Totimeh v. Attorney Gen. of the United States

• Citation: 666 F.3d 109
• Decision Date: 12 January 2012
• Docket Number: 11–1998.,Nos. 10–3939,s. 10–3939
• Parties: George Herman TOTIMEH, Petitioner v. ATTORNEY GENERAL OF the UNITED STATES, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

666 F.3d 109

George Herman TOTIMEH, Petitioner

v.ATTORNEY GENERAL OF the UNITED STATES, Respondent.

Nos. 10–3939

11–1998.

United States Court of Appeals, Third Circuit.

Argued Nov. 16, 2011.Opinion filed: Jan. 12, 2012.

Wayne P. Sachs, Esquire (Argued), Philadelphia, PA, for Petitioners.

Eric H. Holder, Jr., Attorney General, Tony West, Assistant Attorney General, Civil Division, Stephen J. Flynn, Assistant Director, Thomas W. Hussey, Esquire, Jeffrey R. Meyer, Esquire (Argued), Benjamin Zeitlin, Esquire, United States Department of Justice, Office of Immigration Litigation, Civil Division, Washington, DC, for Respondent.

Before: McKEE, Chief Judge, RENDELL and AMBRO, Circuit Judges.

OPINION OF THE COURT

AMBRO, Circuit Judge.

George Totimeh, a native of Liberia, seeks relief from the order of an Immigration Judge (“IJ”) that he be removed from the United States. In these consolidated petitions for review, he seeks review of decisions by the Board of Immigration Appeals (“BIA”) declining to remand or reopen his case and dismissing his appeal.¹ We decide whether the BIA erred in holding that Totimeh's conviction under Minnesota's predatory offender registration statute was a crime involving moral turpitude for purposes of the Immigration and Nationality Act (“INA”). We also decide whether the BIA abused its discretion in not reopening his case to allow him to supplement the administrative record with evidence regarding when he first was admitted legally to the United States. We grant the petitions, reverse the BIA's holding regarding Totimeh's conviction under the predatory offender registration statute, and remand to the BIA with instructions to allow Totimeh to supplement the record to show that he was legally admitted to the United States in July 1980 and to enter an order that he is not removable under § 237(a)(2)(A)(i) of the INA. We thus vacate the order of removal.

I. Facts and Procedural History

Totimeh was inspected and admitted to the United States at New York City as a B–1 visitor in July 1980. Soon thereafter, he moved to Minnesota to attend a university, whereupon his status was changed to an F–1 student. On May 8, 1983, he was granted an adjustment of status to that of a lawful permanent resident.

In January 1988, Totimeh pled guilty to criminal sexual conduct in the fourth degree. In 1995, Minnesota enacted a predatory offender registration statute, Minn. Stat. § 243.166, which requires persons to register if convicted of criminal sexual conduct. Totimeh complied with the statute's requirements for approximately three years, until he moved to a friend's apartment without notifying the authorities of this change of address. In April 1998, he pled guilty to failing to comply with the statute's registration requirement.

On October 29, 2009, the Department of Homeland Security (“DHS”) began removal proceedings against Totimeh by filing a Notice to Appear. The Notice stated that he was admitted to the United States on May 8, 1983. DHS alleged that Totimeh was removable pursuant to two provisions of the INA: (1) based on his 1988 conviction, he was removable under § 237(a)(2)(A)(i), 8 U.S.C. § 1227(a)(2)(A)(i), for having been convicted of a crime involving moral turpitude committed within five years after his “date of admission” and for which a sentence of one year or longer may be imposed; and (2) based on his 1998 conviction, coupled with his 1988 conviction, he was removable under § 237(a)(2)(A)(ii), 8 U.S.C. § 1227(a)(2)(A)(ii), for having been convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct.

When Totimeh first appeared before the IJ, he conceded the factual allegations in the Notice to Appear, including that he was admitted to the United States in May 1983. He also conceded that his 1988 conviction was a crime involving moral turpitude, but denied that his 1998 conviction under Minnesota's predatory offender registration statute was an offense of moral turpitude.

In February 2010, the IJ issued an interlocutory ruling in connection with Totimeh's request for release from DHS custody on bond,² finding that he was removable under both provisions of the INA cited by the DHS. Totimeh's admissions indicated that he was removable under § 237(a)(2)(A)(i) for being convicted of a crime of moral turpitude within five years of his admission to the United States. The IJ held as well that Totimeh's 1998 conviction was for a crime involving moral turpitude (and thus he also was removable under § 237(a)(2)(A)(ii)). The latter ruling relied on the BIA's decision in In re Tobar–Lobo, 24 I. & N. Dec. 143 (BIA 2007), whereby it concluded that failure to register as a sex offender in violation of California's sex offender registration act was a crime involving moral turpitude.

Several months later, Totimeh asserted for the first time that he was admitted to the United States in July 1980, not May 1983. Establishing the July 1980 admission would have nullified the ground for removing him that § 237(a)(2)(A)(i) of the INA provided based on his 1988 conviction. However, he did not support his assertion with any evidence in the record. Therefore, the IJ ruled that Totimeh had been admitted as a legal permanent resident in May 1983, continued to find him removable under § 237(a)(2)(A)(i) and (ii) of the INA, and ordered him removed to Liberia.

Totimeh appealed to the BIA. In affirming the IJ, it similarly relied on Tobar–Lobo to hold that Totimeh was removable under § 237(a)(2)(A)(ii). It also cited In re Shanu, 23 I. & N. Dec. 754 (BIA 2005), for its holding that the term “date of admission” includes an adjustment of status and that an adjustment of status qualifies as a “date of admission” under § 237(a)(2)(A)(i). Thus, per the BIA's reasoning, even had Totimeh offered sufficient proof of his July 1980 admission, he still would have been removable under that subsection of the INA because his change in status to a permanent legal resident in May 1983 made that a date of admission as well.

After filing his petition for review of the BIA's decision, Totimeh filed a motion with the BIA to reopen his case so that he might supplement the record with documentary evidence obtained through a request under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552.³ This evidence established his July 1980 admission, showing that he was admitted on a B–1 visa on July 20, 1980, and that his status was changed to an F–1 student in December 1980, conditioned on his pursuing a full course of study and completing his studies no later than June 1984. The evidence further showed that, as of September 1982, Totimeh was not enrolled in a full course of study.

Before it ruled on the motion to reopen, the BIA decided Matter of Alyazji, 25 I. & N. Dec. 397 (BIA 2011), in which it amended its holding in Shanu, explaining that “date of admission,” as used in § 237(a)(2)(A)(i) of the INA, refers to the single “date of admission by virtue of which the alien was present in the United States when he [or she] committed [the] crime.” Id. at 406. The BIA nonetheless found that the evidence regarding Totimeh's July 1980 admission was immaterial to his removability under § 237(a)(2)(A)(i) because his May 1983 adjustment of status was the single date of admission relevant to his 1988 conviction. Thus, though acknowledging Alyazji superseded Shanu, the BIA denied the motion to reopen.

Totimeh and the Government agree that we must decide whether violating Minnesota's predatory offender registration statute is a crime involving moral turpitude for purposes of § 237(a)(2)(A)(ii) of the INA. If it is not, we then must decide whether, pursuant to the BIA's decision in Alyazji, the five-year period “after the date of admission” for purposes of § 237(a)(2)(A)(i) of the INA should be calculated based on Totimeh's May 1983 adjustment of status to a lawful permanent resident or his earlier 1980 admission date.⁴

II. Jurisdiction and Standard of Review

The IJ has jurisdiction over Totimeh's removal proceedings under 8 U.S.C. § 1229a. The BIA had jurisdiction to review the IJ's decision under 8 U.S.C. § 1103. It had jurisdiction over the motion to reopen under 8 U.S.C. § 1229a(c)(7). We have jurisdiction under 8 U.S.C. § 1252 to review the BIA's final order of removal and denial of the motion to reopen.

Because the BIA rendered its own opinion regarding Totimeh's removability under the INA, we review the decision of the BIA and not the IJ. Xie v. Ashcroft, 359 F.3d 239, 240 (3d Cir.2004). We review the BIA's conclusions of law de novo, “but will afford Chevron deference to the BIA's reasonable interpretations of statutes which it is charged with administering.” Luntungan v. Att'y Gen., 449 F.3d 551, 555 (3d Cir.2006) (quoting Kamara v. Att'y Gen., 420 F.3d 202, 211 (3d Cir.2005)). The BIA's determination of whether a specific crime involves moral turpitude qualifies for Chevron deference. Knapik v. Ashcroft, 384 F.3d 84, 87 n. 3 (3d Cir.2004). Under Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), “[i]f congressional intent is clear from the statute's language, we must give effect to it as written.” Knapik, 384 F.3d at 87. If a statute “is silent or ambiguous, we must decide if the agency's action is based on ‘a permissible construction of the statute.’ ” Id. (quoting Chevron, 467 U.S. at 843, 104 S.Ct. 2778). Except for its conclusions of law, we review the BIA's denial of the motion to reopen for abuse of discretion. Luntungan, 449 F.3d at 555.

III. Crime Involving Moral Turpitude

Whether a conviction under a state law is a crime of moral turpitude calls for “a ‘categorical’ approach, ‘focusing on the underlying criminal statute rather than the alien's specific act.’ ” Jean–Louis v. Att'y Gen., 582 F.3d 462, 465 (3d Cir.2009) (quoting Knapik, 384 F.3d at 88). We consider “what the convicting court must necessarily have found to support the...