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Afamasaga v. Sessions

United States Court of Appeals, Tenth Circuit

March 19, 2018

PAULO AFAMASAGA, a/k/a Paul Afamasaga, Petitioner,
v.
JEFFERSON B. SESSIONS, III, Attorney General of the United States, Respondent.

         Petition for Review of an Order from the Board of Immigration Appeals

         Submitted on the briefs:[*]

          Hakeem Ishola, Heier, Ishola & Navarro, PLLC, West Valley City, Utah, for Petitioner.

          Chad 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.

          Before BRISCOE, HARTZ, and McHUGH, Circuit Judges.

          HARTZ, Circuit Judge.

         Petitioner 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.

         "Although 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.

         I. Factual and Procedural Background

         Mr. 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.

         Mr. 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.

         In a 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.

         II. Discussion

         A 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 ...


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