Otis Vidale v. Attorney General United States ( 2019 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 18-3201
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OTIS KEVIN VIDALE,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
______________
On Petition for Review of a Final Order of
the Board of Immigration Appeals
(BIA No. A036-866-948)
______________
Submitted Under Third Circuit L.A.R. 34.1(a)
June 28, 2019
______________
Before: CHAGARES, GREENAWAY, JR., and GREENBERG, Circuit Judges.
(Filed: August 29, 2019)
______________
OPINION *
______________
*
This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not
constitute binding precedent.
GREENAWAY, JR., Circuit Judge.
Petitioner Otis Kevin Vidale (“Vidale”) challenges a final order of removal of the
Board of Immigration Appeals (“BIA”). In support, he raises four arguments. Because
each is unavailing, however, we will deny his petition for review.
I. BACKGROUND
A citizen of Trinidad and Tobago, Vidale became a lawful permanent resident of
the United States in October 1980, at the age of eight. In February 2000, he was
convicted of third-degree assault with intent to cause physical injury in violation of New
York state law. See N.Y. Penal Law § 120.00(1). In September 2008, he was convicted
of (1) bank fraud and (2) conspiracy to commit bank fraud and wire fraud, both in
violation of federal law. See 18 U.S.C. § 1344; id. at § 371.
Vidale’s judgment of conviction for the federal offenses indicates that he was
sentenced to time served and one year of supervised release and ordered to pay
$48,898.55 in restitution, for which he and a co-defendant were deemed jointly and
severally liable. The judgment of conviction also expresses that the “[t]otal [l]oss” for
the scheme was the same as the restitution amount: $48,898.55. App. 22. But the
superseding indictment, to which Vidale pled guilty, specifically attributes to Vidale
criminal transactions totaling only $5,809.91.
Several years after serving his sentence, Vidale embarked on a short vacation
abroad with his family. In August 2014, he returned to the United States, at a port in
Miami, Florida. Although he sought admission as a lawful permanent resident, the
United States Department of Homeland Security (“DHS”) paroled him into the United
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States as an applicant for admission, deferring his inspection pending a review of his
criminal history.
Nearly three years later, in June 2017, DHS personally served Vidale with a
Notice to Appear (“NTA”), charging him with removability as an applicant for admission
convicted of a crime involving moral turpitude (“CIMT”) under section 212(a)(2)(A)(i)(I)
of the Immigration and Nationality Act of 1965 (“INA”), 8 U.S.C. § 1182(a)(2)(A)(i)(I).
Importantly, the NTA did not specify the time and date of his removal hearing. A few
days later, however, he received a Notice of Hearing (“NOH”), which did indicate the
time and date of his removal hearing.
Over the next several months, Vidale moved to terminate the removal proceedings
and applied for cancellation of removal. But one Immigration Judge (“IJ”) denied the
termination motion, ruling that DHS had indeed established that Vidale was removable
under section 212(a)(2)(A)(i)(I) of the INA, id. Then, another IJ denied the cancellation
of removal application, ruling that Vidale had not demonstrated eligibility for
cancellation of removal under section 240A(a)(3) of the INA, id. § 1229b(a)(3). The
second IJ thus ordered that Vidale be removed to Trinidad and Tobago.
Vidale appealed the IJs’ decisions to the BIA. There, he reasserted an array of his
previously raised arguments. But the BIA, in a single-member decision, rejected each
argument and dismissed the appeal. As a result, the IJ’s removal order became final. See
8 C.F.R. § 1241.1(a).
Vidale accordingly sought relief from us, timely filing the instant petition for
review. Another Panel of our Court previously granted his emergency motion to stay his
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removal pending our consideration of his petition. Consequently, he is currently detained
in a facility in Newark, New Jersey.
Below, we assess the merits of Vidale’s petition for review. His petition reiterates
several arguments he previously asserted—and which the IJs and BIA rejected—in prior
stages of this litigation. Today, we also reject each of his arguments. We will
accordingly deny the petition for review in full.
II. JURISDICTION AND STANDARD OF REVIEW
Assuming jurisdiction properly vested, see infra section III.A, the BIA and IJs
(collectively, “Agency”) had jurisdiction under 8 C.F.R. §§ 1003.1(b)(3), 1003.14(a).
Our jurisdiction arises under 8 U.S.C. § 1252(a)(1). While we lack jurisdiction to review,
like here, a final order of removal against a noncitizen removable by virtue of having
committed certain criminal offenses, see id. § 1252(a)(2)(C), we retain jurisdiction to
address constitutional and legal issues, see id. § 1252(a)(2)(D). We review such
constitutional and legal issues de novo. Green v. Att’y Gen., 694 F.3d 503, 506 (3d Cir.
2012).
III. DISCUSSION
In his petition for review, Vidale asserts four broad arguments. Namely, he avers
that the BIA erred by ruling that: (A) Pereira v. Sessions, 138 S. Ct. 2105, 2112–20
(2018), did not deprive the Agency of jurisdiction; (B) the term “CIMT” is not
unconstitutionally vague; (C) the delay of nearly three years between when he was
paroled into the United States and when his NTA was filed did not violate his due process
4
rights; and (D) his federal convictions qualify as aggravated felonies. We address, and
reject, each legal argument in turn.
A. The Agency Had Jurisdiction
Vidale first contends that jurisdiction never properly vested with the Agency
because his NTA failed to include the time and date of his removal hearing. To make this
argument, he gloms onto Pereira, where the Supreme Court also confronted an NTA that
lacked the time and date of the petitioner’s removal hearing. Id. at 2112. There, the
Supreme Court held that an NTA “that fails to designate the specific time or place of the
noncitizen’s removal proceedings is not a[n NTA] under section [239 of the INA, 8
U.S.C. §] 1229(a), and so does not trigger the stop-time rule.”1 Pereira, 138 S. Ct. at
2114 (internal quotation marks omitted). Though he carefully does not characterize his
argument as such, Vidale essentially urges us to extend Pereira from its “narrow” domain
concerning the stop-time rule, id. at 2110, to the broader realm of the Agency’s
jurisdiction.
The BIA rejected this argument, relying heavily on its prior precedential decision
in Matter of Bermudez-Cota, 27 I. & N. Dec. 441, 447 (BIA 2018). There, the
respondent also received an NTA that lacked the time and date of his removal hearing
1
Under federal immigration law, a nonpermanent resident subject to removal
proceedings may be eligible for cancellation of removal if, among other things, she has
“been physically present in the United States for a continuous period of not less than 10
years immediately preceding the date of [an] application” for cancellation of removal. Id.§ 1229b(b)(1)(A). Under the stop-time rule, however, the period of continuous presence
is “deemed to end . . . when the [noncitizen] is served a[n NTA] under section [239 of the
INA, id. §] 1229(a).” Id. § 1229b(d)(1).
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and similarly argued, citing Pereira, that the Agency therefore lacked jurisdiction. Id. at
442–43. But the BIA repudiated that challenge and upheld the “two-step notice process,”
ruling that an NTA “that does not specify the time and place of a[ noncitizen]’s initial
removal hearing vests an [IJ] with jurisdiction over the removal proceedings . . . so long
as [an NOH] specifying this information is later sent to the [noncitizen].” Id. at 447.
Since Vidale filed the instant petition, another Panel of our Court has rejected this
very jurisdictional challenge in a precedential opinion. In Nkomo v. Attorney General,
930 F.3d 129, 130 (3d Cir. 2019), the Panel held that “a[n] [NTA] that fails to specify the
time and place of an initial removal hearing [does not] deprive[] an [IJ] of jurisdiction
over the removal proceedings.” We are now bound by that holding. See Pardini v.
Allegheny Intermediate Unit, 524 F.3d 419, 426 (3d Cir. 2008) (“It is the tradition of this
[C]ourt that the holding of a [P]anel in a precedential opinion is binding on subsequent
[P]anels. Thus, no subsequent [P]anel overrules the holding in a precedential opinion of
a previous [P]anel. Court en banc consideration is required to do so.” (citing Third
Circuit I.O.P. 9.1)). Accordingly, we must reject Vidale’s jurisdictional challenge.
B. The Term “CIMT” Is Not Unconstitutionally Vague
Vidale next argues that the term “CIMT” in section 212(a)(2)(A)(i)(I) of the INA,
8 U.S.C. § 1182(a)(2)(A)(i)(I), is unconstitutionally vague. In support of this argument,
Vidale relies heavily on our decision in Mateo v. Attorney General, 870 F.3d 228, 233
(3d Cir. 2017), and the Supreme Court’s decision in Sessions v. Dimaya, 138 S. Ct. 1204,
1223 (2018), both of which deemed another provision incorporated in the INA void for
vagueness. As those two cases also recognized, a statute is unconstitutionally vague if it
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is “so vague that it fails to give ordinary people fair notice of the conduct it punishes[] or
so standardless that it invites arbitrary enforcement.” Johnson v. United States, 135 S.
Ct. 2551, 2556 (2015) (citation omitted).
The BIA rebuffed Vidale’s argument for two primary reasons. First, it noted that
the Agency lacks jurisdiction to determine the constitutionality of the INA. See Matter of
Fuentes-Campos, 21 I. & N. Dec. 905, 912 (BIA 1997). Second, it observed that, in any
event, Vidale never averred that his individual convictions do not constitute CIMTs.
We similarly reject Vidale’s contention. While Mateo and Dimaya indeed opened
the door to voidness challenges in the immigration context, Moreno v. Attorney General,
887 F.3d 160, 166 (3d Cir. 2018), forecloses this specific challenge. In that case, we
determined that the term “CIMT,” as it appears in the very provision Vidale now
contests, is not unconstitutionally vague. Id. at 165–66 (discussing Supreme Court
precedent that the term “CIMT” is “not void for vagueness because it complie[s] with
‘[t]he essential purpose of the ‘void for vagueness’ doctrine[,]’ i.e., it ‘warn[s]’ the
defendant that, were he to commit a crime ‘in which fraud was an ingredient[,]’ then the
‘statutory consequence’ of his conviction would be deportation” (second, third, and fifth
alterations in original) (quoting Jordan v. De George, 341 U.S. 223, 229–32 (1951))). Of
course, Vidale cannot credibly claim he lacked fair notice of this standard when the
Supreme Court recognized in Jordan that “crimes in which fraud [is] an ingredient have
always been regarded as involving moral turpitude” in 1951—well before, for example,
his bank fraud conviction in 2008. 341 U.S. at 232.
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Seemingly seeing the writing on the wall, Vidale protests that Moreno is
inapposite because it predates Dimaya. But Dimaya does not demand that we overrule
Moreno for three reasons. First, Dimaya only extended to the immigration context the
Supreme Court’s earlier reasoning in Johnson, which Moreno postdated. Second, we are
obliged to follow controlling Supreme Court precedent—here, Jordan, on which Moreno
relied—even if a later Supreme Court case casts some doubt on its general reasoning.
See Hohn v. United States, 524 U.S. 236, 252 (1998) (“Our decisions remain binding
precedent until we see fit to reconsider them, regardless of whether subsequent cases
have raised doubts about their continuing vitality.” (citation omitted)). Third, Dimaya
interpreted a statutory residual clause that did not include the term “CIMT” and which
was untethered to recognized common law principles. See Dimaya, 138 S. Ct. at 1211.
Accordingly, we remain bound by Moreno and thus reject Vidale’s vagueness challenge.2
C. Vidale’s Due Process Rights Were Not Violated
Vidale also contends that his due process rights were violated by the nearly three-
year delay between when he was paroled into the United States when his NTA was filed.
As the basis for this argument, Vidale points to Doe v. Attorney General, 659 F.3d 266,
272 (3d Cir. 2011), which he claims stands for the general proposition that procedural
due process imposes time limits on the commencement of a noncitizen’s removal
2
We note that at least one of our sister circuits has also rejected this same challenge after
Dimaya. See Martinez-de Ryan v. Whitaker, 909 F.3d 247, 251–52 (9th Cir. 2018)
(holding that the term “CIMT” in section 212(a)(2)(A)(i)(I) of the INA, 8 U.S.C.
§ 1182(a)(2)(A)(i)(I), is not void for vagueness).
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proceedings. But the BIA rejected this argument, chiefly by distinguishing Doe. We
agree.
As the Agency noted, Doe does not cast as wide of a net as Vidale would have it.
Instead, Doe merely indicates that due process principles are generally implicated in
revoking a noncitizen’s lawful permanent resident status. Id. We did not say in that
case—or any other case—that due process imposes time limits on serving a paroled
noncitizen with an NTA.
In fact, we have said the very opposite. In DiPeppe v. Quarantillo, 337 F.3d 326,
335 n.17 (3d Cir. 2003), we proclaimed that a noncitizen “does not have a constitutional
right for her removal hearing to commence at any certain time.” Accordingly, we found
no due process violation where eight years elapsed between the noncitizen’s receiving an
order to show cause and the filing of her NTA. Id. at 332–35. That ruling and its
reasoning apply with full force here.
Even putting that aside, though, Vidale’s due process argument also fails because
he has not carried his burden as to prejudice. It is well-established that, “[t]o establish a
violation of due process, [a noncitizen] must show that substantial prejudice resulted
from the alleged procedural errors.” Delgado-Sobalvarro v. Att’y Gen., 625 F.3d 782,
787 (3d Cir. 2010) (citation omitted). That Vidale has not done.
As a preliminary matter, the parties disagree on whether we may even review
Vidale’s assertions of prejudice because he may have waived them by not raising them
before the Agency. See, e.g., Harris v. City of Phila., 35 F.3d 840, 845 (3d Cir. 1994)
(collecting cases). The underlying record is indeed devoid of any explicit reference to
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prejudice as it relates to Vidale’s due process contention. Vidale seems to concede as
much in his reply brief, urging us to exercise our discretionary power to nonetheless
address the matter. We opt to do so here because a full resolution of this issue is of
“public importance” and entails “a pure question of law” that does not necessitate
“additional fact-finding.” Bagot v. Ashcroft, 398 F.3d 252, 256 (3d Cir. 2005) (citations
omitted).
But, even now, Vidale has not demonstrated that he suffered substantial prejudice
by the three-year delay between his admission and the filing of his NTA. Before us, he
presents two claims of prejudice: (1) his being subject to indefinite detention and (2) his
losing various rights. Both, however, are deficient.
The first claimed prejudice is immaterial because Vidale was not detained during
the three-year delay about which he complains. Rather, his detention began only after his
NTA was filed. Accordingly, the delay at issue did not result in Vidale’s current
detention, rendering the detainment and its indefinite nature irrelevant to this prejudice
analysis.
The second claimed prejudice is unavailing because, as he concedes, a noncitizen
with legal permanent resident status who is classified as an applicant for admission
retains that status—complete with the panoply of rights that accompany that status—until
the entry of a final administrative order of removal against him. See Katsis v. INS, 997
F.2d 1067, 1075–76 (3d Cir. 1993). From the time he was paroled to the entry of his
removal order, then, Vidale enjoyed the same rights he had before being deemed an
applicant for admission. To the extent that now, while being detained, Vidale cannot
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avail himself of certain rights, like the option to post bond, because he is classified as an
applicant for admission, that has nothing to do with the delay to which he objects. Put
simply, during the nearly three years that elapsed between when he was paroled into the
United States and when his NTA was filed, Vidale maintained the same rights he had
before. As a result, he has not shown that he faced any prejudice, much less substantial
prejudice, specifically due to the delay in his NTA’s filing. We thus reject Vidale’s due
process argument.
D. Vidale’s Conviction for Bank Fraud Qualifies as an Aggravated Felony
Finally, Vidale avers that his federal convictions—one for bank fraud and the
other for conspiracy to commit bank fraud and wire fraud—do not qualify as aggravated
felonies under section 101(a)(43)(M)(i) and (U) of the INA, 8 U.S.C. § 1101(a)(43)(M)(i)
(defining “aggravated felony” as being an offense that “involves fraud or deceit in which
the loss to the victim or victims exceeds $10,000”), (U) (defining “aggravated felony” as
being “an attempt or conspiracy to commit an offense described in [section 101(a)(43) of
the INA, id. § 1101(a)(43)].”).
Though he does not contest that both convictions involved fraud, Vidale argues
that the loss to the victims did not exceed $10,000. More specifically, Vidale contends
that, in determining the loss amount, only his superseding indictment—which specifically
attributes to him criminal transactions totaling only $5,809.91, to which he pled guilty—
may be considered, not his restitution order—which indicates that he was deemed jointly
and severally liable with a co-defendant to pay $48,898.55 in restitution—or his
judgment of conviction—which also expresses that the total loss for his scheme was
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$48,898.55. Based only on the superseding indictment, then, Vidale asserts that the BIA
erred in affirming the IJ’s determination that he committed an aggravated felony and is
thus ineligible for cancellation of removal.
Applying the “circumstance-specific approach” as directed by the Supreme Court
in Nijhawan v. Holder, 557 U.S. 29, 38–39 (2009), the BIA decided that the IJ properly
considered the loss amount reflected in Vidale’s restitution order and judgment of
conviction in determining that his federal offenses were aggravated felonies. In doing so,
the BIA reviewed and navigated a handful of our prior decisions related to this issue,
relying on Doe and Munroe v. Ashcroft, 353 F.3d 225, 227 (3d Cir. 2003), and
distinguishing Alaka v. Attorney General, 456 F.3d 88, 108–09 (3d Cir. 2006), overruled
on other grounds by Bastardo-Vale v. Attorney General, ___ F.3d ___, 2019 WL
3772097 (3d Cir. 2019).
We agree with the BIA’s ruling and analysis. In assessing whether the loss
resulting from Vidale’s bank fraud offense exceeded $10,000, “the specific circumstances
surrounding [his] commission” of the crime must be considered. Nijhawan, 557 U.S. at
40. The determined loss amount “must be ‘tethered’ to the actual ‘offense of conviction,’
not ‘acquitted or dismissed counts or general conduct.’” Singh v. Att’y Gen., 677 F.3d
503, 508 (3d Cir. 2012) (citations omitted).
Doe informs us that, even where a plea agreement only identifies a single
transaction under $10,000, we may look beyond that in assessing the total loss amount.
See 659 F.3d at 276 (determining that the petitioner committed an aggravated felony
under section 101(a)(43)(M)(i) of the INA, 8 U.S.C. § 1101(a)(43)(M)(i), where he was
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convicted of aiding and abetting the entire criminal scheme that caused losses between
$120,000 and $200,000, even though his plea agreement only specified a single criminal
transaction of $6,447). Munroe further buttresses this proposition. 353 F.3d at 227 (“The
amount of restitution ordered as a result of a conviction may be helpful to a court’s
inquiry into the amount of loss to the victim [unless] the amount of restitution ordered is
not based on a finding as to the amount of the loss but is instead intended solely to affect
the defendant’s immigration status . . . .”).
Here, the Agency adhered to this precedent. Although the superseding indictment
to which Vidale pled guilty indeed only attributed to him criminal transactions totaling
$5,809.91, the restitution order and judgment of conviction together indicate that the
“[t]otal [l]oss” of the scheme, for which he was deemed jointly and severally liable with a
co-defendant, was $48,898.55. App. 22. Under Doe and Munroe, the Agency
appropriately examined this evidence and determined that the actual loss to victims of
Vidale’s bank fraud scheme exceeded $10,000.3
Alaka poses no problem because it is inapposite here. In relevant part, that case
merely dictates that dismissed charges may not be considered when calculating the loss
attributable to a conviction. Alaka, 456 F.3d at 106–09. That is not the case here.
Moreover, Alaka was concerned with ensuring that “the $10,000 loss requirement” is not
“divorce[d]” from “the conviction requirement.” Id. at 108 (citations omitted). Of
3
To be clear, consideration of the restitution order does not run afoul of Munroe because
Vidale does not argue, or present any evidence, that the restitution amount was devised
“solely to affect [his] immigration status.” Munroe, 353 F.3d at 227.
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course, our relying on the judgment of conviction here squarely aligns with that
reasoning. We thus reject Vidale’s argument and hold that his federal bank fraud
conviction was properly deemed an aggravated felony.4
IV. CONCLUSION
Because each of Vidale’s arguments are futile, we will deny his petition for
review.
4
Because this ruling—that Vidale’s federal bank fraud conviction qualifies as an
aggravated felony—is independently fatal to his claim for cancellation of removal, we
need not decide whether his federal conviction for conspiracy to commit bank fraud and
wire fraud also qualifies as an aggravated felony.
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