Boggala v. Sessions, 16-1558

Decision Date09 August 2017
Docket NumberNo. 16-1558,16-1558
Citation866 F.3d 563
Parties Vijaya Prakash BOGGALA, Petitioner, v. Jefferson B. SESSIONS III, Attorney General, Respondent. Professor Kaci Bishop, of UNC Law School; National Immigration Project of the National Lawyers Guild; North Carolina Justice Center, Amici Supporting Petitioner.
CourtU.S. Court of Appeals — Fourth Circuit

ARGUED: Helen Parsonage, ELLIOT MORGAN PARSONAGE PLLC, Winston-Salem, North Carolina, for Petitioner. Tim Ramnitz, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, Shelley R. Goad, Assistant Director, Jennifer A. Singer, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. Sejal Zota, NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, Boston, Massachusetts, for Amici Curiae.

Before WILKINSON, DIAZ, and FLOYD, Circuit Judges.

Petition denied by published opinion. Judge Floyd wrote the majority opinion, in which Judge Wilkinson joined. Judge Diaz wrote a separate dissenting opinion.

FLOYD, Circuit Judge:

Vijaya Boggala, a citizen and native of India, petitions this Court for review of an order from the Board of Immigration Appeals (BIA), which found him both removable and inadmissible on the basis of his North Carolina deferred prosecution agreement for soliciting a child by computer to commit a sex act. Because the BIA properly found Boggala removable and inadmissible for being convicted of a crime involving moral turpitude, we deny Boggala's petition for review.

I.
A.

We begin with a brief overview of the relevant statutory scheme contained in the Immigration and Nationality Act (INA). An alien who is a permanent resident of the United States can lose permanent resident status upon a finding of removability, based on the criteria for removability listed in INA § 237, 8 U.S.C. § 1227. Once an alien is found removable, the alien may attempt to reobtain permanent resident status by requesting an adjustment of status under INA § 245(a), 8 U.S.C. § 1255(a). To obtain an adjustment of status, the alien must be found to be admissible. The criteria that render an alien inadmissible are found in INA § 212, 8 U.S.C. § 1182. If an alien is found to be inadmissible under certain provisions of INA § 212, the alien may apply for a waiver of inadmissibility pursuant to INA § 212(h), 8 U.S.C. § 1182(h). If the alien has committed a crime that is "violent or dangerous," then a heightened standard applies to the § 212(h) waiver application, requiring "extraordinary circumstances" for the waiver to be granted. 8 C.F.R. § 1212.7(d).

B.

We now turn to the facts of this case. Boggala is a 37-year-old doctor who completed medical school in India; he traveled to the United States in 2007 with a valid visa to prepare for and participate in a residency at a hospital in Greensboro, North Carolina. In 2008, Boggala married a United States citizen, and in 2009, he adjusted his status to that of a lawful permanent resident based on his marriage.

On January 12, 2012, Boggala initiated a conversation in a chatroom with an individual who used the screenname "JennAngel2010." A.R. 778. "JennAngel2010" told Boggala that she was a 14-year-old girl living in Fayetteville, North Carolina. Unbeknownst to Boggala, "JennAngel2010" was actually an undercover police officer. During this first conversation, Boggala attempted to arrange a meeting with "JennAngel2010" for that day. He also told her that he wanted to have sex with her and made a variety of other sexually explicit remarks.

Boggala and "JennAngel2010" continued to have sexually explicit conversations for about 19 days, and eventually made plans to meet on January 31, 2012. On January 31, Boggala drove from Greensboro to Fayetteville, and arrived at the parking lot where he had arranged to meet "JennAngel2010." He was then taken into custody by the police. He had four condoms in his pocket when he was apprehended. When interviewed by the police, Boggala—who was 31 years old at the time—admitted that he believed that "JennAngel2010" was only 14 years old.

Boggala was charged by criminal information with soliciting a child by computer to commit an unlawful sex act in violation of N.C. Gen. Stat. § 14-202.3(a). On August 14, 2012, Boggala and his attorney met with the prosecutor. During this meeting, Boggala waived indictment by signing the criminal information (the "Information"). The Information alleged that Boggala engaged in conduct that constitutes the offense of soliciting a child by computer to commit an unlawful sex act, and listed relevant factual details such as Boggala's age (31), the child's age (14), and the location where they were going to meet. A.R. 816. Also during the meeting, Boggala entered into a deferred prosecution agreement pursuant to N.C. Gen. Stat. § 15A-1341(a1), which established that the state of North Carolina would defer prosecution of the crime in exchange for Boggala's fulfillment of certain conditions. A.R. 818–819.

Later that day, a deferred prosecution hearing was held in North Carolina Superior Court. At that hearing, the court told Boggala:

Sir, you are admitting responsibility and stipulating to the facts to be used against you and admitted into evidence without objection in the state's prosecution against you for this offense should prosecution become necessary as a result of these terms, that is, if you do not complete the terms of this agreement. Do you understand that?

A.R. 826. Boggala responded, "Yes." Id. The court then accepted the deferred prosecution agreement and placed Boggala on supervised probation for twelve months.

Because of Boggala's offense, the Department of Homeland Security (DHS) apprehended Boggala on February 26, 2013, and issued him a notice to appear for removal proceedings. DHS charged Boggala with removability as (1) an alien convicted of an aggravated felony under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii) ; and (2) an alien convicted of a crime involving moral turpitude under INA § 237(a)(2)(A)(i), 8 U.S.C. § 1227(a)(2)(A)(i).

On March 12, 2013, Boggala appeared at a preliminary hearing before an immigration judge (IJ) and denied that he was removable as charged. Boggala filed a motion to terminate his removal proceedings, arguing that his deferred prosecution did not constitute a "conviction" for immigration purposes and that, in any event, his offense did not qualify as an aggravated felony or a crime involving moral turpitude. DHS filed in opposition, and submitted into evidence the Information, the deferred prosecution agreement, and the transcript from the deferred prosecution hearing.

On January 30, 2014, the IJ denied Boggala's motion to terminate proceedings, based on a determination that Boggala was removable under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), for being convicted of an aggravated felony. A.R. 214. The IJ reserved judgment on whether Boggala was additionally removable under INA § 237(a)(2)(A)(i), 8 U.S.C. § 1227(a)(2)(A)(i), for being convicted of a crime involving moral turpitude. A.R. 214 n.2. Boggala then indicated that he intended to apply for relief from removal through an application for adjustment of status in conjunction with a § 212(h) waiver of inadmissibility.

On October 8, 2014, Boggala conceded that his offense qualified as a crime involving moral turpitude, rendering him removable; however, he argued that his offense did not render him inadmissible because it was subject to the petty offense exception under INA § 212(a)(2)(A)(ii)(II), 8 U.S.C. § 1182(a)(2)(A)(ii)(II),1 and that for this reason, he did not need to apply for a § 212(h) waiver. The IJ disagreed, and on March 3, 2015, found that Boggala's conviction was for a crime involving moral turpitude and that the petty offense exception did not apply, rendering Boggala inadmissible. As a result, Boggala was required to apply for a § 212(h) waiver. The IJ adjourned the proceedings to allow the parties to brief whether Boggala's crime was "violent or dangerous" such that the heightened "exceptional and extremely unusual hardship" standard of 8 C.F.R. § 1212.7(d) would apply to his request for a § 212(h) waiver.

On May 18, 2015, after briefing, the IJ found that Boggala was removable as charged and that his offense was "dangerous," which meant that the heightened hardship standard applied to his request for a § 212(h) waiver of inadmissibility. The IJ then found that this standard had not been met, and consequently denied Boggala's § 212(h) waiver request. In the alternative, the IJ denied the waiver request as a matter of discretion. As a result, Boggala was ordered removed to India.

On June 16, 2015, Boggala filed an appeal with the BIA. On May 3, 2016, in a detailed single-member opinion, the BIA affirmed each aspect of the IJ's decision and dismissed Boggala's appeal. Boggala then timely petitioned this Court for review.

II.

Notwithstanding the limitations on review of discretionary denials of relief and certain final removal orders found in INA § 242(a)(2)(B)(i) & (a)(2)(C), 8 U.S.C. § 1252(a)(2)(B)(i) & (a)(2)(C), this Court still has jurisdiction to review questions of law and constitutional claims associated with such rulings, INA § 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D). We conduct this review de novo. Amos v. Lynch , 790 F.3d 512, 517 & n.3 (4th Cir. 2015). Where, as here, the BIA "affirmed the IJ's order and supplemented it," we review "the factual findings and reasoning contained in both decisions." Niang v. Gonzales , 492 F.3d 505, 511 n.8 (4th Cir. 2007).

III.

Boggala argues that (1) his North Carolina deferred prosecution does not qualify as a "conviction" under the INA; (2) the phrase "crime involving moral turpitude" is void for vagueness; (3) his crime was not an "aggravated felony;" and (4) his crime was not "violent or dangerous" within the meaning of 8 C.F.R. § 1212.7(d). We find...

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