Ishmael v. Attorney Gen.
| Decision Date | 15 May 2023 |
| Docket Number | 21-2563 |
| Parties | VAMUSA KOSH ISHMAEL, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA |
| Court | U.S. Court of Appeals — Third Circuit |
Argued on January 18, 2023
On Petition for Review of a Final Order Of the Board of Immigration Appeals (BIA No.: A072-803-370) Immigration Judge: Alice Song Hartye
Benjamin J. Hooper (Argued)
Pennsylvania Immigration Resource Center
Counsel for Petitioner
Lindsay Marshall (Argued)
United States Department of Justice
Office of Immigration Litigation
Ben Franklin Station
Counsel for Respondent
Jonah B. Eaton (Argued)
Nationalities Service Center
Counsel for Amicus-Petitioner
Before: AMBRO, [*] PORTER, and FREEMAN, Circuit Judges
Ishmael Kosh[1] petitions us to review the order from the Board of Immigration Appeals ("BIA") that terminated his asylum status and denied his applications for withholding of removal and protection under the Convention Against Torture. He maintains that the Department of Homeland Security ("DHS") improperly sought to terminate his asylum status in asylum-only proceedings because he first entered the United States under the Visa Waiver Program. Per Kosh, that limiting program no longer applies to him, so he is entitled to completejurisdiction removal proceedings instead. In such unlimited proceedings, asylees can raise an adjustment-of-status claim as a defense to removal. We conclude that, if Kosh re-entered the country as an asylee without signing a new Visa Waiver Program form limiting his defenses, he is entitled to completejurisdiction proceedings. We thus grant his petition for review, vacate the BIA's decision, and remand for further proceedings consistent with this opinion.
Kosh, a Liberian citizen, arrived in the United States in 2001 with a false Portuguese passport and requested entry under the Visa Waiver Program ("VWP"). It allows noncitizens from designated countries-including Portugal, but not Liberia-to seek admission for up to 90 days as nonimmigrant visitors without obtaining a visa. 8 U.S.C. § 1187(a). All VWP entrants must sign a Visa Waiver Form in which they "waive[] any right . . . to contest, other than on the basis of an application for asylum, any action for removal of the alien." Id. § 1187(b)(2). Signing this waiver form is mandatory each time someone seeks entry through the VWP (even if the individual already signed one on a previous trip). See Form I-94W Nonimmigrant Visa Waiver Arrival/Departure Record, U.S. Customs and Border Protection, https://www.cbp.gov/sites/default/files/assets/documents/201 8-Mar/700120%20-%20CBP%20Form%20I-94W%20ENG%20%281216%29%20-20FINAL%20%28SAMPLE%29.pdf (last visited Apr. 28, 2023) ("This form must be completed by every nonimmigrant visitor not in possession of a visitor's visa who is a national of one of the countries enumerated in 8 C.F.R. [§] 217."). When Kosh arrived in 2001, he signed upon arrival the waiver as part of his Form I-94W.
Kosh then confessed his Portuguese passport was fake and sought asylum. His matter was referred to an immigration judge ("IJ") pursuant to 8 C.F.R. § 208.2(b), which affords IJs jurisdiction over asylum applications by VWP entrants. Although Kosh ultimately did not qualify for VWP entry because his Portuguese passport was fake, he was still restricted to the VWP's asylum-only proceedings based on his initial application for entry through that program. See Shkembi v. Att'y Gen., 41 F.4th 237, 242 (3d Cir. 2022).[2]
In his asylum application, Kosh claimed he feared returning to Liberia, which at the time had an ongoing civil war. Because his family members were involved with the United Liberation for Democracy political party, they faced significant violence and other dangers. His father had been murdered and Kosh himself was arrested before escaping prison and fleeing to the United States. The IJ granted Kosh asylum on March 1, 2001. Over the next few years, he lived in the United States as an asylee, married his wife, and had four children. He left the country in 2005 using his refugee travel document and apparently re-entered later that year.
In 2006, Kosh became involved with a tax fraud conspiracy. He worked as a manager and tax preparer for a sham tax service company that filed false information on its clients' tax returns to increase their refunds. The company then kept the additional refund amounts for itself and passed on a lower amount to its clients. Kosh played a large role in the conspiracy. He was involved for its full duration, was a manager or supervisor to five or more other participants in the criminal activity, recruited customers, and even started a new sham tax preparation business after the initial scheme was shut down.
In 2016, a jury convicted Kosh of conspiracy to defraud the United States, in violation of 18 U.S.C. § 371, and filing false and fraudulent income tax returns, in violation of 26 U.S.C. § 7206(2). (He was acquitted of identity theft and one count of filing false and fraudulent income tax returns.) Kosh received concurrent sentences of 52 months and 36 months in prison and was ordered to pay over $239,000 in restitution, jointly and severally, with his co-defendants.
Between his arrest and conviction, the United States Citizenship and Immigration Services ("USCIS") denied Kosh's application to adjust his status to that of a lawful permanent resident. See 8 C.F.R. § 1209.2. He was statutorily eligible to apply because he had lived in the United States as an asylee for over a year and, although his criminal convictions could make him ineligible for adjustment of status, DHS can waive that ground of inadmissibility "for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest." 8 U.S.C. § 1159(c). Kosh's denial was "without prejudice to the alien's right to renew the application in [removal] proceedings under part 240 of this chapter." 8 C.F.R. § 1209.2(f).
Then, in 2020, DHS moved to reopen Kosh's old asylum-only proceeding from 2001 to terminate his asylum status, given his criminal conviction. An IJ in Texas granted that motion. He then transferred venue to York, Pennsylvania (based on Kosh's place of confinement) for a hearing on DHS's motion to terminate his asylee status. Kosh, through counsel, moved to terminate the proceedings because the Court had, in his view, inappropriately reopened asylum-only proceedings. He maintained that DHS, instead of reopening his earlier proceedings, should have filed removal proceedings under 8 U.S.C. § 1229a, which would have allowed him to seek adjustment of status. The type of proceeding Kosh sought, which is set out in 8 U.S.C. § 1229a, is also called a "§ 240 proceeding" because the statute was created under section 240 of the Immigration and Nationality Act ("INA").
On September 30, 2020, the IJ denied Kosh's motion to terminate. She held that, because another IJ had previously granted him asylum in limited proceedings, DHS properly moved to reopen those proceedings to terminate his asylee status. Further, she ruled that the Court lacked jurisdiction in the limited proceeding to decide an adjustment-of-status application and could only consider Kosh's application for fear-based relief.
Kosh applied for all three types of fear-based relief: asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). On December 21, 2020, after a merits hearing, the IJ terminated Kosh's asylee status and denied his applications for relief. She held that his convictions were aggravated felonies under 8 U.S.C. § 1101(a)(43)(M)(i) () and (a)(43)(U) (conspiracy to commit an aggravated felony). Kosh was thus no longer eligible for asylum or withholding of removal. 8 U.S.C. § 1158(b)(2)(A)(ii); 8 U.S.C. § 1231(b)(3)(B)(ii). In addition, the IJ denied the CAT application on the merits. Overall, she found that conditions in Liberia had changed since the civil war and that relief was not due based on Kosh's ethnicity, Muslim faith, or alleged threats against him.
Kosh filed a pro se appeal to the BIA.[3] It rejected his arguments that (1) the IJ erred in denying his motion to terminate and in placing him in asylum-only proceedings, (2) his convictions are neither aggravated felonies nor particularly serious crimes, and (3) he met his burden of proof for CAT relief.[4] Kosh, through new counsel, filed before us a petition for review and a motion for a stay of removal pending review. Dkt. Nos. 1, 2. Our Court granted the stay. Dkt. No. 16.
The BIA had jurisdiction under 8 C.F.R. § 1003.1(b). We have jurisdiction under 8 U.S.C. § 1252.
We review the final administrative decision of the BIA. Camara v. Att'y Gen., 580 F.3d 196, 201 (3d Cir. 2009). Legal determinations get a fresh review. Serrano-Alberto v. Att'y Gen., 859 F.3d 208, 213 (3d Cir. 2017). For factual determinations, we are bound by findings of fact that are supported by substantial evidence "unless a reasonable adjudicator would be compelled to arrive at a contrary conclusion." Id. at 212-13.
Kosh argues we should vacate the BIA's order of removal because (1) the Government did not meet its burden of showing he committed an aggravated felony to terminate his grant of asylum, and (2) it improperly placed him in asylum-only proceedings, depriving him of the opportunity to raise a claim for adjustment of status to lawful permanent resident in defense of removal. Though his first argument fails, if Kosh re-entered the country as an asylee and did not agree to any new waiver of defenses, he is correct that he is entitled to an unrestricted removal proceeding that will allow...
To continue reading
Request your trial