Romero v. Attorney General of the United States

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 08-4104

NOEL VILMAR ROMERO,
Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,
Respondent

On Petition for Review from the Board of Immigration Appeals
BIA-1 No. A029-635-129
Immigration Judge: The Honorable Margaret Reichenberg

Argued June 21, 2010

Before: SMITH, FISHER, and COWEN, Circuit Judges

(Filed: August 10, 2010)
_______________________

OPINION
_______________________

Francis X. Geier, Esq. (argued)
Anayancy R. Housman, Esq.
453 Westminster Avenue
Elizabeth, NJ 07208
Counsel for Petitioner

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Christina B. Parascandola, Esq. (argued)
Benjamin J. Zeitlin, Esq.
Office of Immigration Litigation, Civil Division
United States Department of Justice
P.O. Box 878
Ben Franklin Station
Washington, D.C. 20044
Counsel for Respondent

SMITH, Circuit Judge.

An Immigration Judge (“IJ”) found that Petitioner Noel Romero (“Noel”) willfully

misrepresented his criminal record in order to obtain lawful permanent resident status, and

ordered his removal. The Board of Immigration Appeals (“BIA”) dismissed Noel’s appeal.

Noel now petitions this Court for review. We have jurisdiction under 8 U.S.C. § 1252,

subject to the qualifications explained in this opinion.1 We will deny the petition.

I.

Noel, a native of Peru, entered the United States in August 1984. His B-2 visa expired

in February of 1985, but he remained in this country well past that date. In June of 1995, he

married Flavia Romero (“Flavia”), a naturalized American citizen. The couple had two

children, both of whom are American citizens. On February 7, 1996, Flavia petitioned the

INS for a visa for her husband based on their marriage. On the same day, Noel applied for

adjustment of status to permanent resident by completing a Form I-485. This form asked

1
We have considered and rejected the Attorney General’s argument that we lack
jurisdiction because no live case or controversy is presented.

2
whether Noel had “ever . . . . been arrested, cited, charged, indicted, fined, or imprisoned for

breaking or violating any law or ordinance[.]” Noel answered “No,” despite his prior

convictions under New Jersey law for cocaine possession, assault, shoplifting, and receipt

of stolen property. On July 10, 1996, his application for adjustment of status to lawful

permanent resident was granted, albeit on a conditional basis. See Immigration and

Nationality Act (“INA”) § 216, 8 U.S.C. § 1186a.

On June 10, 1998, the Romeros jointly petitioned to remove the conditions on Noel’s

lawful resident status by filing a Form I-751. That form asked whether Noel, since becoming

a conditional permanent resident, had “been arrested, cited, charged, indicted, convicted,

fined, or imprisoned for breaking or violating any law or ordinance[.]” Noel answered “No.”

This response was inaccurate, for he had again been convicted of shoplifting on March 12,

1997. On July 8, 1998, the INS granted the Romeros’ petition and removed the conditions

on Noel’s permanent resident status.

On February 7, 2006, Noel arrived at Newark Airport on a flight returning from Peru.

When he applied for admission as a lawful permanent resident, he was detained and served

with a Notice to Appear (“NTA”). The NTA alleged that Noel was inadmissible and

removable on four grounds: as an alien convicted of a crime involving moral turpitude

(“CIMT”),2 INA § 212(a)(2)(A)(i)(I); as an alien convicted of a controlled substance offense,

id. § 212(a)(2)(A)(i)(II); as an alien who obtained an immigration benefit by fraud or willful

2
Shoplifting is a CIMT. Smirko v. Ashcroft, 387 F.3d 279, 283 (3d Cir. 2004).

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misrepresentation of material fact, id. § 212(a)(6)(C)(i); and as an intended immigrant who,

at the time of his application for admission, lacked a valid, unexpired immigrant visa or other

suitable entry document, id. § 212(a)(7)(A)(i). Noel conceded the first two grounds of

inadmissibility—which were based on his shoplifting and cocaine convictions—but denied

the latter two, which were based on his failure to disclose his criminal record on the I-485

and I-751 forms.

Noel and Flavia testified at a hearing before the IJ on October 31, 2006. Noel denied

willfully misrepresenting his criminal record. He explained that he had not filled out the

relevant forms himself, because he did not understand English at the time. Instead, he paid

a Spanish-speaking legal secretary named Evelyn Rodas to complete the forms on his behalf.

Noel testified that he only provided the information that Rodas asked him to supply, and that

she never asked him if he had a criminal record. He admitted to signing the inaccurate forms,

but only because Rodas told him to, and he trusted her because she had “done this for other

people and it had come out well.” Flavia’s testimony was similar. She testified that Rodas

had filled out both immigration forms on Noel’s behalf, and that neither she nor any

immigration official had ever asked whether Noel had a criminal record.

While his removal proceedings were pending, Noel filed a motion to terminate those

proceedings under 8 C.F.R. § 1239.2(f). That regulation permits an IJ to terminate removal

proceedings to permit an alien to receive a final hearing on a pending application for

naturalization, provided the alien (1) has established prima facie eligibility for naturalization

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and (2) the matter involves “exceptionally appealing or humanitarian factors[.]” The IJ

stated that she would terminate removal proceedings if the Department of Homeland Security

(“DHS”) stipulated to termination. DHS did not so stipulate, and proceedings continued.

On March 28, 2007, the IJ ordered Noel’s removal from the United States. She

concluded that Noel had twice obtained immigration benefits by willfully misrepresenting

material facts: first by failing to disclose his criminal record on the I-485 form, and later by

failing to disclose his March 1997 shoplifting conviction on the I-751 form. The IJ rejected

Noel’s claim that his omissions were innocent mistakes. She apparently believed his claim

that he had not filled out the forms himself, but found that he had willfully failed “to be

candid [about his record] with those people that he chose to help him prepare his

applications,” including his wife and Rodas.

Finally, the IJ upheld the charge that Noel was inadmissible because he did not

possess a valid entry document when he applied for admission at Newark Airport. See INA

§ 212(a)(7)(A)(i). She reasoned that Noel’s lawful permanent resident card was not a “valid”

entry document for purposes of admission because he had obtained it through fraud.

Based on these conclusions, the IJ held that Noel was inadmissible and removable on

all four grounds alleged in the NTA. She also concluded that Noel was ineligible for the

various forms of relief from removal he had requested, including cancellation of removal

under INA § 240A and a waiver under (now-repealed) INA § 212(c).

On April 19, 2007, Noel filed a timely Notice of Appeal with the BIA. He did not file

5
a supporting brief, but he did complete the section of the form that required him to “State in

Detail the Reasons for [the] Appeal.” That statement read, in its entirety:

We submit that the Court erred in finding that the Respondent
was ineligible for the various applications for relief submitted in
these proceedings. Despite finding the witnesses’ testimony
credible, the Court nevertheless found that the Respondent had
wilfully misrepresented himself in obtaining lawful permanent
residence, a finding unsupported by, and in fact contradicted by
the record of proceedings. As a result of the Court’s fraud
finding, the Immigration Judge never even considered the
Respondent’s alternate applications for relief, including [INA
Section] 212(c) relief and Cancellation of Removal, deeming
him automatically ineligible. Neither did the Court grant the
Respondent his motion for termination of proceedings for leave
to pursue his application for naturalization. For these reasons,
we appeal to the Board of Immigration Appeals.

The BIA dismissed the appeal, noting that Noel had presented no specific facts or

legal arguments to support his claims of error. It also specifically endorsed the IJ’s refusal

to terminate removal proceedings so that Noel could pursue naturalization. It concluded that

removal proceedings could not be terminated under § 1239.2(f) because Noel had obtained

no affirmative communication from DHS attesting to his prima facie eligibility for

naturalization. The BIA noted that § 1239.2(f), as interpreted in Matter of Acosta-Hidalgo,

24 I&N Dec. 103 (B.I.A. 2007), requires such a communication from the DHS before an IJ

may terminate removal proceedings.

On October 3, 2008, Noel filed a timely petition for review in this Court. He raises

three claims of error. First, he argues that the record does not support the IJ’s finding that

he willfully misrepresented his criminal record on the I-485 and I-751 forms. Second, he

6
argues that his removal is barred by the five-year statute of limitations of INA § 246(a), 8

U.S.C. § 1256(a). Third, he contends that the IJ and BIA violated due process by denying

his motion to terminate removal proceedings under § 1239.2(f) simply because the DHS did

not affirmatively communicate his prima facie eligibility for naturalization to the IJ.

II.

Noel first argues that the IJ’s finding that he willfully misrepresented his criminal past

is not supported by the record. He concedes that he failed to disclose his convictions on the

relevant immigration forms. Furthermore, he does not deny that these omissions were

misrepresentations of “material” facts. See INA § 212(a)(6)(C)(i). He argues only that his

failure to disclose his criminal record was not “willful” because he did not himself

understand that the relevant forms requested that information, and the person he depended

on to complete the forms for him (Ms. Rodas) never asked about the subject. “The element

of willfulness is satisfied by a finding that the misrepresentation was deliberate and

voluntary. The [government] does not need to show intent to deceive; rather, knowledge of

the falsity of the representation will suffice.” Mwongera v. I.N.S., 187 F.3d 323, 330 (3d Cir.

1999) (internal citations and quotations omitted). Whether a misrepresentation was willful

is an issue of fact. Singh v. Gonzales, 413 F.3d 156, 160 (1st Cir. 2005). Accordingly, we

review the IJ’s finding of willfulness under the “substantial evidence” standard, and we must

uphold it unless the record is such that “any reasonable adjudicator would be compelled to

conclude” that the IJ erred. Chen v. Gonzales, 434 F.3d 212, 216 (3d Cir. 2005) (quoting 8

7
U.S.C. § 1252(b)(4)). After reviewing the record, we conclude that a reasonable adjudicator

could have concluded that Noel’s misrepresentation was “deliberate and voluntary.”

Mwongera, 187 F.3d at 330. Therefore, we will not disturb the IJ’s finding of willfulness.3

III.

Next, Noel argues that even if he willfully misrepresented material facts in 1996 and

1998, his removal on that basis is barred by the five-year statute of limitations on rescissions

of adjustment of status contained in INA § 246(a), which we applied in Bamidele v. I.N.S.,

99 F.3d 557 (3d Cir. 1996), and Garcia v. Attorney General, 553 F.3d 724 (3d Cir. 2009).

We lack jurisdiction to consider this claim. “A court may review a final order of

removal only if,” among other requirements, “the alien has exhausted all administrative

remedies available to the alien as of right.” 8 U.S.C. § 1252(d)(1). This means that “an alien

is required to raise and exhaust his or her remedies as to each claim or ground for relief if

he or she is to preserve the right of judicial review of that claim.” Abdulrahman v. Ashcroft,

330 F.3d 587, 594-95 (3d Cir. 2003) (emphasis added). Despite the jurisdictional nature of

this requirement, we have taken a “liberal” approach to enforcing it. Joseph v. Att’y Gen.,

465 F.3d 123, 126 (3d Cir. 2006). “[S]o long as an immigration petitioner makes some

effort, however insufficient, to place the Board on notice of a straightforward issue being

raised on appeal, a petitioner is deemed to have exhausted [his] administrative remedies.”

3
We also reject Noel’s subsidiary argument that the IJ erred, on the basis of her
incorrect willfulness finding, in concluding that he was ineligible for a waiver under INA
§ 212(c) and/or cancellation of removal under INA § 240A.

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Yan Lan Wu v. Ashcroft, 393 F.3d 418, 422 (3d Cir. 2005).

Noel cannot satisfy even this permissive standard. His Notice of Appeal to the BIA

did not argue that his removal was time-barred by § 246(a).4 Indeed, nothing in the Notice,

even when read “expansively[,] even suggested the issue.” Lin v. Att’y Gen., 543 F.3d 114,

121 (3d Cir. 2008). The Notice challenges only the IJ’s finding that Noel willfully

misrepresented material facts, and the IJ’s decision not to terminate removal proceedings so

that Noel could pursue naturalization. While “an alien need not do much to alert the Board

that he is raising an issue,” Joseph, 465 F.3d at 126, he must do something. Noel did not do

so with respect to his § 246(a) claim.5 Therefore, he has not exhausted his administrative

remedies with respect to that claim, and we lack jurisdiction to consider it.

IV.

Finally, Noel contends that the IJ violated his due process rights by refusing to

terminate his removal proceedings pursuant to 8 C.F.R. § 1239.2(f). That regulation

provides, in relevant part, that “[a]n immigration judge may terminate removal proceedings

to permit the alien to proceed to a final hearing on a pending application or petition for

naturalization when [1] the alien has established prima facie eligibility for naturalization and

4
Nor did the BIA consider the issue sua sponte. See Lin v. Att’y Gen., 543 F.3d
114, 126 (3d Cir. 2008) (deeming exhaustion requirement satisfied where the petitioner
failed to raise an issue but the BIA considered it sua sponte).
5
At oral argument, Noel’s counsel conceded that the statute of limitations issue
was not presented to the BIA.

9
[2] the matter involves exceptionally appealing or humanitarian factors[.]” 6 In Acosta-

Hidalgo, the BIA interpreted the first prong of this test to require “some affirmative

communication regarding [the alien’s] prima facie eligibility for naturalization from the

DHS” before an IJ may terminate removal proceedings. 24 I&N Dec. at 107-08. We have

upheld this interpretation as reasonable. Zegrean v. Att’y Gen., 602 F.3d 273, 274 (3d Cir.

2010).

Here, the IJ declined to terminate removal proceedings pursuant to § 1239.2(f), and

as the BIA noted, termination of proceedings would have been impermissible under Acosta-

Hidalgo because the DHS had not provided any affirmative communication attesting to

Noel’s prima facie eligibility for naturalization. Noel does not dispute that § 1239.2(f), as

interpreted in Acosta-Hidalgo, imposes an “affirmative communication” requirement.

Rather, he argues that the Board’s imposition of such a requirement is “fundamentally unfair

because it gives the [DHS] complete veto power over a termination of removal proceedings

through silence.” He argues that he has demonstrated prima facie eligibility for

naturalization, in that he (1) was a legal permanent resident for over five years; (2) was a

person of good moral character for the last ten years; and (3) had not committed an

6
The remainder of the regulation provides that “in every other case, the removal
hearing shall be completed as promptly as possible notwithstanding the pendency of an
application for naturalization during any state of the proceedings.” 8 C.F.R. § 1239.2(f).
The purpose reflected in § 1239.2(f) is to give removal proceedings priority over
naturalization proceedings, “to prevent a race between an alien, seeking to be naturalized,
and immigration authorities, [seeking] to complete removal proceedings.” Acosta-
Hidalgo, 24 I&N Dec. at 107 (internal quotations omitted).

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aggravated felony. He also maintains that the “humanitarian factors” referenced in §

1239.2(f) weighed in favor of terminating removal proceedings, as he has lived in the United

States for more than two decades and has a wife and children who are American citizens.

According to Noel, under these circumstances, it was fundamentally unfair for the IJ and BIA

to deny him a chance at naturalization simply by virtue of the DHS’s silence.7

We are not persuaded. Noel cites no authority for the proposition that the rule of

Acosta-Hidalgo violates due process, and our research reveals none. Noel points to Board

Member Filppu’s dissent in Acosta-Hidalgo, but even Filppu did not argue that his preferred

reading of § 1239.2(f) was compelled by due process. He argued only that the majority’s

interpretation created “difficult[ies]” and offered an alternative interpretation that would have

eliminated those difficulties. See Acosta-Hidalgo, 24 I&N Dec. at 109.

The rule announced in Acosta-Hidalgo is not fundamentally unfair. Congress, which

has plenary power over immigration, has granted the Attorney General the “sole authority

to naturalize persons as citizens of the United States.” 8 U.S.C. § 1421(a). This authority

has been delegated to the DHS. See Hernandez de Anderson v. Gonzales, 497 F.3d 927, 933

(9th Cir. 2007). As Acosta-Hidalgo recognized, the BIA and IJs lack authority to determine

7
It appears this is the first time Noel has raised this argument. “Normally, we
have jurisdiction over an alien’s claims only where the alien has raised and exhausted his
or her administrative remedies as to that claim. However, due process claims are
generally exempt from the exhaustion requirement because the BIA does not have
jurisdiction to adjudicate constitutional issues.” Mudric v. Att’y Gen., 469 F.3d 94, 97-98
(3d Cir. 2006) (internal citations omitted). Our review is plenary. Id.

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prima facie eligibility for naturalization. 25 I&N Dec. at 105-06. It is not fundamentally

unfair for them to require affirmative confirmation of eligibility from the one entity that does

have that authority before terminating removal proceedings under § 1239.2(f). See

Hernandez de Anderson, 497 F.3d at 935 (rejecting due process challenge to § 1239.2(f));

“[g]iven Congress’s plenary power over immigration,” petitioner’s argument “that the

Attorney General and, derivatively, the DHS have been given too much authority over

naturalization and removal decisions” was unpersuasive).

V.

For the foregoing reasons, the petition for review will be denied.

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FISHER, Circuit Judge, concurring.

Though I unconditionally join my colleagues’ opinion in Parts I, II and IV, I write

separately to concur in Part III and to express my reservations about the strict

enforcement of administrative exhaustion requirements in this case.

Under the clear precedent of this circuit, by which we are bound, the requirement

that a petitioner administratively exhaust all issues by presenting them in a notice of

appeal to the BIA is statutory and a prerequisite to our jurisdiction. See 8 U.S.C.

§ 1252(d)(1); Abdulrahman, 330 F.3d at 594-95. I agree with the majority’s assessment

that Romero failed to specifically raise his statute of limitations argument in his notice of

appeal, and that under our strict interpretation of the requirements of § 1252(d)(1) that

omission precludes our jurisdiction over the issue.

However, administrative exhaustion is a means to a practical end, not a question of

mere technical compliance. See Weinberger v. Salfi, 422 U.S. 749, 765 (1975)

(“Exhaustion is generally required as a matter of preventing premature interference with

agency processes, so that the agency may function efficiently and so that it may have an

opportunity to correct its own errors, to afford the parties and the courts the benefit of its

experience and expertise, and to compile a record which is adequate for judicial

review.”); cf. McRae v. Library of Congress, 843 F.2d 1494, 1496 (D.C. Cir. 1988)

(“[B]y requiring exhaustion before the agency in the first instance, Congress did not

intend to erect a massive procedural roadblock to access to the courts.”). The focus of an

inquiry into administrative exhaustion should be whether the agency had actual notice and
opportunity to address the petitioner’s grievance before resort to the federal courts.

Because the agency clearly had such notice and opportunity here, and conceded as much

at oral argument, I believe that strict enforcement of administrative exhaustion

requirements in this case poorly serves Congress’ intended ends in enacting such

requirements.

As DHS noted to the Court, the IJ considered the application of Bamidele’s statute

of limitations holding to Romero’s case. (A.R. 165-66.) The IJ observed, “I’ve been

forced to form an opinion on recision versus within the, the change in the law and the

Third Circuit case being prior to the change in the law, so I didn’t, I do have an opinion

about that. I think they can . . . . I think they can just go with the removal proceedings.”

(A.R. 165.) Romero’s counsel responded, “I know. . . . But I’ll just put it in there so I

can preserve it and that’s all.” (A.R. 166.) Although this exchange is admittedly oblique,

no party disputes that it was a reference to Bamidele, which applied the five-year statute

of limitations found in § 246(a) to removal proceedings based on erroneous adjustments

of status. 99 F.3d at 563. The IJ’s reference to the “change in law” reflects the 1996

amendment to § 246(a), which DHS believed invalidated Bamidele until our subsequent

decision in Garcia reaffirmed its application. Garcia, 553 F.3d at 728. Thus, although

counsel unnecessarily conceded that Bamidele offered no post-amendment remedy, this

concession was based on an interpretation of uncertain law and reflected a desire to

“preserve” the issue for later review. At the time the notice of appeal was filed, omitting

2
this issue for review, Garcia had not yet been decided and the status of Bamidele in light

of the statutory amendment remained unclear.

Although the amendment of § 246(a), and its uncertain impact on Bamidele, does

not definitively excuse Romero’s failure to raise the statute of limitations defense in his

notice of appeal, I believe it places the onus on the agency, as opposed to the court, to

argue that it was unduly surprised by Romero’s later resurrection of this issue on appeal.

The agency never raised administrative exhaustion in its briefs, and it was this panel that

first broached the topic at oral argument. In fact, DHS conceded that it had considered

and rejected an administrative exhaustion argument because the statute of limitations

issue had been raised with the IJ, citing the portion of the administrative record quoted

above. Where, as here, the purposes of administrative exhaustion have been served, I do

not believe that Congress intended our jurisdiction to turn on mere technicalities. Cf.

Bowden v. United States, 106 F.3d 433, 439 (D.C. Cir. 1997) (“[E]xhaustion requirements

. . . are practical and pragmatic and should not be invoked when they serve no practical

purpose.”) (quotation omitted).

I therefore join the majority in the outcome of this case, but also share in the

reservations expressed by this Court in Lin, where we stated, “[W]hile there is reason to

cast doubt upon the continuing validity of our precedent holding that issue exhaustion is a

jurisdictional rule, short of a review en banc, we must dutifully apply that precedent.”

3
543 F.3d at 120 n.6; see also See Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 107 (2d

Cir. 2007).

4