Fayzullina v. Holder
| Citation | 777 F.3d 807 |
| Decision Date | 06 January 2015 |
| Docket Number | No. 13–4335.,13–4335. |
| Parties | Zulfia FAYZULLINA, Petitioner, v. Eric H. HOLDER, Jr., Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
OPINION TEXT STARTS HERE
ON BRIEF:Philip A. Eichorn, Philip Eichorn Co., LPA, Cleveland, Ohio, for Petitioner. Jesse Lloyd Busen, United States Department of Justice, Washington, D.C., for Respondent.
Before: GUY, ROGERS, and DONALD, Circuit Judges.
Zulfia Fayzullina, a native and citizen of Russia, challenges the order of her removal for having provided a materially false writing regarding her marital and residential status and for having been convicted of providing a materially false document to the government, a crime of moral turpitude. Sufficient evidence supports the conclusion that she made the false writing, that it was material, and that she committed a crime of moral turpitude when she submitted it to the government. For that reason, and because neither of the provisions for waiver of removal upon which Fayzullina relies applies in this case, her petition for review lacks any tenable basis.
Fayzullina and Matthew Grey entered into a sham marriage for the purpose of evading U.S. immigration laws. Fayzullina entered the United States from her native Russia on May 31, 2005, on a non-immigrant visa. On March 17, 2006, she married Grey and, shortly thereafter, petitioned to change her status to that of a lawful permanent resident. The government granted her petition on August 26, 2008. In January, 2009, Fayzullina sought reentry after travelling abroad, and was admitted.
Then, on August 5, 2009, a federal grand jury indicted Fayzullina and Grey. The indictment included three counts against Fayzullina. Count 1 charged that Grey and Fayzullina had married “for the purpose of evading a provision of the immigration laws of the United States.” Count 2 charged that Fayzullina “did knowingly and willfully make and use a material false writing and document by presenting to the CIS [Citizenship and Immigration Services] an I–485, Application to Register Permanent Residence or Adjust Status, knowing the same to be false; that is false and misleading information regarding his [sic] marital status including his [sic] residence information.” Count 4 alleged that Fayzullina and Grey made material false statements so that a third party could receive compensation and so that another third party could evade the immigrations laws.
Fayzullina pled guilty to Count 2 of the indictment in exchange for dismissal of Counts 1 and 4. The federal district court entered judgment against Fayzullina on March 24, 2010, finding her guilty of violating 18 U.S.C. § 1001(a)(3). Section 1001(a)(3) provides:
[W]hoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully ... makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry ... shall be fined under this title [or] imprisoned not more than 5 years....18 U.S.C. § 1001(a)(3). The court sentenced Fayzullina to two years' probation.
On September 30, 2010, the Department of Homeland Security (DHS) initiated removal proceedings against Fayzullina by serving her with a Notice to Appear (NTA). The original NTA included only four factual allegations, but DHS subsequently amended it by striking the third and fourth allegations and replacing them with four new allegations, for a total of six allegations. Fayzullina admitted the first four allegations in the amended NTA, but denied Allegations 5 and 6. Allegation 5 charged that Fayzullina:
procured [her] admission, visa, adjustment, or other documentation or benefit by fraud or by willfully misrepresenting a material fact, to wit: [she] knowingly provided false representations regarding [her] marriage to Matthew Grey in [her] I–485 adjustment of status application and [she] knowingly provided false statements regarding [her] marriage to Matthew Grey at [her] adjustment of status interview in order to procure [her] admission, visa, adjustment, or other documentation or benefit by fraud or by willfully misrepresenting a material fact.
A.R. 168. Allegation 6 charged that:
On or about March 22, 2010, after pleading guilty, [Fayzullina was] convicted in the U.S. District Court for the Southern District of Ohio ... of Making a False Statement and Representation in violation of 18 U.S.C. § 1001(a)(2) [sic] and [she was] sentenced to probation for a period of two years for this offense (although the statutory maximum sentence of five years imprisonment could have been imposed).
While Fayzullina acknowledged having pled guilty to lying about her marriage in her I485, she denied Allegation 5 because, she said, the government had not adequately established that her misrepresentation was material. Fayzullina also denied Allegation 6, on the ground that she had never been convicted of violating 18 U.S.C. § 1001(a)(2), and that in any event the crime she was convicted of, framed in the disjunctive, was, in part, not one of moral turpitude.
The IJ adopted Allegations 5 and 6. With respect to Allegation 5, he concluded that Fayzullina's guilty plea was sufficient to sustain the factual allegation with respect to her I–485 statements, and also that a Statement of Facts submitted to the district court and prepared and signed by Fayzullina admitted that she made false statements at the adjustment of status interview. That admission, the IJ found, established that Fayzullina had knowingly lied to the CIS officer at her adjustment of status interview.
Regarding Allegation 6, the IJ acknowledged that the charging document listed the wrong statute of conviction—18 U.S.C. § 1001(a)(2), rather than § 1001(a)(3). Rather than dismiss the allegation, however, the IJ determined, sua sponte, to “amen[d] the alleged statute of conviction to 18 U.S.C. § 1001(a)(3),” and then adopted the amended allegation.
Next, the IJ addressed the government's two stated bases for removability: 8 U.S.C. §§ 1227(a)(1)(A) and 1227(a)(2)(A)(i). Section 1227(a)(1)(A) provides that, “Any alien who at the time of entry or adjustment of status was within one or more of the classes of aliens inadmissible by the law existing at such time is deportable.” 8 U.S.C. § 1227(a)(1)(A). The IJ determined that Fayzullina was inadmissible when she became a lawful permanent resident because of 8 U.S.C. § 1182(a)(6)(C)(i), which makes inadmissible “[a]ny alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this chapter.” 8 U.S.C. § 1182(a)(6)(C)(i). The IJ concluded that Fayzullina's conviction under 18 U.S.C. § 1001(a)(3)—for “knowingly and willfully ... mak[ing] or us[ing] [a] false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry,” 18 U.S.C. § 1001(a)(3)—met 8 U.S.C. § 1182(a)(6)(C)(i)'s requirements of willfulness and materiality, making Fayzullina removable under 8 U.S.C. § 1227(a)(1)(A).
The IJ also concluded that Fayzullina was removable under 8 U.S.C. § 1227(a)(2)(A)(i). That statute makes removable “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.” 8 U.S.C. § 1227(a)(2)(A)(i). Relying on Sixth Circuit and BIA precedents, the IJ found that Fayzullina's violation of 18 U.S.C. § 1001(a)(3) necessarily entailed both knowledge and materiality, such that it constituted a crime of moral turpitude. Because Fayzullina's conviction under 18 U.S.C. § 1001(a)(3) occurred within five years of her arrival in the United States and was punishable by more than a year in prison, the IJ determined that she was removable under 8 U.S.C. § 1227(a)(2)(A)(i), as well.
Fayzullina moved the IJ to reconsider his finding that she was removable under 8 U.S.C. § 1227(a)(2)(A)(i). The IJ denied Fayzullina's motion on June 7, 2012, finding that any violation of 18 U.S.C. § 1001(a)(3) constitutes a crime involving moral turpitude. Because violations of § 1001(a)(3) are categorically crimes of moral turpitude, he concluded, there was no need to consider the particulars of Fayzullina's record of conviction in determining whether she was removable under 8 U.S.C. § 1227(a)(2)(A)(i).
After the IJ denied her motion for reconsideration on removal, Fayzullina applied for waiver of removal under 8 U.S.C. §§ 1227(a)(1)(H) and 1182(h). Section 1227(a)(1)(H) permits waiver of removal when an alien:
is the spouse, parent, son, or daughter of a citizen of the United States or of an alien lawfully admitted to the United States for permanent residence; and ... was in possession of an immigrant visa or equivalent document and was otherwise admissible to the United States at the time of such admission except for those grounds of inadmissibility specified under paragraphs (5)(A) and (7)(A) of section 1182(a) of this title which were a direct result of that fraud or misrepresentation.
8 U.S.C. § 1227(a)(1)(H). Section 1182(h) permits waiver of removal when the alien:
is the spouse, parent, son, or daughter of a citizen of the United States ... [and] it is established to the satisfaction of the Attorney General that the alien's denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien.... No waiver shall be granted under this subsection in the case of an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence if ... the alien has not lawfully resided continuously in the United States for a period of not less than 7 years immediately preceding the date of...
To continue reading
Request your trial