Amouzadeh v. Winfrey

• Decision Date: 05 October 2006
• Docket Number: No. 04-50903.,04-50903.
• Citation: 467 F.3d 451
• Parties: Manoutcher AMOUZADEH, Petitioner-Appellant, v. Graciela WINFREY, as Interim Field Office Director for Detention and Removal for the Bureau of Immigration and Customs Enforcement; U.S. Immigration and Customs Enforcement, as an agency of the Government of the United States of America; Department of Homeland Security, as an agency of the Government of the United States of America; Michael Chertoff, Secretary, Department of Homeland Security; Alberto R. Gonzales, U.S. Attorney General, Respondents-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

467 F.3d 451

Manoutcher AMOUZADEH, Petitioner-Appellant, v. Graciela WINFREY, as Interim Field Office Director for Detention and Removal for the Bureau of Immigration and Customs Enforcement; U.S. Immigration and Customs Enforcement, as an agency of the Government of the United States of America; Department of Homeland Security, as an agency of the Government of the United States of America; Michael Chertoff, Secretary, Department of Homeland Security; Alberto R. Gonzales, U.S. Attorney General, Respondents-Appellees.

No. 04-50903.

United States Court of Appeals, Fifth Circuit.

October 5, 2006.

Yvette Marie Mastin (argued), Houston, TX, for Amouzadeh.

Gary Layton Anderson (argued), San Antonio, TX, for Respondents-Appellees.

Appeal from the United States District Court for the Western District of Texas.

Before HIGGINBOTHAM, DeMOSS and OWEN, Circuit Judges.

OWEN, Circuit Judge:

Manoutcher Amouzadeh appeals the district court's denial of his 28 U.S.C. § 2241 habeas corpus petition, which challenged an order of removal by the Board of Immigration Appeals ("BIA"). The issues are (1) whether unlawful procurement of naturalization in violation of 18 U.S.C. § 1425(a) is a crime involving moral turpitude under section 237(a)(2)(A)(ii) of the Immigration and Naturalization Act, as amended ("INA"),¹ and (2) whether Amouzadeh was eligible for concurrent relief under former INA § 212(c)² and current INA § 240A(a).³ Because we conclude that the violation of 18 U.S.C. § 1425(a) is a crime involving moral turpitude and that Amouzadeh is not entitled to relief under INA § 240A(a), we deny Amouzadeh's petition.

I

Amouzadeh, a native of Iran, first entered the United States in 1978 as a student. After marrying a United States citizen, Amouzadeh's status was adjusted to that of a lawful permanent resident, and on September 21, 1995, he became a citizen of the United States by naturalization. However, on September 5, 1995, just two weeks prior to his final naturalization hearing, Amouzadeh was arrested on charges that he was part of a conspiracy to possess cocaine with the intent to distribute. He was convicted on September 4, 1996 of that crime.

At his final naturalization hearing, Amouzadeh was asked whether he had, since petitioning for naturalization, "knowingly committed any crime or offense, for which [he had] not been arrested; or [had been] arrested, cited, charged, indicted, convicted, fined or imprisoned for breaking or violating any law or ordinance including traffic violations?" Amouzadeh falsely stated, under oath, that he had only been cited for a traffic violation since petitioning for naturalization. Amouzadeh's false statement formed the basis of his later section 1425(a) conviction for knowingly procuring naturalization contrary to law. On March 21, 2001, as a result of his section 1425(a) conviction, Amouzadeh's United States citizenship was revoked.⁴

The Immigration and Naturalization Service ("INS") initiated removal proceedings on April 12, 2001, charging that Amouzadeh was removable under INA § 237(a)(2)(A)(iii),⁵ as an alien convicted of an aggravated felony (drug trafficking conviction), and under INA § 237(a)(2)(A)(ii),⁶ as an alien convicted of two crimes involving moral turpitude (drug trafficking conviction and unlawful procurement of naturalization conviction). The Immigration Judge ("IJ") rejected Amouzadeh's argument that his section 1425(a) conviction for unlawfully procuring naturalization was not a conviction for a crime involving moral turpitude and sustained both charges of removability. The IJ also determined that Amouzadeh was ineligible for relief from removal under former INA § 212(c) because of his section 1425(a) conviction or under current INA § 240A(a) because of his aggravated felony conviction. Amouzadeh appealed to the BIA, who reached the same conclusions as the IJ and dismissed his appeal, ordering him removed to Iran in accordance with the IJ's decision.

Amouzadeh later filed a section 2241 habeas petition in the district court, challenging his removal on two grounds: (1) the BIA erred in determining that his section 1425(a) conviction was a crime involving moral turpitude, and (2) in the alternative, even if his section 1425(a) conviction was a crime involving moral turpitude, the BIA erred in concluding that he could not apply concurrently for relief from removal under current INA § 240(A) and former INA § 212(c). The district court denied Amouzadeh's habeas petition. Amouzadeh appealed.

II

While Amouzadeh's habeas petition was pending on appeal, Congress passed the REAL ID Act of 2005 (the "Act"), which divested the federal district courts of jurisdiction to hear habeas petitions attacking removal orders, effective May 11, 2005.⁷ The Act provides that "a petition for review filed with the appropriate court of appeals ... shall be the sole and exclusive means for judicial review of an order of removal ...."⁸ The Act also requires district courts to transfer any pending habeas cases challenging an order of removal to the appropriate court of appeals; the courts of appeals are to treat the habeas petitions as timely-filed petitions for review.⁹ The Act does not, however, address how courts of appeals should treat habeas petitions that were pending on appeal on May 11, 2005 when the Act became effective. We recently held that such habeas petitions "are [also] properly converted into petitions for review."¹⁰ Therefore, because Amouzadeh's habeas petition was pending on appeal on the Act's effective date, we convert it into a petition for review of the underlying BIA decision. We have jurisdiction over Amouzadeh's converted-petition because it involves a question of law¹¹—whether a violation of section 1425(a) is a crime involving moral turpitude.

III

The INA provides that an alien is deportable if he has been convicted of two or more crimes involving moral turpitude.¹² The INA does not, however, "define the term `moral turpitude[,]' and legislative history does not reveal congressional intent regarding which crimes are turpitudinous. Instead, Congress left the interpretation of [the term] to both the BIA and the federal courts."¹³ Consequently this court applies a two-part standard of review to the BIA's conclusion that an alien has committed a crime involving moral turpitude:

First, we accord substantial deference to the BIA's definition of the term "moral turpitude." Second, we review de novo whether the elements of the state or federal [offense at issue] fit the BIA's definition of a [crime involving moral turpitude]. Importantly, this two-step approach provides both consistency— concerning the meaning of moral turpitude—and a proper regard for the BIA's administrative role—interpretation of federal immigration laws, not state and federal criminal statutes.¹⁴

The BIA, through its administrative decisions, has crafted the following definition of the term "moral turpitude":

Moral turpitude refers generally to conduct that shocks the public conscience as being inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general. Moral turpitude has been defined as an act which is per se morally reprehensible and intrinsically wrong, or malum in se, so it is the nature of the act itself and not the statutory prohibition of it which renders a crime one of moral turpitude. Among the tests to determine if a crime involves moral turpitude is whether the act is accompanied by a vicious motive or a corrupt mind.¹⁵

When determining whether a particular law meets the BIA's definition of "moral turpitude," we employ a categorical approach that focuses "on the inherent nature of the crime, as defined in the statute ..., rather than the circumstances surrounding the particular transgression."¹⁶ Under the categorical approach, we read the statute at its minimum, taking into account "the minimum criminal conduct necessary to sustain a conviction under the statute."¹⁷ An offense is a crime involving moral turpitude if the minimum reading of the statute necessarily reaches only offenses involving moral turpitude.¹⁸ However, "if the orbit of the statute may include offenses not inherently entailing moral turpitude," then the crime is not a crime involving moral turpitude.¹⁹ "An exception to this general rule is made if the statute is divisible into discrete subsections of acts that are and those that are not [crimes involving moral turpitude]."²⁰ If the statute is divisible, "we look at the alien's record of conviction to determine whether he has been convicted of a subsection that qualifies as a [crime involving moral turpitude]."²¹

Section 1425(a) provides that "[w]hoever knowingly procures or attempts to procure, contrary to law, the naturalization of any person, or documentary or other evidence of naturalization or citizenship" shall be fined or imprisoned, or both.²² Amouzadeh pleaded guilty to violating section 1425(a) by falsely stating under oath, in a Notice of Final Naturalization Hearing that he had never been arrested for violating any law. However, because section 1425(a) is not divisible, Amouzadeh's actual conduct cannot be considered. Instead, our crime involving moral turpitude analysis is confined to section 1425(a)'s statutory text, and we will only classify Amouzadeh's section 1425(a) conviction as a crime involving moral turpitude if "every violation of the ... statute necessarily, under all circumstances, ... involve[s] moral turpitude."²³

Amouzadeh contends that section 1425(a) is broad enough to punish behavior that is not "accompanied by a vicious motive or a corrupt mind"²⁴ and therefore does not specify a crime involving moral turpitude. For example, Amouzadeh contends that an innocent misstatement during the naturalization process, made without any intent to deceive, can form the basis of a section 1425(a) conviction. To accept Amouzadeh's argument, this court would...