Martinez v. Mukasey

• Decision Date: 11 March 2008
• Docket Number: No. 06-60063.,06-60063.
• Citation: 519 F.3d 532
• Parties: Jose MARTINEZ, Petitioner, v. Michael B. MUKASEY, U.S. Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

519 F.3d 532

Jose MARTINEZ, Petitioner, v. Michael B. MUKASEY, U.S. Attorney General, Respondent.

No. 06-60063.

United States Court of Appeals, Fifth Circuit.

March 11, 2008.

Thomas Edward Moseley (argued), Law Offices of Thomas E. Moseley, Newark, NJ, for Martinez.

Robert N. Markle (argued), Thomas Ward Hussey, Dir., Linda Susan Wendtland, U.S. Dept. of Justice, OIL, Washington, DC, Trey Lund, U.S. Imm. & Customs Enforcement, Field Office Dir., Attn: Carl Perry, New Orleans, LA, for Mukasey.

On Petition for Review of an Order of the Board of Immigration Appeals.

Before KING, BARKSDALE and DENNIS, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge.

After Jose Martinez was convicted of bank fraud, in violation of 18 U.S.C. § 1344, the United States sought to remove him, pursuant to § 237(a)(2)(A)(iii) of the Immigration and Nationality Act (INA), as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). 8 U.S.C. § 1227(a)(2)(A)(iii). Ruling the bank-fraud conviction constitutes an aggravated felony, the immigration judge (IJ) sustained the removability charge and denied Martinez statutory eligibility for a waiver of inadmissibility. Both on direct appeal and in denying a joint motion to reconsider, the Board of Immigration Appeals (BIA) agreed with the IJ. Martinez maintains: his bankfraud conviction is not an aggravated felony; and, in the alternative, he is eligible to seek a discretionary waiver of inadmissibility. DENIED IN PART; GRANTED IN PART; REMANDED.

I.

Born in Argentina, Martinez, at age twelve, was admitted to the United States as a non-immigrant visitor in 1980. Ten years after that admission (entry), he adjusted his status, under amnesty provisions of INA § 245A, to that of a lawful permanent resident. Martinez married an American citizen, in 2000, by whom he has two children.

Both before and after he became married, Martinez worked as an accounts-receivable clerk at a real-estate management firm in New York. In that employment, Martinez illegally took checks and money orders, altered the payees, and deposited the instruments in personal accounts he maintained. Martinez both withdrew, and wrote checks against, those funds.

In June 2001, when his criminal actions were discovered, Martinez pleaded guilty in New York district court to one count of bank fraud, in violation of 18 U.S.C. § 1344. He was sentenced that December to serve five months in prison, followed by five months of home detention and supervised release. Martinez was also ordered to pay approximately $313,000 in restitution.

After Martinez served his five-month prison term (but before he served any of his home detention), Customs officials took him into custody and instituted removal proceedings. The requested removal was premised on the assertion that Martinez had committed an aggravated felony, as defined by INA § 101(a)(43)(M)(i), and was therefore removable under INA § 237(a)(2)(A)(iii). The INA has numerous definitions for what constitutes an "aggravated felony". One is found in the above-referenced subsection (a)(43)(M)(i): an aggravated felony is an offense involving "fraud or deceit in which the loss to the victim or victims exceeds $10,000". 8 U.S.C. § 1101(a)(43)(M)(i). (Martinez does not contest that the loss exceeded $10,000.)

Martinez was transferred to a detention facility in Oakdale, Louisiana, for removal proceedings. There, an IJ held a hearing on removal vel non.

In February 2003, the IJ sustained removability, on the basis that Martinez had been convicted of an "aggravated felony". It ruled: "By the very terms of [18 U.S.C. § 1344], fraud is an element of the offense."

The IJ also ruled Martinez was ineligible to seek relief under INA § 212(h). It allows the Attorney General, in his discretion, to waive certain enumerated criminal grounds for inadmissibility for qualifying aliens. 8 U.S.C. § 1182(h). (Receiving that waiver would enable Martinez to seek to obtain adjustment of status as the spouse of a United States citizen under INA § 245.)

Concerning § 212(h), the IJ ruled that Martinez' underlying conviction's being an aggravated felony precluded a waiver of inadmissibility. In that regard, the IJ rejected Martinez' contention that the statutory bar for § 212(h) relief did not apply, finding In re Rosas-Ramirez, 22 I. & N. Dec. 616 (BIA 1999) (en banc), controlling.

The IJ also rejected Martinez' claim to United States nationality pursuant to his voluntary registration in 1987 for military service in this country. Conceding the nationality issue is foreclosed, Martinez does not raise it here.

In July 2003, by a brief opinion, the BIA agreed with the IJ's ruling that Martinez' § 1344 conviction constituted an aggravated felony. The BIA also found In re Rosas controlling on eligibility vel non for the § 212(h) waiver of inadmissibility.

Following the BIA decision, instead of filing a petition for review to this court, Martinez applied for habeas relief in New York district court, pursuant to 28 U.S.C. § 2241. Martinez v. Ashcroft, No. 03-CV-4328 (E.D.N.Y.2003). After briefing and oral argument, however, the parties submitted a joint motion for reconsideration to the BIA. (It is not clear why the parties jointly sought reconsideration; the record and Martinez' counsel at oral argument here suggest the original BIA decision insufficiently addressed the presented issues.) As a result, this matter was remanded to the BIA, and Martinez was released from the Oakdale facility pending removal.

In April 2004, the BIA denied reconsideration, concluding that neither party "identified additional legal arguments, a change in the law or an argument or aspect of the case that was overlooked". Nevertheless, the BIA also reaffirmed, in far greater detail, its previous aggravated-felony determination and rejection of § 212(h) eligibility. (This greater detail may have resulted from the Government's joining Martinez' motion to reconsider.)

Following the BIA's second ruling, Martinez' New York district-court habeas application was not acted on until 31 May 2005, when his application was transferred to the Second Circuit, pursuant to § 106(c) of the REAL ID Act, Pub.L. No. 109-13, § 106(c), 119 Stat. 231, 310-11 (2005). In November 2005, the Second Circuit granted the Government's motion to transfer this matter to our court.

II.

Under REAL ID Act § 106(c), because Martinez' habeas application was pending on 11 May 2005, it is treated as a timely petition for review of the BIA's order, without the jurisdictional 30-day period for filing such petitions.

[A]ll collateral proceedings pending on May 11, 2005, when the REAL ID Act took effect, and transferred to courts of appeals under § 106(c), must be treated as timely petitions for review, no matter how long it has been since the Board rendered its decision. Collateral proceedings filed on or after May 11, however, will be dismissed outright; the window for belated judicial review has closed.

Medellin-Reyes v. Gonzales, 435 F.3d 721, 723-24 (7th Cir.2006); see also Rosales v. Bureau of Immigration & Customs Enforcement, 426 F.3d 733, 736 (5th Cir.2005) (per curiam); Pub.L. No. 109-13, § 106, 119 Stat. 231, 302-23 (codified in part at 8 U.S.C. § 1252(a)(2)(D)).

Martinez presents two alternative bases why he should be granted relief: he is not removable because his bank-fraud conviction is not an aggravated felony, as that term is defined under INA § 101(a)(43); and he is eligible to seek a discretionary waiver of inadmissibility under INA § 212(h). As discussed infra, because both issues present questions of law, our review is de novo. E.g., Ramirez-Molina v. Ziglar, 436 F.3d 508, 513 (5th Cir.2006).

A.

The BIA ruled Martinez removable for committing an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii). The REAL ID Act amended 8 U.S.C. § 1252(a)(2)(C) to preclude judicial review of any removal order based, inter alia, on an alien's commission of an aggravated felony. 8 U.S.C. 1252(a)(2)(C); Hernandez-Castillo v. Moore, 436 F.3d 516, 518-19 (5th Cir.), cert. denied, ___ U.S. ___, 127 S.Ct. 40, 166 L.Ed.2d 18 (2006). The Act provides, however, that none of its provisions "shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review". 8 U.S.C. § 1252(a)(2)(D) (emphasis added).

Martinez presents a question of law: whether his 18 U.S.C. § 1344 bank-fraud conviction was an aggravated felony, as defined by INA § 101(a)(43). Therefore, we are limited initially to determining our jurisdiction; in doing so, we are limited to deciding whether the conviction was an aggravated felony under the INA. James v. Gonzales, 464 F.3d 505, 507 (5th Cir. 2006). If it was, as discussed above, we lack jurisdiction to review the removal decision. (Concerning the removal decision, Martinez contests only whether he committed an aggravated felony; therefore, in deciding jurisdiction, we concomitantly decide the aggravated-felony basis for removal under INA § 227(a)(2)(A)(iii).)

In determining whether Martinez' prior conviction falls within the INA's definition of aggravated felony, we first accord substantial deference, if warranted, to the BIA's interpretation of the INA. Omari v. Gonzales, 419 F.3d 303, 306 (5th Cir. 2005) (quoting Smalley v. Ashcroft, 354 F.3d 332, 335-36 (5th Cir.2003)). Having afforded any necessary deference, we then "review de novo whether the particular statute that the prior conviction is under falls within the relevant INA definition". Id. (citations omitted).

1.

In his opening and reply briefs here, Martinez contended: because bank fraud does not require proof of two common-law elements of fraud—reliance and damage—his bank-fraud conviction is not an offense "involv[ing] fraud or deceit", as required to constitute an aggravated felony under INA § 101(a)(43)(M)(i) (subsection (M)(i)). This assertion, as Martinez' counsel conceded at oral argument here, is...