Aleksandr Yeremin v. Eric Holder, Jr.

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 13a0107a.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
Petitioner, -
ALEKSANDR GRIGORYEVICH YEREMIN,
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-
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Nos. 10-4525/11-3975
v.
,
>
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Respondent. -
ERIC H. HOLDER, JR., Attorney General,
N
On Petition for Review of a Final Order of
the Board of Immigration Appeals;
No. A046 792 869.
Argued: December 7, 2012
Decided and Filed: April 16, 2013
Before: MOORE and COOK, Circuit Judges; BERTELSMAN, District Judge.*
_________________
COUNSEL
ARGUED: Maris J. Liss, GEORGE P. MANN & ASSOCIATES, P.C., Farmington
Hills, Michigan, for Petitioner. Rachel Browning, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Maris J. Liss, George
P. Mann, GEORGE P. MANN & ASSOCIATES, P.C., Farmington Hills, Michigan, for
Petitioner. Rachel Browning, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
_______________________
AMENDED OPINION
_______________________
KAREN NELSON MOORE, Circuit Judge. In 2004, Petitioner Aleksandr
Yeremin (“Yeremin”), a Russian citizen, pleaded guilty to and was convicted of one
count under 18 U.S.C. § 1028(f), for conspiracy to traffic in identification documents in
*
The Honorable William O. Bertelsman, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
1
Nos. 10-4525/11-3975 Yeremin v. Holder Page 2
violation of § 1028(a)(3). Section 1028(a)(3) prohibits knowingly possessing with intent
to use unlawfully or transfer unlawfully five or more identification documents or false
identification documents. As a result of this conviction, the Department of Homeland
Security (“DHS”) initiated removal proceedings, asserting that Yeremin was removable
for having been convicted of a crime involving moral turpitude within five years of
admission to the United States. Yeremin moved to terminate the removal proceedings,
but the Immigration Judge (“IJ”) found that Yeremin’s conviction was for an offense
qualifying as a crime involving moral turpitude and ordered that Yeremin be removed
to Russia. The Board of Immigration Appeals (“BIA”) affirmed the IJ’s decision and
denied Yeremin’s subsequent motion to reconsider. Yeremin petitioned this court for
review of both the BIA’s decision upholding the IJ’s determination and its decision
denying reconsideration. Under the categorical approach applied by this court,
Yeremin’s conviction qualifies as a crime involving moral turpitude because the conduct
prohibited by the statute he was convicted under inherently involves deceit. Yeremin
is thus removable, and accordingly, we DENY Yeremin’s petitions for review.
I. BACKGROUND
Yeremin is a Russian citizen who lawfully entered the United States on or about
February 3, 1999. See Certified Administrative Record (“C.A.R.”)1 at 461 (Notice to
Appear at 3). In 2003, Yeremin was indicted for his alleged participation in a “scheme
to assist others to fraudulently obtain Michigan driver’s licenses using other fraudulent
identification documents.” C.A.R. at 65 (Plea Agmt. at 1); see C.A.R. at 115–21
(Indictment). On July 6, 2004, Yeremin pleaded guilty in the U.S. District Court for the
Southern District of New York to a single count under 18 U.S.C. § 1028(f), for
conspiracy to traffic in fraudulent identification documents in violation of 18 U.S.C.
§ 1028(a)(3). See C.A.R. at 445 (Judgment at 1). This underlying offense, § 1028(a)(3),
prohibits “knowingly possess[ing] with intent to use unlawfully or transfer unlawfully
five or more identification documents (other than those issued lawfully for the use of the
1
This opinion uses “C.A.R.” to refer to the administrative record filed in Yeremin’s first petition,
Case No. 10-4525. The administrative record filed in connection with Yeremin’s second petition, Case
No. 11-3975, will be referred to as “C.A.R. II.”
Nos. 10-4525/11-3975 Yeremin v. Holder Page 3
possessor), authentication features, or false identification documents.” 18 U.S.C.
§ 1028(a)(3). The plea agreement in the case stated that the Government “will accept
a guilty plea” from Yeremin “to Count One” of the indictment, and that:
[t]he offense of conviction involved the (i) unauthorized transfer or use
of any means of identification unlawfully to produce or obtain any other
means of identification, and (ii) the possession of 5 or more means of
identification that unlawfully were produced from, or obtained by the use
of, another means of identification.
C.A.R. at 65–66 (Plea Agmt. at 1–2). A person convicted under § 1028(f) is subject to
the same penalties as those prescribed for the § 1028(a) offense, see § 1028(f), which can
include imprisonment of one year or more, see 18 U.S.C. § 1028(b). Yeremin was
sentenced to five months of imprisonment followed by two years of supervised release.
C.A.R. at 446–47 (Judgment at 2–3).
On January 26, 2005, DHS initiated removal proceedings, charging Yeremin as
subject to two grounds for removal under the Immigration and Nationality Act (“INA”).
DHS asserted that Yeremin was removable first under 8 U.S.C. § 1227(a)(2)(A)(i),
which allows removal of aliens convicted of a crime involving moral turpitude
committed within five years of admission to the United States, if the crime is punishable
by at least one year in prison, and second under 8 U.S.C. § 1227(a)(2)(A)(iii), which
allows removal of any alien convicted of an aggravated felony at any time after
admission to the United States. See C.A.R. at 461 (Notice to Appear at 3). Although the
IJ initially found Yeremin removable under the aggravated-felony charge, see C.A.R. at
170 (Jan. 26, 2005 Hr’g Tr. at 12), she ultimately withdrew this finding after a remand
from the BIA, see C.A.R. at 159 (IJ Dec. at 2 n.1); 247 (Nov. 14, 2005 BIA Dec. at 2).
Regarding the charge of removability relating to the prior conviction for a crime
involving moral turpitude, Yeremin moved to terminate the proceedings on the basis that
his conviction did not involve moral turpitude, arguing that he did not plead guilty to an
offense which necessarily involved fraudulent or deceptive conduct. See C.A.R. at 211
(Br. in Support of Renewed Mot. to Terminate at 4). The IJ denied the motion, and
ordered that Yeremin be deported because she found that Yeremin’s conviction was for
Nos. 10-4525/11-3975 Yeremin v. Holder Page 4
an offense that inherently involved fraud, and thus that it was a crime involving moral
turpitude. See C.A.R. at 159 (IJ Dec. at 2) (“While the statute does not contain the term
‘fraud’, the inherent nature of the offense involves fraud.”). The BIA affirmed the IJ’s
decision on November 5, 2010, agreeing with the IJ that “the inherent nature of the
underlying offense clearly involves fraud.” C.A.R. at 76 (Nov. 5, 2010 BIA Dec. at 2).
Yeremin petitioned this court for review of the BIA’s decision on December 3, 2010.
The same day, December 3, 2010, Yeremin also moved for reconsideration of the
BIA’s decision affirming the IJ’s denial of his motion to terminate the proceedings
against him. See C.A.R. at 14 (Mot. to Recon.). The BIA denied the motion to
reconsider, and on September 14, 2011, Yeremin petitioned this court for review of the
BIA’s denial of the motion. Yeremin’s two petitions have been consolidated for review
by this court.
II. JURISDICTION
In this case, the IJ found that Yeremin was removable under the provision of the
INA permitting removal of any alien who is convicted of a crime involving moral
turpitude that was committed within five years of his or her admission to the
United States, and for which a sentence of at least one year may be imposed. See
8 U.S.C. § 1227(a)(2)(A)(i). The INA’s jurisdiction-stripping provision, 8 U.S.C.
§ 1252(a)(2)(C), does not apply in this case, because the provision under which Yeremin
was charged as removable, § 1227(a)(2)(A)(i), was not listed by Congress in
§ 1252(a)(2)(C) as a provision that can form the basis of an unreviewable final order of
removal. See Precaj v. Holder, 376 F. App’x 553, 556 (6th Cir. 2010); Lee v. Gonzales,
410 F.3d 778, 781–82 (5th Cir. 2005). We also have “jurisdiction to review questions
of law and constitutional claims arising from” removal orders. Ruiz-Lopez v. Holder,
682 F.3d 513, 516 (6th Cir. 2012) (citing 8 U.S.C. § 1252(a)(2)(D)); see Serrato–Soto
v. Holder, 570 F.3d 686, 688 (6th Cir. 2009). The determination of whether a conviction
under a particular statute qualifies as a crime involving moral turpitude is a question of
law and thus is subject to judicial review. See Ruiz–Lopez, 682 F.3d at 516.
Nos. 10-4525/11-3975 Yeremin v. Holder Page 5
We also have jurisdiction to review denials by the BIA of motions to reconsider.
See Stone v. INS, 514 U.S. 386, 405–06 (1995) (explaining that BIA decisions on
motions to reconsider are reviewable); see, e.g., Sswajje v. Ashcroft, 350 F.3d 528,
532–33 (6th Cir. 2003) (reviewing for abuse of discretion the BIA’s denial of a motion
to reconsider).
III. ANALYSIS
A. Standard of Review
“Where, as here, ‘the BIA expressly adopts and affirms the IJ’s decision but adds
comments of its own, we directly review the decision of the IJ while also considering the
additional comments made by the [BIA].’” Serrato-Soto, 570 F.3d at 688 (quoting
Elias v. Gonzales, 490 F.3d 444, 449 (6th Cir. 2007)). The BIA’s construction of an
ambiguous term in the INA is afforded Chevron deference, which means the BIA’s
construction will be upheld so long as it is reasonable. Ramirez-Canales v. Mukasey,
517 F.3d 904, 908–09 (6th Cir. 2008); see Chevron U.S.A. Inc. v. Natural Res. Def.
Council, 467 U.S. 837, 843–44 (1984). This includes the BIA’s interpretation of the
meaning of “crime involving moral turpitude,” as that term is used in the INA.
See Kellermann, 592 F.3d at 702–03. However, de novo review applies to the
determination of “whether the elements of a federal crime fit the BIA’s definition of a
[crime involving moral turpitude].” Id. at 703.
B. Legal Principles
The term “crime involving moral turpitude” is not defined in the INA or by
agency regulations. The term “‘refers generally to conduct that is inherently base, vile,
or depraved, and contrary to the accepted rules of morality and the duties owed between
persons or to society in general.’” Id. (quoting Singh v. Holder, 321 F. App’x 473, 477
(6th Cir. 2009)). “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.” In re Ajami, 22
I. & N. Dec. 949, 950 (BIA 1999). The BIA has held that “[w]here knowing or
intentional conduct is an element of an offense, we have found moral turpitude to be
Nos. 10-4525/11-3975 Yeremin v. Holder Page 6
present.” In re Perez-Contreras, 20 I. & N. Dec. 615, 618 (BIA 1992); see In re Serna,
20 I. & N. Dec. 579, 581 (BIA 1992) (stating that whether an offense is a crime
involving moral turpitude is “a question of the offender’s evil intent or corruption of the
mind”).
Crimes that involve deception or fraud consistently are held to qualify as crimes
involving moral turpitude. For example, if a crime requires proof of a specific intent to
defraud, then it is a crime involving moral turpitude. See Serrato-Soto, 570 F.3d at 689.
“[F]raud has consistently been regarded as such a contaminating component in any crime
that American courts have, without exception, included such crimes within the scope of
moral turpitude.” Jordan v. De George, 341 U.S. 223, 229 (1951); see Omagah v.
Ashcroft, 288 F.3d 254, 260 (5th Cir. 2002) (noting that following Jordan, “the courts
of appeals have interpreted ‘moral turpitude’ as including a wide variety of crimes that
involve some fraud or deceit”). Further, even if the statute does not explicitly require
an intent to defraud or use the language of fraud, if fraud or deception is inherent in the
nature of the offense, then the crime involves moral turpitude. See In re Flores, 17 I. &
N. Dec. 225, 228 (BIA 1980). For example, in Flores, the BIA considered a conviction
for “uttering or selling false or counterfeit paper relating to registry of aliens with
knowledge of their counterfeit nature.” Id. at 230. The BIA concluded that the offense
“inherently involves a deliberate deception of the government and an impairment of its
lawful functions,” and that therefore “fraudulent conduct is implicit in the statute,” even
absent a requirement of a specific intent to defraud. Id. The BIA explained that the
government need not have been defrauded out of money or property for moral turpitude
to be involved; rather, “[i]t is enough to impair or obstruct an important function of a
department of the government by defeating its efficiency or destroying the value of its
lawful operations by deceit, graft, trickery, or dishonest means.” Id. at 229.
In determining whether a conviction under a federal statute fits the BIA’s
definition of a crime involving moral turpitude, we apply what are known as the
categorical and modified-categorical approaches. See Ruiz-Lopez, 682 F.3d at 518; see
generally Shepard v. United States, 544 U.S. 13 (2005); Taylor v. United States,
Nos. 10-4525/11-3975 Yeremin v. Holder Page 7
495 U.S. 575, 600–01 (1990). First, the categorical approach is applied, in which we
consider “whether the full range of conduct encompassed by the statute constitutes a
crime of moral turpitude.” Serrato-Soto, 570 F.3d at 689 (internal quotation marks
omitted). We thus look to the elements of the offense, rather than the underlying facts
of the specific case. See id. at 690. If the full range of conduct encompassed by the
statute constitutes a crime of moral turpitude, then the conviction is for an offense
qualifying as a crime involving moral turpitude. United States v. Castillo-Rivera,
244 F.3d 1020, 1022 (9th Cir. 2001); see Ruiz-Lopez, 682 F.3d at 518.
If we find that the scope of the statute includes some conduct that involves moral
turpitude and other conduct that does not, we apply the modified-categorical approach.
See Kellermann, 592 F.3d at 704. The modified-categorical approach involves looking
to a limited set of court documents that are part of the record of conviction, including the
charging document, plea agreement, and transcript of plea colloquy, to determine
whether the specific offense for which the petitioner was convicted qualifies as a crime
involving moral turpitude. See United States v. Montanez, 442 F.3d 485, 489 (6th Cir.
2006); see also Shepard, 544 U.S. at 16 (limiting the types of documents a court may
consider in determining the character of a prior conviction).
C. Application to Yeremin’s Petition
Yeremin was convicted of conspiring to traffic in identification documents in
violation of § 1028(a)(3). By its statutory language, this offense requires that the
offender “knowingly possess[]” the relevant identification documents. See § 1028(a)(3).
Courts also have interpreted this statutory provision to require proof of an intent to use
or transfer the identification documents or false identification documents unlawfully.
See United States v. Klopf, 423 F.3d 1228, 1236 (11th Cir. 2005); United States v.
Kayode, 254 F.3d 204, 214 (D.C. Cir. 2001); United States v. Rohn, 964 F.2d 310,
313–14 (4th Cir. 1992).
On appeal, Yeremin argues that the intent to use or transfer unlawfully does not
necessarily require fraud or deceit. See Pet. Br. (Case No. 10-4525) at 19. This
argument is not persuasive. The offense requires knowing possession of multiple
Nos. 10-4525/11-3975 Yeremin v. Holder Page 8
identification documents which either (i) were not lawfully issued to the possessor, see
§ 1028(a)(3), or (ii) were altered for the purposes of deceit or not issued under the
authority of a governmental entity.2 See § 1028(d)(4) (defining “false identification
document”). If the possessor intends to use or transfer those documents in a way that
violates a local, state, or federal law, it is difficult to understand how the intended use
or transfer would not deceive the government and impair the effectiveness of its
identification scheme. See Flores, 17 I. & N. Dec. at 229 (holding that moral turpitude
is involved when the offender intentionally impairs the efficiency of a governmental
program through deceit). The House Report discussing § 1028(a), which is part of the
False Identification Crime Control Act of 1982, supports this understanding. The Report
contemplates that
[t]he intent to use unlawfully is the intent to use (i.e., present, display,
certify, or otherwise give currency to) the identification document in any
manner so that it would be accepted as identification in a manner that
violates a federal, state or local law, or is part of the making of a
misrepresentation that violates a law.
H.R. REP. NO. 97-802, at 10 (1982), reprinted in 1982 U.S.C.C.A.N. 3519, 3529. In this
way, any intentional unlawful use or transfer of multiple identification documents whose
purpose is to identify individuals to government authorities would inherently be intended
to deceive the government in some way. See Serrato-Soto, 570 F.3d at 690 (holding that
where a statute requires knowing or willful use of an altered or counterfeit Social
Security number, the offense in the ordinary case “involves dishonesty as an essential
element”).
The BIA’s analysis in Matter of Serna further supports this conclusion. In Serna,
the BIA discussed a conviction for knowingly possessing an altered immigration
document. See 20 I. & N. Dec. at 580. In contrast to § 1028(a)(3), the statute at issue
2
Yeremin’s argument that it makes a difference whether the documents involved are
“identification documents” as opposed to “false identification documents” is likewise unpersuasive. Even
if the documents at issue were not false, as Yeremin contends, see Pet. Br. (Case No. 10-4525) at 18,
conviction under the statute would still require that the identification documents were not lawfully issued
to the possessor, and that Yeremin intended to use or transfer the documents unlawfully. See § 1028(a)(3).
As explained above, such an intention to use or transfer unlawfully multiple identification documents
involves just as much deceit as the use or transfer of false identification documents.
Nos. 10-4525/11-3975 Yeremin v. Holder Page 9
in Serna did not require an intent to use or transfer the documents unlawfully. The BIA
held that mere possession of the altered document, even with the knowledge that it was
altered, was not a crime involving moral turpitude, because there might be circumstances
in which a defendant could be convicted but “not have had the intent to use the altered
immigration document in his possession unlawfully.” Id. at 586. In Yeremin’s case,
these circumstances are not possible, because conviction under § 1028(a)(3) always
requires an intent to use or transfer the documents unlawfully. See § 1028(a)(3). Under
the rationale of Serna, a conviction under § 1028(a)(3) necessarily entails an evil intent,
i.e., the intent to use identification documents unlawfully, and thus it qualifies as a crime
involving moral turpitude. See Omagah, 288 F.3d at 261 (affirming the BIA’s
conclusion that “conspiracy to possess forged immigration documents with intent to use
them involved moral turpitude”).
The Seventh Circuit’s decision in Lagunas-Salgado v. Holder, 584 F.3d 707 (7th
Cir. 2009), is also instructive. The Lagunas-Salgado court determined that a conviction
under § 1028(a)(2), which prohibits knowingly transferring an identification document
with knowledge that it was stolen or illegally produced, inherently involved deceptive
conduct, and therefore it constituted a crime involving moral turpitude. See id. at 712.
This was so even though the statute of conviction did not require proof that the
defendant presented the identification document to the government. Id. The Seventh
Circuit held that because the statute required more than mere knowing possession of the
identification documents, the BIA reasonably concluded that moral turpitude was
involved. See id. Other courts and the BIA similarly have found that subsections of
§ 1028(a) are crimes involving moral turpitude, even absent an explicit requirement of
an intent to defraud. See Stevenson v. INS, 246 F.3d 676, No. 97-71406, 2000 WL
1878964, at *2 (9th Cir. Dec. 27, 2000) (conviction under § 1028(a)(2)); Babafunmi v.
U.S. INS, 210 F.3d 360, No. 99-2312, 2000 WL 338987, at *1 (4th Cir. Mar. 31, 2000)
(conviction under § 1028(a)(5), which prohibits possession of a document-making
implement “with the intent such document-making implement . . . will be used in the
production of a false identification document”); In re Hen, No. A079 440 615, 2010 WL
5635607 (BIA Dec. 30, 2010) (conviction for aiding and abetting a violation of
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§ 1028(a)(1), which prohibits knowingly producing an identification document without
lawful authority). These cases support the proposition that moral turpitude is involved
when a statute of conviction requires knowing possession of unlawfully possessed or
false identification documents, combined with a corrupt intent to use or transfer the
documents unlawfully. Accordingly, we hold that conviction under § 1028(a)(3)
inherently involves deceptive conduct, and therefore that Yeremin’s conviction
constituted a crime involving moral turpitude.
Yeremin additionally argues that the IJ erred by looking to the indictment to
determine whether his conviction constituted a crime involving moral turpitude. See Pet.
Br. (Case No. 10-4525) at 22–23. Citing United States v. Bernal-Aveja, 414 F.3d 625
(6th Cir. 2005), Yeremin argues that the IJ erroneously relied on alleged facts relating
to fraud in the indictment to which Yeremin did not admit in the plea agreement. Our
holding in Bernal-Aveja was that information contained in an indictment is not by itself
sufficient to establish whether a conviction was for a crime of violence, when the
defendant pleaded guilty to a different offense than that charged in the indictment.
414 F.3d at 628. First, this holding is not directly applicable to Yeremin’s case, because
Yeremin was convicted under the same statute as that charged in the indictment.
More significantly, Yeremin’s argument misinterprets the overall rationale of the
IJ’s decision. The IJ looked to the language of the statute under which Yeremin was
convicted, and concluded that “the inherent nature of the offense involves fraud.”
C.A.R. at 159 (IJ Dec. at 2). The BIA affirmed the decision on this basis, finding that
“the inherent nature of the underlying offense clearly involves fraud.” C.A.R. at 76
(Nov. 5, 2010 BIA Dec. at 2). The use of the phrase “inherent nature,” along with
citations to Matter of Flores, implies that the IJ and BIA concluded that all convictions
under § 1028(a)(3) are inherently deceptive, i.e., the decisions used the categorical
approach and focused on the elements of the statute. To the extent that the IJ
subsequently looked to the indictment, it appears that this was only further to confirm
the conclusion that the offense of conviction involved fraud—we do not read the IJ’s
citation of language from the indictment, such as “fraudulently obtained driver’s
Nos. 10-4525/11-3975 Yeremin v. Holder Page 11
licenses,” as critical to the IJ’s overall analysis. See C.A.R. at 160 (IJ Dec. at 3).
Accordingly, we reject Yeremin’s argument that the IJ committed reversible error by
looking to the indictment regarding the basic facts surrounding the conviction. Further,
under our precedent, the categorical approach permits the IJ to “look to the inherent
nature of the crime[s] as defined by statute and interpreted by the courts and as limited
and described by the record of conviction to determine whether the offenses are ones
involving moral turpitude.” Kellermann, 592 F.3d at 704 (internal quotation marks
omitted). Because the Plea Agreement did not specify the particular underlying offense
that was the object of the alleged conspiracy, the IJ was permitted to look to the
indictment, part of the record of conviction, to determine which offense was at issue.
Finally, Yeremin argues that the BIA erred by relying on the Attorney General’s
recent decision in Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. 2008), in
determining whether Yeremin’s conviction qualified as a crime involving moral
turpitude. In Silva-Trevino, the Attorney General held that, in determining whether a
crime involves moral turpitude, “when the record of conviction fails to show whether the
alien was convicted of a crime involving moral turpitude, immigration judges should be
permitted to consider evidence beyond that record if doing so is necessary and
appropriate.” 24 I. & N. Dec. at 699. Permitting examination of extra-record evidence
in these circumstances is a departure from the evidentiary limitations created by the
categorical and modified-categorical approaches as previously understood. See, e.g.,
Jean-Louis v. Attorney Gen., 582 F.3d 462, 471–72 (3d Cir. 2009). Yeremin contends
that Silva-Trevino’s new approach to the moral-turpitude inquiry is an impermissible
exercise of authority by the Attorney General, and that the BIA should not have relied
on the decision as precedent. See Pet. Br. (Case No. 10-4525) at 25–27.
These arguments are not well-taken, because in rendering its decision in
Yeremin’s case, the BIA did not rely on Silva-Trevino’s newly announced framework.
The BIA’s only reliance on Silva-Trevino was to cite the decision following its
conclusion that Yeremin’s conviction involved moral turpitude because “the inherent
nature of the underlying offense clearly involve[d] fraud.” C.A.R. at 76 (Nov. 5, 2010
Nos. 10-4525/11-3975 Yeremin v. Holder Page 12
BIA Dec. at 2). Silva-Trevino was cited alongside Matter of Flores, a BIA decision
which stands for the proposition that even when a statute does not include “the usual
phraseology concerning fraud,” conviction under the statute may still constitute a crime
involving moral turpitude if “fraud is inherent in [the] offense.” 17 I. & N. Dec. at 228.
Because the BIA did not rely on Silva-Trevino’s new framework in this case or examine
evidence outside of the record of conviction, Yeremin’s arguments that the Silva-Trevino
decision was ultra vires, that its retroactive application was impermissible, and that the
decision does not warrant deference are inapt. Accordingly, we need not reach
Yeremin’s arguments relating to Silva-Trevino because those arguments are irrelevant
to the disposition of his case.
D. Denial of Motion to Reconsider
We review the BIA’s denial of a motion to reconsider for abuse of discretion.
Alizoti v. Gonzales, 477 F.3d 448, 451 (6th Cir. 2007). “The BIA abuses its discretion
when it acts arbitrarily, irrationally, or contrary to law.” Id. (citing Babai v. INS,
985 F.2d 252, 255 (6th Cir. 1993)). An abuse of discretion also occurs when the
decision is “‘made without a rational explanation, inexplicably depart[s] from
established policies, or rest[s] on an impermissible basis such as invidious
discrimination.’” Id. at 453 (quoting Balani v. INS, 669 F.2d 1157, 1161 (6th Cir.
1982)).
A motion to reconsider “shall state the reasons for the motion by specifying the
errors of fact or law in the prior Board decision and shall be supported by pertinent
authority.” 8 C.F.R. § 1003.2(b)(1). “The purpose of a motion to reconsider is the
correction of legal or factual errors that occurred in the BIA’s original decision.” Mu
Ju Li v. Mukasey, 515 F.3d 575, 578 (6th Cir. 2008) (citing 8 U.S.C. § 1229a(c)(6)(C);
8 C.F.R. § 1003.2(b)(1)). “Ultimately, the motion ‘is a request to the BIA to reexamine
its decision in light of additional legal arguments, a change of law, or perhaps an
argument or aspect of the case which was overlooked.’” Sunarto v. Mukasey, 306 F.
App’x 957, 960–61 (6th Cir. 2009) (quoting Ahmed v. Ashcroft, 388 F.3d 247, 249
(7th Cir. 2004)). When a motion to reconsider does not raise any additional legal
Nos. 10-4525/11-3975 Yeremin v. Holder Page 13
arguments that were not already presented to the BIA, the BIA does not abuse its
discretion in denying the motion. See Sswajje, 350 F.3d at 533; see also Mulla v.
Holder, 462 F. App’x 592, 596 (6th Cir. 2012) (affirming the BIA’s denial of a motion
to reconsider when the motion “raised the identical issues and arguments the BIA
previously rejected”).
Yeremin’s motion to reconsider repeats arguments he made in his appeal from
the IJ’s decision, specifically arguments relating to the determination that his conviction
qualified as a crime involving moral turpitude. See C.A.R. at 51–60 (Mot. to Recon. at
38–47). The BIA did not abuse its discretion in rejecting these arguments because the
BIA had already been presented with and had rejected the same arguments. See Sswajje,
350 F.3d at 533.
Additionally, Yeremin challenged the BIA’s reliance on Silva-Trevino, arguing
that the decision lacks authority as precedent, and that it should not have been applied
retroactively to his case. There was no abuse of discretion in the BIA’s rejection of
these arguments. First, the BIA explained that it did not have authority to reconsider the
Attorney General’s determinations in Silva-Trevino. See C.A.R. II at 4 (BIA Denial of
Mot. to Recon. at 1). Pursuant to immigration regulations, the BIA “shall be governed
by the provisions and limitations prescribed by applicable law, regulations, and
procedures, and by decisions of the Attorney General.” 8 C.F.R. § 1003.1(d)(1)(i)
(emphasis added). Thus, given that there has not been an enactment of contrary
legislation, a promulgation of contrary regulations, or a ruling rejecting Silva-Trevino
from either this court or the Supreme Court, the BIA was at least permitted—if not
required—to allow reliance on Silva-Trevino. See id. § 1003.1(g)–(h) (stating that BIA
decisions may be modified or overruled by the Attorney General, and that the Attorney
General’s decisions “shall serve as precedents in all proceedings involving the same
issue or issues”). Further, Yeremin’s objections to the Silva-Trevino decision are
misplaced, because there was no material reliance by the BIA on the parts of the
Attorney General’s decision to which Yeremin objects; Yeremin’s arguments regarding
Silva-Trevino are thus irrelevant to the disposition of his case. See supra Section III.C.
Nos. 10-4525/11-3975 Yeremin v. Holder Page 14
Thus, the BIA did not act arbitrarily, irrationally, or contrary to law in denying
Yeremin’s motion to reconsider. See Alizoti, 477 F.3d at 451.
IV. CONCLUSION
For the foregoing reasons, we DENY Yeremin’s petitions for review.