Gurpinder Othi v. Eric Holder, Jr.

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-2316
GURPINDER S. OTHI,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Argued: September 20, 2013 Decided: October 29, 2013
Before NIEMEYER and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Petition denied by published opinion. Judge Agee wrote the
opinion, in which Judge Niemeyer and Senior Judge Hamilton
joined.
ARGUED: Jonathan Y. Ai, AI & ASSOCIATES, P.C., Rockville,
Maryland, for Petitioner. Walter Bocchini, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON
BRIEF: Stuart F. Delery, Principal Deputy Assistant Attorney
General, Linda S. Wernery, Assistant Director, Civil Division,
Office of Immigration Litigation, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent.
AGEE, Circuit Judge:
In his petition for review, Gurpinder Othi seeks to reverse
the order of the Board of Immigration Appeals (“the Board”)
affirming the immigration judge’s (“IJ”) order that Othi be
removed to India. A lawful permanent resident (“LPR”) of the
United States, Othi was deemed an inadmissible arriving alien
upon his return from a 17-day overseas trip. Othi argues that
he did not seek admission -- and therefore was not subject to
removal proceedings -- when he returned to the United States
from abroad. For the reasons that follow, we deny the petition
for review and affirm the Board’s decision.
I.
A.
Othi is a native and citizen of India who gained LPR status
when he entered the United States in 1983. In 1995, Othi was
arrested and convicted of theft. Two years later, he was
arrested and convicted of possession of cannabis. And in 1999,
Othi was found guilty of second-degree murder, receiving a 12-
year prison sentence.
Othi had travelled to India in early 2011 to get married,
and he returned there in December 2011 to visit his new wife.
On January 11, 2012, after 17 days outside the country, Othi
returned to the United States. Upon inspection at the airport
2
of entry, a border agent referred Othi for secondary inspection
when his name appeared on a watch list. Border agents obtained
Othi’s criminal record during that secondary inspection, and he
admitted his prior arrests and convictions.
B.
The Department of Homeland Security initiated removal
proceedings against Othi on January 17, 2012. The Notice to
Appear alleged that Othi was an arriving alien 1 who was removable
on three grounds: (1) his prior conviction for a crime of moral
turpitude, see 8 U.S.C. § 1182(a)(2)(A)(i)(I); (2) his prior
conviction under a law relating to controlled substances, see
id. § 1182(a)(2)(A)(i)(II); and (3) his prior convictions of two
or more crimes having aggregate sentences of five years or more,
see 8 U.S.C. § 1182(a)(2)(B). The notice specifically cited
Othi’s theft, marijuana, and murder convictions.
Othi challenged the removal proceedings on several grounds,
but only one -- concerning his status as an arriving alien -- is
raised on appeal. In particular, Othi argued that he was not an
arriving alien because he never intended his trip abroad to
1
An arriving alien includes “an applicant for admission
coming or attempting to come into the United States at a port-
of-entry.” 8 C.F.R. § 1001.1(q). If Othi was not “seeking an
admission” at the time of his return, then he was not an
arriving alien.
3
meaningfully interrupt his permanent residence. In support,
Othi cited Rosenberg v. Fleuti, 374 U.S. 449 (1963), which
construed a prior version of the statute defining admission, 8
U.S.C. § 1101(a)(13). Under Fleuti, LPRs were permitted to take
“innocent, casual, and brief” trips abroad without having to
seek readmission. Id. at 462. In addition, Othi alleged that a
removal premised on his arriving-alien status violated his due
process rights.
The IJ ultimately found that Othi was removable as an
arriving alien and rejected his Fleuti-based argument. Relying
on the text of the applicable statute, 8 U.S.C.
§ 1101(a)(13)(C)(v), and a decision of the Board holding that
Fleuti had been statutorily superseded, In re Collado-Munoz, 21
I. & N. Dec. 1061, 1065-66 (B.I.A. 1998), the IJ deemed Othi an
arriving alien. After denying Othi’s request for a
discretionary waiver of inadmissibility, the IJ ordered him
removed from the United States.
C.
Othi appealed to the Board, arguing again that he was not
an arriving alien because his departure was innocent, casual and
brief under Fleuti. He also repeated his argument that removal
violated his due process rights.
4
The Board was unconvinced. Congress, the Board observed,
had amended the statute at issue in Fleuti in the Illegal
Immigration Reform and Immigrant Responsibility Act (“IIRIRA”)
of 1996. In the Board’s view, LPRs who commit offenses like
those committed by Othi are always treated as arriving aliens
under the new statute and subject to removal. The Board further
noted that all the federal circuit courts that had considered
the Fleuti issue had unanimously affirmed the Board’s viewpoint.
Consequently, the Board rejected Othi’s Fleuti argument, as well
as his constitutional claims, and affirmed the IJ’s order of
removal.
Othi then filed a timely petition for review to this Court.
We have jurisdiction to review the order of removal under 8
U.S.C. § 1252.
II.
In considering Othi’s petition for review, we must first
determine how IIRIRA applies to him and whether the Supreme
Court’s earlier decision in Fleuti impacts that analysis. The
Board determined that Fleuti had been statutorily superseded,
and we review that legal conclusion de novo. See Leiba v.
Holder, 699 F.3d 346, 348 (4th Cir. 2012). “We review factual
findings for substantial evidence, which exists unless the
record would compel any reasonable adjudicator to conclude the
5
contrary.” Viegas v. Holder, 699 F.3d 798, 801 (4th Cir. 2012).
And where, as here, “the [Board] has adopted and supplemented
the [IJ]’s decision, we review both rulings and accord them
appropriate deference.” Id. (internal quotation marks and
alterations omitted).
A.
“Before IIRIRA’s passage, United States immigration law
established two types of proceedings in which aliens [could] be
denied the hospitality of the United States: deportation
hearings and exclusion hearings.” Vartelas v. Holder, 132 S.
Ct. 1479, 1484 (2012) (internal quotation marks omitted).
“Exclusion hearings were held for certain aliens seeking entry
to the United States, and deportation hearings were held for
certain aliens who had already entered the country.” Id.Practically speaking, the distinction between aliens seeking
“entry” and aliens not seeking “entry” was significant, as
different substantive and procedural rules applied in each
context. See Landon v. Plasencia, 459 U.S. 21, 25-27 (1982)
(describing differences between the proceedings). Exclusion
proceedings, for instance, were considered “more summary” than
deportation hearings. Martinez v. Attorney Gen. of U.S., 693
F.3d 408, 413 n.5 (3d Cir. 2012) (internal quotation marks
omitted). For purposes of our review, it is sufficient to
6
recognize that “[t]hose physically present in the country . . .
had advantages over those seeking ‘entry.’” Lezama-Garcia v.
Holder, 666 F.3d 518, 526 (9th Cir. 2011).
Given the important differences between exclusion and
deportation, aliens (including LPRs) often argued that they were
not seeking “entry” when returning from a trip abroad. For
example, in United States ex rel. Volpe v. Smith, 289 U.S. 422(1933), the Supreme Court concluded that a resident alien who
briefly travelled to Cuba sought “entry” (and was therefore
excludable) upon his return. Id. at 425-26. Volpe strictly
construed “entry” to cover “any coming of an alien from a
foreign country into the United States whether such coming be
the first or any subsequent one.” Id. at 425. Following that
decision, “cases in the lower courts applying the strict re-
entry doctrine to aliens who had left the country for brief
visits . . . were numerous[.]” Fleuti, 374 U.S. at 453-54.
In the Immigration and Nationality Act (“INA”) of 1952,
Congress defined “entry” as “any coming of an alien into the
United States, from a foreign port or place or from an outlying
possession, whether voluntarily or otherwise[.]” 8 U.S.C.
§ 1101(a)(13) (1952). Notwithstanding this statutory
codification of the Volpe principle, Congress included in the
1952 act a special exception for LPRs who did “not intend[]” to
leave the country:
7
[A]n alien having a lawful permanent residence in the
United States shall not be regarded as making an entry
into the United States for the purposes of the
immigration laws if the alien proves to the
satisfaction of the Attorney General that his
departure to a foreign port or place or to an outlying
possession was not intended or reasonably to be
expected by him or his presence in a foreign port or
place or in an outlying possession was not
voluntary[.]
Id.This “not intended” language in the former Section
1101(a)(13) was the subject of the Supreme Court’s decision in
Fleuti. In light of Congress’ apparent effort to “ameliorate
the severe effects of the strict ‘entry’ doctrine,” the Court
concluded that Congress did not intend “entry” to cover an LPR’s
return from an “innocent, casual, and brief” trip abroad because
such trips were not “meaningfully interruptive of the alien’s
permanent residence.” Fleuti, 674 U.S. at 462. Fleuti further
identified several relevant factors that might indicate whether
the trip was “meaningfully interruptive,” including its length,
the purpose of the visit, and whether the alien had to “procure
any travel documents in order to make his trip.” Id.
Although the Court had originally granted certiorari to
“consider the constitutionality” of the statute as applied to
Fleuti, the Court’s decision was solely a matter of statutory
interpretation. Id. at 451 (“[W]e have concluded that there is
a threshold issue of statutory interpretation . . . , the
8
existence of which obviates decision here as to whether [INA]
§ 212(a)(4) is constitutional as applied to respondent.”). In
short, the Court specifically declined to address a
constitutional basis, as opposed to a statutory basis, for its
decision.
In 1996, Congress “made major changes to immigration law”
via IIRIRA. William v. Gonzales, 499 F.3d 329, 330 (4th Cir.
2007). Among other things, “Congress abolished the distinction
between exclusion and deportation procedures and created a
uniform proceeding known as ‘removal.’” Vartelas, 132 S. Ct. at
1484. Congress also excised the word “entry” from the statute,
replacing the concept with “admission.” See id. Perhaps most
importantly for our purposes, the new statute eliminated the
presumption that any return from a trip abroad requires an LPR
to seek “admission” (or, under the old parlance, seek “entry”).
Under IIRIRA, “[a]n alien lawfully admitted for permanent
residence in the United States” is not treated as one seeking
“admission” “unless” one of six statutory conditions is met.
See 8 U.S.C. § 1101(a)(13) (emphasis added). 2 In Othi’s case,
2
In relevant part, the statute reads as follows:
(C) 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--
(Continued)
9
the critical exception is subsection (v), which applies to
aliens who have been convicted of crimes of moral turpitude or
crimes related to controlled substances. Id.§§ 1101(a)(13)(C)(v), 1182(a)(2). These IIRIRA changes became
effective on April 1, 1997. See IIRIRA, Pub. L. No. 104-208,
§ 309(a), 110 Stat. 3009 (1996).
Even though IIRIRA merged deportation and exclusion
proceedings, aliens “seeking an admission” and aliens not
“seeking an admission” are still treated differently. “Now, as
before, the immigration laws provide two separate lists of
substantive grounds, principally involving criminal offenses,
(i) has abandoned or relinquished that status,
(ii) has been absent from the United States for a
continuous period in excess of 180 days,
(iii) has engaged in illegal activity after having departed
the United States,
(iv) has departed from the United States while under legal
process seeking removal of the alien from the United States,
including removal proceedings under this chapter and extradition
proceedings,
(v) has committed an offense identified in section
1182(a)(2) of this title, unless since such offense the alien
has been granted relief under section 1182(h) or 1229b(a) of
this title, or
(vi) is attempting to enter at a time or place other than
as designated by immigration officers or has not been admitted
to the United States after inspection and authorization by an
immigration officer.
10
for [deportation and exclusion/inadmissibility].” Judulang v.
Holder, 132 S. Ct. 476, 479 (2011). These two lists are
“sometimes overlapping and sometimes divergent.” Id.; see also
Nancy Morawetz, The Invisible Border: Restrictions on Short-Term
Travel by Non-Citizens, 21 Geo. Immigr. L.J. 201, 206-07 (2007)
(describing the “gap” between rules of deportability and rules
of inadmissibility). For purposes of the case at bar, by
arguing that he never sought “admission,” Othi is effectively
seeking the benefit of the more alien-favorable list of grounds
for deportation.
B.
With this statutory and caselaw background in focus, we now
turn to the issue in this case, an issue of first impression in
our circuit. 3 That issue is whether Section 1101, as amended by
IIRIRA, still allows for the case-by-case analysis of an alien’s
3
In describing one of our prior decisions, the Ninth
Circuit opined that we “held that the Fleuti doctrine ha[d] not
survived IIRIRA’s revision of INA § 101(a)(13).” See Camins v.
Gonzales, 500 F.3d 872, 878 (9th Cir. 2007) (citing Olatunji v.
Ashcroft, 387 F.3d 383, 395-96 (4th Cir. 2004)). We do not read
Olatunji as having reached that issue. In Olatunji, the parties
had all assumed that IIRIRA had dispensed with Fleuti, 387 F.3d
at 395-96, but we had no cause to actually decide, and did not
decide, the continuing vitality of Fleuti. “A point of law
merely assumed in an opinion, not discussed, is not
authoritative.” In re Stegall, 865 F.2d 140, 142 (7th Cir.
1989). We do make that decision today.
11
intent under Fleuti when determining whether the alien is
“seeking an admission” for purposes of removal proceedings.
We begin, as always in deciding questions of statutory
interpretation, with the text of the statute. See United States
v. Ashford, 718 F.3d 377, 382 (4th Cir. 2013). Unless Congress
indicates otherwise, “we give statutory terms their ordinary,
contemporary, common meaning.” United States v. Powell, 680
F.3d 350, 355 (4th Cir. 2012) (internal quotation marks
omitted). “To determine a statute’s plain meaning, we not only
look to the language itself, but also the specific context in
which that language is used, and the broader context of the
statute as a whole.” Country Vintner of N.C., LLC v. E. & J.
Gallo Winery, Inc., 718 F.3d 249, 258 (4th Cir. 2013). 4
The statute reads, in relevant part, that “[a]n alien
lawfully admitted for permanent residence in the United States
4
When reviewing the Board’s interpretation of IIRIRA, we
follow the Chevron framework. See generally Chevron, U.S.A.,
Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984);
see also Patel v. Napolitano, 706 F.3d 370, 373-74 (4th Cir.
2013) (“[B]ecause the [Board] possesses delegated authority from
the Attorney General to administer the INA, the [Board] should
be accorded Chevron deference as it gives ambiguous statutory
terms in the INA concrete meaning through a process of case-by-
case adjudication.” (internal quotation marks and alterations
omitted)). Step one of that framework requires us to consider
“whether Congress has directly spoken to the precise question at
issue.” Chevron, 467 U.S. at 842. As our statutory analysis
reflects, Congress has indeed spoken directly to the issue at
hand, so we need not proceed further in the Chevron analysis to
decide this case.
12
shall not be regarded as seeking an admission into the United
States for purposes of the immigration laws unless the alien”
falls into one of six categories. 8 U.S.C. § 1101(a)(13)(C)
(emphasis added). One of the six categories, for example,
applies to aliens who have “been absent from the United States
for a continuous period in excess of 180 days.” Id.§ 1101(a)(13)(C)(ii). In other words, an alien absent for 179
continuous days is not regarded as “seeking an admission” by
virtue of that absence, but an alien absent 181 days is so
regarded. The pertinent category here, though, is the statutory
category that applies to aliens who have committed certain
offenses, which include the offenses for which Othi was
convicted. Id. § 1101(a)(13)(C)(v).
Noting the statute’s “shall not . . . unless” language,
Othi argues that IIRIRA left the Fleuti doctrine in place. In
his view, the statute (as amended by IIRIRA) only lists
instances in which an alien may be regarded as “seeking an
admission,” not when an alien must be so regarded. Assuming
this permissive approach, and given that the statutory text does
not directly mention Fleuti, Othi maintains that he may still
invoke the Fleuti doctrine to avoid a finding of “admission.”
Othi’s reading of IIRIRA has, however, been rejected by all
the courts of appeal considering the issue. While the circuits
13
have all reached the same result, they have done so in different
ways.
The First and Fifth Circuits concluded that IIRIRA’s plain
language ended the Fleuti doctrine. See De Vega v. Gonzales,
503 F.3d 45, 48 (1st Cir. 2007) (“[W]e find the statute plain on
its face.”); Malagon de Fuentes v. Gonzales, 462 F.3d 498, 501
(5th Cir. 2006) (“The plain language of the statute does not
allow for the exception found by the Court in Fleuti.”).
Likewise, the Seventh, Tenth, and Eleventh Circuits seemed to
find the statute unambiguous, even though those courts did not
expressly rely on the statute’s plain language. See Poveda v.
U.S. Att’y Gen., 692 F.3d 1168, 1175 (11th Cir. 2012) (“[IIRIRA]
altered the law for permanent residents who returned to the
United States after an ‘innocent, casual, and brief excursion’
abroad.”); Tapia v. Ashcroft, 351 F.3d 795, 799 (7th Cir. 2003)
(“The physical presence requirements under the IIRIRA does not
include the ‘innocent, casual, and brief’ standard.”); Rivera-
Jimenez v. Immigration & Naturalization Serv., 214 F.3d 1213,
1218 (10th Cir. 2000) (finding that Fleuti analysis was
“irrelevant . . . in light of the IIRIRA’s special rules
relating to continuous physical existence”)
Taking a different tack, the Second, Third, and Ninth
Circuits found that the statutory language was ambiguous, but
nonetheless determined that Congress had impliedly repealed the
14
Fleuti doctrine. See Vartelas v. Holder, 620 F.3d 108, 117 (2d
Cir. 2010), vacated on other grounds by 132 S. Ct. 1479 (2012);
Camins, 500 F.3d at 879-80; Tineo v. Ashcroft, 350 F.3d 382,
395-96 (3d Cir. 2003).
We now join our sister circuits and hold, based on the
plain text of the statute, that the Fleuti doctrine did not
survive IIRIRA’s enactment.
Under Section 1101(a)(3), an “alien” is “any person not a
citizen or national of the United States.” Under this broad
definitional class of noncitizens, LPRs are included within the
ambit of all aliens, and all aliens are deemed to seek
“admission” upon their “lawful entry” into the United States.
Id. § 1101(a)(13)(A). An LPR would therefore be deemed
“admitted” into the United States whenever entering the country
from abroad -- because they are definitionally part of the broad
statutory class of “aliens” -- unless Congress otherwise exempts
them elsewhere in the statute.
Congress did just that in Section 1101(a)(13)(C). There,
Congress provided that “[a]n alien lawfully admitted for
permanent residence in the United States shall not be regarded
as seeking an admission into the United States[.]” Id.
§ 1101(a)(13)(C) (emphasis added). Thus, LPRs are generally
exempt from the statutory classification of all other “aliens”
for purposes of an “admission” designation. Had Congress
15
stopped there, Othi’s argument would have merit: as an LPR, he
would be considered -- under the plain terms of the statute --
exempt from the admission definition.
However, Congress did not stop there and limited the LPR
exemption in specific and clear terms –- principally by creating
exceptions to the LPR exemption. Relevant here, the general
exemption from “admission” applies to all LPRs “unless the
alien. . . has committed an offense identified in § 1182 (a)(2)
of this title”. Id. § 1101 (a)(13)(C)(v) (emphasis added).
Othi falls within this category of LPRs because he indeed
committed offenses enumerated in Section 1182(a)(2). So rather
than benefiting from the general exemption granted to LPRs,
aliens like Othi fall back into the general class of “aliens”
and are treated as all other aliens for “admission” purposes.
Under the plain language of the statute, Othi is excluded
from the exemption granted to LPRs from admission status. He is
therefore treated as “seeking admission into the United States,”
just as are all other aliens entering the country. Accordingly,
upon his entry into this country from India on January 11, 2012,
Othi was “seeking admission into the United States” and was
subject to removal because of his criminal history.
Because Congress has spoken clearly and without
reservation, no further analysis is required. The plain meaning
of the statute settles the issue at controversy. See Ignacio v.
16
United States, 674 F.3d 252, 257 (4th Cir. 2012) (“[A]bsent an
ambiguity in the words of a statute, our analysis begins and
ends with the statute’s plain language.”).
Othi argues in opposition that the “shall not . . . unless”
statutory construction has been read as permissive when used in
some other statutes. Although another context in another
statutory setting might permit a different reading, it has no
effect on what Congress plainly stated in IIRIRA. See Caraco
Pharm. Labs., Ltd. v. Novo Nordisk A/S, 132 S. Ct. 1670, 1681
(2012) (“The meaning of the phrase ultimately turns on its
context.”). As an LPR who has committed the statutorily
enumerated offenses, Othi is categorically excluded from
claiming the status of other LPRs as to whether he was seeking
“admission” upon entry into the United States. 5
5
Congress made a conscientious decision to strip out all of
the statutory underpinnings of Fleuti, including the words
“entry” and “intended.” Although Congress can change statutory
text without changing the law in some instances, see Brown v.
Thompson, 374 F.3d 253, 259 (4th Cir. 2004), we cannot say that
Congress took that restrained approach here given the wholesale
revisions that it made in IIRIRA. Instead, we apply the
ordinary presumption that, “[w]hen Congress acts to amend a
statute, . . . it intends its amendment to have real and
substantial effect.” Pierce Cnty. v. Guillen, 537 U.S. 129, 145
(2003) (internal marks omitted); see also Nalley v. Nalley, 53
F.3d 649, 652 (4th Cir. 1995) (“When the wording of an amended
statute differs in substance from the wording of the statute
prior to amendment, we can only conclude that Congress intended
the amended statute to have a different meaning.”). And, as we
have said before, we are “no more free to interpolate a word
that the legislature has removed by amendment than [we] would
(Continued)
17
C.
We would reach the same result even if we did not find the
statute’s text to be plain, as principles of administrative
deference under Chevron would compel us to do so. This case
presents a straightforward question of statutory interpretation
under the INA, and the Board’s “interpretations of the INA are
entitled to deference and must be accepted if reasonable.”
Viegas, 699 F.3d at 801; see also Patel, 706 F.3d at 373-74
(explaining how and why Chevron deference applies to the Board’s
interpretations of the INA). The Board has concluded that
Fleuti is superseded, see Collado-Munoz, 21 I. & N. Dec. at
1065-66, and we find that decision to be reasonable. 6 As the
Third Circuit noted, substantial evidence in the legislative
history and the broader statutory context indicates that
Congress was aware of Fleuti and deliberately chose to exclude
the “brief, casual, and innocent” portion of the decision from
the new statute. See Tineo, 350 F.3d at 392-94. We also note
the historical background against which this amendment was
passed; Congress might have chosen a “shall not . . . unless”
have been warranted in ignoring that word before the amendment
was made. Especially is this true if the word removed has a
history of judicially established significance.” Gkiafis v.
Steamship Yiosonas, 342 F.2d 546, 552 (4th Cir. 1965).
6
For the same reason, we cannot agree with Othi when he
suggests that the Board’s decision was arbitrary and capricious.
18
construction to reemphasize that it was reversing a presumption
(the presumption towards “entry”) that had previously existed.
And the Board’s construction serves the most obvious purpose
behind Congress’ amendments: promoting uniformity through
objective, uniform standards. All these reasons, paired with
the text that we have already considered, would prevent us from
overturning the Board’s decision even if we had not found the
plain language of the statute controlling. 7
D.
Othi also contends that IIRIRA could not have overruled
Fleuti because Fleuti is a case determined upon a constitutional
principle. He insists that Fleuti’s constitutional basis was
reaffirmed in a more recent decision, Vartelas v. Holder, 132 S.
Ct. 1479 (2012).
This issue need not detain us long because Fleuti was
unmistakably not a constitutional case. Congress, of course,
has no power to overrule the Supreme Court’s constitutional
decisions. See, e.g., Dickerson v. United States, 530 U.S. 428,
437 (2000) (“Congress may not legislatively supersede our
decisions interpreting and applying the Constitution.”). But,
7
Because the Board’s construction is reasonable, we would
have no occasion to resort to the rule —- pressed by Othi -—
that ambiguities are to be construed in the alien’s favor. See
Suisa v. Holder, 609 F.3d 314, 320 n.7 (4th Cir. 2010).
19
as noted earlier, the Court expressly avoided any constitutional
issue in Fleuti. 374 U.S. at 451 (explaining that that the
statutory interpretation issue “obviate[d] decision here as to
whether [INA] § 212(a)(4) [wa]s constitutional as applied to
respondent”). Thus, Fleuti is a statutory interpretation case
that Congress is free to supersede by altering the statute.
Accord Malagon de Fuentes, 462 F.3d at 503 (“Fleuti is properly
read as a case of statutory interpretation, and the statute it
interprets has been amended.”); Tineo, 350 F.3d at 397 (“[T]he
Supreme Court’s decision in Fleuti had no basis in
constitutional principles; the innocent, casual, and brief
departure doctrine was grounded entirely on the meaning of a
phrase in the relevant statutory provision in effect at that
time.”).
Vartelas likewise does not discuss constitutional issues
and does not “reaffirm” Fleuti’s supposed constitutional status.
The case only considered whether IIRIRA retroactively abrogated
Fleuti. See Vartelas, 132 S. Ct. at 1483. Like Fleuti before
it, Vartelas is a simple case of statutory interpretation.
E.
Lastly, Othi maintains that the Board’s interpretation of
Section 1101(a)(13)(C) —- and the reading that we adopt today --
violates his due process rights. He suggests that we interpret
20
the statute otherwise to avoid the potential constitutional
issue. See, e.g., Legend Night Club v. Miller, 637 F.3d 291,
300 (4th Cir. 2011) (“[A]s a general principle, every reasonable
construction must be resorted to, in order to save a statute
from unconstitutionality.” (internal marks omitted)). And he
contends that, even if we have adopted the only permissible
reading that the statute will bear, we must act to correct the
purported constitutional violation by declaring the statute
itself to be unconstitutional as to him. We review
constitutional questions like these de novo. Viegas, 699 F.3d
at 801.
We must start by noting the extraordinarily deferential
standard of review that applies in this context, even as to
constitutional questions. “[O]ver no conceivable subject is the
legislative power of Congress more complete than it is over the
admission of aliens.” Fiallo v. Bell, 430 U.S. 787, 792 (1977)
(internal quotation marks omitted). Our review in immigration
matters is “substantially circumscribed” because “control over
matters of immigration is a sovereign prerogative, largely
within the control of the executive and the legislature.” Rusu
v. U.S. Immigration & Naturalization Serv., 296 F.3d 316, 320
(4th Cir. 2002) (internal quotation marks omitted).
With that standard in mind, we easily find that Othi’s due
process rights have not been offended. Given his LPR status and
21
his short trip abroad, Othi was owed three considerations before
being deemed inadmissible: “(1) notice of the charges against
him, (2) a hearing before an executive or administrative
tribunal, and (3) a fair opportunity to be heard.” United
States v. El Shami, 434 F.3d 659, 665 (4th Cir. 2005) (internal
quotation marks omitted); see also Kwong Hai Chew v. Colding,
344 U.S. 590, 596-98 (1953).
Othi received all of these considerations and thus received
all the process that he was due: he received written notice, had
a full hearing before an immigration judge, and had multiple
opportunities to press his arguments. Othi suggests that he
never received a fair opportunity to be heard because he was not
afforded an opportunity to offer “Fleuti evidence.” (Opening
Br. 38.) But the opportunity to be heard does not include the
opportunity to present irrelevant evidence. Cf. United States
v. Powers, 59 F.3d 1460, 1470 (4th Cir. 1995) (stating, in
criminal context, that “the Fifth Amendment right to due process
of law require[s] only that the accused be permitted to
introduce all relevant and admissible evidence” (emphasis in
original)). And, at least post-IIRIRA, Fleuti evidence is
plainly irrelevant evidence.
We are also not persuaded that Othi received inadequate
notice of the change in the law that rendered him inadmissible
upon his return. “All citizens are presumptively charged with
22
knowledge of the law.” Atkins v. Parker, 472 U.S. 115, 130
(1985). Thus, to satisfy due process, “a legislature
[generally] need do nothing more than enact and publish the law,
and afford the citizenry a reasonable opportunity to familiarize
itself with its terms and to comply.” Texaco, Inc. v. Short,
454 U.S. 516, 532 (1982). IIRIRA was passed and became
effective before Othi’s conviction for second-degree murder and
over a decade before his decision to leave the country.
Congress therefore provided Othi with all the notice that he was
due.
In short, we find no constitutional infirmity with our
reading of the relevant statute. 8
III.
For all these reasons, Othi’s petition for review of the
Board’s decision is
DENIED.
8
Othi briefly objects to his mandatory detention pending
removal proceedings, suggesting that the detention is (somehow)
a reason to deem Section 1101(a)(13)(C) unconstitutional. The
Supreme Court has already said that similar detention does not
present due process concerns. See Demore v. Kim, 538 U.S. 510,
526-31 (2003). For those same reasons, we believe that
mandatory detention does not present due process concerns here.
Even if the detention was problematic, Othi should have directed
his challenge to the detention statute, not the statute defining
admission.
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