Sidhu v. Gonzales

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
for the Fifth Circuit April 27, 2006
Charles R. Fulbruge III
Clerk
No. 04-60210
SAMARJEET SINGH SIDHU,
Petitioner,
VERSUS
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
Petition for Review of Orders
of the Board of Immigration Appeals
(A38 007 490)
Before REAVLEY, JOLLY, and DeMOSS, Circuit Judges.
PER CURIAM:*
Petitioner Samarjeet Singh Sidhu (“Sidhu”) filed a petition
for review with this Court, asking us to review two decisions of
the Board of Immigration Appeals (“BIA”). The first concluded that
Sidhu is removable and ineligible for relief from removal under the
Immigration and Nationality Act (“INA”) because he was convicted of
an “aggravated felony” as defined therein, and the second concluded
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
that he is not eligible for a waiver of inadmissibility under
former section 212(c) of the INA pursuant to INS v. St. Cyr, 533
U.S. 289 (2001), because his conviction was the result of a jury
trial rather than a guilty plea. Sidhu argues that he is not
removable as an aggravated felon because his conviction did not
have as an element “loss to the victim or victims” in excess of
$10,000, as charged by the Immigration and Naturalization Service
(“INS”), and that even if he is removable, he is nonetheless
eligible for a waiver of inadmissibility under former section
212(c) because a guilty plea is not a prerequisite to relief
pursuant to St. Cyr. Respondent Alberto R. Gonzales (“Gonzales”)
moved to dismiss the petition for review for lack of jurisdiction.
That motion was carried with the case. Because we find that Sidhu’s
claims present questions of law, we have jurisdiction to consider
the petition for review and the motion to dismiss is denied;
however, we ultimately deny the petition for review because the BIA
properly classified Sidhu’s prior conviction as an aggravated
felony and correctly held that Sidhu is not eligible for former
section 212(c) relief.
I.
Sidhu was admitted to the United States as a lawful permanent
resident in 1984. In 1996, Sidhu was convicted by a jury of
conspiracy to commit mail fraud in violation of 18 U.S.C. §§ 1341
and 371; aiding and abetting mail fraud in violation of 18 U.S.C.
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§§ 1341 and 2; and making material false, fictitious, and
fraudulent statements to federal investigators in violation of 18
U.S.C. § 1001. The conviction was based on Sidhu’s participation in
a fraudulent billing scheme that was alleged in Count 1 of the
indictment to have resulted in “approximately $1.2 million in
fraudulent billings in 1993 and 1994.” The jury found Sidhu guilty
on that count, among others.
In 1999, Sidhu was charged by the INS with being subject to
removal as an aggravated felon under section 237(a)(2)(A)(iii) of
the INA, 8 U.S.C. § 1227(a)(2)(A)(iii). Specifically, the INS
charged that Sidhu was removable because he was convicted of an
“aggravated felony” as defined in subsections 101(a)(43)(M)(i) and
(U), 8 U.S.C. § 1101(a)(43)(M)(i), (U).2 Sidhu admitted through
counsel all of the factual allegations, except the allegation that
his conviction involved a “loss to the victim or victims” in excess
of $10,000. On April 18, 2001, by written decision, the Immigration
Judge (“IJ”) found Sidhu subject to removal as charged and
ineligible for relief from removal. Sidhu appealed the IJ’s
decision to the BIA and also submitted a supplemental brief arguing
that he was eligible for relief under former section 212(c) of the
INA pursuant to the newly decided St. Cyr. The BIA dismissed
2
Subsection (M)(i) defines an aggravated felony as “an offense
that involves fraud or deceit in which the loss to victim or
victims exceeds $10,000,” and subsection (U) defines an aggravated
felony as “an attempt or conspiracy to commit an offense described
in [§ 1101(a)(43)].” 8 U.S.C. § 1101(a)(43)(M)(i), (U).
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Sidhu’s appeal, adopting the IJ’s reasoning that because the jury
found Sidhu guilty on Count 1 of the indictment, he was necessarily
convicted of an aggravated felony as described in subsections
101(a)(43)(M)(i) and (U) of the INA. However, finding St. Cyr’s
scope unclear under a pending regulation, the BIA remanded Sidhu’s
case to the IJ for consideration of whether he was eligible for
former section 212(c) relief. On remand, the IJ granted Sidhu a
waiver of inadmissibility under former section 212(c), and the
Department of Homeland Security (formerly the INS) appealed the
IJ’s decision. The BIA found on appeal that Sidhu was not eligible
for former section 212(c) relief because St. Cyr’s rule of
retroactivity was not applicable to aliens like Sidhu who were
convicted by a jury and no relevant regulation broadened the scope
of that rule. The BIA ordered Sidhu removed from the United States
to Canada. Sidhu timely petitioned for review.
II.
This Court reviews questions of law as to jurisdiction de
novo. Ramirez-Molina v. Ziglar, 436 F.3d 508, 513 (5th Cir. 2006).
The REAL ID Act, Pub. L. No. 109-13, 119 Stat. 231 (2005), “amends
8 U.S.C. § 1252(a)(2)(C) to preclude all judicial review, habeas or
otherwise, where a removal order is based on, inter alia, the
alien’s commission of an aggravated felony.” Hernandez-Castillo,
436 F.3d at 519. However, “[t]he Act also altered the INA to
provide that ‘[n]othing in subparagraph . . . (C) [of 8 U.S.C.
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§ 1252(a)(2)] . . . shall be construed as precluding review of
constitutional claims or questions of law raised upon a petition
for review filed with an appropriate court of appeals in accordance
with this section.’” Id. (quoting 8 U.S.C. § 1252(a)(2)(D)) (first
alteration in original). Because both of Sidhu’s claims--that his
prior conviction does not qualify as an “aggravated felony” and
that he is eligible for former section 212(c) relief--involve
questions of law, we have jurisdiction to consider his petition for
review. See Rodriquez-Castro v. Gonzales, 427 F.3d 316, 319 (5th
Cir. 2005); Hernandez-Castillo v. Moore, 436 F.3d 516, 519 (5th
Cir. 2006). We review questions of law de novo, deferring to the
BIA’s interpretation of immigration regulations if that
interpretation is reasonable. Hernandez-Castillo, 436 F.3d at 519.
Having carefully reviewed the record, the briefs, and the oral
argument of the parties, we affirm the BIA’s decision that Sidhu is
removable as an aggravated felon essentially for the reasons stated
by the BIA. We also affirm the BIA’s decision that Sidhu is not
eligible for former section 212(c) relief pursuant to St. Cyr. In
Hernandez-Castillo, filed after the BIA issued its decision, we
decided that a guilty plea is a necessary condition to former
section 212(c) relief under St. Cyr. Hernandez-Castillo, 436 F.3d
at 519-20. Sidhu was convicted following a jury trial; therefore,
he is ineligible for former section 212(c) relief. Id.
Accordingly, the motion to dismiss for lack of jurisdiction is
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DENIED; and the petition for review is also DENIED.
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