Smalley v. Ashcroft

• Citation: 354 F.3d 332
• Decision Date: 15 December 2003
• Docket Number: No. 02-60231.,02-60231.
• Parties: Ian SMALLEY, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

354 F.3d 332

Ian SMALLEY, Petitioner, v. John ASHCROFT, Attorney General, Respondent.

No. 02-60231.

United States Court of Appeals, Fifth Circuit.

December 15, 2003.

Brian K. Bates (argued), Quan, Burdette & Perez, Houston, TX, for Petitioner.

Anthony P. Nicastro (argued), David V. Bernal, Thomas Ward Hussey, Director, U.S. Dept. of Justice, Civ. Div. Imm. Lit., Washington, DC, Hipolito Acosta, U.S. INS, Houston, TX, Caryl G. Thompson, U.S. INS, Dist. Directors Office, Attn: Joe A. Aguilar, New Orleans, LA, for Respondent.

Petition for Review of an Order of the Board of Immigration Appeals.

Before KING, Chief Judge, and DAVIS and EMILIO M. GARZA, Circuit Judges.

KING, Chief Judge:

Ian Smalley petitions this court to review a March 8, 2002, decision of the Board of Immigration Appeals ordering him deported for overstaying his visa and denying his application for an adjustment of status because he had committed a crime involving moral turpitude. For the following reasons, the petition is DISMISSED.

I. BACKGROUND

Smalley, a citizen of the United Kingdom, legally entered the United States in 1982 with permission to remain for one year. Without authorization, Smalley overstayed his visa. Before his arrival, Smalley had been convicted of "Fraudulent Trading," in violation of Section 332(3) of the Companies Act of 1948, in London, England. In January 1993, while Smalley remained in the United States without permission, he pleaded guilty to "Interstate Travel in Aid of Racketeering Enterprise," in violation of 18 U.S.C. § 1952.

On October 26, 1994, the Immigration and Naturalization Service ("INS") served Smalley with an Order to Show Cause, charging him with being a deportable alien for two reasons: first, because he had remained in the United States for a time longer than permitted, see Immigration and Nationality Act ("INA") § 241(a)(1)(B), 8 U.S.C. § 1251(a)(1)(B) (1994);¹ and second, because he had committed a crime of moral turpitude and was, therefore, an alien excludable at the time of entry, see INA § 241(a)(1)(A), 8 U.S.C. § 1251(a)(1)(A) (1994). The INS argued that Smalley's 1981 London conviction and his 1993 U.S. conviction qualified as crimes of moral turpitude and that each was sufficient to sustain the second ground of deportability.

Smalley's immigration case was administratively closed in December 1995, while his wife, a U.S. citizen, submitted a petition for Smalley to receive a visa as her immediate relative. In June 1998, after the petition was granted, Smalley asked the Immigration Judge ("IJ") to consider adjusting his status (to that of a lawful permanent resident) under INA § 245, 8 U.S.C. § 1255 (2000). But on October 24, 1998, the INS lodged an additional ground of deportability against Smalley, arguing that his 1993 conviction constituted an aggravated felony as that term is defined in INA § 101(a)(43)(B), (D), and (U), 8 U.S.C. § 1101(a)(43)(B), (D), and (U) (2000).

In August 2000, after holding a hearing on all of the outstanding issues, the IJ concluded that Smalley was not deportable as an alien excludable at the time of entry because his foreign fraudulent trading conviction was not for a crime involving moral turpitude ("CIMT"). In addition, the IJ concluded that Smalley's conviction under 18 U.S.C. § 1952, after he entered the United States, did not constitute an aggravated felony. Nevertheless, the IJ held that Smalley was deportable under INA § 241(a)(1)(B), 8 U.S.C. § 1251(a)(1)(B) (1994), because he had illegally overstayed his visa. The IJ next addressed whether Smalley qualified for an adjustment of status. After reviewing the 1993 conviction, the IJ found that Smalley had "effectively admitted to acts which constitute" money laundering under 18 U.S.C. § 1956(a)(3)(B) (2000): Smalley had pleaded guilty to agreeing to conduct a financial transaction to disguise money that he believed was the proceeds of illegal drug activity. Because he found that Smalley's conviction for laundering drug money constituted a CIMT, he held that Smalley was not an "admissible" alien eligible for a status adjustment under INA § 245(a), 8 U.S.C. § 1255(a). Instead, to obtain a waiver of his inadmissibility under INA § 212(h), 8 U.S.C. § 1182(h) (2000), Smalley had to demonstrate that his deportation would cause extreme hardship to his wife. Ultimately, the IJ denied Smalley's request for a discretionary waiver but did grant him permission to voluntarily depart the United States instead of being forcibly deported.

Both parties appealed the IJ's decision to the Board of Immigration Appeals ("BIA"), which confirmed Smalley's deportability for overstaying his visa. The BIA also affirmed the IJ's denial of Smalley's application for an adjustment of status on the basis that Smalley's 1993 conviction for violating 18 U.S.C. § 1952 qualified as a CIMT. As an alien convicted of such a crime, the BIA agreed with the IJ that Smalley was ineligible for a discretionary adjustment of status unless he first received a waiver of his criminal inadmissibility under INA § 212(h), 8 U.S.C. § 1182(h). Nevertheless, the BIA held that the IJ had not given Smalley adequate notice to present his position regarding the waiver issue, and it remanded the case to the IJ.

On remand, the IJ heard additional testimony concerning the hardship Smalley's wife would face if he were deported. The IJ recommended that Smalley's inadmissibility for committing a CIMT be waived and that he then be granted an adjustment of status. The BIA declined to follow these recommendations, however, and on March 8, 2002, the BIA denied the discretionary waiver and ordered that Smalley be "deported from the United States to Portugal"² without addressing the IJ's August 2000 decision to grant Smalley a voluntary departure. Smalley filed a petition for review of the BIA's deportation decision in this court. On July 15, 2002, the government filed a motion to dismiss, claiming that federal appellate courts lack jurisdiction to review a BIA decision to deport an alien who has committed a CIMT. This motion was carried with the case.

II. DISCUSSION

A. Jurisdiction

Before addressing the merits of the petition, we must first determine whether we have appellate jurisdiction over the BIA's deportation order. Nehme v. INS, 252 F.3d 415, 420 (5th Cir.2001). In 1996, Congress sought to curb appellate review of BIA deportation decisions through the IIRIRA. As we explained in Nguyen v. INS, 208 F.3d 528 (5th Cir.2000), a set of transitional rules applies to cases in which an alien's criminal deportation proceedings "commence before IIRIRA's general effective date of April 1, 1997, and conclude more than thirty days after its passage on September 30, 1996." Id. at 531. Specifically, the transitional rules state that "there shall be no appeal permitted in the case of an alien who is inadmissible or deportable by reason of having committed a criminal offense covered in section 212(a)(2) ... of the [INA] (as in effect as of the date of the enactment of this Act)." IIRIRA of 1996, Pub.L. No. 104-208, § 309(c)(4)(G), 110 Stat. 3009-546, -626 to -627. Section § 309(c)(4)(G) thus appears to deprive this court of jurisdiction over Smalley's petition for review because (1) the INS initiated deportation proceedings against Smalley in October 1994; (2) these proceedings concluded on March 8, 2002; and (3) the BIA found that Smalley's money laundering conviction qualified as a CIMT, making him inadmissible under § 212(a)(2) of the INA — as it existed when the IIRIRA was enacted. See 8 U.S.C. § 1182(a)(2)(A)(i)(I) (1994) (stating that "any alien convicted of ... acts which constitute the essential elements of — a crime involving moral turpitude" "shall be excluded from admission into the United States").

Nevertheless, before we may conclude that the IIRIRA completely forecloses our jurisdiction to review Smalley's deportation order, we must first determine whether the jurisdictional facts required for § 309(c)(4)(G)'s bar to operate are present in this case. Nguyen, 208 F.3d at 531. As we clarified in Nehme, "we always have jurisdiction to consider whether the specific conditions exist that bar our jurisdiction over the merits, namely, whether the petitioner is (1) an alien, (2) who is deportable, (3) for committing the type of crime that bars our review." 252 F.3d at 420 (discussing the IIRIRA's nearly identical "final" rules of judicial review, codified at 8 U.S.C. § 1252 (2000)); accord Okoro v. INS, 125 F.3d 920, 925 n. 10 (5th Cir.1997).

In his petition for review, Smalley concedes both that he is an alien and that he is deportable for overstaying his visa. He disagrees with the BIA, however, that his 1993 conviction for agreeing to launder drug money constitutes a CIMT; therefore, he argues that § 309(c)(4)(G) does not bar us from reviewing the BIA's deportation order. Whether Smalley's crime involved moral turpitude is a question of law that must be answered in the affirmative in order for the IIRIRA's jurisdictional bar to operate; therefore, we hold (as our precedent requires) that we have the authority to review this "jurisdictional fact." See Balogun v. Ashcroft, 270 F.3d 274, 278 (5th Cir.2001) (explaining that "we retain jurisdiction to review jurisdictional facts" in immigration cases).

B. Crime Involving Moral Turpitude

The INA "does not define the term `moral turpitude' and legislative history does not reveal congressional intent" regarding which crimes are turpitudinous. Pichardo v. INS, 104 F.3d 756, 759 (5th Cir.1997). Instead, Congress left the interpretation of this phrase to both the BIA and the federal courts. Okoro, 125 F.3d at 926. In light of these observations, our precedents apply a two-part standard of review to the BIA's conclusion that an alien has committed a CIMT. First, we accord "substantial deference to the BIA's interpretation of the INA" and its definition of the phrase "moral turpitude." Id. at 926. Second, we review ...