S.C. § 1001(a)(2), which prohibits the making of “any materially
false, fictitious, or fraudulent statement or representation,” is written in the disjunctive and prohibits
conduct both involving and not involving moral turpitude. The BIA did not challenge Imran’s
argument that the making of a fictitious statement was not a crime of moral turpitude. Instead, the
BIA looked to this court’s Kellermann decision and concluded that because Imran’s indictment
charged him in the conjunctive with making “materially false, fraudulent, and fictitious statements
and representations,” Imran was convicted of a crime containing an element of fraud, rendering him
removable as an alien convicted of a CIMT. See Kellermann, 592 F.3d at 704 05.
The record here does not permit us to conclude whether Imran pled guilty to the indictment
as charged or whether at the change of plea hearing he admitted only to having made a fictitious
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No. 12-4101
Imran v. Holder
statement. But the omission is irrelevant. Violation of 18 U.S.C. § 1001(a)(2) requires that the
defendant act willfully and knowingly. Making a fictitious statement to a government agency
knowing that it is fictitious involves no less moral turpitude than making a false statement to a
government agency knowing that it is false. As we concluded in Zaitona v. INS, 9 F.3d 432, 437 (6th
Cir. 1993), “the crime of making false statements is a crime of moral turpitude when the elements
of materiality and knowledge are shown.” Because both knowledge and materiality are essential
elements of § 1001(a)(2), Imran’s guilty plea necessarily establishes the presence of both.
Kellermann is not to the contrary. Kellermann does not purport to overrule Zaitona, which
it cites, and indeed could not do so. See Valentine v. Francis, 270 F.3d 1032, 1035 (6th Cir. 2001)
(stating that under Sixth Circuit custom and rules, a panel’s published opinion is binding on
subsequent panels unless an intervening Supreme Court decision requires modification of the prior
panel decision or the en banc court overrules that prior decision). In Kellermann the court dealt with
violations of both 18 U.S.C. §§ 371 and 1001 and initially found that the indictment’s allegation that
Kellermann’s purpose was to defraud the United States, stated conjunctively with his purpose to
obtain grant funds, established that Kellermann was convicted of conspiring to act fraudulently. 592
F.3d at 705. Building upon that conclusion, the Kellermann court then found that the conjunctive
language in § 1001 of the indictment supported a conclusion that Kellermann acted fraudulently.
Id. The court in Kellermann thus sidestepped and did not address the precise issue with which we
deal here because it discerned Kellermann’s fraudulent intent from the interplay of the conspiracy
and false statement charges.
Accordingly, we deny Imran’s petition for review.
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