Shaya v. Holder

Decision Date09 November 2009
Docket NumberNo. 08-4619.,08-4619.
PartiesElisha SHAYA, Petitioner-Appellant, v. Eric H. HOLDER, Jr., Respondent-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

ARGUED: John W. Blakeley, United States Department of Justice, Washington, D.C., for Respondent. ON BRIEF: Mark Jacob Thomas, Mark Jacob Thomas & Associates, Chicago, Illinois, for Petitioner. John W. Blakeley, United States Department of Justice, Washington, D.C., for Respondent.

Before: MARTIN, COLE, and KETHLEDGE, Circuit Judges.

MARTIN, J., delivered the opinion of the court, in which COLE, J., joined. KETHLEDGE, J. (pp. 408-09), delivered a separate dissenting opinion.

OPINION

BOYCE F. MARTIN, JR., Circuit Judge.

Elisha Shaya seeks review of a Board of Immigration Appeals decision affirming an immigration judge's denial of his applications for asylum, withholding of removal, and deferral of removal under the Convention Against Torture. Shaya was charged as removable as an "aggravated felon" due to his conviction for "assault with intent to do great bodily harm less than the crime of murder" under Michigan law for which he received an indeterminate sentence of nine months to ten years. It is undetermined how long Shaya actually spent in prison. As an aggravated felon, Shaya was eligible only for a deferral under the Convention.

To be charged as an aggravated felon, Shaya must have been found guilty of "a crime of violence . . . for which the term of imprisonment [is] at least one year." 8 U.S.C. § 1101(a)(43)(F). Using BIA precedent based on the sentencing regimes of other states, the immigration judge determined that Shaya was an aggravated felon, basing the calculation of "the term of imprisonment" on the potential maximum sentence imposed by the Michigan court. However, the determining factor should be the treatment of indeterminate sentences under the laws of the state where the sentence was handed down rather than by other states. Thus, for the purposes of Section 1101(a)(43)(F), indeterminate prison sentences in Michigan must be measured by the term actually served by the petitioner rather than by the maximum statutory sentence. Based on the other aggravated felony definitions included in Section 1101(43)(a), it is clear that Congress did not require the crimes-of-violence sentences to be measured by the maximum statutory sentence. Thus, when using Michigan indeterminate sentences as the predicate for classifying someone as an "aggravated felon", the term must be measured by the sentence actually served or the minimum sentence given, whichever is greater, as this better incorporates the judge's discretion and determinations than the statutory maximum term. However, the immigration judge never made a finding of fact regarding the length of time that Shaya actually served in prison. We therefore VACATE the BIA's decision and REMAND to the BIA to determine how long Shaya served in prison for his assault conviction. Should he be found to have served less than one year in prison, he should be held not to be an aggravated felon and therefore not removable.

I
A. Factual Background

Elisha Shaya is an Iraqi citizen, born in Iraq on July 1, 1955. He identifies himself as an Assyrian Christian. Shaya left Iraq in the late 1970s. From there he went to Greece, where he applied for refugee status in the United States based on prior mistreatment by the Iraqi government. Based on this application, he was granted refugee status under the Immigration and Nationality Act ("INA") Section 270 in December of 1980 and entered the United States in 1981. He has not been back to Iraq since he entered the United States. On June 28, 1984, Shaya adjusted his immigration status to that of a legal permanent resident.

On September 1, 1992, after a non-jury trial, Shaya was convicted in the Detroit Recorder's Court of "assault with intent to do great bodily harm less than the crime of murder" under Mich. Comp. Laws § 750.84. The incident occurred in Detroit, Michigan after the complaining witness robbed Shaya's home and a fight ensued in another Detroit location. On October 16, 1992, Shaya received an indeterminate sentence of nine months to ten years in prison, with credit given for six days served. He was released on or about October 10,1993, having served between nine and twelve months in prison, though the Government has been unable to prove the exact amount of time served.

Nearly twelve years after this conviction, on March 15, 2004, immigration authorities commenced removal proceedings against Shaya pursuant to 8 U.S.C. § 1229a. In a subsequent application for asylum and withholding from removal, Shaya explained that he feared removal based on the treatment that he and his family had received in Iraq because of their Assyrian Christian heritage. Two short hearings were held before Immigration Judge Elizabeth A. Hacker on June 2, 2004, and April 13, 2005. A third hearing was held before IJ Marcia K. Nettles on September 18, 2006. Shaya was represented by counsel at all three hearings.

At the third hearing, IJ Nettles made findings regarding the types of relief which were available to Shaya based on the exhibits already entered into the record. First, based on the conviction records, the IJ found that Shaya was not eligible for a waiver under INA § 212(c), 8 U.S.C. § 1182(c), repealed by Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, § 304(b), 110 Stat. 3009-546, 3009-597 (1996), because his assault conviction was not the result of a plea deal. Next, citing Board of Immigration Appeals precedent and 8 U.S.C. § 1231(b)(3), the IJ found that Shaya was ineligible for asylum and withholding of removal under both the INA and the Convention Against Torture because his conviction and nine-month-to-ten-year sentence qualified as an aggravated felony and a particularly serious crime for immigration purposes. The IJ rejected Shaya's argument that his sentence should be measured by the actual amount of time he served in prison. To support her conclusion, the IJ cited BIA precedent from other states that an indeterminate sentence is measured by its maximum term and the language of 8 U.S.C. § 1231(b)(3) referencing sentencing, not time served, for applications for withholding of removal. Because of these findings, the IJ stated that the only relief available to Shaya was a deferral under the Convention, and this was the only claim that the IJ considered on the merits.

B. Immigration Judge's Decision

First, the IJ found by clear and convincing evidence that Shaya was removable due to his 1992 conviction. Next, the IJ reaffirmed her earlier rulings that: (1) Shaya was ineligible for INA § 212(c) relief because his conviction was not based on a guilty plea; (2) Shaya was ineligible for asylum because he was convicted of a "particularly serious crime" under 8 U.S.C. § 1158(b)(2)(A)(ii); and (3) Shaya was ineligible for withholding of removal under the INA or the Convention because he had been convicted of a "particularly serious crime" under 8 U.S.C. § 1231(b)(3)(B)(ii). In support of this, the IJ found that, for immigration purposes, "indeterminate sentences . . . are sentence[s] for the maximum potential." Based on these findings, the IJ concluded that the only form of relief for which Shaya was eligible to be considered was a deferral of removal under the Convention.

In denying Shaya's deferral claim under the Convention, the IJ found that Shaya's application and testimony were not credible and that, even accepting his testimony as true, Shaya had not established that it was more likely than not that he would be tortured if removed to Iraq.

C. Board of Immigration Appeals Decision

The BIA found that the IJ's factual findings were not clearly erroneous and adopted and affirmed the IJ's decision to order Shaya's removal. The BIA adopted the IJ's conclusion and related analysis that Shaya was an aggravated felon under 8 U.S.C. § 1101(a)(43)(F) and that he was therefore statutorily ineligible for asylum or withholding of removal. The BIA further adopted and affirmed the IJ's denial for a deferral under the Convention. The BIA also rejected all other claims that Shaya raised on appeal.

II

We generally have jurisdiction to review final orders of removal issued by the BIA. See 8 U.S.C. § 1252(a). However, because Shaya's removability is based on a finding that he was an alien convicted of an aggravated felony, our review is limited to constitutional claims and questions of law. 8 U.S.C. § 1252(a)(2)(C)-(D); see Patel v. Ashcroft, 401 F.3d 400, 407 (6th Cir.2005). This review includes determining "whether the alien's crime was an aggravated felony." Id.

"Where the BIA reviews the immigration judge's decision and issues a separate opinion, rather than summarily affirming the immigration judge's decision, we review the BIA's decision as the final agency determination. To the extent that the BIA adopted the immigration judge's reasoning, however, we also review the immigration judge's decision." Khalili v. Holder, 557 F.3d 429, 435 (6th Cir.2009) (citation omitted).

On petitions from BIA decisions, we review questions of law de novo, but "substantial deference is given to the BIA's interpretation of the INA and accompanying regulations." Id. However, this deference does not extend to the BIA's determination that Shaya is an aggravated felon. We review "de novo the BIA's determination `that a particular state conviction amounts to an aggravated felony conviction . . . because such a conclusion depends upon interpreting state statutes . . . unrelated to immigration.'" Patel, 401 F.3d at 407. In short, we owe Chevron-type deference to BIA interpretations of its own empowering statutes and regulations only, not to BIA interpretations of other state or federal laws.

III

We must first determine whether Shaya is subject to removal as charged, as an "alien who [has...

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