Noel Romero v. Atty Gen USA

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MANDATE ISSUED, filed.

Noel Romero v. Atty Gen USA

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NOT PRECEDENTIAL U N IT E D STATES COURT OF APPEALS F O R THE THIRD CIRCUIT

No. 08-4104

NOEL VILMAR ROMERO, Petitioner v. A T T O R N E Y GENERAL OF THE UNITED STATES, Respondent

On Petition for Review from the Board of Immigration Appeals B IA -1 No. A029-635-129 Im m ig ratio n Judge: The Honorable Margaret Reichenberg

Argued June 21, 2010 B e f o re : SMITH, FISHER, and COWEN, Circuit Judges (F ile d : August 10, 2010) _______________________ O P IN IO N _______________________

F r a n c is X. Geier, Esq. (argued) A n a ya n c y R. Housman, Esq. 453 Westminster Avenue E liz a b eth , NJ 07208 C o u n s e l for Petitioner 1

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C h ristin a B. Parascandola, Esq. (argued) Benjamin J. Zeitlin, Esq. O f f ic e of Immigration Litigation, Civil Division U n ite d States Department of Justice P .O . Box 878 Ben Franklin Station W a sh in g to n , D.C. 20044 C o u n s e l for Respondent

S M IT H , Circuit Judge. A n Immigration Judge ("IJ") found that Petitioner Noel Romero ("Noel") willfully m is re p re se n te d his criminal record in order to obtain lawful permanent resident status, and o rd e re d his removal. The Board of Immigration Appeals ("BIA") dismissed Noel's appeal. N o e l now petitions this Court for review. We have jurisdiction under 8 U.S.C. § 1252, s u b je c t to the qualifications explained in this opinion.1 We will deny the petition. I. Noel, a native of Peru, entered the United States in August 1984. His B-2 visa expired in February of 1985, but he remained in this country well past that date. In June of 1995, he m arrie d Flavia Romero ("Flavia"), a naturalized American citizen. The couple had two c h ild re n , both of whom are American citizens. On February 7, 1996, Flavia petitioned the IN S for a visa for her husband based on their marriage. On the same day, Noel applied for a d j u s t m e n t of status to permanent resident by completing a Form I-485. This form asked

We have considered and rejected the Attorney General's argument that we lack ju ris d ic tio n because no live case or controversy is presented. 2

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w h e th e r Noel had "ever . . . . been arrested, cited, charged, indicted, fined, or imprisoned for b re a k in g or violating any law or ordinance[.]" Noel answered "No," despite his prior c o n v ic tio n s under New Jersey law for cocaine possession, assault, shoplifting, and receipt o f stolen property. On July 10, 1996, his application for adjustment of status to lawful p e r m a n e n t resident was granted, albeit on a conditional basis. N a tio n a lity Act ("INA") § 216, 8 U.S.C. § 1186a. On June 10, 1998, the Romeros jointly petitioned to remove the conditions on Noel's la w f u l resident status by filing a Form I-751. That form asked whether Noel, since becoming a conditional permanent resident, had "been arrested, cited, charged, indicted, convicted, f in e d , or imprisoned for breaking or violating any law or ordinance[.]" Noel answered "No." T h is response was inaccurate, for he had again been convicted of shoplifting on March 12, 1 9 9 7 . On July 8, 1998, the INS granted the Romeros' petition and removed the conditions o n Noel's permanent resident status. On February 7, 2006, Noel arrived at Newark Airport on a flight returning from Peru. W h e n he applied for admission as a lawful permanent resident, he was detained and served w ith a Notice to Appear ("NTA"). The NTA alleged that Noel was inadmissible and re m o v a b le on four grounds: as an alien convicted of a crime involving moral turpitude (" C IM T " ),2 INA § 212(a)(2)(A)(i)(I); as an alien convicted of a controlled substance offense, id . § 212(a)(2)(A)(i)(II); as an alien who obtained an immigration benefit by fraud or willful See Immigration and

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Shoplifting is a CIMT. Smirko v. Ashcroft, 387 F.3d 279, 283 (3d Cir. 2004). 3

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m is re p re s e n ta tio n of material fact, id. § 212(a)(6)(C)(i); and as an intended immigrant who, a t the time of his application for admission, lacked a valid, unexpired immigrant visa or other s u ita b le entry document, id. § 212(a)(7)(A)(i). Noel conceded the first two grounds of in a d m is s ib ility-- w h ic h were based on his shoplifting and cocaine convictions--but denied th e latter two, which were based on his failure to disclose his criminal record on the I-485 a n d I-751 forms. Noel and Flavia testified at a hearing before the IJ on October 31, 2006. Noel denied w i llf u lly misrepresenting his criminal record. He explained that he had not filled out the re lev a n t forms himself, because he did not understand English at the time. Instead, he paid a Spanish-speaking legal secretary named Evelyn Rodas to complete the forms on his behalf. N o e l testified that he only provided the information that Rodas asked him to supply, and that s h e never asked him if he had a criminal record. He admitted to signing the inaccurate forms, b u t only because Rodas told him to, and he trusted her because she had "done this for other p e o p le and it had come out well." Flavia's testimony was similar. She testified that Rodas h a d filled out both immigration forms on Noel's behalf, and that neither she nor any im m ig ra tio n official had ever asked whether Noel had a criminal record. While his removal proceedings were pending, Noel filed a motion to terminate those p ro c e ed in g s under 8 C.F.R. § 1239.2(f). That regulation permits an IJ to terminate removal p ro c e ed in g s to permit an alien to receive a final hearing on a pending application for n a tu ra liz a tio n , provided the alien (1) has established prima facie eligibility for naturalization

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an d (2) the matter involves "exceptionally appealing or humanitarian factors[.]" The IJ sta ted that she would terminate removal proceedings if the Department of Homeland Security (" D H S " ) stipulated to termination. DHS did not so stipulate, and proceedings continued. O n March 28, 2007, the IJ ordered Noel's removal from the United States. She c o n c lu d e d that Noel had twice obtained immigration benefits by willfully misrepresenting m a te ria l facts: first by failing to disclose his criminal record on the I-485 form, and later by f a ilin g to disclose his March 1997 shoplifting conviction on the I-751 form. The IJ rejected N o e l's claim that his omissions were innocent mistakes. She apparently believed his claim th a t he had not filled out the forms himself, but found that he had willfully failed "to be c a n d id [about his record] with those people that he chose to help him prepare his a p p lic a tio n s ," including his wife and Rodas. Finally, the IJ upheld the charge that Noel was inadmissible because he did not p o s s e s s a valid entry document when he applied for admission at Newark Airport. See INA § 212(a)(7)(A)(i). She reasoned that Noel's lawful permanent resident card was not a "valid" e n try document for purposes of admission because he had obtained it through fraud. Based on these conclusions, the IJ held that Noel was inadmissible and removable on a ll four grounds alleged in the NTA. She also concluded that Noel was ineligible for the v a rio u s forms of relief from removal he had requested, including cancellation of removal u n d e r INA § 240A and a waiver under (now-repealed) INA § 212(c). On April 19, 2007, Noel filed a timely Notice of Appeal with the BIA. He did not file

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a supporting brief, but he did complete the section of the form that required him to "State in D e tail the Reasons for [the] Appeal." That statement read, in its entirety: We submit that the Court erred in finding that the Respondent w a s ineligible for the various applications for relief submitted in th e se proceedings. Despite finding the witnesses' testimony c re d ib le , the Court nevertheless found that the Respondent had w ilf u lly misrepresented himself in obtaining lawful permanent re sid e n c e, a finding unsupported by, and in fact contradicted by th e record of proceedings. As a result of the Court's fraud f in d in g , the Immigration Judge never even considered the R es p o n d e n t's alternate applications for relief, including [INA S e c tio n ] 212(c) relief and Cancellation of Removal, deeming h im automatically ineligible. Neither did the Court grant the R e sp o n d e n t his motion for termination of proceedings for leave to pursue his application for naturalization. For these reasons, w e appeal to the Board of Immigration Appeals. T h e BIA dismissed the appeal, noting that Noel had presented no specific facts or le g a l arguments to support his claims of error. It also specifically endorsed the IJ's refusal to terminate removal proceedings so that Noel could pursue naturalization. It concluded that re m o v a l proceedings could not be terminated under § 1239.2(f) because Noel had obtained n o affirmative communication from DHS attesting to his prima facie eligibility for n a tu ra liz a tio n . The BIA noted that § 1239.2(f), as interpreted in Matter of Acosta-Hidalgo, 2 4 I&N Dec. 103 (B.I.A. 2007), requires such a communication from the DHS before an IJ m a y terminate removal proceedings. O n October 3, 2008, Noel filed a timely petition for review in this Court. He raises th re e claims of error. First, he argues that the record does not support the IJ's finding that h e willfully misrepresented his criminal record on the I-485 and I-751 forms. Second, he 6

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a rg u e s that his removal is barred by the five-year statute of limitations of INA § 246(a), 8 U .S .C . § 1256(a). Third, he contends that the IJ and BIA violated due process by denying h is motion to terminate removal proceedings under § 1239.2(f) simply because the DHS did n o t affirmatively communicate his prima facie eligibility for naturalization to the IJ. II. Noel first argues that the IJ's finding that he willfully misrepresented his criminal past is not supported by the record. He concedes that he failed to disclose his convictions on the relev an t immigration forms. Furthermore, he does not deny that these omissions were m is re p re s e n ta tio n s of "material" facts. See INA § 212(a)(6)(C)(i). He argues only that his f a ilu re to disclose his criminal record was not "willful" because he did not himself u n d e rs ta n d that the relevant forms requested that information, and the person he depended o n to complete the forms for him (Ms. Rodas) never asked about the subject. "The element o f willfulness is satisfied by a finding that the misrepresentation was deliberate and v o lu n ta ry. The [government] does not need to show intent to deceive; rather, knowledge of th e falsity of the representation will suffice." Mwongera v. I.N.S., 187 F.3d 323, 330 (3d Cir. 1 9 9 9 ) (internal citations and quotations omitted). Whether a misrepresentation was willful is an issue of fact. Singh v. Gonzales, 413 F.3d 156, 160 (1st Cir. 2005). Accordingly, we r e v ie w the IJ's finding of willfulness under the "substantial evidence" standard, and we must u p h o ld it unless the record is such that "any reasonable adjudicator would be compelled to c o n c lu d e " that the IJ erred. Chen v. Gonzales, 434 F.3d 212, 216 (3d Cir. 2005) (quoting 8

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U .S .C . § 1252(b)(4)). After reviewing the record, we conclude that a reasonable adjudicator c o u l d have concluded that Noel's misrepresentation was "deliberate and voluntary." M w o n g e r a , 187 F.3d at 330. Therefore, we will not disturb the IJ's finding of willfulness.3 II I. Next, Noel argues that even if he willfully misrepresented material facts in 1996 and 1 9 9 8 , his removal on that basis is barred by the five-year statute of limitations on rescissions o f adjustment of status contained in INA § 246(a), which we applied in Bamidele v. I.N.S., 9 9 F.3d 557 (3d Cir. 1996), and Garcia v. Attorney General, 553 F.3d 724 (3d Cir. 2009). W e lack jurisdiction to consider this claim. "A court may review a final order of re m o v a l only if," among other requirements, "the alien has exhausted all administrative re m e d ie s available to the alien as of right." 8 U.S.C. § 1252(d)(1). This means that "an alien is required to raise and exhaust his or her remedies as to each claim or ground for relief if h e or she is to preserve the right of judicial review of that claim." Abdulrahman v. Ashcroft, 3 3 0 F.3d 587, 594-95 (3d Cir. 2003) (emphasis added). Despite the jurisdictional nature of th is requirement, we have taken a "liberal" approach to enforcing it. Joseph v. Att'y Gen., 4 6 5 F.3d 123, 126 (3d Cir. 2006). "[S]o long as an immigration petitioner makes some e f f o rt, however insufficient, to place the Board on notice of a straightforward issue being ra is e d on appeal, a petitioner is deemed to have exhausted [his] administrative remedies."

We also reject Noel's subsidiary argument that the IJ erred, on the basis of her in c o rre c t willfulness finding, in concluding that he was ineligible for a waiver under INA § 212(c) and/or cancellation of removal under INA § 240A. 8

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Y a n Lan Wu v. Ashcroft, 393 F.3d 418, 422 (3d Cir. 2005). Noel cannot satisfy even this permissive standard. His Notice of Appeal to the BIA d id not argue that his removal was time-barred by § 246(a).4 Indeed, nothing in the Notice, e v e n when read "expansively[,] even suggested the issue." Lin v. Att'y Gen., 543 F.3d 114, 1 2 1 (3d Cir. 2008). The Notice challenges only the IJ's finding that Noel willfully

m is re p r e s e n te d material facts, and the IJ's decision not to terminate removal proceedings so that Noel could pursue naturalization. While "an alien need not do much to alert the Board th a t he is raising an issue," Joseph, 465 F.3d at 126, he must do something. Noel did not do s o with respect to his § 246(a) claim.5 Therefore, he has not exhausted his administrative re m e d ie s with respect to that claim, and we lack jurisdiction to consider it. IV. Finally, Noel contends that the IJ violated his due process rights by refusing to te rm in a t e his removal proceedings pursuant to 8 C.F.R. § 1239.2(f). That regulation p ro v id e s, in relevant part, that "[a]n immigration judge may terminate removal proceedings to permit the alien to proceed to a final hearing on a pending application or petition for n a tu ra liz a tio n when [1] the alien has established prima facie eligibility for naturalization and

Nor did the BIA consider the issue sua sponte. See Lin v. Att'y Gen., 543 F.3d 1 1 4 , 126 (3d Cir. 2008) (deeming exhaustion requirement satisfied where the petitioner f a iled to raise an issue but the BIA considered it sua sponte). At oral argument, Noel's counsel conceded that the statute of limitations issue w a s not presented to the BIA. 9
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[ 2 ] the matter involves exceptionally appealing or humanitarian factors[.]" 6 In AcostaH id a lg o , the BIA interpreted the first prong of this test to require "some affirmative c o m m u n ic a tio n regarding [the alien's] prima facie eligibility for naturalization from the D H S " before an IJ may terminate removal proceedings. 24 I&N Dec. at 107-08. We have u p h e ld this interpretation as reasonable. Zegrean v. Att'y Gen., 602 F.3d 273, 274 (3d Cir. 2 0 1 0 ). Here, the IJ declined to terminate removal proceedings pursuant to § 1239.2(f), and a s the BIA noted, termination of proceedings would have been impermissible under AcostaH id a lg o because the DHS had not provided any affirmative communication attesting to N o e l's prima facie eligibility for naturalization. Noel does not dispute that § 1239.2(f), as in te rp re te d in Acosta-Hidalgo, imposes an "affirmative communication" requirement. R a th e r, he argues that the Board's imposition of such a requirement is "fundamentally unfair b e c au s e it gives the [DHS] complete veto power over a termination of removal proceedings th ro u g h silence." He argues that he has demonstrated prima facie eligibility for

n a t u ra liz a t io n , in that he (1) was a legal permanent resident for over five years; (2) was a p e rs o n of good moral character for the last ten years; and (3) had not committed an

The remainder of the regulation provides that "in every other case, the removal h e a rin g shall be completed as promptly as possible notwithstanding the pendency of an a p p lic a tio n for naturalization during any state of the proceedings." 8 C.F.R. § 1239.2(f). The purpose reflected in § 1239.2(f) is to give removal proceedings priority over n a tu ra liz a tio n proceedings, "to prevent a race between an alien, seeking to be naturalized, a n d immigration authorities, [seeking] to complete removal proceedings." AcostaH id a lg o , 24 I&N Dec. at 107 (internal quotations omitted). 10

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a g g ra v a te d felony. He also maintains that the "humanitarian factors" referenced in § 1 2 3 9 .2 (f ) weighed in favor of terminating removal proceedings, as he has lived in the United S ta te s for more than two decades and has a wife and children who are American citizens. A cc o rdin g to Noel, under these circumstances, it was fundamentally unfair for the IJ and BIA to deny him a chance at naturalization simply by virtue of the DHS's silence.7 W e are not persuaded. Noel cites no authority for the proposition that the rule of A c o sta -H id a lg o violates due process, and our research reveals none. Noel points to Board M e m b e r Filppu's dissent in Acosta-Hidalgo, but even Filppu did not argue that his preferred rea d ing of § 1239.2(f) was compelled by due process. He argued only that the majority's in te rp re ta tio n created "difficult[ies]" and offered an alternative interpretation that would have e lim in a te d those difficulties. See Acosta-Hidalgo, 24 I&N Dec. at 109. The rule announced in Acosta-Hidalgo is not fundamentally unfair. Congress, which h a s plenary power over immigration, has granted the Attorney General the "sole authority to naturalize persons as citizens of the United States." 8 U.S.C. § 1421(a). This authority h a s been delegated to the DHS. See Hernandez de Anderson v. Gonzales, 497 F.3d 927, 933 ( 9 th Cir. 2007). As Acosta-Hidalgo recognized, the BIA and IJs lack authority to determine

It appears this is the first time Noel has raised this argument. "Normally, we h a v e jurisdiction over an alien's claims only where the alien has raised and exhausted his o r her administrative remedies as to that claim. However, due process claims are g e n e ra lly exempt from the exhaustion requirement because the BIA does not have ju ris d ic tio n to adjudicate constitutional issues." Mudric v. Att'y Gen., 469 F.3d 94, 97-98 (3 d Cir. 2006) (internal citations omitted). Our review is plenary. Id. 11

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p rim a facie eligibility for naturalization. 25 I&N Dec. at 105-06. It is not fundamentally u n f a ir for them to require affirmative confirmation of eligibility from the one entity that does h a v e that authority before terminating removal proceedings under § 1239.2(f). See

H e rn a n d e z de Anderson, 497 F.3d at 935 (rejecting due process challenge to § 1239.2(f)); " [ g ]iv e n Congress's plenary power over immigration," petitioner's argument "that the A tto rn e y General and, derivatively, the DHS have been given too much authority over n a tu ra liz a tio n and removal decisions" was unpersuasive). V. For the foregoing reasons, the petition for review will be denied.

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FISHER, Circuit Judge, concurring. T h o u g h I unconditionally join my colleagues' opinion in Parts I, II and IV, I write s e p a ra te ly to concur in Part III and to express my reservations about the strict e n f o rc e m e n t of administrative exhaustion requirements in this case. U n d e r the clear precedent of this circuit, by which we are bound, the requirement th a t a petitioner administratively exhaust all issues by presenting them in a notice of a p p e a l to the BIA is statutory and a prerequisite to our jurisdiction. See 8 U.S.C. § 1252(d)(1); Abdulrahman, 330 F.3d at 594-95. I agree with the majority's assessment th a t Romero failed to specifically raise his statute of limitations argument in his notice of a p p e al, and that under our strict interpretation of the requirements of § 1252(d)(1) that o m is s io n precludes our jurisdiction over the issue. H o w e v e r, administrative exhaustion is a means to a practical end, not a question of m e re technical compliance. See Weinberger v. Salfi, 422 U.S. 749, 765 (1975) (" E x h a u stio n is generally required as a matter of preventing premature interference with a g e n cy processes, so that the agency may function efficiently and so that it may have an o p p o rtu n ity to correct its own errors, to afford the parties and the courts the benefit of its e x p e rie n c e and expertise, and to compile a record which is adequate for judicial re v iew ."); cf. McRae v. Library of Congress, 843 F.2d 1494, 1496 (D.C. Cir. 1988) (" [ B ] y requiring exhaustion before the agency in the first instance, Congress did not in te n d to erect a massive procedural roadblock to access to the courts."). The focus of an in q u iry into administrative exhaustion should be whether the agency had actual notice and

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o p p o rtu n ity to address the petitioner's grievance before resort to the federal courts. Because the agency clearly had such notice and opportunity here, and conceded as much a t oral argument, I believe that strict enforcement of administrative exhaustion re q u ire m e n ts in this case poorly serves Congress' intended ends in enacting such r e q u ir e m e n t s. A s DHS noted to the Court, the IJ considered the application of Bamidele's statute o f limitations holding to Romero's case. (A.R. 165-66.) The IJ observed, "I've been f o rc e d to form an opinion on recision versus within the, the change in the law and the T h ird Circuit case being prior to the change in the law, so I didn't, I do have an opinion a b o u t that. I think they can . . . . I think they can just go with the removal proceedings." (A.R. 165.) Romero's counsel responded, "I know. . . . But I'll just put it in there so I c a n preserve it and that's all." (A.R. 166.) Although this exchange is admittedly oblique, n o party disputes that it was a reference to Bamidele, which applied the five-year statute o f limitations found in § 246(a) to removal proceedings based on erroneous adjustments o f status. 99 F.3d at 563. The IJ's reference to the "change in law" reflects the 1996 a m e n d m e n t to § 246(a), which DHS believed invalidated Bamidele until our subsequent d e c is io n in Garcia reaffirmed its application. Garcia, 553 F.3d at 728. Thus, although c o u n se l unnecessarily conceded that Bamidele offered no post-amendment remedy, this c o n c e ss io n was based on an interpretation of uncertain law and reflected a desire to " p re se rv e " the issue for later review. At the time the notice of appeal was filed, omitting

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th is issue for review, Garcia had not yet been decided and the status of Bamidele in light o f the statutory amendment remained unclear. A lth o u g h the amendment of § 246(a), and its uncertain impact on Bamidele, does n o t definitively excuse Romero's failure to raise the statute of limitations defense in his n o tice of appeal, I believe it places the onus on the agency, as opposed to the court, to a rg u e that it was unduly surprised by Romero's later resurrection of this issue on appeal. The agency never raised administrative exhaustion in its briefs, and it was this panel that f irs t broached the topic at oral argument. In fact, DHS conceded that it had considered a n d rejected an administrative exhaustion argument because the statute of limitations is s u e had been raised with the IJ, citing the portion of the administrative record quoted a b o v e . Where, as here, the purposes of administrative exhaustion have been served, I do n o t believe that Congress intended our jurisdiction to turn on mere technicalities. Cf. B o w d e n v. United States, 106 F.3d 433, 439 (D.C. Cir. 1997) ("[E]xhaustion requirements . . . are practical and pragmatic and should not be invoked when they serve no practical p u rpo se.") (quotation omitted). I therefore join the majority in the outcome of this case, but also share in the re se rv a tio n s expressed by this Court in Lin, where we stated, "[W]hile there is reason to c a s t doubt upon the continuing validity of our precedent holding that issue exhaustion is a ju ris d ic tio n a l rule, short of a review en banc, we must dutifully apply that precedent."

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5 4 3 F.3d at 120 n.6; see also See Zhong v. U.S. Dep't of Justice, 480 F.3d 104, 107 (2d C ir. 2007).

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