Mohammad Bashar v. William P. Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 15, 2019
• Docket: 14-74049
• Status: Unpublished

Opinion

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT FEB 15 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS MOHAMMAD BASHAR, No. 14-74049

Petitioner, Agency No. A200-574-870

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted February 13, 2019** Honolulu, Hawaii

Before: TALLMAN, BYBEE, and N.R. SMITH, Circuit Judges.

Mohammad Bashar petitions for review of the determination by the Board of

Immigration Appeals (BIA) that he is removable under 8 U.S.C.

§ 1182(a)(2)(A)(i)(I), because he committed a crime involving moral turpitude

(CIMT). We deny the petition for review.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 1. The BIA properly concluded that Bashar’s conviction for marriage fraud, N.

Mar. I. Code § 4366(a), was a categorical CIMT. See Marmolejo-Campos v.

Holder, 558 F.3d 903, 908–11 (9th Cir. 2009) (en banc) (explaining the standard of

review for evaluating whether a conviction is categorically a CIMT). A conviction

under section 4366(a) requires that a person knowingly enter into a marriage (1)

“for the sole purpose of obtaining a [labor or immigration] benefit” or (2) “for the

purpose of evading [a law].” Both of these provisions are equivalent to an “intent

to defraud.” See Winestock v. INS, 576 F.2d 234, 235 (9th Cir. 1978) (holding a

crime with an element of “intent to defraud” is a CIMT). The term “purpose” is

equivalent to “intent.” See Purpose, American Heritage College Dictionary (3d ed.

1997). We have also held that, “to be inherently fraudulent,” and thus a CIMT, “a

crime must involve [a] knowingly false representation to gain something of value.”

Tijani v. Holder, 628 F.3d 1071, 1075 (9th Cir. 2010) (citation omitted). Both

labor and immigration benefits have tangible value. See Linares-Gonzalez v.

Lynch, 823 F.3d 508, 515–16 (9th Cir. 2016) (holding that the “something of

value” must be “tangible” rather than “intangible” value). Further, “intent to

evade” is equivalent to “intent to defraud.” Carty v. Ashcroft, 395 F.3d 1081,

2 1084–85 (9th Cir. 2005). Therefore, because both provisions of section 4366(a)

are CIMTs, we agree with the BIA that Bashar is removable.1

2. The BIA did not err in concluding that Bashar was convicted of marriage

fraud, even though he pleaded nolo contendere to the charge. An alien is

inadmissible if he or she has a conviction for “a crime involving moral turpitude

(other than a purely political offense) or an attempt or conspiracy to commit such a

crime.” 8 U.S.C. § 1182(a)(2)(A)(i)(I). A plea of “nolo contendere” is a

“conviction” as long as the judge entered “some form of punishment.” 8 U.S.C.

§ 1101(a)(48)(A). Here, Bashar entered a nolo contendere plea, and he was

sentenced to one year of imprisonment. Accordingly, Bashar was convicted of a

CIMT. See Reyes v. Lynch, 834 F.3d 1104, 1107 (9th Cir. 2016).

3. The BIA did not err in concluding that Bashar’s conviction was final for

immigration purposes. We have long held that “[a] criminal conviction is final for

the purposes of immigration review if the alien has exhausted or waived direct

appellate review.” Urbina-Mauricio v. INS, 989 F.2d 1085, 1089 (9th Cir. 1993).

1 Because both provisions qualify as CIMTs, it is not relevant whether Bashar entered into the fraudulent marriage to obtain a benefit or to evade laws; either way, his conviction is a CIMT. Hence, it is also not relevant whether the statute is divisible, because whether the above outlined parts are elements or means, a conviction under section 4366(a) is categorically a CIMT. 3 The availability of other potential post-conviction relief does not alter the finality

of a conviction. Id. Thus, there was no error.

4. The BIA correctly concluded that Bashar was properly charged as an

inadmissible alien, 8 U.S.C. § 1182, rather than a deportable alien, 8 U.S.C.

§ 1227. Bashar did not present any evidence that he was “admitted” into the

United States. See 8 U.S.C. § 1101(a)(13)(A) (“The terms ‘admission’ and

‘admitted’ mean, with respect to an alien, the lawful entry of the alien into the

United States after inspection and authorization by an immigration officer.”).

Neither Bashar’s mere presence in the Commonwealth of the Northern Mariana

Islands nor any pre-2009 legal status under the Commonwealth’s previous

immigration laws mean he was admitted and therefore not removable. See id.; 48

U.S.C. § 1806(e)(1)(A) (providing that even aliens lawfully present in the 12

Northern Mariana Islands will be subject to removal by 2011); see also Minto v.

Sessions, 854 F.3d 619, 621–24 (9th Cir. 2017), cert. denied, 138 S. Ct. 1261

(2018).

PETITION FOR REVIEW DENIED.