George Martin v. Attorney General United States

• Court: Court of Appeals for the Third Circuit
• Decided: September 16, 2019
• Docket: 17-2524
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

Nos. 17-2524 & 17-3420 _____________

GEORGE MARTIN, Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES ________________

On Petition for Review of a Decision of the Board of Immigration Appeals (Agency No. A094-644-596) Immigration Judge: Honorable Walter A. Durling ______________

Submitted Under Third Circuit L.A.R. 34.1(a) September 13, 2019 ______________

(Opinion Filed: September 16, 2019)

Before: CHAGARES, JORDAN, and BIBAS, Circuit Judges ____________

OPINION* ____________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. CHAGARES, Circuit Judge.

George Martin petitions this Court to review a final order of removal issued by the

Board of Immigration Appeals (“BIA”). For the reasons set forth below, we will deny

Martin’s petition for review.1

I.

Martin was born in Sierra Leone in 1970. He fled the civil war there and entered

the United States in 2004 as a refugee. In 2006, he pleaded guilty in Illinois state court to

theft by deception and was sentenced to two years of probation. In 2008, he pleaded

guilty in federal court to one count of wire fraud in violation of 18 U.S.C. § 1343 and was

sentenced to 37 months of imprisonment. He was ordered to pay restitution in the

amount of $95,453.35. In February 2013, the Department of Homeland Security

(“DHS”) served Martin with a Notice to Appear (“NTA”), charging him with

removability based on the 2006 and 2008 convictions. The NTA did not provide the date

and time of the hearing but instead stated that information was forthcoming. Specifically,

he was charged with two grounds of removability, for having been convicted of (1) two

crimes involving moral turpitude (“CIMT”) not arising out a single scheme of criminal

conduct and (2) an aggravated felony that involves fraud or deceit in which the loss to the

victim exceeds $10,000.

1 While, for ease of reference, we use the singular “petition,” we are reviewing both Martin’s petition for review of the BIA’s decision dismissing his appeal from the Immigration Judge’s (“IJ”) final order of removal and his petition for review of the BIA’s decision dismissing his appeal from the denial of his motion for reconsideration. 2 Martin applied for adjustment of status pursuant to 8 U.S.C. § 1159(c), which

gives the Attorney General discretion to waive certain grounds of inadmissibility of

refugees “for humanitarian purposes, to assure family unity, or when it is otherwise in the

public interest.” In July 2013, an IJ held two evidentiary hearings at which Martin and

his wife testified. His wife, who also is a refugee from Sierra Leone, testified about the

difficulties she and her children would face if Martin were to be deported. The IJ

exercised his discretion for the purpose of family unity and granted the adjustment of

status, rendering Martin a lawful permanent resident.

In December 2015, Martin pleaded guilty in Indiana state court to fraud on a

financial institution, forgery, and identity deception. He was sentenced to one year of

imprisonment followed by two years of house arrest. In November 2016, DHS served

Martin with a second NTA, charging him with removability on three grounds, for having

been convicted of (1) two CIMTs not arising out of a single scheme of criminal conduct;

(2) an aggravated felony that involves fraud or deceit in which the loss to the victim

exceeds $10,000; and (3) a CIMT committed within five years after admission for which

a sentence of one year or longer may be imposed. This NTA, like the first, did not

provide the date or time of the hearing.

Martin moved to terminate the removal proceedings based on, among other things,

res judicata, arguing that neither the 2006 nor 2008 convictions could form the basis for

his current removability charge because he had been granted a waiver. The IJ denied the

motion and began the removal proceeding in December 2016, which continued into

February 2017. At the proceeding, Martin contested whether the 2015 convictions had an

3 intended loss of more than $10,000, but he conceded that the intended loss of the 2008

conviction exceeded $10,000. The IJ held that the 2008 conviction qualified as an

aggravated felony but did not decide as to the 2015 conviction. The IJ further held that

Martin was statutorily ineligible for discretionary relief due to the 2008 aggravated felony

conviction and ordered him removed to Sierra Leone.

Martin appealed to the BIA and asked for a remand to apply for “any and all relief

available to him.” Appendix (“App.”) at 97. The BIA wrote its own opinion dismissing

the appeal and denying the request to remand. Citing Matter of Balderas, 20 I&N Dec.

389 (BIA 1991), the BIA agreed that the 2006 and 2008 convictions “remain valid for

immigration purposes” and either conviction could be coupled with the 2015 convictions

“to form the basis of removability for having committed two crimes involving moral

turpitude.” App. at 8.

The BIA further held that Martin was statutorily ineligible for cancellation of

removal because the 2008 conviction qualified as an aggravated felony under 8 U.S.C.

§ 1101(a)(43)(M)(i), which provides that “[t]he term ‘aggravated felony’ means . . . an

offense that . . . involves fraud or deceit in which the loss to the victim or victims exceeds

$10,000.” Remand was also unwarranted, the BIA held, because Martin did not allege

any new facts or new evidence. Martin timely filed a petition for review.

II.

We have jurisdiction under 8 U.S.C. § 1252(a)(1) to review a final order of

removal, but we are stripped of that jurisdiction when the final order of removal is based

on convictions for certain criminal offenses. Id. at § 1252(a)(2)(C). While Martin

4 committed offenses that would otherwise preclude our jurisdiction, he raises questions of

law, so we retain jurisdiction under § 1252(a)(2)(D). We “apply de novo review, subject

to applicable canons of deference.” Taveras v. Att’y Gen., 731 F.3d 281, 285 (3d Cir.

2013). But our review of a purely legal challenge is plenary. Chiao Fang Ku v. Att’y

Gen., 912 F.3d 133, 138 (3d Cir. 2019).

III.

Martin raises four issues in his petition for review. First, that his 2015 convictions

are not aggravated felonies. Second, that because his NTA did not list the date and time

of the removal hearing, the IJ lacked jurisdiction to determine his removability. Third,

that res judicata precludes use of his 2006 and 2008 convictions as a basis for

removability under 8 U.S.C. § 1227(a)(2)(A)(ii). And fourth, that the BIA should have

remanded to the IJ so he could apply for asylum.

A.

Martin argues his 2015 convictions for fraud on a financial institution, forgery,

and identity deception are not aggravated felonies because the Government failed to carry

its burden that the intended loss exceeded $10,000. But the IJ explicitly stated in his oral

decision that “[t]he Court did not rule on whether [the 2015 conviction] constitutes an

aggravated felony fraud offense” because “the Court need not go there.” App. 11. The IJ

said it “need not go there” because Martin admitted that his 2008 conviction was an

aggravated felony rendering him “statutorily ineligible for discretionary relief.” Id.

Since this conviction did not bear on the IJ’s decision, it is immaterial whether it is or is

not an aggravated felony under the INA.

5 B.

Martin also contends that because his NTA did not provide the date and time of

his removal proceedings, it failed to confer jurisdiction to the IJ. We recently rejected

this precise argument in Nkomo v. Att’y Gen., 930 F.3d 129, 134 (3d Cir. 2019), and

under Third Circuit I.O.P 9.1, we are bound by Nkomo.

C.

Martin next argues that res judicata precludes the use of both his 2006 and 2008

convictions as grounds for removability under 8 U.S.C. § 1227(a)(2)(A)(ii), which

provides than an immigrant shall be removed if he is convicted of two or more CIMTs

not arising from a single scheme.

The BIA addressed a nearly identical issue in Matter of Balderas. There, the

respondent was charged with deportability for having been convicted of two CIMTs not

arising out of a single scheme of criminal misconduct, but he was granted a discretionary

waiver under INA § 212(c), 8 U.S.C. § 1182(c). Balderas, 20 I&N Dec. at 389-90.

Thereafter, he was convicted of another CIMT and charged with the same ground of

deportability: having two convictions for CIMTS not arising out of a single scheme of

criminal misconduct. Id. at 390. The BIA explained that a grant of discretionary relief

pursuant to § 212(c) is not “a pardon or expungement of the conviction itself,” but rather

is merely “a favorable exercise of discretion [based] on the particular facts presented.”

Id. at 391. Put simply, the conviction is not waived; the excludability or deportability is

waived. The BIA held that “a conviction which has once been relied upon in a charge of

deportability may be alleged as one of the ‘two crimes involving moral turpitude’ in a

6 second proceeding, even though the first proceeding was terminated by a grant of relief

under section 212(c) of the Act, where the second crime alleged is a subsequent

conviction.” Id. at 393.

We have approved this reasoning from Balderas and held that “the fact that a

petitioner’s deportation based on a particular conviction has been waived does not

prevent subsequent consideration of the same underlying conviction for other purposes.”

Duhaney v. Att’y Gen., 621 F.3d 340, 353 (3d Cir. 2010). There, the petitioner was

granted discretionary relief under § 212(c) and his deportability was waived, but we held

that the “Government was permitted to lodge new charges of removability, even based on

convictions that were disclosed in his application” and the § 212(c) waiver “d[id] not

extend to the [new] ground for removability.” Id. at 354.

Martin contends this precedent is no longer binding because § 212(c) has since

been repealed, but this argument fails because we have extended our reasoning to other

forms of discretionary relief, such as cancellation of removal under INA § 240A(a), 8

U.S.C. § 1229b(a). See Taveras, 731 F.3d at 288. In Taveras, we held that the prior

grant of a § 240A(a) waiver “did not impact the underlying drug conviction” that

rendered the petitioner removable; instead the waiver only impacted “the removal arising

from that conviction.” Id. Therefore, the previous waiver did not affect whether the

conviction that gave rise to the first charge of removability could be considered again as

part of a new ground for removability. Id.

We agree with the BIA that “either the respondent’s 2006 conviction for theft by

deception or his 2008 conviction for wire fraud may be coupled with his 2015 fraud or

7 forgery convictions to form the basis for removability for having committed two crimes

involving moral turpitude.” App. 8.

D.

Lastly, Martin argues the BIA erred by not remanding to the IJ so that he could

apply for asylum. Not so. Martin concedes that the 2008 conviction is an aggravated

felony, and the “Attorney General may cancel removal” of a permanent resident only if

he “has not been convicted of any aggravated felony.” 8 U.S.C. § 1229b(a)(3). In

Rodriguez-Munoz v. Gonzales, we held that when deportation based on an aggravated

felony is discretionarily waived, “that conviction would nonetheless remain an

aggravated felony for purposes of precluding his application for cancellation of removal

under § 240A(a).” 419 F.3d 245, 248 (3d Cir. 2005). Moreover, a refugee who has

already acquired permanent resident status, which Martin has, is not eligible to re-adjust.

8 U.S.C. § 1159(a)(1)(C).

IV.

For the foregoing reasons, we will deny Martin’s petition for review.