Salem v. Holder

• Decision Date: 24 May 2011
• Docket Number: No. 10–1078.,10–1078.
• Citation: 647 F.3d 111
• Parties: Jad George SALEM, Petitioner,v.Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

647 F.3d 111

Jad George SALEM, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 10–1078.

United States Court of Appeals, Fourth Circuit.

Argued: March 23, 2011.Decided: May 24, 2011.

ARGUED: Simon Yehuda Sandoval–Moshenberg, Lichtman & Elliot, PC, Washington, D.C., for Petitioner. Daniel I. Smulow, United States Department of Justice, Washington, D.C., for Respondent. ON BRIEF: Thomas A. Elliot, Fabienne Chatain, Thomas H. Tousley, Elliot & Mayock, Washington, D.C., for Petitioner. Tony West, Assistant Attorney General, Civil Division, Mark C. Walters, Senior Litigation Counsel, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.Before TRAXLER, Chief Judge, and KING and DIAZ, Circuit Judges.Affirmed by published opinion. Judge DIAZ wrote the opinion, in which Chief Judge TRAXLER and Judge KING joined.

OPINION

DIAZ, Circuit Judge:

This appeal arises from entry of an order of removal under section 237(a)(2)(A)(ii) of the Immigration and Nationality Act (“INA”). The Board of Immigration Appeals (“BIA”) found petitioner removable and ineligible for cancellation of removal. Petitioner concedes removability but contests the eligibility ruling. Because petitioner has not satisfied his statutorily prescribed burden of demonstrating eligibility, we affirm.

I.

A.

Petitioner Jad George Salem is a lawful permanent resident of the United States. Leaving territory then belonging to Jordan, Salem legally entered this country in 1966. The land from which he emigrated is now controlled by Israel and the Palestinian Authority, and Salem asserts that he is stateless as a result of this transfer of sovereignty.

Salem has amassed a substantial criminal record while in the United States. Central to this appeal is Salem's 2007 felony conviction for petit larceny (third subsequent) under Va.Code Ann. § 18.2–96.¹ Following entry of a guilty plea pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) ², Salem's sentence was enhanced in accordance with Va.Code Ann. § 18.2–104, which punishes a third or subsequent larceny offense as a felony.

B.

On January 3, 2008, the U.S. Department of Homeland Security filed a Notice to Appear, initiating removal proceedings against Salem. The government alleged that Salem was removable under two separate statutory provisions: 8 U.S.C. § 1227(a)(2)(A)(ii), for having been convicted of two or more crimes involving moral turpitude; and 8 U.S.C. § 1227(a)(2)(A)(iii), for having been convicted of an aggravated felony under 8 U.S.C. § 110 1(a)(43)(G), specifically “a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment [is] at least one year.”

At a hearing before the immigration judge (“IJ”), Salem conceded that he was removable for having been convicted of two or more crimes involving moral turpitude. However, he challenged the government's contention that an aggravated-felony conviction justified his removal, and the IJ agreed.

The IJ concluded that the Virginia larceny statute under which Salem was convicted was divisible, in that it criminalized both wrongful and fraudulent takings of property, with the latter offense not constituting an “aggravated felony” under the INA. The IJ looked to our decision in Soliman v. Gonzales, 419 F.3d 276 (4th Cir.2005), to support this determination. There, we held that “theft” for purposes of the INA does not include fraud, because fraud lacks the “without consent” element of the taking that is essential to a finding of theft. Id. at 282–83. Drawing on this holding and looking to the divisible nature of the statute, the IJ reasoned that production of some evidence was necessary to ascertain whether Salem had been convicted of theft or merely fraud. According to the IJ, the government's proffer of the record of conviction “establish[ed] the bare fact of conviction” but failed to reveal whether the conviction was for fraud or theft. J.A. 20. As a result, the IJ determined that the government had failed to meet its burden of demonstrating by clear and convincing evidence that Salem had been convicted of an aggravated felony.

Although Salem conceded removability for having been convicted of two or more crimes involving moral turpitude, he sought relief in the form of cancellation of removal. The IJ denied relief, ruling that Salem had failed to carry his burden of showing by a preponderance of the evidence that he had not been convicted of an aggravated felony.

Salem appealed the IJ's ineligibility ruling to the BIA, which affirmed. Like the IJ, the BIA determined that Salem had not satisfied his burden of showing that he was eligible for cancellation of removal. Salem presented no evidence to establish that his larceny conviction was for conduct falling outside the scope of the INA's definition of an “aggravated felony.” As the BIA concluded, “any lingering uncertainty that remains after consideration of the conviction record necessarily inures to the detriment of the party who bears the burden of proof.” J.A. 7. Salem now appeals the BIA's decision.³

II.

The INA employs a burden-shifting scheme in removal proceedings. The government must establish removability in the first instance. 8 U.S.C. § 1229a(c)(3)(A). It sustains its burden by presenting “clear and convincing evidence that, in the case of an alien who has been admitted to the United States, the alien is deportable.” ⁴ Id.

But a removability finding does not end the matter. The INA offers noncitizens several forms of relief to resist actual removal, including cancellation of removal. A noncitizen is eligible for cancellation of removal if he “(1) has been an alien lawfully admitted for permanent residence for not less than 5 years, (2) has resided in the United States continuously for 7 years after having been admitted in any status, and (3) has not been convicted of any aggravated felony.” Id. § 1229b(a) (emphasis added). Even if a noncitizen demonstrates eligibility, the Attorney General retains discretion to deny relief. Id.

Important for purposes of this appeal, at the relief stage the noncitizen bears the burden of establishing eligibility. 8 C.F.R. § 1240.8(d). Thus “[i]f the evidence indicates that one or more of the grounds for mandatory denial of the application for relief may apply, the alien shall have the burden of proving by a preponderance of the evidence that such grounds do not apply.” Id.

Congress in the REAL ID Act of 2005 affirmed the vitality of this burden-shifting framework. Pub.L. No. 109–13, 119 Stat. 231. In particular, it sought to underscore that the noncitizen bears the burden at the relief stage. H.R. Rep. 109–72, at 94, 2005 U.S.C.C.A.N. 240 (2005) (Conf.Rep.). Congress appended provisions to the INA to accomplish this objective. Of great relevance here, a new statutory section provided that “[a]n alien applying for relief or protection from removal has the burden of proof to establish that the alien [ ] satisfies the applicable eligibility requirements.” 8 U.S.C. § 1229a(c)(4)(A).

III.

We review legal questions de novo. Mbea v. Gonzales, 482 F.3d 276, 279 (4th Cir.2007). Although we ordinarily accord deference to the BIA's interpretation of INA provisions, such deference is unwarranted where, as here, the text is unambiguous. See INS v. Aguirre–Aguirre, 526 U.S. 415, 425, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999).

In this case, Salem's 2007 Virginia state record of conviction for petit larceny encompasses the elements of an offense that may qualify as an aggravated felony. Salem nevertheless contends that a noncitizen satisfies his burden of proof to demonstrate that he has not been convicted of an aggravated felony by presenting an inconclusive, though complete, record of conviction.

We find, however, that the BIA's ruling denying Salem's request for relief from removal was faithful to the plain meaning of the statutory text governing eligibility for cancellation of removal. Salem's arguments to the contrary ignore Congress's burden-shifting framework. Accordingly, we affirm.

A.

Salem's arguments suffer from a debilitating flaw: all gloss over the relevant statutory provisions. Yet we cannot so easily avoid the pellucid dictates of Congress, and application of its mandate convinces us that Salem has not carried his burden of demonstrating eligibility for discretionary relief.

Elementary principles of statutory construction command a court to enforce the unambiguous terms of a duly enacted statute. As we recently wrote, our “inquiry [begins and] ends with the plain language ... unless the language is ambiguous.” Markovski v. Gonzales, 486 F.3d 108, 110 (4th Cir.2007). After concluding that Congress has clearly expressed its will on the face of a statutory provision, courts must not superimpose outside constructs on the clear text. Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253–54, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992). “[C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there. When the words of a statute are unambiguous, then, this first canon is also the last: judicial inquiry is complete.” Id. (citations and internal quotations omitted).

Applying these principles to interpretation of the INA's relief provisions, the Tenth Circuit has held that presentation of an inconclusive record of conviction is insufficient to satisfy a noncitizen's burden of proof to show eligibility for cancellation of removal. Garcia v. Holder, 584 F.3d 1288, 1289–90 (10th Cir.2009). In Garcia, the petitioner had pleaded guilty to assault and conceded removability. Id. at 1289. The petitioner and the government agreed that the record of conviction was inconclusive as to whether the petitioner had been convicted of a crime involving moral turpitude, which would bar him from seeking discretionary relief. Id. The parties disputed, however, which “side [may] claim[ ] the...