Kellermann v. Holder

• Citation: 592 F.3d 700
• Decision Date: 25 January 2010
• Docket Number: No. 08-3927.,08-3927.
• Parties: Gottfried KELLERMANN, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

592 F.3d 700

Gottfried KELLERMANN, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 08-3927.

United States Court of Appeals, Sixth Circuit.

Argued: July 30, 2009.

Decided and Filed: January 25, 2010.

ARGUED: Cynthia A. Moyer, Fredrikson & Byron, P.A., Minneapolis, Minnesota, for Petitioner. Sunah Lee, United States Department of Justice, Washington, D.C., for Respondent. ON BRIEF: Cynthia A. Moyer, Sarah C.S. McLaren, Fredrikson & Byron, P.A., Minneapolis, Minnesota, for Petitioner. Sunah Lee, United States Department of Justice, Washington, D.C., for Respondent.

Before NORRIS and COLE, Circuit Judges; ADAMS, District Judge.^*

OPINION

JOHN R. ADAMS, District Judge.

Petitioner Gottfried Kellermann ("petitioner" or "Dr. Kellermann"), a 68-year-old native and citizen of Germany, petitions for review of a final order of removal of the Board of Immigration Appeals ("the BIA" or "the Board").

I.

The petitioner has resided in the United States since 1972. In 1975, he became a lawful permanent resident. In 1992, he was convicted of making false statements to an agency of the United States and conspiracy to defraud the United States in violation of 18 U.S.C. §§ 371 and 1001. In March 2003, he was charged with being inadmissible under § 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act ("INA" or "the Act"), 8 U.S.C. § 1182(a)(2)(A)(i)(I), as an alien convicted of a crime involving moral turpitude ("CIMT"). A final order of removal was entered on July 10, 2008. The BIA affirmed the Immigration Judge's ("IJ") determination that the petitioner is removable and denied him a cancellation of removal.

Dr. Kellermann requests that the court grant his petition and vacate the order of removal. Alternatively, the petitioner requests that the court grant the petition and remand this case to the BIA with instructions that: (1) the petitioner be afforded the opportunity to seek a waiver of inadmissibility under INA § 212(c), 8 U.S.C. § 1182(c) (1994), and (2) the petitioner be permitted to pursue a claim for cancellation of removal under INA § 240A(a).

Dr. Kellermann has a master's degree in philosophy and Ph.D. in biochemistry.

Petitioner was convicted by a jury in the United States District Court for the District of Minnesota of making false statements to an agency of the United States and conspiracy for failure to provide accurate financial records in connection with a grant he received from the government. The convictions were affirmed. U.S. v. Kellermann, 992 F.2d 177 (8th Cir.1993). Other than these convictions, the petitioner has no other criminal history.

Petitioner alleges that he consulted an attorney regarding the immigration consequences of his conviction and decided not to appeal to the Supreme Court of the United States based on the advice he received. Dr. Kellermann was advised that, while his conviction subjected him to exclusion from the United States, he was eligible to pursue a waiver of inadmissibility.

Petitioner challenged the charge that his conviction was a CIMT and filed applications for cancellation of removal and a waiver of inadmissibility under former INA § 212(c). After a hearing, the IJ issued a written decision denying the applications on December 5, 2006. Consequently the IJ ordered Dr. Kellermann removed to Germany.

The IJ found that the petitioner did not demonstrate that his crime was not a CIMT:

The indictment charges respondent of making and conspiring to make a "false, fictitious, and fraudulent material statement" using the conjunctive; therefore, respondent was charged with fraud. See Exhibit 2, at 3, 12 (emphasis added). Furthermore, the conduct alleged in the indictment constitutes fraud. The indictment alleges that respondent submitted a financial status report for the government grant knowing that its contents were false. The indictment also alleges respondent knowingly conspired to submit the false financial status report or to defraud the United States. Both of these counts involve material misrepresentations made with knowledge of their falsity and with the intent to deceive the United States Government.

The IJ also ruled that the petitioner was statutorily ineligible for cancellation of removal under 8 U.S.C. § 1229b(a) since his fraud conviction fell within the "aggravated felony" definition. See INA § 10 1(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i). Furthermore, the IJ determined that the petitioner was not eligible for a waiver under former INA § 212(c) and I.N.S. v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), because he did not enter a guilty plea, but was convicted by a jury.

On July 10, 2008, the BIA dismissed the appeal of the IJ's order of removal. The BIA found the petitioner removable under INA § 212(a)(2)(A)(i)(I), and denied his applications for cancellation of removal and relief under INA § 212(c). The Board determined that "[t]he fraud aspect of [Dr. Kellermann's] conviction is also outlined in the Indictment at pages 3 and 12." Citing the discussion of jury instructions in Kellermann, the BIA also concluded that, "[e]ven considering jury instructions as part of the record of conviction, the conviction involves moral turpitude."

This petition for review followed.

II.

Petitioner challenges the ruling by the BIA that his conviction was for a CIMT. In addition, he argues that the BIA erred as a matter of law in determining that he was ineligible to seek a waiver of inadmissibility under the former INA § 212(c). He also challenges the finding that he was convicted of an aggravated felony and, therefore, is ineligible for cancellation of removal.

A. Standard of Review

The court's review is limited to the Decision of the BIA because it did not adopt the Decision and Order of the IJ. Hazime v. I.N.S., 17 F.3d 136, 140 (6th Cir.1994) ("judicial review is specifically limited to the decision of the BIA").

If, as the BIA held, the petitioner is removable for having committed a CIMT, then the court generally lacks jurisdiction to review his deportation order. See INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C); Sosa-Martinez v. U.S. Atty. Gen., 420 F.3d 1338, 1341 (11th Cir.2005).

An alien is inadmissible if he has been convicted of a CIMT, or an attempt or conspiracy to commit such a crime. See INA § 212(a)(2)(A)(i)(I). We generally accord Chevron deference to the BIA's decisions construing ambiguous statutory terms in the INA, and we must uphold the BIA's construction unless it is "arbitrary, capricious, or manifestly contrary to the statute." Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); Singh v. Gonzales, 451 F.3d 400, 403 (6th Cir.2006); Ali v. Mukasey, 521 F.3d 737, 739 (7th Cir.2008) (the BIA's interpretation of the term "CIMT" is entitled to Chevron deference), cert. denied, ___ U.S. ___, 129 S.Ct. 2853, 174 L.Ed.2d 551 (2009). However, we review de novo whether the elements of a federal crime fit the BIA's definition of a CIMT. Smalley v. Ashcroft, 354 F.3d 332, 336 (5th Cir.2003).

B. Petitioner's Convictions were for CIMT

The dispositive question in this case is whether the petitioner's crimes necessarily involved moral turpitude, and therefore properly serve as the basis for his removability. The exact definition of "`moral turpitude' ... has never been fully settled," but it "refers generally to conduct that is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general." Singh v. Holder, 321 Fed.Appx. 473, 477 (6th Cir. 2009) (quoting Matter of Torres-Varela, 23 I. & N. Dec. 78, 83 (BIA 2001)). "Moral turpitude has been defined as an act which is per se morally reprehensible and intrinsically wrong or malum in se, so it is the nature of the act itself and not the statutory prohibition of it which renders a crime one of moral turpitude." See Matter of Ajami, 22 I. & N. Dec. 949, 950 (BIA 1999). "Among the tests to determine if a crime involves moral turpitude is whether the act is accompanied by a vicious motive or a corrupt mind." Id.

Any crime which involves intent to defraud as one of its elements is a CIMT. Squires v. I.N.S., 689 F.2d 1276, 1278 n. 3 (6th Cir.1982). In ascertaining whether a crime is a CIMT,

we must first examine the statute itself to determine whether the inherent nature of the crime involves moral turpitude. If the statute defines a crime in which moral turpitude necessarily inheres, then the conviction is for a crime involving moral turpitude for immigration purposes, and our analysis ends. However, if the statute contains some offenses which involve moral turpitude and others which do not, it is to be treated as a "divisible" statute, and we look to the record of conviction, meaning the indictment, plea, verdict, and sentence, to determine the offense of which the respondent was convicted.

See Ajami, 22 I. & N. Dec. at 950 (citations omitted); see also Jaadan v. Gonzales, 211 Fed.Appx. 422, 426-27 (6th Cir. 2006).

Petitioner was convicted of violating 18 U.S.C. §§ 371 and 1001. Section 1001 criminalizes making a false statement to a government agency, and section 371 criminalizes conspiracy to make a false statement. Section 371 provided in relevant part:

If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined not more that $10,000 or imprisoned not more than five years, or both.

* * * *

18 U.S.C. § 371 (1992) (emphasis added).

Section 1001 defined the crime of making false statements to an agency of the United States as follows:

Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick,...