Mercurius Jallim v. U.S. Attorney General

712 F. App'x 970
CourtCourt of Appeals for the Eleventh Circuit
DecidedOctober 17, 2017
Docket16-16775 Non-Argument Calendar
StatusUnpublished

This text of 712 F. App'x 970 (Mercurius Jallim v. U.S. Attorney General) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mercurius Jallim v. U.S. Attorney General, 712 F. App'x 970 (11th Cir. 2017).

Opinion

PER CURIAM:

Petitioner Mercurius Jallim, a native and citizen of St. Lucia, petitions for review from the Board of Immigration Appeals’s (“BIA”) decision affirming the Immigration Judge’s (“IJ”) order of removal finding Petitioner inadmissible as an arriving alien convicted of a crime involving moral turpitude. On appeal, Petitioner argues that the BIA and IJ violated his due process rights by determining that he was properly classified as an arriving alien. He also argues that the BIA’s conclusion that he fell within one of the exceptions authorizing the Department of Homeland Security (“DHS”) to charge him with inadmissibility was incorrect legally and lacked reasoned consideration. After careful review, we deny the petition for review in part and dismiss in part.

I. BACKGROUND

In 2006, Petitioner adjusted his status to that of a lawful permanent resident. One year later, in 2007, he was convicted of financial identity fraud, in violation of O.C.G.A. § 16-9-121. In 2015, Petitioner arrived at the airport in Atlanta and applied for admission to the United States as a lawful permanent resident. The DHS subsequently issued Petitioner a notice to appear (“NTA”) in October 2016, charging him with inadmissibility under 8 U.S.C. § 1182(a)(2)(A)(i)(I), as an alien who has been convicted of a crime involving moral turpitude.

At a hearing before the IJ, Petitioner, through counsel, admitted the allegations in the NTA and conceded removability^ He indicated that he would seek relief in the form of cancellation of removal. The DHS later filed an additional charge of inadmissibility: that Petitioner was inadmissible as an alien who procured “admission into the United States or other benefit provided under” the Immigration and Nationality Act by fraud or willful misrepresentation of a material fact; in violation of 8 U.S.C. § 1182(a)(6)(C)(i). Specifically, the DHS alleged that although Petitioner began committing financial identity fraud in August 2000, on his subsequent adjustment-of-status application and in his interview, he had answered “no” to a question that asked whether he had ever knowingly committed a crime involving moral turpitude for which he had not been arrested.

At a subsequent hearing before the IJ, Petitioner, through counsel, contested his classification as an arriving alien and requested to change his plea to deny remov-ability. Petitioner clarified that he was not contesting the actual allegation that he had misrepresented a material fact on his adjustment-of-statús application, but was instead challenging the fact that he had been charged with inadmissibility rather than removability. The IJ set the matter for another hearing to provide counsel the opportunity to respond to the new charge.

At the next hearing, Petitioner reiterated that because he was a lawful permanent resident, he could be charged with remova-bility under 8 U.S.C. § 1227 but not inadmissibility under 8 U.S.C. § 1182. In support of his argument, he relied on the BIA’s decision in Matter of Pena, 26 I. & N. Dec. 613 (BIA 2015). Title 8 U.S.C. § 1101(a)(13)(C) provides that, as a general rule, a lawful permanent resident cannot be regarded as seeking admission when he returns to the United States after an overseas trip. 8 U.S.C. § 1101(a)(13)(C). But the statute provides certain important exceptions to the rule. See id. In Matter of Pena, the BIA held that a lawful permanent resident returning to the United States cannot be charged with inadmissibility under § 1182 if he does not fit within one of the exceptions outlined under 8 U.S.C. § 1101(a)(13)(C). See Matter of Pena, 26 I. & N. Dec. at 615.

As the IJ explained, Matter of Pena is distinguishable from the present case for several reasons, including the fact that the • respondent in Matter of Pena did not fit within any of the exceptions under § 1101(a)(13)(C). Here, however, Petitioner fit within one of § 1101(a)(13)(C)’s exceptions based on his conviction for a crime involving moral turpitude. See 8 U.S.C. § 1101(a)(13)(C)(v).

In a written decision, the IJ therefore sustained the charges of inadmissibility. The IJ acknowledged that lawful permanent residents who return to the United States from a trip abroad are not typically considered applicants for admission and therefore cannot be charged with inadmissibility, However, lawful permanent residents who commit certain crimes before departing the United States, .such as a crime involving moral turpitude, are regarded as seeking admission and can be charged with inadmissibility. The IJ further explained that Petitioner’s Georgia conviction for financial identity fraud, which .required fraud 'with intent as an element of the crime, qualified as a crime involving moral turpitude. Therefore, the IJ concluded that Petitioner was properly classified as “seeking admission”' at the time of his entry in July 2015 and consequently the IJ sustained the inadmissibility charges under § 1182(a)(2)(A)(i)(I) and § 1182(a)(6)(C)(i).

After reviewing the IJ’s decision, Petitioner conceded that he was not eligible for any form of relief. The IJ ordered Petitioner removed to St. Lucia.'

Petitioner appealed to the BIA, arguing that the IJ legally erred by failing to apply the BIA’s decision in Matter of Pena when determining that Petitioner was properly charged as an inadmissible alien. Petitioner argued that the facts in his case wei’e identical to those in Matter of Pena: Because the BIA concluded in Matter of Pena that a returning lawful permanent resident cannot be charged with inadmissibility under § 1182 if he does not fit within one of § 1101(a)(13)(C)’s exceptions, Petitioner argued that he was improperly charged with a ground of inadmissibility. Finally, he asserted that his improper classification as an inadmissible alien prevented him from applying for any form of relief and, in particular, cancellation of removal.

The BIA adopted and affirmed the IJ’s decision and dismissed the appeal. The BIA agreed that Petitioner was properly charged with inadmissibility under § 1182, rather than removability as an admitted alien under § 1227 because his financial identity fraud conviction qualified as a crime involving moral turpitude. The BIA explained that Petitioner’s case was distinguishable from Matter of Pena because Petitioner was convicted of a crime involving moral turpitude, which falls within one of the exceptions under § 1101(a)(13)(C) that permit a lawful permanent resident to be regarded as seeking admission and charged with inadmissibility.

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PENA
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Bluebook (online)
712 F. App'x 970, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mercurius-jallim-v-us-attorney-general-ca11-2017.