Siwe v. Holder

• Decision Date: 06 February 2014
• Docket Number: No. 12–60546.,12–60546.
• Citation: 742 F.3d 603
• Parties: Joel Happy SIWE, also known as Joel Monthe Knouobite, Petitioner v. Eric H. HOLDER, Jr., U.S. Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

742 F.3d 603

Joel Happy SIWE, also known as Joel Monthe Knouobite, Petitioner

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

No. 12–60546.

United States Court of Appeals, Fifth Circuit.

Feb. 6, 2014.

Michael Evertsen Ward, Alston & Bird, L.L.P., Washington, DC, for Petitioner.

Anthony Cardozo Payne, Senior Litigation Counsel, David V. Bernal, Assistant Director, Tangerlia Cox, Sarah Maloney, U.S. Department of Justice, Washington, DC, for Respondent.

Petitions for Review of Orders of the Board of Immigration Appeals.

Before JONES, WIENER, and GRAVES, Circuit Judges.

WIENER, Circuit Judge:

Petitioner Joel Happy Siwe (“Siwe”), a native and citizen of Cameroon, arrived in the United States in August 2001 on a visitor's visa. He subsequently applied for and was granted asylum. Several years later, the government instituted removal proceedings because of Siwe's criminal convictions, discussed below. Before the Immigration Judge (“IJ”), Siwe argued that he should not be removed because he was entitled to adjust his status from asylee to lawful permanent resident under Section 209(b) of the Immigration and Nationality Act of 1952 (“INA”).¹ He also contended that he was entitled to deferral of removal under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”). The IJ rejected Siwe's requests for relief and ultimately ordered him removed from the United States. A one-member panel of the Board of Immigration Appeals (“BIA” or “the Board”) affirmed. Siwe now seeks review of the Board's decision.² Because we hold that the plain language of the statute does not require an alien to maintain asylum status to be eligible for an adjustment of status under Section 209(b), we grant his petition for review on that issue and vacate the order of removal. We do not review Siwe's request for relief under the CAT, however, because we are bound by our precedent ³ holding that the REAL ID Act ⁴ divests us of subject matter jurisdiction to do so.

I. FACTS AND PROCEEDINGS

After entering the United States in 2001, Siwe applied for asylum on the ground that he and his family were targets of official government persecution for their political activities. Siwe claimed that he was subjected to such persecution because the Cameroon government suspected that his uncle, a colonel in the Cameroon military, had been planning a coup d'etat. The uncle had died under mysterious circumstances which Siwe characterizes as an assassination, even though local law enforcement charged the uncle's son (Siwe's cousin) with the murder. Siwe stated that local law enforcement tortured him in 1999 and 2000 because he was alleged to have knowledge of his uncle's activities and his cousin's role in the murder. The United States granted Siwe asylum in November 2003 pursuant to Section 208.⁵

Sometime in 2002 or 2003, Siwe became involved in a “black money scheme.” ⁶ That scam, in which victims across several states from Virginia to New Mexico were defrauded, involved six co-conspirators in addition to Siwe. ⁷ He was indicted on several counts in 2006 in the Eastern District of Virginia and was eventually convicted by a jury.⁸ In May 2007, he was sentenced to 32 months of imprisonment on each count and ordered to serve the terms concurrently.

Following Siwe's release from prison, the Department of Homeland Security (“DHS”) commenced removal proceedings. In June 2011, the DHS served him with a notice to appear, charging that he was an alien convicted of an aggravated felony ⁹ after admission, within the meaning of Sections 237(a)(2)(A)(iii) ¹⁰ and 101(a)(43)(M)(i).¹¹ DHS formally moved to terminate Siwe's asylum on July 25, 2011. Siwe opposed the motion, arguing that he was entitled to an opportunity to adjust his status to lawful permanent resident pursuant to Section 209(b) ¹² and to request a waiver of admissibility pursuant to Section 209(c).¹³

The IJ terminated Siwe's asylum in August 2011 because his conspiracy conviction ¹⁴ constituted an aggravated felony that was a particularly serious crime.¹⁵After the IJ pretermitted his request to adjust status, Siwe moved for reconsideration, asserting that termination of his asylum did not disqualify him from applying to adjust his status to lawful permanent resident. The IJ denied Siwe's motion to reconsider.

After further hearings, the IJ determined that Siwe was removable as an alien convicted of aggravated felonies. Siwe responded by filing an application for withholding of removal pursuant to Section 241(b)(3) ¹⁶ and for deferral of removal under the CAT pursuant to 8 C.F.R. § 1208.17. In February 2012, the IJ issued a written decision (1) reiterating that Siwe was subject to removal because he had been convicted of aggravated felonies; (2) holding him ineligible for withholding of removal under Section 241(b)(3) ¹⁷ because he had been convicted of a particularly serious crime; and (3) ruling that he was ineligible for deferral of removal under the CAT because he had failed to establish that it was more likely than not that he would be tortured by the government if he were removed to Cameroon. The IJ then ordered Siwe removed to Cameroon.

Siwe appealed the IJ's decisions to the BIA. A one-member panel of the BIA dismissed the appeal in June 2012, holding that (1) the IJ correctly determined that Siwe was statutorily ineligible to adjust status under Section 209(b) because his asylum had been terminated, and (2) when denying CAT relief, the IJ properly disregarded as not credible Siwe's evidence that he would be tortured if removed to Cameroon. Siwe timely moved for reconsideration by a three-member panel of the Board, contending that the BIA had failed to address his insistence that termination of his asylum did not disqualify him from applying for adjustment of status. A one-member panel of the Board denied the motion to reconsider.

Siwe timely petitioned for review by this court, and moved for a stay of removal pending our decision. We granted his stay motion in September 2012, after which the government filed a motion to remand the proceedings for the limited purpose of allowing the BIA to reconsider its denial of adjustment of status under Section 209(b). In March 2013, we carried that motion with the case. In addition to the government's motion to remand, Siwe asks us to answer the following questions: (1) Did the Board err as a matter of law in concluding that the termination of Siwe's asylum rendered him ineligible for an adjustment of status under Section 209(b), (2) was the Board's affirmance of the IJ's denial of CAT relief supported by substantial evidence, and (3) did the Board abuse its discretion when it failed to hear Siwe's motion for reconsideration by a three-member panel? We answer each in turn.

II. ANALYSIS

A. Adjustment of Status under Section 209(b)

Section 209(b) provides that “any alien granted asylum” may adjust status to lawful permanent resident if he satisfies five criteria.¹⁸ Siwe urges that the termination of his asylum does not, as a matter of law, render him ineligible for an adjustment of status because—according to Siwe—there is “no requirement [in the statute] that aliens who have been granted asylum ... in the past must maintain their asylum status prior to applying for or receiving an adjustment of status.” The statute, Siwe insists, is unambiguous: He must be permittedto apply for an adjustment of status. The government has moved to remand to the BIA for reconsideration of this specific issue because the Board did not “fully address” Siwe's argument.¹⁹ For the first time at oral argument in this court, the government added that case law in other circuits indicates that Siwe's reading of the statute is incorrect. ²⁰ The parties agree, however, that neither the BIA nor any other circuit has dealt with this precise legal issue under analogous facts.

The REAL ID Act prevents courts from reviewing final orders of removal of aliens, like Siwe, for having committed aggravated felonies. ²¹ This jurisdictional bar to court review does not, however, apply to questions of law.²² Furthermore, we must “review[ ] the BIA's legal conclusions de novo ‘unless a conclusion embodies the [BIA's] interpretation of an ambiguous provision of a statute that it administers; a conclusion of the latter type is entitled’ ” to deference.²³ We have recently stated ²⁴ the level of deference that we give to unpublished, one-member BIA decisions like the one we review in this case: This circuit reviews such decisions under the less deferential standard of Skidmore.²⁵ Under the Skidmore standard, “ ‘the weight of [an agency's] judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.’ ” ²⁶ Additionally, any portion of a non-precedential decision that relies on prior precedential BIA decisions will be afforded Chevron²⁷ deference as appropriate.²⁸ As Siwe asks us to construe Section 209(b), we have jurisdiction to consider this pure question of law and turn first to the plain language of the statute. ²⁹

Section 209(b) ³⁰ lists five conjunctive conditions that “any alien granted asylum” must meet to be eligible for adjustment of status:

The Secretary of Homeland Security or the Attorney General, in the Secretary's or the Attorney General's discretion and under such regulations as the Secretary or the Attorney General may prescribe, may adjust to the status of an alien lawfully admitted for permanent residence the status of any alien granted asylum who—

(1) applies for such adjustment,

(2) has been physically present in the United States for at least one year after being granted asylum,

(3) continues to be a refugee within the meaning of section 101(a)(42)(A) [of the INA] or a spouse or child of such a refugee,

(4) is not...