Emerald Nkomo v. Attorney General United States , 930 F.3d 129 ( 2019 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 18-3109
____________
EMERALD ZODWA NKOMO,
Petitioner
v.
ATTORNEY GENERAL OF
THE UNITED STATES OF AMERICA,
Respondent
____________
On Petition for Review of a Decision of the
Board of Immigration Appeals
(BIA-1: A091-540-338)
Immigration Judge: Daniel A. Morris
____________
Submitted April 1, 2019
Before: CHAGARES, HARDIMAN, and SILER, JR. * Circuit
Judges.
*
The Honorable Eugene E. Siler, Jr., Senior Circuit
Judge for the United States Court of Appeals for the Sixth
Circuit, sitting by designation.
(Filed: July 12, 2019)
Jerard A. Gonzalez
Cheryl Lin
Bastarrika Soto Gonzalez & Somohano
3 Garret Mountain Plaza
Suite 302
Woodland Park, NJ 07424
Counsel for petitioner
Rachel L. Browning
Jessica E. Burns
Rosanne M. Perry
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for respondent
____________
OPINION OF THE COURT
____________
HARDIMAN, Circuit Judge.
Emerald Nkomo petitions for review of her final order
of removal. Her petition requires us to decide a question of first
impression in this Court: whether a notice to appear that fails
to specify the time and place of an initial removal hearing
deprives an immigration judge of jurisdiction over the removal
proceedings. We hold that it does not.
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Nkomo also seeks review of the denials of her
application for withholding of removal and her request for
protection under the Convention Against Torture (CAT). We
are unpersuaded by the merits of her withholding claim and we
lack jurisdiction over her CAT claim. So we will deny Nkomo’s
petition in part and dismiss it in part.
I
A lawful permanent resident of the United States and a
citizen of Zimbabwe, Nkomo was convicted in 2017 of
conspiracy to commit wire fraud in violation of 18 U.S.C.
§§ 1342 and 1349. This conviction is for an “aggravated
felony,” which makes Nkomo removable and ineligible for
most relief. About a month after she was sentenced to time
served for that offense, the Government initiated these removal
proceedings.
Adopting much of the Immigration Judge’s analysis, the
Board of Immigration Appeals found Nkomo ineligible for
withholding because her wire fraud conviction was for a
“particularly serious crime” under 8 U.S.C.
§ 1231(b)(3)(B)(ii). Although that finding did not foreclose
CAT protection, the Board denied that too, adopting the IJ’s
finding that Nkomo had not shown a probability she would be
tortured by or with the acquiescence of the government of
Zimbabwe. Nkomo filed this timely petition for review. See 8
U.S.C. § 1252(b)(1).
II
The Board had jurisdiction under 8 C.F.R.
§§ 1003.1(b)(3) and 1003.2(c). We have jurisdiction under 8
U.S.C. § 1252(a). Because Nkomo is a criminal alien, our
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review is limited to colorable legal and constitutional claims. 8
U.S.C. § 1252(a)(2)(C)–(D). We review the Board’s decision,
but where “the BIA adopt[s] and affirm[s] the IJ’s decisions
and orders as well as [conducting] an independent analysis, we
review both the IJ’s and the BIA’s decisions and orders.”
S.E.R.L. v. Att’y Gen., 894 F.3d 535, 543 (3d Cir. 2018)
(quoting Ordonez-Tevalan v. Att’y Gen., 837 F.3d 331, 340–41
(3d Cir. 2016)). “[W]e look to the IJ’s opinion ‘only where the
BIA has substantially relied on that opinion.’” Id. (quoting
Camara v. Att’y Gen., 580 F.3d 196, 201 (3d Cir. 2009), as
amended (Nov. 4, 2009)).
III
We begin with Nkomo’s jurisdictional challenge to the
immigration proceedings. While her appeal was pending
before the BIA, Nkomo filed a motion to remand to the IJ,
claiming that her proceedings should be terminated in light of
the Supreme Court’s decision in Pereira v. Sessions, 138 S. Ct.
2105 (2018). Nkomo Br. 21–23, 25. The BIA denied Nkomo’s
motion to remand, citing its decision in Matter of Bermudez-
Cota, 27 I. & N. Dec. 441 (BIA 2018). Nkomo claims the
Board erred in this regard. Because her jurisdictional challenge
is a purely legal one, our review is plenary. Chiao Fang Ku v.
Att’y Gen., 912 F.3d 133, 138 (3d Cir. 2019).
At issue in Pereira was cancellation of removal, a form
of discretionary relief available under 8 U.S.C. § 1229b(b)(1).
To be eligible for cancellation of removal, an alien must accrue
10 years of continuous physical presence in the United States
“immediately preceding the date” of the application for
cancellation. Id. § 1229b(b)(1)(A). That continuous physical
presence ceases to accrue, however, “when the alien is served
a notice to appear under section 1229(a).” Id.
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§ 1229b(d)(1)(A). This is known as the “stop-time rule.”
Pereira, 138 S. Ct. at 2109. Pereira was denied cancellation of
removal by the agency because he was served with a notice to
appear before he had accrued the requisite 10 years. Applying
deference under Chevron, U.S.A., Inc. v. Nat. Res. Def.
Council, Inc., 467 U.S. 837 (1984), the Court of Appeals for
the First Circuit denied Pereira’s petition for review. Pereira v.
Sessions, 866 F.3d 1, 2 (1st Cir. 2017).
The Supreme Court reversed. Eschewing Chevron
deference in favor of the text of the statute, the Court held that
the notice to appear served on Pereira did not trigger the stop-
time rule because § 1229(a) requires that the notice to appear
specify, inter alia, “[t]he time and place at which the [removal]
proceedings will be held.” Pereira, 138 S. Ct. at 2113–14
(quoting 8 U.S.C. § 1229(a)(1)(G)(i)). The Court reasoned:
“By expressly referencing § 1229(a), the statute specifies
where to look to find out what ‘notice to appear’ means.” Id. at
2114. And looking to § 1229(a), one finds a requirement that
time and place be specified. The Court explained that “[i]f the
three words ‘notice to appear’ mean anything in this context,
they must mean that, at a minimum, the Government has to
provide noncitizens ‘notice’ of the information, i.e., the ‘time’
and ‘place,’ that would enable them ‘to appear’ at the removal
hearing.” Id. at 2115. Because the notice to appear served on
Pereira failed to include that information, he was not ineligible
for cancellation of removal.
In this case, Nkomo appeared at, and participated in, her
removal hearing. She nevertheless argues that the IJ, the BIA,
and this Court all lack jurisdiction because her notice to appear
was deficient under Pereira. Her argument boils down to the
following logical sequence: (1) Pereira defined “notice to
appear” for all purposes; (2) 8 C.F.R. § 1003.14(a) provides
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that “[j]urisdiction vests, and proceedings before an
Immigration Judge commence, when a charging document is
filed with the Immigration Court”; (3) 8 C.F.R. § 1003.13
defines “charging document” as “the written instrument which
initiates a proceeding before an Immigration
Judge . . . . includ[ing] a Notice to Appear”; (4) because a
notice to appear lacking time and place information is not
actually a notice to appear under Pereira, it’s not a charging
document; so (5) jurisdiction never vested when that document
was filed.
The argument Nkomo makes here has been made to
seven of our sister courts in the past two years and it has been
rejected each time. See Ortiz-Santiago v. Barr, 924 F.3d 956,
957–58, 962–64 (7th Cir. 2019); Ali v. Barr, 924 F.3d 983, 986
(8th Cir. 2019); Banegas Gomez v. Barr, 922 F.3d 101, 110–12
(2d Cir. 2019); Soriano-Mendosa v. Barr, 768 F. App’x 796,
801–02 (10th Cir. 2019) (non-precedential); Santos-Santos v.
Barr, 917 F.3d 486, 489–90 (6th Cir. 2019); Karingithi v.
Whitaker, 913 F.3d 1158, 1160–61 (9th Cir. 2019); Hernandez-
Perez v. Whitaker, 911 F.3d 305, 314–15 (6th Cir. 2018);
Leonard v. Whitaker, 746 F. App’x 269, 269–70 (4th Cir. 2018)
(non-precedential per curiam); United States v. Perez-Arellano,
756 F. App’x 291, 294 (4th Cir. 2018) (non-precedential per
curiam). And, as we noted already, the BIA rejected the
argument in Matter of Bermudez-Cota, 27 I. & N. Dec. 441
(BIA 2018). Today we join our sister courts and the BIA for
three reasons.
First, unlike the stop-time rule, which is explicitly tied
to the list of elements in § 1229(a), see Pereira, 138 S. Ct. at
2114, the jurisdiction-vesting regulation upon which Nkomo
relies does not cross-reference that section. See Karingithi, 913
F.3d at 1161 (“Pereira treats this statutory cross-reference as
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crucial . . . . There is no ‘glue’ to bind § 1229(a) and the
jurisdictional regulations: the regulations do not reference
§ 1229(a), which itself makes no mention of the IJ’s
jurisdiction.”). A critical piece of Pereira’s reasoning is thus
inapplicable here. And not only is the word “jurisdiction”
nowhere to be found in § 1229(a), but it also would be an odd
place to find a jurisdictional limitation. Congress would have
placed § 1229(a)(1)’s requirements in § 1229a—the section
establishing the IJ’s authority—if it meant them to limit the IJ’s
subject matter jurisdiction.
Second, Pereira did not purport to resolve issues beyond
the § 1229b(d)(1)(A) stop-time rule context, and the Supreme
Court repeatedly emphasized the narrowness of its holding,
Pereira, 138 S. Ct. at 2110, 2113; see id. at 2121 (Alito, J.,
dissenting). That limitation makes sense, and we should
hesitate to extend Pereira’s reach, because the cancellation of
removal context at issue in Pereira and the reopening/remand
context at issue in Nkomo’s case are quite different. Filing a
notice to appear commences removal proceedings—and
serving it stops the accrual of time for an alien’s “ten years of
continuous presence” if it complies with § 1229(a). By
contrast, reopening and remand are available only when
proceedings before the IJ have been completed. See Mauricio-
Benitez v. Sessions, 908 F.3d 144, 148 n.1 (5th Cir. 2018). So
while Pereira’s holding expands the class of those eligible for
discretionary relief in removal proceedings, Nkomo’s
argument would invalidate scores of removal orders (and,
presumably, grants of relief). And it would do so without even
requiring the alien to allege she lacked sufficient notice of her
hearing, see Hernandez-Perez, 911 F.3d at 314. We doubt the
Supreme Court made so dramatic a change sub silentio.
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Third, the majority and dissent in Pereira debated
whether a notice to appear under § 1229(a) might be
understood as a charging document rather than a notice focused
on informing the alien of the time and place of her hearing. See
Pereira, 138 S. Ct. at 2115 n.7; id. at 2128 & n.6 (Alito, J.,
dissenting). The Court observed that “[e]ven if a notice to
appear functions as a ‘charging document,’ that is not mutually
exclusive with the conclusion that a notice to appear serves
another equally integral function: telling a noncitizen when and
where to appear.” Id. at 2115 n.7. But the regulation at issue in
Nkomo’s case explicitly describes the relevant filing as a
“charging document.” 8 C.F.R. § 1003.14. This suggests
§ 1003.14’s filing requirement serves a different purpose than
the “notice to appear under section 1229(a)” in the stop-time
rule, 8 U.S.C. § 1229b(d)(1)(A).
Other regulatory provisions likewise confirm that
Pereira’s holding is not readily transferable to 8 C.F.R.
§ 1003.14. One rule lists what must be included in a notice to
appear under § 1003.14, and time and place are conspicuously
absent. 8 C.F.R. § 1003.15(b), (c). The regulation further
provides that failure to include the required information “shall
not be construed as affording the alien any substantive or
procedural rights.” Id. § 1003.15(c). Nkomo does not argue
that these provisions are inconsistent with the statute or
otherwise invalid.
We recognize that Pereira’s reasoning at times suggests
a breadth that is at odds with the Court’s insistence that its
opinion was addressed to the “narrow question” of the effect of
a non-compliant notice to appear on § 1229b(d)(1)(A)’s stop-
time rule. See Pereira, 138 S. Ct. at 2110 (“A notice that does
not inform a noncitizen when and where to appear for removal
proceedings is not a ‘notice to appear under section 1229(a)’
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and therefore does not trigger the stop-time rule.”). But given
the distinguishing factors we have noted along with the Court’s
emphasis on Pereira’s limitations, and the fact that § 1229(a)
says nothing about jurisdiction—we do not believe Pereira’s
interpretation of “notice to appear” implicates the IJ’s authority
to adjudicate. So we reject Nkomo’s jurisdictional challenge.
IV
Having determined that the BIA did not err when it
denied Nkomo’s motion to remand, we turn to the Board’s
denial of Nkomo’s application for withholding of removal. She
argues that the Board erred in deciding as a matter of discretion
that her conviction for wire fraud was a “particularly serious
crime” that made her ineligible for relief under 8 U.S.C.
§ 1231(b)(3)(B).
It is undisputed that Nkomo’s fraud conviction was for
an “aggravated felony.” See Alaka v. Att’y Gen., 456 F.3d 88,
105 (3d Cir. 2006), as amended (Aug. 23, 2006). It is also
undisputed that Nkomo was not sentenced to at least five years’
imprisonment for wire fraud. So her crime is not ipso facto a
“particularly serious” one, though the Board may yet conclude
that it is based on its circumstances. See 8 U.S.C.
§ 1231(b)(3)(B). The Board has broad discretion to make that
decision. See Denis v. Att’y Gen., 633 F.3d 201, 214 (3d Cir.
2011).
Nkomo’s principal argument is that the Board erred in
failing to address whether she was a danger to the community.
She cites statutory language that might suggest such a
requirement. See 8 U.S.C. § 1231(b)(3)(B)(ii) (barring
withholding eligibility if the Attorney General determines “the
alien, having been convicted by a final judgment of a
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particularly serious crime is a danger to the community of the
United States”). But we need not analyze this argument since
it is foreclosed by precedent. See Denis, 633 F.3d at 215 n.19
(“[N]either the IJ nor the BIA, nor we, need opine as to [the
alien’s] potential danger to the community.” (citing Matter of
N-A-M-, 24 I. & N. Dec. 336, 342 (BIA 2007))).
Besides the question of danger to the community,
Nkomo contends the Board erred in failing to take proper
account of her minimal participation in the fraudulent scheme
underlying her conviction. Her level of participation, she
argues, led to a non-custodial sentence that should have been
taken into account. We have jurisdiction to review claims that
the Board misapplied its precedents. See Kaplun v. Att’y Gen.,
602 F.3d 260, 267 (3d Cir. 2010). But we see no legal error in
the Board’s analysis on this point.
The Board acknowledged Nkomo had been adjudged a
minimal participant in a much broader fraudulent scheme, but
agreed with the IJ that the gravity of the offense outweighed
her lower culpability as compared to her co-conspirators.
Nkomo participated in a fraudulent scheme totaling $40
million in losses and she was held personally responsible for
nearly $3 million. Because financial crimes may be
“particularly serious,” Kaplun, 602 F.3d at 268, and in light of
the substantial deference due the Board in this area, we
perceive no error. Nor does Nkomo point to any Board
precedent supporting a different result.
Relying on Matter of Frentescu, 18 I. & N. Dec. 244
(BIA 1982), Nkomo argues that the Board failed to account for
the non-custodial sentence she received. It bears noting the
Board did cite her sentence in its analysis. AR 4. What Nkomo
seems to suggest is that Board precedent requires consideration
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of a non-custodial sentence as a mitigating factor. But the
Board lists the sentence imposed as a factor that “may” be used
in its determination—and sometimes the Board relies
exclusively on the elements of the offense. Denis, 633 F.3d at
215; N-A-M-, 24 I. & N. Dec. at 342–43. This approach
necessarily gives no weight to the sentence imposed. As the
Board explained in N-A-M-, its “approach to determining
whether a crime is particularly serious has evolved
since . . . Matter of Frentescu” and “the sentence imposed is
not a dominant factor in determining whether a conviction is
for a particularly serious crime.” Id. In any event, the
“particularly serious crime” determination lacks “textual or
contextual indicators in the INA” and is not amenable to bright
line rules like the one Nkomo seems to propose. Denis, 633
F.3d at 214. We will therefore deny the petition for review as
to withholding of removal.
V
Finally, we consider Nkomo’s CAT claim. Nkomo’s
father was deeply involved with the Zimbabwe African
People’s Union (ZAPU) party, a onetime rival of the Zimbabwe
African National Union (ZANU) party. She argues the Board
erred in relying on the merger of these parties (into the ZANU-
PF party) in finding she would not likely be tortured by or with
the acquiescence of the government of Zimbabwe. The merger,
she contends, was “only symbolic in nature,” and she would
still be in danger as an outsider to Zimbabwe’s dominant
political party. Nkomo Br. 21. In essence, she takes issue with
the IJ’s finding that she is unlikely to suffer harm upon return
because the party that once posed a threat has merged with her
own. This presents a factual challenge over which we have no
jurisdiction. See Pierre v. Att’y Gen., 528 F.3d 180, 184 (3d Cir.
2008) (en banc) (“Because the basis for removal is [the alien’s]
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conviction for an aggravated felony, our jurisdiction is limited
under the REAL ID Act to ‘constitutional claims or questions
of law.’” (quoting 8 U.S.C. § 1252(a)(2)(C)–(D))).
Nkomo also rehashes evidence that she might suffer
harm upon her return to Zimbabwe, without addressing
evidence to the contrary relied on by the IJ and the Board. Here
again, what is likely to happen on Nkomo’s return to
Zimbabwe (as opposed to whether those predicted events meet
the legal definitions of “torture” or “acquiescence”) is a factual
question over which we lack jurisdiction. See Myrie v. Att’y
Gen., 855 F.3d 509, 516–17 (3d Cir. 2017). So we cannot
review, much less disturb, the Board’s determination that if
Nkomo is returned to Zimbabwe, she is not likely to suffer
harm because her party merged with the party in power, the
government has not targeted her for three decades, and she has
previously traveled there without being questioned by the
government.
* * *
For these reasons, we will deny Nkomo’s petition for
review as to withholding of removal and otherwise dismiss it
for lack of jurisdiction over her claim for protection under the
Convention Against Torture.
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