Zimmer's Books

by William K. Zimmer, in Immigration Matters

 

The procedural history, facts of record, holding and rationale in Hammerschmidt v. Garland (November 28, 2022) No. 21-60462 are as follows:

 

Case History

The Department of Homeland Security (“DHS”) placed the Petitioner in removal proceedings for the commission of a “crime involving moral turpitude” and seeking to procure a visa by fraud or misrepresentation (presumably under sections 212(a)(2)(A)(i)(I) and 212(a)(6)(C)(i) of the Immigration and Nationality Act, as amended (“the Act”)).

 

An Immigration Judge sustained both removal charges.

 

The Petitioner then applied for withholding of removal under the Immigration and Nationality Act and deferral of removal under the Convention Against Torture (“CAT”).  Her asylum claim was reserved for appeal to the BIA.

 

Ultimately, the Immigration Judge denied the Petitioner’s applications for withholding of removal, and protection under the CAT.

 

The Petitioner appealed to the Board of Immigration Appeals ("BIA").

 

The BIA adopted and affirmed the Immigration Judge’s decision.

 

The Petitioner filed a Petition for Review.

 

 

Facts

• The Petitioner is native and citizen of Venezuela, who was paroled into the United States for deferred inspection in 2001.
• in 2009 the Petitioner pled guilty to making a false statement in an immigration petition in violation of 18 U.S.C. § 1546(b).  
• In 2015, Hammerschmidt was indicted for aiding and abetting and making false, fictitious, or fraudulent claims to the IRS alongside her co-defendant husband in violation of 18 U.S.C. § 287.
• Although the indictment alleged that the Petitioner was involved in twenty-two counts of false or fraudulent tax returns, she pled guilty to only one count; the fraudulent request of a tax refund in the amount of $2,812.00.
• Nevertheless, she was ordered to pay restitution jointly and severally with her husband in the amount of $45,365 and was sentenced to 48 months in prison.
• The Immigration Judge concluded that the Petitioner’s testimony regarding alleged persecution and torture was not credible.  
• The Immigration Judge then, assuming her testimony was credible, held that her withholding claim would nevertheless fail because her conviction under 18 U.S.C. § 287 is a conviction for an aggravated felony and a particularly serious crime, rendering her ineligible for both asylum and withholding of removal.  The Immigration Judge likewise denied CAT deferral based on the adverse credibility finding and the absence of proof that she would suffer torture if returned to Venezuela.

 

Held

Petition for Review Denied in part and Dismissed in part

 

Rationale

The Petitioner asserted that:

1. The $45,354 in total court ordered restitution cannot establish the loss to the victim because the Petitioner pled guilty to just one count involving a loss less than $3,000;
2. the Immigration Judge misapplied the legal “case-by-case” test and failed to first consider whether the elements of the crime fall within the category of particularly serious crimes; and
3. the BIA engaged in improper factfinding when it affirmed the Immigration Judge’s denial of her motion to continue.

The Fifth Circuit Court of Appeal reasoned as follows:

 

Aggravated Felony Classification

• An aggravated felony includes any “offense that . . . involves fraud or deceit in which the loss to the victim or victims exceeds $10,000.”  See section 101(a)(43)(M)(i) of the Act.
• To determine whether an offense falls within this category, the “circumstance-specific approach” with the “loss to the victim” is applied.   Nijhawan v. Holder, 557 U.S. 29, at 36–38 (2009). 
• When assessing loss, the Immigration Judge may consider “sentencing-related material” such as “[t]he court’s restitution order.” Nijhawan v. Holder, at 42–43; Fosu v. Garland, 36 F.4th 634, at 638 (5th Cir. 2022) (per curiam).
• The Petitioner’s assertion that only the loss arising from the offense described in the count to which she pled guilty is contrary to the meaning of “joint and several” liability, which renders each defendant “liable for the entire amount of the harm.” Honeycutt v. United States, 137 S. Ct. 1626, at 1631 (2017) (emphasis added).
• The restitution order, which the Petitioner concedes holds her “joint and severally liable,” indicates that her conduct contributed to a total loss of more than $45,000.
• Therefore, the BIA did not err in finding that the loss to the victim in the Petitioner’s offense exceeded $10,000 and her conviction falls squarely within the definition of an aggravated felony under section 101(a)(43)(M)(i) of the Act.

Particularly Serious Crime Classification

• To determine whether the conviction is particularly serious, an Immigration Judge is required to apply the “case-by-case test,” which considers “the nature of the conviction, the type of sentence imposed, and the circumstances and underlying facts of the conviction.” Aviles-Tavera v. Garland, 22 F.4th 478, at 483 (5th Cir. 2022).
• When analyzing “the nature of the conviction or elements of the offense, an IJ may evaluate whether a crime is an aggravated felony, but the IJ is not limited to solely this consideration” under the test.  Aviles-Tavera v. Garland, (citing In re N-A-M-, 24 I&N Dec. 336, at 342–43 (BIA 2007).
• Contrary to the Petitioner’s assertion, the Immigration Judge first assessed the elements of the offense under the aggravated felony analysis.  Following this determination, the Immigration Judge turned to the circumstances surrounding the crime, including the Petitioner’s conduct in holding herself out as an attorney and preying on “vulnerable persons,” such as those who did not speak English, to develop tax returns and defraud the government.
• Therefore, the Immigration Judge correctly applied the “case-by-case” test.
• To the extent that the Petitioner asks for reweighing the facts governing classification of the Petitioner’s offense as a particularly serious crime, an appellate court lacks jurisdiction under section 242(a)(2)(C) of the Act.  Tibakweitira v. Wilkinson, 986 F.3d 905, at 911 (5th Cir. 2021).

 

CAT Claim

• Conviction of “particularly serious crime” does not bar relief under CAT.  See 8 C.F.R. § 1208.17(a).
• The Immigration Judge noted in detail several inconsistencies in the Petitioner’s testimony and found her assertions of torture to be “speculative.”
• An “IJ may rely on any inconsistency or omission in making an adverse credibility determination,” and the Immigration Judge noted in detail several inconsistencies.  Wang v. Holder, 569 F.3d 531, at 537, 538 (5^th Cir. 2009).
• The Petitioner failed to explain the gaps in her testimony noted by the Immigration Judge
• Therefore, it cannot be said “that the evidence was so compelling that no reasonable factfinder could conclude against it.”  Wang v. Holder, at 537, 538. 
• Since the adverse credibility determination was proper, the evidence does not compel a finding she would “more likely than not” be tortured if removed.  Martinez-Lopez v. Barr, 943 F.3d 766, at 772 (5th Cir. 2019).

 

Motion for Continuance

• The BIA affirmed the Immigration Judge’s denial of the Petitioner’s motion for continuance (i.e. legalese meaning a request for postponement of a hearing) on the basis that she had failed to argue on appeal “why good cause ha[d] been established” and further concluded that “a review of the record” failed to persuade the BIA that she had established good cause.
• The Petitioner’s failure to adequately brief an issue does not amount to improper factfinding.
• Furthermore, the Petitioner did not allege and the BIA decision does not reveal that the BIA developed a record, gathered new information, or chose between disputed facts.
• Therefore, no basis exists for granting review of the BIA decision affirming denial of the Petitioner’s motion for continuance.

 

Commentary

Aggravated Felony Classification

It appears that the Fifth Circuit Court of Appeal, in Hammerschmidt v. Garland (November 28, 2022) No. 21-60462, applies an important concept derived from a United States Supreme Court decision that is worthy of note when classifying aggravated felony offenses pursuant to section 101(a)(43)(M)(i) of the Act (i.e. an offense that involves fraud or deceit in which the loss to the victim or victims exceeds $10,000).

In particular, a unanimous United States Supreme Court concluded that:

Congress did not intend subparagraph (M)(i)'s monetary threshold to be applied categorically, i.e., to only those fraud and deceit crimes generically defined to include that threshold. Rather, the monetary threshold applies to the specific circumstances surrounding an offender's commission of a fraud and deceit crime on a specific occasion.

Nijhawan v. Holder, 557 U.S. 29, at 42 (2009).  

In other words, Nijhawan v. Holder departs from the categorical approach with regard to section 101(a)(43)(M)(i) of the Act and permits an independent factual determination about monetary loss exceeding $10,000, even though the loss must be connected to the offense under consideration.

The categorical approach to aggravated felony classification describes a direct comparison of the statutory definition of an offense (usually a State offense) to the statutory elements of the generic federal offense or federal offense referenced in the aggravated felony definition.  If all of the elements of the offense under consideration match each of the elements in the generic federal offense or federal offense referenced in the aggravated felony definition there is no need for further inquiry.  The offense under consideration must be an aggravated felony according to basic inductive logic.  Taylor v. United States, 495 U.S. 575 (1990) (“The sentencing court must generally adopt a formal categorical approach . . . looking only to the fact of conviction and the statutory definition of the predicate offense, rather than to the particular underlying facts.”).

In short, Nijhawan v. Holder narrowly exempts decision makers from the sometimes meticulous and perplexing task of applying the categorical approach of aggravated felony classification when determining if monetary loss to a victim or victims in an alleged aggravated felony offense involving fraud or deceit exceeds $10,000. 

Nijhawan v. Holder also spares decision makers from determining whether the modified categorical approach is necessary.  Again, this exception only applies to the determination of monetary loss.

Before resorting to a modified categorical approach, a distinction must be made between elements of an offense (which must be proven beyond a reasonable doubt) and the means of committing the offense (for which proof is not necessary to obtain a conviction, but might appear in the criminal statute).  Quoting Mathis, the BIA acknowledged that “the divisibility of a State statute depends on whether State law establishes that statutory alternatives are discrete ‘elements’ or alternative ‘means’ of committing an offense. Mathis v. United States, 136 S. Ct. at 2256.”   Matter of Chairez-Castrejon, 27 I&N Dec. 21 (BIA 2017).  The determination of whether parts of a State statute are “elements” or “means” typically involves a review of case law in the State where the conviction occurred.

In brief, an “element” of an offense must be proven beyond a reasonable doubt to obtain a conviction.  Whereas, the “means” of committing an offense is the way in which an offense is committed that need not be proven to obtain a conviction.

Once an offense under consideration for aggravated felony classification is deemed divisible according to its elements, lawyers and judges can resort to the modified categorical approach.  This opens the door to review of indictments, jury instructions, plea colloquies, and plea agreements.

It seems that my comments have strayed beyond the scope of Hammerschmidt v. Garland. 

Although much more remains to be said about aggravated felony classification, concern for the reader’s patience counsels return to remaining observations relating to Hammerschmidt v. Garland.  

 

Particularly Serious Crime

Some readers might benefit from additional information about the criteria for classifying an offense as a “particularly serious crime” in the context of withholding of removal claims.

Congress provided a statutory bar to withholding of removal under section 241(b)(3)(A) of the Immigration and Nationality Act, as amended (“the Act”) as follows:

Subparagraph (A) does not apply to an alien . . . if the Attorney General decides that – . . . (ii) the alien, having been convicted by final judgement of a particularly serious crime, is a danger to the community of the United States.

For withholding of removal applications, a conviction for an aggravated felony is a particularly serious crime on its face only if a sentence of 5 years or more has been assessed as punishment.  If a withholding of removal applicant has been convicted of multiple aggravated felonies one or more of the aggravated felony convictions will be classified as a crime or crimes that are particularly serious on the face of the record only if all the sentences added together (i.e. aggregate sentences) amount to 5 years or more.  See section 241(b)(3)(B) of the Act; 8 C.F.R. § 1208.16(d)(2), (3). 

Regardless of the 5 year sentence requirement for automatic classification of aggravated felonies as particularly serious crimes, an aggravated felony for which a sentence of less than 5 years has been imposed can nevertheless be classified as a particularly serious crime on a case-by-case basis.   See section 241(b)(3)(B) of the Act; 8 C.F.R. § 1208.16(d)(2), (3). 

The same criteria for case-by-case particularly serious crime classification also applies to asylum applications for any crime, regardless of the length of sentence or even the absence of a sentence.  For the purpose determining eligibility for asylum, any aggravated felony conviction is a conviction for a particularly serious crime and requires mandatory denial of the convicted alien’s asylum application.  Matter of K-, 20 I&N Dec. 418 (BIA 1991); Matter of C-, 20 I&N Dec. 529 (BIA 1992). 

The 5 year sentence requirement for automatic aggravated felony classification only applies in the adjudication of withholding of removal applications.  See section 241(b)(3)(B) of the Act.

Since the sentence assessed as punishment for an aggravated felony sometimes governs classification of the aggravated felony as a particularly serious crime in the context of a withholding of removal hearing, it is important to realize that actual incarceration is not required for the sentence to be used for the purpose of classifying the aggravated felony as a particularly serious crime: 

Any reference to a term of imprisonment with respect to an offense is deemed to include the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part.

See section 101(a)(48)(B) of the Act.

Section 101(a)(48)(B) of the Act applies to convictions and sentences entered before, on, or after September 30, 1996 (i.e. applicable retroactively).  See section 322(c) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.  Matter of S-S-, 21 I&N Dec. 900 (BIA 1997).

To determine whether an alien has been convicted for a particularly serious crime using a case-by-case analysis, it is necessary to consider:

1)        the nature of the conviction;

2)        the type of sentence imposed;

3)        the circumstances and underlying facts of the conviction; and

4)        whether the circumstances and underlying facts indicate a danger to the community.

Matter of Frentescu, 18 I&N Dec. 244 (BIA 1982); Matter of S-S-, 22 I&N Dec. 458 (BIA 1999); Matter of N-A-M-, 24 I&N Dec. 336 (BIA 2007). 

Once a finding is made that an alien has been finally convicted for a particularly serious crime, it necessarily follows that the alien is a danger to the community of the United States.  It is not necessary for the Immigration Judge to make any additional finding with regard to the likelihood of future serious misconduct on the part of the alien.  Matter of Carballe, 19 I&N Dec. 357 (BIA 1986); Matter of B-, 20 I&N Dec. 427, at 430 (BIA 1991).

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