Gallimore v. Attorney Gen. Of The United States

• Decision Date: 20 August 2010
• Docket Number: No. 08-3379.,08-3379.
• Citation: 619 F.3d 216
• Parties: Earl Woodrow GALLIMORE, Petitioner v. ATTORNEY GENERAL OF the UNITED STATES, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

619 F.3d 216

Earl Woodrow GALLIMORE, Petitioner

v.ATTORNEY GENERAL OF the UNITED STATES, Respondent.

No. 08-3379.

United States Court of Appeals,Third Circuit.

Argued June 10, 2010.

Filed: Aug. 20, 2010.

COPYRIGHT MATERIAL OMITTED.

Nita Dobroshi, Esq. (Argued), Spar & Bernstein, New York, NY, for Petitioner.

Aliza B. Alyeshmerni, Esq., Sharon M. Clay, Esq. (Argued), Allen W. Hausman, Esq., Thomas W. Hussey, Esq., United States Department of Justice, Office of Immigration Litigation, Civil Division, Washington, DC, for Respondent.

Before: AMBRO, CHAGARES, and GREENAWAY, JR., Circuit Judges.

OPINION

CHAGARES, Circuit Judge.

Earl Woodrow Gallimore petitions this Court to review a final order of removal issued by the Board of Immigration Appeals (“BIA”). After finding Gallimore removable, an Immigration Judge (“IJ”) concluded that he is ineligible by law to receive a discretionary waiver of removal. Gallimore appealed to the BIA, challenging only the IJ's waiver determination. The BIA affirmed on alternative grounds that it raised sua sponte, and this petition followed. We will grant the petition and remand to the BIA for further proceedings.

I.

Gallimore is a 48-year-old native and citizen of Jamaica. He entered the United States on August 7, 1993 pursuant to a valid non-immigrant visa. On September 25, 1993, while driving on a New Jersey roadway with a female companion, police officers stopped Gallimore and recovered five pounds of marijuana from the vehicle. Gallimore was detained and questioned, and although he claims that he did not know he had been formally arrested, he appears to have spent three or four days in custody. Joint Appendix (“JA”) 406. On December 3, 1993, a grand jury returned a sealed indictment against Gallimore, charging him with, inter alia, possession with intent to distribute five pounds or more of marijuana, in violation of N.J. Stat. Ann. §§ 2C:35-5a(1) and 2C:35-5b(10)(b). JA 408. Gallimore claims that he was not aware of the indictment at the time it was returned.

On January 12, 1994, Gallimore married a United States citizen. On April 14, 1994, he and his wife filed a joint petition and application for an adjustment of status, seeking that he be reclassified as a lawful permanent resident (“LPR”). On the Form I-485 that Gallimore completed, he answered “no” to the following question: “Have you ever, in or outside the U.S. ... [,] been arrested, cited, charged, indicted, fined, or imprisoned for breaking or violating any law or ordinance ... ?” JA 403. He answered similarly during an interview in support of the application. On July 6, 1994, the Immigration and Naturalization Service (“INS”) approved the application and adjusted Gallimore's status to LPR on a conditional basis. See 8 U.S.C. § 1186a. ¹

On November 13, 1994, Gallimore was arrested on the still-pending indictment. He claims that this was the first time he learned of the drug charges against him. Though he originally pleaded not guilty, Gallimore ultimately reversed course and entered a guilty plea on March 10, 1995. JA 406-07. He was sentenced to time served-six days, which included the three or four days he appears to have served after being detained in September 1993. JA 406.

On April 1, 1996, Gallimore and his wife filed a petition to have the conditions on his LPR status removed. JA 399-400. On the Form I-751 filed in support of the petition, he answered “no” to the following question: “Since becoming a conditional resident, have you ever been arrested, cited, charged, indicted, convicted, fined, or imprisoned for breaking or violating any law or ordinance[?]” JA 400. Gallimore claims that his wife completed the form without knowing about his conviction. He admits, however, that he signed the form. The INS approved the petition on August 22, 1996. JA 399.

Five years later, on December 17, 2001, Gallimore applied for naturalization. JA 395-98. For the first time, he disclosed on the citizenship application his 1993 arrest, his 1995 conviction, and his sentence. JA 397. On July 11, 2005, because of the conviction and his previous failure to disclose it, Gallimore's application for citizenship was denied for poor moral character.

On April 3, 2006, United States Citizenship and Immigration Services (“CIS”) issued Gallimore a Notice to Appear (“NTA”) (and later supplemented it), charging him as removable pursuant to three statutory provisions of the Immigration and Nationality Act (“INA”), codified at 8 U.S.C. § 1101, et seq. First, the NTA charged Gallimore as removable under 8 U.S.C. § 1227(a)(1)(A) for being, at the time of re-entry or adjustment of status, within a class of inadmissible aliens. Specifically, the NTA alleged that Gallimore was inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i) for having engaged in fraud or willful misrepresentation of a material fact to obtain admission, documentation, or other benefit under the INA. Second, the NTA charged Gallimore as removable under § 1227(a)(2)(A)(iii) for having been convicted of an aggravated felony. Third, the NTA charged Gallimore as removable under § 1227(a)(2)(B)(i) for having been convicted of a qualifying controlled substance violation. JA 457. ² Regarding the first charge of removability, the amended NTA alleged:

You procured your admission, visa, adjustment, or other documentation or benefit by fraud or by willfully misrepresenting a material fact, to wit: You failed to admit, on your I-485 application that was submitted on 4/14/94 and while being questioned under oath by a Service Officer on 6/30/94, and on your I-751 form that was executed by you on April 1, 1996 ..., to your prior drug trafficking activities that occurred on December 3, 1993 ^{[ 3 ]} as is evidenced by an indictment against you and your admission of guilt before the New Jersey Superior Court to a charge in that indictment. Those misrepresentations were made by you in order to have the Service grant you permanent resident status.

JA 414. Gallimore denied removability and the factual allegations supporting the charges. He also applied for cancellation of removal, waiver of removal, and termination or closure of the proceedings. The IJ held five days of removal proceedings, during which Gallimore testified. Among other things, he claimed that he had been detained for only one and one-half or two hours on September 25, 1993, and that he did not understand at the time that he had been arrested. JA 150-51.

In an oral opinion, the IJ found that the Government had proved by clear and convincing evidence that Gallimore was removable on all three charged grounds. JA 83-84. With respect to the charge of removability based on Gallimore's misrepresentations, the IJ found that he had willfully failed to disclose his 1993 arrest on both the Form I-485 and the Form I-751, and during his June 30, 1994 interview. JA 84. She found further that Gallimore had willfully failed to mention the conviction on the Form I-751 submitted to remove the conditions on his LPR status. Id. The IJ rejected Gallimore's intimation “that anyone other than [himself] bore responsibility for these omissions.” JA 85. The IJ concluded that Gallimore had made the misrepresentations “so he could maintain his eligibility for these application[s] because clearly if he had revealed th [e] conviction he would not have been eligible for the benefits he was seeking.” Id. She “was not persuaded by [Gallimore's] self-serving testimony that he was the innocent dupe in all of these filings with false information [.]” JA 88.

Turning to Gallimore's requested bases for relief from removal, the IJ denied termination and administrative closure of the removal proceedings. JA 86-87. She also pretermitted his application for cancellation of removal, as 8 U.S.C. § 1229b(b)(1)(C) clearly rendered him ineligible for such relief. JA 87-88. Finally-and central to this petition-the IJ held that Gallimore was not eligible for a waiver under former INA § 212(c) “because he did not obtain his permanent residence without willfully misrepresenting [a] material fact.” JA 87. Citing Matter of T---, 6 I. & N. Dec. 136 (BIA 1954), the IJ concluded that Gallimore had never been “ ‘lawfully’ admitted as a lawful permanent resident”-a necessary prerequisite for § 212(c) relief-because he had obtained his original status adjustment through willful misrepresentation. JA 87. The IJ therefore denied the waiver application and issued an order of removal. JA 78-79.

Gallimore timely appealed to the BIA, challenging only the IJ's waiver analysis. The BIA affirmed the IJ's order on alternative grounds and dismissed the appeal. JA 2-3. The BIA agreed with the IJ's ultimate conclusion that Gallimore had not been “lawfully admitted for permanent residence” under § 212(c), and that he was therefore ineligible for a waiver. But it did so on the basis that his 1995 conviction alone precluded such relief. Without referencing Gallimore's initial 1994 status adjustment, the BIA explained:

[T]he respondent's 1995 drug conviction clearly rendered him inadmissible to the United States under [8 U.S.C. § 1182(a)(2)(A)(i)(II) ] as it then existed. This inadmissibility rendered the respondent statutorily ineligible for adjustment of status because it precluded him from demonstrating that he was “admissible to the United States for permanent residence,” as required by [8 U.S.C. § 1255(a)(2) ].... Thus, although the respondent's status was adjusted to that of a lawful permanent resident in 1996 in compliance with procedural formalities, he was never “lawfully” admitted for permanent residence within the meaning of former [§ ] 212(c) of the Act because at the time of adjustment he could not satisfy the substantive legal requirements associated with that status.

JA 2-3. In support of its explanation, the BIA cited decisions from the Courts of Appeals for the Second, Fifth, Eighth, Ninth, and Eleventh Circuits, as well as two of its own decisions. JA 3. Given its holding, the...