Riaz Mahmood v. Jefferson Sessions, III , 849 F.3d 187 ( 2017 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-1438
RIAZ MAHMOOD,
Petitioner,
v.
JEFFERSON B. SESSIONS, III, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals.
Argued: January 24, 2017 Decided: February 22, 2017
Before NIEMEYER, TRAXLER, and DIAZ, Circuit Judges.
Petition denied by published opinion. Judge Niemeyer wrote the opinion, in which Judge
Traxler and Judge Diaz joined.
ARGUED: Bradley Bruce Banias, BARNWELL, WHALEY, PATTERSON, AND
HELMS, LLC, Charleston, South Carolina, for Petitioner. Tiffany L. Walters, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON
BRIEF: Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil
Division, Anthony C. Payne, Assistant Director, Office of Immigration Litigation,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
NIEMEYER, Circuit Judge:
Riaz Mahmood, a native and citizen of Pakistan who was granted asylum in the
United States in 1997, voluntarily applied in 2011 for adjustment of his asylum status to
the status of a lawful permanent resident, pursuant to 8 U.S.C. § 1159(b). His application
was granted in 2012. The Attorney General thereafter sought to deport Mahmood for
having, over the years, obtained several immigration benefits by fraud.
The immigration judge found by clear and convincing evidence that Mahmood
deliberately misrepresented material facts in order to obtain travel documents and his
lawful permanent resident status and ordered that Mahmood be removed from the United
States to Pakistan.
The Board of Immigration Appeals (“BIA”) affirmed, rejecting Mahmood’s
argument that he could not be removed unless his asylum status had first been terminated
pursuant to 8 U.S.C. § 1158(c). Mahmood argued that, as an “adjusted asylee,” he
“retain[ed] the protections of asylum after obtaining [lawful permanent] residency, and
therefore [could] not be removed without first having asylum terminated via the
procedures outlined in [§ 1158(c)(2)] and 8 C.F.R. § 1208.24.” In rejecting Mahmood’s
argument, the BIA relied on its precedential decision in Matter of C-J-H-, 26 I. & N. Dec.
284 (BIA 2014), which held that aliens who adjust to lawful permanent resident status
under § 1159(b) do not retain their asylum status.
On appeal, we conclude that the BIA’s interpretation of § 1159(b) is the best
interpretation of the statute and that, in any event, it deserves deference under Chevron
2
USA Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Accordingly,
we affirm the BIA’s decision and deny Mahmood’s petition for review.
I
Some nine years after Mahmood was granted asylum in the United States, he
applied in March 2006 for a refugee travel document in order to leave the country, stating
that he sought to travel to Bangkok, Thailand, to visit his wife and children. In his
application, Mahmood indicated that, since being granted asylum in 1997, he had neither
returned to Pakistan nor “applied for and/or obtained a national passport, passport
renewal or entry permit” from Pakistan. As it turned out, however, Mahmood had
departed the United States in March 2003 using a Pakistani passport and reentered the
United States in July 2005 using a U.S. visa. The Department of Homeland Security
(“DHS”) was unaware of Mahmood’s 2003 trip and granted Mahmood’s application for
the refugee travel document in July 2006. Mahmood then departed the United States in
February 2007 using a Pakistani passport with a number different from that which he had
used in 2003 and returned in July 2007 using his U.S.-issued refugee travel document.
In December 2007, Mahmood applied for another refugee travel document, again
purportedly to visit his wife and children in Bangkok, and, as in his first application, he
denied having returned to Pakistan or having obtained or renewed a Pakistani passport
since his grant of asylum. While his application for this second refugee travel document
was pending, Mahmood departed the United States using the same Pakistani passport that
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he had used on his 2007 trip and returned a few months later, using the second refugee
travel document that had since been granted.
Mahmood left the United States for a fourth time in March 2009, using a Pakistani
passport with yet a third number. Mahmood claims that he traveled to Dubai, where he
met his wife and children, and that they subsequently flew to Russia, Cuba, and finally
Mexico, where he tried to bring his family across the border with the intent that they
would apply for asylum in the United States “because their lives were in danger in
Pakistan.” He and his family were apprehended after crossing into the United States,
and, in August 2009, the DHS charged Mahmood with removability on the ground that he
had entered the country without inspection.
While that charge was pending, Mahmood filed a Form I-485 application in
August 2011, seeking to adjust his asylee status to that of lawful permanent resident,
pursuant to 8 U.S.C. § 1159(b). In his application, Mahmood certified under the penalty
of perjury that he had never “by fraud or willful misrepresentation of a material fact, ever
sought to procure, or procured, a visa, other documentation, entry into the United States,
or any immigration benefit.” He further certified that he had never “knowingly
encouraged, induced, assisted, abetted, or aided any alien to try to enter the United States
illegally.” While this application was pending, the DHS dropped the illegal entry charge
against him and subsequently, in December 2012, granted his application for adjustment
to the status of a lawful permanent resident.
In September 2013, however, the DHS commenced another removal proceeding
against Mahmood, alleging that he had sought to procure an immigration benefit by fraud
4
or by willful misrepresentation of a material fact. Specifically, the DHS claimed that
Mahmood’s alleged misrepresentations regarding his unreported travel and possession of
Pakistani passports made him inadmissible at the time of his application for adjustment,
which in turn rendered him removable under the Immigration and Nationality Act
(“INA”). See 8 U.S.C. §§ 1182(a)(6)(C)(i), 1227(a)(1)(A).
An immigration judge held a removal hearing and found that the DHS had proven,
by clear and convincing evidence, that Mahmood had obtained his lawful permanent
resident status and his two refugee travel documents by fraud. Specifically, the
immigration judge found that Mahmood’s travel pattern “represented a concerted effort
by him to avoid using his authorized travel documents to return to Pakistan, which he
denied was his intention when he applied for them,” and that his use of three Pakistani
passports showed that he made misrepresentations on his application for travel
documents. The immigration judge also found that Mahmood was ineligible for a waiver
of inadmissibility under 8 U.S.C. § 1159(c). As a result, the judge ordered that Mahmood
be removed to Pakistan.
Mahmood appealed the immigration judge’s decision to the BIA, at first on the
sole ground that the immigration judge had erred in denying his application for waiver of
inadmissibility. After Mahmood filed his initial brief, however, the Fifth Circuit issued a
decision finding that the INA was ambiguous as to whether an asylee who adjusted his
status to lawful permanent resident could be removed without first having his asylum
status terminated under § 1158(c) and remanding the case to the BIA to resolve that
question in the first instance. See Ali v. Lynch, 814 F.3d 306, 312 (5th Cir. 2016).
5
Relying on that decision, Mahmood filed a supplemental brief before the BIA, arguing
that because he “retained his asylum status” after his adjustment to lawful permanent
resident status, the immigration judge erred in ordering his removal without first
conducting an asylum termination proceeding under 8 U.S.C. § 1158(c).
With a one-member decision, the BIA rejected Mahmood’s arguments and
dismissed his appeal. As relevant here, it held that the immigration judge properly
ordered Mahmood’s removal without first conducting an asylum termination proceeding.
The BIA relied on its precedential decision in Matter of C-J-H-, 26 I. & N. Dec. 284, in
which it had concluded that “aliens whose status was adjusted from asylee to lawful
permanent resident no longer qualify as asylees,” id. at 285, and it “declined to revisit
[that] decision.”
From the BIA’s order dated March 29, 2016, Mahmood filed this petition for
review.
II
Mahmood contends that even though he applied for and obtained the status of a
lawful permanent resident, “he is still an asylee,” and, as an asylee, he has “the right to
not be returned to a country where [he] would be persecuted, threatened, or harmed.” He
argues that this treaty-based right is recognized and preserved in 8 U.S.C. § 1158(c),
which provides that “in the case of an alien granted asylum . . . the Attorney General . . .
shall not remove or return the alien to the alien’s country of nationality” unless his
asylum status is first terminated. See also 8 C.F.R. § 1208.22 (providing that “[a]n alien
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who has been granted asylum may not be deported or removed unless his or her asylum
status is terminated pursuant to procedures set forth in 8 C.F.R. § 1208.24”). Mahmood’s
argument thus rests on his claimed continuing status as an asylee and the statutory
requirement that the Attorney General cannot terminate the status of an asylee without
pursuing the procedure set forth in § 1158(c) and in the regulations promulgated under it.
Because the Attorney General has not pursued those procedures, he argues, he cannot
now be deported, and the BIA erred as a matter of law in concluding otherwise.
The government does not dispute Mahmood’s recital of law relating to asylees.
Rather, it argues, because of Mahmood’s voluntary action of changing his status from an
alien granted asylum to a lawful permanent resident under § 1159(b), he is no longer an
asylee with rights under § 1158. Focusing on the language of § 1159, under which
Mahmood obtained an adjustment of status to a lawful permanent resident, the
government maintains that “the term ‘adjust’ necessarily describes a change in status, not
the acquisition of an additional status” and that therefore Mahmood “no longer retains
asylee status.” Under this argument, it reasons, Mahmood, as a lawful permanent
resident, may be deported as any other lawful permanent resident under §§ 1227(a)(1)(A)
and 1182(a)(6)(C) for procuring an immigration benefit by fraud or willful
misrepresentation of a material fact.
It is undisputed that Mahmood, while an asylee, submitted an application in 2011
to the DHS to adjust his status to that of a lawful permanent resident under § 1159(b) and
that the DHS granted his application in 2012. We therefore must focus on the
consequence of this adjustment of status. To be sure, if Mahmood remains an asylee, his
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status cannot be terminated by the Attorney General without following the process
afforded by § 1158(c). On the other hand, if Mahmood is no longer an asylee by reason
of his adjustment of status to a lawful permanent resident, he no longer enjoys the rights
of asylum status. Thus, we must determine whether an asylee who successfully pursues
an adjustment of status under § 1159(b) nonetheless retains the benefits of an alien
granted asylum.
The text of § 1159(b) appears to answer this question. Section 1159(b) provides
that “the Secretary of Homeland Security or the Attorney General . . . may,” upon
application of the alien and satisfaction of specified statutory conditions, “adjust to the
status of an alien lawfully admitted for permanent residence the status of any alien
granted asylum.” This text thus contemplates two statuses — an “alien granted asylum”
and an “alien lawfully admitted for permanent residence.” Moreover, it describes a
process of “adjustment” from the former “to” the latter. A provision that addresses two
statuses and provides for the adjustment from one “to” the other appears clearly to
indicate a change to and not an accretion of the second status. See Adams v. Holder, 692
F.3d 91, 97 (2d Cir. 2012) (“[P]lainly, then adjustment of status . . . references some
change in that status corresponding to a change in the alien’s relationship to this country”
(second emphasis added)).
Under this reading, therefore, Mahmood simply no longer holds the status of an
“alien granted asylum.” Rather, he holds the status to which he was adjusted, i.e., an
alien lawfully admitted for permanent residence. In his new status, he is, like every other
lawful permanent resident, subject to removal for procuring an immigration benefit by
8
fraud or willful misrepresentation of a material fact. See 8 U.S.C. §§ 1227(a)(1)(A),
1182(a)(6)(C).
Mahmood contends, however, that focusing only on § 1159(b) paints an
incomplete picture. He argues that because he was an asylee at the time he adjusted his
status, we must focus on § 1158(c)(2)’s restrictions on the removal of asylees. As he
points out, § 1158(c) allows the Attorney General to terminate asylum status for five
listed reasons, none of which includes an adjustment of status under § 1159(b).
Mahmood also points to DHS regulations providing that an asylee may not be removed
absent termination of his asylum status under provided procedures. See 8 C.F.R.
§§ 1208.22, 1208.24. And he argues that an adjustment of status under § 1159(b) cannot
substitute for a formal termination of his asylum status pursuant to § 1158(c) and the
regulations promulgated under that section.
Mahmood’s argument, however, is premised on unwritten assumptions. First, it
presumes that because the Attorney General cannot terminate an asylee’s status except by
following the specified procedures of § 1158(c) and its regulations, the alien cannot
voluntarily give up the asylee status in favor of another. Second, he equates his voluntary
surrender of his asylum status through his adjustment under § 1159(b) with the
involuntary loss of his asylum status through the Attorney General’s termination of it
under § 1158(c). The two, however, are clearly not the same. The office of § 1158
protects an asylee from having his asylum status terminated against his will by the
Attorney General except for the reasons given in § 1158. In contrast, the office of § 1159
authorizes an asylee to voluntarily give up his asylum status in favor of the status of a
9
lawful permanent resident. In this fashion, § 1158 does not appear to limit § 1159, as
Mahmood seems to argue. On the contrary, § 1158 and § 1159 can easily be read
harmoniously, with the former governing asylees while they retain that status and the
latter serving as a bridge to an entirely different status with different rights and
responsibilities. Thus, even though an asylee is protected from deportation and removal
except as provided in § 1158(c), he can voluntarily seek adjustment of his status under
§ 1159(b) and thereby withdraw from the protections of asylum status to attain the
benefits of being a lawful permanent resident.
Those benefits are different from asylee benefits and are significant. An asylee
who adjusts his status under § 1159(b) gains a direct path to naturalized citizenship, 8
U.S.C. § 1427(a); he gives his family a better chance to obtain lawful permanent
residency, id. § 1153(a)(2); and he obtains the right to travel outside of the United States
without the advance permission of a refugee travel document, id. § 1101(a)(13)(C). An
asylee who adjusts to lawful permanent resident status also untethers the fate of his
immigration status from the tumultuous conditions of his home country, because his
status as an asylee may, after all, be terminated if he no longer has “a well-founded fear
of persecution.” 8 U.S.C. § 1101(a)(42) (defining “refugee”); see id. § 1158(c)(2)(A)
(allowing for termination if an alien granted asylum no longer meets INA’s definition of
“refugee”). Thus, Congress, with the enactment of § 1159, can be seen as deciding
sensibly that, where an alien voluntarily seeks adjustment under § 1159(b) and gains the
advantages of lawful permanent residency, he gives up the absolute right to have the
protections of his asylum status adjudicated before removal.
10
In an effort to diminish the importance of the text of § 1159 and its apparent
relationship to § 1158, Mahmood argues that Congress cannot have intended the practical
consequences that flow from the BIA’s interpretation. For one, he claims that allowing
removal of a former asylee without termination will incentivize the government to
“manipulate immigration benefits” by liberally granting adjustments to aliens it wishes to
deport and then immediately initiating removal proceedings against them. But this
argument entirely ignores the fact that the adjustment process is voluntary and that,
moreover, § 1159(b) has its own limitations, such as those that require that the alien be
admissible before granting the adjustment or obtain a waiver of inadmissibility. See 8
U.S.C. § 1159(b), (c). An alien simply need not apply for adjustment if he wishes to
retain the protections of asylum. On the other hand, as we have explained, there are
numerous benefits to be gained by forgoing the protections of asylum and seeking the
status of a lawful permanent resident.
Moreover, an alien’s status as a lawful permanent resident does not leave the alien
fully exposed to removal to a dangerous country even if he conducts himself in a manner
that gives rise to his removal. “Any alien who is physically present in the United States
. . . irrespective of such alien’s status, may apply for asylum.” 8 U.S.C. § 1158(a)(1).
And, in some circumstances, the INA explicitly prohibits the Attorney General from
removing an otherwise removable alien. See 8 U.S.C. § 1231(b)(3)(A) (prohibiting
removal to a country where the Attorney General finds that “the alien’s life or freedom
would be threatened”); 8 C.F.R. § 1208.16(c) (prohibiting removal under the Convention
11
Against Torture if applicant shows that torture in country of removal is “more likely than
not”).
At bottom, the most reasonable reading of § 1159(b) leads to the conclusion that
once an asylee has adjusted his status to that of lawful permanent resident, the alien is
then fully considered a lawful permanent resident and not an asylee. And, in his status as
a lawful permanent resident, the alien may be removed without a requirement that the
Attorney General conduct an asylum termination proceeding under § 1158(c)(2).
Even so, Mahmood urges that we should remand this case to the BIA to resolve
the ambiguity existing between § 1158 and § 1159 because neither section explicitly
takes the other into account. He maintains that Congress may have intended to grant
overarching protections to asylees until the asylee’s status is terminated pursuant to
§ 1158(c), regardless of whether the asylee subsequently adjusts his status to lawful
permanent resident. And because § 1158(c) does not list adjustment of status as a ground
allowing for termination of asylum status, he argues that his reading of the statute would
bar removal in his circumstances. See Ali, 814 F.3d at 311 (finding the INA ambiguous
in this regard). Moreover, Mahmood notes, the BIA in this case construed only § 1159,
never addressing the protections given to asylees by § 1158.
While we conclude that Mahmood’s reading of the INA is not the best one, it is at
least plausible, thus suggesting ambiguity. See, e.g., Good Samaritan Hosp. v. Shalala,
508 U.S. 402, 410, 417 (1993) (noting that a provision with two plausible meanings is
ambiguous for purposes of applying Chevron deference).
12
Under the assumption that § 1159(b) is indeed ambiguous, it then becomes
appropriate to defer to the BIA’s interpretation of the INA in resolving the issue. As it is
well understood, when the question of whether the BIA erred turns on statutory
interpretation of the INA, “principles of Chevron deference” apply to our review of the
decision because the BIA is responsible for administering the statute. See Negusie v.
Holder, 555 U.S. 511, 516 (2009) (quoting INS v. Aguirre-Aguirre, 526 U.S. 415, 424
(1999)).
Under Chevron, we must follow the plain meaning of the statute where “Congress
has directly spoken to the precise question at issue.” Chevron, 467 U.S. at 842. But if
the statute is ambiguous, we must defer to the agency’s permissible construction of that
ambiguity made through its published, precedential decisions. See Aguirre-Aguirre, 526
U.S. at 424; Hernandez v. Holder, 783 F.3d 189, 192 (4th Cir. 2015).
In this case, the BIA relied on its precedential decision in Matter of C-J-H-, 26
I. & N. Dec. at 284, in holding that Mahmood could be removed without an asylum
termination proceeding. Thus, even though the BIA’s one-member decision in this case
was not precedential and therefore not itself entitled to Chevron deference, it controls so
long as C-J-H-, on which its decision rested, permissibly construed an ambiguity in the
INA. See Hernandez, 783 F.3d at 192. In other words, the BIA’s position in C-J-H-
“prevails if it is a reasonable construction of the statute, whether or not it is the only
possible interpretation or even the one a court might think best.” Holder v. Martinez
Gutierrez, 132 S. Ct. 2011, 2014 (2012).
13
In C-J-H-, as in the case before us, an alien who had been granted asylum
subsequently adjusted his status to that of a lawful permanent resident pursuant to
§ 1159(b). 26 I. & N. Dec. at 284. The alien was then charged with removability after
being convicted of conspiracy to traffic in counterfeit goods, a crime involving moral
turpitude. Id. During his removal proceedings, the alien conceded removability but
applied for a readjustment of status under § 1159(b), which, again, allows “any alien
granted asylum” to adjust his status. Id. at 284-85. The BIA concluded, however, that
the alien was not eligible for a readjustment of status. It reasoned that, by its “plain
terms” § 1159(b) applied only “to asylees seeking to adjust status to that of a lawful
permanent resident,” and that “[o]nce [the alien] became a lawful permanent resident, he
no longer had the status of an asylee.” Id. at 285 (emphasis added). The BIA based this
conclusion in part on its prior holding that “a refugee admitted as a lawful permanent
resident is subject to removability even though his refugee status has not been
terminated.” Id. (citing Matter of Smirko, 23 I. & N. Dec. 836, 841 (BIA 2005)).
Mahmood argues that C-J-H- does not warrant deference because the BIA there
“failed to interpret section 1159(b) or section 1158(c)(2)” and because, in relying on its
prior decisions outside the context of asylum, the BIA improperly “equated refugees and
asylees.” We do not find these arguments persuasive. For one, C-J-H-’s failure to
analyze the effect of § 1158(c) does not imply that its analysis was insufficient. Rather, it
implies that the BIA understood adjustment as a categorical shift from asylum to lawful
permanent residency — a shift that left no continued role for the INA’s provisions, such
as § 1158, that apply to asylum status. C-J-H-, 26 I. & N. Dec. at 286 (“[A]liens who
14
have adjusted from their status as asylees have no status that would authorize them to
readjust under [§ 1159(b)]”). The BIA’s analysis perhaps would have been tighter had it
made this point expressly, but we are not persuaded that a remand is necessary. With
respect to the BIA’s discussion of refugee cases in reaching its conclusion, we similarly
reject that this fact somehow undercuts C-J-H-. The BIA in C-J-H- did not rest its
holding on the similarities of those two categories but rather on the reasonable conclusion
that the language of § 1159(b) provides that once an alien adjusts to lawful permanent
resident status, he no longer holds the status of an asylee.
On a larger scale, Mahmood’s challenge to the BIA’s decision in C-J-H- on the
basis of its reasoning ignores the limited nature of our review under Chevron. The
Supreme Court has held that in reviewing an agency’s interpretation of a statute, we will
not remand solely because the agency engaged in a mode of reasoning other than that
which we would have preferred. See Aguirre-Aguirre, 526 U.S. at 431 (rejecting the
Ninth Circuit’s conclusion that the BIA was required to address certain factors and, as a
result, vacating the court’s order of remand). Rather, because we are simply conducting a
reasonableness review, we treat the BIA’s interpretation as controlling unless it has
reached a conclusion that is “arbitrary, capricious, or manifestly contrary to the statute.”
Amos v. Lynch, 790 F.3d 512, 518 (4th Cir. 2015) (quoting Chevron, 467 U.S. at 843-44).
In this case, we cannot conclude that the BIA’s conclusion regarding § 1159 was
arbitrary, capricious, or manifestly contrary to the statute. To the contrary, as we have
pointed out, the BIA in C-J-H- reached a reasonable conclusion in holding that, with
adjustment, the alien relinquished his asylum status. Accepting the BIA’s conclusion in
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C-J-H- as reasonable, it then follows that Mahmood is not subject to the protections of
§ 1158(c), which by their terms apply only “[i]n the case of an alien granted asylum.”
Of course, strong policies underlie the INA’s protection of aliens granted asylum,
as Mahmood points out, temporarily prohibiting, except in carefully delineated
circumstances, their return to a country where they would be persecuted. But strong
policies also underlie the INA’s authorization to asylees to change their status and
eventually to become naturalized citizens of the United States. These policies serve
different purposes, either of which an alien in Mahmood’s position may invoke. But the
statute does not provide for both statuses to apply simultaneously. Asylum status is a
transient status that is conditioned on the fear of persecution in the country of origin.
Lawful permanent resident status, on the other hand, focuses on a future permanent status
in the United States. Nonetheless, as we have noted, even in the circumstance where an
asylee has adjusted his status to a lawful permanent resident and thereby relinquished his
asylum status, the lawful permanent resident can, after obtaining that status, still object to
deportation by requesting asylum if the conditions in his country at that time justify such
a request.
As it stands, the BIA in this case held simply that because Mahmood adjusted his
status from an alien granted asylum to a lawful permanent resident, he no longer has
protections based on his original asylum status, and we affirm this holding. Accordingly,
we deny Mahmood’s petition for review.
PETITION DENIED
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