Route v. Garland, No. 19-72854 (9th Cir. 2021)
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The Ninth Circuit denied a petition for review of the BIA's decision concluding that petitioner was removable for having been convicted of a crime of moral turpitude (CIMT) within five years after the date of admission, 8 U.S.C. 1227(a)(2)(A)(i).
The panel applied the two-step Chevron inquiry, concluding that: (1) the phrase "the date of admission" in section 1227(a)(2)(A)(i)(I) is ambiguous; and (2) the interpretation in Matter of Alyazji, 25 I. & N. Dec. 397 (BIA 2011), of that ambiguous phrase is "a permissible construction of the statute." The panel concluded that Alyazji, and its application in the unpublished BIA decision in this case, meet the requirements for Chevron deference set forth in United States v. Mead Corp., 533 U.S. 218, 226–27 (2001). The panel acknowledged that the Alyazji interpretation of section 1227(a)(2)(A)(i)(I) results in serious consequences when applied to petitioner, who is a Micronesian citizen, because he had less incentive to apply to become a legal permanent resident or naturalize as a United States citizen.
Court Description: Immigration Denying Jim Route’s petition for review of a decision of the Board of Immigration Appeals concluding that he was removable for having been convicted of a crime of moral turpitude (CIMT) within five years after the date of admission, 8 U.S.C. § 1227(a)(2)(A)(i), the panel deferred to the BIA’s interpretation of the phrase “date of admission” as referring to the date of the admission by virtue of which the individual was present when he or she committed the relevant crime. Route, a citizen of the Federated States of Micronesia (FSM), was admitted to the United States in 2005 and again in 2015. In 2018, he was convicted of unlawful imprisonment in the first degree, in violation of Hawai‘i law. Under 8 U.S.C. § 1227(a)(2)(A)(i), an individual is removable if he or she is convicted of a CIMT within five years after the “date of admission,” and is convicted of a crime for which a sentence of one year or longer may be imposed. The BIA concluded that Route’s offense constituted a qualifying CIMT, and that it rendered him removable because he was convicted within five years of his 2015 admission. The BIA relied on its published decision in Matter of Alyazji, 25 I. & N. Dec. 397 (BIA 2011), in which it held that “date of admission,” in the context of § 1227(a)(2)(A)(i), refers to the “date of the admission by ROUTE V. GARLAND 3 virtue of which the alien was present in the United States when he committed his crime.” Although the BIA’s decision in Route’s case was unpublished, the panel concluded that it was eligible for deference pursuant to Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), because it was directly controlled by a published decision, namely Alyazji. At step one of Chevron, the panel concluded the phrase “date of admission” is ambiguous, explaining that the statute makes no attempt to distinguish which admission is the relevant one when there are multiple admissions. At step two of Chevron, the panel held that the BIA’s interpretation in Alyazji was reasonable, noting that the BIA: 1) employed traditional tools of statutory interpretation; 2) considered alternative interpretations; 3) rejected the interpretation that would focus on the first admission as not reconcilable with the language and purpose of the statute; and 4) considered changes to the statutory language, its own precedent, and precedent of the Courts of Appeals. Route argued that the Alyazji interpretation did not comport with the Compact of Free Association governing the relationship between the United States and the FSM. Pursuant to the Compact, a Micronesian citizen may be admitted to the United States and engage in occupations and establish residence as a nonimmigrant without visa approval or labor certification. The panel rejected Route’s contention, explaining that the text of the Compact clearly subjects Micronesian citizens to the removability grounds of § 1227(a). 4 ROUTE V. GARLAND
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