Case Summaries from Precedential Immigration-related Cases in the Third Circuit
This page is dedicated to providing case summaries of the most recent precedential immigration-related decisions from the United States Court of Appeals for the Third Circuit. I started summarizing cases in March 2021, so I plan to summarize all new cases, and then, over time, begin working backwards to older decisions. If you would like to provide feedback or suggest that information is incorrect, please contact me at firstname.lastname@example.org. Thank you.
Jose Arcenio Aristy-Rosa v Att’y General (3rd Cir.)
March 16, 2021
The following is a summary of Jose Arcenio Aristy-Rosa v. Att’y Gen. This case was a petition for Review of an Order of the Board of Immigration Appeals. Issue on review - Does 8 U.S.C. § 1227(a)(2)(B) include the pardon waiver from 1227(a)(2)(A)(vi)? No.
A brief summary of the facts of this case are as follows… Mr. Aristy-Rosa is a native of the Dominican Republic, and was admitted to the United States as a lawful permanent resident in January 1993. Several years later, he was convicted of attempted criminal sale of a controlled substance, cocaine, in violation of New York state law. He was sentenced to five years’ probation and a six-month suspension of his driver’s license.
Thereafter, Mr. Aristy-Rosa received a Notice to Appear in the Immigration Court, and was eventually ordered removed under 8 USC § 1227(a)(2)(A)(iii), because he was convicted of an aggravated felony, and 1227(a)(2)(B)(i), because he was convicted of a controlled substance. Even though Mr. Aristy-Rosa was ordered removed in the 1990’s, he apparently did not depart the United States because in December 2017, New York Governor Andrew Cuomo fully and unconditionally pardoned his controlled substance conviction. As a result of his pardon, Mr. Aristy-Rosa moved sua sponte to reopen his removal proceedings arguing that the pardon eliminated the basis for his removal.
The Immigration Judge denied his motion, and the Board of Immigration Appeals dismissed his appeal because it said In re Sur, 23 I.&N. Dec 626 (B.I.A. 2003) held certain removable offenses, such as controlled substance violations under INA § 237(a)(2)(B) are not covered by the INA’s pardon waiver provision.
Mr. Aristy-Rosa filed a Petition for Review to the Third Circuit asking it to interpret the INA provision governing pardons. Two sections of 8 U.S.C. § 1227 are at issue. 1227(a)(2)(A) and (B). Section 1227(a)(2)(A)(vi) contains a pardon provision for the crimes listed in 1227(a)(2)(A)(I)-(v), but Section 1227(a)(2)(B) contains no similar pardon provision for controlled substance violations. Mr. Aristy-Rosa argued that Congress implied the pardon into 1227(a)(2)(B), even though they did not write it. The answer as to whether the pardon is implied is important to Mr. Aristy-Rosa because the New York pardon eliminated his aggravated felony, but without the pardon applying to his controlled substance violation, he is still removable.
The Third Circuit said Congress did not infer a pardon where it is not explicitly written. Quoting a Ninth Circuity opinion from 2008, Aguilera-Montero v. Mukasey, 548 F.3d 1248, 1252 (9th Cir. 2008), “basic tenets of statutory construction preclude us from inferring a pardon waiver under the provision of 8 U.S.C. § 1182(a), and from the Eleventh Circuit, “Section 1182 does not have a pardon provision like § 1227(a)(2)(A) does, and we believe that if Congress had intended to extend the pardon waiver to inadmissible aliens, it would have done so explicitly.” Balogun v. Att’y Gen., 425 F.3d 1356, 1362 (11th Cir. 2005).
The attorney for Mr. Aristy-Rosa, David Kaplan from Philadelphia, PA, argued that Congress could not limit the scope of the pardon, as detailed in a Department of Justice Office of Legal Counsel memorandum. The court said that the memo was only talking about Presidential Pardons, not gubernatorial pardons at issue here. Creative argument, though.
Mr. Aristy-Rosa is still removable, and a note for Third Circuit Practitioners, the Third Circuit will not be inferring language into the INA anytime soon.
Sunuwar v Att’y General (3rd Cir.)
February 25, 2021
The following is a summary of Sunuwar v. Att’y Gen. This case was a petition for Review of an Order of the Board of Immigration Appeals, submitted on January 26, 2021, and decided February 25, 2021.
23 Pa Cons. Stat § 6114(a) - disobeying a protection order
Respondent sent four letters to victim-wife from jail
18 Pa. Cons. Stat § 2718(a)(3) - Strangulation
A brief summary of the facts of this case are as follows… Mr. Sunuwar immigrated to the United States from Nepal in 2017. On July 2, 2018, he beat and strangled his wife. A Pennsylvania court convicted him of strangulation, 18 Pa. Cons. § 2718(a)(3), and then for later violating the protection from abuse order while he was in jail, 23 Pa. Cons. Stat § 6114(a).
DHS placed Mr. Sunuwar in removal preceding alleging he had been convicted of strangulation, and that a court determined that he violated part of an order involving protection against credible threats of violence, repeated harassment, or bodily injury to the person for whom the order was issued.
Based on this conduct, DHS charged Mr. Sunuwar with removability as an alien who was (1) convicted of an aggravated felony, 8 U.S.C. § 1227(a)(2)(A)(iii), (2) a crime of domestic violence, 8 U.S.C. § 1227 (a)(2)(E)(i), (3) a crime involving moral turpitude, 8 U.S.C. § 1227(a)(2)(A)(i), and (4) as an alien who was found to have violated a protection order, 8 U.S.C. § 1227(a)(2)(E)(ii).
The IJ found Sunuwar removable on all four charged grounds, including violation of a protection order under 8 U.S.C. § 1227(a)(2)(E)Iii). The immigration judge also determined Sunuwar’s conviction for strangulation was a particularly serious crime, rendering him ineligible for all forms of relief, except deferral of removal under the CAT.
Mr. Sunuwar appealed the IJ’s decision to the Board of Immigration Appeals (BIA). The BIA ruled against him by affirming the IJ. Most relevant for our discussion, the BIA affirmed that he is removable under 8 U.S.C. § 1227(a)(2)(E)(ii) based on his conviction for contempt for violating the protection order. Mr. Sunuwar appealed the the Third Circuit Court of Appeals by filing a petition for review. The 3rd Circuit denied the petition for review. Here is what the 3rd Circuit held.
For an alien to be deplorable under 8 U.S.C. § 1227(a)(2)(E)(ii), there (1) must have been a protection order entered by a court against him, (2) at least one portion of that order must have involved protection against a credible threat of violence, repeated harassment, or bodily injury, and (3) a court must have determined that the alien engaged in conduct that violated that portion. Citing Rodriguez v. Sessions, 876 F.3d 280, 284-85 (7th Cir. 2017).
The 3rd Circuit agreed with the BIA that there was a protection order issued against Mr. Sunuwar, he violated the protection order by writing four letters to his wife Rima, and a Pennsylvania court said he violated the terms of the protection order when he wrote her the letters.
The 3rd Circuit held that Mr. Sunuwar’s conviction of Strangulation - 23 Pa Cons Stats. § 6114(a) - is a “particularly serious crime” and therefore making him ineligible for asylum, withholding of removal under the INA, and withholding of removal under CAT. See 8 U.S.C. § 1158(b)(2)(A)(ii).
What is a particularly serious crime? The phrase includes “offenses other than aggravated felonies. See Bastardo-Vale v. Att’y Gen., 934 F.3d 255, 267 (3rd Cr. 2019). While some offenses are per se particularly serious, “the Attorney General [also] retains the authority, through a case-by-case evaluation of the facts surrounding an individual alien’s specific offense, to deem that alien to have committed a particularly serious crime.
To decide if a crime is particularly serious, the agency (1) decides whether an offense’s elements potentially bring the crime into a category of particularly serous crimes, and 2) if so, the agency then determines whether the offense is particularly serous by considering all reliable information about the facts and circumstances of the offense, including the conviction records and sentencing information as well as other information outside the confines of the record of conviction.
Here, the agency considered elements of the offense, Mr. Sunuwar’s sentence, and the offense conduct, and determined that his strangulation offense was a particularly serious crime that made him ineligible for all forms of relief from removal except deferral of removal under the CAT.
Waseem Ahsan Khan v Att’y General (3rd Cir.)
November 3, 2020
This case is case deals with LPR cancellation of removal, and the “stop-time”rule when certain crimes are “decriminalized” post conviction. 8 U.S.C. § 1229(b)(a)(2) and 1229(d)(1).
Facts: Petitioner in this case is, Mr. Waseem Ahsan Khan, was admitted to the United States as a Legal Permanent Resident in 2000. Six years after entering the US, he was convicted of a drug crime in the state of Connecticut. This conviction, though, did not subject him to removal because it was a “single offense involving possession for one’s own use of 30 grams or less of marijuana, 8 U.S.C. § 1227(a)(2)(B)(i). However, in 2010, he was convicted on two counts of larceny, also in Connecticut. These two convictions caused ICE to serve him with a Notice to Appear in 2017, leading to the order of removal.
Mr. Khan sought Cancellation of Removal before the Immigration Judge and the Board of Immigration Appeals because he argued that since Connecticut decriminalized the underlying offense in 2011, and then the state’s subsequent decision to vacate his drug conviction, caused the “stop-time” rule to no longer to become inapplicable to him.
Holding: The Third Circuit held the decriminalization of the crime has no effect on the historical fact that the crime was “committed.”
Analysis: The stop time rule comes from 8 U.S.C. § 1229b(d)(1), which says, the continuous residence or physical presence in the United States shall end when the person commits an offense referred to in 8 U.S.C. § 1182(a)(2) that renders the alien inadmissible or removable under 1227(a)(2) or 1227(a)(4). Mr. Khan committed an offense in 1182(a)(2) when he was convicted in 2006 for the marijuana offense.
The court’s decision turned on a statutory interpretation of the stop-time rule, and it relied heavily on the Supreme Court’s 2020 decision, Barton v. Barr, 140 S.Ct. 1442 (2020). The relevant part of the decision provides two requirements for the stop-time rule:
Cancellation of removal is precluded if a noncitizen committed a § 1182(a)(2) offense during the initial seven years of residence, even if the conviction occurred after the seven years elapsed, and
The text of the law requires that the noncitizen be rendered “inadmissible” as a result of the offense. And while only commission is required at step one, conviction (or admission) is required at step two.
For future stop-time rule cases, the Third Circuit gave us practitioners a two step inquiry to ask: (1) did the petitioner commit one of the offenses identified in § 1182(a)(2) before accruing seven years’ continuous residence, and (2) was the petitioner rendered inadmissible under § 1182(a)(2) as a result of that offense?
Finally, Mr. Khan argued that the Third Circuit’s opinion in Pinho v. Gonzalez and the BIA’s ruling, In re Pickering, provided an analogous situation where, he argued, that “substantive vacaturs,” but not “rehabilitate vacaturs,” render the noncitizen “no longer convicted for immigration purposes.” The court said Mr. Khan had the holding in Pinho backwards. In sum, the court said, “the vacatur of Khan’s conviction for an inadmissibility offense does not relieve him of the effects of the stop-time rule because it does not alter the historical fact that he committed the offense or that the offense renders him inadmissible, 8 U.S.C. § 1229b(d)(1), a consequence of his conviction.