Rodriguez v. Gonzales

• Citation: 451 F.3d 60
• Decision Date: 07 June 2006
• Docket Number: Docket No. 05-4521-ag.
• Parties: Reynaldo RODRIGUEZ, also known as Alejandro Perez, also known as Reynaldo Perez, also known as Cruz Reynaldo Rodriguez, Petitioner, v. Alberto GONZALES, Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 60

451 F.3d 60

Reynaldo RODRIGUEZ, also known as Alejandro Perez, also known as Reynaldo Perez, also known as Cruz Reynaldo Rodriguez, Petitioner, v. Alberto GONZALES, Attorney General, Respondent.

Docket No. 05-4521-ag.

United States Court of Appeals, Second Circuit.

Submitted: May 1, 2006.

Decided: June 7, 2006.

M. Nawaz Wahla, Hartford, CT, for Petitioner.

Patricia L. Buchanan, Assistant United States Attorney (Michael J. Garcia, United States Attorney for the for the Southern District of New York, on the brief; Kathy S. Marks, Assistant United States Attorney, of counsel), New York, NY, for Respondent.

Before NEWMAN and STRAUB, Circuit Judges, and BRIEANT, District Judge.^*

PER CURIAM.

Petitioner Cruz Reynaldo Rodriguez ("Rodriguez") (A79 076 873), a native and citizen of the Dominican Republic, petitions for a review of a July 28, 2005, decision of the Board of Immigration Appeals ("BIA") affirming the February 17, 2004, decision of the Immigration Judge ("IJ") Michael W. Straus ordering Rodriguez's removal from the United States finding him ineligible for cancellation of removal under 8 U.S.C. § 1229b(b), and denying his application for adjustment of status under 8 U.S.C. § 1255(a). We hold that: (1) 18 U.S.C. § 1542 is a crime involving moral turpitude; (2) Rodriguez's conviction renders him ineligible for cancellation of removal; and (3) Rodriguez is inadmissible and precluded from adjustment of status because he fraudulently represented himself to be a United States citizen.

BACKGROUND

The facts of this case are not in dispute. Rodriguez entered the United States on a visitor's visa on December 14, 1986. After he arrived, a friend introduced Rodriguez to an unidentified man who claimed to be an attorney able to help Rodriguez obtain citizenship. Rodriguez gave this man $1,500 and his Dominican passport. Within a month, the man provided Rodriguez with an American passport, a Social Security card, and a New York City birth certificate.

In 1990, Rodriguez was seriously injured, and following his recovery, he returned to the Dominican Republic. While Rodriguez was outside the country, his young daughter damaged his passport. Rodriguez obtained a new passport from the United States embassy in Santo Domingo.

In 1992, Rodriguez moved his family back to the United States and remained here for ten years. In 2002, Rodriguez noticed that his passport was about to expire, and on May 9, 2002, he sent in a renewal application that included his expired passport and the birth certificate indicating that he was born in New York City.

On January 9, 2003, a grand jury indicted Rodriguez with one count of violating 18 U.S.C. § 1542 (Making a False Statement in an Application for a Passport). The government placed him into removal proceedings in March 2003. On July 22, 2003, Rodriguez conceded that, although he had been admitted, he had overstayed the temporary visa he received on December 14, 1986. On October 15, 2003, he pleaded guilty to violating 18 U.S.C. § 1542.

Rodriguez contested his deportation, arguing that he was eligible for cancellation of removal or adjustment of status. The IJ rejected these claims and found that the conviction under section 1542 rendered him statutorily ineligible for both types of relief. The IJ held that Rodriguez was ineligible for adjustment of status because he could not establish admissibility as required by 8 U.S.C. § 1255(a) because he had falsely represented himself to be a citizen. See 8 U.S.C. § 1182(a)(6)(C)(ii)(I). The IJ also held that Rodriguez's conviction under section 1542 was a crime involving moral turpitude ("CIMT") and that, therefore, he was statutorily precluded from establishing eligibility for cancellation of removal. See 8 U.S.C § 1229b(b)(1)(C) (excluding from eligibility for cancellation of removal aliens convicted of a crime under 8 U.S.C. § 1182(a)(2), which includes CIMTs).

Rodriguez appealed to the BIA, which summarily affirmed the IJ's decision in a one-paragraph opinion. He filed a timely petition for review of the BIA's decision.

DISCUSSION

The main issue on appeal is whether section 1542 is a CIMT under section 1182(a)(2)(A)(i)(I). We hold that it is, and that, therefore, the IJ correctly denied Rodriguez's application for cancellation of removal under section 1229b(b). We further hold that the IJ properly held that Rodriguez was inadmissible under section 1182(a) because he had "falsely represented, himself or herself to be a citizen of the United States for any purpose or benefit under this chapter ... or any other Federal or State law." 8 U.S.C. § 1182(a)(6)(C)(ii)(I). As a result, Rodriguez is statutorily ineligible for adjustment of status. See 8 U.S.C. § 1255(a) (requiring admissibility as a perquisite for adjustment of status).

I. Jurisdiction

Where, as here, the BIA adopts the IJ's findings and reasoning, we review the decision of the IJ as if it were that of the BIA. Chun Gao v. Gonzales, 424 F.3d 122, 124 (2d Cir.2005). The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. No. 104-208, 110 Stat. 3009-546 (1996), provides in relevant part that "no court shall have jurisdiction to review any judgment regarding the granting of relief under section 1182(h), 1182(i), 1229b [cancellation of removal], 1229c, or 1255 [adjustment of status] of this title." 8 U.S.C. § 1252(a)(2)(B)(i).

Although we have no jurisdiction to review the IJ's discretionary determinations concerning either cancellation of removal or adjustment of status, see 8 U.S.C. § 1252(a)(2)(B)(i), we retain jurisdiction to review nondiscretionary decisions regarding either form of relief, see Sepulveda v. Gonzales, 407 F.3d 59, 62-63 (2d Cir.2005). Obtaining either adjustment of status or cancellation of removal is a two-step process. First, an alien must prove eligibility by showing that he meets the statutory eligibility requirements. See Mariuta v. Gonzales, 411 F.3d 361, 365 (2d Cir.2005); Drax v. Reno, 338 F.3d 98, 113 (2d Cir. 2003). Second, assuming an alien satisfies the statutory requirements, the Attorney General in his discretion decides whether to grant or deny relief. See Mariuta, 411 F.3d at 365; Drax, 338 F.3d at 113.

Because these two stages are distinct, we have jurisdiction to review whether the BIA correctly determined that the alien was eligible for either cancellation of removal or adjustment of status, see Mariuta, 411 F.3d at 367 (noting that where the ground for denial of relief is either unclear or based on a nondiscretionary ground IIRIRA's jurisdiction stripping provision does not apply). Although the Attorney General retains discretion, as the Supreme Court stated in INS v. St. Cyr, "[e]igibility that [is] governed by specific statutory standard provide[s] a right to a ruling on an applicant's eligibility even though the actual granting of relief [is] not a matter of right under any circumstances but rather is in all cases a matter of grace." 533 U.S. 289, 307-08, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (internal quotation marks omitted) (holding that AEDPA and IIRIRA did not strip the district court of habeas jurisdiction to address a challenge to the Executive's failure to exercise discretion authorized by law).

Here, the IJ held that Rodriguez failed to meet the requirements of either section 1229b(b)(1)(C) because he had been convicted of a CIMT or section 1255(a)(2) because he was inadmissible. These are nondiscretionary judgements regarding Rodriguez's eligibility for discretionary relief, and, therefore, we have jurisdiction to review both. See Sepulveda, 407 F.3d at 62-63.

II. Cancellation of Removal

A nonpermanent resident in removal proceedings may be eligible for cancellation of removal if he or she:

(A) has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application (B) has been a person of good moral character during such period;

(C) has not been convicted of an offense under section 1182(a)(2), 1227(a)(2), or 1227(a)(3) of this title, subject to paragraph (5); and

(D) establishes that removal would result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.

8 U.S.C. § 1229b(b) (emphasis added). Section 1182 includes "a crime involving moral turpitude ... or an attempt or conspiracy to commit such a crime." 8 U.S.C. § 1182(a)(2)(A)(i)(I). Section 1182 provides for certain exceptions not relevant here. See 8 U.S.C. § 1182(2)(A)(i)(II).

We afford Chevron deference to the BIA's construction of undefined statutory terms such as "moral turpitude" because of the BIA's expertise applying and construing the immigration laws. See Gill v. INS, 420 F.3d 82, 89 (2d Cir.2005) (citing 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)). Because the BIA has no particular expertise in construing federal and state criminal statutes, we review de novo the BIA's finding that a particular crime of conviction falls within its definition of a CIMT. Gill, 420 F.3d at 89; Michel v. INS, 206 F.3d 253, 262 (2d Cir.2000). Our review, however, is circumscribed by the BIA's "categorical" approach to whether an offense qualifies as a CIMT, which focuses the inquiry on "the intrinsic nature of the offense rather than on the factual circumstances surrounding any particular violation." Gill, 420 F.3d at 89 (quoting Dalton v. Ashcroft, 257 F.3d 200, 204 (2d Cir. 2001)).

The BIA has explained that the term "moral turpitude" generally encompasses:

conduct that shocks the public conscience as being inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general. Moral turpitude has been defined as an act which is per se morally reprehensible and...