Abdelwahab v. Frazier, No. 08-1078 (8th Cir. Aug. 26, 2009) 

LOKEN, Ebel, and Clevenger 

Walid El-Baz Abdelwahab, a native of Egypt, entered the U.S. in mid-1997 and was married to Alice, a U.S.C., six months later.  Alice submitted an I-130 petition for Abdelwahab in 1998, which was subsequently denied by the St. Paul District Office of USCIS based on its finding that the couple married in order to evade immigration laws.  Shortly after Abdelwahab received a NTA, a Minnesota restaurant filed an I-140 employment-based petition with USCIS’s Nebraska Service Center, which approved the petition without knowing that the I-130 had been denied.  Abdelwahab filed for AOS in his removal proceeding based on the I-140. 

Later, the St. Paul District Office notified Abdelwahab’s employer that it intended to revoke the I-140 approval based on marriage fraud.  But the IJ granted AOS after denying DHS’s motion to continue.  DHS revoked the I-140 and appealed the IJ’s decision to the BIA.  The BIA had already dismissed Abdelwahab’s administrative appeal of the I-130 denial and later vacated the AOS based on the I-140 revocation.  The BIA also denied a motion to reopen the I-130 appeal and remanded. 

In 2006, Abdelwahab challenged DHS’s denial of the I-130 petition and I-140 revocation in district court.  In 2007, the BIA vacated its order dismissing the I-130 appeal and remanded for de novo consideration of the I-130 petition.  At this point, the St. Paul District Office approved the I-130.  Meanwhile, Abdelwahab argued that USCIS had incorrectly denied his I-130 petition and that the St. Paul District Office had acted ultra vires in revoking the I-140 approval.  The government argued that the I-130 issue was moot and that the I-140 claim was beyond the court’s jurisdiction.  Abdelwahab appealed to the Eighth Circuit.  In the meantime, USCIS reinstated its I-140 approval and the IJ granted adjustment. 

The Court, setting aside the mootness issue in regards to the I-140, ruled that revocation of the I-140 was discretionary and therefore not subject to the judicial review.  The Court pointed out that judicial review of non-discretionary constitutional claims or questions of law was appropriate only in the courts of appeals.  However, whether the Secretary of Homeland Security had properly delegated the authority to revoke the I-140 approval to the St. Paul District Office or to the Nebraska Service Center was not a “predicate legal question that amounts to a nondiscretionary determination underlying the denial or relief,” to be reviewed by the Court. 

Even if the Court could review the issue, it noted that Abdelwahab had failed to establish that the St. Paul District Office “had no authority to exercise the Secretary’s discretion under the DHS regulation then in effect.”  According to the Court, even though the regulations “requir[ed] that petitions be filed in one office” this was “not a directive that only that office may take final action in a petition.”  Moreover, the BIA’s remand of the I-130 issue and USCIS’s granting of the I-130 petition caused there to be new administrative remedies yet to be exhausted in regards to the I-140 revocation, which was based upon the I-130 denial. 

Finally, the Court held that even if the I-140 revocation issue was not moot, the judicial remedy of reinstating the I-140 approval nunc pro tunc (which would allow Abdelwahab to apply for naturalization immediately, rather than waiting four more years) would be improper.  Abdelwahab would have to raise the issue with the agency, as an administrative remedy.  The district court would have no jurisdiction over the issue before the agency considered it.

Read the opinion here.

Tian v. Holder, No. 08-3391 (8th Cir. Aug. 19, 2009) 

Murphy, Arnold and GRUENDER 

Tim Tian, a native of China, worked for Parametric Technology Corporation as a software engineer.  In 2005, Tian pretended to return to China due to a family emergency, but instead began to work for Medtronic Corporation, all the while collecting paychecks from Parametric.  In 2005, Tian was fired from Parametric and shortly thereafter he entered Parametric’s offices and downloaded and e-mailed source code for a software product on which he had worked.  Tian was later arrested and charged with unauthorized access to a computer and five counts of wire fraud.  He pled to the first charge in exchange for dismissal of wire fraud charges.  Tian was sentenced to eleven months in prison and ordered to pay $47,015 in restitution to Parametric (including $29,800 that Parametric spent on an internal investigation to assess the damage caused by Tian) and $96, 099 in restitution to Medtronic.  Tian was later served with an NTA charging him removable as an aggravated felon convicted of “an offense that involves fraud or deceit in which the loss to the victim or victims exceeds $10,000.” 

Tian applied for asylum/withholding/CAT and argued that his crime, while involving fraud or deceit, did not result in any loss to the victim.  The IJ found Tian statutorily ineligible for asylum because the amount of restitution exceeded $10,000.  The IJ also ruled that Tian was statutorily ineligible for withholding because the conviction qualified as a “particularly serious crime.”  Finally, the IJ denied Tian’s application under CAT based on the merits.  The BIA reversed in part and remanded, holding that the IJ had mistakenly relied on the restitution order rather than on the charge to which Tian pleaded guilty, in calculating the amount of loss. 

The IJ found Tian removable as an aggravated felon, ruling that the investigative costs incurred by Parametric were to be considered a loss to the victim, and exceeded $10,000.  The IJ also reconsidered its finding that the conviction qualified as a particularly serious crime, holding that unauthorized access to a computer did not meet the BIA standard set out in In re N-A-M-, 24 I. & N. Dec. 336 (B.I.A. 2007), and found that Tian had met his burden for withholding. 

The BIA affirmed the IJ’s ruling on ineligibility for asylum, but remanded once again, holding that the IJ had misinterpreted its ruling in In re N-A-M-.  On remand, the IJ found that Tian’s conviction for unauthorized access to a computer, given the circumstances, is in fact a particularly serious crime, and therefore Tian was statutorily ineligible for withholding.  Tian petitioned the Eighth Circuit in regards to whether his conviction qualified as an aggravated felony and whether the IJ and BIA failed to apply the appropriate legal standard in determining that his conviction qualifies as a “particularly serious crime.” 

The courts have been split about “whether the $10,000 threshold . . . refers to an element of a fraud statute or to the factual circumstances surrounding commission of the crime on a specific occasion.”  The Court followed the Supreme Court’s recent ruling in Nijhawan v. Holder, 129 S. Ct. 2294 (2009), which held that the statute “calls for a ‘circumstance-specific,’ not a ‘categorical,’ interpretation.”  Thus, “the ‘loss’ must ‘be tied to the specific counts covered by the conviction.’”  Because Tian’s counsel had conceded that Parametric’s investigative costs were directly related to his unauthorized access to their computers, and both the IJ and BIA had premised their decisions on the fact that the costs exceeded $10,000, the Court concluded that Tian’s conviction qualified as an aggravated felony. 

On the issue of whether the correct legal standard for “particularly serious crime” was applied, the Court held that In re N-A-M- had removed the need to make a separate determination about whether the alien is a danger to the community if other factors—such as the nature, circumstances and underlying facts of the conviction, as well as the sentence imposed—pointed to a particularly serious crime.  In other words, the nature of the crime, and not the likelihood of future serious misconduct, was the proper focus for determining whether or not something counted as a particularly serious crime.  Because the Court has jurisdiction only constitutional issues and questions of law, it did not consider whether the IJ and BIA had properly weighed the relevant factors, instead holding that the IJ and BIA applied the correct legal standard. 

Read the opinion here.

 Ramirez-Peyro v. Holder, No. 08-2657 (8th Cir. August 4, 2009)

 Murphy, MELLOY, and Shepherd

 The BIA has twice reversed the IJ’s CAT grant for Mr. Ramirez-Peyro.  Now, for the second time, the Eighth Circuit has vacated the BIA’s decision and remanded.

 Mr. Ramirez, formerly a member of the Mexican highway police and formerly involved in drug-trafficking, worked as an informant for U.S. Immigration and Customs Enforcement.  He helped arrest approximately 50 people involved in the Mexican drug-trafficking trade.  He also worked with the Mexican government to incriminate members of the cartel.  There have been two attempts on his life since he has worked with the U.S. government.  The U.S. granted him immunity and placed him in protective custody, isolating him from members of the prison population that may wish to harm him based on his informant work.  The IJ did not determine Mr. Ramirez was offered immunity from the Mexican government and the IJ found that there is no effective witness protection for Mr. Ramirez in Mexico.

 The Court first remanded (see Ramirez-Peyro v. Gonzales, 477 F.3d 637 (8th Cir. 2007)) for factual finding about Mr. Ramirez’s ability to relocate in Mexico and the Mexican government’s acquiescence.  After hearing evidence on these issues the IJ granted CAT.  The BIA vacated, holding that if public officials acquiesce in the drug cartel’s use of torture it would not be “under the pretense of law” but would be because they were “following a purely personal pursuit.”   

 The Eighth Circuit unpacked the meaning of torture inflicted with “with the consent or acquiescence of a public official or other person acting in an official capacity” 8 C.F.R. § 1208.18(a)(1).  The Court did not disagree with BIA that “official capacity” is analogous to “under color of law.”  But the “BIA misunderstood and misapplied the parameters of ‘under color of law.’”  “To find whether an official acts under color of law, we look to see whether a sufficient nexus exists between the official’s public position and the official’s harmful conduct.”  The nexus inquiry “includes considerations such as whether the officers are on duty and in uniform, the motivation behind the officers’ actions, and whether the officers had access to the victims because of their positions, among others.”  The Court found the at the BIA applied too narrow a definitions of “under color of law.” 

 Mr. Ramirez fears harm from Mexican officials; he also fears that Mexican officials would turn him over to the cartel.  The Court found that “it is the precise authority with which the Mexican government vests these police officers that provides them with the means and opportunity to harm people such as Ramirez.”  The Court emphasized that even though “the upper echelons” of the Mexican government oppose “corruption and collusion with the drug cartels,” Mexico may still be held “responsible for the acts of its officials, including low-level ones” under CAT.

 In a footnote, the Court explained its denial of the government’s motion to strike Mr. Ramirez’s reply brief.  The Government claimed that Mr. Ramirez waived the issue of the Mexican government’s failure to offer him immunity by not raising it in his initial brief.  The Court found that the opening brief “necessarily  incorporate[d] a challenge to the BIA’s factual finding that he had immunity” and cited Barham v. Reliance Standard Life Ins. Co., 441 F.3d 581, 584 (8th Cir. 2006) where it had considered a reply brief argument when it “supplemented an argument raised in a party’s initial brief.”

 In conclusion, the Court criticized the BIA’s admonishment of Mr. Ramirez’s previous drug cartel involvement before he became an informant.  The BIA had stated that Mr. Ramirez had “courted the risk through his own actions.”  The Court stated that “the violence Ramirez-Peyro faces, if anything, is an occupational hazard of working on behalf oc the U.S. government.”

 Read the opinion here…

Lovan v. Holder, No. 08-2177 (8th Cir. July 31, 2009)

 LOKEN, Melloy, and Benton

Mr. Lovan was convicted by a jury in 1991 of sexual abuse of a minor.  At the time he was convicted, he was not deportable as an aggravated felon because his crime did not then fall within the statutory definition of an aggravated felony.  In 1996, with the passage of the Illegal Immigration Reform and Responsibility Act (IIRIRA), Congress amended the aggravated felony definition to include “sexual abuse of a minor” and made the definition applicable to convictions prior to its enactment.

Mr. Lovan left the country in 2002 and was re-admitted a month later.  He applied for naturalization later that year.  The Service responded by issuing an NTA charging him as removable as an aggravated felon.  Mr. Lovan applied for a waiver of deportation under former INA § 212(c).  IIRIRA repealed 212(c).  However, the Supreme Court held in INS v. St. Cyr, 533 U.S. 289, 314-26 (2001) that prohibiting aliens who became eligible for 212(c) by pleading guilty prior to the statute’s repeal would have an impermissible retroactive effect.  The Court noted that there is a circuit split on the question of whether St. Cyr also applies to aliens convicted by juries.  The Court agreed with the Third Circuit’s reasoning in Atkinson v. Attorney General, 479 F.3d 200 (3d Cir. 2007) and determined St. Cyr should also apply to Mr. Lovan.

The plain language of 212(c) allowed excludable (today deemed “inadmissible”) to apply for relief.  Equal protection concerns eventually led to the opportunity for deportable (today deemed “removable”) aliens to apply for 212(c) relief if the alien was deportable “on a ground which does not have a statutory counterparty in section 212 of the Act.”  8 C.F.R. § 1212.3(f)(5).  (This is a short version of a long story: the history of 212(c) relief is explained in detail in the Court’s opinion.) 

The major question the Court addressed was whether Mr. Lovan’s case should be determined by the BIA precedent and Circuit adherence to Matter of Blake, 23 I&N Dec. 722 (BIA 2005) or by Matter of G-A-, 7 I&N Dec. 274 (BIA 1956) and Matter of L-, 1 I&N Dec. 1 (A.G. 1940).  The Court found that facts of Mr. Lovan’s case were analogous to the facts underlying the reasoning in Matter of G-A-.  In G-A-, an LPR was admitted after traveling despite being excludable for a prior criminal conviction.  The INS then sought his deportation.  Exercising its 212(c) discretion after the fact, the BIA ordered that the alien be “regarded as having been lawfully admitted to the United States for permanent residence… notwithstanding his inadmissibility at that time.”  Id. at 275. In Blake, the BIA held that Mr. Blake’s deportable charge of “sexual abuse of a minor” does not have a statutory counterpart in the INA’s inadmissibility grounds, therefore rendering Mr. Blake ineligible to apply for 212(c) relief.  The Court distinguished G-A- from Blake because G-A- was intended to provide 212(c) relief to an “excludable LPR who temporarily left the country, reentered while immigration officials overlooked his excludability, but then was placed in deportation proceedings based on the conviction that made him excludable.”  The Court’s opinion invites the BIA on remand to explain why Blake and not G-A- and Matter of L- apply to Mr. Lozan’s case, but the Court held that the G-A- and L- opinions “were never overruled, nor were they expressly made subject to the statutory counterpart doctrine.”

The Court upheld the BIA’s denial of Mr. Lovan’s withholding and CAT claims.