Ashish Sijapati v. Dana Boente

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1204
ASHISH SIJAPATI,
Petitioner,
v.
DANA JAMES BOENTE, Acting Attorney General,
Respondent.
No. 15-1804
ASHISH SIJAPATI,
Petitioner,
v.
DANA JAMES BOENTE, Acting Attorney General,
Respondent.
On Petitions for Review of Orders of the Board of Immigration Appeals.
Argued: October 25, 2016 Decided: February 1, 2017
Before TRAXLER, KEENAN, and WYNN, Circuit Judges.
Petitions for review denied by published opinion. Judge Wynn wrote the opinion, in
which Judge Traxler and Judge Keenan joined.
ARGUED: Benjamin Winograd, IMMIGRANT & REFUGEE APPELLATE CENTER,
LLC, Alexandria, Virginia, for Petitioner. Laura Halliday Hickein, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Irina
Manelis, DYER IMMIGRATION LAW GROUP, P.C., Henrico, Virginia, for Petitioner.
Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Shelley R. Goad,
Assistant Director, Office of Immigration Litigation, Civil Division, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
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WYNN, Circuit Judge:
Petitioner Ashish Sijapati, a native and citizen of Nepal, seeks review of an order
by the Board of Immigration Appeals (“BIA”) finding him removable under
Section 237(a)(2)(A)(i) of the Immigration and Nationality Act (“INA”), 8 U.S.C. §
1227(a)(2)(A)(i). That section authorizes the removal of any alien who “is convicted of a
crime involving moral turpitude committed within five years . . . after the date of
admission.” Id. (emphasis added).
Sijapati argues that the BIA erred in finding him removable under
Section 237(a)(2)(A)(i) because his conviction on December 12, 2007, of a crime
involving moral turpitude occurred more than five years after he was first admitted to the
United States on January 25, 2001. But the BIA relied upon its decision in Matter of
Alyazji, 25 I. & N. Dec. 397 (B.I.A. 2011), to determine that Sijapati’s relevant “date of
admission” was January 18, 2003: the date he was most recently admitted to the United
States after taking a brief vacation abroad. Because we accord Chevron deference to the
BIA’s decision in Matter of Alyazji, we deny Sijapati’s petition for review.
I.
Sijapati first entered and was admitted to the United States on a nonimmigrant L-2
visa on January 25, 2001. On December 31, 2002, Sijapati departed the United States for
a two-and-a-half week vacation to Nepal, reentering the United States on January 18,
2003, pursuant to his existing L-2 visa. On March 16, 2005, federal immigration officials
approved Sijapati’s application for adjustment of status as a lawful permanent resident.
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On December 12, 2007—more than five years after Sijapati was first admitted into
the United States on January 25, 2001, under the L-2 visa, but less than five years after
his most recent admission on January 18, 2003, under that visa—a circuit court in
Virginia convicted Sijapati of felony embezzlement and imposed an eighteen-month
suspended sentence. Following his conviction, the Department of Homeland Security
issued to Sijapati a Notice to Appear before the immigration court to face the charge of
removability from the United States under Section 237(a)(2)(A)(i) of the INA for having
been convicted of a crime of moral turpitude within five years of the date of admission.
In response, Sijapati moved to terminate the proceedings against him, arguing that his
embezzlement conviction did not render him removable. The immigration court denied
Sijapati’s motion, finding that his embezzlement conviction constituted a crime involving
moral turpitude which rendered him removable.
Sijapati then filed a renewed motion to terminate his removal proceedings which
the immigration court construed to be a motion to reconsider its prior decision. In
denying this second motion, the immigration court found that Alyazji controlled the
determination of Sijapati’s date of admission, and thus, that Sijapati’s admission on
January 18, 2003, was “the admission pursuant to which [he] was in the United States at
the time that he committed the crime involving moral turpitude”—“but for which he
[would not have been] present in the country.” A.R. 219. Accordingly, the immigration
court declined to terminate Sijapati’s removal proceedings and ordered that he be granted
voluntary departure in lieu of removal.
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Sijapati appealed to the BIA, which adopted and affirmed the immigration court’s
determination that the BIA’s reasoning in Alyazji “le[d] to the conclusion that January 18,
2003, is the relevant ‘date of admission’ in calculating . . . whether [Sijapati] is
removable under section 237(a)(2)(A)(i) of the [INA].” A.R. 67. From the BIA’s
dismissal of his appeal, Sijapati timely filed a petition for review in this Court.
II.
Sijapati’s petition requires us to interpret the phrase “the date of admission” in
Section 237(a)(2)(A)(i). “Matters of statutory construction present questions of law,
which we generally review de novo.” Hosh v. Lucero, 680 F.3d 375, 378 (4th Cir. 2012).
However, when called upon to review the BIA’s interpretation of a provision in the INA,
we must keep in mind that we are “reviewing the considered judgment of the federal
agency charged with interpreting and administering the statute at issue in this case.”
Nwolise v. INS, 4 F.3d 306, 309 (4th Cir. 1993). As such, “the legal determinations of the
[BIA] in interpreting the [INA] are entitled to deference by this court.” Id. To that end,
the BIA’s interpretation of an ambiguous provision in the INA “must be given controlling
weight unless th[at] interpretation[] [is] ‘arbitrary, capricious, or manifestly contrary to
the statute.’” Fernandez v. Keisler, 502 F.3d 337, 344 (4th Cir. 2007) (quoting Chevron
U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 844 (1984)).
Because Chevron deference “is accorded only when an ‘agency’s interpretation is
rendered in the exercise of [its] authority [to make rules carrying the force of law],’”
Martinez v. Holder, 740 F.3d 902, 909 (4th Cir. 2014) (alterations in original) (quoting
A.T. Massey Coal Co. v. Barnhart, 472 F.3d 148, 166 (4th Cir. 2006)), we may not defer
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to the BIA’s unpublished decision denying Sijapati relief. However, when an
unpublished decision lacking precedential weight relies on a precedential decision to
which Chevron deference can apply—like Alyazji—the precedential decision “controls to
the extent that ‘Congress has not directly addressed the precise question at issue’ and ‘the
[BIA]’s answer is based on a permissible construction of the statute.’” Hernandez v.
Holder, 783 F.3d 189, 192 (4th Cir. 2015) (alteration in original) (quoting Chevron, 467
U.S. at 843); see also INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25 (1999) (holding that
the BIA’s interpretation of an ambiguous statutory term should be accorded Chevron
deference when the BIA “gives [the term] concrete meaning through a process of case-
by-case adjudication” (internal quotation marks omitted) (quoting INS v. Cardoza-
Fonseca, 480 U.S. 421, 448-49 (1987))).
Accordingly, we now consider whether Alyazji’s construction of “the date of
admission” is entitled to deference under the familiar two-step inquiry set forth in
Chevron. First, we consider “whether Congress has directly spoken to the precise
question at issue.” Chevron, 467 U.S. at 842. If Congress’ intent is clear, our inquiry
comes to an end—we and the BIA “must give effect to the unambiguously expressed
intent of Congress.” Id. at 842-43. However, if the statute is silent or ambiguous as to
the specific issue, we must then determine “whether the agency’s answer is based on a
permissible construction of the statute.” Id. at 843.
A.
“To resolve the initial inquiry under Chevron’s first step, we focus ‘purely on
statutory construction without according any weight to the agency’s position.’” Ojo v.
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Lynch, 813 F.3d 533, 539 (4th Cir. 2016) (quoting Mylan Pharm., Inc. v. FDA, 454 F.3d
270, 274 (4th Cir. 2006)). When interpreting a statute, we begin with the statute’s plain
language, U.S. Dep’t of Labor v. N.C. Growers Ass’n, 377 F.3d 345, 350 (4th Cir. 2004),
as “the plain language of the statute in question is . . . the most reliable indicator of
Congressional intent,” Soliman v. Gonzales, 419 F.3d 276, 281-82 (4th Cir. 2005).
In construing the statute’s plain language, “we must consider the context in which
the statutory words are used because ‘[w]e do not . . . construe statutory phrases in
isolation; we read statutes as a whole.’” Ayes v. U.S. Dep’t of Veterans Affairs, 473 F.3d
104, 108 (4th Cir. 2006) (alteration in original) (quoting United States v. Morton, 467
U.S. 822, 828 (1984)); see also Soliman, 419 F.3d at 282 (“We are obliged to look at the
statutory language as a whole, construing each section in harmony with every other part
or section, because ‘Act[s] of Congress . . . should not be read as a series of unrelated and
isolated provisions.’” (alteration in original) (quoting Gustafson v. Alloyd Corp., 513 U.S.
561, 570 (1995))).
Section 237(a)(2)(A)(i) provides that “[a]ny alien who—(I) is convicted of a crime
involving moral turpitude committed within five years . . . after the date of admission,
and (II) is convicted of a crime for which a sentence of one year or longer may be
imposed, is deportable.” 8 U.S.C. § 1227(a)(2)(A)(i) (emphasis added). Although the
INA does not define the phrase “the date of admission,” the statute defines “admission”
and “admitted” as, “with respect to an alien, the lawful entry of the alien into the United
States after inspection and authorization by an immigration officer.” 8 U.S.C.
§ 1101(a)(13)(A).
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Sijapati urges us to end our analysis at Chevron step one, arguing that the plain
language of the statute unambiguously establishes that “Congress intended ‘the date of
admission’ to correspond to the entry marking the commencement of an alien’s current or
most recent period of admission.” Petitioner’s Br. at 23. Sijapati further contends that
Congress did not intend “aliens in [his] position—i.e., those who leave and reenter the
country during an existing period of admission—to reset the five-year clock . . . upon
being readmitted to the United States.” Petitioner’s Reply Br. at 2. We disagree.
By using the definite article “the,” Congress made clear that “[t]here can be only
one ‘the’ date [of admission]” for the purposes of Section 237(a)(2)(A)(i). Shivaraman v.
Ashcroft, 360 F.3d 1142, 1148 (9th Cir. 2004). Yet we have previously recognized that
“all aliens are . . . deemed ‘admitted’ into the United States whenever entering the
country from abroad . . . unless Congress otherwise exempts them elsewhere in the
statute.” Othi v. Holder, 734 F.3d 259, 267 (4th Cir. 2013) (emphasis added).
Accordingly, unless otherwise exempted, Congress contemplated that aliens can have
multiple admissions.
The INA is silent as to which admission should be used in determining an alien’s
removability under Section 237(a)(2)(A)(i) in the event an alien has multiple admissions,
like Sijapati. Therefore, we find that the phrase “the date of admission” is ambiguous.
See Ojo, 813 F.3d at 539 (“[T]he meaning—or ambiguity—of certain words or phrases
may only become evident when placed in context.” (internal quotation marks omitted)
(quoting King v. Burwell, 576 U.S. --, 135 S. Ct. 2480, 2489 (2015))). “Having found the
statute to be ambiguous, we proceed to the next step under Chevron to determine whether
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the [BIA’s] interpretation is a ‘permissible construction,’ and not ‘arbitrary, capricious, or
manifestly contrary to the statute.’” Regis v. Holder, 769 F.3d 878, 883 (4th Cir. 2014)
(quoting Chevron, 467 U.S. at 843-44).
B.
In reviewing the BIA’s interpretation under the second prong of Chevron, “[w]e
generally give substantial deference to the BIA’s precedential decisions interpreting the
INA, because ‘Congress conferred on the BIA decisionmaking power to decide such
questions of law.’” Amos v. Lynch, 790 F.3d 512, 518 (4th Cir. 2015) (quoting Martinez,
740 F.3d at 909). In affording such deference, we “may not substitute [our] own
construction of a statutory provision for a reasonable interpretation made by the [BIA].”
Chevron, 467 U.S. at 844. Thus, we must determine whether Alyazji reasonably
interpreted the meaning of “the date of admission” in Section 237(a)(2)(A)(i).
In Alyazji, the BIA paid special attention to the phrase “within five years after the
date of admission,” finding that the phrase’s narrow language—“a definite article (‘the’)
and a singular object (‘date’)”—“most naturally connote[d] a single date.” 25 I. & N.
Dec. at 405. After expressly “hold[ing] that the statutory phrase ‘the date of admission’
necessarily refers to a single date in relation to the pertinent offense,” the BIA went on to
consider the issue of “which date of admission applies when confronted with an alien
who has been admitted more than once.” Id. Concentrating on the statutory provision’s
“focus[] on admission plus presence,” the BIA concluded that “the most natural reading
of section 237(a)(2)(A)(i) is that the phrase ‘the date of admission’ refers to the date of
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admission by virtue of which the alien was present in the United States when he
committed his crime.” Id. at 406.
In addition to interpreting the phrase at issue, the BIA also provided guidance
regarding how “to ascertain an alien’s deportability under section 237(a)(2)(A)(i) of the
Act,” instructing immigration courts to
look first to the date when [the charged alien’s] crime was committed. If, on that
date, the alien was in the United States pursuant to an admission that occurred
within the prior 5-year period, then he is deportable. Conversely, the alien is not
deportable if he committed his offense more than 5 years after the date of the
admission pursuant to which he was then in the United States.
Id.
We conclude that Alyazji’s construction of “the date of admission” in Section
237(a)(2)(A)(i) “is not ‘arbitrary, capricious, or manifestly contrary to the statute.’”
Espinal-Andrades v. Holder, 777 F.3d 163, 169 (4th Cir. 2015) (quoting Chevron, 467
U.S. at 844). In arriving at its interpretation, the BIA followed the normal principles of
statutory construction, considering the statute’s “overall design” and “the language of the
[moral turpitude] provision itself.” Id. (internal quotation marks omitted); see Alyazji, 25
I. & N. Dec. at 405-06 (“We must therefore arrive at a reasonable construction of the
statute, taking into account the language and structure of the Act as a whole.”). The BIA
also explained how its interpretation was informed by its own precedent and judicial
constructions of the statute. Id. at 406 nn.6, 8. Additionally, the BIA considered an
alternative construction—treating the date of an alien’s first admission as “the date of
admission”—and reasonably concluded that such a construction “is not reconcilable with
the language and purpose of the statute and would lead to ‘peculiar consequences’ when
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applied to aliens who were briefly admitted many years ago (such as tourists, perhaps)
and who remained outside the United States for decades thereafter before being
readmitted.” Id. at 406 n.6 (quoting In re Shanu, 23 I. & N. Dec. 754, 761 (B.I.A. 2005)).
Sijapati nonetheless argues that Alyazji’s interpretation of “the date of admission”
is unreasonable because such a construction “would lead to a patently absurd result”
whereby “aliens who commit a [crime involving moral turpitude] within five years of
their initial admission, but who are not immediately arrested and convicted, could
preemptively defeat a future charge of deportability . . . by simply leaving and reentering
the country.” Petitioner’s Br. at 23-24. By contrast, the government asserts that, “in that
scenario, if the alien seeking admission did not admit to committing the crime of moral
turpitude . . . then the alien could be paroled in for prosecution and charged with
inadmissibility . . . after the conviction.” Respondent’s Br. at 18. Alyazji did not
address—much less decide—what constitutes “the date of admission” when an alien
leaves and reenters the country after committing a crime of moral turpitude. And it is far
from clear that Alyazji’s rule compels the result suggested by Sijapati. In such
circumstances, we cannot say that Alyazji’s construction is unreasonable.
Moreover, even if “our ruling today [has] the unfortunate effect of rewarding
[such] an alien,” as Sijapati suggests, “[a]s a court, . . . we are obliged to give effect to the
statutes as they are written and enacted.” Aremu v. Dep’t of Homeland Sec., 450 F.3d
578, 583 n.6 (4th Cir. 2006); see also La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 376
(1986) (“As we so often admonish, only Congress can rewrite [a] statute.”).
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Sijapati further contests the reasonableness of Alyazji’s interpretation of “the date
of admission” on the grounds that it unfairly disadvantages nonimmigrants by
“automatically resetting the five-year clock every time a nonimmigrant happen[s] to
travel abroad[,] . . . subject[ing] aliens to deportability under [Section 237(a)(2)(A)(i)]
decades after they beg[i]n residing in the United States.” Petitioner’s Reply Br. at 13. By
contrast, the INA allows lawful permanent residents to make brief trips abroad without
resetting their date of admission. See 8 U.S.C. 1101(a)(13)(C)(ii) (“An alien lawfully
admitted for permanent residence in the United States shall not be regarded as seeking an
admission into the United States for purposes of the immigration laws unless the alien . . .
has been absent from the United States for a continuous period in excess of 180
days . . . .”). However, Congress has time and time again made the decision to treat
different classes of aliens differently. Here, Congress chose to provide nonimmigrants
with lesser privileges than lawful permanent residents—a reasonable policy decision. See
Moore v. Ashcroft, 251 F.3d 919, 925 (11th Cir. 2001) (“[D]ifferent treatment between
lawful permanent residents and nonresidents acknowledges that a lawful resident enjoys
greater rights than a nonimmigrant alien . . . .” (internal quotation marks omitted)
(quoting Umanzor-Lazo v. INS, 178 F.3d 1286 (4th Cir. 1999) (per curiam)
(unpublished))).
Because “[t]he BIA tethered its interpretation to traditional tools of statutory
interpretation, and nothing leads this Court to conclude that its construction is
12
unreasonable,” Espinal-Andrades, 777 F.3d at 169, we find that the BIA’s interpretation
of “the date of admission” in Matter of Alyazji is reasonable. *
III.
In conclusion, we hold that the BIA’s interpretation of the statutory phrase “the
date of admission” in Alyazji is entitled to Chevron deference. Accordingly, Sijapati’s
January 18, 2003, re-entry into the United States—“the date of the admission by virtue of
which [Sijapati] was present in the United States when he committed his crime”—
constituted “the date of admission” for purposes of Section 237(a)(2)(A)(i). Alyazji, 25 I.
& N. Dec. at 406. Sijapati committed a crime involving moral turpitude on December
12, 2007, within five years of January 18, 2003. Therefore, we deny Sijapati’s petition
for review.
PETITIONS FOR REVIEW DENIED
*
Following dismissal of his appeal, Sijapati filed with the BIA a motion for
reconsideration, which relied on the same arguments Sijapati made in his dismissed
appeal. The BIA denied Sijapati’s motion for reconsideration, and Sijapati petitioned this
Court to review that decision as well. Because Sijapati’s motion for reconsideration
asserted the same arguments as those raised in his first appeal, we deny that petition for
review as well.
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