Diana Sellers v. Eric Holder, Jr.
Filing
OPINION filed : Petition for review is DENIED, decision not for publication. Gilbert S. Merritt, Circuit Judge; Martha Craig Daughtrey, Authoring Circuit Judge and Richard Allen Griffin, Circuit Judge.
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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0738n.06
No. 15-3149
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
DIANA RASHIDOVNA SELLERS,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
BEFORE:
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FILED
Nov 04, 2015
DEBORAH S. HUNT, Clerk
ON PETITION FOR REVIEW FROM
THE UNITED STATES BOARD OF
IMMIGRATION APPEALS
MERRITT, DAUGHTREY, and GRIFFIN, Circuit Judges.
MARTHA CRAIG DAUGHTREY, Circuit Judge. Petitioner Diana Rashidovna Sellers,
a Russian national and citizen, entered the United States on a non-immigrant visitor’s visa.
Based on her marriage to a United States citizen, her status was adjusted to lawful permanent
resident on a conditional basis. She was subsequently charged with marriage fraud and making
false statements, and she pleaded guilty to making false statements or representations in violation
of 18 U.S.C. § 1001(a)(2). Her conditional resident status was terminated as a result of her
conviction.
The government then charged Sellers with several grounds for removability under the
Immigration and Nationality Act (INA). The immigration judge found Sellers removable for a
crime involving moral turpitude under 8 U.S.C. § 1227(A)(2)(a)(i) and ineligible for a waiver of
removal under INA § 237(a)(1)(H).
Sellers filed a motion to reconsider, reiterating her
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arguments and additionally arguing that she was eligible for a waiver of removal under
INA § 212(h). The immigration judge denied her motion to reconsider.
Sellers appealed to the Board of Immigration Appeals (BIA), which dismissed her appeal.
Sellers argues that the BIA incorrectly found that her conviction is a crime involving moral
turpitude rendering her removable under 8 U.S.C. § 1227(A)(2)(a)(i). Sellers also argues that the
BIA erred in finding her ineligible for waivers of removal under INA § 237(a)(1)(H) and
INA § 212(h). For the reasons set out below, we conclude that we must deny Sellers’s petition
for review of the BIA’s decision.
FACTUAL AND PROCEDURAL BACKGROUND
Petitioner Diana Sellers (now named Diana Pertuset but referred to as Sellers in the
administrative record) is a Russian citizen who entered the United States on a non-immigrant
visitor’s visa in 2005. On August 23, 2007, based on her marriage to a United States citizen,
Sellers’s status was adjusted to lawful permanent resident on a conditional basis. As it turned
out, the marriage was a sham and resulted in an indictment charging Sellers and her husband
with marriage fraud, 8 U.S.C. § 1325(c); false written statement, 18 U.S.C. § 1001(a)(3); and
false statement and representation, 18 U.S.C. § 1001(a)(2).
In November 2009, Sellers pleaded guilty to count four of the indictment, which charged
her with violating 18 U.S.C. § 1001(a)(2), by “knowingly and willfully mak[ing] a[] materially
false, fictitious, or fraudulent statement or representation” with regard to “any matter within the
jurisdiction of the executive, legislative, or judicial branch of the Government of the United
States.” Specifically, the indictment charged that Sellers and her husband “did knowingly and
willfully make a false, fraudulent and fictitious material statement and representation to an
officer of the [Citizen and Immigration Services] that they were married and co-habitating as
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husband and wife, when in truth and fact they well knew said statement and representation was
false in that the said marriage was a sham, arranged for the purpose of . . . [the husband] to
receive compensation and for [the wife] to evade the immigration laws of the United States.”
Sellers was sentenced to two years’ probation, and her permanent resident status was terminated.
In October 2010, the government charged Sellers with two grounds for removability
under the INA: (1) as an alien who, by fraud or willful misrepresentation, procured an
immigration benefit, INA § 212(a)(6)(C)(i), 8 U.S.C. § 1182(a)(6)(C)(i), and who therefore was
inadmissible at the time of adjustment of status, INA § 237(a)(1)(A), 8 U.S.C. § 1227(a)(1)(A);
and (2) as an alien whose conditional permanent residence status was terminated, INA
§ 237(a)(1)(D)(i), 8 U.S.C. § 1227(a)(1)(D)(i). In May 2011, the government filed an additional
ground of removability, charging Sellers (3) as an alien convicted of a crime involving moral
turpitude committed within five years after admission for which a sentence of one year or longer
may be imposed, INA § 237(a)(2)(A)(i), 8 U.S.C. § 1227(a)(2)(A)(i).
At a hearing in August 2011, Sellers admitted the factual allegations in the government’s
charging documents and conceded guilt with regard to the first two grounds of removability:
willful misrepresentation and termination of permanent residence status. She disputed the third
charge of removability, conviction of a crime involving moral turpitude. She also claimed
eligibility for a waiver of inadmissibility under INA § 237(a)(1)(H), 8 U.S.C. § 1227(a)(1)(H).
That provision authorizes a waiver of removal based on certain misrepresentations and “grounds
of inadmissibility directly resulting from such fraud or misrepresentation.”
The immigration judge found Sellers to be removable. First, the judge ruled that Sellers
was removable under INA § 237(a)(2)(A)(i) because she was convicted of a crime of moral
turpitude. The judge explained that a conviction for making false statements under 18 U.S.C.
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§ 1001(a)(2) constitutes a crime of moral turpitude “where materiality and knowledge are
shown.” Because count four of Sellers’s indictment explicitly stated that she was charged with
willfully making a materially false statement, her resulting conviction made her removable.
Second, the judge found Sellers statutorily ineligible for a waiver under INA
§ 237(a)(1)(H). The judge explained that the waiver required an applicant to “(1) have the
specified relationship to a United States citizen or permanent resident, (2) have been in
possession of an immigrant visa or equivalent document at the time of admission, and (3) have
been otherwise admissible at the time of admission except for inadmissibility under
INA § 212(a)(5)(A)
[8
U.S.C.
§ 1182(a)(5)(A)]
or
INA
§ 212(a)(7)(A)
[8
U.S.C.
§ 1182(a)(7)(A)] directly resulting from the fraud or misrepresentation.” The judge held that
Sellers was statutorily ineligible for the waiver for two reasons: (1) she was admitted as a visitor
and so was not “in possession of an immigrant visa” and (2) she was not “otherwise admissible”
because she had a conviction for committing a crime of moral turpitude, a “ground of
removability not specified in INA § 212(a)(5)(A) or (7)(A).”
Sellers filed a motion for reconsideration, reiterating and expanding upon her arguments
that her crime was not one of moral turpitude and that she was therefore eligible for a waiver
under INA § 237(a)(1)(H). She also invoked eligibility for a waiver under INA § 212(h),
8 U.S.C. § 1182(h), claiming that she departed the United States in 2009 for a trip to Russia and
was admitted upon return. Hence, she argued, the government should have charged her as
inadmissible under § 212, rather than as removable under § 237, making her eligible for the
waiver in § 212(h). She asked the immigration court to grant her the § 212(h) waiver “nunc pro
tunc.”
On September 17, 2012, the immigration judge denied Seller’s motion for
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reconsideration, reaffirming that her conviction was for a crime involving moral turpitude. The
judge did not address her argument for a § 212(h) waiver.
Sellers appealed to the BIA, but her appeal was unsuccessful. The BIA first observed
that a decision that it issued during the pendency of Sellers’s appeal held that a conviction under
18 U.S.C. § 1001(a)(2) is categorically a crime of moral turpitude, foreclosing her argument to
the contrary. Second, the BIA held that a waiver under INA § 237(a)(1)(H), although available
to waive removal on the basis of fraud, is not available to waive removal on basis of a conviction
for making false statements. And third, the BIA held that another decision that it issued during
the pendency of Sellers’s appeal made it clear that a § 212(h) waiver is available to a removable
alien only if the alien concurrently establishes eligibility for adjustment of status. Because
Sellers was not eligible for such an adjustment, the § 212(h) waiver was not available to her.
Sellers filed a timely petition for review of the BIA’s decision.
II. DISCUSSION
When the BIA issues its own separate opinion after reviewing the decision of an
immigration judge, we treat the ruling as the final agency determination. See Khalili v. Holder,
557 F.3d 429, 435 (6th Cir. 2009).1 We review all legal determinations de novo, but grant
substantial deference to the BIA’s interpretation of the INA and its accompanying regulations.
Id.
A. Whether Sellers’s Conviction Under 18 U.S.C. § 1001(a)(2) is a Crime Involving
Moral Turpitude
Sellers contends that the BIA erred in concluding that her conviction for false statements
relating to her sham marriage is a crime involving moral turpitude within the meaning of INA
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In her briefing, Sellers contends that the immigration judge made several legal errors in her analysis. However,
we do not review the immigration judge’s resolution of questions of law if the BIA issues its own opinion rather
than adopting that of the immigration judge. See Khalili, 557 F.3d at 435.
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§ 237(a)(2)(A)(i). The BIA relied on its decision in Matter of Pinzon, 26 I. & N. Dec. 189 (BIA
2013), issued while Sellers’s appeal of the immigration judge’s decision was pending. In that
case, Pinzon was convicted under 18 U.S.C. § 1001(a)(2) for entering the United States using a
passport procured with a false birth certificate. Id. at 189-90. Pinzon argued that a conviction
under § 1001(a)(2) could be obtained without a showing of fraudulent intent and, therefore, that
such a conviction was not categorically a crime involving moral turpitude. Id. at 192. The BIA
disagreed, noting that the Eleventh Circuit had held in United States v. House, 684 F.3d 1173,
1203 (11th Cir. 2012), that “proof of a specific intent to deceive by making a false or fraudulent
statement is a prerequisite for a conviction under § 1001.” Pinzon also argued that a conviction
could be obtained under § 1001(a)(2) even if the misrepresentation was not material. Pinzon,
26 I. & N. Dec. at 193. Again the BIA disagreed, noting that the plain language of the statute
requires that the offender make a “materially false, fictitious, or fraudulent statement or
representation,” id. (emphasis in original) (quoting 18 U.S.C. § 1001(a)(2)), and that the
Eleventh Circuit had held that a statement is “material” under the statute if it has “the capacity to
impair or pervert the functioning of a government agency.” Id. (quoting United States v. BoffilRivera, 607 F.3d 736, 741 (11th Cir. 2010)). The BIA concluded that “an offense that involves
impairing or obstructing a function of the Government by deceit, graft, trickery, or dishonest
means”—the “minimum conduct criminalized by 18 U.S.C. § 1001(a)(2)”—“involves moral
turpitude.” Id. at 194.
Sellers, pointing to the fact that Pinzon relied on Eleventh Circuit precedent, argues that
our precedent and jury instructions dictate a different conclusion. She claims that the Sixth
Circuit’s jury instructions applicable to § 1001(a)(2) require an “inten[t] to deceive” only if a
statement is “fraudulent,” not if it is “false” or “fictitious.” See Sixth Circuit Pattern Jury
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Instructions 13.02 (2013 ed.). At a minimum, Sellers argues, the instructions intimate that
§ 1001(a)(2) sets out multiple offenses, only some of which involve moral turpitude. Therefore,
she says, her case must be remanded to the immigration judge for application of the so-called
“modified categorical” analysis. See Kellermann v. Holder, 592 F.3d 700, 704-05 (6th Cir.
2010).
Unfortunately for Sellers, the BIA has reasonably concluded that § 1001(a)(2)
categorically defines a crime involving moral turpitude. See Fayzullina v. Holder, 777 F.3d 807,
813-14 (6th Cir. 2015) (holding that § 1001(a)(3) categorically defines a crime involving moral
turpitude and noting that the differences between (a)(3) and (a)(2) “do not affect the degree of
moral turpitude.”) When we considered a previous version of the statute, one that did not
incorporate a materiality requirement, we noted that “this court has held that making a false
statement is a [crime involving moral turpitude] where materiality and knowledge are shown.”
Kellerman, 592 F.3d at 704 (citing Zaitona v. I.N.S., 9 F.3d 432, 437 (6th Cir. 1993)). But, the
current statutory language explicitly requires that an offender act “knowingly and willfully” and
that the statement in question be “material[.]” 18 U.S.C. § 1001(a)(2). And like the Eleventh
Circuit in the cases relied on in Pinzon, we have held a statement to be “material for purposes of
18 U.S.C. § 1001 if it has the natural tendency to influence or is capable of influencing the
federal agency.” United States v. Lutz, 154 F.3d 581, 588 (6th Cir. 1998). Thus, our precedent
aligns with the BIA’s conclusion that a violation of § 1001(a)(2) categorically results in a crime
involving moral turpitude.
In any event, even if the immigration judge had applied the modified categorical
approach, see Kellerman, 592 F.3d at 704-05, it is plain that Sellers intended a material
deception.
See Fayzullina, 777 F.3d at 813 (“[C]rimes of making deliberately dishonest
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statements involving material facts are inherently crimes involving moral turpitude.”). Sellers
conceded the government’s factual allegations, including the allegation that her marriage “was
entered into for the purpose of evading the immigration laws of the United States in order to
procure [her] admission as an immigrant” and that her status was adjusted “based upon [her]
marriage . . . .” Moreover, Sellers conceded removability under INA § 212(a)(6)(C)(i) (via
§ 237(a)(1)(A)), thus acknowledging that “by fraud or by willfully misrepresenting a material
fact, she procured an immigration benefit.” Even if Sellers were to receive the remand she
requests, the immigration judge would conclude, as we do here, that her crime was one involving
moral turpitude.
B. Whether Sellers is Eligible for a Waiver Under INA § 237(a)(1)(H)
Sellers argues that she is eligible for a waiver under INA § 237(a)(1)(H). That provision,
titled “waiver authorized for certain misrepresentations,” provides that “[t]he provisions of this
paragraph relating to the removal of aliens within the United States on the ground that they were
inadmissible at the time of admission . . . may, in the discretion of the Attorney General, be
waived for any alien” who meets certain conditions. 8 U.S.C. § 1227(a)(1)(H). The statute also
says that “[a] waiver of removal for fraud or misrepresentation under this subparagraph shall also
operate to waive removal based on the grounds of inadmissibility directly resulting from such
fraud or misrepresentation.” Id.
Sellers contends, not unreasonably, that her conviction for a crime involving moral
turpitude is a “ground[] of inadmissibility directly resulting from [her] fraud or
misrepresentation.” But we considered and rejected that argument in Fayzullina, 777 F.3d at
815. There, we explained that the waiver applies to provisions of “this paragraph,” meaning
paragraph (1) of § 237(a). The provision making removable those aliens who are convicted of
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crimes of moral turpitude appears in paragraph (2), to which the waiver does not apply.
Therefore, Sellers may not take advantage of the waiver to avoid removability as a result of her
conviction.
C. Whether Sellers is Eligible for a Waiver Under INA § 212(h)
Sellers argues that the BIA erred in finding her ineligible for a waiver under INA
§ 212(h). That provision authorizes a waiver under certain circumstances for aliens found to be
inadmissible due to the commission of certain crimes, including crimes involving moral
turpitude under § 212(a)(2)(A)(i)(1). Sellers is present in the United States, and so was charged
as removable under § 237, not inadmissible under § 212. She claims, however, that she exited
and reentered the United States in 2009. Because her reentry occurred after her false statements
were made, she argues that she was inadmissible at that time and that a § 212(h) waiver should
be granted nunc pro tunc.
There are two factual problems with Sellers’s theory, either of which the BIA could have
relied upon in rejecting her request for relief under § 212(h). First, she waived the issue. Her
argument depends on facts asserted in a motion for reconsideration. Normally, arguments raised
for the first time in a motion for reconsideration are forfeited on appeal. See Evanston Ins. Co. v.
Cogswell Props., LLC, 683 F.3d 684, 692 (6th Cir. 2012). Moreover, Sellers never requested a
hearing or submitted evidence to establish the alleged facts. Second, even if we accepted her
account, the record shows that her conviction became final on March 22, 2010, after her
international travel had concluded. When she returned to the United States in 2009, she was not
inadmissible due to a criminal conviction that had not yet occurred and, thus, was not eligible for
a waiver of that conviction.
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But even putting those factual problems aside, the BIA did not err in deeming Sellers
ineligible for the waiver. The BIA relied on its recent decision in Matter of Rivas, 26 I. & N.
Dec. 130 (BIA 2013), pet. for rev. denied sub. nom., Rivas v. U.S. Att’y Gen., 765 F.3d 1324
(11th Cir. 2014), cert. denied, 135 S. Ct. 1414 (2015). In that case, the BIA noted that the statute
authorized a § 212(h) waiver only “where the alien is applying or reapplying ‘for a visa, for
admission to the United States, or adjustment of status.’” Id. at 131 (emphasis omitted) (quoting
8 U.S.C. § 1182(h)(2)). That language, the BIA held, means that a § 212(h) waiver is not
available to an alien in removal proceedings on a “stand alone” basis, but rather is available only
if the alien files a concurrent application for adjustment of status.
Id.; see also 8 C.F.R.
§ 1245.1(f) (providing that, for aliens within the United States, an application for an adjustment
of status “shall be the sole method of requesting [a § 212(h) waiver]”). Given that requirement,
the BIA found that “granting a waiver nunc pro tunc would violate the plain language of the
statute and the intent of Congress.” Rivas, 26 I. & N. Dec. at 134 (italics added). Moreover, the
BIA explained, determining eligibility for the waiver based on an alien’s international travel
created an “asymmetry” that “was a violation of equal protection.” Id. at 133 (citing Judulang v.
Holder, 132 S. Ct. 476, 480 (2011)).
Grounded in the statutory text and legitimate equal protection concerns, the BIA’s
interpretation of the INA is plainly reasonable and entitled to deference. See Palma-Martinez v.
Lynch, 785 F.3d 1147, 1149-50 (7th Cir. 2015) (upholding the BIA’s interpretation of § 212(h));
Rivas, 765 F.3d at 1329-30 (same). Because Sellers did not file a concurrent application for a
status adjustment (for the obvious reason that her sham marriage has made her ineligible for
one), she is not eligible for § 212(h) waiver.
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D. Whether the Government’s Charging Decision was Arbitrary and Capricious
Finally, Sellers contends that the government’s decision to charge her as removable due
to a crime involving moral turpitude, thus depriving her of eligibility for a waiver under either
INA § 237(a)(1)(h) or § 212(h), was arbitrary and capricious. However, we lack jurisdiction to
review the government’s decision to commence proceedings, adjudicate cases, or execute
removal orders. 8 U.S.C. § 1252(g); see also Reno v. American-Arab Anti-Discrimination
Comm., 525 U.S. 471, 482 (1999) (holding that § 1252(g) precludes review only of the “three
discrete actions” named in the text). “Section 1252(g) was directed against a particular evil:
attempts to impose judicial constraints upon prosecutorial discretion.” American-Arab AntiDiscrimination Comm., 525 U.S. at 485 n.9. This preclusion of judicial review reflects the broad
discretion that the government has to charge an alien “with any applicable ground of
inadmissibility” or “any applicable ground of deportability.” 8 U.S.C. § 1229a(a)(2). As a
result, Sellers’s claim is not justiciable.
CONCLUSION
Because BIA did not err in finding Sellers removable and ineligible for statutory waivers,
we DENY the petition for review.
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