Yeremin v. Holder

• Citation: 707 F.3d 616
• Decision Date: 14 February 2013
• Docket Number: Nos. 10–4525,11–3975.,s. 10–4525
• Parties: Aleksandr Grigoryevich YEREMIN, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

707 F.3d 616

Aleksandr Grigoryevich YEREMIN, Petitioner,

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

Nos. 10–4525, 11–3975.

United States Court of Appeals,Sixth Circuit.

Argued: Dec. 7, 2012.

Decided and Filed: Feb. 14, 2013.

ARGUED:Maris J. Liss, George P. Mann & Associates, P.C., Farmington Hills, MI, for Petitioner. Rachel Browning, United States Department of Justice, WA, D.C., for Respondent. ON BRIEF:Maris J. Liss, George P. Mann, George P. Mann & Associates, P.C., Farmington Hills, MI, for Petitioner. Rachel Browning, United States Department of Justice, WA, D.C., for Respondent.

Before: MOORE and COOK, Circuit Judges; BERTELSMAN, District Judge. ^*

OPINION

KAREN NELSON MOORE, Circuit Judge.

In 2004, Petitioner Aleksandr Yeremin (“Yeremin”), a Russian citizen, pleaded guilty to and was convicted of one count under 18 U.S.C. § 1028(f), for conspiracy to traffic in identification documents in violation of § 1028(a)(3). Section 1028(a)(3) prohibits knowingly possessing with intent to use unlawfully or transfer unlawfully five or more identification documents or false identification documents. As a result of this conviction, the Department of Homeland Security (“DHS”) initiated removal proceedings, asserting that Yeremin was removable for having been convicted of a crime involving moral turpitude within five years of admission to the United States. Yeremin moved to terminate the removal proceedings, but the Immigration Judge (“IJ”) found that Yeremin's conviction was for an offense qualifying as a crime involving moral turpitude and ordered that Yeremin be removed to Russia. The Board of Immigration Appeals (“BIA”) affirmed the IJ's decision and denied Yeremin's subsequent motion to reconsider. Yeremin petitioned this court for review of both the BIA's decision upholding the IJ's determination and its decision denying reconsideration. Under the categorical approach applied by this court, Yeremin's conviction qualifies as a crime involving moral turpitude because the conduct prohibited by the statute he was convicted under inherently involves deceit. Yeremin is thus removable, and accordingly, we DENY Yeremin's petitions for review.

I. BACKGROUND

Yeremin is a Russian citizen who lawfully entered the United States on or about February 3, 1999. See Certified Administrative Record (“C.A.R.”) ¹ at 461 (Notice to Appear at 3). In 2003, Yeremin was indicted for his alleged participation in a “scheme to assist others to fraudulently obtain Michigan driver's licenses using other fraudulent identification documents.” C.A.R. at 65 (Plea Agmt. at 1); see C.A.R. at 115–21 (Indictment). On July 6, 2004, Yeremin pleaded guilty in the U.S. District Court for the Southern District of New York to a single count under 18 U.S.C. § 1028(f), for conspiracy to traffic in fraudulent identification documents in violation of 18 U.S.C. § 1028(a)(3). See C.A.R. at 445 (Judgment at 1). This underlying offense,§ 1028(a)(3), prohibits “knowingly possess[ing] with intent to use unlawfully or transfer unlawfully five or more identification documents (other than those issued lawfully for the use of the possessor), authentication features, or false identification documents.” 18 U.S.C. § 1028(a)(3). The plea agreement in the case stated that the Government “will accept a guilty plea” from Yeremin “to Count One” of the indictment, and that:

[t]he offense of conviction involved the (i) unauthorized transfer or use of any means of identification unlawfully to produce or obtain any other means of identification, and (ii) the possession of 5 or more means of identification that unlawfully were produced from, or obtained by the use of, another means of identification.

C.A.R. at 65–66 (Plea Agmt. at 1–2). A person convicted under § 1028(f) is subject to the same penalties as those prescribed for the § 1028(a) offense, see§ 1028(f), which can include imprisonment of one year or more, see18 U.S.C. § 1028(b). Yeremin was sentenced to five months of imprisonment followed by two years of supervised release. C.A.R. at 446–47 (Judgment at 2–3).

On January 26, 2005, DHS initiated removal proceedings, charging Yeremin as subject to two grounds for removal under the Immigration and Nationality Act (“INA”). DHS asserted that Yeremin was removable first under 8 U.S.C. § 1227(a)(2)(A)(i), which allows removal of aliens convicted of a crime involving moral turpitude committed within five years of admission to the United States, if the crime is punishable by at least one year in prison, and second under 8 U.S.C. § 1227(a)(2)(A)(iii), which allows removal of any alien convicted of an aggravated felony at any time after admission to the United States. See C.A.R. at 461 (Notice to Appear at 3). Although the IJ initially found Yeremin removable under the aggravated-felony charge, see C.A.R. at 170 (Jan. 26, 2005 Hr'g Tr. at 12), she ultimately withdrew this finding after a remand from the BIA, see C.A.R. at 159 (IJ Dec. at 2 n. 1); 247 (Nov. 14, 2005 BIA Dec. at 2).

Regarding the charge of removability relating to the prior conviction for a crime involving moral turpitude, Yeremin moved to terminate the proceedings on the basis that his conviction did not involve moral turpitude, arguing that he did not plead guilty to an offense which necessarily involved fraudulent or deceptive conduct. See C.A.R. at 211 (Br. in Support of Renewed Mot. to Terminate at 4). The IJ denied the motion, and ordered that Yeremin be deported because she found that Yeremin's conviction was for an offense that inherently involved fraud, and thus that it was a crime involving moral turpitude. See C.A.R. at 159 (IJ Dec. at 2) (“While the statute does not contain the term ‘fraud’, the inherent nature of the offense involves fraud.”). The BIA affirmed the IJ's decision on November 5, 2010, agreeing with the IJ that “the inherent nature of the underlying offense clearly involves fraud.” C.A.R. at 76 (Nov. 5, 2010 BIA Dec. at 2). Yeremin petitioned this court for review of the BIA's decision on December 3, 2010.

The same day, December 3, 2010, Yeremin also moved for reconsideration of the BIA's decision affirming the IJ's denial of his motion to terminate the proceedings against him. See C.A.R. at 14 (Mot. to Recon.). The BIA denied the motion to reconsider, and on September 14, 2011, Yeremin petitioned this court for review of the BIA's denial of the motion. Yeremin's two petitions have been consolidated for review by this court.

II. JURISDICTION

In this case, the IJ found that Yeremin was removable under the provision of the INA permitting removal of any alien who is convicted of a crime involving moral turpitude that was committed within five years of his or her admission to the United States, and for which a sentence of at least one year may be imposed. See8 U.S.C. § 1227(a)(2)(A)(i). In general, “we lack jurisdiction to review the removal orders of petitioners deemed removable for having committed a [crime involving moral turpitude].” Ruiz–Lopez v. Holder, 682 F.3d 513, 516 (6th Cir.2012). However, we retain “limited jurisdiction to review questions of law and constitutional claims arising from such orders.” Id. (citing 8 U.S.C. § 1252(a)(2)(D)); see Serrato–Soto v. Holder, 570 F.3d 686, 688 (6th Cir.2009). The determination of whether a conviction under a particular statute qualifies as a crime involving moral turpitude is a question of law and thus is subject to judicial review. See Ruiz–Lopez, 682 F.3d at 516. If we conclude that the BIA properly determined that Yeremin was removable for conviction of a crime involving moral turpitude, then we lack further jurisdiction to review the order of removal. See Kellermann v. Holder, 592 F.3d 700, 702 (6th Cir.2010) (citing 8 U.S.C. § 1252(a)(2)(C)).

We also have jurisdiction to review denials by the BIA of motions to reconsider. See Stone v. INS, 514 U.S. 386, 405–06, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995) (explaining that BIA decisions on motions to reconsider are reviewable); see, e.g., Sswajje v. Ashcroft, 350 F.3d 528, 532–33 (6th Cir.2003) (reviewing for abuse of discretion the BIA's denial of a motion to reconsider).

III. ANALYSIS

A. Standard of Review

“Where, as here, ‘the BIA expressly adopts and affirms the IJ's decision but adds comments of its own, we directly review the decision of the IJ while also considering the additional comments made by the [BIA].’ ” Serrato–Soto, 570 F.3d at 688 (quoting Elias v. Gonzales, 490 F.3d 444, 449 (6th Cir.2007)). The BIA's construction of an ambiguous term in the INA is afforded Chevron deference, which means the BIA's construction will be upheld so long as it is reasonable. Ramirez–Canales v. Mukasey, 517 F.3d 904, 908–09 (6th Cir.2008); see Chevron U.S.A. Inc. v. Natural Res. Def. Council, 467 U.S. 837, 843–44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). This includes the BIA's interpretation of the meaning of “crime involving moral turpitude,” as that term is used in the INA. See Kellermann, 592 F.3d at 702–03. However, de novo review applies to the determination of “whether the elements of a federal crime fit the BIA's definition of a [crime involving moral turpitude].” Id. at 703.

B. Legal Principles

The term “crime involving moral turpitude” is not defined in the INA or by agency regulations. The term “ ‘refers generally to conduct that is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.’ ” Id. (quoting Singh v. Holder, 321 Fed.Appx. 473, 477 (6th Cir.2009)). “Among the tests to determine if a crime involves moral turpitude is whether the act is accompanied by a vicious motive or a corrupt mind.” In re Ajami, 22 I. & N. Dec. 949, 950 (BIA 1999). The BIA has held that “[w]here knowing or intentional conduct is an element of an offense, we have found moral turpitude to be present.” In re Perez–Contreras, 20 I. & N. Dec. 615, 618 (BIA 1992); see In re Serna, 20 I. & N. Dec. 579, 581 (B...