K.A. v. Attorney Gen. of the U.S.

• Decision Date: 04 May 2021
• Docket Number: No. 17-3640,17-3640
• Citation: 997 F.3d 99
• Parties: K.A., Petitioner v. ATTORNEY GENERAL OF the UNITED STATES of America
• Court: U.S. Court of Appeals — Third Circuit

997 F.3d 99

K.A., Petitioner

v.ATTORNEY GENERAL OF the UNITED STATES of America

No. 17-3640

United States Court of Appeals, Third Circuit.

Argued: January 14, 2020

Filed: May 4, 2021

Miguel A. Estrada, Matthew S. Rozen [Argued], Gibson Dunn & Crutcher, 1050 Connecticut Avenue, N.W., Washington, DC 20036, Counsel for K.A.

Allison Frayer [Argued], Anthony J. Messuri, United States Department of Justice, Office of Immigration Litigation, P.O. Box 878, Ben Franklin Station, Washington, DC 20044, Counsel for the Attorney General of the United States of America

Before: HARDIMAN, PORTER, and PHIPPS, Circuit Judges.

OPINION OF THE COURT

PHIPPS, Circuit Judge.

This petition to review a motion to reopen decade-old immigration proceedings turns on a single legal issue: whether a conviction from 2000 for second-degree New Jersey robbery, see N.J. Stat. Ann. § 2C:15-1, constitutes an aggravated felony "theft offense" under the Immigration and Nationality Act, as amended, see 8 U.S.C. § 1101(a)(43)(G). It does. From that conclusion, everything else falls into place. An aggravated felony theft offense constitutes a "particularly serious crime." Id. §§ 1158(b)(2)(B)(i), 1231(b)(3)(B). And commission of such a crime disqualifies an alien from seeking asylum. See id. § 1158(b)(2)(A)(ii). Similarly, a conviction for a particularly serious crime coupled with a prison sentence of at least five years, which petitioner received, bars withholding of removal. See id. § 1231(b)(3)(B)(ii). Because asylum and withholding are the only forms of relief sought in this case, we will deny the petition.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

In 1994, K.A., a citizen of Nigeria, entered the United States without admission or parole. He settled in New Jersey, and in 1997, he married a woman who was a United States citizen. He also began to commit a series of crimes. Those offenses included second-degree robbery under N.J. Stat. Ann. § 2C:15-1 and third-degree possession with intent to distribute a controlled substance within 1,000 feet of a school under N.J. Stat. Ann. § 2C:35-7. For the robbery, K.A. received a sentence of ten years, and for the drug crime, five years. Those sentences ran concurrently, and K.A. was incarcerated from 2002 until his parole in 2008.

K.A.’s release from custody would only be temporary, as incarceration became the norm for him over the next decade. Shortly after his parole, in August 2008, the U.S. Department of Homeland Security ("DHS") detained K.A. after it commenced removal proceedings against him. In 2010, however, while those proceedings were ongoing, K.A. was released on bond and began a relationship with a woman who was not his wife. After they were together for almost a year, in April 2011, K.A. was pulled over for driving under the influence in a car rented in her name. A search of that car revealed potential evidence of fraud, and a federal grand jury in New Jersey later indicted K.A. on multiple counts of using inmates’ personal information to submit fraudulent tax returns and receive tax refunds. As a result, K.A. began criminal pretrial detention in April 2011.

During that time, his immigration proceedings ran their course. K.A. conceded removability, but still sought asylum, withholding of removal, and relief under the Convention Against Torture. He premised those requests for relief on Decree 33, a Nigerian law that authorized prosecutions for drug convictions abroad. The Immigration Judge initially found K.A. ineligible for asylum and withholding due to his drug conviction but granted him CAT deferral. After DHS administratively appealed that decision (K.A. did not appeal), the BIA found error with the CAT deferral analysis and remanded that issue. On remand, the Immigration Judge denied CAT deferral. K.A. administratively appealed that decision but to no avail. The BIA affirmed that ruling and issued a final order of removal. This Court denied K.A.’s subsequent petition for review of that final order.

Although he remained in criminal pretrial custody throughout those removal proceedings, several other developments occurred. In 2014, Nigeria enacted the Same Sex Marriage (Prohibition) Act. That law criminalized same-sex marriage, same-sex cohabitation as sexual partners, as well as other conduct, such as public displays of same-sex affection. Also in 2014, K.A. began a sexual relationship with his male cellmate, and the two had over fifteen sexual encounters until the cellmate's release in mid-2015. More than a year later, in December 2016, and after he had been in criminal pretrial detention going on six years, K.A. realized that he had "always felt attracted to men" and that his "identity as a bisexual man [was] permanent." Affidavit of K.A. (AR156).

Soon after, on January 25, 2017, the federal district court in New Jersey dismissed K.A.’s criminal charges for lack of a speedy trial. K.A. was then transferred from criminal custody to immigration custody pending his removal, which was scheduled for August 2017. But he never boarded his return flight.

Shortly before his scheduled departure, on July 28, 2017, K.A. filed a motion with the BIA to reopen his immigration proceedings. In that motion, K.A. sought asylum and withholding of removal. He premised those requests on changed country conditions in Nigeria (the Same Sex Marriage (Prohibition) Act) coupled with his changed personal circumstances (bisexuality). Specifically, he asserted that under intervening Supreme Court decisions – Moncrieffe v. Holder , 569 U.S. 184, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013), and Mathis v. United States , ––– U.S. ––––, 136 S. Ct. 2243, 195 L.Ed.2d 604 (2016) – his prior New Jersey drug conviction no longer qualified as an aggravated felony (and thus it was not a particularly serious crime). Without that designation, K.A. argued that he was eligible for asylum and withholding. K.A. also presented other arguments, including that his circumstances were exceptional enough that the BIA should sua sponte reopen his proceedings. Through a supplemental filing, K.A. requested CAT protection due to his expressed fear that he "would be subjected to harassment and torture due to the unfavorable opinion Nigerians hold toward members of the LGBT community." Form I-589 at 5 (Aug. 15, 2017) (AR51).

The pendency of K.A.’s motion to reopen did not automatically stay his removal. He was transported to Arizona for a chartered flight to Nigeria, and while there, shortly before his scheduled deportation, he moved to stay his removal for the pendency of his motion to reopen. The BIA denied his request. K.A. then petitioned for review in both the Third and Ninth Circuits. Before this Court denied his request, the Ninth Circuit issued a temporary stay of removal pending a decision on the stay motion. That court eventually dismissed the petition for lack of jurisdiction and vacated the temporary stay, but only after K.A. had returned to immigration custody in New Jersey instead of boarding the flight to Nigeria.

Almost three months later, the BIA denied K.A.’s motion to reopen. In that decision, the BIA first determined that K.A. was ineligible for asylum and withholding. But rather than assessing whether K.A.’s drug conviction remained a particularly serious crime under intervening Supreme Court precedent, the BIA instead examined the significance of K.A.’s second-degree robbery conviction. And relying on a non-precedential opinion, the BIA determined that second-degree robbery in New Jersey ‘ "clearly constitutes an aggravated felony’ theft offense." BIA Decision at 1 (Nov. 22, 2017) (AR3) (parenthetically quoting Briolo v. Att'y Gen. , 515 F. App'x 126, 128 n.3 (3d Cir. 2013) ). Because an aggravated felony theft offense is a particularly serious crime, see 8 U.S.C. §§ 1158(b)(2)(B)(i), 1231(b)(3)(B), the BIA concluded that K.A. was ineligible for asylum or withholding. As for K.A.’s request for CAT protection, the BIA determined that the motion was untimely on the theory that K.A. did not demonstrate material changes in country conditions. (That conclusion, if correct, would justify the BIA's denial of K.A.’s entire motion to reopen.) The BIA closed its decision with two summary statements: (i) that K.A. did not make a prima facie showing of eligibility for any of the relief he requested, and (ii) that K.A. did not establish an exceptional circumstance warranting sua sponte reopening.

K.A. timely petitioned for review of the BIA's order while in immigration detention, bringing the matter within this Court's jurisdiction. See 8 U.S.C. § 1252(a)(1). K.A. also moved for a stay of removal, and this Court granted that request.

In his briefs, K.A. challenges four aspects of the BIA's order denying his motion to reopen. First, he argues that his robbery conviction is not an aggravated felony theft offense – a conclusion that would render him eligible for asylum and withholding. Second, he disputes the BIA's assessment that the treatment of LGBT persons in Nigeria had not materially changed. From there, K.A. asserts that he demonstrated a prima facie case for asylum and withholding of removal – but he does not make such an argument for CAT deferral. Finally, he contends that the BIA erred in declining to sua sponte reopen his proceedings. After he submitted his opening brief, K.A. was released on bond from immigration detention.

II. DISCUSSION

Through his petition, K.A. seeks to vacate the BIA's denial of his motion to reopen so that he can pursue asylum and withholding of removal on remand. But if he is ineligible for those forms of relief, then his petition cannot succeed. He must therefore prevail on his first argument – that his second-degree robbery conviction does not disqualify him from asylum and withholding. However, on de novo review, see Ng v. Att'y Gen. , 436 F.3d 392, 395 (3d Cir. 2006), K.A.’s robbery conviction constitutes an aggravated felony. And under the circumstances, that bars him from both asylum and withholding of removal....