Cupete v. Garland ( 2022 )

20-3441-ag
Cupete v. Garland
United States Court of Appeals
For the Second Circuit
August Term 2021
Submitted: March 4, 2022
Decided: March 16, 2022
No. 20-3441-ag
ROBERTO CUPETE,
Petitioner,
v.
MERRICK B. GARLAND, UNITED STATES
ATTORNEY GENERAL
Respondent.
Petition from the Board of Immigration
Appeals, No. A 206 222 337.
Before: LEVAL, SULLIVAN, PÉREZ, Circuit Judges.
In 2014, Roberto Cupete pleaded guilty to using a false document in
connection with his application for a U.S. passport, in violation 18 U.S.C. § 1001(a).
That same year, the Department of Homeland Security served Cupete with a
Notice to Appear, charging him as removable. While this initial Notice to Appear
did not include the date and time of Cupete’s removal hearing, Cupete was
subsequently served with a Notice to Appear that included that information.
Cupete then appeared, conceded removability, and applied for cancellation of
removal under 8 U.S.C. § 1229b, arguing that his removal would cause hardship
to his wife and three children, who are all U.S. citizens. Cupete also argued that
the Immigration Judge (“IJ”) lacked jurisdiction over Cupete’s case because the
initial Notice to Appear did not include the date and time of the removal hearing.
The IJ rejected that argument and found that Cupete was not eligible for
cancellation of removal because Cupete’s violation of § 1001(a) was a crime
involving moral turpitude. Cupete appealed to the Board of Immigration
Appeals, which affirmed the IJ’s decision.
Under our precedents, there can be no doubt that a Notice to Appear that
omits information regarding the time and date of the initial removal hearing is
nevertheless adequate to vest jurisdiction in the Immigration Court, so long as a
notice specifying this information is later sent to the alien. And because a violation
of § 1001(a) requires that an offender make a material misrepresentation with the
intent to impair the efficiency and lawful functioning of the government, it is a
crime involving moral turpitude that renders Cupete ineligible for cancellation of
removal under 8 U.S.C. § 1229b. Accordingly, we DENY the petition for review.
DENIED.
Patrick Crowley, Esq., New York, NY, for
Petitioner.
Brian Boynton, Acting Assistant Attorney
General, Jessica A. Dawgert, Senior Litigation
Counsel, Elizabeth K. Ottman, Trial Attorney,
Office of Immigration Litigation, United
States Department of Justice, Washington,
DC, for Respondent.
Per Curiam:
Petitioner Roberto Cupete, a native and citizen of the Dominican Republic,
petitions for review of a decision of the Board of Immigration Appeals (“BIA”)
affirming the decision of an Immigration Judge (“IJ”) denying his motion to
terminate removal proceedings and his application for cancellation of removal. In
re Roberto Cupete, No. A 206 222 337 (B.I.A. Sept. 14, 2020), aff’g No. A 206 222 337
(Immig. Ct. N.Y. City Aug. 21, 2018). The principal argument in Cupete’s petition
is that the BIA erred in concluding that 18 U.S.C. § 1001(a) is a crime involving
moral turpitude (“CIMT”) and that Cupete’s conviction for violating that statue
makes him ineligible for cancellation of removal. Because a violation of § 1001(a)
requires that an offender make a material misrepresentation with the intent to
impair the efficiency and lawful functioning of the government, we hold that it is
a CIMT and thus renders Cupete ineligible for cancellation of removal under 8
U.S.C. § 1229b. Accordingly, we DENY the petition for review.
I. BACKGROUND
Cupete entered the United States in 2003. In 2014, after being arrested for
submitting a false document in connection with his application for a U.S. passport,
Cupete pleaded guilty to making or using a false writing or document in violation
of 18 U.S.C. § 1001. In June 2014, the Department of Homeland Security served
Cupete with a Notice to Appear, charging him as removable for entering without
inspection and as a noncitizen without valid entry documents. That Notice to
Appear stated that Cupete’s removal hearing would be at a date or time “to be
set.” Certified Administrative Record (“CAR”) at 784. After a second Notice to
Appear, which provided the date and time of the removal hearing, was returned
as undeliverable due to an incorrect address, DHS sent a third Notice to Appear,
which Cupete received and which included the date and time of his removal
hearing.
Cupete subsequently appeared, conceded removability, and applied for
cancellation of removal under 8 U.S.C. § 1229b, arguing that his removal would
cause hardship to his wife and three children, all of whom are United States
citizens. Cupete also moved to terminate his removal proceedings, asserting that
the IJ lacked jurisdiction because the initial Notice to Appear did not include the
date and time of his removal hearing. The IJ denied the motion to terminate,
reasoning that the defect in the Notice to Appear did not prevent jurisdiction from
vesting with the Immigration Court. The IJ also denied Cupete’s application for
cancellation of removal, concluding that § 1001(a) was a CIMT and that Cupete’s
conviction therefore made him ineligible for cancellation of removal. In
September 2020, the BIA affirmed the IJ’s decision, adding that Banegas Gomez v.
Barr, 922 F.3d 101, 111–12 (2d Cir. 2019) foreclosed Cupete’s jurisdictional
argument. CAR at 3–4. The BIA also affirmed the IJ’s ruling that Cupete was
ineligible for cancellation of removal because Cupete “did not demonstrate that he
was a person of good moral character during the requisite [ten] years preceding
his application for cancellation of removal” due to his § 1001(a) conviction. Id. at
4. Cupete filed a timely petition for review in this Court.
II. DISCUSSION
A. The Immigration Court Had Jurisdiction Over Cupete’s Removal
Proceedings
Relying on Niz-Chavez v. Garland, 593 U.S. ---- , 141 S. Ct. 1474 (2021), Cupete
argues that the Immigration Court lacked jurisdiction over his removal
proceedings because his first Notice to Appear did not include the date and time
of his removal hearing. In addressing this same argument, we have held that “a
[Notice to Appear] that omits information regarding the time and date of the initial
removal hearing is nevertheless adequate to vest jurisdiction in the Immigration
Court, at least so long as a notice of hearing specifying this information is later sent
to the alien.” Banegas Gomez v. Barr, 922 F.3d 101, 112 (2d Cir. 2019), cert. denied sub
nom. Gomez v. Barr, --- U.S. ---- , 140 S.Ct. 954 (2020). Just a few months ago, we
reaffirmed that “the jurisdictional holding of Banegas Gomez remains good law”
after Niz-Chavez. Chery v. Garland, 16 F.4th 980, 987 (2d Cir. 2021). Although
Cupete’s initial Notice to Appear did not specify the date and time of his hearing,
the Immigration Court mailed him a subsequent notice that contained the date and
time of the removal proceedings. Thus, the Immigration Court did not lack
jurisdiction on account of a deficiency in the first Notice to Appear. See Banegas
Gomez, 922 F.3d at 112; Chery, 16 F.4th at 987.
B. The Agency Did not Err in Denying Cancellation of Removal Because
Making a False Statement in Violation of 18 U.S.C. § 1001(a) Is a Crime
Involving Moral Turpitude
Cupete argues that the BIA erred in holding that making a false statement
in violation of 18 U.S.C. § 1001(a) is a CIMT under 8 U.S.C. § 1182(a)(2)(A)(i)(I). 1
This presents an issue of first impression in our Circuit, which we now resolve.
As the parties acknowledge, and as the law makes clear, a person convicted
of a CIMT, an attempted CIMT, or a conspiracy to commit a CIMT is not eligible
for cancellation of removal. See Rodriguez v. Gonzalez, 451 F.3d 60, 62–63 (2d Cir.
2006). 2 Although our jurisdiction to review a denial of cancellation of removal is
limited to constitutional claims and questions of law, see 8 U.S.C. § 1252(a)(2)(B),
1Although Cupete was convicted of a violation of § 1001(a)(3), we have held that held that the
different subsections of § 1001(a) are not “separate offenses,” but rather “different means by
which the statute is violated.” United States v. Stewart, 433 F.3d 273, 319 (2d Cir. 2006).
2 Section 1182 provides for certain exceptions that are irrelevant here. See 8 U.S.C. §
1182(a)(2)(A)(ii)(II).
(D), whether Cupete’s conviction falls within the definition of a CIMT is a question
of law that we review de novo. Ferreiras Veloz v. Garland, 999 F.3d 798, 801 (2d Cir.
2021). We afford Chevron deference to the BIA’s construction of terms such as
“moral turpitude” because of the BIA’s expertise in applying and construing the
immigration laws. See Gill v. INS, 420 F.3d 82, 89 (2d Cir. 2005). But because the
BIA has no particular expertise in construing federal and state criminal statutes,
we review de novo the BIA’s conclusion that a particular crime falls within its
definition of a CIMT. Michel v. INS, 206 F.3d 253, 262 (2d Cir. 2000).
“Where, as here, the BIA issues an opinion, the opinion becomes the basis
for judicial review of the decision of which the alien is complaining.” Mendez v.
Mukasey, 547 F.3d 345, 346 (2d Cir. 2008) (internal quotation marks omitted); accord
Nat. Res. Defense Council v. Nat'l Highway Traffic Safety Admin., 894 F.3d 95, 111 (2d
Cir. 2018) (“We may only enter ‘a judgment upon the validity of the grounds upon
which the [agency] itself based its action.’”) (quoting SEC v. Chenery Corp., 318 U.S.
80, 87-88 (1943)).
In considering whether § 1001(a) is a CIMT, the BIA, citing Matter of Pinzon,
26 I. & N. Dec. 189, 194-95 (B.I.A. 2013), determined that § 1001(a) was a CIMT
because it “categorically involves fraud or deceit.” CAR at 4. The BIA further
reasoned, citing Matter of Jurado, 24 I. & N. Dec. 29, 35 (B.I.A. 2006) and Matter of
Flores, 17 I. & N. Dec. 225, 230 (B.I.A. 1980), that “[m]aking knowing and willfully
false and fraudulent statements orally or in writing to a governing authority
involve deceit, dishonesty, and moral turpitude.” Id.In Rodriguez, we approved as reasonable the BIA’s formulation in Flores, that
crimes ‘‘impair[ing] or obstruct[ing] an important function of a department of the
government by defeating its efficiency or destroying the value of its lawful
operations by deceit, graft, trickery, or dishonest means involve moral turpitude.”
Rodriguez, 451 F.3d at 63 (internal quotation marks omitted). Then, in Pinzon and
Jurado, the BIA repeated this standard. Pinzon, 26 I. & N. Dec. at 194; Jurado, 24 I.
& N. Dec. at 35. On this basis, we conclude that the standard considered by the
BIA in this case to determine whether § 1001(a) was a CIMT, was reasonable. We
thus consider whether § 1001(a) is a categorical match with the standard employed
by the BIA in this case, which standard we have previously found to be a
reasonable interpretation of the statute.
To secure a conviction under § 1001(a), the Government must show that a
defendant (1) knowingly and willfully, (2) made a materially false, fictitious, or
fraudulent statement, or falsified or concealed a material fact, or made or used a
false writing or document, (3) in relation to a matter within the jurisdiction of a
department or agency of the United States, (4) with knowledge that it was false or
fictitious or fraudulent. United States v. Coplan, 703 F.3d 46, 78 (2d Cir. 2012); 18
U.S.C. §§ 1001(a)(1)-(3). For the falsity to be material, a statement must have “a
natural tendency to influence, or [be] capable of influencing, the decision of the
decisionmaking body to which it was addressed.” United States v. Gaudin, 515 U.S.
506, 509 (1995) (quoting Kungys v. United States, 485 U.S. 759, 770 (1988)).
Because § 1001(a) requires that the offender act “knowingly and willfully”
in making a materially false statement to, or concealing a material fact from, the
government, 18 U.S.C. § 1001(a), a conviction for a violation of § 1001(a)
necessarily requires “deceit and an intent to impair the efficiency and lawful
functioning of the government,” Rodriguez, 451 F.3d at 64. Applying the Flores
standard, the Rodriguez panel determined that these two elements were sufficient
to give CIMT status to violations of 18 U.S.C. § 1542, which forbids making false
statements in a passport application. Id. This analysis is equally applicable to
§ 1001(a). We therefore hold that § 1001(a) also qualifies as a CIMT.
Other circuits agree with our holding that a conviction under § 1001(a) is a
CIMT. See Fayzullina v. Holder, 777 F.3d 807, 814 (6th Cir. 2015); Ghani v. Holder,
557 F.3d 836, 840 (7th Cir. 2009). And while we do not owe the BIA’s interpretation
of a federal criminal statute Chevron deference, see Michel, 206 F.3d at 262, we note
that the BIA has also said that a conviction for violating § 1001(a) is a conviction
for a CIMT, see Pinzon, 26 I. & N. Dec. at 195.
Accordingly, we find no error in the BIA’s conclusion that a conviction for
a violation of § 1001(a) is a CIMT, nor did the BIA err in concluding that Cupete’s
conviction for a violation of § 1001(a) renders him ineligible for cancellation of
removal.
III. CONCLUSION
For the foregoing reasons, the petition for review is DENIED.