Amouzadeh v. Winfrey

United States Court of Appeals
Fifth Circuit
F I L E D
October 5, 2006
In the United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
No. 04-50903
MANOUTCHER AMOUZADEH,
Petitioner-Appellant,
v.
GRACIELA WINFREY, as Interim Field Office Director for
Detention and Removal for the Bureau of Immigration and
Customs Enforcement; US IMMIGRATION AND CUSTOMS
ENFORCEMENT, as an agency of the Government of the United
States of America; DEPARTMENT OF HOMELAND SECURITY,
as an agency of the Government of the United States of
America; MICHAEL CHERTOFF, SECRETARY, DEPARTMENT OF HOMELAND
SECURITY; ALBERTO GONZALES, US ATTORNEY GENERAL,
Respondents-Appellees.
Appeal from the United States District Court
for the Western District of Texas
Before HIGGINBOTHAM, DeMOSS, and OWEN, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:
Manoutcher Amouzadeh appeals the district court’s denial of his 28 U.S.C. § 2241
habeas corpus petition, which challenged an order of removal by the Board of Immigration
Appeals (“BIA”). The issues are (1) whether unlawful procurement of naturalization in
violation of 18 U.S.C. § 1425(a) is a crime involving moral turpitude
under section 237(a)(2)(A)(ii) of the Immigration and Naturalization Act, as amended
(“INA”),1 and (2) whether Amouzadeh was eligible for concurrent relief under former
INA § 212(c)2 and current INA § 240A(a).3 Because we conclude that the violation of 18
U.S.C. § 1425(a) is a crime involving moral turpitude and that Amouzadeh is not entitled to
relief under INA § 240A(a), we deny Amouzadeh’s petition.
I
Amouzadeh, a native of Iran, first entered the United States in 1978 as a student.
After marrying a United States citizen, Amouzadeh’s status was adjusted to that of a lawful
permanent resident, and on September 21, 1995, he became a citizen of the United States by
naturalization. However, on September 5, 1995, just two weeks prior to his final
naturalization hearing, Amouzadeh was arrested on charges that he was part of a conspiracy
to possess cocaine with the intent to distribute. He was convicted on September 4, 1996 of
that crime.
1
INA § 237(a)(2)(A)(ii), 8 U.S.C. § 1227(a)(2)(A)(ii) (2000) (providing that “[a]ny alien who
at any time after admission is convicted of two or more crimes involving moral turpitude . . . is
deportable”).
2
Former INA § 212(c), 8 U.S.C. § 1182(c) (1994) (repealed 1996) (providing that the
Attorney General had the discretion to admit a lawful permanent resident who met certain
requirements unless the alien had been convicted of one or more aggravated felonies and had served
a term of imprisonment of at least five years for such felony or felonies).
3
8 U.S.C. § 1229b(a) (2000) (permitting cancellation of removal for certain lawful permanent
residents who have not been convicted of any aggravated felony).
2
At his final naturalization hearing, Amouzadeh was asked whether he had, since
petitioning for naturalization, “knowingly committed any crime or offense, for which [he
had] not been arrested; or [had been] arrested, cited, charged, indicted, convicted, fined or
imprisoned for breaking or violating any law or ordinance including traffic violations?”
Amouzadeh falsely stated, under oath, that he had only been cited for a traffic violation since
petitioning for naturalization. Amouzadeh’s false statement formed the basis of his later
section 1425(a) conviction for knowingly procuring naturalization contrary to law. On
March 21, 2001, as a result of his section 1425(a) conviction, Amouzadeh’s United States
citizenship was revoked.4
The Immigration and Naturalization Service (“INS”) initiated removal proceedings
on April 12, 2001, charging that Amouzadeh was removable under INA § 237(a)(2)(A)(iii),5
as an alien convicted of an aggravated felony (drug trafficking conviction), and under
INA § 237(a)(2)(A)(ii),6 as an alien convicted of two crimes involving moral turpitude (drug
trafficking conviction and unlawful procurement of naturalization conviction). The
Immigration Judge (“IJ”) rejected Amouzadeh’s argument that his section 1425(a)
conviction for unlawfully procuring naturalization was not a conviction for a crime involving
moral turpitude and sustained both charges of removability. The IJ also determined that
4
See 8 U.S.C. § 1451(e) (requiring that the district court revoke a person’s citizenship upon
the person’s conviction under 18 U.S.C. § 1425 of knowingly procuring naturalization in violation
of law).
5
8 U.S.C § 1227(a)(2)(A)(iii) (2000).
6
8 U.S.C. § 1227(a)(2)(A)(ii) (2000).
3
Amouzadeh was ineligible for relief from removal under former INA § 212(c) because of his
section 1425(a) conviction or under current INA § 240A(a) because of his aggravated felony
conviction. Amouzadeh appealed to the BIA, who reached the same conclusions as the IJ
and dismissed his appeal, ordering him removed to Iran in accordance with the IJ’s decision.
Amouzadeh later filed a section 2241 habeas petition in the district court, challenging
his removal on two grounds: (1) the BIA erred in determining that his section 1425(a)
conviction was a crime involving moral turpitude, and (2) in the alternative, even if his
section 1425(a) conviction was a crime involving moral turpitude, the BIA erred in
concluding that he could not apply concurrently for relief from removal under current
INA § 240(A) and former INA § 212(c). The district court denied Amouzadeh’s habeas
petition. Amouzadeh appealed.
II
While Amouzadeh’s habeas petition was pending on appeal, Congress passed the
REAL ID Act of 2005 (the “Act”), which divested the federal district courts of jurisdiction
to hear habeas petitions attacking removal orders, effective May 11, 2005.7 The Act provides
that “a petition for review filed with the appropriate court of appeals . . . shall be the sole and
exclusive means for judicial review of an order of removal . . . .”8 The Act also requires
district courts to transfer any pending habeas cases challenging an order of removal to the
7
Pub. L. No. 109-13, 119 Stat. 231 (2005).
8
§ 106(a)(1)(A)(iii), 119 Stat. at 310.
4
appropriate court of appeals; the courts of appeals are to treat the habeas petitions as timely-
filed petitions for review.9 The Act does not, however, address how courts of appeals should
treat habeas petitions that were pending on appeal on May 11, 2005 when the Act became
effective. We recently held that such habeas petitions “are [also] properly converted into
petitions for review.”10 Therefore, because Amouzadeh’s habeas petition was pending on
appeal on the Act’s effective date, we convert it into a petition for review of the underlying
BIA decision. We have jurisdiction over Amouzadeh’s converted-petition because it
involves a question of law11—whether a violation of section 1425(a) is a crime involving
moral turpitude.
III
The INA provides that an alien is deportable if he has been convicted of two or more
crimes involving moral turpitude.12 The INA does not, however, “define the term ‘moral
turpitude[,]’ and legislative history does not reveal congressional intent regarding which
crimes are turpitudinous. Instead, Congress left the interpretation of [the term] to both the
BIA and the federal courts.”13 Consequently, this court applies a two-part standard of review
9
§ 106(c), 119 Stat. at 311.
10
Rosales v. Bureau of Immigration and Customs Enforcement, 426 F.3d 733, 736 (5th Cir.
2005), cert. denied, 126 S. Ct. 1055 (2006).
11
See 8 U.S.C. § 1252(a)(2)(D).
12
18 U.S.C. § 1227(a)(2)(A)(ii).
13
Smalley v. Ashcroft, 354 F.3d 332, 335-36 (5th Cir. 2003) (internal quotation omitted).
5
to the BIA’s conclusion that an alien has committed a crime involving moral turpitude:
First, we accord substantial deference to the BIA’s definition of the term
“moral turpitude.” Second, we review de novo whether the elements of the
state or federal [offense at issue] fit the BIA’s definition of a [crime involving
moral turpitude]. Importantly, this two-step approach provides both
consistency—concerning the meaning of moral turpitude—and a proper regard
for the BIA’s administrative role—interpretation of federal immigration laws,
not state and federal criminal statutes.”14
The BIA, through its administrative decisions, has crafted the following definition of
the term “moral turpitude”:
Moral turpitude refers generally to conduct that shocks the public conscience
as being inherently base, vile, or depraved, and contrary to the accepted rules
of morality and the duties owed between persons or to society in general.
Moral turpitude has been defined as an act which is per se morally
reprehensible and intrinsically wrong, or malum in se, so it is the nature of the
act itself and not the statutory prohibition of it which renders a crime one of
moral turpitude. Among the tests to determine if a crime involves moral
turpitude is whether the act is accompanied by a vicious motive or a corrupt
mind.15
When determining whether a particular law meets the BIA’s definition of “moral
turpitude,” we employ a categorical approach that focuses “on the inherent nature of the
crime, as defined in the statute . . . , rather than the circumstances surrounding the particular
transgression.”16 Under the categorical approach, we read the statute at its minimum, taking
into account “the minimum criminal conduct necessary to sustain a conviction under the
14
Id. at 335-36 (internal quotation and citations omitted); see also Omagah v. Ashcroft, 288
F.3d 254, 258 (5th Cir. 2002) (“Determining a particular federal or state crime’s elements lies beyond
the scope of the BIA’s delegated power or accumulated expertise.”).
15
Hamdan v. I.N.S., 98 F.3d 183, 186 (5th Cir. 1996) (quoting the BIA’s decision in that case)
(internal citations omitted).
16
Okabe v. I.N.S., 671 F.2d 863, 865 (5th Cir. 1982).
6
statute.”17 An offense is a crime involving moral turpitude if the minimum reading of the
statute necessarily reaches only offenses involving moral turpitude.18 However, “if the orbit
of the statute may include offenses not inherently entailing moral turpitude,” then the crime
is not a crime involving moral turpitude.19 “An exception to this general rule is made if the
statute is divisible into discrete subsections of acts that are and those that are not [crimes
involving moral turpitude].”20 If the statute is divisible, “we look at the alien’s record of
conviction to determine whether he has been convicted of a subsection that qualifies as a
[crime involving moral turpitude].”21
Section 1425(a) provides that “[w]hoever knowingly procures or attempts to procure,
contrary to law, the naturalization of any person, or documentary or other evidence of
naturalization or citizenship” shall be fined or imprisoned, or both.22 Amouzadeh pleaded
guilty to violating section 1425(a) by falsely stating under oath, in a Notice of Final
Naturalization Hearing that he had never been arrested for violating any law. However,
because section 1425(a) is not divisible, Amouzadeh’s actual conduct cannot be considered.
17
Hamdan, 98 F.3d at 189.
18
Pichardo v. I.N.S., 104 F.3d 756, 759 (5th Cir. 1997).
19
6-71 C. GORDON, S. MAILMAN & S. YALE-LOEHR, IMMIGRATION AND
PROCEDURE § 71.05(1)(d)(ii) (2006); see also Pichardo, 104 F.3d at 760 n.6 (“As a general rule, if
a statute encompasses both acts that do and do not involve moral turpitude, a finding of moral
turpitude cannot be sustained.”).
20
Hamdan, 98 F.3d at 186.
21
Smalley v. Ashcroft, 354 F.3d 332, 336 (5th Cir. 2003) (internal quotation omitted).
22
18 U.S.C. § 1425(a) (2000).
7
Instead, our crime involving moral turpitude analysis is confined to section 1425(a)’s
statutory text, and we will only classify Amouzadeh’s section 1425(a) conviction as a crime
involving moral turpitude if “every violation of the . . . statute necessarily, under all
circumstances, . . . involve[s] moral turpitude.”23
Amouzadeh contends that section 1425(a) is broad enough to punish behavior that is
not “accompanied by a vicious motive or a corrupt mind”24 and therefore does not specify
a crime involving moral turpitude. For example, Amouzadeh contends that an innocent
misstatement during the naturalization process, made without any intent to deceive, can form
the basis of a section 1425(a) conviction. To accept Amouzadeh’s argument, this court
would have to read the term “knowingly” in section 1425(a) as imposing no mens rea
requirement, other than the requirement of knowingly applying for naturalization. Although
we have not directly addressed this argument, the Ninth Circuit has found it unpersuasive.
In United States v. Pasillas-Gaytan, the Ninth Circuit concluded that the government cannot
sustain a section 1425(a) conviction merely by showing that the defendant intentionally
applied for naturalization but rather must show that the defendant acted with a culpable state
of mind.25 We agree.
In Pasillas-Gaytan, an alien was charged with violating section 1425(a) by knowingly
23
6-71 C. GORDON, S. MAILMAN & S. YALE, supra note 19 at § 71.05(1)(d)(ii) (internal
quotation omitted).
24
Hamdan, 98 F.3d at 186 (quoting the BIA’s decision in the case).
25
United States v. Pasillas-Gayton, 192 F.3d 864, 868-69 (9th Cir. 1999).
8
misrepresenting his criminal record in a naturalization hearing.26 At trial, the alien did not
dispute that he made the misrepresentation.27 Instead, he claimed that the misrepresentation
was an innocent mistake, due to his poor understanding of English and his limited
education.28 The jury was instructed that it could convict the alien of violating section
1425(a) if the government proved that he “knowingly” acquired naturalization and that such
naturalization was “contrary to law.”29
The Ninth Circuit concluded that “[s]ince applying for naturalization, absent the
oddest circumstances, is necessarily a knowing act, the jury charge essentially made section
1425 a strict liability offense, one which imposes criminal liability without regard to the
defendant’s state of mind at the time he sought naturalization.”30 The Court found the jury
instruction improper because such an interpretation of section 1425(a) would violate “[t]he
general rule . . . that criminal statutes do not impose strict liability.”31
“‘[P]articular care [is] taken to avoid construing a statute to dispense with mens rea
26
Id. at 866.
27
Id.
28
Id.
29
Id.
30
Id. at 867.
31
Id. at 868; see also United States v. Bailey, 444 U.S. 394, 404 n. 4 (1980) (“[S]trict liability
crimes are exceptions to the general rule that criminal liability requires an evil-meaning mind.”)
(internal quotations omitted).
9
where doing so would criminalize a broad range of apparently innocent conduct.’”32 If
section 1425(a) is construed as not having a culpable state of mind requirement, it:
would criminalize completely innocent conduct . . . . It would apply to
defendants who did not understand the documents they were signing. . . . It
would also apply to those who innocently apply for citizenship outside the
statutory time periods for making such application, and those who innocently
apply for citizenship but are not sufficiently proficient in the English language
to qualify for citizenship.33
The Ninth Circuit has thus rejected Amouzadeh’s argument that Congress intended section
1425(a) to impose no mens rea requirement, other than the requirement of intentionally
applying for naturalization. Rather, the court concluded that section 1425(a) required a
culpable state of mind—namely, that the defendant “either knew he was not eligible for
naturalization due to his prior conviction, or knowingly misstated his criminal record on his
application or in his interview.”34
We agree with the Ninth Circuit’s conclusion that to sustain a section 1425(a)
conviction, the government must prove that the defendant acted with a culpable state of
mind.35 An alien may violate section 1425(a) by seeking naturalization with the knowledge
32
Id. at 869 (quoting United States v. Staples, 511 U.S. 600, 619 (1994) (internal quotation
omitted)).
33
Id.
34
Id. (footnote omitted).
35
Cf. United States v. Moses, 94 F.3d 182, 184 (5th Cir. 1996) (construing 18
U.S.C. § 1425(b), rather than § 1425(a), and concluding “a review of [18 U.S.C. § 1425(b)] reveals
three elements that must be proved beyond a reasonable doubt . . . : (1) the defendant issued,
procured, obtained, applied for, or otherwise attempted to procure naturalization or citizenship;
(2) the defendant is not entitled to naturalization or citizenship; and (3) the defendant kn[ew] that he
10
that the applicant is ineligible for naturalization, or has knowingly misrepresented facts or
presented false documents. We have no basis for concluding that Congress intended to
criminalize the procurement of naturalization that is contrary to law when the applicant or
procurer does not know that the naturalization is contrary to law. We therefore find
unavailing Amouzadeh’s argument that section 1425(a) encompasses behavior that is not
morally turpitudinous.
We note that the BIA concluded that the term “contrary to law,” though not defined
by the statute, generally refers to violations of 18 U.S.C. §§ 1001(a)36 or 1015(a),37 statutes
that criminalize knowingly false statements made under oath in governmental proceedings.
Based on this conclusion, the BIA determined that, “to be convicted under 1425(a), the
[defendant] must knowingly have made a false statement to a government official for the
purpose of procuring naturalization . . . .” Because “[c]onvictions for making false
statements under oath necessarily involve moral turpitude,” the BIA determined that section
1425(a) is a crime involving moral turpitude. The BIA was in error in so limiting the scope
or she is not entitled to naturalization or citizenship”) (emphasis added).
36
18 U.S.C. § 1001(a) provides:
[W]hoever . . . knowingly and willfully falsifies, conceals, or covers up any trick,
scheme, or device a material fact[, or] makes any false, fictitious or fraudulent
statement or representation . . . shall be fined under this title or imprisoned not more
than 5 years, or both.
37
18 U.S.C. § 1015(a) provides:
Whoever knowingly makes any false statement under oath, in any case, proceeding,
or matter relating to, or under, or by virtue of any law of the United States relating
to naturalization, citizenship, or registry of aliens . . . [s]hall be fined under this title
or imprisoned not more than five years or both.
11
of section 1425(a).
The BIA relied on two federal district court cases, United States v. Biheiri38 and
United States v. Rogers.39 In Biheiri, the court stated that “‘[c]ontrary to law’ must include
‘contrary to 18 U.S.C. § 1015.’”40 Similarly, in Rogers, the court determined that a false
statement to a federal officer in violation of 18 U.S.C. § 1001, may be “contrary to law.”41
Neither of these cases limit section 1425(a)’s scope to knowingly false statements in
violation of sections 1001 and 1015, and the BIA was mistaken in reading them to say
otherwise.
Nevertheless, the BIA’s ultimate conclusion that Amouzadeh’s violation of 18 U.S.C.
§ 1425 was a crime involving moral turpitude was correct. It is undisputed that
Amouzadeh’s drug conviction is a crime involving moral turpitude. Accordingly,
Amouzadeh has been convicted of two crimes involving moral turpitude and is removable
pursuant to INA § 237(a)(2)(A)(ii).42
IV
Amouzadeh next argues that, even if a violation of 18 U.S.C. § 1425(a) is a crime
involving moral turpitude, the BIA erred in concluding that he was not eligible for concurrent
38
293 F. Supp. 2d 656 (E.D. Va. 2003).
39
898 F. Supp. 219 (S.D.N.Y. 1995).
40
293 F. Supp. 2d at 658 (emphasis added).
41
898 F. Supp. at 222.
42
8 U.S.C. § 1227(a)(2)(A)(ii) (2000).
12
relief from removal under former INA § 212(c)43 and current INA § 240A(a).44 Amouzadeh
contends that the Attorney General can, in his discretion, waive Amouzaheh’s inadmissibility
under section 212(c) even though Amouzadeh was convicted of an aggravated felony: his
drug conviction. If that waiver were granted, Amouzadeh contends, it would “cure” the drug
conviction, and it could no longer be considered for purposes of INA § 240A(a). Therefore,
he reasons, he would be eligible under the latter provision for cancellation of removal.
The BIA contends that Amouzadeh failed to raise the question of whether these
sections apply concurrently in either his direct appeal to the BIA or in a motion to reopen and
has therefore failed to exhaust his administrative remedies.45 Amouzadeh contends that
because “the BIA, on its own initiative, chose to address [the concurrent relief
claim], . . . [he] fulfilled his statutory requirement to exhaust his administrative remedies.”
It is not entirely clear whether the BIA did address Amouzadeh’s concurrent relief claim, but
even assuming it did, the claim has no merit.
A waiver under section 212(c) does not remove an aggravated felony conviction from
an alien’s record. The conviction still exists for purposes of section 240A(a). The BIA held
in In re Balderas that “since a grant of section 212(c) relief ‘waives’ the finding of
excludability or deportability rather than the basis of excludability itself, the crimes alleged
43
8 U.S.C. § 1182(c) (1994) (repealed 1996).
44
8 U.S.C. § 1229b(a) (2000).
45
See Roy v. Ashcroft, 389 F.3d 132, 137 (5th Cir. 2004) (“An alien fails to exhaust his
administrative remedies with respect to an issue when the issue is not raised in the first instance before
the BIA—either on direct appeal or in a motion to reopen.”) (quotation omitted).
13
to be grounds for excludability or deportability [removability] do not disappear from the
alien’s record for immigration purposes.”46 This court approved that holding in Molenda v.
INS.47 Amouzadeh’s aggravated felony conviction precludes cancellation of removal under
section 240A(a).
***
For the foregoing reasons, we DENY Amouzadeh’s converted-petition for review.
46
20 I. & N. Dec. 389, 391 (B.I.A. 1991).
47
998 F.2d 291, 294-95 (5th Cir. 1993).
14