Sumbundu v. Holder

• Decision Date: 07 April 2010
• Docket Number: Docket No. 07-3736-ag.
• Citation: 602 F.3d 47
• Parties: Ebrima SUMBUNDU and Fatoumata Yaffa, Petitioners, v. Eric. H. HOLDER, Jr., Attorney General, United States Department of Justice, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

602 F.3d 47

Ebrima SUMBUNDU and Fatoumata Yaffa, Petitioners, v. Eric. H. HOLDER, Jr.,¹ Attorney General, United States Department of Justice, Respondent.

Docket No. 07-3736-ag.

United States Court of Appeals, Second Circuit.

Argued: March 12, 2009.

Decided: April 7, 2010.

Edward J. Cuccia, Ferro & Cuccia, New York, N.Y., for Petitioners.

P. Michael Truman, Trial Attorney, for Michelle Gorden Latour, Assistant Director, Office of Immigration Litigation, and Jeffrey S. Bucholtz, Acting Assistant Attorney General, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.

Before: CALABRESI and LIVINGSTON, Circuit Judges, and RESTANI, Judge.²

CALABRESI, Circuit Judge:

Petitioners Ebrima Sumbundu and Fatoumata Yaffa, husband and wife, seek review of an August 17, 2007 decision of the Board of Immigration Appeals ("BIA") that affirmed the Immigration Judge's ("IJ") November 30, 2005 denial of their applications for cancellation of removal. In re Sumbundu, No. A73 648 267 (B.I.A. Dec. Aug. 17, 2007), aff'g Nos. A73 648 267 and No. A98 279 414 (Immig. Ct. N.Y. City Nov. 30, 2005). The IJ rejected Petitioners' applications in part because he found that Sumbundu and Yaffa failed to demonstrate the good moral character required for obtaining cancellation of removal pursuant to 8 U.S.C. § 1229b(b)(1)(B). In reaching this conclusion, the IJ did not rely on any of the listed 8 U.S.C. § 1101(f) categories that preclude a finding of good moral character; instead, as the BIA explained, his ruling relied on the "catchall" provision of § 1101(f), which provides that although a petitioner's conduct may fall outside one of these enumerated categories, that fact does not bar "a finding that for other reasons such person is or was not of good moral character."

Petitioners contend, inter alia, that the IJ and BIA erred as a matter of law by applying the wrong standards in evaluating their moral character. In response, the Respondent argues that this Court has no jurisdiction to review the agency's decisions made pursuant to the catchall language of § 1101(f). This Court has not yet decided to what extent we have jurisdiction to examine such decisions, and this case requires us to determine for the first time whether we can review petitions where a question of law is raised challenging the BIA's moral character determination under the catchall provision of § 1101(f). We hold that — at least in such limited circumstances — we do have jurisdiction, but find that the Petitioners' claims fail on their merits.

Background

Petitioners Sumbundu and Yaffa are natives and citizens of the Gambia. They came to the United States in May and October 1992, respectively, on tourist visas which have long since expired. They have five children who are United States citizens and are now ages seventeen, fifteen, thirteen, nine, and five. The fifteen-year-old is their only daughter.

On September 22, 1994, Sumbundu filed an application for asylum and withholding of removal, claiming that he was persecuted in the Gambia because of his religion. The Department of Homeland Security began removal proceedings against him on February 2, 2004 by issuing a Notice to Appear ("NTA"), which charged him with removability under 8 U.S.C. § 1227(a)(1)(B), as an alien who remained in the United States without authorization. At his hearing on March 3, 2004, Sumbundu conceded removability as charged, but stated that he was also applying for cancellation of removal and that he wanted his case to be joined with his wife's. Yaffa filed an asylum application on March 9, 2004, claiming that she underwent female genital mutilation ("FGM") in the Gambia as a child, and that she feared that her daughter would suffer the same treatment if the family returned there. After the Department of Homeland Security started removal proceedings against Yaffa, she also conceded removability and, like her husband, filed an application for cancellation of removal.

The cases were considered together before IJ Thomas J. Mulligan who, after a merits hearing on November 30, 2005, ordered both Petitioners removed. The IJ noted that Petitioners initially applied for asylum, withholding of removal, and relief under Article 3 of the Convention Against Torture, and that these applications were subsequently withdrawn. As a result, the only matters before the IJ were Petitioners' applications for cancellation of removal.

8 U.S.C. § 1229b(b)(1) provides that:

The Attorney General may cancel removal of, and adjust to the status of an alien lawfully admitted for permanent residence, an alien who is inadmissible or deportable from the United States if the alien —

(A) has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application; (B) has been a person of good moral character during such period; (C) has not been convicted for an offense under 8 U.S.C. § 1182(a)(2), 1227(a)(2), or 1227(a)(3) ...; and (D) establishes that removal would result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.

The IJ and BIA denied Petitioner's application for cancellation of removal based on two of these elements: (1) Petitioners' failure to establish that their citizen daughter would suffer exceptional and extremely unusual hardship, 8 U.S.C. § 1229b(b)(1)(D), and (2) Petitioners' failure to demonstrate that they were persons of good moral character during the ten years immediately preceding their application, id. § 1229b(b)(1)(B). Because we affirm the BIA's decision based on its moral character finding, and because that finding alone is sufficient to deny Petitioners cancellation of removal, we discuss only that element.

The IJ had "a number of concerns about Petitioners' good moral character." J.A. 141. Specifically, the IJ noted that Petitioners had misreported their income on their tax returns repeatedly between 1996 and 2004. While misreporting their income, Petitioners were living in taxpayer subsidized housing in New York City, leading the IJ to conclude that they "were taking advantage of tax payer funded housing and not adequately reporting to the income tax authorities and to the New York City Housing Authority ... the extent of their work activity and their income." J.A. 142. Moreover, the record revealed that Sumbundu had first testified that he did not work in 2004, and later admitted that he did work for his "own business" but did not file tax returns for that year. Id.

After considering this evidence and in view of Petitioners' "need to feed, clothe and shelter this many children in the city of New York," the IJ found that there had been "a grossly inaccurate and probably fraudulent reporting of tax income since probably 1992," id., while Petitioners were living in taxpayer subsidized housing. Accordingly, the IJ concluded that Sumbundu and Yaffa failed to establish that they acted as people of good moral character during the requisite time period. Petitioners appealed the ruling to the BIA.

On April 3, 2006, while Petitioners' appeal was pending, Sumbundu and Yaffa moved the BIA to remand the matter to the IJ so that they could introduce evidence that they claimed was not available during their earlier removal proceedings. Petitioners allegedly had corrected the inaccuracies that had been made in their tax returns for 2001 through 2004, and wanted to submit those amended returns to the agency. The amended returns reflected additional income that had previously been unreported and, according to Petitioners, additional dependents were properly added to the 2002 tax return, thereby affording them a deduction that they could have previously taken but had not.

The BIA affirmed the IJ's decision on both the hardship and moral character rationales and refused to remand the case to the IJ to consider the amended tax returns. As to the moral character decision, Petitioners asserted that because they had not sought to avoid paying a "substantial sum" in taxes, the IJ's finding was erroneous in view of the BIA's holding in In re Locicero, 11 I & N Dec. 805 (BIA 1966). The BIA disagreed, stating that nothing in In re Locicero precluded a finding of poor moral character based on ongoing misrepresentation in multiple years' income tax returns, irrespective of whether the misrepresentations involved a "substantial sum." Instead, the BIA noted that an IJ has latitude in evaluating a petitioner's moral character because "where specific conduct does not preclude a finding of good moral character under one of the enumerated categories of ... 8 U.S.C. § 1101(f), that same conduct may nevertheless be considered in making a determination on good moral character in accordance with the `catchall' provision of § 1101(f)." J.A. 2-3.

With respect to the amended tax returns, the BIA found that the revised forms for years 2000-2004 and the "purported payment of taxes due for such years, subsequent to the Immigration Judge's issuance of a removal order," did not show that the IJ had erred in finding that the earlier longstanding tax misrepresentations demonstrated a lack of good moral character during the statutorily mandated period. J.A. 3. The amended forms instead served to confirm that Petitioners had initially disclosed only a portion of their actual income in each of the cited tax years, in some cases originally disclosing less than half of their actual income to the Internal Revenue Service. The BIA concluded that the Petitioners "failed to provide any explanation for the original misrepresentations that would undermine the Immigration Judge's finding" that they lacked good moral character, nor had they enumerated any "countervailing equities" that could overcome the IJ's decision.³ Id. Petitioners filed a timely petition for review.

Discussion

Petitioners contend...