Cela v. Garland
| Docket Number | 22-1322 |
| Decision Date | 28 July 2023 |
| Citation | 75 F.4th 355 |
| Parties | Tiger CELA, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Fourth Circuit |
On Petition for Review of an Order of the Board of Immigration Appeals.
ARGUED: Benjamin Ross Winograd, IMMIGRANT & REFUGEE APPELLATE CENTER, LLC, Alexandria, Virginia, for Petitioner. Michelle R. Slack, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Raymond Reza Bolourtchi, COFMAN & BOLOURTCHI LLC, St. Louis, Missouri, for Petitioner. Brian Boynton, Principal Deputy Assistant Attorney General, Justin Markel, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Before AGEE, HARRIS, and QUATTLEBAUM, Circuit Judges.
Petition for review denied by published opinion. Judge Quattlebaum wrote the opinion in which Judge Agee joined. Judge Harris wrote an opinion concurring in part and dissenting in part.
Subject to other requirements, the Attorney General "may adjust to the status of an alien lawfully admitted for permanent residence the status of any alien granted asylum[ ]." 8 U.S.C. § 1159(b). The question presented here is whether the prior termination of an alien's asylum status renders the alien ineligible for this adjustment. Based on the text of § 1159(b), the answer is yes. So, we affirm the Board of Immigration Appeals ("BIA") and deny the petition before us.
Tiger Cela, a native and citizen of Albania, entered the United States in 2001. He remained in the country until 2008, when he was ordered removed. Between 2008 and 2012, he lived in Albania. Then, he returned to the United States and was granted asylum—derivative of his father's asylum application. See 8 U.S.C. § 1158(b)(3).
In 2015, Cela was charged with federal bank fraud and aggravated identity theft. In 2016, he was convicted of those charges after pleading guilty and sentenced to 44 months in prison. Based on Cela's convictions, in August 2019, the Department of Homeland Security ("DHS") began removal proceedings against Cela.1 And also because of those convictions, in September 2019, DHS moved to terminate his asylum status.2
The immigration judge ("IJ") granted DHS's motion to terminate Cela's asylum status in September 2019. The IJ held a hearing on DHS's removal proceedings against Cela in October 2019. In connection with that hearing, Cela conceded he was removable based on the bank fraud and identity theft proceedings but requested the IJ waive those grounds for his removal. Cela also applied to adjust his status to lawful permanent resident.3 And he separately sought withholding of removal and protection under the Convention Against Torture ("CAT").
The IJ denied Cela's request for a waiver. The judge also concluded that Cela was ineligible for adjustment of status because his asylee status had already been terminated. The IJ also denied Cela's requests for withholding and protection under CAT. Finally, the IJ ordered Cela be removed to Albania.
Cela appealed that decision to the BIA which, in a published decision before a three-judge panel, dismissed the appeal and affirmed the IJ's denial of relief. Matter of T-C-A-, 28 I&N Dec. 472 (BIA 2022). In addressing whether the termination of Cela's asylum status rendered him ineligible to adjust to lawful permanent resident, the BIA first concluded that the text and legislative history of 8 U.S.C. § 1159(b) "do not reveal whether Congress clearly intended adjustment of status under this provision to be available to respondents whose asylee status has been terminated." A.R. 24. And it concluded that the phrase "the status of any alien granted asylum" could be interpreted in different ways. A.R. 24. For example, it said the phrase could mean an applicant is eligible for adjustment only if he or she presently maintains asylee status. Or, it continued, the phrase could mean that "an applicant is eligible for adjustment if, at any time in the past, he or she was granted asylum, regardless of whether that applicant currently maintains asylee status." A.R. 24. Finding ambiguity, the BIA determined that it had to develop a reasonable statutory interpretation based on the directives from Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).
The BIA then interpreted § 1159(b) to require an applicant to possess a current "status" before an alien could seek to adjust that status to lawful permanent resident status. A.R. 27. And since Cela's status as an asylee had been terminated prior to his application for adjustment of status, the BIA reasoned, Cela was ineligible to adjust to a different status. The BIA also affirmed the IJ's determination that Cela was statutorily ineligible for withholding of removal based on his conviction, as well as the IJ's denial of withholding and CAT relief.
But the BIA's decision was divided. One panel member disagreed with the majority's conclusion that, under § 1159(b), the termination of asylee status bars an alien from applying for adjustment of status. The dissenting judge found that the statutory language unambiguously establishes that an asylee may pursue adjustment of status even if his asylum status had previously been terminated. That judge felt the appropriate resolution was to remand to the IJ so that Cela could apply for adjustment and the IJ could consider the merits of the application.4
Cela timely petitioned for review of the BIA's decision. We have jurisdiction to review pursuant to 8 U.S.C. § 1252(b)(1).5
Cela asks us to grant his petition for review and vacate the BIA's decision determining that the termination of his asylum status renders him ineligible to seek adjustment of status to lawful permanent resident under § 1159(b).6 Granting that relief would mean Cela's application for adjustment of status could proceed, allowing the IJ to then consider his request for discretionary relief under 8 U.S.C. § 1159(b) and (c). Petitioner's Br. at 25; 46.
Before we reach the merits of Cela's petition, we must consider a threshold issue. The Attorney General argues that Cela's petition is moot because he returned to Albania. Section 1159(b)(3) requires an alien seeking adjustment of status to "continue[ ] to be a refugee within the meaning of section 1101(a)(42)(A)," which requires the alien to remain outside his native country.
According to the Attorney General, since Cela has not remained in the United States, Cela's application is futile and thus his petition is moot. In response, Cela points out that § 1159(b)(3) permits a "child of [ ] a refugee" to qualify for adjustment of status. And since he was granted asylum derivative of his father's asylum application, he argues that provision allows him to seek adjustment even though he is now over 21 years old. And alternatively, he claims that we could cure any problem caused by his return to Albania by granting him the effectual relief of ordering the government to facilitate his return to the United States.
Principles of mootness relate to Article Ill's limitation on the jurisdiction of federal courts to cases and controversies. U.S. Const. art. III, § 2, cl. 1. Cases that are moot are not cases and controversies. Eden, LLC v. Justice, 36 F.4th 166, 169-70 (4th Cir. 2022). A case becomes moot when it is impossible for a court to grant any "effectual relief" to the prevailing party. Knox v. Serv. Emps. Int'l Union, Loc. 1000, 567 U.S. 298, 307-08, 132 S.Ct. 2277, 183 L.Ed.2d 281 (2012) (internal citation and quotation marks omitted). But as long "as the parties have a concrete interest, however small, in the outcome of the litigation, the case is not moot." Ellis v. Bhd. of Ry., Airline & S.S. Clerks, Freight Handlers, Exp. & Station Emps., 466 U.S. 435, 442, 104 S.Ct. 1883, 80 L.Ed.2d 428 (1984).
The Attorney General's argument that Cela's return to Albania renders him ineligible to adjust his status under § 1159(b)(3) might provide an alternative basis for denying Cela's application on the merits. But it does not mean Cela's petition is moot for the purposes of Article III.7 In this petition, Cela asks us to vacate the BIA's decision interpreting § 1159(b) to mean he is ineligible for adjustment so that the IJ can consider his application for adjustment of status on the merits. And we have the power to grant that relief. See Church of Scientology of California v. United States, 506 U.S. 9, 12-13, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992) (). So, Cela's petition presents a live controversy permitting us to proceed to the merits.
In addressing this petition, we consider whether an alien whose asylum status has been terminated may apply to adjust his status to lawful permanent resident. Considering "the status of any alien granted asylum" language in § 1159(b), the BIA concluded that such an alien is not eligible to apply for an adjustment. We review the BIA's legal conclusions, including those regarding statutory construction, de novo. Leiba v. Holder, 699 F.3d 346, 348 (4th Cir. 2012).
But we "also grant appropriate deference to the Board's interpretation of the [Immigration and Nationality Act] under the two-step framework set out in Chevron." Id.8
While perhaps controversial, Chevron's two-step framework is well-settled. When a court reviews an agency's construction of the statute which it administers, the Court first considers "whether Congress has directly spoken to the precise question at issue." Chevron, 467 U.S. at 842, 104 S.Ct. 2778. But if the reviewing court determines that "Congress has not directly addressed the precise question at issue, . . . the question for the court is whether the agency's answer is based on a...
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