Higgins v. Holder

• Decision Date: 19 April 2012
• Docket Number: No. 11–924(ag).,11–924(ag).
• Citation: 677 F.3d 97
• Parties: Albert Lloyd HIGGINS, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

677 F.3d 97

Albert Lloyd HIGGINS, Petitioner,

v.Eric H. HOLDER, Jr., United States Attorney General, Respondent.

No. 11–924(ag).

United States Court of Appeals, Second Circuit.

Submitted: Feb. 7, 2012.Decided: April 19, 2012.

Carlton L. Hume, Hume Law Firm, LLC, Hartford, Conn., for Petitioner (on submission).

Tony West, Assistant Attorney General; Leslie McKay, Assistant Director; Kristofer R. McDonald, Trial Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for Respondent (on submission).

Before: KATZMANN and CARNEY, Circuit Judges, and RESTANI,^* Judge.

Judge KATZMANN concurs in a separate opinion.

PER CURIAM:

Petitioner Albert Lloyd Higgins petitions for review of a February 11, 2011 decision issued by the Board of Immigration Appeals (the “BIA” or the “Board”) denying his requests for cancellation of removal under 8 U.S.C. § 1229b(a) and a waiver of inadmissibility under 8 U.S.C. § 1182(h). In order to resolve this appeal, we must determine whether a conviction for witness tampering under Connecticut General Statutes (“CGS”) § 53a–151 constitutes an “offense relating to obstruction of justice” within the meaning of 8 U.S.C. § 1101(a)(43)(S), a definitional section of the Immigration and Nationality Act (“INA”) listing the various “aggravated felon[ies]” that may disqualify a petitioner from various forms of relief. For the reasons explained herein, we conclude that a conviction under CGS § 53a–151 constitutes an “offense relating to obstruction of justice,” and we therefore dismiss the petition for review.

BACKGROUND

Albert Lloyd Higgins (“Higgins” or “petitioner”), a native and citizen of Jamaica, was admitted to the United States as a lawful permanent resident in April 1987. On May 4, 2001, Higgins was convicted, following a jury trial, of one count of tampering with a witness in violation of CGS § 53a–151. The conviction stemmed from allegations that Higgins sexually assaulted a minor and later instructed her that, if she talked to the police, she should tell them that “nothing ever happened.” See State v. Higgins, 74 Conn.App. 473, 811 A.2d 765, 768 (2003). The jury acquitted Higgins of the underlying sexual-assault charges, but found him guilty of witness tampering, for which crime Higgins was sentenced principally to five years' incarceration, execution suspended after one year. Id. Higgins appealed his conviction, arguing, inter alia, that the trial court improperly denied his motions for a judgment of acquittal notwithstanding the verdict and for a new trial because the guilty verdict on the witness tampering charge was inconsistent with the judgment of acquittal on the sexual-assault charges. Id. The Appellate Court of Connecticut affirmed Higgins's conviction in a published decision dated January 7, 2003. Id.

In November 2008, Higgins applied for admission, and was admitted, to the United States at Miami International Airport as a returning lawful permanent resident. On March 9, 2009, the Department of Homeland Security served Higgins with a Notice to Appear (“NTA”) in immigration proceedings, charging him with removability under 8 U.S.C. § 1182(a)(2)(A)(i)(I) as an alien convicted of a crime involving moral turpitude. On May 28, 2009, Higgins submitted a written pleading denying the allegation concerning his criminal conviction and denying he was removable as charged. He also indicated his intent to seek termination of his immigration proceedings, cancellation of removal, adjustment of status and, in the alternative, voluntary departure. In hearings held before an immigration judge (“IJ”) on June 30, 2009 and September 8, 2009, Higgins conceded that his conviction constituted a crime involving moral turpitude, but argued that it did not constitute an aggravated felony. He also indicated his intent to apply for a waiver of inadmissibility under § 212(h) of the INA, 8 U.S.C. § 1182(h).

On September 30, 2009, the IJ denied Higgins's applications for relief and ordered him removed to Jamaica. Employing the analytical framework set forth by the BIA in its precedential decision In re Espinoza–Gonzalez, 22 I. & N. Dec. 889 (BIA 1999) (en banc), the IJ concluded that Higgins's conviction under CGS § 53a–151 constitutes an offense “relating to obstruction of justice,” an aggravated felony rendering Higgins ineligible for cancellation of removal and a waiver of inadmissibility. Higgins appealed to the BIA, which affirmed the IJ's decision on February 11, 2011. Like the IJ, the BIA applied the reasoning of Espinoza–Gonzalez and concluded that a conviction under CGS § 53a–151 meets the definition of “an offense relating to obstruction of justice.” On March 9, 2011, Higgins filed a timely petition for review in this Court, and this appeal followed.

DISCUSSION

In his petition, Higgins argues that his conviction for violating CGS § 53a–151 does not constitute an “offense relating to obstruction of justice” within the meaning of 8 U.S.C. § 1101(a)(43)(S), and that he did not in fact obstruct justice as that term is defined under federal law. The Attorney General counters that: (1) this Court should defer to the BIA's reasonable interpretation of “an offense relating to obstruction of justice” as set forth in Espinoza–Gonzalez; (2) Higgins's conviction for witness tampering under CGS § 53a–151 constitutes an “offense relating to obstruction of justice”; and (3) Higgins may not use this appeal to collaterally attack his witness-tampering conviction.

I. Jurisdiction and Standard of Review

Under the REAL ID Act of 2005, Pub.L. No. 109–13, Div. B, 119 Stat. 231, 302, we lack jurisdiction to review “any final order of removal against an alien who is removable by reason of having committed [certain drug and aggravated felony] offense[s].” 8 U.S.C. § 1252(a)(2)(C). We retain jurisdiction, however, to review the legal question of whether a conviction underlying an order of removal, or the denial of relief from an order of removal, constitutes an aggravated felony. See 8 U.S.C. § 1252(a)(2)(D); Oouch v. U.S. Dep't of Homeland Sec., 633 F.3d 119, 121 (2d Cir.2011). “The inquiry determines our jurisdiction: If [the] conviction is an aggravated felony, we must dismiss the petition for lack of jurisdiction; if not, we may exercise jurisdiction and [review the petition].” Oouch, 633 F.3d at 121. Accordingly, the jurisdictional issue merges with the merits, and we are therefore required to consider Higgins's substantive argument that his Connecticut conviction is not an aggravated felony under the INA. See Mugalli v. Ashcroft, 258 F.3d 52, 55 (2d Cir.2001).

Under the circumstances of this case, it is well-established that we review the IJ's decision as supplemented by the BIA as the final agency determination. See Mufied v. Mukasey, 508 F.3d 88, 90 (2d Cir.2007) (“When the BIA adopts the decision of the IJ and supplements the IJ's decision or emphasizes particular aspects of it, we review the IJ's decision as supplemented by the BIA as the final agency determination.”). We defer to the factual findings of the BIA and the IJ if they are supported by substantial evidence, and we review de novo legal conclusions and the application of legal principles to undisputed facts. Id. at 91.

II. Applicable Law: The INA's Definition of “Aggravated Felony” and Our Categorical Approach

A conviction for an “aggravated felony” renders Higgins ineligible for both cancellation of removal and a waiver of inadmissibility. See 8 U.S.C. § 1229b(a); 8 U.S.C. § 1182(h). The INA defines the term “aggravated felony” to include, as relevant here, “an offense relating to obstruction of justice, perjury or subornation of perjury, or bribery of a witness, for which the term of imprisonment is at least one year.” 8 U.S.C. § 1101(a)(43)(S). In this case, there is no question that Higgins was convicted of an offense “for which the term of imprisonment is at least one year.” See United States v. Pacheco, 225 F.3d 148, 153–54 (2d Cir.2000) (construing the phrase “for which the term of imprisonment is at least one year” to refer to the actual sentence imposed rather than the authorized minimum term). Accordingly, if a conviction for witness tampering under CGS § 53a–151 constitutes an “offense relating to obstruction of justice,” we must dismiss Higgins's petition.

In order to determine whether a conviction under CGS § 53a–151 “relat[es] to obstruction of justice,” we apply a categorical approach “that looks to the elements of the penal statute rather than the particulars of the alien's conduct.” Oouch, 633 F.3d at 122; see also Taylor v. United States, 495 U.S. 575, 601–02, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990); Dickson v. Ashcroft, 346 F.3d 44, 48 (2d Cir.2003). Under this analysis, “[w]e must ask whether every set of facts violating a statute satisfies the criteria for removability, keeping in mind that only the minimum criminal conduct necessary to sustain a conviction under a given statute is relevant.” Abimbola v. Ashcroft, 378 F.3d 173, 176 (2d Cir.2004) (internal citations, quotation marks, and alterations omitted).

III. Deference to the BIA's Decision in In re Espinoza–Gonzalez

The meaning of the phrase “relating to obstruction of justice” presents a question of first impression in this Circuit. The BIA, however, has issued a precedential opinion analyzing its meaning. In Espinoza–Gonzalez, the BIA considered whether the federal crime of misprision of a felony ¹ constitutes an offense relating to obstruction under section 101(a)(43)(S) of the INA. 22 I. & N. Dec. at 889. The BIA looked to the chapter of the federal criminal code entitled “Obstruction of Justice” to guide its interpretation of the phrase, which is not specifically defined in the United States Code. Id. at 891. The BIA reasoned that, “[i]n general, the obstruction of justice offenses listed in 18 U.S.C. §§ 1501– 1518 have as an element interference with the proceedings of a tribunal or require an intent to...