Victor Fenesan v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 11, 2020
• Docket: 18-71833
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 11 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

VICTOR RAUL FENESAN, No. 18-71833

Petitioner, Agency No. A098-392-080

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

Respondent.

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

Submitted December 8, 2020** Seattle, Washington

Before: McKEOWN and WATFORD, Circuit Judges, and ROTHSTEIN,*** District Judge.

Victor Raul Fenesan, a native and citizen of Romania, petitions for review of

a decision by the Board of Immigration Appeals (“BIA”) affirming an immigration

* 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). *** The Honorable Barbara Jacobs Rothstein, United States District Judge for the Western District of Washington, sitting by designation. judge’s (“IJ”) determination that he is removable under 8 U.S.C. § 1227(a)(3)(B)(iii)

and ineligible for an 8 U.S.C. § 1227(a)(1)(H) waiver. We have jurisdiction under 8

U.S.C. § 1252, and we deny the petition.

Where, as here, the BIA agreed with the IJ’s analysis and conclusion but also

included its own analysis, we review both decisions. See Vazquez-Hernandez v.

Holder, 590 F.3d 1053, 1054 (9th Cir. 2010). We review factual findings related to

an applicant’s removability under the substantial evidence standard. See Sang Yoon

Kim v. Holder, 603 F.3d 1100, 1102-03 (9th Cir. 2010). We review de novo the

disposition of questions of law. Vilchez v. Holder, 682 F.3d 1195, 1198 (9th Cir.

2012).

As a threshold matter, Fenesan argues that the immigration court did not have

jurisdiction over his removal proceedings because his initial notice to appear did not

specify the time and date of his hearing as allegedly required by 8 U.S.C. § 1229(a).

This Court has already rejected this precise argument. See Karingithi v. Whitaker,

913 F.3d 1158 (9th Cir. 2019). In Karingithi, we held that the immigration court’s

jurisdiction is governed by federal immigration regulations, not § 1229(a), and those

regulations do not require the inclusion of the date and time of the hearing on the

notice to appear. 913 F.3d at 1160. Thus, the immigration court had jurisdiction over

Fenesan’s removal proceedings.

2 We do not disturb the BIA’s determination that Fenesan is removable under 8

U.S.C. § 1227(a)(3)(B)(iii) because he was convicted of violating 18 U.S.C. §

1546(a). Fenesan does not dispute that he was convicted of violating 18 U.S.C. §

1546(a); rather, he contends that his conviction does not constitute a removable

offense under 8 U.S.C. § 1227(a)(3)(B)(iii). He argues that the heading of 8 U.S.C.

§ 1227(a)(3)(B)—“Failure to register or falsification of documents”—limits

removability under the subsection to aliens convicted of “failing to register” or

“falsifying documents.” He claims that his conviction under 18 U.S.C. § 1546(a) for

obtaining an immigrant visa through fraud does not fall within either category. The

BIA properly found this argument contrary to the plain language of the statute, which

unambiguously renders removable any alien convicted of a violation of 18 U.S.C. §

1546. See Bhd. of R.R. Trainmen v. Baltimore & O.R. Co., 331 U.S. 519, 528-29

(1947) (“[H]eadings and titles are not meant to take the place of the detailed

provisions of the text … they cannot undo or limit that which the text makes plain.”)

(internal citations omitted); Castro-Espinosa v. Ashcroft, 257 F.3d 1130, 1132 (9th

Cir. 2001) (stating that a parenthetical did not limit the statutory provision but simply

describes the type of offenses included in the statute).

Nor do we disturb the BIA’s determination that Fenesan is ineligible for

waiver under 8 U.S.C. § 1227(a)(1)(H) as this Court has already determined that

3 removability under § 1227(a)(3)(B)(iii) is not waivable by § 1227(a)(1)(H). Taggar

v. Holder, 736 F.3d 886, 890-91 (9th Cir. 2013).

Petition for review is DENIED.