Awawda v. Barr ( 2020 )

19-367-ag
Awawda v. Barr
BIA
Conroy, IJ, Tsankov, IJ
A46 439 145
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE
OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A
PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED
BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 15th day of May, two thousand twenty.
PRESENT: JOHN M. WALKER, JR.,
DENNY CHIN,
STEVEN J. MENASHI,
Circuit Judges.
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RIBHI A. AWAWDA, AKA RIBHI AWAWDEH,
AKA REBHI AWAWDA, AKA RIBHI ABED
AWAWDA, AKA RIHHI EL ABED AWAWDEH,
Petitioner,
-v- 19-367-ag
WILLIAM P. BARR, UNITED STATES
ATTORNEY GENERAL,
Respondent.
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FOR PETITIONER: Amy Nussbaum Gell, Gell & Gell, New York,
New York.
FOR RESPONDENT: Christin M. Whitacre, Trial Attorney (Holly M.
Smith, Senior Litigation Counsel, on the brief),
for Joseph H. Hunt, Assistant Attorney
General, Office of Immigration Litigation, Civil
Division, United States Department of Justice,
Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a Board of
Immigration Appeals ("BIA") decision, it is hereby ORDERED, ADJUDGED, AND
DECREED that the petition for review is DENIED.
Petitioner Ribhi A. Awawda seeks review of a January 18, 2019 decision of
the BIA affirming a July 26, 2018 decision of an Immigration Judge ("IJ") denying his
motion to terminate removal proceedings and a September 7, 2018 decision of a
different IJ ordering his removal. In re Ribhi A. Awawda, No. A046 439 145 (B.I.A. Jan.
18, 2019), aff'g No. A046 439 145 (Immig. Ct. N.Y. City July 26, 2018 & Sept. 7, 2018). We
assume the parties' familiarity with the underlying facts and procedural history in this
case.
Awawda is a non-native, non-citizen who was accorded lawful permanent
resident ("LPR") status in the United States in 1999. He was subsequently convicted
twice, both times following a guilty plea, of tax evasion in violation of N.Y. Tax Law §
1814(a). On April 26, 2018, the Department of Homeland Security ("DHS") served
Awawda with a Notice to Appear, charging him with removability pursuant to 8 U.S.C.
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§ 1182(a)(2)(A)(i)(I) for having been convicted of a crime involving moral turpitude
("CIMT"). Awawda moved to terminate the removal proceedings on the ground that
his convictions did not constitute CIMTs. He also applied for a waiver of
inadmissibility under Immigration and Nationality Act ("INA") § 212(h), 8 U.S.C. §
1182(h), asserting that his removal would result in undue hardship to his LPR wife and
their eight U.S. citizen children.
On July 26, 2018, an IJ held that Awawda's New York convictions were
CIMTs and denied Awawda's motion to terminate removal. On September 7, 2018, a
different IJ determined that Awawda was ineligible for relief under INA § 212(h)
because his 2007 conviction was an aggravated felony under 8 U.S.C. §
1101(a)(43)(M)(ii). The BIA affirmed both decisions.
This appeal followed.
I. Standard of Review
We have reviewed both the IJs' and the BIA's opinions "for the sake of
completeness." Wangchuck v. Dep't of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006).
Our jurisdiction is limited to constitutional claims and questions of law because
Awawda was ordered removed under 8 U.S.C. § 1182(a)(2)(A)(i)(I). See 8 U.S.C. §
1252(a)(2)(C), (D). We have jurisdiction to review whether Awawda's convictions
qualify as aggravated felonies, and "[w]e review the BIA's interpretation of state or
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federal criminal laws de novo." See Vargas-Sarmiento v. U.S. Dep't of Justice, 448 F.3d 159,
165 (2d Cir. 2006).
II. Waiver
We first consider the BIA's finding that Awawda's 2007 conviction
constitutes an aggravated felony, as we hold this finding dispositive to both of
Awawda's central challenges on appeal.
The Attorney General has discretion under the INA § 212(h) to waive
certain grounds of inadmissibility. 8 U.S.C. § 1182(h). An alien who has been convicted
of an aggravated felony after having been admitted for lawful permanent residence in
the United States, however, is ineligible for a waiver. Id. The INA defines aggravated
felonies to include offenses "described in section 7201 of Title 26 (relating to tax evasion)
in which the revenue loss to the Government exceeds $10,000." 8 U.S.C.
§ 1101(a)(43)(M)(ii).
It is undisputed that Awawda was admitted as a lawful permanent
resident in 1999 and was convicted under N.Y. Tax Law § 1814(a) in 2007 and 2017.
"When the [g]overnment alleges that a state conviction qualifies as an 'aggravated
felony' under the INA," we employ a categorical approach "to determine whether the
state offense is comparable to an offense listed in the INA." Moncrieffe v. Holder, 569 U.S.
184, 190 (2013). The state and federal laws employ nearly identical language, and both
apply to individuals who "willfully attempt[] in any manner to evade or defeat" certain
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taxes or "payment thereof." 26 U.S.C. § 7201; see N.Y. Tax Law § 1814(a). The state law
applies only to taxes on certain amounts of tobacco products. N.Y. Tax Law § 1814(a).
The federal law applies to federal taxes and sweeps more broadly to reach both tobacco
and non-tobacco taxes. See 26 U.S.C. § 7201 (reaching "any tax imposed by this title"); 26
U.S.C. § 5701 (imposing taxes on tobacco products).
We find no merit to the argument that the statutes are categorically
different because one applies to evasion of state taxes and the other applies to the
evasion of federal taxes. 1 A state offense is an aggravated felony "described in" a
federal statute if it contains every element of the federal statute other than jurisdictional
elements, such as elements requiring a connection to interstate or foreign commerce.
See Torres v. Lynch, 136 S. Ct. 1619, 1631 (2016). The agency properly extended Torres to
the present situation to conclude that state tax evasion in violation of N.Y. Tax Law §
1814(a) is comparable to federal tax evasion in violation of 26 U.S.C. § 7201, despite its
application to evasion of state tobacco taxes, for the following reasons. First, as the
1 Awawda does not challenge the agency's conclusion that the loss to the state
government in connection with his 2007 conviction exceeded § 1101(a)(43)(M)(ii)'s $10,000
threshold. The BIA erred to the extent that it suggested that both of Awawda's convictions
were aggravated felonies because there were no factual findings regarding loss amount in
connection with the 2017 conviction. But this error was harmless because only one aggravated
felony was required to establish that Awawda was ineligible for a waiver. See 8 U.S.C.
§ 1182(h). For that reason and others, to the extent that Awawda now challenges the validity of
his 2017 conviction, that argument is irrelevant. See also Lanferman v. BIA, 576 F.3d 84, 88 (2d
Cir. 2009) (holding that criminal convictions are not subject to collateral attack in removal
proceedings).
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Supreme Court emphasized in Torres, "Section 1101(a)(43)'s penultimate sentence . . .
provides: 'The term [aggravated felony] applies to an offense described in this
paragraph whether in violation of Federal or State law and applies to such an offense in
violation of the law of a foreign country for which the term of imprisonment was
completed within the previous 15 years.'" Id. at 1626 (quoting 8 U.S.C. § 1101(a)(43)).
Second, the "essential harm of the crime is the same irrespective" of whether it is the
federal or state government that is deprived of tax revenues owed to it. Id. at 1629.
Third, "Congress may have had good reason to think that a statutory reference would
capture more accurately than a generic label the range of state convictions" qualifying
as aggravated felonies because their elements are often disputed. Id. at 1633.
Accordingly, "[t]he use of a federal statutory reference shows only that Congress
thought it the best way to identify certain substantive crimes -- not that Congress
wanted (in conflict with the penultimate sentence) to exclude state and foreign versions
of those offenses . . . ." Id.
Although we also retain jurisdiction to review colorable constitutional
claims, 8 U.S.C. § 1252(a)(2)(C), (D), Awawda's due process challenge to the agency's
aggravated felony determination is meritless. To establish a due process violation in
immigration proceedings, an alien must show that an error "impinged upon the
fundamental fairness of the hearing." United States v. Perez, 330 F.3d 97, 101 (2d Cir.
2003); see Lin v. U.S. Dep't of Justice, 453 F.3d 99, 104-05 (2d Cir. 2006) (noting that due
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process requires "a full and fair opportunity to present . . . claims"). No notice of the
aggravated felony issue was required because, contrary to his argument on appeal,
Awawda carried the burden to establish his eligibility for a waiver. See 8 U.S.C.
§ 1229a(c)(4)(A); 8 C.F.R. § 1240.8(d). And even if notice was required, he received it --
at a hearing prior to the merits hearing, counsel for the DHS warned that Awawda must
establish that his convictions were not aggravated felonies to be eligible for a § 212(h)
waiver. 2
III. Removability
Awawda also contends that the BIA erred in affirming the IJ's finding that
his convictions under N.Y. Tax Law § 1814(a) constitute CIMTs. Although numerous
courts have concluded that intentionally depriving a government of tax revenues meets
the statutory definition of a CIMT, see, e.g., Carty v. Ashcroft, 395 F.3d 1081, 1084 (9th Cir.
2005); Wittgenstein v. INS, 124 F.3d 1244, 1246 (10th Cir. 1997); Costello v. INS, 311 F.2d
343, 348 (2d Cir. 1962) rev'd on other grounds, 376 U.S. 120 (1964); Tseung Chu v. Cornell,
247 F.2d 929, 935-36 (9th Cir. 1957); accord Matter of E-, 9 I. & N. Dec. 421, 426 (BIA 1961);
Matter of M-----, 8 I. & N. Dec. 535, 543-45 (BIA 1960); Matter of W-----, 5 I. & N. Dec. 759,
2 Awawda also argues that the agency relied on a 2009 conviction not in the record in
reaching its aggravated felony determination. He is incorrect. The IJ referred (during the
hearing, and not, as Awawda argues, in a decision) to a 2009 conviction, but it is clear from the
transcript that the IJ misspoke and was referring to the 2007 conviction.
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764 (BIA 1954), Awawda contends this precedent is no longer good law under
Kawashima v. Holder, 565 U.S. 478 (2012).
We need not, and do not, decide Kawashima's impact on the CIMT analysis
here because even assuming the BIA erred in its assessment, remand would be futile.
Although a determination by this Court that the BIA's reasoning was "inadequate or
improper" would typically render us "powerless to affirm the administrative action" on
an alternate ground, SEC v. Chenery Corp., 332 U.S. 194, 196 (1947), we may do so where
remand would be "futile," Manzur v. U.S. Dep't of Homeland Sec., 494 F.3d 281, 289 (2d
Cir. 2007). Remand is futile where, inter alia, "the reviewing panel is confident that the
agency would reach the same result upon a reconsideration cleansed of errors." Lin v.
U.S. Dep't of Justice, 453 F.3d 99, 107 (2d Cir. 2006). Because the commission of an
aggravated felony renders an alien deportable just as a CIMT does, see 8 U.S.C. §
1227(a)(2)(A)(iii), the BIA's correct finding that Awawda was convicted of an
aggravated felony rendered him removable regardless. We thus affirm his removal
order on that basis.
IV. Remaining Arguments
Awawda's remaining arguments are unavailing because they are
unexhausted and fail to state a colorable constitutional claim or question of law. See
8 U.S.C. § 1252(a)(2)(C), (D); Lin Zhong v. U.S. Dep't of Justice, 480 F.3d 104, 122 (2d Cir.
2007) ("[W]hen an applicant for . . . withholding of removal has failed to exhaust an
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issue before the BIA, and that issue is, therefore, not addressed in a reasoned BIA
decision, we are, by virtue of the 'final order' requirement of § 1252(d)(1), usually
unable to review the argument."). Awawda never argued that his status as a stateless
Palestinian or the country conditions evidence in the record had any bearing on his
removability or his eligibility for a § 212(h) waiver or other relief, and he never applied
for any persecution-based relief; any such claims are therefore unexhausted. Lin Zhong,
480 F.3d at 122; see also Steevenez v. Gonzales, 476 F.3d 114, 117 (2d Cir. 2007). The Notice
to Appear that Awawda claims was amended to add these allegations predates the
Notice to Appear that became the operative charging document in these proceedings.
Awawda's arguments regarding credibility are thus misplaced because the agency
never made a credibility determination.
* * *
We have considered all of Awawda's remaining arguments and conclude
they are without merit. Accordingly, the petition for review is DENIED.
FOR THE COURT:
Catherine O'Hagan Wolfe,
Clerk of Court
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