Eritsian v. U.S. Attorney Gen.
| Decision Date | 03 February 2021 |
| Docket Number | No. 20-11602,No. 19-13872,19-13872,20-11602 |
| Parties | ARMAN ERITSIAN, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
[DO NOT PUBLISH]
Non-Argument Calendar
Petitions for Review of a Decision of the Board of Immigration Appeals
Before WILLIAM PRYOR, JILL PRYOR, and LAGOA, Circuit Judges.1
Arman Eritsian seeks review of: (1) the Board of Immigrations Appeals's ("BIA") order affirming the immigration judge's order of removal and denial of his applications for asylum, withholding of removal, Convention Against Torture ("CAT") relief, and for a waiver of inadmissibility in conjunction with an adjustment of status; and (2) the BIA's order denying his motion to reopen his removal proceedings. For the reasons discussed below, we deny in part and dismiss in part Eritsian's petition for review of the BIA's order denying his claims for relief in case number 19-13872 and deny in part and dismiss in part his petition for review of the BIA's order denying his motion to reopen the proceedings in case number 20-11602.
Eritsian is an ethnic Armenian Christian and native of Azerbaijan who originally entered the United States in 2000. In 2002, an immigration judge in California granted Eritsian's application for asylum. On July 20, 2007, Eritsian's legal status was adjusted to that of a lawful permanent resident of the United States, which was made retroactive to July 20, 2006.
In the years following his legal status change, Eritsian was convicted of two separate crimes. On January 5, 2010, Eritsian was convicted in California for conspiracy to commit grand theft, in violation of California Penal Code §§ 182(a)(1) and 487(a) (2009) (the "2010 conviction"), and was subsequently sentenced to 180 days of imprisonment and three years of probation. Then, on April 13, 2015, Eritsianwas convicted in the United States District Court for the Southern District of California for conspiracy to commit mail fraud, wire fraud, and money laundering, in violation of 18 U.S.C. § 371 (the "2015 conviction"). As a result of the 2015 conviction, Eritsian was sentenced to thirty months of imprisonment and ordered to pay $8,323 in restitution to the government.
On August 1, 2017, the United States Department of Homeland Security ("DHS") issued a Notice to Appear (the "NTA") to Eritsian while he was incarcerated with the Bureau of Prisons in Folkston, Georgia. In the NTA, Eritsian was charged as removable under 8 U.S.C. § 1227(a)(2)(A)(ii) for having been convicted of two crimes involving moral turpitude that did not arise out of a single scheme of criminal misconduct. Eritsian was also charged as removable under 8 U.S.C. § 1227(a)(2)(A)(iii) for having been convicted of an aggravated felony, i.e., an attempt or conspiracy to commit an offense that involves fraud or deceit in which the loss to the victim or victims exceeds $10,000, as described in 8 U.S.C. § 1101(a)(43)(M)(i) and (U). Eritsian was subsequently moved to the Stewart Detention Center in Lumpkin, Georgia. On January 10, 2018, the government submitted documents concerning Eritsian's 2010 and 2015 convictions to the original IJ.2 As to the 2015 conviction for conspiracy to commit mail fraud, wirefraud, and money laundering, the government submitted the grand jury's indictment from September 2013. Count 1 of the indictment alleged that, from 2010 to 2012, Eritsian and his co-conspirators unlawfully obtained personal identity theft information from several victims to file and receive fraudulent tax returns and launder the proceeds. The indictment further alleged that Eritsian and his co-conspirators had filed more than 400 fraudulent tax returns, claiming tax refunds totaling over $3,000,000, and had used complex methods to conceal their activities. The indictment listed specific actions showing that Eritsian and his co-conspirators had conspired to file a total of ten fraudulent tax returns and had claimed a total of approximately $87,547 in fraudulent returns. Eritsian pled guilty to Count 1 of the indictment.
On February 20, 2018, Eritsian submitted written pleadings in response to the NTA, admitting all the allegations therein but denying both charges of removability. Eritsian also filed a motion to terminate the removal proceedings against him. At a February 22, 2018, hearing, the original immigration judge denied the motion to terminate. As to the first charge of removability, the original immigration judge reviewed the indictment from Eritsian's 2015 conviction and found that Eritsian had been convicted of an aggravated felony, as the government had shown the loss to the victims for the offense was more than $10,000 based on the Supreme Court's decision in Nijhawan v. Holder, 557 U.S. 29 (2009). As to the second charge ofremovability, the original immigration judge found the 2015 conviction to be a crime involving moral turpitude but continued the issue of whether the 2010 conviction was also for a crime involving moral turpitude.
Eritsian also filed a motion to transfer venue from Georgia to California, arguing that because he and his family had lived in California for almost twenty years and because the testimony of his parents, who had serious medical conditions that would prevent them from traveling to Georgia, would be critical to litigating his case, the proceedings should be moved to California. The original immigration judge denied this motion, noting that the rules of evidence were more relaxed in immigration proceedings and finding that, as such, Eritsian would not be prejudiced by having the venue of his case remain in Georgia. After the case was transferred from the original immigration judge to another immigration judge, Eritsian renewed his motion to transfer venue, which the new immigration judge denied at a September 13, 2018, hearing.
On December 11, 2018, Eritsian filed a motion to reconsider his motion to terminate the proceedings, presenting the same arguments as his original motion and further arguing that he was eligible for a waiver of inadmissibility. On January 15, 2019, the immigration judge construed the motion to reconsider as a second motion to terminate and denied the motion. In his order, the immigration judge determined that Eritsian's 2010 and 2015 convictions were both for crimes involving moralturpitude and that the potential loss of conspiracy for which Eritsian was convicted in his 2015 conviction exceeded $10,000, rendering the offense an aggravated felony. As such, the immigration judge found that the government had established Eritsian's deportability on both charges.
Eritsian also filed an application for asylum, withholding of removal, and relief under provisions of CAT, as well as an application for a waiver of inadmissibility in conjunction with an adjustment of his legal status. In his pre-hearing brief, Eritsian argued that he was eligible for relief under 8 U.S.C. § 1182(h) because his wife was a United States citizen, he had adjusted his status to that of a lawful permanent resident while he was in the United States, and denial of relief would cause extreme hardship to himself and his family. Eritsian further asserted that several factors weighed in favor of granting him relief, including: (1) his strong family ties in the United States; (2) his nearly twenty years of residence in the United States; (3) the amount of hardship he and his family would experience if he was removed, as he would be unable to financially support his family or to care for his elderly parents and he would be at risk of persecution in Azerbaijan for being an ethnic Armenian Christian; (4) his value and service to the community; and (5) the evidence of his rehabilitation, remorse, and good character. Eritsian claimed that the only negative factors against granting him relief were his convictions, which he argued "were a result of his getting involved with the wrong people." On March 20,2019, the immigration judge held a hearing on Eritsian's applications for relief. At the hearing, Eritsian, Eritsian's wife, and an expert witness on country conditions in Azerbaijan all testified, and Eritsian submitted exhibits and his father's affidavit to the immigration judge in support of his applications.
The immigration judge denied Eritsian's applications. Addressing Eritsian's waiver of inadmissibility claim, the immigration judge found that while Eritsian was not barred from receiving a waiver under § 1182(h) because his convictions were for nonviolent financial crimes, Eritsian had failed to show that he merited a favorable exercise of discretion or that his qualifying relatives would suffer extreme hardship upon his removal. As to Eritsian's withholding of removal claim, the immigration judge found that Eritsian had demonstrated past persecution such that he was entitled to a presumption of a future threat to his life or freedom, but that the government had rebutted that presumption by showing a fundamental change in circumstances in Azerbaijan regarding the treatment of Armenian Christians. As to the CAT claim, the immigration judge determined that Eritsian had not showed he would personally be at risk of torture upon his removal, as the likelihood of Eritsian being tortured in Azerbaijan was merely speculative.
Eritsian appealed the immigration judge's decision to the BIA. On September 5, 2019, the BIA upheld the immigration judge's decision and dismissed the appeal. As to removability, the BIA affirmed the immigration judge's determination that theloss to Eritsian's victims exceeded $10,000, rendering the 2015 conviction an aggravated felony, and found that the immigration judge properly applied a "circumstance-specific analysis" to determine the loss amount. The BIA rejected Eritsian's argument that the loss tied to the 2015 conviction was limited to the $8,323 that he owed as restitution, as the immigration judge was required to determine ...
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