Thap v. Mukasey

• Decision Date: 15 October 2008
• Docket Number: No. 07-4168.,No. 07-3752.,07-3752.,07-4168.
• Citation: 544 F.3d 674
• Parties: Treap THAP, Petitioner, v. Michael B. MUKASEY, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

544 F.3d 674

Treap THAP, Petitioner, v. Michael B. MUKASEY, Respondent.

No. 07-3752.

No. 07-4168.

United States Court of Appeals, Sixth Circuit.

Submitted: July 30, 2008.

Decided and Filed: October 15, 2008.

ON BRIEF: Donald L. Ungar, Attorney at Law, San Francisco, California, for Petitioner. Jesse Lloyd Busen, James A. Hunolt, United States Department of Justice, Washington, D.C., for Respondent.

Before: DAUGHTREY and GIBBONS, Circuit Judges; ZATKOFF, District Judge.^*

OPINION

ZATKOFF, District Judge.

In 1996, following his conviction for robbery in the second degree in California, proceedings to deport Treap Thap to Cambodia were instituted in California but subsequently processed in Michigan when Thap moved there. In 2005, the immigration judge (IJ) determined that Thap was deportable. The IJ, and subsequently the Board of Immigration Appeals (BIA), rejected Thap's claims that: (1) because his status as a refugee had not been terminated previously, he could not be deported; (2) his robbery conviction did not subject him to removal for an aggravated felony; and (3) his past persecution in Cambodia was sufficient to withhold his removal. The BIA also denied Thap's motion to reconsider the BIA's finding that his robbery conviction was a crime of violence that precluded waiver of removal under § 212(c) of the Immigration and Nationality Act (INA). For the reasons set forth below, the Court affirms the decisions of the BIA and the IJ to remove Thap.

I.

Thap was born in Cambodia in 1976. He and his family left Cambodia because of alleged persecution at the hands of the Khmer Rouge shortly after his birth. Thap then spent a period of time with his parents at a Thailand refugee camp before arriving in the United States in 1983. Thap was admitted to the United States as a refugee, but a year later his status was changed to that of lawful permanent resident. In 1996, Thap was convicted of robbery in the second degree, and the government commenced deportation proceedings against him. The government charged that Thap was removable because he had been convicted of an aggravated felony, and the IJ and the BIA concluded that Thap was removable on that basis. Thap now appeals to this Court, which has jurisdiction pursuant to INA §§ 242(a) and (b)(1)(2), which are codified at 8 U.S.C. §§ 1252(a) and (b)(2).

II.

Claims of due process violations and purely legal questions are reviewed de novo. Mapouya v. Gonzales, 487 F.3d 396, 405-06 (6th Cir.2007) (citations omitted). The Court reviews the IJ's and the BIA's findings of fact under a deferential substantial evidence standard, such that their findings of fact "are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." INA § 242(b)(4)(B), 8 U.S.C. § 1252(b)(4)(B). A court may reverse a finding of fact only if "the evidence not only supports th[e] conclusion [urged by the petitioner], but compels it. . . ." INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (emphasis in original); Yu v. Ashcroft, 364 F.3d 700, 702-03 (6th Cir.2004).

III.

A. Thap's Residency Status

Thap first argues that he retains the status of a refugee until he acquires the nationality of another country, and he relies on Article 1(C)(3) of the United Nations Convention Relating to the Status of Refugees, April 22, 1954, 19 U.S.T. 6259, 189 U.N.T.S. 150.¹ As this Court has held previously, this argument is without merit. See Castellano-Chacon v. INS, 341 F.3d 533, 544 (6th Cir.2003) (citation omitted) (an alien cannot rely upon the Protocol Relating to the Status of Refugees (October 4, 1967, 19 U.S.T. 6223, T.I.A.S. No. 6577) to circumvent the INA because the Protocol is a non-self-executing treaty and therefore not judicially enforceable law). See also Matter of Smriko, 23 I & N Dec. 836 (BIA 2005).

Thap next argues that, as a refugee, he should be allowed to apply for re-adjustment of his status under INA § 209(a), accompanied by a waiver of inadmissibility under INA § 209(c), which is the same waiver available to a refugee when he initially applies for permanent resident status. Thap cites no authority for this proposition. Rather, he suggests that refugees in his situation should have a heightened level of protection against deportation because of their traumatic flight from persecution before arriving in the United States. The Court need not decide this issue for two reasons, each of which is discussed infra. First, Thap is not eligible for a waiver of admissibility under INA § 209(c) because he is removable due to his aggravated felony offense of robbery. Second, Thap has not documented that he endured a "traumatic flight" from persecution, or that he or his family were subject to any persecution before arriving in the United States.

B. Robbery Conviction

1. Crime of Violence

Thap asserts that robbery is not a crime of violence under California law and therefore, Thap is not subject to removal on that charge. It should first be noted that Thap failed to raise this argument before the IJ or on appeal to the BIA. Rather, Thap raised it for the first time in his motion to reconsider filed with the BIA. Accordingly, it was not an abuse of discretion for the BIA to refuse to consider this issue in denying Thap's motion to reconsider. Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 553 (6th Cir.2008) ("While we have never articulated precisely what constitutes raising an issue with the district court, we have found issues to be waived when they are raised for the first time in motions requesting reconsideration or in replies to responses.").

We also conclude that Thap's argument lacks merit. California Penal Code § 211 provides:

Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.

(emphasis added). A crime of violence for aggravated felony purposes under INA § 101(a)(43)(G) (referencing 18 U.S.C. § 16), is defined as:

(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

(emphasis added). Thap asserts that the California Penal Code provision and the INA provision have a critical difference, i.e., the INA provision requires that the crime involve "physical" force rather than just "force," as set forth in the California Penal Code. Thap thus asserts that the INA requires force that is "violent in nature" and that is more than what is required for a robbery under California law (which may be committed in the absence of "violent" force or in the absence of actual force altogether when the mere threat of force induces fear in the victim).

We are not persuaded by Thap's argument. It is uncontested that Thap was convicted of a felony offense. More significantly, under California law, robbery is a crime which, categorically and by its very nature, involves the substantial risk that physical force may be used in committing the offense. See United States v. Valladares, 304 F.3d 1300, 1302-03 (8th Cir. 2002); United States v. Gonzalez, 429 F.3d 1252, 1254 (9th Cir.2005); United States v. McDougherty, 920 F.2d 569, 573-74 (9th Cir.1990). As such, robbery under California law is a crime of violence for purposes of the INA, even though physical force is not an element of the crime. Valladares, 304 F.3d at 1303 ("When the prior offense was `by its nature' a crime of violence, the district court is not required to consider whether the actual conduct involved the use, attempted use, or threatened use of physical force."). Accordingly, Thap's robbery conviction constitutes a crime of violence that supports the IJ's and the BIA's finding that Thap is removable.

2. INA § 212(c) Relief

8 U.S.C. § 1182(a) sets forth a long list of grounds that make an alien ineligible for admission, while 8 U.S.C. § 1182(c) specifically provides the United States Attorney General with discretion to allow an alien re-admission if the alien meets certain criteria. Over the last 30 years, however, the BIA and the courts have extended § 212(c) relief to aliens seeking to avoid removal, not simply those aliens seeking re-entry. See Matter of Silva, 16 I & N Dec. 26 (BIA 1976); Francis v. INS, 532 F.2d 268 (2d Cir.1976). Such relief extends only to aliens whose removability is based upon a ground for which a comparable ground of exclusion exists (i.e., a statutory counterpart). See 8 C.F.R. § 1212.3, which provides:

(f) Limitations on discretion to grant an application under section 212(c) of the Act. An application for relief under former section 212(c) of the Act shall be denied if . . .

(5) The alien is deportable under former section 241 of the Act or removable under section 237 of the Act on a ground which does not have statutory counterpart in section 212 of the Act.

Thap does not dispute that a crime of violence does not afford him a ground of exclusion under INA § 212(a)(2)(A). Rather, Thap argues that robbery is not just a crime of violence but also constitutes a crime of moral turpitude, such that robbery would be a ground of exclusion under INA § 212(a)(2)(A). Thap further argues that, because robbery could be considered a crime of moral turpitude, he should be eligible for relief under INA § 212(c), even if he is removable because robbery is a crime of violence. This circuit has not addressed the issue, but the BIA and several other circuits have.

Only the Second Circuit has reached the conclusion advocated by Thap. See Blake v. Carbone, 489 F.3d 88, 102-03 (2d Cir. 2007); Francis v. INS, 532 F.2d 268 (2d Cir.1976). Under the Second Circuit's analysis, an alien with an aggravated felony conviction "is eligible for a §...