Smriko v. Ashcroft, 03-1085.

• Decision Date: 26 October 2004
• Docket Number: No. 03-1085.,03-1085.
• Parties: Sejid SMRIKO Petitioner v. John ASHCROFT, Attorney General of the United States Respondent.
• Court: U.S. Court of Appeals — Third Circuit

387 F.3d 279

Sejid SMRIKO Petitioner v. John ASHCROFT, Attorney General of the United States Respondent.

No. 03-1085.

United States Court of Appeals, Third Circuit.

Argued April 16, 2004.

Filed October 26, 2004.

Petition for review from the Board of Immigration Appeals.

James G. Gavin (Argued), Burlington, NJ, for Petitioner.

Peter D. Keisler, Anthony Wray Norwood, Earle B. Wilson, Michael P. Lindemann, John D. Williams, Terri J. Scadron (Argued), U.S. Department of Justice, Office of Immigration Litigation, Washington, DC, for Respondent.

Before RENDELL, STAPLETON and LAY,^* Circuit Judges.

OPINION OF THE COURT

STAPLETON, Circuit Judge.

Sejid Smriko was a lawful permanent resident of the United States for less than five years when he committed a crime involving moral turpitude that, under 8 U.S.C. § 1227(a)(2)(A)(i), subjects one to deportation. Smriko was admitted to the United States, however, with "refugee status," pursuant to a section of the Immigration and Nationality Act ("INA") that implements the United Nations Protocol Relating to the Status of Refugees. Smriko requested that the Immigration Judge ("IJ") terminate his removal proceedings because, he argued, refugee status can only be cancelled pursuant to limited grounds specified in the INA, none of which were met here. The IJ agreed with Smriko that, if he still had refugee status, he would not be eligible for deportation. The IJ suggested, however, that when an alien "voluntarily chooses" to "adjust" his status from that of a refugee to that of a lawful permanent resident, the alien loses refugee status and its accompanying statutory protections. Although the IJ did not provide any supporting precedent, he denied Smriko's motion to terminate removal proceedings based on this reading of the INA. The Board of Immigration Appeals ("BIA" or "Board") thereafter summarily affirmed the IJ's decision without opinion. Smriko now petitions for review of the IJ's decision, as well as the BIA's decision to affirm without opinion a case that he maintains raises novel issues of statutory interpretation.

We first examine the merits of Smriko's challenge, and conclude that his view of refugee status-that it can only be terminated pursuant to specific enumerated grounds contained in the INA—is consistent with the text and some of the legislative history of the INA. We then note the absence of any precedent counseling in favor of or against Smriko's proposed interpretation, and briefly examine the Government's argument that an overall, expert examination of our nation's immigration laws and system would counsel against Smriko's proposed reading of the INA, and, instead, would suggest that the INA "implicitly" contemplates that refugees who achieve lawful permanent resident status simultaneously lose their refugee status.

Recognizing that the BIA has been charged with providing expert interpretations of our nation's immigration laws and that this Court must give the BIA deference in making such determinations, we then examine Smriko's contention that his case was improperly subjected to the BIA's affirmance without opinion process, thereby erroneously preventing the BIA from offering its interpretation of the statutory provision at issue here. We then conclude that, in most situations, we may, in reviewing a final order of deportation, review the BIA's decision to issue an affirmance without opinion in a particular case. Here, we conclude that the Board member charged with examining Smriko's case clearly acted arbitrarily and capriciously by issuing an affirmance without opinion, in violation of the BIA's streamlining regulations, with respect to a case presenting novel and substantial legal issues without precedent. This agency action deprived us of a Board interpretation of the INA that we believe the applicable agency regulations intended us to have before addressing the merits of Smriko's petition. Accordingly, we will grant the petition for review and remand so that the BIA may exercise its expertise and address Smriko's proposed reading of the INA.

I.

The facts before us are neither complicated, nor in dispute. Smriko is a native and citizen of Bosnia-Herzegovina who was admitted to the United States as a refugee on October 20, 1994 pursuant to 8 U.S.C. § 1157. At some point thereafter, Smriko was granted lawful permanent resident status pursuant to 8 U.S.C. § 1159(a)(2), backdated to his entry date of October 20, 1994.

Within five years of his entry into the United States, Smriko was convicted on three occasions of retail theft offenses in Pennsylvania and New Jersey. On December 26, 1996, he was convicted of retail theft in violation of 18 Pa. Cons.Stat. § 3929(a)(1), and sentenced to pay a fine and costs. On April 1, 1997, he was convicted of shoplifting in violation of N.J. Stat. Ann. § 2C:20-11b(2), and received a suspended sentence of five days' imprisonment. Finally, on April 8, 1999, he was convicted of retail theft and receiving stolen property, in violation of 18 Pa. Cons. Stat. §§ 3929(a) & 3925(a), respectively, and was assessed costs and sentenced to one year of probation.

The former Immigration and Naturalization Service ("I.N.S.") commenced removal proceedings against Smriko on August 24, 1999, charging him with removability on two statutory grounds: (1) under 8 U.S.C. § 1227(a)(2)(A)(i), as an alien convicted of a crime involving moral turpitude committed within five years after his admission for which a sentence of one year or longer may be imposed; and (2) under 8 U.S.C. § 1227(a)(2)(A)(ii), as an alien convicted of two or more crimes involving moral turpitude not arising out of a single scheme of criminal misconduct. Smriko argued that his convictions were not for crimes involving moral turpitude, but the IJ rejected that challenge. The IJ also rejected Smriko's aforementioned argument with respect to his refugee status, and after the BIA's affirmance without opinion, this petition followed.¹

II.

We have jurisdiction to review a final order of removal pursuant to 8 U.S.C. § 1252(a)(1). See Mulanga v. Ashcroft, 349 F.3d 123, 131 (3d Cir.2003). "[W]hen the BIA issues an [affirmance without opinion] under the streamlining regulations, we review the IJ's opinion and scrutinize its reasoning." Dia v. Ashcroft, 353 F.3d 228, 245 (3d Cir.2003) (en banc). "We review the [agency's] legal determinations de novo, subject to established principles of deference." Wang v. Ashcroft, 368 F.3d 347, 349 (3d Cir.2004) (citing Chevron v. Nat. Res. Def. Council, 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)); see infra note 6 (discussing the propriety of giving Chevron deference to an IJ decision that has been affirmed without opinion by the BIA).

III.

Title 8, Section 1227(a)(2)(A)(i) of the United States Code, provides, in pertinent part:

Any alien who — (I) is convicted of a crime involving moral turpitude committed within five years ... after the date of admission, and (II) is convicted of a crime for which a sentence of one year or longer may be imposed, is deportable.

Id. As noted above, Smriko was convicted for receiving stolen property under 18 Pa Cons.Stat. § 3925(a).² That conviction unquestionably met the criteria of § 1227(a)(2)(A)(i). Smriko committed the § 3925(a) violation on December 19, 1998, within five years of his date of admission to the United States. Under Pennsylvania law, given the amount of stolen property involved here, that offense constituted a misdemeanor in the third degree, see 18 Pa. Cons.Stat. § 3903(b)(2), which carried a potential prison sentence of one year, see 18 Pa. Cons.Stat. § 1104(3).

Smriko argues only that his conviction under § 3925(a) was not for a crime involving moral turpitude. He argues that shoplifting, the offense for which he was convicted under § 3925(a), is not a "crime involving moral turpitude," essentially because it is a prevalent crime in our modern world, and therefore that his violation of § 3925(a) would not qualify him for deportation under 8 U.S.C. § 1227(a)(2)(A)(i).

We recently explained, in examining § 3925(a), the very Pennsylvania statute at issue here, that "[w]hether an alien's crime is one involving moral turpitude is determined by the statute and record of conviction rather than the alien's specific act." De Leon-Reynoso v. Ashcroft, 293 F.3d 633, 635 (3d Cir.2002). That is, "the nature of an alien's crime is determined by the statute and record of conviction, not from the specific acts surrounding the conviction." Id. (parenthetically quoting Alleyne v. I.N.S., 879 F.2d 1177, 1185 (3d Cir.1989)) (alteration omitted). While we noted that "[t]he term `moral turpitude' defies a precise definition," we indicated that it contains "an `honesty' component..., which includes: `[c]onduct that is contrary to justice, honesty, or morality.'" Id. at 635-36 (quoting Black's Law Dictionary 1026 (7th ed.1999)) (additional citations omitted). After noting that "[c]ourts have held that knowingly receiving stolen property is a crime of moral turpitude," 293 F.3d at 636, and that violation of 18 Pa. Cons.Stat. § 3925(a) "speak[s] ... to the honesty of a person," id. at 637, we determined that a violation of that section amounts to a crime involving moral turpitude, id. at 637. De Leon-Reynoso clearly controls this case. We accordingly reject Smriko's insistence that his § 3925(a) conviction was not for a "crime involving moral turpitude."³

IV.

Our task is not complete, however, as Smriko suggests that the INA affords him additional protection as one who received "refugee status" upon his entry into the United States. While Smriko concedes that 8 U.S.C. § 1227(a)(2)(A)(i) subjects a lawful permanent resident, such as himself, to deportation, he argues that the INA only allows one with "refugee status" to be removed under limited circumstances. He argues that "refugee status" coexists with lawful permanent resident ("LPR") status, providing additional protection, and...