Fakhuri v. Garland

Case: 19-60275 Document: 00516235830 Page: 1 Date Filed: 03/11/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 11, 2022
No. 19-60275
Lyle W. Cayce
Clerk
Mohammed Abdelfattah Fakhuri,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of
the Board of Immigration Appeals
No. A 078 187 925
Before Smith, Costa, and Wilson, Circuit Judges.
Jerry E. Smith, Circuit Judge:
Mohammed Fakhuri is a citizen of Jordan and lawful permanent resi-
dent of the United States. In 2018, he pleaded guilty of attempting to launder
money in violation of Tennessee law. The federal government then charged
him with removability for sustaining an “aggravated felony” conviction.
8 U.S.C. § 1227(a)(2)(A)(iii). After an Immigration Judge (“I.J.”) and the
Board of Immigration Appeals (“BIA”) sustained that charge, Fakhuri peti-
tioned for review. Because his claims are unexhausted or meritless, we deny
in part and dismiss in part the petition.
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No. 19-60275
I.
Police in Tennessee pulled over Fakhuri’s RV after he committed
several moving violations. When the officer asked Fakhuri—a California
resident—what he was doing in Tennessee, Fakhuri said that he was visiting
a cousin in Nashville. But Fakhuri was nervous when the officer asked for
more details about his trip, and many of those details didn’t add up.
The officer then searched Fakhuri’s vehicle and discovered nearly
$400,000 in cash locked in the RV’s bathroom. Fakhuri claimed that he had
won the money gambling, but its packaging and storage suggested it was the
proceeds of drug trafficking.1
Fakhuri was arrested for participating in drug-trafficking activities.
Ultimately, he agreed to plead guilty of attempting to launder money in viola-
tion of Tennessee Code Sections 39-12-101 (“Section 101”) and 39-14-903
(“Section 903”).
The first of those provisions forbids attempting to commit a crime.
The second prohibits five different forms of money laundering. Each of those
money-laundering “offense[s]” is described in a separate subsection,2 and
each of those subsections contains its own penalty provision.3 Fakhuri’s plea
agreement did not explicitly identify the part of Section 903 he had violated,
1
Much of the cash was wrapped in cellophane or bubble wrap. Some of it was also
stored in a ScentLok bag, which traffickers use to prevent drug-sniffing dogs from detecting
drug residue on their cash.
2
E.g., Tenn. Code § 39-14-903(b)(1) (“It is an offense to knowingly use pro-
ceeds derived directly or indirectly from a specified unlawful activity with the intent to pro-
mote, in whole or in part, the carrying on of a specified unlawful activity.”)
3
E.g., id. § 39-14-903(b)(2) (“A violation of this subsection (b) is a Class B
felony.”).
2
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but the language of his indictment closely mirrored that of Subsection (b).4
Two months after Fakhuri pleaded guilty, the Attorney General ini-
tiated removal proceedings. As relevant here, he alleged that Fakhuri had
been convicted of an “aggravated felony,” thus making him removable under
8 U.S.C. § 1227(a)(2)(A)(iii). The definition of “aggravated felony” includes
money-laundering offenses, see 8 U.S.C. § 1101(a)(43)(D), and attempts to
commit an aggravated felony, id. § 1101(a)(43)(U). The Attorney General
claimed that Section 903 qualified as a money-laundering offense under
8 U.S.C. § 1101(a)(43)(D) and that Fakhuri was therefore removable under
8 U.S.C. § 1101(a)(43)(U) for attempting to commit it.
An I.J. sustained that charge.5 On appeal, the BIA agreed with the I.J.
that Fakhuri had been convicted of an aggravated felony. It applied the cate-
gorical approach to determine whether Section 903 matched the generic defi-
nition of a money-laundering offense in 8 U.S.C. § 1101(a)(43)(D). See
Mathis v. United States, 136 S. Ct. 2243, 2248–49 (2016) (describing the
categorical approach). Because “each subsection [of Section 903] carries its
own sentencing structure,” the BIA concluded that Section 903 was “divisi-
ble by subsection.” It then examined Fakhuri’s indictment, found that he had
been convicted of attempting to violate Subsection (b), and held that Subsec-
tion (b) categorically matched the generic crime of money laundering. That
4
Section 903(b) prohibits “knowingly us[ing] proceeds derived directly or indir-
ectly from a specified unlawful activity with the intent to promote, in whole or in part, the
carrying on of a specified unlawful activity.” Fakhuri’s indictment charged him with
“knowingly . . . us[ing] proceeds derived directly or indirectly from an unlawful activity, to
wit: [drug trafficking], with the intent to promote, in whole or in part, the carrying on of
a [sic] unlawful activity, to wit: [drug trafficking].”
5
The I.J. also pretermitted Fakhuri’s request for cancellation of removal because
that form of relief is categorically unavailable to any alien with an aggravated felony con-
viction. 8 U.S.C. § 1229b(a)(3).
3
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led to the BIA’s determination that Fakhuri was removable for sustaining an
aggravated-felony conviction under 8 U.S.C. § 1101(a)(43)(U).
Fakhuri petitioned for review.
III.
Before we can address the merits, we must verify that we have juris-
diction. Ibrahim v. Garland, 19 F.4th 819, 825 (5th Cir. 2021). One important
limitation on our jurisdiction in immigration cases is the exhaustion require-
ment. If an alien hasn’t exhausted his claims with the BIA, we don’t have
jurisdiction to address them. 8 U.S.C. § 1252(d)(1); Ibrahim, 19 F.4th at 825.
As relevant here, there are two ways that a claim can be exhausted.
First, the alien can exhaust the claim by presenting it to the BIA. Cruz Rod-
riguez v. Garland, 993 F.3d 340, 345 (5th Cir. 2021) (per curiam). Second, the
BIA can exhaust the claim by analyzing it on the merits—even if the alien
didn’t properly present it. See Ibrahim, 19 F.4th at 825.
Fakhuri advances five claims in his petition for review. Only two have
been exhausted.
Fakhuri’s first claim has been exhausted. Fakhuri maintains that Sec-
tion 903 is not divisible. He pressed that claim to the BIA, which rejected it
on the merits. See Cruz Rodriguez, 993 F.3d at 345.
Fakhuri’s second claim has also been exhausted. Fakhuri tells us that
even if Section 903 were divisible, Subsection (b) wouldn’t be a categorical
match with the generic crime of money laundering. The BIA analyzed that
claim on the merits. See Ibrahim, 19 F.4th at 825.
But Fakhuri’s last three claims have not been exhausted. He maintains
that the I.J. and BIA erred by skipping the first step of the “modified categor-
ical approach,” that Subsection (b) does not “contemplate an element of
‘attempt’ at all,” and that he cannot be removed for attempting to launder
4
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drug money because he was never convicted of a drug offense. But Fakhuri
never raised any of those claims in the brief he submitted to the BIA,6 and the
BIA never addressed them on its own. That means they are unexhausted, and
we lack jurisdiction to consider them.
IV.
A.
Fakhuri first claims that Section 903 is indivisible. The BIA con-
cluded the opposite. We agree with the BIA.
Recall that Section 903 prohibits five patterns of money laundering.
Each of those “offense[s]” is set out in a separate subsection,7 and each of
those subsections specifies a distinct penalty.8
Based on that structure, the BIA concluded that Section 903 was divis-
ible. Citing Mathis’s holding that a statute is divisible when its “alternatives
carry different punishments,” 136 S. Ct. at 2256, it reasoned that Section 903
is “divisible by subsection” because “each subsection carries its own sentenc-
ing structure.”
Fakhuri, however, claims that Section 903’s alternatives don’t carry
different punishments. In his telling, every subsection of the statute is pun-
ished the same way because all are “Class B” felonies. Section 903 just
6
“If an alien submits a brief, ‘[it] becomes the operative document through which
any issues that [he] wishes to have considered must be raised.’” Vazquez v. Sessions,
885 F.3d 862, 868 (5th Cir. 2018) (quoting Claudio v. Holder, 601 F.3d 316, 319 (5th Cir.
2010)).
7
E.g., Tenn. Code § 39-14-903(b)(1) (“It is an offense to knowingly use pro-
ceeds derived directly or indirectly from a specified unlawful activity with the intent to pro-
mote, in whole or in part, the carrying on of a specified unlawful activity.”)
8
E.g., id. § 39-14-903(b)(2) (“A violation of this subsection (b) is a Class B
felony.”).
5
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restates that penalty for each means of committing the offense.
The first problem for Fakhuri is that he misreads the statute. Different
subsections of Section 903 do carry different punishments. Subsections (a),
(b), and (c) are “Class B” felonies,9 which are punishable with 8 to 30 years’
imprisonment and a fine of $25,000.10 But Subsection (d) is a “Class E fel-
ony” that is “punishable only by a fine of five thousand dollars”11 and the
forfeiture of the assets used to conduct or facilitate the crime.12 And while
Subsection (e) is a “Class B felony,”13 it may also be punished with that type
of forfeiture14—unlike Subsections (a), (b), and (c).15 Because those “statu-
tory alternatives carry different punishments,” they must be different
offenses—not different means of committing the same offense. Mathis,
136 S. Ct. at 2256 (citing Apprendi v. New Jersey, 530 U.S. 466 (2000)).
The second problem for Fakhuri—Section 903’s structure—explains
why Subsections (a), (b), and (c) cannot establish different means of commit-
ting a single offense while Subsections (d) and (e) create two other offenses.
Like the BIA, our precedents have analyzed the structure of statutes to deter-
mine whether they are divisible. See, e.g., United States v. Butler, 949 F.3d
9Id. § 39-14-903(a)(2), (b)(2), (c)(3).
10
Id. § 40-35-111(b)(2).
11
Id. § 39-14-903(d)(2).
12
Id. § 39-14-903(g).
13
Id. § 39-14-903(e)(2).
14
Id. § 39-14-903(g).
15
Section 903(g) states the assets used to conduct or facilitate a violation of Subsec-
tions (d) or (e) are subject to forfeiture. Thus, that form of forfeiture cannot be used to
punish violations of Subsections (a), (b), and (c). See Antonin Scalia & Bryan A.
Garner, Reading Law: The Interpretation of Legal Texts 107–11
(2012) (explaining expressio unius est exclusio alterius).
6
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230, 234 (5th Cir. 2020). And Section 903’s structure confirms the BIA’s
conclusion that the statute is divisible by subsection.
Section 903’s subsections all have the same structure. Each defines
an “offense” and its punishment separate from the other patterns of money
laundering created by the statute. On its own, that strongly implies that each
subsection is a separate offense.16 But that implication becomes irrefutable
when one remembers that Subsections (d) and (e) define distinct offenses.
Absent another clue, it’s impossible to believe that subsections with the same
structure have different legal effects—three defining means of committing
one offense, two defining separate offenses. Therefore, the BIA did not err
in concluding that Section 903 is divisible by subsection.
B.
Next, Fakhuri claims that Subsection (b) is not a categorical match
with the generic crime of money laundering. Subsection (b) prohibits
“us[ing] proceeds” of illegal activity to promote illegal activity. But the gen-
eric crime of money laundering prohibits only using such proceeds in a
“financial transaction.” 18 U.S.C. § 1956(a)(1)(A). Fakhuri says that differ-
ence means Subsection (b) does not categorically match 8 U.S.C.
§ 1101(a)(43)(D).17
We disagree. As the BIA observed, jurisdictional elements are
“ignored” during a categorical analysis. Torres v. Lynch, 578 U.S. 452, 473
(2016). And the generic crime requires a “financial transaction” to establish
16
Cf. Butler, 949 F.3d at 235 (noting that even a paragraph break within a subsection
indicates that it contains multiple offenses).
17
If he sought to advance any other explanations for why Subsection (b) is over-
broad, he forfeited them “by failing to adequately brief [them].” Rollins v. Home Depot USA,
8 F.4th 393, 397 (5th Cir. 2021).
7
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a connection with “interstate or foreign commerce.” See 18 U.S.C.
§ 1956(c)(4). Thus, the “financial transaction” element is merely a rounda-
bout way of requiring that the crime affect interstate commerce. That’s the
classic example of a jurisdictional element, see Torres, 578 U.S. at 473, so the
BIA didn’t err in failing to hold that it made Subsection (b) overbroad.
What’s more, Fakhuri’s claim fails because he has not shown that
there is a “realistic probability” Tennessee would apply Subsection (b) to
conduct that doesn’t involve a financial transaction. Gonzales v. Duenas-
Alvarez, 549 U.S. 183, 193 (2007). To do that, he “must at least point to his
own case or other cases in which the state courts in fact did apply the statute
in the special (nongeneric) manner for which he argues.” Id.18 As the BIA
once observed and is still true, Fakhuri hasn’t identified such an example
from another case. Nor has he ever attempted to explain why his case falls
outside the bounds of the generic crime.19 Hence, the BIA did not err in
concluding that Subsection (b) was a categorical match with the generic crime
of money laundering.
The petition for review is DISMISSED to the extent it raises un-
exhausted claims. It is otherwise DENIED.
18
See also United States v. Castillo-Rivera, 853 F.3d 218, 223 (5th Cir. 2017) (en banc)
(noting that there is “no exception” to the “requirement” that an alien point to an “actual
case” involving nongeneric conduct).
19
Even if it did, he has forfeited that claim. See Rollins, 8 F.4th at 397.
8