Seepersad v. Sessions

• Decision Date: 08 June 2018
• Docket Number: August Term, 2016,Docket No. 16-64
• Citation: 892 F.3d 121
• Parties: Ashram SEEPERSAD, Petitioner, v. Jefferson B. SESSIONS III, United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

892 F.3d 121

Ashram SEEPERSAD, Petitioner,

v.Jefferson B. SESSIONS III, United States Attorney General, Respondent.

Docket No. 16-64

August Term, 2016

United States Court of Appeals, Second Circuit.

Argued: June 28, 2017

Decided: June 8, 2018

Rion Latimore, Minneapolis, MN, for Petitioner.

Tim Ramnitz, Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, D.C. (Benjamin C. Mizer, Assistant Attorney General, Civil Division, Shelley R. Goad, Assistant Director, on the brief), for Respondent.

Before: Sack, Hall, and Droney, Circuit Judges.

PER CURIAM:

Petitioner Ashram Seepersad, a native and citizen of Trinidad and Tobago, seeks review of a decision of the Board of Immigration Appeals ("BIA") affirming the decision of Immigration Judge ("IJ") Gabriel C. Videla ordering him removed from the United States based on his conviction for a crime involving moral turpitude and constituting an aggravated felony. The agency denied Seepersad’s applications for a waiver of inadmissibility under 8 U.S.C. § 1182(h),¹ withholding of removal, and relief under the Convention Against Torture. In a summary order also issued today, we deny the petition insofar as it challenges the denial of withholding of removal and relief under the Convention Against Torture. In this opinion, we address Seepersad’s argument that the agency’s interpretation of the waiver provision, § 1182(h), violates the Equal Protection Clause by arbitrarily distinguishing between aliens who seek a waiver of inadmissibility while within the United States from those entering the United States at its borders. We hold that it does not.

Background

Seepersad entered the United States on a visitor visa in 1995. In 2001, he adjusted to lawful permanent resident ("LPR") status based on his marriage to a U.S. citizen. In 2002, he was convicted of conspiracy to use stolen and fraudulently obtained credit cards, 15 U.S.C. § 1644(a), and was sentenced to probation and restitution. In 2015, Seepersad was placed in removal proceedings on the grounds that his conviction was a crime involving moral turpitude and was an aggravated felony, both as an attempt or conspiracy and as an offense involving fraud or deceit in which the loss to the victim exceeded $10,000. 8 U.S.C. §§ 1227(a)(2)(A)(i), (iii). To prevent his removal, Seepersad requested a waiver of inadmissibility under 8 U.S.C. § 1182(h). An agency regulation requires that an alien seeking a waiver under § 1182(h) while in the United States must also apply for adjustment to LPR status. 8 C.F.R. § 1245.1(f). Seepersad did not reapply for adjustment of status. As his counsel explained at oral argument, Seepersad had by then divorced his U.S. citizen wife and no longer had a qualifying relative who could obtain an immediate visa on his behalf. See 8 U.S.C. § 1255(a) ; 8 C.F.R. § 1245.1(a). The IJ denied the waiver for lack of an adjustment application, and the BIA affirmed. Seepersad timely petitioned for review.

Seepersad’s argument is as follows. For decades, the BIA’s decision in Matter of Sanchez allowed an IJ to grant a waiver of inadmissibility —without requiring a concurrent application for adjustment of status—to a deportable alien who, between the time of conviction and subsequent placement in removal proceedings, traveled abroad and then reentered the United States. 17 I. & N. Dec. 218 (B.I.A. 1980). The BIA thus blessed nunc pro tunc relief, embracing the fiction that an LPR in deportation proceedings was at the border seeking a waiver of inadmissibility. But this fiction was available only to a deportable alien who had traveled abroad after his or her conviction, re-entered the United States, and was subsequently placed into deportation proceedings, not to a deportable alien who was continuously present in the United States from the date of conviction to the date he or she was placed into removal proceedings. See Yeung v. I.N.S. , 76 F.3d 337, 339–40 (11th Cir. 1995). The Eleventh Circuit held that distinguishing between two classes of deportable aliens "identical in every respect but for the fact that members of one of the classifications departed and returned to this country at some point after they became deportable" violated equal protection. Yeung , 76 F.3d at 339. Citing Yeung —despite the fact that § 1182(h) nunc pro tunc relief is no longer available to anyone in removal proceedings—Seepersad argues that imposing upon him the requirement that he file a concurrent adjustment of status application with his § 1182(h) waiver application, while not imposing such a requirement on someone who departed and seeks a waiver at the border, violates the Equal Protection Clause. Essentially, Seepersad asks us to extend the holding of Yeung to prohibit treating aliens seeking admission at the border and aliens in removal proceedings differently in the § 1182(h) context. We decline to do so.

The Government responds that Matter of Sanchez and Yeung are no longer good law: since those cases were decided, Congress has amended § 1182(h), the Attorney General has issued a reasonable regulation requiring an adjustment application for aliens in the United States, and the BIA has jettisoned the nunc pro tunc § 1182(h) waiver and with it, the equal protection problem the Eleventh Circuit identified in Yeung . See Matter of Rivas , 26 I. & N. Dec. 130, 133 (B.I.A. 2013). The Government identifies various rational bases for Congress to distinguish between a criminal LPR fighting removal from within the United States and a criminal LPR seeking admission at the border. In a nutshell, Congress might prefer that a criminal alien stay outside the United States while immigration officials decide whether to admit him; and if the criminal alien is within the United States, he should effectively identify himself and his status by affirmatively applying for adjustment of status. The Government contends that the BIA’s application of § 1182(h) therefore does not violate equal protection. We agree.

Discussion

We have jurisdiction to review Seepersad’s constitutional challenge to the BIA’s application of § 1182(h). See 8 U.S.C. § 1252(a)(2)(C), (D). That review is de novo. Pierre v. Holder , 588 F.3d 767, 772 (2d Cir. 2009).

The question is whether the Equal Protection Clause prevents the BIA from distinguishing between a criminal alien present in the United States who seeks a § 1182(h) waiver to avoid removal and one who seeks such a waiver at the border to gain admission into the United States. "Over no conceivable subject is the legislative power of Congress more complete than it is over the admission of aliens." Kleindienst v. Mandel , 408 U.S. 753, 766, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972) (internal quotation marks omitted). We therefore subject the agency’s approach to the "minimal scrutiny test," under which distinctions between different classes of persons "must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike." Francis v. INS , 532 F.2d 268, 272 (2d Cir. 1976) (internal quotation marks omitted). The Supreme Court has instructed that "rational-basis review in equal protection analysis is not a license for courts to judge the wisdom, fairness, or logic of legislative choices." Heller v. Doe , 509 U.S. 312, 319, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993) (internal quotation marks omitted).

The Immigration and Naturalization Act "governs both the exclusion of aliens from admission to this country and the deportation of aliens previously admitted." Judulang v. Holder , 565 U.S. 42, 45, 132 S.Ct. 476, 181 L.Ed.2d 449 (2011). The Government uses "a unified procedure, known as a ‘removal proceeding,’ " to adjudicate aliens inadmissible or deportable. Id . But certain grounds of relief are available to inadmissible aliens but not deportable aliens. Section 1182(h) is one such ground. It allows the Attorney General to waive specified grounds of inadmissibility, including a conviction for a crime involving moral turpitude, if the alien is the spouse, parent, son, or daughter of a U.S. citizen or LPR; denying the alien’s admission would "result in extreme hardship" to the citizen or LPR relative; and the Attorney General, "in his discretion" and pursuant to the terms prescribed by regulation, has consented to the alien "applying or reapplying for a visa, for admission to the United States, or adjustment of status." 8 U.S.C. § 1182(h)(1)(B), (2). The Attorney General has issued a regulation making an application for adjustment of status "the sole method of requesting the exercise of discretion" under § 1182(h) as it "relate[s] to the inadmissibility of an alien in the United States." 8 C.F.R. § 1245.1(f). Consequently, an alien "in the country in removal proceedings ... must file a concurrent adjustment application in order to seek a waiver of the grounds of removal." Matter of Rivas , 26 I. & N. Dec. at 132. This is not just a matter of paperwork: by applying for adjustment of status, the alien is "assimilated to the position of an applicant for admission." Poveda v. U.S. Att’y Gen. , 692 F.3d 1168, 1176 (11th Cir. 2012). Put another way, with an adjustment application, the criminal alien in the United States steps into the shoes of one at the border seeking admission to the United States.

But what about a criminal alien "who is seeking to return to the United States and already has lawful permanent resident status"—must he too "apply for adjustment of status in conjunction with his waiver request"? In re Abosi , 24 I. & N. Dec. 204, 205–06 (B.I.A. 2007). In Abosi , the BIA answered no. Id. Abosi entered the United States, became an LPR, was convicted of a controlled substance offense, and then traveled abroad. Id. at 204. When he sought readmission at the U.S. border, he was placed in removal proceedings and charged as inadmissible. Id. at 204–05. The BIA...