Etumai Mtoched v. Loretta E. Lynch

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ETUMAI FELIX MTOCHED, No. 13-70295
Petitioner,
Agency No.
v. A087-957-052
LORETTA E. LYNCH, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
October 9, 2014—Honolulu, Hawaii
Filed May 22, 2015
Before: A. Wallace Tashima, Johnnie B. Rawlinson,
and Richard R. Clifton, Circuit Judges.
Opinion by Judge Clifton
2 MTOCHED V. LYNCH
SUMMARY*
Immigration
The panel denied Etumai Mtoched’s petition for review
from the Board of Immigration Appeals’ order removing him
based on his conviction for assault with a dangerous weapon
under Commonwealth of the Northern Mariana Islands law,
6 N. Mar. I. Code § 1204(a).
The panel held that United States immigration laws could
properly be applied to Mtoched within the CNMI, even
though he entered the territory, committed the crime, and was
convicted before U.S. immigration laws were extended to the
CNMI pursuant to 48 U.S.C. § 1806. The panel held that
such application was not impermissibly retroactive, and that
it did not infringe upon CNMI’s right to self-government in
violation of the terms of the Covenant to Establish a
Commonwealth of the Northern Mariana Islands in Political
Union with the United States.
The panel also held that Mtoched’s conviction constituted
a crime involving moral turpitude, making him removable
under the Immigration and Nationality Act. The panel
concluded that § 1204(a) is divisible into three subparts all
involving bodily injury to another person with a dangerous
weapon. Applying the modified categorical approach, the
panel held that because Mtoched's conviction entailed
purposeful conduct, more than simply reckless conduct, it
demonstrated evil intent and constituted a CIMT.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
MTOCHED V. LYNCH 3
The panel also held that Mtoched was statutorily
ineligible for an INA § 212(h) waiver of inadmissibility,
because under 8 C.F.R. § 1245.1(f) a waiver for an alien
within the United States is available only in connection with
an application for adjustment of status, even if he is not
eligible to apply for adjustment.
COUNSEL
Joseph E. Horey, O’Conner, Berman, Dotts & Banes, Saipan,
MP, for Petitioner.
Anthony W. Norwood (argued) and Jesse M. Bless, United
States Department of Justice, Washington, D.C., for
Respondent.
OPINION
CLIFTON, Circuit Judge:
Etumai Mtoched, a citizen of Palau and a resident of the
Commonwealth of the Northern Mariana Islands (“CNMI”),
petitions for review of an order of removal from the United
States. That order was entered based on Mtoched’s
conviction for assault with a dangerous weapon under CNMI
law, 6 N. Mar. I. Code § 1204(a).
One set of issues raised by Mtoched’s petition arises from
CNMI’s unique posture in relationship with United States
immigration law. Prior to 2009, CNMI could be described as
being outside the immigration boundary of the United States.
Accordingly, United States immigration laws, including the
4 MTOCHED V. LYNCH
Immigration and Nationality Act (“INA”), did not apply to
CNMI. Instead, the CNMI government was itself responsible
for enacting and administering laws governing immigration
into and deportation from CNMI. That changed when most
of the United States immigration laws, including the INA,
were extended to CNMI via legislation codified as 48 U.S.C.
§ 1806, contained within the Consolidated Natural Resources
Act of 2008 (“CRNA”), Pub. L. 110-229, 122 Stat. 754,
effective on November 28, 2009. Shortly thereafter, the
Department of Homeland Security initiated proceedings
against Mtoched that culminated in the order of removal that
is the subject of this petition. Mtoched challenges that order
as a violation of CNMI’s right to self-government and as an
impermissible retroactive application of law. We reject those
challenges and conclude that United States immigration laws
may properly be applied and enforced within CNMI to
Mtoched even though he entered that territory, committed the
crime, and suffered the conviction upon which the removal
order is based prior to the extension of United States
immigration laws to the Commonwealth.
Mtoched also challenges the determination that his
conviction was for a crime involving moral turpitude
(“CIMT”), making him removable under the INA. We
disagree and conclude that it was.
In addition, we reject his contention that he is eligible for
a waiver of inadmissibility under§ 212(h) of the INA,
8 U.S.C. § 1182(h). The Board of Immigration Appeals
(“BIA”) held that he was ineligible because, under the
governing regulation, an application for such a waiver can
only be made by someone already within the United States
together with an application for adjustment of status, and
Mtoched was not eligible to submit an application for
MTOCHED V. LYNCH 5
adjustment of status. We accept the BIA’s interpretation. As
a result, we deny Mtoched’s petition for review.
I. Background
The Northern Mariana Islands are located in the western
Pacific Ocean, north of Guam. Formerly Spanish colonies
before the Spanish American War, they were governed
thereafter by Germany, then Japan. Following World War II,
the islands were administered by the United States as part of
the Trust Territory of the Pacific Islands pursuant to a
Trusteeship Agreement with the United Nations Security
Council. Though other portions of the former trust territories
decided to become independent nations, these islands elected
to enter into a closer and more lasting relationship with the
United States. Years of negotiation culminated in 1975 with
the signing of the Covenant to Establish a Commonwealth of
the Northern Mariana Islands in Political Union with the
United States (hereinafter “Covenant”), Pub. L. 94-241, 90
Stat. 263 (1976). After a period of transition, in 1986 the
trusteeship terminated, and CNMI was fully launched. See
generally United States ex. rel. Richards v. Leon Guerrero,
4 F.3d 749, 751–52 (9th Cir. 1993).
Etumai Mtoched is a citizen of Palau who has lived for
many years in CNMI. Palau was previously part of the Trust
Territories and is now an independent nation that has entered
into a Compact of Free Association with the United States.
Mtoched says that he moved to Saipan, the largest island in
the CNMI, in 1991 and has remained there ever since.
Because Mtoched moved to Saipan before United States
immigration laws were extended over CNMI, he was
admitted by CNMI immigration officials applying CNMI law.
6 MTOCHED V. LYNCH
Mtoched was convicted in 1994 for assault with a
dangerous weapon under 6 N. Mar. I. Code § 1204(a). He
was specifically charged with having “purposely stabbed [the
victim] under his arm pit with a knife, causing bodily injury”
to the victim. Mtoched pled no contest. The court accepted
the plea and found him guilty. He was sentenced to five
years in jail, but the jail time was suspended subject to
community service and the payment of restitution.
A few months after the effective date for the extension of
United States immigration laws over CNMI, the federal
government initiated removal proceedings against Mtoched.
The Notice to Appear cited his conviction for assault with a
dangerous weapon as a crime of moral turpitude, making him
removable under 8 U.S.C. § 1182(a)(2)(A)(i)(I).
Mtoched moved to terminate the removal proceedings.
The immigration judge (“IJ”) denied the motion to terminate
the removal proceeding in a written opinion. She determined
that Mtoched’s conviction was for a CIMT, applying the
modified categorical approach. The IJ also rejected the
argument that application of the INA would have an unlawful
retroactive effect. Mtoched then notified the IJ of his
application for a § 212(h) waiver, which could permit him to
avoid removal despite his conviction. The IJ determined that
Mtoched was ineligible for such a waiver on the grounds that
an application for that kind of waiver by an alien within the
United States must be submitted in conjunction with an
application for an adjustment of status, which Mtoched had
not submitted and was not eligible to submit. The IJ
ultimately entered an order of removal, directing that he be
removed to Palau if he failed to voluntarily depart.
MTOCHED V. LYNCH 7
Mtoched appealed the order to the BIA. The BIA upheld
the IJ’s determination that Mtoched had been convicted of a
CIMT. The BIA also agreed that the application of United
States immigration laws to Mtoched had no impermissible
retroactive effect, noting that Mtoched had been deportable
under the previously applicable CNMI immigration laws as
well. The BIA declined to consider Mtoched’s argument that
the extension of the INA to CNMI was impermissible as a
violation of the Commonwealth’s right to self-government
under the Covenant, concluding that it was beyond the
Board’s jurisdiction. The BIA also upheld the IJ’s denial of
a § 212(h) waiver, agreeing with the IJ that such a waiver
may be requested by an alien within the United States only
with an application for adjustment of status.
Mtoched filed a timely petition for review.
II. Extension of the INA to CNMI
Mtoched presents two separate arguments challenging the
application of the INA to remove him from the United States.
One is that the application violates the terms of the Covenant
and infringes upon CNMI’s right to self-government. The
other is that it represents an unlawfully retroactive application
of law years after his entry into CNMI in 1991 and his
conviction for a crime in 1994. We are not persuaded by
either argument.
1. The Alleged Violation of the Covenant
Mtoched argues that he cannot be removed because the
extension of the INA to CNMI violated the terms of the
Covenant and thus cannot have the force of law. Essentially
similar arguments were made by the CNMI government itself
8 MTOCHED V. LYNCH
when it sought to enjoin application and enforcement of
United States immigration laws to the Commonwealth after
Congress adopted the legislation extending those laws to
CNMI. The United States District Court for the District of
Columbia rejected that effort in Commonwealth of the
Northern Mariana Islands v. United States, 670 F. Supp. 2d
65 (D.D.C. 2009), holding that the extension was lawful in a
decision that substantially relied upon and quoted from our
court’s decision in Richards. Id. at 80–91. We agree with
that decision and adopt its reasoning. “Congress was
authorized to enact the challenged provisions of the CNRA
by the plain and unambiguous terms of Section 503 of the
Covenant.” Id. at 91.
2. Retroactivity
Mtoched argues that the extension of the INA to CNMI
and the subsequent application of the INA to him, years after
his crime and conviction, has an impermissible retroactive
effect.
There is a presumption in American law against
retroactive legislation. Vartelas v. Holder, 132 S. Ct. 1479,
1486 (2012). In Landgraf v. USI Film Products, 511 U.S.
244 (1994), the Supreme Court established a two-step test to
determine whether a statute has an impermissible retroactive
effect. The first question is “whether Congress has expressly
prescribed the statute's proper reach.” Id. at 280. If so, then
the analysis ends and the statute should be applied as
Congress determined. Id. If there is no express command in
the statute, “the court must determine whether the new statute
would have retroactive effect, i.e., whether it would impair
rights a party possessed when he acted, increase a party’s
liability for past conduct, or impose new duties with respect
MTOCHED V. LYNCH 9
to transactions already completed.” Id. If so, the
presumption against retroactive application should apply. Id.
The BIA concluded that the statute, 48 U.S.C. § 1806, did
not express a clear intent to make the legislation retroactive.
The government acknowledges the same in its arguments to
us. As a result, we must consider the second Landgraf
question. After doing so, we conclude that application of the
INA to Mtoched is proper.
Mtoched was already subject to possible deportation
under the prior CNMI law because he was convicted of a
felony, a deportable offense under that law. See 3 N. Mar. I.
Code § 4340(d) (repealed) and 6 N. Mar. I. Code § 102(i).
Mtoched admits that to be true. On that level, therefore, the
application of the INA does not constitute a change. Mtoched
was deportable before, under the prior CNMI immigration
laws, and he remains deportable under the INA.
Mtoched argues, however, that deportation under prior
CNMI law was subject to the discretion of the CNMI
Attorney General. Under the CNMI law that previously
applied, the CNMI Attorney General had “ultimate discretion
as to when and whether to bring prosecutions and actions for
deportations pursuant to [the former CNMI immigration
laws].” 3 N. Mar. I. Code § 4312(d)(4) (repealed). The
CNMI Attorney General did not bring such proceedings
against Mtoched.
Mtoched further argues that there is substantially less
discretion available under the INA than was assigned to the
CNMI Attorney General under the prior law, at least for
someone in Mtoched’s situation, an alien who is removable
or excludable on the grounds of having committed a crime.
10 MTOCHED V. LYNCH
He points, for example, to an INA section limiting the
exercise of discretion by the United States Attorney General
to waive an alien’s criminal conduct. See 8 U.S.C. § 1182(h).
We are not persuaded by his argument.
For one thing, Mtoched has not established that the CNMI
Attorney General had actually exercised discretion in his
favor at any time while CNMI law applied, or that discretion
would have been exercised if the matter had been raised. All
that he has established is that CNMI deportation proceedings
had not been commenced against him. The failure to initiate
deportation proceedings is not the same as an actual exercise
of discretion. Mtoched has not demonstrated that he had a
right to discretionary relief or even a substantial prospect of
obtaining relief of any formal kind.
The presumption against the retroactive application of law
is triggered when such application would “tak[e] away or
impai[r] vested rights acquired under existing laws, or
creat[e] a new obligation, impos[e] a new duty, or attac[h] a
new disability, in respect to transactions or considerations
already past.” Vartelas, 132 S. Ct. at 1486–87 (quoting
Justice Story in Soc’y for Propagation of Gospel v. Wheeler,
22 F. Cas. 756, 767 (No. 13,156) (CCNH 1814)). Mtoched
had no vested right to avoid deportation under CNMI law.
Although the closure of a door to apply for discretionary
relief can in some circumstances constitute “a new
disability,” INS v. St. Cyr, 533 U.S. 289, 321 (2001), Mtoched
points to nothing other than the failure to initiate proceedings
against him to support the notion that the prior CNMI law
was more favorable to him. The fact that the federal
government, as the new enforcement authority, has more
resources or might be more aggressive in enforcement than
the CNMI Attorney General does not represent the kind of
MTOCHED V. LYNCH 11
“new disability” against which the presumption against
retroactivity is intended to protect.
Moreover, Mtoched’s argument fails to appreciate that the
federal government still maintains significant discretion. In
particular, there is at least some degree of discretion inherent
in the decision whether to initiate removal proceedings
against a given individual. As the Supreme Court has
observed, a “principal feature of the removal system is the
broad discretion exercised by immigration officials.” Arizona
v. United States, 132 S. Ct. 2492, 2499 (2012). All that
Mtoched demonstrated in connection with the prior CNMI
law was that the CNMI Attorney General could decide “when
and whether to bring prosecutions and actions for
deportation.” 3 N. Mar. I. Code § 4312(d)(4) (repealed).
That discretion is not unlike the discretion that federal
authorities have. His arguments about the limitations on the
discretion of the United States Attorney General all involve
the exercise of discretion after removal proceedings have
been commenced and after the alien has been found otherwise
removable. Mtoched did not establish that the CNMI
authorities could not have acted to deport him under prior law
or that he had any legal basis under CNMI law to avoid
deportation. That the federal government has commenced
removal proceedings against him does not represent an
impermissibly retroactive application of law.
III. Crime involving Moral Turpitude
Under 8 U.S.C. § 1182(a)(2)(A)(i)(I), an alien may be
removed from the United States if convicted of a CIMT.
Mtoched argues that his conviction was not for a crime that
constituted a CIMT. We disagree.
12 MTOCHED V. LYNCH
Mtoched was convicted under 6 N. Mar. I. Code
§ 1204(a). That statute provided that a “person commits the
offense of assault with a dangerous weapon if he or she
threatens to cause, attempts to cause, or purposely causes
bodily injury to another with a dangerous weapon.” The
statute is thus divisible into three distinct subparts, all
involving bodily injury to another person with a dangerous
weapon: (1) threaten to cause, (2) attempt to cause, or
(3) purposely cause. Mtoched was charged with the third
variation, “purposely stabbing” a named individual with a
knife “causing bodily injury.” In his plea agreement, Mtoched
agreed to that as the factual basis for the conviction.1
“[T]he federal generic definition of a CIMT is a crime
involving fraud or conduct that (1) is vile, base, or depraved
and (2) violates accepted moral standards. Non-fraudulent
CIMTs almost always involve an intent to harm someone.”
Saavedra-Figueroa v. Holder, 625 F.3d 621, 626 (9th Cir.
2010) (internal quotation marks and citations omitted).
1
The determination of whether a conviction is for a crime that represents
a CIMT is based on application of the categorical approach. Marmolejo-
Campos v. Holder, 558 F.3d 903, 912(9th Cir. 2009) (en banc). This court
first determines if the relevant statute has the same elements as a generic
crime. Descamps v. United States, 133 S. Ct. 2276, 2283 (2013) (citing
Taylor v. United States, 495 U.S. 575, 600 (1990)). If the statute has the
same elements as the generic crime, or sweeps more narrowly, then the
crime is a categorical match, but if its sweep is broader than the generic
crime’s elements, then it fails the test. Id. (citations omitted). If the
statute of conviction is divisible into subparts, each with separate
elements, like the CNMI statute at issue here, some of which are
categorical matches and some of which are not, the modified categorical
approach may be used. Rodriguez-Castellon v. Holder, 733 F.3d 847, 853
(9th Cir. 2013) (citing Descamps, 133 S. Ct. at 2285).
MTOCHED V. LYNCH 13
Convictions for simple assault and battery often do not
constitute convictions for CIMTs because such crimes sweep
in reckless activity, which does not require a finding of
willfulness or other evil intent necessary for a CIMT. See
Fernandez-Ruiz v. Gonzales, 468 F.3d 1159, 1165–67 (9th
Cir. 2006) (rejecting a conviction under Arizona’s class 2
misdemeanor assault, a general assault statute, as a CIMT,
because it penalized reckless conduct). But convictions for
assault can qualify as morally turpitudinous “if they
necessarily involve aggravating factors that significantly
increase their culpability, such as the intentional infliction of
serious bodily injury on another.” Latter-Singh v. Holder,
668 F.3d 1156, 1161 (9th Cir. 2012) (internal quotation marks
and citations omitted).
The offense of “purposely causing” bodily injury with a
dangerous weapon requires evil intent and thus qualifies as a
CIMT. Though we have found no decision by the CNMI
Supreme Court that interprets the term “purposely” in 6 N.
Mar. I. Code § 1204(a), the dictionary definition of the word
“purposely” according to the 1981 edition of Webster’s New
Third International Dictionary, two years before the statute
was last revised, is “with a deliberate or an express purpose.”
Webster’s Third New International Dictionary of the English
Language Unabridged 1847 (1981); see Webster’s Third New
International Dictionary of the English Language
Unabridged 1847 (2002) (same definition). Black’s Law
Dictionary defines purposely similarly as “[i]n such a manner
that the actor engaged in prohibited conduct with the
intention of causing the social harm that the law was designed
to prevent.” Black’s Law Dictionary 1431 (10th ed. 2014).
To be sure, terms delineating criminal mental intent
sometimes have different meanings in different contexts.
14 MTOCHED V. LYNCH
See, e.g., Ratzlaf v. United States, 510 U.S. 135, 141 (1994)
(“‘Willful’ . . . is a word of many meanings, and its
construction is often influenced by its context.” (internal
quotation marks and amendments omitted)). As used in this
statute, though, it is plain that the term “purposely” is
intended to have a meaning comparable with “intentionally,”
a specific intent to injure that pushes the assault committed
by Mtoched into the realm of a CIMT. Latter-Singh,
668 F.3d at 1161–62. Because Mtoched’s conviction entailed
purposeful conduct, more than simply reckless conduct, it
demonstrated evil intent and constituted a CIMT.
IV. Section 212(h) Waiver
Mtoched argues that he should be allowed to apply for a
waiver under 8 U.S.C. § 1182(h), commonly called a § 212(h)
waiver, which in some circumstances may permit an alien to
overcome the effect of having committed a CIMT. The BIA
held that he was statutorily ineligible for such a waiver.
Mtoched’s problem is that he has already been admitted
into the United States. The Attorney General has exercised
authority granted to him under 8 U.S.C. § 1182(h)(2) to issue
a regulation providing that an application for adjustment of
status “shall be the sole method of requesting the exercise of
discretion under sections 212(g), (h), (i), and (k) of the Act,
as they relate to the inadmissibility of an alien in the United
States.” 8 C.F.R. § 1245.1(f); see Matter of Rivas, 26 I. & N.
Dec. 130, 132 (BIA 2013), petition denied in Rivas v. U.S.
Atty. Gen., 765 F.3d 1324 (11th Cir. 2014) (an alien “in the
country in removal proceedings . . . must file a concurrent
adjustment application in order to seek a waiver of the
grounds of removal.”).
MTOCHED V. LYNCH 15
Two other federal circuits have upheld that limitation.
Poveda v. U.S. Atty. Gen., 692 F.3d 1168, 1176 (11th Cir.
2012) (“The new interpretation by the Board of section
212(h)—that an alien within the United States must apply for
an adjustment of his status to receive a hardship waiver—is
reasonable.”); Cabral v. Holder, 632 F.3d 886, 891 (5th Cir.
2011) (“because Cabral was an alien inside the United States
who had not filed a concurrent application for adjustment of
status under § 1255, he was ineligible to apply for a § 212(h)
waiver”); see also Klementanovsky v. Gonzales, 501 F.3d
788, 791-93 (7th Cir. 2007) (concluding that the limited
availability of a waiver of inadmissibility of an alien within
the United States did not deprive an alien of equal
protection).
Under that regulation, the BIA has specifically held that
aliens seeking admission to the United States while present in
the CNMI after November 28, 2009, may only seek a waiver
in conjunction with an application for adjustment of status.
Matter of Valdez, 25 I. & N. Dec. 824, 828 (BIA 2012). That
covers Mtoched, who has applied for a waiver but who has
not submitted an application for adjustment of status.2
When a court reviews a regulation promulgated by an
agency charged with administering such a statute, the first
question is whether Congress spoke clearly to the matter.
Chevron U.S.A. Inc. v. Natural Res. Def. Council, 467 U.S.
837, 842 (1984). If the intent of Congress is clear in the
statutory language, then that ends the inquiry. Id. at 842–43.
If not, the court generally defers to an agency’s determination
2
Mtoched may not adjust his status, because he is a citizen of Palau who
may enter the United States as a non-immigrant under the section 141 of
the Compact of Free Association with the Republic of Palau.
16 MTOCHED V. LYNCH
in its regulation unless it is “arbitrary, capricious, or
manifestly contrary to the statute.” Id. at 843–44. When the
BIA interprets a provision of the INA in a published decision
of three members of the board, this court applies the same
analysis and deference as outlined in Chevron. Federiso v.
Holder, 605 F.3d 695, 697 (9th Cir. 2010).
The Attorney General is expressly authorized under
8 U.S.C. § 1182(h)(2) to prescribe regulations regarding that
provision, and responsibility for adjudicating removal
proceedings is assigned to the Attorney General and his
designees. The statute says that an alien may seek a § 212(h)
waiver when he is “applying or reapplying for a visa, for
admission to the United States, or for adjustment of status.”
8 U.S.C. § 1182(h)(2). The regulation issued by the Attorney
General is consistent with the statutory language. 8 C.F.R.
§ 1245.1(f). Matter of Rivas, a published decision by a three
member panel of the BIA, confirms the regulation’s direction
that a § 212(h) waiver for an alien within the United States is
available only in connection with an application for
adjustment of status, even for someone who is not eligible to
apply for adjustment of status. Matter of Rivas, 26 I. & N.
Dec. at 132. Mtoched has not established that the regulation
and its interpretation are arbitrary, capricious, or manifestly
contrary to the statute. We thus defer to the agency’s
interpretation. Mtoched was not eligible to apply for a
§ 212(h) waiver.
V. Conclusion
The petition for review is DENIED.