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March 14, 2017
  Sijapati v. Boente -- Fourth Circuit
Removability Statute: 5-Year Clock Resets Every Time a Non-Immigrant Leaves the United States

Areas of Law: Criminal Law, Immigration Law

Issue Presented: Whether the Fourth Circuit should accord Chevron deference to the Board of Immigration Appeals' interpretation of "the date of admission" under 8 U.S.C. § 1227(a)(2)(A)(i)(I) in Matter of Alyazji.

Brief Summary: The United States Court of Appeals for the Fourth Circuit held that the Board of Immigration Appeals' interpretation of "the date of admission" in Matter of Alyazji is entitled to Chevron deference. In Alyazji, "the date of admission" under 8 U.S.C. § 1227(a)(2)(A)(i)(I) was construed as the date of admission "by virtue of which an alien was in the United States at the time that he committed the crime involving moral turpitude." Thus, the Fourth Circuit found that the petitioner's second admission date was "the date of admission" for purposes of determining his removability. The Fourth Circuit affirmed the Board of Immigration Appeals' order.

Extended Summary: Ashish Sijapati, a native of Nepal, was admitted to the United States on a non-immigrant L-2 visa on January 25, 2001. On December 31, 2002, Sijapati departed the United States for a two-and-a-half-week vacation to Nepal. On January 18, 2003, Sijapati reentered the United States pursuant to his existing L-2 visa. On December 12, 2007, a circuit court in Virginia convicted Sijapati of felony embezzlement and imposed an eighteen-month suspended sentence.

Following Sijapati's conviction, the Department of Homeland Security ("DHS") instituted removal proceedings against Sijapati under 8 U.S.C. § 1227(a)(2)(A)(i)(I), alleging that Sijapati had been convicted of a crime involving moral turpitude within five years of the date of his admission. Sijapati filed a motion to terminate the removal proceedings against him, arguing that his embezzlement conviction did not render him removable.

The immigration court denied Sijapati's motion. The immigration court found that the Board of Immigration Appeals' ("BIA") decision in Matter of Alyazji controlled the determination of Sijapati's date of admission. In Alyazji, the BIA construed "the date of admission" as the date of "admission pursuant to which the alien was in the United States at the time that he committed the crime involving moral turpitude." Thus, the immigration court found that Sijapati's admission on January 18, 2003 was the date of admission for purposes of the statute. Accordingly, the immigration court declined to terminate Sijapati's removal proceedings but ordered that he be granted voluntary departure in lieu of removal. Sijapati appealed to the BIA, which, in its unpublished decision, affirmed the immigration court's determination. Sijapati then petitioned the Fourth Circuit for review of the BIA's order.

The Fourth Circuit denied the petition and affirmed the BIA's decision. According to Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 844 (1984), the BIA's interpretation of an ambiguous provision in the Immigration and Nationality Act ("INA") "must be given controlling weight unless th[at] interpretation[] [is] 'arbitrary, capricious, or manifestly contrary to the statute.'" ("Chevron deference"). However, because Chevron deference "is accorded only when an 'agency's interpretation is rendered in the exercise of [its] authority [to make rules carrying the force of law],'" the Fourth Circuit could not defer to the BIA's unpublished decision denying Sijapati's relief. Nevertheless, according to Hernandez v. Holder, 783 F.3d 189, 192 (4th Cir. 2015), when an unpublished decision lacking precedential weight relies on a precedential decision to which Chevron deference can apply that precedential decision controls "to the extent that 'Congress has not directly addressed the precise question at issue' and 'the [BIA]'s answer is based on a permissible construction of the statute.'"

Thus, to determine whether Alyazji's construction of "the date of admission" was entitled to deference, the Fourth Circuit applied this two-step inquiry. First, the court considered "whether Congress has directly spoken to the precise question at issue." If Congress' intent is clear, the court's inquiry comes to an end. If the statute is silent or ambiguous as to the specific issue, the court must then determine "whether the agency's answer is based on a permissible construction of the statute."

First, the Fourth Circuit held that the phrase "the date of admission" is ambiguous. Citing Ojo v. Lynch, 813 F.3d 533, 539 (4th Cir. 2016), the Fourth Circuit explained that when conducting the first inquiry, a court focuses "purely on statutory construction without according any weight to the agency's position." After looking at the plain language of the statute, the Fourth Circuit found that the INA is silent as to which admission should be used in determining an alien's removability under 8 U.S.C. § 1227(a)(2)(A)(i)(I), in the event an alien has multiple admissions, like Sijapati.

The Fourth Circuit continued to the second inquiry - whether Alyazji reasonably interpreted the meaning of "the date of admission." In Alyazji, concentrating on the statutory provision's "focus[] on admission plus presence," the BIA concluded that "the most natural reading of section 237(a)(2)(A)(i) is that the phrase 'the date of admission' refers to the date of admission by virtue of which the alien was present in the United States when he committed his crime." The Fourth Circuit found that Alyazji's construction was not arbitrary, capricious, or manifestly contrary to the statute for three reasons. First, the BIA followed the normal principles of statutory construction, considering the statute's "overall design" and "the language of the [moral turpitude] provision itself." Second, the BIA explained how its interpretation was informed by its own precedent and judicial constructions of the statute. Third, the BIA reasonably concluded that an alternative construction - treating the date of an alien's first admission as "the date of admission" - "is not reconcilable with the language and purpose of the statute."

In conclusion, the Fourth Circuit held that the BIA's interpretation of "the date of admission" in Alyazji was entitled to Chevron deference. The court concluded that Sijapati's second admission date (January 18, 2003) was the date of admission, and therefore he committed a crime involving moral turpitude within five years of his admission.

To read the full opinion, click here.

Panel: Judges Traxler, Keenan, and Wynn

Argument Date: 10/25/2016

Date of Issued Opinion: 02/01/2017

Docket Number: No. 15-1204, No. 15-1804

Decided: Petitions for review denied by published opinion

Case Alert Author: Ziyi He, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Benjamin Winograd, IMMIGRANT & REFUGEE APPELLATE CENTER, LLC, Alexandria, Virginia, for Petitioner. Laura Halliday Hickein, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Irina Manelis, DYER IMMIGRATION LAW GROUP, P.C., Henrico, Virginia, for Petitioner. Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Shelley R. Goad, Assistant Director, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent

Author of Opinion: Circuit Judge Wynn

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 03/14/2017 12:38 PM     4th Circuit  

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