Gang Chen v. Jefferson Sessions

FILED
NOT FOR PUBLICATION
MAR 20 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GANG CHEN, No. 13-72961
Petitioner, Agency No. A077-562-540
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 15, 2017
San Francisco, California
Before: W. FLETCHER and RAWLINSON, Circuit Judges, and PRATT,**
District Judge.
Petitioner Gang Chen (Chen), a native and citizen of China, petitions for
review of the decision of the Board of Immigration Appeals (BIA) dismissing his
appeal of the immigration judge’s (IJ) order that he was inadmissible and ineligible
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Robert W. Pratt, United States District Judge for the
Southern District of Iowa, sitting by designation.
for waivers of inadmissibility and deportability. Chen, who pled guilty to making
a false statement in relation to naturalization, contends that the BIA erred in
implicitly concluding that he was an arriving alien subject to charges of
inadmissibility. Chen also asserts that the BIA erroneously held that he was
inadmissible based on material misrepresentations in his naturalization application
and in his application for adjustment of status. Finally, Chen maintains that he was
eligible for a waiver of inadmissibility and, alternatively, entitled to a waiver of
deportability on equal protection grounds.
Although the BIA did not expressly determine that Chen was an arriving
alien,1 the undisputed record reflects that even if Chen’s lawful permanent resident
status had been valid, he was an arriving alien because he departed the country
while in removal proceedings. See 8 U.S.C. § 1101(a)(13)(C)(iv) (“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 . . . has departed from the United States while
under legal process seeking removal of the alien from the United States, including
1
Chen maintains that he was not an arriving alien because his fraud
conviction was not categorically a crime involving moral turpitude as required for
inadmissibility. Because the BIA did not address this challenge to Chen’s
conviction, we decline to reach this issue. See Escobar v. Lynch, 846 F.3d 1019,
1028 (9th Cir. 2017).
2
removal proceedings under this chapter and extradition proceedings[.]”) As a
result, any remand would be futile because Chen was accurately classified as an
arriving alien who was inadmissible as charged. See de Jesus Melendez v.
Gonzales, 503 F.3d 1019, 1023 n.1 (9th Cir. 2007) (recognizing that remand to an
agency is not required “when to do so would be futile”) (citation omitted).
The BIA properly concluded that Chen was inadmissible because he
fraudulently procured his adjustment of status and willfully misrepresented
material facts in his naturalization petition. In his plea agreement, Chen admitted
that his immigration petition for an alien worker contained false statements and
forged signatures and that he knowingly made false statements and omissions in
his naturalization petition concerning his dual marriages.2
The BIA properly sustained the charge of inadmissibility pursuant to 8
U.S.C. § 1182(a)(7)(A)(i)(I) because Chen’s LPR status was “void ab initio” and
he lacked valid immigration documents for admission. Kim v. Holder, 603 F.3d
1100, 1104 (9th Cir. 2010) (citation omitted).
2
Chen contends that the mere act of bigamy does not render him
inadmissible because the government failed to demonstrate that Chen maintained a
polygamous lifestyle. But Chen conceded that because he knew his marriages
would “cause problems with [his] naturalization application,” he “decided to lie on
[his] naturalization application . . .”
3
Because Chen lacked a valid immigrant visa and his LPR status was void
due to his fraud, the BIA correctly held that Chen was ineligible for a waiver of
inadmissibility. See id. Chen is also not entitled to a waiver of deportability on
equal protection grounds because he does not “belong to the class of returning
LPRs who are allegedly similarly situated to applicants for admission.” Id.PETITION DENIED.
4