No ag IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT. LAWRENCE EWERT MORRIS, Petitioner,

Transcription

1 No ag IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT LAWRENCE EWERT MORRIS, Petitioner, v. ERIC H. HOLDER, Jr., United States Attorney General, Respondent. BRIEF FOR RESPONDENT Agency No STUART F. DELERY Acting Assistant Attorney General Civil Division JENNIFER L. LIGHTBODY Senior Litigation Counsel EDWARD E. WIGGERS Trial Attorney Office of Immigration Litigation United States Department of Justice PO Box 878, Ben Franklin Station Washington, DC (202) Attorneys for Respondent

2 TABLE OF CONTENTS STATEMENT OF JURISDICTION... 1 STATEMENT OF THE ISSUE... 2 STATEMENT OF THE CASE AND OF FACTS... 2 I. BACKGROUND INFORMATION II. MORRIS S IMMIGRATION PROCEEDINGS III. THE IMMIGRATION JUDGE S AUGUST 18, 2011 DECISION IV. THE BOARD S AUGUST 22, 2012 DECISION SUMMARY OF THE ARGUMENT... 8 ARGUMENT... 9 I. SCOPE AND STANDARD OF REVIEW II. III. BURDEN OF PROOF AND STATUTORY FRAMEWORK FOR ADJUSTMENT OF STATUS AND WAIVERS OF INADMISSIBILITY MORRIS IS INADMISSILBE AND MULTIPLE CONVICTIONS RENDER HIM INELIGIBLE FOR A 212(h) WAIVER OF INADMISSIBILITY CONCLUSION...14 Certificate of Compliance Certificate of Service i

3 TABLE OF AUTHORITIES CASES Almeida v Holder, 588 F.3d 778 (2d Cir. 2009)...10 Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)... 9 Descamps v. United States, 2013 WL (June 20, 2013)...12 Dong Gao v. BIA, 482 F.3d 122 (2d Cir. 2007)... 9 INS v. Aguirre-Aguirre, 526 U.S. 415 (1999)... 9 Jiminez v. Quarterman, 555 U.S. 113 (2009)...13 Severino v. Mukasey, 549 F.3d 79 (2d Cir. 2008)...12 Yan Chen v. Gonzales, 417 F.3d 268 (2d Cir. 2005)... 9 Yueqing Zhang v. Gonzales, 426 F.3d 540 n. 7 (2d Cir. 2005)...12 ii

4 STATUTES Immigration and Nationality Act of 1952, as amended: Section 212(a)(2)(A)(i)(II), 8 U.S.C. 1182(a)(2)(A)(i)(II)...10 Section 212(a)(2)(D)(i), 8 U.S.C. 1182(a)(2)(D)(i)...11 Section 212(a)(2)(D)(ii), 8 U.S.C. 1182(a)(2)(D)(ii)...11 Section 212(h), 8 U.S.C. 1182(h)... 1, passim Section 212(h)(1)(A)(i), 8 U.S.C. 1182(h)(1)(A)(i)...11 Section 212(h)(1)(A)(ii), 8 U.S.C. 1182(h)(1)(A)(ii)...11 Section 212(h)(1)(A)(iii), 8 U.S.C. 1182(h)(1)(A)(iii)...11 Section 212(h)(1)(B), 8 U.S.C. 1182(h)(1)(B)...11 Section 212(h)(2), 8 U.S.C. 1182(h)(2)...11 Section 237(a)(1)(B), 8 U.S.C. 1227(a)(1)(B)... 5 Section 240(c)(4)(A)(i), 8 U.S.C. 1229a(c)(4)(A)(i)...9, 12 Section 242(a)(1), 8 U.S.C. 1252(a)(1)... 2 iii

5 Section 242(b)(1), 8 U.S.C. 1252(b)(1)... 2 Section 242(b)(2), 8 U.S.C. 1252(b)(2)... 2 Section 245(a), 8 U.S.C. 1255(a)...10 Section 245(c), 8 U.S.C. 1255(c)...10 Section 245(i), 8 U.S.C. 1255(i)...10 Section 245(i)(1)(A)(ii), 8 U.S.C. 1255(i)(1)(A)(ii)...10 Section 245(i)(2)(A), 8 U.S.C. 1255(i)(2)(A)...10 REGULATIONS 8 C.F.R (b)(3) C.F.R (d)(3)(ii) C.F.R (d) iv

6 No ag IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT LAWRENCE EWERT MORRIS, Agency No. A , Petitioner, v. ERIC H. HOLDER, JR., United States Attorney General, Respondent. BRIEF FOR RESPONDENT STATEMENT OF JURISDICTION This is an immigration case in which Petitioner Lawrence Ewert Morris ( Morris ) seeks review of an August 22, 2012 decision of the Board of Immigration Appeals ( Board ) affirming the Immigration Judge s denial of Morris s applications for adjustment of status and a waiver of inadmissibility under 8 U.S.C. 1182(h). Joint Appendix ( JA ) 3-4. The Board exercised jurisdiction over Morris s appeal of the Immigration Judge s decision pursuant to 8 C.F.R (b)(3) (2012), which grants it appellate jurisdiction over decisions of

7 immigration judges in removal proceedings. The Court s jurisdiction over a petition for review of a final order of the Board arises under 8 U.S.C. 1252(a)(1). Morris timely filed his petition for review on September 4, 2012, within thirty days of the Board s August 22, 2012 decision. 8 U.S.C. 1252(b)(1). Venue is proper because the immigration judge completed the proceedings in Hartford, Connecticut, which is within this judicial circuit. JA 52; 8 U.S.C. 1252(b)(2). STATEMENT OF THE ISSUE Whether the Board properly concluded that Morris is ineligible for a waiver under 8 U.S.C. 1182(h) based on his criminal convictions. STATEMENT OF THE CASE AND OF FACTS I. BACKGROUND INFORMATION. Morris is a fifty-seven-year-old native and citizen of Guyana. JA 233, 323, 342. He entered the United States on November 25, 1975, as a crewmember authorized to remain until his ship departed no later than December 18, JA 323, 342. Morris remained in the United States after December 18, 1975, without authorization from the former Immigration and Naturalization Service ( INS ) or the Department of Homeland Security ( DHS ). Id. 2

8 On January 23, 1979, Morris 1 pled guilty to disturbing the peace under New York Penal Law ( NYPL ) JA 285. Morris had been arraigned on charges of possessing and selling marijuana under NYPL and JA 285. On February 20, 1981, Morris pled guilty to attempted sale of marijuana under NYPL 110 and JA 286. On November 7, 1981, Morris pled guilty to possessing more than two ounces of a substance containing marijuana in violation of NYPL JA 287. On November 7, 1982, Morris pled guilty to possessing more than two ounces of a substance containing marijuana and selling marijuana in violation of NYPL and JA 288. On November 17, 1982, Morris pled guilty to criminal possession of marijuana in the fifth degree and sale of marijuana in violation of NYPL and JA 289. On February 9, 1990, Morris was convicted of possession of narcotics and sale of a hallucinogen or narcotic in violation of CONN. GEN. STAT. 21a- 279(a) and 21a-277(a). JA 320. The court sentenced Morris to five years in jail, with three years to serve and three years of probation. Id. On February 9, 1996, 1 Some of Morris s conviction records use the name James Bynes. JA , 320. Morris admitted to the Immigration Judge that he used the name James Bynes as an alias. JA

9 Morris completed his probation for his sale of narcotic or hallucinogen offense. 2 JA 319. On December 28, 1995, Morris married Ms. Susan Scott ( Scott ), a United States citizen. JA 263. Scott filed a Form I-130, Immigrant Petition for Relative, Finace(e), or Orphan ( I-130 ) on Morris s behalf on April 13, 2001, and the former INS approved the I-130 on May 9, JA 240. On March 13, 2003, Morris filed a Form I-601 Application for a Waiver of Ground of Inadmissibility ( I-601 ), in which he sought a waiver of inadmissibility under 8 U.S.C. 1182(h) ( 212(h) waiver ), with United States Citizenship and Immigration Services ( USCIS ). JA 296. On November 10, 2006, Morris filed a Form I-485, Application to Register Permanent Residence or Adjust Status ( I-485 ) with USCIS. JA 239. On April 20, 2007, the USCIS office in Hartford, Connecticut requested that Morris submit certified court records of his convictions. 3 JA 300. The USCIS Field Office Director denied Morris s I-601 waiver on November 17, 2 The notice of termination of probation states that the date of Morris s sentence for this offense was February 9, JA 319. As Morris received three years in jail and three years of probation for his sales offense, and the court issued the verdict in his case on February 9, 1990, Morris would have begun his probation on February 9, JA , In addition to the convictions referenced above at page 3-4, the USCIS request identified arrests for burglary in New York in 1977 and grand larceny in New York in JA 300. The USCIS request also stated that Morris used the additional aliases James T. Smith and James Morris, and requested records of all convictions he had under all of his aliases. Id. 4

10 2008 because he had multiple possession convictions and the sales conviction. JA On February 9, 2009, Morris filed a motion to reopen and reconsider with USCIS. JA 298. In a letter dated February 11, 2009, USCIS granted Morris s motion to reconsider, reconsidered the denial of his I-485 adjustment application, and affirmed its earlier decision. Id. In support of the denial of Morris s I-485, USCIS cited his multiple drug convictions including convictions for the sale of drugs, for which no waiver was available under 8 U.S.C. 1182(h). JA 298. II. MORRIS S IMMIGRATION PROCEEDINGS. On June 26, 2009, an immigration services officer with DHS served Morris with a Notice to Appear ( NTA ) through regular mail. JA 343. The NTA alleged Morris s alienage and his overstaying of his crewman s visa, and charged him with removability pursuant to 8 U.S.C. 1227(a)(1)(B) as a nonimmigrant who remained in the United States longer than authorized. JA 342. At a hearing on June 7, 2010, Morris admitted the allegations in the NTA and conceded the charge of removability. JA 82-83, 323. Morris informed the Immigration Judge that he was seeking adjustment of status through his United States citizen wife and voluntary departure in the alternative. JA 83, 323. The Immigration Judge requested that Morris provide certified dispositions of his criminal convictions. JA The Immigration Judge renewed the request at 5

11 hearings on October 14, 2010, and January 24, JA , Morris submitted certified dispositions of his New York offenses. JA However, he was unable to obtain a certified disposition of his February 9, 1990 Connecticut conviction because it had been destroyed, although he did not contest the fact of the conviction. JA 106, 125, , 292. In lieu of the conviction document, Morris provided probation records pertaining to his Connecticut conviction as well as a letter from the Connecticut superior court attesting to the fact that his case record had been destroyed. JA During a hearing on August 18, 2011, Morris testified that he did not know to what offense he pled guilty in 1990, and could not recall if it was a sale or possession offense. JA 203. III. THE IMMIGRATION JUDGE S AUGUST 18, 2011 DECISION. At the conclusion of the August 18, 2011 hearing, the Immigration Judge issued an oral decision in Morris s case. JA 52-58, 209. The Immigration Judge found Morris removable based on his admission of the allegations in the NTA and his concession of its charge of removability. JA The Immigration Judge recounted the bases for USCIS s decision to deny Morris s application for adjustment of status and for a waiver of inadmissibility. JA The Immigration Judge noted that Morris bore the burden of establishing his eligibility for the forms of relief he was seeking, and that a 212(h) waiver was available only if his drug offenses were limited to a single offense of simple possession of thirty 6

12 grams or less of marijuana. JA 56. The Immigration Judge found that Morris s Connecticut conviction rendered him ineligible for a 212(h) waiver because it constituted an aggravated felony drug offense. 4 JA The Immigration Judge also agreed with USCIS s finding that Morris was ineligible for a 212(h) waiver because of his conviction for the sale of drugs. JA 57. The Immigration Judge further found that since Morris was ineligible for a 212(h) waiver, he remained inadmissible based on his convictions and was therefore ineligible to adjust status. Id. Accordingly, the Immigration Judge denied Morris s applications for relief from removal and ordered him removed to Guyana. JA IV. THE BOARD S AUGUST 22, 2012 DECISION. Morris appealed to the Board, and the Board issued a decision on August 22, 2012 dismissing his appeal. JA 3-4. Morris did not raise his eligibility for voluntary departure to the Board. JA 14-20, 43. Morris bore the burden of proof on the issue of relief from removal. JA 4. In rejecting the challenge to the Immigration Judge s use of Connecticut probation report to determine the nature of Morris s offenses, the Board found that the Immigration Judge did not clearly err in finding that Morris s Connecticut conviction constituted an aggravated felony for purposes of determining his 4 The Immigration Judge also concluded that the aggravated felony rendered Morris ineligible for voluntary departure. JA 57. 7

13 eligibility for adjustment of status and a waiver of inadmissibility. JA 4. The Board also concluded that regardless of whether his Connecticut conviction constituted an aggravated felony, the evidence indicated that Morris was inadmissible for having been convicted of a controlled substances offense, and Morris had failed to prove that a ground for mandatory denial of adjustment of status did not apply. Id. The Board further found that Morris was ineligible for a 212(h) waiver because he failed to establish that he had only been convicted of a single controlled substances offense that involved simple possession of thirty grams or less of marijuana. Id. The Board reached this conclusion because Morris failed to show his Connecticut conviction involved simple possession of thirty grams or less of marijuana and because he had been convicted multiple times of possession of marijuana. Id. As Morris failed to establish his eligibility for a waiver of his controlled substances convictions, he remained inadmissible based on those convictions and was accordingly ineligible for adjustment of status. Id. The Board therefore dismissed Morris s appeal, and the instant petition for review followed. SUMMARY OF THE ARGUMENT The Board properly dismissed Morris s appeal. Congress assigned the burden of establishing eligibility for discretionary immigration relief to the applicants for that relief. Morris, therefore, bore the burden to demonstrate that his 8

14 convictions did not render him ineligible for adjustment of status or a 212(h) waiver. Morris s failed to demonstrate by a preponderance of the evidence that he was eligible for the relief he sought. Specifically, Morris was unable to demonstrate that his multiple drug convictions: (1) did not constitute controlled substances offenses; and (2) that a waiver of inadmissibility was available. ARGUMENT I. SCOPE AND STANDARD OF REVIEW. When the Board issues an opinion, that decision is the focus of the Court s review. See Dong Gao v. BIA, 482 F.3d 122, 125 (2d Cir. 2007) (citing Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005)). This Court reviews legal issues de novo, giving appropriate deference to the agency s regulations and interpretations of the statutes it administers. See Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984); INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999). II. BURDEN OF PROOF AND STATUTORY FRAMEWORK FOR ADJUSTMENT OF STATUS AND WAIVERS OF INADMISSIBILITY. An applicant for relief or protection from removal bears the burden of proof to establish that he satisfies the applicable eligibility requirements. 8 U.S.C. 1229a(c)(4)(A)(i). As such, where criminal convictions serve as a bar to a form of relief, the applicant for that form of relief bears the burden of demonstrating that 9

15 he does not have a disqualifying conviction. Almeida v Holder, 588 F.3d 778, (2d Cir. 2009); 8 C.F.R (d). Under 8 U.S.C. 1255(a), certain categories of individuals are eligible to adjust status to that of a lawful permanent resident if: (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time the application is filed. See 8 U.S.C. 1255(a). Generally, 8 U.S.C. 1255(c) provides than an alien crewman (like Morris) is not eligible to adjust his status; such an applicant can adjust his status but only under 8 U.S.C. 1255(i), which in essence allows him to adjust his status (if otherwise eligible) by forgiving his unlawful presence. 8 U.S.C. 1255(i)(1)(A)(ii). In order to do so, however, the applicant must show that he is otherwise admissible as required by 1255(i)(2)(A). Under 8 U.S.C. 1182(a)(2)(A)(i)(II), a conviction for an offense relating to a controlled substance renders a noncitizen inadmissible. Pursuant to 8 U.S.C. 1182(h), the Attorney General has discretion to waive certain bases for inadmissibility. The discretion to waive inadmissibility is limited to a few specifically identified bases, including individuals convicted of controlled substances offenses under 8 U.S.C. 1182(a)(2)(A)(i)(II), but only if they relate to 10

16 a single offense of simple possession of thirty grams or less of marijuana. See 8 U.S.C. 1182(h). In order to obtain a waiver, an individual with a qualifying ground of inadmissibility must fit into one of two categories. The individual must either be inadmissible only under 8 U.S.C. 1182(a)(2)(D)(i) or (ii), which concern involvement in prostitution, or the offense for which the individual is inadmissible must be at least fifteen years old. 8 U.S.C. 1182(h)(1)(A)(i). Additionally, the individual s admission to the United States must not be contrary to the national welfare, safety, or security of the United States, and the individual must be rehabilitated. 8 U.S.C. 1182(h)(1)(A)(ii) and (iii). Alternatively, individuals with qualifying convictions may apply for a waiver if they are the spouse, son, or daughter of a United States citizen or lawful permanent resident and their removal would result in extreme hardship to the citizen or lawful permanent resident. 8 U.S.C. 1182(h)(1)(B). Additionally, the Attorney General must consent to the filing an application for a visa, admission to the United States, or adjustment of status. 8 U.S.C. 1182(h)(2). // // // // 11

17 III. MORRIS IS INADMISSILBE AND MULTIPLE CONVICTIONS RENDER HIM INELIGIBLE FOR A 212(h) WAIVER OF INADMISSIBILITY. 5 Congress expressly limited the Attorney General s discretionary authority to waive inadmissibility due to conviction for a controlled substances offense to those cases that involved a single offense of simple possession of thirty grams or less of marijuana. 8 U.S.C. 1182(h). Morris bore the burden of showing that he met this requirement. 8 U.S.C. 1229a(c)(4)(A)(i). 6 Morris has two convictions for possessing a substance containing marijuana in violation of NYPL , two convictions for selling marijuana in violation of NYPL and one conviction for attempting to sell marijuana in violation of NYPL 110 and , and one conviction for possessing marijuana in 5 Morris s failure to raise the question of his eligibility for voluntary departure to the Board resulted in a failure to exhaust that claim, and he has also failed to address it in his brief to this Court, resulting in waiver. Severino v. Mukasey, 549 F.3d 79, 83 (2d Cir. 2008); Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1, 545 n. 7 (2d Cir. 2005). Accordingly, Morris s eligibility for voluntary departure is not before the Court. 6 That Morris is ineligible for a waiver under 8 U.S.C. 1182(h) because of his multiple controlled substance convictions in New York is dispositive--morris is inadmissible, ineligible for a waiver of inadmissibility, and therefore not eligible to adjust his status. The Court need not consider whether Morris s Connecticut conviction also bars him from adjusting his status. If the Court finds that Morris s multiple controlled substance convictions in New York do not make him ineligible for a waiver under section 1182(h), the Court should remand the petition to the Board to determine in the first instance whether the Connecticut conviction bars Morris from adjusting his status in light of the Supreme Court s decision in Descamps v. United States, 2013 WL (June 20, 2013). 12

18 violation of NYPL JA These six convictions are enough to render Morris ineligible for a 212(h) waiver, and the Court should deny the petition for review. Morris argues that his New York convictions are no longer relevant because the Immigration Judge did not consider them in his legal conclusions. Pet r Brief at 15. The Board, however, considers legal issues de novo, and the bases of the Immigration Judge s legal conclusions are not binding on it. 8 C.F.R (d)(3)(ii). Moreover, the Immigration Judge had noted that USCIS denied Morris s applications based on his New York convictions, and cited USCIS s decision with approval. JA 53-54, 57. The Board therefore was free to base its legal conclusions on the record presented to it, and its consideration of the New York convictions was proper. Morris also argues that the statute s arbitrary reference to a single offense of simple possession should not preclude him from being eligible for a 212(h) waiver because Congress could not have intended the reference to bar otherwise eligible applicants from receiving a 212(h) waiver. Pet r Brief at 14 n.4. It is well settled that, when statutory language is plain, we must enforce it according to its terms. Jiminez v. Quarterman, 555 U.S. 113, 118 (2009). Congress s language in 8 U.S.C. 1182(h) could not be more plain: if an applicant has more than one conviction relating to a controlled substance, the applicant is ineligible for 13

19 a 212(h) waiver. Morris provides no basis for concluding that Congress did not mean what it plainly said. The Court, accordingly, should deny the petition for review. CONCLUSION For the foregoing reasons, this Court should deny the petition for review. Respectfully submitted, STUART F. DELERY Acting Assistant Attorney General Civil Division JENNIFER L. LIGHTBODY Senior Litigation Counsel Office of Immigration Litigation /S/ Edward E. Wiggers EDWARD E. WIGGERS Trial Attorney Office of Immigration Litigation Civil Division U.S. Department of Justice P.O. Box 878, Ben Franklin Station Washington, D.C (202) Dated: July 1, 2013 Attorneys for Respondent 14

20 Federal Rules of Appellate Procedure Form 6. Certificate of Compliance With Rule 32(a) Certificate of Compliance With Type-Volume Limitation, Typeface Requirements and Type Style Requirements 1. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because: x this brief contains 2,961 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii), or this brief uses a monospaced typeface and contains [state the number of] lines of text, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because: x this brief has been prepared in a proportionally spaced typeface using Microsoft Word 2010 in14-point Times New Roman font, or this brief has been prepared in a monospaced typeface using [state name and version of word processing program] with [state number of characters per inch and name of type style]. /S/ Edward E. Wiggers EDWARD E. WIGGERS Attorney for Respondent Dated: July 1, 2013

21 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT CAPTION: Morris v. Holder CERTIFICATE OF SERVICE Docket Number: ag I, Edward E. Wiggers, hereby certify under penalty of perjury (name) that on July 1, 2013, I served a copy of (date) Brief for Respondent (list all documents) by (select all applicable)* United States Mail Federal Express Overnight Mail Facsimile X Hand delivery on the following parties (complete all information and add additional pages as necessary): Gregory Osakwe 57 Pratt Street Suite 604 Hartford, CT Name Address City State Zip Code Name Address City State Zip Code Name Address City State Zip Code Name Address City State Zip Code July 1, 2013 Today s Date /S/ Edward E. Wiggers Signature * If different methods of service have been used on different parties, please indicate on a separate page, the type of service used for each respective party.