Mayorga v. Attorney Gen. United States

• Decision Date: 27 June 2014
• Docket Number: No. 13–2011.,13–2011.
• Parties: Rene Montes MAYORGA, Petitioner v. ATTORNEY GENERAL UNITED STATES of America, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

757 F.3d 126

Rene Montes MAYORGA, Petitioner

v.ATTORNEY GENERAL UNITED STATES of America, Respondent.

No. 13–2011.

United States Court of Appeals,Third Circuit.

Argued: April 8, 2014.

Filed: June 27, 2014.

David R. Fine, Esq., Tad J. MacFarlan, Esq., (Argued) Harrisburg, PA, Attorneys for Petitioner.¹

Eric H. Holder, Jr., Esq., Thomas W. Hussey, Esq., Gary J. Newkirk, Esq., Anthony P. Nicastro, Esq., United States Department of Justice Office of Immigration Litigation, (Argued) Washington, D.C., Attorneys for Respondent.

Before: HARDIMAN, SLOVITER and BARRY Circuit Judges.

OPINION

SLOVITER, Circuit Judge.

This case gives this court another opportunity to analyze the meaning of a Crime Involving Moral Turpitude (“CIMT”), a provision of the Immigration and Nationality Act (“INA”), INA § 212(a)(2)(A)(i)(I); 8 U.S.C. § 1182(a)(2)(A)(i)(I).² Before we reach that issue, we must decide whether the Immigration Judge (“IJ”), as affirmed by the Board of Immigration Appeals (“BIA”), was correct in finding that Petitioner Rene Montes Mayorga (“Mayorga”) had violated a statute that categorically involves moral turpitude by firearms dealing without a license, thereby rendering him inadmissible for life.³ Assuming the IJ is correct in her determination that Mayorga is inadmissible for life under that statute, we must next consider whether that determination results in an “adverse consequence” for Mayorga, even though he is otherwise inadmissible and removable on the basis of an uncontested ground. Finally, if we do decide that the IJ erred in finding that Mayorga had committed a CIMT and agree with the appellant that the CIMT finding would result in an adverse consequence so that this case presents an Article III, § 2 case or controversy, we must determine whether to decide the legal issue ourselves or to remand this case to the BIA. We turn to consider these difficult issues.

I.

Mayorga is a native of El Salvador. He entered the United States as a teenager in 1988 without inspection and without being paroled. Though there is some dispute about the exact events triggering Mayorga's flight to the United States, it is clear that a desire to flee the then on-going civil war in El Salvador was a precipitating cause. Mayorga filed an application for asylum in 1995, and has had work authorization since that time.⁴ He is married to a U.S. citizen and has five children under the age of fifteen—three biological children and two step-children. All of the children are U.S. citizens.

On June 16, 2010, Mayorga pled guilty in the United States District Court for the Northern District of California to engaging in the unlicensed business of firearms dealing, in violation of 18 U.S.C. §§ 922(a)(1)(A) and (a)(2). See App. 8. Mayorga was sentenced to forty-six months in prison for the offense, eventually serving only seven months of the sentence in federal prison in California. On February 24, 2012, the day he was released from prison, the Department of Homeland Security (“DHS”) served Mayorga with a notice to appear (“NTA”) before an IJ for removal proceedings under INA § 240. The NTA alleged that Mayorga was inadmissible, and therefore removable from the United States on two grounds: first, under INA § 212(a)(6)(A)(i); 8 U.S.C. § 1182(a)(6)(A)(i), as an alien present in the United States without having been admitted or paroled, and second, for having been convicted of a CIMT under INA § 212(a)(2)(A)(i)(I). Mayorga's conviction relating to the unlicensed business of firearms dealing was the basis for the CIMT charge. DHS determined that Mayorga should be detained during the proceedings and he was held in a detention center in Newark, New Jersey during his removal proceedings. Mayorga remains detained pending removal in the Etowah County Detention Center in Gadsen, Alabama, pursuant to INA § 241(a)(2); 8 U.S.C. § 1231(a)(2).

At his removal hearing before the IJ, Mayorga conceded his removability under INA § 212(a)(6)(A)(i) as an alien present in the United States without having been admitted or paroled, but contested his removability for having been convicted of a CIMT. Mayorga also applied for cancellation of removal, voluntary departure, asylum, withholding of removal, and withholding of removal under the Convention Against Torture (“CAT”). The IJ denied each of Mayorga's applications. She noted Mayorga's conceded removability under INA § 212(a)(6)(A)(i), and held that Mayorga had been convicted of a crime which was categorically a CIMT. The IJ denied Mayorga's application for cancellation of removal on the ground that Mayorga had been convicted of an offense under INA § 212(a)(2) (crimes involving moral turpitude). INA § 240A(b)(1)(C); 8 U.S.C. § 1229b(b)(1)(C).⁵ The IJ held that because Mayorga had been imprisoned for seven months, he could not meet the “person of good moral character” requirement for voluntary departure. INA § 240B(b)(1)(B); 8 U.S.C. § 1229c(b)(1)(B). The IJ also denied Mayorga's applications for asylum, withholding of removal, and withholding of removal under the CAT.⁶

Mayorga appealed the IJ's denial of cancellation of removal on the basis that he had been convicted of a CIMT to the BIA. The BIA issued a brief opinion which did not discuss whether Mayorga's crime was categorically a CIMT, but which did agree with the IJ that Mayorga's conviction did render him ineligible for cancellation of removal. See App. 22–25. Mayorga appealed the BIA's decision to this court.

II.

The Attorney General argues that because Mayorga is concededly removable on the uncontested charge as an alien present in the United States without being admitted or paroled, we should not reach the question of whether his conviction is a CIMT. (Appellee's Br. at 13) Inasmuch as the question of the justiciability of Mayorga's claim is a threshold issue, we need to discuss it before turning to the subsequent questions. At the outset, we recognize that Mayorga conceded that he was removable as an alien present in the United States without having been admitted or paroled; moreover, his term of imprisonment prevents him from meeting the “good moral character” standards for cancellation of removal and voluntary departure. Mayorga thus faces removal and a ten-year bar on returning to the United States regardless of whether his conviction was for a crime which is categorically a CIMT. INA § 212(a)(9)(A)(ii)(I), (II); 8 U.S.C. § 1182(a)(9)(A)(ii)(I), (II).⁷ Therefore, even if we decide that Mayorga's conviction was not for a crime which is categorically a CIMT, our interpretation of a CIMT will not have an immediate impact on his ability to remain in or return to the United States. The government, however, contends that any decision we might issue in this case is a disfavored advisory opinion. We do not agree.

The Supreme Court has held that “collateral consequences” can justify a suit when the consequences would lead to “concrete and continuing injury.” See Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998). Injuries that are merely speculative could not justify suit in cases such as this one, where the most immediate and direct harm that flows from a CIMT conviction—removal from the United States—would apply anyway. Although Mayorga would be inadmissible for a significant period of time on the basis of either ground for removal, the additional harm caused by a lifetime ban, as opposed to a ten-year bar, is certainly “concrete and continuing,” meeting the standard set out in Spencer. Furthermore, there is nothing “speculative” about the difference between a lifetime ban and a ten-year bar.

The significant, concrete, and continuing detriment that Mayorga faces if we approve the IJ's determination that his crime was categorically a CIMT refutes the government's contention that any ruling on this matter would be a mere advisory opinion. As noted, if the crime Mayorga was convicted of is categorically a CIMT, he faces a potential lifetime ban on admissibility to the United States. INA § 212(a)(2)(A)(i)(I).⁸ In contrast, if Mayorga is “merely” removable for being present in the United States without having been admitted or paroled, he would be eligible to seek admission after ten years. INA § 212(a)(9)(A)(ii). The difference between these scenarios is not speculative.⁹

Mayorga also easily meets the requirement set out in Lewis v. Continental Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990), that “a litigant must ... be threatened with[ ] an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision” (citations omitted). Here Mayorga is threatened with a lifetime ban on reentry to the United States—surely an “actual injury”—which would be traceable to the IJ's decision on the CIMT charge, and would be redressable by a favorable decision from this court. As the Supreme Court has elsewhere noted, when “the plaintiff is himself an object of the action ... at issue.... there is ordinarily little question that the action ... has caused him injury, and that a judgment preventing or requiring the action will redress it.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561–62, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).¹⁰

The government further contends that any harm to Mayorga is made “less concrete and more tenuous” by the fact that he could apply for a waiver of inadmissibility. While such a waiver is conceivably possible, see INA § 212(h); 8 U.S.C. § 1182(h), it is completely discretionary. Discretionary decisions by the Attorney General in this area are not subject to judicial review. INA § 242(a)(2)(B)(i). The bare possibility of a waiver cannot, therefore, render the harm to Mayorga “tenuous.” The government also suggests that any harm Mayorga might face is “remote and tenuous” because any possible return to the United States by Mayorga would be conditional on his obtaining a visa. Although it is true that Mayorga would need to obtain a visa to re-enter the United States, the...