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Media Alerts - Mahmood v. Sessions -- Fourth Circuit
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April 20, 2017
  Mahmood v. Sessions -- Fourth Circuit
Immigration Status Clarified: Lawful Permanent Residents Don't Retain Asylum Status

Areas of Law: Immigration Law, Statutory Interpretation, Administrative Law

Issue Presented: Whether the Board of Immigration Appeals erred in finding that an alien who voluntarily adjusts his status from asylee to lawful permanent resident no longer retains his asylee status.

Brief Summary: In a published opinion, the United States Court of Appeals for the Fourth Circuit affirmed the Board of Immigration Appeals' ("BIA") decision to uphold an immigration judge's order to remove lawful permanent resident Riaz Mahmood from the United States after he deliberately misrepresented material facts to obtain travel documents. The court held that the BIA's interpretation of 8 U.S.C. §1159(b) - that aliens who adjust to lawful permanent resident status under the statue do not retain their asylum status - was the best interpretation of the statute. The Fourth Circuit also determined that the BIA's decision was entitled to deference under Chevron USA Inc. v. Natural Resources Defense Council, Inc. Accordingly, the court denied Mahmood's petition for review.

Extended Summary:
Riaz Mahmood, a native and citizen of Pakistan, was granted asylum in the United States in 1997. In 2006, he applied for a refugee travel document to visit his wife and children in Bangkok, Thailand. In his application, he indicated that since being granted asylum, he had not returned to Pakistan nor "applied for and/or obtained a national passport, passport renewal, or entry permit" from Pakistan. This was not true; Mahmood left the U.S. in 2003 using a Pakistani passport and reentered the U.S. in 2005 using a U.S. visa. The U.S. Department of Homeland Security ("DHS") was unaware of this fact and granted Mahmood's refugee travel document application in 2006. He left the U.S. in 2007 again using a Pakistani passport (with a different number than the one he used in 2003) and returned in 2007 using his U.S.-issued refugee travel document. In late 2007, Mahmood applied for a second refugee travel document to visit his wife and children and again denied having returned to Pakistan or obtained or renewed a Pakistani passport. While this second application was pending, Mahmood used a Pakistani passport to leave the country and used the second refugee travel document, which had by then been granted, to reenter the U.S. In 2009, Mahmood left the U.S. for a fourth time using a Pakistani passport with a third number. He claimed that he traveled to Dubai, where he met his wife and children. After meeting them, he claimed they flew to Russia, Cuba, and then Mexico. Once in Mexico, he said he intended to cross the border with his family "because their lives were in danger in Pakistan" and he intended to have them apply for asylum. Mahmood and his family were apprehended after crossing into the U.S. and, in August 2009, DHS charged Mahmood with removability on the ground that he entered the U.S. without inspection.

While that removability charge was pending, Mahmood filed a Form I-485 application to adjust his status from asylee to lawful permanent resident pursuant to 8 U.S.C. §1159(b). In his application, Mahmood certified under penalty of perjury that he "never by fraud or willful misrepresentation of a material fact, ever sought to procure, or procured, a visa, or other documents, entry into the United States, or any immigration benefit." He also certified that he never knowingly aided an alien in trying to enter the U.S. illegally. While his form I-485 application was pending, DHS dropped the illegal entry charge against Mahmood and granted his application for adjustment to the status of lawful permanent resident in 2012. In 2013, DHS commenced a removal proceeding against Mahmood alleging that he tried to procure an immigration benefit through fraud and willful misrepresentation, which made him inadmissible at the time of his application for adjustment and removable. An immigration judge held a removal hearing and found that DHS proved by clear and convincing evidence that Mahmood fraudulently obtained his lawful permanent resident status and two refugee travel documents. Additionally, the judge found that Mahmood was ineligible for a waiver of inadmissibility under 8 U.S.C. §1159(c) and ordered that Mahmood be removed to Pakistan.

Mahmood appealed the immigration judge's decision to the BIA arguing that: (1) the immigration judge erred in denying his application for waiver of inadmissibility; and (2) since he retained his asylum status after his adjustment to lawful permanent resident status, the judge erred in ordering his removal without first conducting an asylum termination proceeding under 8 U.S.C. §1158(c). Relying on its decision in Matter of C-J-H, 26 I. & N. Dec. 284, wherein it concluded that "aliens whose status was adjusted from asylee to lawful permanent resident no longer qualif[ied] as asylees," the BIA found it was proper for the immigration judge to order Mahmood's removal without first conducting an asylum proceeding. As a result, the BIA rejected Mahmood's arguments and dismissed his appeal. Mahmood subsequently filed a petition of review to the Fourth Circuit.

The Fourth Circuit found that Mahmood no longer retained the status of an "alien granted asylum" after he adjusted his status to lawful permanent resident. Therefore, he was subject to removal for procuring any immigration benefit by fraud or willful misrepresentation of a material fact. First, the court looked to the language of §1159(b), which states that "'the Secretary of Homeland Security or the Attorney General . . . may,' upon application of the alien and satisfaction of specified statutory conditions, 'adjust to the status of an alien lawfully admitted for permanent residence the status of any alien granted asylum.'" The court found the language of the statute contemplated two statuses: (1) as an "alien granted asylum;" and (2) an alien "lawfully admitted for permanent residence." Moreover, the statute provides for the adjustment from one status to the other, which, to the court, indicated a change to the other status and not an "accretion" of a second status. As a result, the court found that Mahmood no longer held the status of an asylee and was thus subject to removal for procuring an immigration benefit by fraud.

Mahmood also argued that since he was an asylee at the time he adjusted his status, the court needed to focus on §1158(c)(2)'s restriction on the removal of asylees. Under this provision, the Attorney General can only terminate asylum status for five listed reasons, none of which includes adjustment of status under §1159(b). Additionally, he argued, even if he could be removed, his adjustment of status could not substitute for a formal termination of his asylum status under §1158(c). The Fourth Circuit found Mahmood's argument unpersuasive because it equated voluntarily surrendering his asylum status by adjusting it under §1159(b) with the involuntary loss of asylum status through the Attorney General's termination of it under §1158(c). The court found that the two were not the same because §1158 protects an asylee from having his status terminated against his will, while §1159 allows an asylee to voluntarily give up his asylum status in favor of lawful permanent resident status. The court found that the most reasonable reading of §1159 led to the conclusion that once an asylee adjusts his status to lawful permanent resident, the alien is then fully considered a lawful permanent resident and not an asylee.

The court did find Mahmood's interpretation at least plausible, which suggested some ambiguity in the statute. Nevertheless, even under the assumption that the statute was ambiguous, the court found the BIA's interpretation of the Immigration and Naturalization Act ("INA") was entitled to Chevron deference. When the issue is whether the BIA correctly interpreted the INA statute, Chevron deference applies since the BIA is responsible for administering the statute. If the statute is ambiguous, the court must defer to the BIA's permissible construction of the ambiguity through its published decisions. The court noted that the BIA's interpretation controls unless it reaches a conclusion that is "arbitrary, capricious, or manifestly contrary to the statute." Here, since the BIA relied on its precedential decision in Matter of C-J-H, the Fourth Circuit found that the BIA reached a reasonable conclusion and its reading of §1159 was not arbitrary or contrary to the statute. Therefore, the Fourth Circuit affirmed the BIA's holding that Mahmood was no longer an asylee and thus was no longer afforded the protections of an asylee.

To read the full opinion, click here.

Panel: Judges Niemeyer, Traxler, and Diaz

Argument Date: 01/24/2017

Date of Issued Opinion: 02/22/2017

Docket Number: 16-1438

Decided: Petition denied by published opinion.

Case Alert Author: Lauren Harrison, Univ. of Maryland Carey School of Law

Counsel: Bradley Bruce Banias, BARNWELL, WHALEY, PATTERSON, AND HELMS, LLC, Charleston, South Carolina, for Petitioner. Tiffany L. Walters, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, Anthony C. Payne, Assistant Director, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Author of Opinion: Circuit Judge Niemeyer

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 04/20/2017 09:19 AM     4th Circuit  

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