On Petition for Review of an Order of The Board of Immigration Appeals (No. A91-581-986).
The opinion of the court was delivered by: Ambro, Circuit Judge
Before: AMBRO and BECKER,*fn1 Circuit Judges, STAGG,*fn2 District Judge.
Oyenike Alaka petitions for review of a final order of removal issued by the Board of Immigration Appeals (BIA). We conclude that it erred in affirming the decision of an immigration judge (IJ) that Alaka was ineligible for withholding of removal as a person convicted of a particularly serious crime. Accordingly (and after concluding that we have jurisdiction), we grant the petition for review of her withholding of removal claim, vacate the BIAs decision on this issue, and remand to the BIA for further proceedings. As we do not have jurisdiction to consider the BIAs conclusion, in affirming the IJ, that Alaka abandoned her lawful permanent resident status, we dismiss her petition for cancellation of removal and relief under former § 212(c) of the Immigration and Nationality Act (INA).
Alaka is a citizen of Nigeria who entered the United States without inspection in November, 1984. She received permanent resident status on December 1, 1990. When Alaka attempted to reenter the United States in 2001 after a trip abroad, the Immigration and Naturalization Service ("INS")*fn3 denied her admission because she had been convicted of a crime involving moral turpitude. Alaka sought relief from removal by asserting claims of persecution and torture in Nigeria. She was ultimately denied this relief, in part because her numerous trips outside the United States added up to an abandonment of her lawful permanent resident status. There are thus two sets of facts relevant to this petition: Alaka's criminal history and her trips abroad.*fn4
In 1992, Alaka was convicted in the United States for aiding and abetting bank fraud in violation of 18 U.S.C. §§ 1344 and 2. She was indicted on three counts for conduct involving fraudulent checks. The sentencing court found the total intended loss to be $47,969. Alaka was convicted, however, on only one count, for which the actual loss was $4,716.68. She argued at sentencing that the finding of intended loss should be based only on the charge for which she was convicted, but the Court held that her conduct as to all three charges was part of a "common scheme or plan," and thus the loss amount was properly derived from all the charges. Alaka was sentenced to eight months incarceration, and three years supervised release, and was required to pay $4,716.68 in restitution.
Alaka was also convicted and incarcerated twice outside the United States. In 1994, she was convicted in France for a drug-related offense and was sentenced to approximately one and a half years incarceration. In 1998, a Canadian court convicted her of fraud (for over $5,000 Canadian dollars) and unlawful possession and use of a credit card. She received a three-month sentence for the fraud charge and a concurrent thirty-day sentence for the credit card offense. The United States Government was not able to produce a record of conviction for these offenses, and it is uncontested that the exact details of the foreign convictions are unknown.
Since becoming a permanent resident in 1990, Alaka has left the United States on nine occasions. She has taken four trips to Nigeria (one of which included the trip to France that resulted in her 1994 drug conviction), and five trips to Canada. Her longest absences from the United States were twenty-two months she spent abroad from 1994 to 1995 (the bulk of which time was spent incarcerated in France), and her eight-month visit to Nigeria in 2001. During that last trip, Alaka married a Nigerian citizen who is the father of two of her three sons. The events that occurred during that visit were what prompted her to return to the United States and form the basis of her claims for relief now before us.
Alaka was detained by the INS on August 8, 2001, when she attempted to reenter the United States. A notice to appear was issued on November 19, 2001, charging her with removability under 8 U.S.C. § 1182(a)(2)(A)(i)(I) as an individual who is ineligible for admission on the basis of a conviction for a crime involving moral turpitude (specifically, aiding and abetting bank fraud).*fn5 Alaka admitted she was inadmissible as charged,*fn6 but requested cancellation of removal under 8 U.S.C. § 1229b(a) and relief under former § 212(c) of the INA, 8 U.S.C. § 1182(c) (repealed 1996).*fn7
In July 2002, the IJ found that the time Alaka spent abroad caused her to abandon her permanent resident status, and she was thus ineligible for cancellation of removal and § 212(c) relief. Had Alaka not abandoned her resident status, the IJ stated he "would have found her eligible, as a matter of law, to apply for discretionary relief of the two applications [cancellation of removal and § 212(c) relief]." Alaka responded that she would apply for withholding of removal pursuant to 8 U.S.C. § 1231(b)(3) and withholding of removal under Article 3 of the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman, or Degrading Treatment or Punishment ("CAT").*fn8
In February 2003, the IJ restated his conclusion that Alaka was ineligible for cancellation of removal and 212(c) relief, ruled against her claims for withholding of removal and relief under the CAT, and ordered her removed to Nigeria.*fn9
Though the IJ found Alaka to be credible, and stated that her experience in Nigeria could support a finding of persecution on the basis of, at least in part, political opinion, the "particularly serious" nature of her bank fraud crime under 8 U.S.C. § 1231(b)(3)(ii) precluded his review of her withholding of removal claim. The IJ also denied Alaka's application for CAT relief because there was no evidence to suggest it was more likely than not that she would be tortured in Nigeria by, or with the acquiescence of, the Nigerian government.
Alaka filed a timely motion for reconsideration with the IJ, challenging the designation of her bank fraud offense as "particularly serious." The IJ denied the motion, stating that "while I do not recall with specificity all of the factors which led me to find [Alaka's] conviction to be a 'particularly serious crime' for purposes of withholding of removal . . ., [Alaka's] brief, well presented as it is, does not convince me that I erred."
Alaka appealed both the removal order and the denial of her motion to reconsider, and the BIA adopted and affirmed both decisions of the IJ with only a brief discussion.
On appeal, Alaka reasserts her claims that she is eligible for cancellation of removal, § 212(c) relief, and withholding of removal.*fn10 She has not briefed the CAT claim, and we accordingly consider it waived. United States v. Pelullo, 399 F.3d 197, 222 (3d Cir. 2005); see also Lie v. Ashcroft, 396 F.3d 530, 532 n.1 (3d Cir. 2005).*fn11
Alaka's status as a person convicted of a crime involving moral turpitude raises jurisdictional questions under 8 U.S.C. § 1252(a)(2)(C) and (D) that are typically addressed at the outset of an opinion. See, e.g., Ilchuk v. Att'y General, 434 F.3d 618, 621 (3d Cir. 2006). Here, however, we first consider whether we have jurisdiction under 8 U.S.C. § 1252(a)(2)(B)(ii) (which precludes review of a decision "the authority for which is specified . . . to be in the discretion of the Attorney General or the Secretary of Homeland Security"), and then move on to evaluate to what extent our jurisdiction is limited by Alaka's moral turpitude conviction pursuant to 8 U.S.C. § 1252(a)(2)(C) and (D) (which limit our review to constitutional questions and questions of law where the petitioner is removable by reason of having committed a crime of moral turpitude).*fn12
1. Does 8 U.S.C. § 1252(a)(2)(B)(ii) strip us of jurisdiction over Alaka's withholding of removal claim?
The Government argues that we do not have jurisdiction to consider Alaka's withholding of removal claim in light of 8 U.S.C. § 1252(a)(2)(B)(ii). We disagree. Withholding of removal ("withholding") is a mandatory form of relief from removal "if the Attorney General decides that the alien's life or freedom would be threatened in [the country to which the alien will be deported] because of the alien's race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1231(b)(3)(A). An alien is ineligible for withholding, however, if, inter alia, "the Attorney General decides that . . . the alien, having been convicted by a final judgment of a particularly serious crime[,] is a danger to the community of the United States." 8 U.S.C. § 1231(b)(3)(B)(ii).*fn13 This provision specifies that an alien who has been convicted of an aggravated felony (or felonies) for which the alien has been sentenced to an aggregate term of imprisonment of at least 5 years shall be considered to have committed a particularly serious crime. The previous sentence shall not preclude the Attorney General from determining that, notwithstanding the length of sentence imposed, an alien has been convicted of a particularly serious crime.
Because Alaka was sentenced to fewer than five years for her bank fraud offense, her crime is not automatically designated as "particularly serious." The IJ (acting as agent for the Attorney General) determined she had been convicted of a "particularly serious crime" based on the individual facts of her case. Alaka challenges that determination on appeal, and the Government argues we do not have jurisdiction to review it pursuant to 8 U.S.C. § 1252(a)(2)(B)(ii).
That subsection, added to the INA in 1996 as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), precludes judicial review of a "decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security" (other than the granting of asylum). 8 U.S.C. § 1252(a)(2)(B)(ii). The "subchapter" to which this section refers is Subchapter II in Chapter 12 of Title 8 of the United States Code, and includes all of the statutory provisions at issue in this case. See Urena-Tavarez v. Ashcroft, 367 F.3d 154, 158 (3d Cir. 2004).
We conclude that the exception to eligibility for withholding at 8 U.S.C. § 1231(b)(3)(B)(ii) is not a decision "the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security." 8 U.S.C. § 1252(a)(2)(B)(ii). The jurisdiction-stripping language of § 1252(a)(2)(B)(ii) applies not to all decisions the Attorney General is entitled to make, but to a narrower category of decisions where Congress has taken the additional step to specify that the sole authority for the action is in the Attorney General's discretion. Put another way, the Attorney General's general authority to arrive at an outcome through the application of law to facts is distinct from the issue of whether Congress has "specified" that the decision lies in the Attorney General's discretion and is thus unreviewable.*fn14 As we noted in Soltane v. U.S. Dept. of Justice, if "discretion" under § 125(a)(2)(B)(ii) means nothing more than the application of facts to principles, then it is hard to imagine any action by the Attorney General under the relevant title that ...