Mahmood v. Sessions, 16-1438

Decision Date22 February 2017
Docket NumberNo. 16-1438,16-1438
Citation849 F.3d 187
Parties Riaz MAHMOOD, Petitioner, v. Jefferson B. SESSIONS III, Attorney General, Respondent.
CourtU.S. Court of Appeals — Fourth Circuit

ARGUED: Bradley Bruce Banias, BARNWELL, WHALEY, PATTERSON, AND HELMS, LLC, Charleston, South Carolina, for Petitioner. Tiffany L. Walters, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, Anthony C. Payne, Assistant Director, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Before NIEMEYER, TRAXLER, and DIAZ, Circuit Judges.

Petition denied by published opinion. Judge Niemeyer wrote the opinion, in which Judge Traxler and Judge Diaz joined.

NIEMEYER, Circuit Judge:

Riaz Mahmood, a native and citizen of Pakistan who was granted asylum in the United States in 1997, voluntarily applied in 2011 for adjustment of his asylum status to the status of a lawful permanent resident, pursuant to 8 U.S.C. § 1159(b). His application was granted in 2012. The Attorney General thereafter sought to deport Mahmood for having, over the years, obtained several immigration benefits by fraud.

The immigration judge found by clear and convincing evidence that Mahmood deliberately misrepresented material facts in order to obtain travel documents and his lawful permanent resident status and ordered that Mahmood be removed from the United States to Pakistan.

The Board of Immigration Appeals ("BIA") affirmed, rejecting Mahmood's argument that he could not be removed unless his asylum status had first been terminated pursuant to 8 U.S.C. § 1158(c). Mahmood argued that, as an "adjusted asylee," he "retain[ed] the protections of asylum after obtaining [lawful permanent] residency, and therefore [could] not be removed without first having asylum terminated via the procedures outlined in [§ 1158(c)(2) ] and 8 C.F.R. § 1208.24." In rejecting Mahmood's argument, the BIA relied on its precedential decision in Matter of C-J-H- , 26 I. & N. Dec. 284 (BIA 2014), which held that aliens who adjust to lawful permanent resident status under § 1159(b) do not retain their asylum status.

On appeal, we conclude that the BIA's interpretation of § 1159(b) is the best interpretation of the statute and that, in any event, it deserves deference under Chevron , USA , Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Accordingly, we affirm the BIA's decision and deny Mahmood's petition for review.

I

Some nine years after Mahmood was granted asylum in the United States, he applied in March 2006 for a refugee travel document in order to leave the country, stating that he sought to travel to Bangkok, Thailand, to visit his wife and children. In his application, Mahmood indicated that, since being granted asylum in 1997, he had neither returned to Pakistan nor "applied for and/or obtained a national passport, passport renewal or entry permit" from Pakistan. As it turned out, however, Mahmood had departed the United States in March 2003 using a Pakistani passport and reentered the United States in July 2005 using a U.S. visa. The Department of Homeland Security ("DHS") was unaware of Mahmood's 2003 trip and granted Mahmood's application for the refugee travel document in July 2006. Mahmood then departed the United States in February 2007 using a Pakistani passport with a number different from that which he had used in 2003 and returned in July 2007 using his U.S.-issued refugee travel document.

In December 2007, Mahmood applied for another refugee travel document, again purportedly to visit his wife and children in Bangkok, and, as in his first application, he denied having returned to Pakistan or having obtained or renewed a Pakistani passport since his grant of asylum. While his application for this second refugee travel document was pending, Mahmood departed the United States using the same Pakistani passport that he had used on his 2007 trip and returned a few months later, using the second refugee travel document that had since been granted.

Mahmood left the United States for a fourth time in March 2009, using a Pakistani passport with yet a third number. Mahmood claims that he traveled to Dubai, where he met his wife and children, and that they subsequently flew to Russia, Cuba, and finally Mexico, where he tried to bring his family across the border with the intent that they would apply for asylum in the United States "because their lives were in danger in Pakistan." He and his family were apprehended after crossing into the United States, and, in August 2009, the DHS charged Mahmood with removability on the ground that he had entered the country without inspection.

While that charge was pending, Mahmood filed a Form I-485 application in August 2011, seeking to adjust his asylee status to that of lawful permanent resident, pursuant to 8 U.S.C. § 1159(b). In his application, Mahmood certified under the penalty of perjury that he had never "by fraud or willful misrepresentation of a material fact, ever sought to procure, or procured, a visa, other documentation, entry into the United States, or any immigration benefit." He further certified that he had never "knowingly encouraged, induced, assisted, abetted, or aided any alien to try to enter the United States illegally." While this application was pending, the DHS dropped the illegal entry charge against him and subsequently, in December 2012, granted his application for adjustment to the status of a lawful permanent resident.

In September 2013, however, the DHS commenced another removal proceeding against Mahmood, alleging that he had sought to procure an immigration benefit by fraud or by willful misrepresentation of a material fact. Specifically, the DHS claimed that Mahmood's alleged misrepresentations regarding his unreported travel and possession of Pakistani passports made him inadmissible at the time of his application for adjustment, which in turn rendered him removable under the Immigration and Nationality Act ("INA"). See 8 U.S.C. §§ 1182(a)(6)(C)(i), 1227(a)(1)(A).

An immigration judge held a removal hearing and found that the DHS had proven, by clear and convincing evidence, that Mahmood had obtained his lawful permanent resident status and his two refugee travel documents by fraud. Specifically, the immigration judge found that Mahmood's travel pattern "represented a concerted effort by him to avoid using his authorized travel documents to return to Pakistan, which he denied was his intention when he applied for them," and that his use of three Pakistani passports showed that he made misrepresentations on his application for travel documents. The immigration judge also found that Mahmood was ineligible for a waiver of inadmissibility under 8 U.S.C. § 1159(c). As a result, the judge ordered that Mahmood be removed to Pakistan.

Mahmood appealed the immigration judge's decision to the BIA, at first on the sole ground that the immigration judge had erred in denying his application for waiver of inadmissibility. After Mahmood filed his initial brief, however, the Fifth Circuit issued a decision finding that the INA was ambiguous as to whether an asylee who adjusted his status to lawful permanent resident could be removed without first having his asylum status terminated under § 1158(c) and remanding the case to the BIA to resolve that question in the first instance. See Ali v. Lynch , 814 F.3d 306, 312 (5th Cir. 2016). Relying on that decision, Mahmood filed a supplemental brief before the BIA, arguing that because he "retained his asylum status" after his adjustment to lawful permanent resident status, the immigration judge erred in ordering his removal without first conducting an asylum termination proceeding under 8 U.S.C. § 1158(c).

With a one-member decision, the BIA rejected Mahmood's arguments and dismissed his appeal. As relevant here, it held that the immigration judge properly ordered Mahmood's removal without first conducting an asylum termination proceeding. The BIA relied on its precedential decision in Matter of C-J-H- , 26 I. & N. Dec. 284, in which it had concluded that "aliens whose status was adjusted from asylee to lawful permanent resident no longer qualify as asylees," id. at 285, and it "declined to revisit [that] decision."

From the BIA's order dated March 29, 2016, Mahmood filed this petition for review.

II

Mahmood contends that even though he applied for and obtained the status of a lawful permanent resident, "he is still an asylee," and, as an asylee, he has "the right to not be returned to a country where [he] would be persecuted, threatened, or harmed." He argues that this treaty-based right is recognized and preserved in 8 U.S.C. § 1158(c), which provides that "in the case of an alien granted asylum ... the Attorney General ... shall not remove or return the alien to the alien's country of nationality" unless his asylum status is first terminated. See also 8 C.F.R. § 1208.22 (providing that "[a]n alien who has been granted asylum may not be deported or removed unless his or her asylum status is terminated pursuant to procedures set forth in 8 C.F.R. § 1208.24"). Mahmood's argument thus rests on his claimed continuing status as an asylee and the statutory requirement that the Attorney General cannot terminate the status of an asylee without pursuing the procedure set forth in § 1158(c) and in the regulations promulgated under it. Because the Attorney General has not pursued those procedures, he argues, he cannot now be deported, and the BIA erred as a matter of law in concluding otherwise.

The government does not dispute Mahmood's recital of law relating to asylees. Rather, it argues, because of Mahmood's voluntary action of changing his status from an alien granted asylum to a lawful permanent resident under § 1159(b), he is no longer an asylee with rights under § 1158....

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