Franklin Beresford v. Attorney General United States ( 2021 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 20-2792
FRANKLIN MICHAEL BERESFORD,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA
On Petition for Review of an Order of the
Board of Immigration Appeals
(BIA-1: A057-406-863)
Immigration Judge: Kuyomars “Q” Golparvar
Submitted Under Third Circuit L.A.R. 34.1(a)
on April 23, 2021
Before: AMBRO, RESTREPO, Circuit Judges, and NOREIKA, * District Judge
(Opinion Filed: July 21, 2021)
*
The Honorable Maryellen Noreika, United States District Judge for the District of
Delaware, sitting by designation.
OPINION *
NOREIKA, District Judge
Petitioner Franklin Michael Beresford seeks review of a final order by the Board
of Immigration Appeals dismissing his appeal from an Immigration Judge’s
determination that he is removable from the United States and ineligible for cancellation
of removal. For the following reasons, the petition will be denied.
I. Background
Beresford is a native and citizen of Guyana who was admitted to the United States
as a lawful permanent resident on July 22, 2008. From approximately April 2012
through April 2014, Beresford worked as a cargo handler at John F. Kennedy
International Airport (JFK) in Queens, New York. By his own admission, during this
wo-year period, Beresford stole mail from airplanes and acted as a lookout so that others
could do so. A.R. 352–53. On November 14, 2016, Beresford pled guilty to mail theft in
violation of 18 U.S.C. § 1708. He was convicted in the Eastern District of New York on
February 20, 2018 and sentenced to five months’ imprisonment.
A. Proceedings Before the Immigration Court
The Department of Homeland Security (“DHS”) initiated removal proceedings on
July 31, 2018, by serving Beresford with a Notice to Appear (“NTA”). The NTA
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
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charged that he was removable because he had been convicted of a crime involving moral
turpitude committed within five years after admission for which a sentence of one year or
longer may be imposed. See 8 U.S.C. § 1227(a)(2)(A)(i). In support of the charge of
removability, the Government submitted, inter alia, the Presentence Investigation Report
(“the PSR”) prepared in connection with Beresford’s conviction. Although the first
Immigration Judge to decide the issue sustained the charge of removability and ordered
his removal, A.R. 210, Beresford successfully appealed to the Board of Immigration
Appeals, which remanded the case for additional fact-finding on the issue of whether he
committed the crime of mail theft within five years of his admission, A.R. 145–46.
After remand, a second Immigration Judge held a hearing on September 18, 2019,
at which he made several comments regarding the status of the case before him. The
Immigration Judge suggested that the Government submit a Form I-261 to indicate
specifically when the crime was committed and added that “on the I-261 you just need to
indicate that . . . the offense described in allegation number 4 was committed between
this date and this date, that’s all that’s needed.” A.R. 73, 78. He also noted that there
were several judicially noticeable documents in the record suggesting that the crime had
been committed within five years of admission to the United States. After summarizing
those documents, the Immigration Judge asked the Government counsel whether he had
set forth its arguments correctly and the DHS attorney agreed. The Immigration Judge
also invited Beresford, who was represented by counsel, to submit additional briefs or
evidence.
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The Government timely filed the Form I-261 specifying that Beresford committed
the conduct underlying his mail theft conviction “on or about April 2012 to on or about
April 2014.” A.R. 136. At the next hearing, Beresford denied the charge of removability
and the factual allegation concerning when the offense was committed.
The Immigration Judge sustained both the factual allegation and the charge of
removability, finding that the Government had shown by clear and convincing evidence
that the crime occurred within five years of Beresford’s admission to the United States.
In coming to this decision, the Immigration Judge considered Beresford’s Judgment
Order, Superseding Indictment, and PSR and concluded that, because Beresford had pled
guilty to committing mail theft between February 2009 and December 2014 and this
range had “significant overlap” with the five years after his admission, there was
sufficient evidence within the record of conviction to find the Government had met its
burden. A.R. 67. In the alternative, the Immigration Judge found that there was
sufficient evidence in the record of conviction and the PSR, because the latter
consistently stated that Beresford worked at the airport from April 2012 to April 2014
and included his written statement that he stole mail and acted as a lookout during that
two year period. A.R. 67.
B. Proceedings Before the Board of Immigration Appeals
Beresford filed a second appeal with the Board of Immigration Appeals on
November 25, 2019. The Board dismissed the appeal, holding that he had waived his
claim that the Immigration Judge had shown bias towards DHS, that he had received a
full and fair hearing, and that the Government had proven removability by clear and
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convincing evidence. A.R. 3–5. The Board affirmed the Immigration Judge’s
determination that the Government had proven removability through the presentation of
the PSR and did not address whether he properly determined that the conviction record
alone proved removability. A.R. 4. This petition for review followed.
II. Discussion 1
Beresford raises two issues on appeal. First, he argues that the Board erred by
concluding that the Immigration Judge did not prejudge the case and acted fairly and
impartially. Second, Beresford challenges the Board’s determination that the
Government met its burden to show by clear and convincing evidence that he committed
the mail theft offense within five years of his admission to the United States.
As to the first issue, petitioners in a deportation proceeding are entitled to “a full
and fair hearing that allows them a reasonable opportunity to present evidence on their
behalf and a decision on the merits of their claim by a neutral and impartial arbiter.”
Serrano-Alberto v. Att’y Gen., 859 F.3d 208, 213 (3d Cir. 2017) (cleaned up). To prove a
due process violation, a petitioner must show “(1) that he was prevented from reasonably
presenting his case and (2) that substantial prejudice resulted,” meaning the petitioner
must demonstrate that the Immigration Judge’s conduct had “the potential for affecting
1
The Board had jurisdiction under 8 C.F.R. § 1003.1(b)(3). This Court has jurisdiction to
review the Board’s decision under 8 U.S.C. § 1252(a). Where the Board issues its own decision
and relies upon the reasoning of the immigration judge, this Court reviews the decision of the
Board and those portions of the immigration judge’s reasoning adopted in the Board’s opinion.
See Patel v. Att’y Gen., 599 F.3d 295, 297 (3d Cir. 2010). Questions of law and constitutional
claims are reviewed de novo. See id.; Abulashvili v. Att’y Gen., 663 F.3d 197, 207 (3d Cir.
2011).
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the outcome of the deportation proceedings.” Id. (emphasis in original). “[J]udicial
conduct is improper whenever a judge appears biased, even if she actually is not biased.”
Abulashvili v. Att’y Gen., 663 F.3d 197, 207 (3d Cir. 2011) (cleaned up). This Court has
previously found due process violations in cases with particularly problematic conduct by
immigration judges, such as conducting lengthy cross-examinations, Abulashvili, 663
F.3d at 207, unfairly limiting an individual’s responses, Serrano-Alberto, 859 F.3d at 224,
or belittling the individual’s choices, Wang v. Att’y Gen., 423 F.3d 260, 263 (3d Cir.
2005).
The conduct of the Immigration Judge in this matter is a far cry from the conduct
this Court has held violates due process rights. The Immigration Judge suggested that the
Government submit an additional filing addressing the issue underlying the Board’s
remand. This suggests a desire for efficiency rather than a bias. The remainder of the
Immigration Judge’s remarks summarized evidence already in the record. None of the
comments demonstrate the “pervasiveness and egregiousness” that suggests a due process
violation. Serrano-Alberto, 859 F.3d at 224.
As to the second issue raised on appeal, when evaluating “the specific way in
which an offender committed the crime on a specific occasion,” this Court uses the
circumstance-specific approach set out in Nijhawan v. Holder, 557 U.S. 29, 34 (2009).
When using this approach, it is appropriate to rely on sentencing-related material, id. at
42, and the PSR, Fan Wang v. Att’y Gen., 898 F.3d 341, 348 (3d Cir. 2018).
For Beresford to be removable as charged, he must have engaged in mail theft
within five years of his July 22, 2008, admission to the United States. The PSR states
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that Beresford was employed as a ramp agent at Terminal One “from approximately
April 2012 through April 2014” and that “during this period of employment, Beresford
stole mail from airplanes at Terminal One, and assisted others in stealing mail.”
A.R. 352 (emphasis added). The PSR also includes a written statement Beresford
provided to Postal Inspectors in 2016, in which he admitted that “[w]hen I was working
for [Aircraft Service International Group] JFK from 2012–2014 . . . [,] I acted as a
lookout so that [four other individuals] could steal mail for currency. They would tip me
for looking out [and] they would lookout and I stole mail for the currency.” A.R. 352–
53. The PSR consistently indicates that the relevant time period is 2012 to 2014, and
those dates were highlighted by the Immigration Judge and the Board. Because the PSR
is clear that Beresford’s conduct was ongoing throughout this time period, the
Government has met its burden to show by clear and convincing evidence that Beresford
began engaging in mail theft prior to July 22, 2013, and therefore within five years of his
admission to the United States.
* * *
For the foregoing reasons, the petition for review is denied.
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