Butka v. U.S. Attorney Gen.

• Decision Date: 05 July 2016
• Docket Number: No. 15-11954,15-11954
• Citation: 827 F.3d 1278
• Parties: Kap Sun Butka, Petitioner, v. U.S. Attorney General, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

827 F.3d 1278

Kap Sun Butka, Petitioner

v.U.S. Attorney General, Respondent.

No. 15-11954

United States Court of Appeals, Eleventh Circuit.

July 5, 2016

Sui Chung, Immigration Law & Litigation Group, Miami, FL, Michael S. Vastine, St. Thomas University School of Law, Miami Gardens, FL, for Petitioner.

Jesse Matthew Bless, OIL, Anthony Cardozo Payne, U.S. Department of Justice, Civil Division, Office of Immigration Litigation, Washington, DC, Alfie Owens, DHS/ICE Office of Chief Counsel–ATL, Atlanta, GA, for Respondent.

Before HULL and BLACK, Circuit Judges, and MORENO,^* District Judge.

HULL

, Circuit Judge:

Kap Sun Butka petitions for review of the Board of Immigration Appeals' (“BIA”) order denying her motion to sua sponte reopen her removal proceedings. The government filed a motion to dismiss Butka's petition for lack of jurisdiction and we previously ordered the government's motion to be carried with the case. We now grant the government's motion and dismiss Butka's petition for lack of jurisdiction.

I. 2009 REMOVAL ORDER

On September 6, 2007, the Department of Homeland Security (“DHS”) issued Butka, a native and citizen of South Korea, a notice to appear (“NTA”). The NTA included the following factual allegations: (1) that Butka had overstayed her six-month nonimmigrant visitor's visa, which was issued in 1981; and (2) that Butka had a 1977 conviction from the Seoul Criminal District Court in Seoul, South Korea, for possession of 105 grams of marijuana, in violation of the Management Law for the Hemp and the Management Law of the Habitual Narcotic Drug. The NTA charged that Butka was removable under Immigration and Nationality Act (“INA”) § 212(a)(2)(A)(i)(II), 8 U.S.C. § 1182(a)(2)(A)(i)(II)

, as an alien convicted of a controlled substance offense. See INA § 212(a)(2)(A)(i)(II), 8 U.S.C. § 1182(a)(2)(A)(i)(II) (providing that an alien is subject to removal from the United States if she has been convicted of violating any law or regulation of “a foreign country relating to a controlled substance (as defined in [21 U.S.C. § 802 ]”)).

Butka responded, in January 2008, with a counseled written pleading admitting the allegations in the NTA and conceding removability. In the same pleading, she requested relief from removal in the form of adjustment of status, pursuant to INA § 245(a), 8 U.S.C. § 1255(a)

. Later, as part of the exhibit list she filed in November 2008, Butka also submitted a copy of her application for a waiver of inadmissibility, under INA § 212(h), 8 U.S.C. § 1182(h), which she filed on an unspecified date. She asked for “waiver of [her] conviction[ ] and any other grounds of inadmissibility.”

At her master calendar hearing in December 2008, however, DHS served Butka with a Form I-261, “Additional Charge[ ] of Inadmissibility/Deportability.” The form stated that, “in lieu of [the charge] set forth in the original Notice to Appear,” DHS was alleging that Butka overstayed her visa without authorization, rendering her removable under INA § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B)

. See INA § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B) (providing that any alien present in the United States in violation of the INA, or whose nonimmigrant visa was revoked, is deportable).

Butka requested more time to answer the new charge, and the immigration judge (“IJ”) set a deadline for her to provide a written response and identify and brief her eligibility for any forms of relief. When Butka's counsel missed the deadline to respond, the government filed a motion for a removal order, claiming that Butka had abandoned her requests for relief and that, in any event, she was ineligible for any form of relief other than voluntary departure.

On April 16, 2009, the IJ issued an order based on the existing record and Butka's prior requests for a waiver of inadmissibility and adjustment of status. The IJ found Butka removable by clear and convincing evidence. The IJ also concluded that Butka was ineligible for adjustment of status due to her drug conviction, and that the conviction could not be waived under INA § 212(h), 8 U.S.C. § 1182(h)

, because it involved more than simple possession of 30 grams of marijuana. See INA § 212(h), 8 U.S.C. § 1182(h) (providing that the Attorney General may waive an alien's ineligibility for adjustment of status when the alien's ineligibility was based on a drug conviction, and that conviction “relate[d] to a single offense of simple possession of 30 grams or less of marijuana”). The IJ ordered Butka removed to South Korea, and further noted that Butka was ineligible for voluntary departure because she had failed to file the required travel documents.

II. 2010 BIA DECISION

Butka appealed to the BIA, arguing that the IJ erred by (1) denying a waiver of inadmissibility, (2) denying adjustment of status, and (3) ordering her removed without holding a hearing or giving her an opportunity to seek voluntary departure as an alternative form of relief. Notably, Butka did not deny that she had a drug conviction or argue that her conviction involved 30 grams or less of marijuana. The government responded with a motion for summary affirmance.

On August 10, 2010, the BIA affirmed Butka's removal order for the same reasons described in the IJ's order and dismissed her appeal. The BIA explained that Butka was ineligible for a waiver of inadmissibility under INA § 212(h), 8 U.S.C. § 1182(h)

, because she had not shown by a preponderance of the evidence that her controlled substance offense constituted a single offense of simple possession of 30 grams or less of marijuana. And without the waiver, she was ineligible for adjustment of status. The BIA also concluded that there was no due process violation in the IJ ordering Butka removed without holding a hearing and that Butka was not unconstitutionally deprived of an opportunity to file for voluntary departure.

III. 2011 DENIAL OF PETITION FOR REVIEW

Butka filed a petition for review in this Court. In May 2011, this Court concluded that it had jurisdiction to review only Butka's constitutional arguments and issues of law. Butka v. U.S. Att'y Gen. , 427 Fed.Appx. 819, 822 (11th Cir. 2011)

(unpublished). It denied Butka's petition for review, holding that “the IJ did not violate Butka's right to due process by issuing a removal order without holding a merits hearing,” as the “documentary evidence clearly established” that Butka was not eligible for a waiver or adjustment of status because her drug conviction “involved more than 30 grams of marijuana.” Id. at 823. This Court stated that Butka “admitted” that she had a prior conviction for possession of 105 grams of marijuana, so holding a hearing would not have changed the outcome of her case. Id. Additionally, this Court held that Butka had “a sufficient opportunity to apply for voluntary departure,” and that Butka had not made out an equitable estoppel claim based on the government's initial decision to admit her with a drug conviction. Id. at 822–23.

IV. 2015 MOTION TO REOPEN

The record is silent from May 26, 2011, when this Court denied Butka's petition for review, until March 2, 2015, when Butka filed the instant motion to reopen her removal proceedings. Butka's 2015 motion sought reopening pursuant to the BIA's sua sponte authority under 8 C.F.R. § 1003.2(a)

. She asked the BIA to reopen her removal proceedings and remand her case to the IJ so that she could reapply for adjustment of status based on a pending Form I-130 filed by her daughter.¹ Butka argued that her case presented the exceptional circumstances necessary for sua sponte reopening. She did not request statutory reopening or equitable tolling.

To support her claim that she was eligible for adjustment of status and had an exceptional case, Butka argued that the original NTA erroneously charged that she had a 1977 conviction for possession of 105 grams of marijuana. While Butka had previously admitted to that specific allegation in the NTA, Butka's motion to reopen now claimed that she had two “concurrent” South Korean convictions—(a) one for a December 1976 possession of 100 grams of marijuana, in violation of the Habitual Drug Control Act, and (b) one for a January 1977 distribution of 5 grams of marijuana, in violation of the Cannabis Control Act.² Butka attached a translated copy of her criminal judgment to support her claim. There is only one criminal judgment, dated March 17, 1977, with one case number, “77 Go Hap 70.” Butka argues, however, that a review of that judgment shows she was charged with a December 1976 possession of 100 grams and a January 1977 distribution of 5 grams and, therefore, she has two “concurrent crimes” in that one case.

As to her crime of possession of 100 grams of marijuana, Butka argued that the Habitual Drug Control Act was overbroad, and therefore that conviction was not categorically a controlled substance offense under the INA. As such, it did not render her inadmissible.

As to her crime of conviction for distributing 5 grams of marijuana, Butka contended that, under intervening Supreme Court and BIA precedent, the crime could be waived pursuant to INA § 212(h), 8 U.S.C. § 1182(h)

. Butka argued that her 5-gram-distribution crime arose from “the social sharing of marijuana on a single occasion,” and in that way “relate[d] to a single offense of simple possession of 30 grams or less of marijuana,” as required for a waiver under the INA.

Alternatively, Butka asserted that her case should be transferred to her current place of residence, which was within the Ninth Circuit, and argued that under Ninth Circuit law her drug convictions would be considered expunged. Therefore, should her case be reopened, Butka maintained that she would be eligible for relief under one or more of these theories.

On April 3, 2015, the BIA denied Butka's motion to reopen. The BIA determined that Butka did not present an “exceptional situation to justify reopening sua sponte,” and it denied the motion as time-barred. The BIA reiterated that Butka was ineligible...