Dung Quol Tran v. U.S. Attorney General

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-11563
Non-Argument Calendar
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Agency No. A027-296-518
DUNG QUOL TRAN,
a.k.a. Dung Q. Tran,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(November 18, 2013)
Before MARCUS, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
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Dung Quol Tran petitions for review of the Board of Immigration Appeals’s
(“BIA”) decision affirming the Immigration Judge’s (“IJ”) denial of his motion to
terminate his removal proceedings. In his motion to terminate, Tran sought
termination of his removal proceedings because he had received a full and
complete pardon for his earlier criminal convictions, making him eligible for the
pardon waiver in 8 U.S.C. § 1227(a)(2)(A)(vi). The BIA affirmed the IJ’s denial
of the motion since Tran was charged as being inadmissible under 8 U.S.C. §
1182(a)(2)(A)(i)(I) and was not removable, and the pardon waiver applied only to
removable aliens. On appeal, Tran argues that the BIA abused its discretion by not
following its binding precedent found in Matter of H-, 6 I. & N. Dec. 90 (BIA
1954) (holding that the pardon waiver provision applied to excludable immigrants,
not just those who were deportable). After thorough review, we deny the petition.
We review only the decision of the BIA, unless the BIA expressly adopted
the IJ’s opinion. Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341, 1350 (11th Cir.
2009). We review the BIA’s legal determinations de novo. Maldonado v. U.S.
Att’y Gen., 664 F.3d 1369, 1375 (11th Cir. 2011). The BIA is bound by a circuit
court’s precedential decisions when it adjudicates cases arising within that circuit.
In re Ponce de Leon Ruiz, 21 I. & N. Dec. 154, 159 (BIA 1996). Under the prior
panel precedent rule, a prior panel’s holding is binding on all subsequent panels
unless the holding is overruled or undermined to the point of abrogation by the
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Supreme Court or by us when we sit en banc. Smith v. GTE Corp., 236 F.3d 1292,
1300 n.8 (11th Cir. 2001).
The Immigration and Nationality Act (“INA”) provides that lawful
permanent residents are removable if they are convicted of a crime involving moral
turpitude for which a sentence of one year or longer could be imposed. 8 U.S.C. §
1227(a)(2)(A)(i). Nevertheless, that provision “shall not apply in the case of an
alien with respect to a criminal conviction if the alien subsequent to the criminal
conviction has been granted a full and unconditional pardon by the President of the
United States or by the Governor of any of the several States.” 8 U.S.C. §
1227(a)(2)(A)(vi). In contrast, inadmissible aliens are governed by a different
section, which provides that an alien convicted of a crime involving moral
turpitude, other than a purely political offense, is inadmissible. 8 U.S.C. §
1182(a)(2)(A)(i)(I). This section of the INA does not provide for a pardon waiver.
See generally 8 U.S.C. § 1182(a).
In Matter of H-, the BIA determined that, as long as there was a full and
unconditional pardon issued by the president or by the governor of a state, the
crime no longer formed a basis for removal, “whether in exclusion or in
expulsion.” 6 I. & N. Dec. at 96. The BIA noted that, prior to the passage of the
INA, judicial interpretation of the Immigration Act of 1917 had resulted in a rule
that the pardon waiver applied equally to exclusion and deportation proceedings.
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Id. at 94. The passage of the INA did not change the Board’s position, in part
because the BIA was not aware of any “congressional intent to be more lenient to a
person convicted of a crime in the United States subsequent to an entry than to a
person convicted in the United States subsequent to an original entry and prior to a
reentry.” Id. at 95. Accordingly, there was “no sound basis in logic or in reason”
to have the pardon waiver provision apply to deportable aliens, but not to
excludable aliens, especially as doing so would “negate a clearly expressed
congressional intent to immunize the pardoned criminal from the consequences of
his criminal act.” Id. at 96.
In Balogun v. U.S. Att’y Gen., the petitioner sought review of the denial of
his motion to reopen his case, arguing in part that he had received an unconditional
pardon after the agency had entered his final order of removal. 425 F.3d 1356,
1362 (11th Cir. 2005). The IJ and the BIA both determined that the pardon was
not “full and unconditional.” The government claimed on appeal before us that
Balogun’s pardon was not full and unconditional because, while his state rights
were restored, Balogun was still subject to the federal consequences of his
embezzlement convictions, including being subject to federal felon in possession
laws. Id. at 1358, 1362. We stated that we were “inclined to agree with the BIA,”
but that we did not need to decide that issue because Balogun was ineligible for the
pardon waiver provision. Id. at 1362. Because § 1227(a)(2)(A), which contained
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the pardon waiver provision, applied only to deportable aliens, and because
Balogun was inadmissible under § 1182(a)(2)(A)(i)(I), not deportable, the pardon
waiver provision did not apply to him. Id. Noting that § 1182 did not contain a
pardon waiver provision, we concluded that, “if Congress had intended to extend
the pardon waiver to inadmissible aliens, it would have done so.” Id. Thus, even
if Balogun’s pardon met the requirements of the pardon waiver provision, he was
still unable to enter the United States, which meant he was removable. Id. at 1363;
see also Ali v. U.S. Att’y Gen., 443 F.3d 804, 812 (11th Cir. 2006) (noting that the
petitioner conceded facts at his removal hearing that rendered him also
inadmissible, so that his pardon, even if it had been considered by the BIA, would
not have eliminated the immigration consequences he faced).
Here, the BIA did not err by affirming the IJ’s denial of Tran’s motion to
terminate. Tran’s argument is clearly foreclosed by Balogun’s holding that
inadmissible aliens cannot benefit from the pardon waiver provision applicable to
certain removable aliens. 425 F.3d at 1362-63. Our conclusion on this issue
constituted a holding and was not dicta because we relied on that determination to
resolve the appeal. See id. at 1362. Moreover, because Balogun effectively
overruled Matter of H-, the BIA had to apply Balogun and could not have relied on
Matter of H-. See Ponce de Leon Ruiz, 21 I. & N. Dec. at 159. Finally, we also
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are bound by Balogun under the prior-panel precedent rule. See Smith, 236 F.3d at
1300 n.8.
PETITION DENIED.
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