Shewchun v. Holder

• Decision Date: 26 October 2011
• Docket Number: No. 09–3894.,09–3894.
• Citation: 658 F.3d 557
• Parties: John SHEWCHUN, Petitioner,v.Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

658 F.3d 557

John SHEWCHUN, Petitioner,

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

No. 09–3894.

United States Court of Appeals, Sixth Circuit.

Argued: July 27, 2011.Decided and Filed: Sept. 8, 2011.Rehearing Denied Oct. 26, 2011.

ARGUED: Maris J. Liss, George P. Mann & Associates, Farmington Hills, Michigan, for Petitioner. Andrew Nathan O'Malley, United States Department of Justice, Washington, D.C., for Respondent. ON BRIEF: George P. Mann, George P. Mann & Associates, Farmington Hills, Michigan, for Petitioner. Jeffery R. Leist, United States Department of Justice, Washington, D.C., for Respondent.Before: BOGGS, GILMAN, and COOK, Circuit Judges.

OPINION

RONALD LEE GILMAN, Circuit Judge.

John Shewchun petitions this court for review of the Board of Immigration Appeals' (BIA's) dismissal of his appeal from the immigration judge's (IJ's) order of removal. Although Shewchun raised a number of substantive issues on appeal to the BIA, he presents only one of those issues to us: whether the IJ and the BIA erred in rejecting his claim that his removal proceedings should be terminated based on his prima facie eligibility for naturalization under 8 C.F.R. § 1239.2(f). In addition, Shewchun asks us to review the following two procedural due process issues: (1) whether he is entitled to relief because he did not receive a final copy of the IJ's oral decision, and (2) whether the IJ should have recused herself based on her prior role as Chief Counsel in the Detroit District for Immigration and Customs Enforcement (ICE). Shewchun has also filed a motion to correct the administrative record in connection with his claim that he did not receive a proper transcript of the IJ's oral decision and a separate motion asking us to take judicial notice of various items that he claims support his argument. Assuming without deciding that we should take judicial notice of the facts that Shewchun has brought to our attention, we nevertheless DENY Shewchun's petition for review and DENY his motion to correct the administrative record.

I. BACKGROUND

Shewchun is a citizen of Canada who was admitted to the United States in 1963 as a lawful permanent resident. He is a scientist in the field of alternative energy and has held academic positions at various universities in the United States. In 1983, Shewchun was convicted in Rhode Island of larceny and of taking money under false pretenses. He served four concurrent one-year suspended sentences for his four counts of conviction. A year after his Rhode Island conviction, in 1984, Shewchun was convicted in Florida on federal charges of mail and wire fraud. Both the Rhode Island and the Florida convictions arose out of his financial transactions with the universities that he was working for at the time. Shewchun was sentenced to 14 years in prison on the latter conviction, but he was released on parole in 1987 after serving approximately 3 years of his sentence. He was imprisoned for more than 2 additional years, from late 1992 to early 1995, for violating his parole.

In 1990, the former Immigration and Naturalization Service (the INS, the predecessor agency to the Department of Homeland Security (DHS)) issued an order to show cause, charging Shewchun with deportability under former § 241(a)(4) of the Immigration and Nationality Act (the INA), 8 U.S.C. § 1251(a)(4) (1988) (currently 8 U.S.C. § 1227(a)(2)(A)(ii)) based on his having been convicted of two crimes involving moral turpitude not arising out of a single scheme. Then, in 1997, the INS added the following two additional grounds supporting Shewchun's deportability under then INA § 241(a)(2)(A)(iii), 8 U.S.C. § 1251(a)(2)(A)(iii) (1994) (currently 8 U.S.C. § 1227(a)(2)(A)(iii)): his having been convicted of (1) an aggravated-felony theft offense, and (2) an aggravated-felony fraud offense involving losses exceeding $10,000.

Elizabeth Hacker was the assigned IJ on Shewchun's case in 1995, but she recused herself because she recalled having discussed Shewchun's case with a former INS trial attorney in her previous capacity as the INS District Counsel in Detroit. In 1997, the new IJ, Marsha Nettles, found that Shewchun was deportable because he had been convicted of two crimes involving moral turpitude and because his theft conviction constituted an aggravated felony. But she determined that he was not deportable based on the INS's charge that he was convicted of a fraud offense involving over $10,000 in losses.

The BIA, in 2003, affirmed the IJ's determination that Shewchun was deportable for the reasons given. But the BIA considered whether Shewchun might still be eligible for other forms of relief because the INA had previously granted the Attorney General broad discretion to waive the deportation of certain lawful permanent residents who were otherwise deportable for having committed various crimes. See INS v. St. Cyr, 533 U.S. 289, 294–96, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (interpreting former INA § 212(c)). In St. Cyr, the Supreme Court held that the former INA § 212(c) continued to apply to aliens who pled guilty to crimes and who, “notwithstanding those convictions, would have been eligible for § 212(c) relief at the time of their plea under the law then in effect.” Id. at 326, 121 S.Ct. 2271. The BIA therefore remanded the case for the IJ to determine whether Shewchun was eligible for a waiver from deportation under the former § 212(c), or for any other applicable relief.

Before Shewchun's case was heard on remand, DHS added another ground of removability (formerly deportability) against him, charging that his 1984 conviction qualified as an aggravated felony under the INA because it constituted an attempt or conspiracy to commit fraud or deceit involving over $10,000 in losses. This new charge was similar to the fraud charge that the IJ had previously dismissed, but the new charge alleged that Shewchun had attempted or conspired to commit a fraudulent act rather than that he actually committed the fraud. Although Shewchun argued before the BIA that DHS was precluded from bringing this new charge because of the IJ's earlier dismissal of a substantively similar charge, he does not raise that issue in his present appeal.

Also prior to Shewchun's case being heard on remand, he filed a motion seeking the recusal of IJ Nettles because she had served as Chief Counsel for ICE (a part of DHS) in Detroit from 2001 until 2005, when she became an IJ. Judge Nettles denied Shewchun's motion because she was not involved in his case as Chief Counsel, she had no knowledge of it, and his claim that she might have had some responsibility over the case was “too speculative and broad.”

On remand, Shewchun requested several forms of relief pursuant to the BIA's order that permitted him to seek relief under former § 212(c) of the INA and on any other basis for which he was eligible. He sought (1) a waiver of removability under § 212(c), (2) to terminate his proceedings based on his pending application for naturalization pursuant to 8 C.F.R. § 1239.2(f), and (3) a waiver of removability under INA § 212(h) (which provides for the discretionary waiver of removability for certain aliens who were convicted of various crimes but who are otherwise eligible to apply for an adjustment of status). The IJ, in December 2007, denied all of Shewchun's claims for relief and concluded that, in addition to the already determined reasons for his removability, he was removable based on DHS's new aggravated-felony charge. According to the IJ, Shewchun was statutorily ineligible for a waiver of removability under either INA § 212(c) or § 212(h) because of his prior aggravated-felony convictions. The BIA agreed with the IJ's waiver-of-removability conclusions in July 2009, and Shewchun does not challenge them in the present appeal.

Shewchun's application to terminate his removal proceedings pursuant to 8 C.F.R. § 1239.2(f) is thus the only substantive claim that he raises in his petition for review. This regulation allows an IJ to terminate removal proceedings, thereby allowing the alien to obtain a final hearing on a pending application for naturalization, if the alien “has established prima facie eligibility for naturalization and the matter involves exceptionally appealing or humanitarian factors.” Id.

Shewchun's motion to terminate was rejected by the BIA because it had previously ruled in In re Acosta Hidalgo, 24 I. & N. Dec. 103 (BIA 2007), that IJs do not have the authority to make determinations concerning an alien's eligibility for naturalization. The BIA concluded that Shewchun was instead required to “establish his prima facie eligibility through an affirmative communication from [DHS].” And because Shewchun failed to provide the necessary proof, the BIA agreed with the IJ's denial of his motion. The BIA also rejected Shewchun's argument that Acosta Hidalgo was wrongly decided. Finally, the BIA found no merit in Shewchun's alternative claim that DHS had in fact confirmed his prima facie eligibility for naturalization.

II. ANALYSIS

When an alien appeals from a final order of removal that is based on a criminal offense covered in INA § 237(a)(2)(A)(ii), 8 U.S.C. § 1227(a)(2)(A)(ii), such as Shewchun does here, we have jurisdiction to review only constitutional claims or questions of law. 8 U.S.C. § 1252(a)(2)(C)–(D). All three of Shewchun's claims are legal or constitutional claims and are therefore reviewable under 8 U.S.C. § 1252(a)(2)(D). See Ikharo v. Holder, 614 F.3d 622, 629 (6th Cir.2010) (holding that the INA allows for judicial review of legal or constitutional claims arising out of final orders of removal for having committed various crimes specified by the statute).

“Where, as here, the BIA reviews the IJ's decision and issues a separate opinion, rather than summarily affirming the IJ's decision, we review the BIA's decision as the final agency determination.” Al–Ghorbani v. Holder, 585 F.3d 980, 991 (6th Cir.2009)....