Sijapati v. Boente, 15-1204

• Decision Date: 01 February 2017
• Docket Number: No. 15-1804,No. 15-1204,15-1204
• Citation: 848 F.3d 210
• Parties: Ashish SIJAPATI, Petitioner, v. Dana James BOENTE, Acting Attorney General, Respondent. Ashish Sijapati, Petitioner, v. Dana James Boente, Acting Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

848 F.3d 210

Ashish SIJAPATI, Petitioner,

v.Dana James BOENTE, Acting Attorney General, Respondent.

Ashish Sijapati, Petitioner,

v.Dana James Boente, Acting Attorney General, Respondent.

No. 15-1204

No. 15-1804

United States Court of Appeals, Fourth Circuit.

Argued: October 25, 2016

Decided: February 1, 2017

ARGUED: Benjamin Winograd, IMMIGRANT & REFUGEE APPELLATE CENTER, LLC, Alexandria, Virginia, for Petitioner. Laura Halliday Hickein, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Irina Manelis, DYER IMMIGRATION LAW GROUP, P.C., Henrico, Virginia, for Petitioner. Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Shelley R. Goad, Assistant Director, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Before TRAXLER, KEENAN, and WYNN, Circuit Judges.

Petitions for review denied by published opinion. Judge Wynn wrote the opinion, in which Judge Traxler and Judge Keenan joined.

WYNN, Circuit Judge:

Petitioner Ashish Sijapati, a native and citizen of Nepal, seeks review of an order by the Board of Immigration Appeals ("BIA") finding him removable under Section 237(a)(2)(A)(i) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1227(a)(2)(A)(i). That section authorizes the removal of any alien who "is convicted of a crime involving moral turpitude committed within five years ... after the date of admission ." Id. (emphasis added).

Sijapati argues that the BIA erred in finding him removable under Section 237(a)(2)(A)(i) because his conviction on December 12, 2007, of a crime involving moral turpitude occurred more than five years after he was first admitted to the United States on January 25, 2001. But the BIA relied upon its decision in Matter of Alyazji , 25 I. & N. Dec. 397 (B.I.A. 2011), to determine that Sijapati's relevant "date of admission" was January 18, 2003: the date he was most recently admitted to the United States after taking a brief vacation abroad. Because we accord Chevron deference to the BIA's decision in Matter of Alyazji , we deny Sijapati's petition for review.

I.

Sijapati first entered and was admitted to the United States on a nonimmigrant L–2 visa on January 25, 2001. On December 31, 2002, Sijapati departed the United States for a two-and-a-half week vacation to Nepal, reentering the United States on January 18, 2003, pursuant to his existing L–2 visa. On March 16, 2005, federal immigration officials approved Sijapati's application for adjustment of status as a lawful permanent resident.

On December 12, 2007—more than five years after Sijapati was first admitted into the United States on January 25, 2001, under the L–2 visa, but less than five years after his most recent admission on January 18, 2003, under that visa—a circuit court in Virginia convicted Sijapati of felony embezzlement and imposed an eighteen-month suspended sentence. Following his conviction, the Department of Homeland Security issued to Sijapati a Notice to Appear before the immigration court to face the charge of removability from the United States under Section 237(a)(2)(A)(i) of the INA for having been convicted of a crime of moral turpitude within five years of the date of admission. In response, Sijapati moved to terminate the proceedings against him, arguing that his embezzlement conviction did not render him removable. The immigration court denied Sijapati's motion, finding that his embezzlement conviction constituted a crime involving moral turpitude which rendered him removable.

Sijapati then filed a renewed motion to terminate his removal proceedings which the immigration court construed to be a motion to reconsider its prior decision. In denying this second motion, the immigration court found that Alyazji controlled the determination of Sijapati's date of admission, and thus, that Sijapati's admission on January 18, 2003, was "the admission pursuant to which [he] was in the United States at the time that he committed the crime involving moral turpitude"—"but for which he [would not have been] present in the country." A.R. 219. Accordingly, the immigration court declined to terminate Sijapati's removal proceedings and ordered that he be granted voluntary departure in lieu of removal.

Sijapati appealed to the BIA, which adopted and affirmed the immigration court's determination that the BIA's reasoning in Alyazji "le[d] to the conclusion that January 18, 2003, is the relevant ‘date of admission’ in calculating ... whether [Sijapati] is removable under section 237(a)(2)(A)(i) of the [INA]." A.R. 67. From the BIA's dismissal of his appeal, Sijapati timely filed a petition for review in this Court.

II.

Sijapati's petition requires us to interpret the phrase "the date of admission" in Section 237(a)(2)(A)(i). "Matters of statutory construction present questions of law, which we generally review de novo." Hosh v. Lucero , 680 F.3d 375, 378 (4th Cir. 2012). However, when called upon to review the BIA's interpretation of a provision in the INA, we must keep in mind that we are "reviewing the considered judgment of the federal agency charged with interpreting and administering the statute at issue in this case." Nwolise v. INS , 4 F.3d 306, 309 (4th Cir. 1993). As such, "the legal determinations of the [BIA] in interpreting the [INA] are entitled to deference by this court." Id. To that end, the BIA's interpretation of an ambiguous provision in the INA "must be given controlling weight unless th[at] interpretation[ ] [is] ‘arbitrary, capricious, or manifestly contrary to the statute.’ " Fernandez v. Keisler , 502 F.3d 337, 344 (4th Cir. 2007) (quoting Chevron , U.S.A., Inc. v. Nat. Res. Def. Council, Inc. , 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) ).

Because Chevron deference "is accorded only when an ‘agency's interpretation is rendered in the exercise of [its] authority [to make rules carrying the force of law],’ " Martinez v. Holder , 740 F.3d 902, 909 (4th Cir. 2014) (alterations in original) (quoting A.T. Massey Coal Co. v. Barnhart , 472 F.3d 148, 166 (4th Cir. 2006) ), we may not defer to the BIA's unpublished decision denying Sijapati relief. However, when an unpublished decision lacking precedential weight relies on a precedential decision to which Chevron deference can apply—like Alyazji —the precedential decision "controls to the extent that ‘Congress has not directly addressed the precise question at issue’ and ‘the [BIA]'s answer is based on a permissible construction of the statute.’ " Hernandez v. Holder , 783 F.3d 189, 192 (4th Cir. 2015) (alteration in original) (quoting Chevron , 467 U.S. at 843, 104 S.Ct. 2778 ); see also INS v. Aguirre – Aguirre , 526 U.S. 415, 424–25, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999) (holding that the BIA's interpretation of an ambiguous statutory term should be accorded Chevron deference when the BIA "gives [the term] concrete meaning through a process of case-by-case adjudication" (internal quotation marks omitted) (quoting INS v. Cardoza-Fonseca , 480 U.S. 421, 448–49, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987) )).

Accordingly, we now consider whether Alyazji 's construction of "the date of admission" is entitled to deference under the familiar two-step inquiry set forth in Chevron . First, we consider "whether Congress has directly spoken to the precise question at issue." Chevron , 467 U.S. at 842, 104 S.Ct. 2778. If Congress' intent is clear, our inquiry comes to an end—we and the BIA "must give effect to the unambiguously expressed intent of Congress." Id. at 842–43, 104 S.Ct. 2778. However, if the statute is silent or ambiguous as to the specific issue, we must then determine "whether the agency's answer is based on a permissible construction of the statute." Id. at 843, 104 S.Ct. 2778.

A.

"To resolve the initial inquiry under Chevron 's first step, we focus ‘purely on statutory construction without according any weight to the agency's position.’ " Ojo v. Lynch , 813 F.3d 533, 539 (4th Cir. 2016) (quoting Mylan Pharm., Inc. v. FDA , 454 F.3d 270, 274 (4th Cir. 2006) ). When interpreting a statute, we begin with the statute's plain language, U.S. Dep't of Labor v. N.C. Growers Ass'n , 377 F.3d 345, 350 (4th Cir. 2004), as "the plain language of the statute in question is ... the most reliable indicator of Congressional intent," Soliman v. Gonzales , 419 F.3d 276, 281-82 (4th Cir. 2005).

In construing the statute's plain language, "we must consider the context in which the statutory words are used because ‘[w]e do not ... construe statutory phrases in isolation; we read statutes as a whole.’ " Ayes v. U.S. Dep't of Veterans Affairs , 473 F.3d 104, 108 (4th Cir. 2006) (alteration in original) (quoting United States v. Morton , 467 U.S. 822, 828, 104 S.Ct. 2769, 81 L.Ed.2d 680 (1984) ); see also Soliman , 419 F.3d at 282 ("We are obliged to look at the statutory language as a whole, construing each section in harmony with every other part or section, because ‘Act[s] of Congress ... should not be read as a series of unrelated and isolated provisions.’ " (alteration in original) (quoting Gustafson v. Alloyd Co ., Inc . , 513 U.S. 561, 570, 115 S.Ct. 1061, 131 L.Ed.2d 1 (1995) )).

Section 237(a)(2)(A)(i) provides that "[a]ny alien who—(I) is convicted of a crime involving moral turpitude committed within five years ... after the date of admission , and (II) is convicted of a crime for which a sentence of one year or longer may be imposed, is deportable."

8 U.S.C. § 1227(a)(2)(A)(i) (emphasis added). Although the INA does not define the phrase "the date of admission," the statute defines "admission" and "admitted" as, "with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer." 8 U.S.C. § 1101(a)(13)(A).

Sijapati urges us to end our analysis at Chevron step one, arguing that the plain language of the statute unambiguously establishes that "Congress intended ‘the date of...