for Review of an Order from the Board of Immigration Appeals
on the briefs:[*]
Ishola, Heier, Ishola & Navarro, PLLC, West Valley City,
Utah, for Petitioner.
A. Readler, Acting Assistant Attorney General, Claire L.
Workman, Senior Litigation Counsel, Rachel Browning, Trial
Attorney, Office of Immigration Litigation, Civil Division,
Department of Justice, Washington, DC, for Respondent.
BRISCOE, HARTZ, and McHUGH, Circuit Judges.
Paulo Afamasaga, a native and citizen of Samoa, entered the
United States on a nonimmigrant tourist visa and remained
beyond the date authorized. After he pleaded guilty to making
a false statement when applying for an American passport,
see 18 U.S.C. § 1542, the Department of Homeland
Security (DHS) successfully initiated removal proceedings
against him. Mr. Afamasaga applied for cancellation of
removal under 8 U.S.C. § 1229b, but the immigration
judge (IJ) deemed him ineligible on the ground that violating
§ 1542 is a crime involving moral turpitude (CIMT) under
the Immigration and Nationality Act (INA). The Board of
Immigration Appeals (BIA) agreed and dismissed his appeal.
we usually lack jurisdiction to review BIA orders concerning
cancellation under § 1229b, see 8 U.S.C. §
1252(a)(2)(B)(i), we have jurisdiction to review questions of
law decided in those orders, id. §
1252(a)(2)(D)." Flores-Molina v.
Sessions, 850 F.3d 1150, 1157 (10th Cir. 2017).
Exercising that jurisdiction, we deny Mr. Afamasaga's
petition for review of the BIA's decision.
Factual and Procedural Background
Afamasaga was admitted to the United States on a
nonimmigrant, B-2 tourist visa in February 1998, with
authorization to remain until that August. He stayed much
longer. In 2011, Mr. Afamasaga pleaded guilty in federal
court to violating § 1542, which prohibits
"willfully and knowingly mak[ing] any false statement in
an application for [a] passport with intent to induce or
secure the issuance of a passport under the authority of the
United States." The indictment charged that Mr.
Afamasaga falsely stated in his passport application that he
was born in American Samoa; had that been true, he would be a
United States citizen. He was sentenced to time served,
though he could have been sentenced to up to ten years in
prison. See 18 U.S.C. § 1542. Shortly
thereafter, the DHS issued a Notice to Appear, charging him
with removability as an alien who had remained in the United
States longer than permitted. See 8 U.S.C. §
1227(a)(1)(B). The IJ sustained the charge of removability.
Afamasaga applied for cancellation of removal and adjustment
of status or, in the alternative, for voluntary departure.
The IJ pretermitted his cancellation application after
deeming him inadmissible under 8 U.S.C. § 1182(a)(2)
because he has been convicted of a CIMT. See id.
§ 1182(a)(2)(A)(i)(I). The IJ did, however, grant
voluntary departure to Samoa.
decision issued by a single board member under 8 C.F.R.
§ 1003.1(e)(5), the BIA agreed that Mr. Afamasaga's
conviction for a violation of § 1542 constitutes a CIMT
and affirmed the IJ's decision.
noncitizen applying for cancellation of removal must show,
among other things, that he has not been convicted of a CIMT.
See 8 U.S.C. § 1229b(b)(1); see also Garcia
v. Holder, 584 F.3d 1288, 1289 (10th Cir. 2009)
("An alien convicted of a CIMT is . . . not eligible for
cancellation of removal. . . ."). "[W]hether a
criminal conviction constitutes a [CIMT] is a question of
law, which we review de novo." de Leon v.
Lynch, 808 F.3d 1224, 1228 (10th Cir. 2015). But if a
provision of the INA is interpreted by the Attorney General
or in an opinion of the BIA that is binding precedent within
the agency, we generally apply Chevron U.S.A., Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837,
843 (1984), and defer to that interpretation if it is a
reasonable one. See Hernandez-Carrera v. Carlson,
547 F.3d 1237, 1244-56 (10th Cir. 2008) (applying
Chevron to Attorney General's ...