Ersin Doyduk v. Attorney General United States

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 21-3333
_____________
ERSIN DOYDUK,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
_______________
On Petition for Review of a Decision of the
Board of Immigration Appeals
(Agency Case No. A201-112-403)
Immigration Judge: R.K. Malloy
_______________
Argued
October 18, 2022
_______________
Before: GREENAWAY, JR., MATEY, and ROTH, Circuit
Judges.
(Filed: April 14, 2023)
John P. Leschak [ARGUED]
Leschak & Associates
180 South Street
Freehold, NJ 07728
Counsel for Petitioner
Merrick B. Garland
Erik R. Quick
Jonathan A. Robbins [ARGUED]
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
_______________
OPINION OF THE COURT
_______________
MATEY, Circuit Judge.
An expungement order eliminates the legal record of an
event, but it does not erase history. Ersin Doyduk is a citizen
of Turkey who overstayed his visa. He asked for an adjustment
of status, but an Immigration Judge (“IJ”) denied his
application, citing facts surrounding Doyduk’s involvement in
a stabbing. Error, Doyduk argues, because those facts appeared
in an expunged criminal complaint. But the language of the
Immigration and Nationality Act (“INA”) allows IJs to
consider facts underlying expunged charges. So we will deny
the petition.
2
I.
Doyduk came to the United States from Turkey on a
visa that expired in 2010. Still in the country a year later, he
took part in a night of heavy drinking with his then-girlfriend
Nadezdah Filipova (who was also in the country without
authorization). Later that night, Filipova was stabbed in the
stomach, suffering a serious injury. Panicked, Doyduk called
his boss, Murat Coskun, asking him to come to the apartment.
Coskun arrived and called 911. Police responded and arrested
Doyduk. The Commonwealth of Pennsylvania charged him
with five criminal offenses: aggravated assault, possessing an
instrument of crime, possessing a prohibited offensive weapon,
simple assault, and recklessly endangering another person. But
all the charges were withdrawn after Filipova and Coskun
refused to testify. And the charging documents were eventually
discarded under a Pennsylvania law that requires expungement
after eighteen months pass without action. See 18 Pa. C.S.
§ 9122(a)(1).
The Department of Homeland Security initiated
removal proceedings against Doyduk in 2011, charging him
with removability under 8 U.S.C. § 1227(a)(1)(C)(i) for having
overstayed his visa. In 2012, Doyduk conceded removability
but began seeking an adjustment of status based on his
marriage to a United States citizen. A hearing on his
adjustment application was held in 2017, at which Detective
Andrew Jackson (the officer who arrested Doyduk) testified.
According to his testimony, Detective Jackson
responded to Coskun’s 911 call and found Doyduk’s apartment
in disarray, with Filipova lying in the bathroom bleeding from
her stomach. He observed blood throughout the home and on a
small paring knife in the kitchen sink. Detective Jackson
3
recalled Doyduk wearing a bloody shirt. He also noticed
scratches on Doyduk’s neck that Doyduk could not explain.
Detective Jackson added that Filipova first told him that
Doyduk stabbed her by accident, then that she accidentally
stabbed herself. Finally, Detective Jackson testified that
Coskun said Doyduk called him in a panic saying he “went
crazy and put a knife in her.” A.R. 81.
The IJ also considered the Philadelphia Police
Department’s investigation report (“police report”) and heard
testimony from Doyduk, his citizen-wife, and others attesting
to Doyduk’s character. Balancing the factors favoring and
opposing discretionary adjustment of Doyduk’s status, the IJ
“weigh[ed] heavily the facts and circumstances of [Doyduk’s]
arrest” and denied relief, finding that “[t]he evidence in the
record strongly suggests that Respondent committed the crime
for which he was arrested” and that Doyduk “did not convince
the Court otherwise.” A.R. 91. The Board of Immigration
Appeals summarily affirmed on December 1, 2021, and
Doyduk timely petitioned for review.1
1
The BIA had jurisdiction under 8 C.F.R.
§§ 1003.1(b)(3) and 1240.15. Where, as here, the BIA
summarily affirms, we treat the IJ’s decision as the final
administrative determination. See Huang v. Att’y Gen., 620
F.3d 372, 379 (3d Cir. 2010). We have jurisdiction under 8
U.S.C. § 1252(a)(2)(D) to review questions of law de novo.
See Myrie v. Att’y Gen., 855 F.3d 509, 515 (3d Cir. 2017).
Otherwise, we lack jurisdiction to review “any judgment
regarding the granting of relief” about adjustment of status, 8
U.S.C. § 1252(a)(2)(B)(i), including “review of factual
findings that underlie a denial of relief.” Patel v. Garland, 142
S. Ct. 1614, 1618 (2022). Doyduk’s arguments call on us to
4
II.
The IJ denied Doyduk’s adjustment application, finding
“that the facts and circumstances surrounding [Doyduk’s]
arrest present serious adverse factors that work against a
favorable exercise of discretion.” A.R. 87. Doyduk argues that
was reversible error because those “facts and circumstances”
included expunged criminal charges. 2 But that restriction on
the IJ’s discretion finds no footing in the text of the INA,
precedent, state law, or the Constitution. So we will deny his
petition.
A. The Immigration and Nationality Act
As usual, we turn to the text of the statute reading the
words as “generally . . . understood in their usual and most
review questions of law rather than revisit the IJ’s factual
determinations.
2
The Government argues that Doyduk did not exhaust
this issue, but we see sufficient notice in the record. At his
adjustment hearing, Doyduk’s counsel mentioned
“expungement law” and discussed caselaw holding IJs cannot
consider unsupported allegations in a police report. A.R. 214.
The Government referenced the relevant expungement law, Pa.
C.S. § 9122, by name, A.R. 152, and the IJ repeatedly
acknowledged that the issue of expungement could be pursued
on appeal. A.R. 212–15. Doyduk’s Notice of Appeal raised this
issue before the BIA, challenging the IJ’s use of “evidence
regarding an expunged criminal matter.” A.R. 52. All enough
to “place the Board on notice of a straightforward issue being
raised on appeal” and exhaust administrative remedies. Joseph
v. Att’y Gen., 465 F.3d 123, 126 (3d Cir. 2006) (quoting Yan
Lan Wu v. Ashcroft, 393 F.3d 418, 422 (3d Cir. 2005)).
5
known signification.” 1 William Blackstone, Commentaries
*59 (George Sharswood ed., 1875). See also United States v.
Fisher, 6 U.S. (2 Cranch) 358, 385 (1805) (Marshall, C.J.)
(“That these words taken in their natural and usual sense,
would embrace the case before the court, seems not to be
controverted.”); Khan v. Att’y Gen., 979 F.3d 193, 197 (3d Cir.
2020). Section 245(a) of the INA states that “[t]he status of an
alien . . . may be adjusted by the Attorney General, in his
discretion and under such regulations as he may prescribe.” 8
U.S.C. § 1255(a). 3 When Congress extended the Attorney
General this authority, 4 “discretion” generally meant the
“[p]ower or privilege of the court to act unhampered by legal
rule.” Black’s Law Dictionary 553 (4th ed. 1951). Though in
the specific context of judicial or legal discretion, the term had
a narrower meaning, one “bounded by the rules and principles
of law, and not arbitrary, capricious, or unrestrained.” Id. Put
another way, discretion meant “[t]he range within which any
3
The Attorney General has delegated his discretion
under § 245 to Immigration Judges. See 8 C.F.R. § 1003.10(a)
(“Immigration judges shall act as the Attorney General’s
delegates in the cases that come before them.”).
4
See Immigration and Nationality Act, Pub. L. No. 414,
§ 245(a), 66 Stat. 163, 217 (1952) (“The status of an
alien . . . may be adjusted by the Attorney General in his
discretion (under such regulations as he may prescribe to insure
the application of this paragraph solely to the cases of aliens
who entered the United States in good faith as
nonimmigrants) . . . .”). The current standard followed from
that language in 1958. See Act of Aug. 21, 1958, Pub. L. No.
85-700, 72 Stat. 699 (“The status of an alien . . . may be
adjusted by the Attorney General, in his discretion and under
such regulations as he may prescribe . . . .”).
6
person or body may act or decide without violating any legal
obligation to act or refrain from acting.” Max Radin, Law
Dictionary 96 (1955).5
Here, “[n]either the language of the statute nor the
relevant regulations establish criteria by which to weigh
applications for discretionary relief,” nor do they specify the
types of evidence an IJ may consider. Tipu v. INS, 20 F.3d 580,
582 (3d Cir. 1994).6 All meaning the best ordinary reading of
§ 245(a) does not forbid IJs from considering facts underlying
expunged charges. See United States v. Smukler, 991 F.3d 472,
476 (3d Cir. 2021) (“[W]e look to the whole text of a law to
best ‘interpret the words consistent with their ordinary
meaning . . . at the time Congress enacted the statute.’”
(quoting Wis. Cent. Ltd. v. United States, 138 S. Ct. 2067, 2070
(2018))). If some limit applies, it must come from an
independent “legal obligation,” Radin, supra, at 96. Doyduk
5
A meaning that has remained consistent since the
1950s. See, e.g., Black’s Law Dictionary 585 (11th ed. 2019)
(“Freedom in the exercise of judgment; the power of free
decision-making.”).
6
The Attorney General may cabin this broad discretion
through regulations. 8 U.S.C. § 1255. The Attorney General
has used that authority to explain which aliens are eligible to
apply for an adjustment of status, 8 C.F.R. § 245.1, and create
special standards for victims of human trafficking and certain
other crimes, id. § 245.23–.24. But those regulations merely
incorporate the factors announced in cases like Matter of Arai,
13 I. & N. Dec. 494, 496 (BIA 1970) and Matter of Marin, 16
I. & N. Dec. 581, 584 (BIA 1978). See 8 C.F.R.
§§ 245.23(e)(3), 245.24(d)(11). And none prohibit IJs from
considering facts underlying expunged charges.
7
offers two from caselaw and state law, but as we explain,
neither will do.7
B. Precedent
Starting in 1970, the BIA announced a list of “adverse”
and “favorable” factors to guide the “exercise of administrative
discretion” in status adjustments. Matter of Arai, 13 I. & N.
Dec. 494, 496 (BIA 1970). The Board elaborated on these
factors a few years later in Matter of Marin, 16 I. & N. Dec.
581, 584 (BIA 1978), but status adjustments remained “a
7
Doyduk also suggests the IJ violated his procedural
and substantive due process rights, but we are unpersuaded.
Doyduk never asserted any protected liberty or property
interest, which is required “for a procedural due process claim
to lie.” Mudric v. Att’y Gen., 469 F.3d 94, 98 (3d Cir. 2006).
And even though we have recognized a limited “procedural
due process right” for aliens lacking a protected liberty or
property interest, Doyduk does not dispute that he received:
“(1) [a] factfinding based on a record produced before the
decisionmaker and disclosed to him or her; (2) the opportunity
to make arguments on his or her own behalf; and (3) an
individualized determination of his [or her] interests.”
Calderon-Rosas v. Att’y Gen., 957 F.3d 378, 384 (3d Cir.
2020) (quoting Serrano-Alberto v. Att’y Gen., 859 F.3d 208,
213 (3d Cir. 2017)) (quotation marks omitted). Doyduk’s
substantive due process argument similarly lacks merit because
Doyduk has no constitutional right to an expungement. Cf.,
e.g., Nunez v. Pachman, 578 F.3d 228, 233 (3d Cir. 2009)
(“[W]e reject Nunez’s contention that New Jersey law itself
creates a constitutional right of privacy in an expunged
criminal record.”).
8
matter of administrative grace.” Ameeriar v. INS, 438 F.2d
1028, 1030 (3d Cir. 1971).
Exercising this discretion involves determining the
kinds of evidence an IJ may consider, an issue the BIA has also
addressed. See In re Arreguin De Rodriguez, 21 I. & N. Dec.
38, 42–43 (BIA 1995). In Arreguin, the BIA reversed an IJ’s
denial of discretionary relief in part because the IJ credited a
prior incident memorialized only by an arrest report noting that
prosecution was declined. Id. While the IJ found the incident
“a negative factor to be considered in exercising discretion,”
the BIA “hesita[ted] to give substantial weight to an arrest
report, absent a conviction or corroborating evidence of the
allegations contained therein.” Id. at 42. So in its re-weighing
of the positive and negative factors, the BIA gave “the [arrest]
report little weight.” Id.Doyduk argues the IJ departed from Arreguin by giving
substantial weight to the police report of Filipova’s stabbing.
We disagree. At most, Arreguin holds that arrest reports are
entitled to “little weight” “absent a conviction or corroborating
evidence of the allegations contained therein.” Id. When arrest
reports lack independent corroboration, IJs should be
“hesitant” to credit them with “substantial weight” in an
equitable balancing analysis. Id. That is a sliding scale, not a
categorical ban.8
8
A conclusion shared by every other circuit to consider
the question. See Arias-Minaya v. Holder, 779 F.3d 49, 54 (1st
Cir. 2015) (“Arreguin . . . surely does not create an ironclad
rule that an arrest without a subsequent conviction may never
be considered in the discretionary relief context.”); Sorcia v.
Holder, 643 F.3d 117, 126 (4th Cir. 2011) (“Arreguin did not
9
Arreguin lacks force here because the allegations in the
police report are corroborated by 1) pictures of Filipova’s
wound and the scene where the stabbing occurred, 2) Detective
Jackson’s testimony and cross-examination at the adjustment
hearing, 3) hospital records of Filipova’s treatment for a stab
wound, 4) Doyduk’s admission that he blacked out from
inebriation the morning of the stabbing and that a restraining
order was entered after the events, and 5) Coskun’s statement
to Detective Jackson that Doyduk called him in a panic saying
he “went crazy and put a knife in [Filipova].” A.R. 81, 690. We
see no basis to extend Arreguin beyond its holding, particularly
where the IJ merely determined that Doyduk was not entitled
to discretionary relief based on detailed and corroborated
evidence suggesting bad moral character. That determination
falls within the authority given by Congress and follows BIA
precedent.
Doyduk also points to Pickering v. Gonzales, 465 F.3d
263 (6th Cir. 2006) and Pinho v. Gonzales, 432 F.3d 193 (3d
Cir. 2005). But these cases analyze the threshold issue of
whether a vacated conviction still counts for purposes of
adjustment-of-status eligibility. They offer no insight on the
kinds of evidence an IJ may (or may not) consider when
indicate that it was per se improper to consider an arrest
report.”); cf. also Avila-Ramirez v. Holder, 764 F.3d 717, 719–
20 (7th Cir. 2014) (rejecting IJ’s reliance on arrest reports
where “[t]he government introduced no evidence
corroborating any of the allegations or arrest reports”); Billeke-
Tolosa v. Ashcroft, 385 F.3d 708, 709, 712 (6th Cir. 2004)
(rejecting IJ’s reliance on dismissed criminal charges that
never led to a conviction and lacked “independent evidence
suggesting” illegal activity).
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determining how to exercise discretion. The IJ found Doyduk
“statutorily eligible to adjust his status to that of a lawful
permanent resident” because Doyduk “was never convicted of
any criminal offense after his May 24, 2011 arrest.” A.R. 87.
That threshold determination takes Doyduk’s application
outside of Pickering and Pinho. As we emphasized in Pinho,
“the decision whether in fact to grant adjustment of status is a
matter entrusted to the discretion of the agency, and we lack
the power to review denials of adjustment applications as
such.” 432 F.3d at 216.
C. Pennsylvania’s Expungement Statute
Doyduk finally argues that Pennsylvania’s
expungement statute, the Criminal History Record Information
Act (“CHRIA”), 18 Pa. C.S. §§ 9101–9183, creates a state law
privacy interest that bars federal IJs from considering not only
expunged criminal charges, but also the underlying incident
itself. By considering facts surrounding the stabbing
incident—Doyduk’s own testimony, the police report, and
Detective Jackson’s testimony—Doyduk suggests the IJ
violated his right to keep that information private. We are
unpersuaded that CHRIA sweeps so far.
CHRIA states that “an individual may not be required
or requested to disclose information about the individual’s
criminal history record that has been expunged . . . .” 18 Pa.
C.S. § 9122.5(a)(1). This disclosure provision allows Doyduk
to rebuff inquiries into his expunged criminal history record. If
asked, he can remain silent or “respond as if the offense did not
occur.” Id.
Doyduk cannot, however, use the disclosure provision
to silence others from divulging information related to his
11
expunged charges. CHRIA narrowly says that “an individual
may not be required or requested to disclose information about
the individual’s criminal history record that has been
expunged.” Id. (emphases added). The definite article in “the
individual” is key, “an article coupled with a singular noun”
that points to a discrete person: the individual with the
expunged criminal history. Niz-Chavez v. Garland, 141 S. Ct.
1474, 1483 (2021). See also The Chicago Manual of Style
§ 5.70, at 249 (17th ed. 2017) (“An article is a limiting
adjective that precedes a noun or noun phrase and determines
its use to indicate something definite (the) or indefinite (a or
an).”). That definite article tells the reader what information
“an individual may not be required or requested to disclose”:
“information about the individual’s” own expunged record. 18
Pa. C.S. § 9122.5(a)(1). Requests for information about some
other person’s record fall beyond the provision.
Doyduk did not elect to remain silent, choosing instead
to testify at length about the incident. And even if he had, the
IJ still could have considered the police report and Detective
Jackson’s testimony because neither of those information
sources came from Doyduk. See id. § 9122.5(a)(1). So the IJ
lawfully considered the facts underlying Doyduk’s expunged
charges.
III.
Because considering the evidence underlying Doyduk’s
expunged charges fell within the IJ’s broad discretion, we will
deny the petition.
12