Al-Sharif v. United States Citizenship & Immigration Services

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________________
No. 12-2767
_________________
NIZAR AL-SHARIF,
Appellant
v.
UNITED STATES CITIZENSHIP
AND IMMIGRATION SERVICES
_________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 10-cv-01435)
District Judge: Honorable Claire C. Cecchi
__________________
Argued before Original Panel on June 13, 2013
Submitted Sua Sponte En Banc on August 15, 2013
Before: McKEE, Chief Judge, RENDELL,
AMBRO, FUENTES, SMITH, FISHER, JORDAN,
HARDIMAN, GREENAWAY, JR., VANASKIE, SCIRICA
and VAN ANTWERPEN, Circuit Judges.
(Filed: August 19, 2013)
Thomas E. Moseley [ARGUED]
Suite 2600
One Gateway Center
Newark, NJ 07102-0000
Attorneys for Plaintiff-Appellant
Bradley B. Banias
Timothy M. Belsan [ARGUED]
United States Department of Justice
Office of Immigration Litigation
Room 6417
P.O. Box 868
Ben Franklin Station
Washington, DC 20001
Michael Campion
Kristin L. Vassallo
Office of United States Attorney
970 Broad Street
Room 700
Newark, NJ 07102-0000
Attorneys for Defendant-Appellee
_____________________
OPINION OF THE COURT
___________________
HARDIMAN, Circuit Judge.
2
Nizar Al-Sharif applied for United States citizenship,
but his application was denied because he had been convicted
of conspiracy to commit wire fraud, which the United States
Citizenship and Immigration Services (USCIS) determined to
be an aggravated felony. Al-Sharif contested the denial in the
District Court, which entered summary judgment in favor of
USCIS. In this appeal, Al-Sharif argues that he is entitled to
citizenship because, under our decision in Nugent v. Ashcroft,
367 F.3d 162 (3d Cir. 2004), his conviction was not for an
aggravated felony. After oral argument before a panel of this
Court, we elected sua sponte to hear the case en banc in order
to determine whether Nugent remains good law. For the
reasons discussed below, we hold that it does not, and will
affirm the judgment of the District Court.
I
Al-Sharif is a lawful permanent resident of the United
States. In 1992, he and others arranged to connect callers in
Israel to callers in countries with no direct phone service to
Israel, for a fee, by routing the calls through an apartment in
New Jersey. Al-Sharif rented the apartment and set up phone
service there using a false name and Social Security number.
Afterwards, he abandoned the apartment without leaving a
forwarding address or paying the phone bill.
As a result of this scheme, Al-Sharif pleaded guilty in
1993 to conspiracy to commit wire fraud in violation of 18
U.S.C. § 371, with a stipulation that his fraud caused a loss to
the victim of between $120,000 and $200,000. He was
sentenced to six months’ home confinement and five years’
probation, and was ordered to pay $128,838 in restitution to
the phone company.
3
In 2004, Al-Sharif applied to become a naturalized
citizen of the United States. On his application, he truthfully
disclosed his conviction for conspiracy to commit wire fraud.1
As a result, his application was denied by USCIS. In the
view of USCIS, Al-Sharif’s conviction was for an
“aggravated felony” under 8 U.S.C. § 1101(a)(43)(M)(i),
which precluded him, under 8 U.S.C. § 1101(f)(8), from
demonstrating “good moral character,” as required for
naturalization under 8 U.S.C. § 1427(a)(3). Al-Sharif sought
review in the District Court, arguing that his conviction was
not an “aggravated felony” for naturalization purposes. The
District Court disagreed, and granted summary judgment to
USCIS. Al-Sharif filed this timely appeal.
II2
A
Section 1101(a)(43) of Title 8 lists several categories
of offenses that are considered “aggravated felon[ies]” for
immigration purposes. In particular, § 1101(a)(43)(G) makes
any “theft offense (including receipt of stolen property) or
burglary offense for which the term of imprisonment [is] at
1
In 2006, the Government charged Al-Sharif with
deportability as a result of his conviction; however, an
immigration judge granted Al-Sharif a waiver of deportation.
2
The District Court had jurisdiction under 8 U.S.C. §
1421(c). We have jurisdiction under 28 U.S.C. § 1291. We
review the District Court’s summary judgment de novo.
Gonzalez v. Sec’y of Dep’t of Homeland Sec., 678 F.3d 254,
257 (3d Cir. 2012).
4
least one year” an aggravated felony, and § 1101(a)(43)(M)(i)
makes any “offense” that “involves fraud or deceit in which
the loss to the victim or victims exceeds $10,000” an
aggravated felony.3 Although some of these categories of
aggravated felonies can overlap, each category is separate
from the others, and a particular conviction may constitute an
aggravated felony under multiple sections of § 1101(a)(43).
See Bobb v. Att’y Gen., 458 F.3d 213, 217–18 (3d Cir. 2006)
3
We note that Al-Sharif was convicted of conspiracy,
which is an aggravated felony under 8 U.S.C.
§ 1101(a)(43)(U). However, because § 1101(a)(43)(U) only
applies to “an attempt or conspiracy to commit an offense
described in this paragraph,” we must review the underlying
substantive offense to determine whether it is “an offense
described in this paragraph.” See In re S-I-K-, 24 I. & N.
Dec. 324, 326 (BIA 2007) (requiring the government to prove
that “at least one of the unlawful acts that was the object of
the conspiracy was an offense” described in another
paragraph of § 1101(a)(43)); see also Nijhawan v. Att’y Gen.,
523 F.3d 387, 399 (3d Cir. 2008) (looking to the underlying
object of the conspiracy to determine if the alien committed
an aggravated felony). Because the language of the statute
and In re S-I-K- require an examination of the elements of the
substantive offense when analyzing whether a conspiracy is
an aggravated felony, USCIS correctly based its denial of Al-
Sharif’s naturalization application on § 1101(a)(43)(M)(i),
which deals with fraud. This approach is in accord with that
of many of our sister circuits. See, e.g., Conteh v. Gonzales,
461 F.3d 45, 57 (1st Cir. 2006); Kamagate v. Ashcroft, 385
F.3d 144, 152–53 (2d Cir. 2004).
5
(explaining that forgery can be an aggravated felony under
both § 1101(a)(43)(M)(i) and § 1101(a)(43)(R)).
In his plea agreement, Al-Sharif stipulated that his
conspiracy to commit wire fraud caused a loss of more than
$10,000. Nevertheless, he argues that Nugent dictates that he
is not an aggravated felon because his offense was a hybrid
theft/fraud offense and he was not sentenced to at least one
year in prison.
In Nugent, an alien was convicted in Pennsylvania
state court of theft by deception in violation of 18 Pa. Cons.
Stat. § 3922 for passing a bad check worth $4,831, and was
sentenced to a period of six to twenty-three months’
imprisonment. 367 F.3d at 163, 169. We found that the
alien’s offense was both a “theft offense” as defined in
§ 1101(a)(43)(G), id. at 174, and an offense “involving fraud
or deceit” as defined in § 1101(a)(43)(M)(i), id. at 177. As a
result, we held that “to qualify as an aggravated felony under
the INA [the alien’s offense] must meet the requirements of
Section 1101(a)(43)(M)(i), loss to the victim of more than
$10,000, in addition to Section 1101(a)(43)(G), term of
imprisonment of at least one year.” Id. at 174–75 (emphasis
added). This theory—that an alien convicted of an offense
that is both a “theft offense” and an offense “involv[ing]
fraud or deceit” is an aggravated felon only if he satisfies both
the loss threshold of § 1101(a)(43)(M)(i) and the
imprisonment threshold of § 1101(a)(43)(G)—has since
become known as the “hybrid offense” theory. See Bobb, 458
F.3d at 215.
In the nine years since this Court adopted the hybrid
offense theory in Nugent, we have never found another hybrid
offense. See Matter of Garcia-Madruga, 24 I. & N. Dec. 436,
6
439 n.4 (BIA 2008).4 Rather, in Bobb, we declined to find
that an offense that was both “relat[ed] to . . . forgery,” as
defined in § 1101(a)(43)(R), and “involve[d] fraud or deceit,”
as defined in § 1101(a)(43)(M)(i), was a hybrid offense. 458
F.3d at 226. In doing so, we explicitly limited Nugent to
“classificational schemes in which one classification is
entirely a subset of another.” Id. The hybrid offense theory,
Bobb explained, could not apply to “separate universal
classifications which intersect, but which have separate and
independent elements.” Id.While our holding in Bobb reaffirmed the basic
premise of the hybrid offense theory, it raised a serious
question about the theory’s scope. When read literally,
Bobb’s statement that the hybrid offense theory is “restricted
to classificational schemes in which one classification is
entirely a subset of another” seems to suggest that the hybrid
offense theory would not even apply to § 1101(a)(43)(G) and
§ 1101(a)(43)(M)(i) because the classification “theft offense”
is not entirely a subset of “an offense . . . involv[ing] fraud or
deceit.” This conclusion, and the rule that “no subsequent
panel overrules the holding in a precedential opinion of a
previous panel,” Covell v. Bell Sports, Inc., 651 F.3d 357,
4
Other than Bobb, the only cases from our Circuit that
discuss Nugent’s hybrid offense theory are a handful of not
precedential opinions. See Familia v. Att’y Gen., 507 F.
App’x 234, 238–39 (3d Cir. 2012); Minaya v. Att’y Gen., 453
F. App’x 168, 173–74 (3d Cir. 2011); Hatkewicz v. Att’y
Gen., 350 F. App’x 667, 671 (3d Cir. 2009); Mirat v. Att’y
Gen., 184 F. App’x 153, 155–56 (3d Cir. 2006). Each refused
to extend the hybrid offense theory to the relevant statute of
conviction.
7
363–64 (3d Cir. 2011) (quoting 3d Cir. I.O.P. 9.1), raised the
question of what, exactly, remained of Nugent following
Bobb.
Following Bobb, our Court has struggled with the
applicability of the hybrid offense theory to fraud conspiracy
cases, such as this one. Two panels of our Court issued not
precedential opinions finding that fraud conspiracies were not
hybrid offenses by analyzing the elements of the conspiracies,
rather than the substantive fraud offenses. See Familia v.
Att’y Gen., 507 F. App’x 234, 238–39 (3d Cir. 2012); Minaya
v. Att’y Gen., 453 F. App’x 168, 173–74 (3d Cir. 2011).
In addition, no other court of appeals has adopted
Nugent’s hybrid offense theory. Only a handful of published
opinions from our sister Circuits have dealt with the hybrid
offense theory. See, e.g., Magasouba v. Mukasey, 543 F.3d
13, 15 (1st Cir. 2008); Martinez v. Mukasey, 519 F.3d 532,
539 (5th Cir. 2008); Soliman v. Gonzales, 419 F.3d 276, 280
(4th Cir. 2005). These Circuits have all avoided applying the
theory by disposing of the cases on other grounds. See
Magasouba, 543 F.3d at 15 (“Nugent has been restricted to
classificational schemes in which one classification is entirely
a subset of another. As previously mentioned, that is not the
case here.” (internal quotation marks and citation omitted));
Martinez, 519 F.3d at 539 (“Our court has not decided
whether an offense may properly be characterized as a hybrid
fraud/theft offense, which must meet the requirements of both
subsections (G) and (M)(i).”); Soliman, 419 F.3d at 280 (4th
Cir. 2005) (“Because we are able to resolve Soliman’s
petition for review by finding that Soliman’s conviction was
not for a theft offense under Subsection (G), we need not
reach and address her alternative contention with respect to
imputing Subsection (M)(i)’s minimum threshold requirement
8
to Subsection (G).”). For its part, the Board of Immigration
Appeals (BIA) has declined to follow the hybrid offense
theory. See Garcia-Madruga, 24 I. & N. Dec. at 440 n.5
(“That [theft and fraud may be coextensive] does not mean,
however, that we subscribe to the Nugent court’s holding that
in such an instance the elements of both aggravated felony
branches must be demonstrated.” (emphasis in original)).
The Supreme Court too has recently issued an opinion
casting further doubt upon the hybrid offense theory. In
Kawashima v. Holder, 132 S. Ct. 1166 (2012), the Court
stated that: “The language of [§ 1101(a)(43)(M)(i)] is clear.
Anyone who is convicted of an offense that ‘involves fraud or
deceit in which the loss to the victim or victims exceeds
$10,000’ has committed an aggravated felony.” Id. at 1173
(emphasis added). Read literally, this statement conflicts
with Nugent, as the hybrid offense theory leaves open the
possibility that someone convicted of an offense “involv[ing]
fraud or deceit in which the loss to the victim or victims
exceeds $10,000” has not committed an aggravated felony.
This is exactly what Al-Sharif argues here: that, although his
offense falls within the definition of § 1101(a)(43)(M)(i), it is
not an aggravated felony because it is also a “theft offense”
that did not result in at least one year of imprisonment.
Mindful of this history, we now overrule Nugent’s
hybrid offense theory because it has been rejected by other
courts and conflicts with the plain language of the statute.
B
We do not overturn our precedents lightly.
“[P]recedent is to be respected unless the most convincing of
reasons demonstrates that adherence to it puts us on a course
9
that is sure error.” Citizens United v. FEC, 558 U.S. 310, 362
(2010). However, stare decisis “is not an inexorable
command.” Payne v. Tennessee, 501 U.S. 808, 828 (1991).
“[W]hen governing decisions are unworkable,” they may be
overturned. Id. at 827. This is particularly true “if the
precedent is particularly recent and has not generated any
serious reliance interests,” Morrow v. Balaski, --- F.3d ----,
2013 WL 2466892, at *16 (3d Cir. Jun. 14, 2013) (en banc)
(Smith, J., concurring), or if the precedent has “sustained
serious erosion from our recent decisions,” Lawrence v.
Texas, 539 U.S. 558, 576 (2003).
Here, the hybrid offense theory “has not generated any
serious reliance interests.” In the nine years since we have
adopted it, it has been applied by no Court of Appeals,
including our own. Rather, it has “sustained serious erosion
from . . . recent decisions.” We have greatly limited its
applicability, see Bobb, 458 F.3d at 226, the BIA has declined
to follow it, see Garcia-Madruga, 24 I. & N. Dec. at 440 n.5,
and the Supreme Court’s dicta in Kawashima has cast
substantial doubt upon it. See IFC Interconsult, AG v.
Safeguard Int’l Partners, LLC, 438 F.3d 298, 311 (3d Cir.
2006) (“[W]e pay due homage to the Supreme Court’s well-
considered dicta as [lighthouses] that guide our rulings.”).
On its merits, the hybrid offense theory cannot easily
be reconciled with the text of the statute. “[W]hen [a]
statute’s language is plain, the sole function of the courts—at
least where the disposition required by the text is not
absurd—is to enforce it according to its terms.” Sebelius v.
Cloer, 133 S. Ct. 1886, 1896 (2013). The language of
§ 1101(a)(43) is plain. Each of its subparagraphs lays out a
separate aggravated felony and there is no indication in the
statute that an offense must satisfy multiple subparagraphs in
10
order to be an aggravated felony. Thus, an offense that
“involves fraud or deceit in which the loss to the victim
exceeds $10,000” is an aggravated felony under
§ 1101(a)(43)(M)(i) regardless of whether it also meets the
requirements of some other subparagraph. As the Supreme
Court recently emphasized in Kawashima: “The language of
[§ 1101(a)(43)(M)(i)] is clear. Anyone who is convicted of an
offense that ‘involves fraud or deceit in which the loss to the
victim or victims exceeds $10,000’ has committed an
aggravated felony . . . .” 132 S. Ct. at 1173 (emphasis added).
The hybrid offense theory conflicts with the Supreme Court’s
textual interpretation insofar as it implies that at least some
fraud offenses with losses exceeding $10,000—namely, those
that are also theft offenses and for which the offender was not
sentenced to at least a year of imprisonment—are not
aggravated felonies.5 Therefore, we now overrule that theory.
Having held that Nugent is no longer the law of this
Circuit, we hold that Al-Sharif was properly deemed an
aggravated felon under § 1101(a)(43)(M)(i). Wire fraud is
clearly an offense “involv[ing] fraud or deceit,” see Doe v.
Att’y Gen., 659 F.3d 266, 274–75 (3d Cir. 2011), and Al-
Sharif’s plea agreement stipulated that he caused a loss of
between $120,000 and $200,000—well in excess of the
$10,000 threshold for a fraud to be considered an aggravated
felony. Thus, Al-Sharif’s offense was an aggravated felony
5
We also note that, under the hybrid offense theory, a
defendant who is convicted of an offense that is both theft and
fraud receives more favorable treatment than a defendant who
is convicted of either theft or fraud alone. This incongruity
reinforces further our holding that the hybrid offense theory is
inconsistent with the statute.
11
and the District Court properly entered summary judgment in
favor of USCIS.
III
Al-Sharif raises two additional arguments, but neither
is persuasive. First, he argues that the 1996 aggravated
felony definitions, which reduced the loss threshold at which
fraud becomes an aggravated felony, do not apply to him.
We rejected a nearly identical argument in Biskupski v.
Attorney General, 503 F.3d 274 (3d Cir. 2007), where we
held that the 1996 aggravated felony definitions applied
retroactively to crimes committed before 1996, so long as the
“orders or decisions of the [immigration judge] or BIA which
apply the ‘aggravated felony’ definitions” were issued after
the 1996 amendments. Id. at 283. Here, USCIS denied Al-
Sharif’s naturalization application in 2009, long after the
1996 amendments took effect. Although USCIS and not an
immigration judge or the BIA was making that determination,
our reasoning in Biskupski still applies because, until USCIS
issued a final decision, Al-Sharif “remain[ed] the subject of
administrative adjudication and ha[d] not established any
right to the benefit he [wa]s seeking to obtain by his
application.” Id. (internal quotation mark and alteration
omitted).
Second, Al-Sharif argues that the rule of lenity, which
requires courts to “constru[e] any lingering ambiguities in
deportation statutes in favor of the alien,” see INS v. Cardoza-
Fonseca, 480 U.S. 421, 449 (1987), applies to him. However,
8 U.S.C. § 1101(a)(43) is unambiguous. Section
1101(a)(43)(M)(i) is clear that an offense that “involves fraud
or deceit in which the loss to the victim or victims exceeds
$10,000” is an aggravated felony. Therefore, Al-Sharif is not
12
entitled to relief under the rule of lenity. See Kawashima, 132
S. Ct. at 1175–76 (declining to apply rule of lenity because
§ 1101(a)(43)(M) was “clear enough”); Muscarello v. United
States, 524 U.S. 125, 138–39 (1998) (rule of lenity only
applies if there is a “grievous ambiguity or uncertainty in the
statute”).
IV
For the foregoing reasons, we hold that the hybrid
offense theory of Nugent no longer remains good law and the
District Court did not err when it held that Al-Sharif was not
entitled to citizenship by virtue of his 1993 conviction for
conspiracy to commit wire fraud. Accordingly, we will
affirm the judgment of the District Court.
13