PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________
No. 13-2011
_________
RENE MONTES MAYORGA,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
_________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A073-960-159)
Immigration Judge: Honorable Margaret R. Reichenberg
_______
Argued: April 8, 2014
Before: HARDIMAN, SLOVITER and BARRY Circuit Judges
(Opinion Filed: June 27, 2014)
David R. Fine, Esq.
Tad J. Macfarlan, Esq. (Argued)
K&L Gates
17 North Second Street
18th Floor
Harrisburg, PA 17101
Attorneys for Petitioner 1
Eric H. Holder, Jr., Esq.
Thomas W. Hussey, Esq.
Gary J. Newkirk, Esq.
United States Department of Justice
Office of Immigration Litigation,
Civil Division
P.O. Box 878
Ben Franklin Station
Washington, D.C. 20044
Anthony P. Nicastro, Esq. (Argued)
United States Department of Justice
Office of Immigration Litigation
450 5th Street, N.W.
Washington, D.C. 20001
Attorneys for Respondent
1
The attorneys for petitioner have been acting pursuant to
this court’s order granting petitioner’s motion to proceed in
forma pauperis, and the judges of this court are in debt to
those attorneys. We also thank the K&L Gates law firm for
permitting them to offer their service. Lawyers who act in
that capacity fulfill the highest service that members of the
bar can offer needy parties and the legal profession.
2
_____________
OPINION
_______________
Sloviter, Circuit Judge.
This case gives this court another opportunity to
analyze the meaning of a Crime Involving Moral Turpitude
(“CIMT”), a provision of the Immigration and Nationality
Act (“INA”), INA § 212(a)(2)(A)(i)(I); 8 U.S.C §
1182(a)(2)(A)(i)(I). 2 Before we reach that issue, we must
decide whether the Immigration Judge (“IJ”), as affirmed by
2
The IJ had authority to order Mayorga removed from the
United States following proceedings conducted pursuant to
INA § 240; 8 U.S.C. § 1229a. The BIA had jurisdiction to
hear Mayorga’s appeal pursuant to INA § 103; 8 U.S.C. §
1103, and 8 C.F.R. § 1003.1. We have jurisdiction to review
a final removal order from the BIA pursuant to INA §
242(a)(1); 8 U.S.C. § 1252(a)(1). Because one ground for
Mayorga’s removal is his conviction for a CIMT, our
jurisdiction is limited by the REAL ID Act to “constitutional
claims or questions of law” raised by the appeal. Roye v.
Att’y Gen., 693 F.3d 333, 339 (3d Cir. 2012) (citation
omitted); see INA § 242(a)(2)(D); 8 U.S.C. § 1252(a)(2)(D).
The question of whether Mayorga’s conviction was for a
CIMT is a question of law. We review constitutional and
legal questions de novo, though “subject to the principles of
deference articulated in Chevron v. Natural Resources
Defense Council, 467 U.S. 837, 844 (1984).” Pierre v. Att’y
Gen., 528 F.3d 180, 184 (3d Cir. 2008).
3
the Board of Immigration Appeals (“BIA”), was correct in
finding that Petitioner Rene Montes Mayorga (“Mayorga”)
had violated a statute that categorically involves moral
turpitude by firearms dealing without a license, thereby
rendering him inadmissible for life. 3 Assuming the IJ is
correct in her determination that Mayorga is inadmissible for
life under that statute, we must next consider whether that
determination results in an “adverse consequence” for
Mayorga, even though he is otherwise inadmissible and
removable on the basis of an uncontested ground. Finally, if
we do decide that the IJ erred in finding that Mayorga had
committed a CIMT and agree with the appellant that the
CIMT finding would result in an adverse consequence so that
this case presents an Article III, § 2 case or controversy, we
must determine whether to decide the legal issue ourselves or
to remand this case to the BIA. We turn to consider these
difficult issues.
3
While INA § 212(a)(2)(A)(i)(I) does not explicitly state that
an alien who has been convicted of a crime involving moral
turpitude is barred from admission to the United States “for
life,” such an alien is rendered inadmissible from the time of
the conviction (assuming that narrow exceptions found in
INA § 212(a)(2)(A)(ii), which are not relevant here, do not
apply) unless a purely discretionary waiver is granted.
Despite the lack of explicit language, the consequence of a
conviction for a crime involving moral turpitude is a lifetime
ban on admission to the United States in nearly all cases, and
the decisions so hold. See, e.g., Ali v. Mukasey, 521 F.3d 737,
739 (7th Cir. 2008).
4
I.
Mayorga is a native of El Salvador. He entered the
United States as a teenager in 1988 without inspection and
without being paroled. Though there is some dispute about
the exact events triggering Mayorga’s flight to the United
States, it is clear that a desire to flee the then on-going civil
war in El Salvador was a precipitating cause. Mayorga filed
an application for asylum in 1995, and has had work
authorization since that time. 4 He is married to a U.S. citizen
and has five children under the age of fifteen—three
biological children and two step-children. All of the children
are U.S. citizens.
On June 16, 2010, Mayorga pled guilty in the United
States District Court for the Northern District of California to
engaging in the unlicensed business of firearms dealing, in
violation of 18 U.S.C. §§922(a)(1)(A) and (a)(2). See App. 8.
Mayorga was sentenced to forty-six months in prison for the
offense, eventually serving only seven months of the sentence
in federal prison in California. On February 24, 2012, the day
he was released from prison, the Department of Homeland
Security (“DHS”) served Mayorga with a notice to appear
(“NTA”) before an IJ for removal proceedings under INA §
240. The NTA alleged that Mayorga was inadmissible, and
therefore removable from the United States on two grounds:
first, under INA § 212(a)(6)(A)(i); 8 U.S.C. §1182
(a)(6)(A)(i), as an alien present in the United States without
having been admitted or paroled, and second, for having been
convicted of a CIMT under INA § 212(a)(2)(A)(i)(I).
4
It is not clear from the record below why Mayorga’s original
asylum application never proceeded to a merits hearing.
5
Mayorga’s conviction relating to the unlicensed business of
firearms dealing was the basis for the CIMT charge. DHS
determined that Mayorga should be detained during the
proceedings and he was held in a detention center in Newark,
New Jersey during his removal proceedings. Mayorga
remains detained pending removal in the Etowah County
Detention Center in Gadsen, Alabama, pursuant to INA §
241(a)(2); 8 U.S.C. § 1231(a)(2).
At his removal hearing before the IJ, Mayorga
conceded his removability under INA § 212(a)(6)(A)(i) as an
alien present in the United States without having been
admitted or paroled, but contested his removability for having
been convicted of a CIMT. Mayorga also applied for
cancellation of removal, voluntary departure, asylum,
withholding of removal, and withholding of removal under
the Convention Against Torture (“CAT”). The IJ denied each
of Mayorga’s applications. She noted Mayorga’s conceded
removability under INA § 212(a)(6)(A)(i), and held that
Mayorga had been convicted of a crime which was
categorically a CIMT. The IJ denied Mayorga’s application
for cancellation of removal on the ground that Mayorga had
been convicted of an offense under INA § 212(a)(2) (crimes
involving moral turpitude). INA § 240A(b)(1)(C); 8 U.S.C. §
1229b(b)(1)(C). 5 The IJ held that because Mayorga had been
5
Even if we conclude that Mayorga’s crime was not
categorically a crime involving moral turpitude, he would
likely be ineligible for cancellation of removal under the
“person of good moral character” requirement. See INA §
240A(b)(1)(B); 8 U.S.C. § 1229b(b)(1)(B) and INA §
101(f)(7); 8 U.S.C. § 1101(f)(7) (“For the purposes of this
chapter — No person shall be regarded as, or found to be, a
6
imprisoned for seven months, he could not meet the “person
of good moral character” requirement for voluntary departure.
INA § 240B(b)(1)(B); 8 U.S.C. § 1229c(b)(1)(B). The IJ also
denied Mayorga’s applications for asylum, withholding of
removal, and withholding of removal under the CAT. 6
Mayorga appealed the IJ’s denial of cancellation of
removal on the basis that he had been convicted of a CIMT to
the BIA. The BIA issued a brief opinion which did not
discuss whether Mayorga’s crime was categorically a CIMT,
but which did agree with the IJ that Mayorga’s conviction did
render him ineligible for cancellation of removal. See App.
22-25. Mayorga appealed the BIA’s decision to this court.
II.
The Attorney General argues that because Mayorga is
concededly removable on the uncontested charge as an alien
present in the United States without being admitted or
paroled, we should not reach the question of whether his
conviction is a CIMT. (Appellee’s Br. at 13) Inasmuch as
the question of the justiciability of Mayorga’s claim is a
person of good moral character who, during the period for
which good moral character is required to be established, is,
or was — . . . one who during such period has been confined,
as a result of conviction, to a penal institution for an
aggregate period of one hundred and eighty days or more. .
.”).
6
As Mayorga does not appeal the IJ’s determination on his
applications for asylum, withholding of removal, and
withholding under the CAT in the proceedings before this
court, we need not address those issues.
7
threshold issue, we need to discuss it before turning to the
subsequent questions. At the outset, we recognize that
Mayorga conceded that he was removable as an alien present
in the United States without having been admitted or paroled;
moreover, his term of imprisonment prevents him from
meeting the “good moral character” standards for cancellation
of removal and voluntary departure. Mayorga thus faces
removal and a ten-year bar on returning to the United States
regardless of whether his conviction was for a crime which is
categorically a CIMT. INA § 212(a)(9)(A)(ii)(I), (II); 8
U.S.C. §1182(a)(9)(A)(ii)(I), (II). 7 Therefore, even if we
decide that Mayorga’s conviction was not for a crime which
is categorically a CIMT, our interpretation of a CIMT will not
have an immediate impact on his ability to remain in or return
to the United States. The government, however, contends
that any decision we might issue in this case is a disfavored
advisory opinion. We do not agree.
The Supreme Court has held that “collateral
consequences” can justify a suit when the consequences
would lead to “concrete and continuing injury.” See Spencer
v. Kemna, 523 U.S. 1, 7 (1998). Injuries that are merely
speculative could not justify suit in cases such as this one,
where the most immediate and direct harm that flows from a
CIMT conviction—removal from the United States—would
apply anyway. Although Mayorga would be inadmissible for
a significant period of time on the basis of either ground for
7
This ten-year bar is waiveable on the consent of the
Attorney General, but such waivers are not common, and are
granted only as a matter of discretion. This use of discretion
is not reviewable by a court. INA § 242(a)(2)(B)(i); 8 U.S.C.
§ 1252(a)(2)(B)(i).
8
removal, the additional harm caused by a lifetime ban, as
opposed to a ten-year bar, is certainly “concrete and
continuing,” meeting the standard set out in Spencer.
Furthermore, there is nothing “speculative” about the
difference between a lifetime ban and a ten-year bar.
The significant, concrete, and continuing detriment
that Mayorga faces if we approve the IJ’s determination that
his crime was categorically a CIMT refutes the government’s
contention that any ruling on this matter would be a mere
advisory opinion. As noted, if the crime Mayorga was
convicted of is categorically a CIMT, he faces a potential
lifetime ban on admissibility to the United States. INA §
212(a)(2)(A)(i)(I). 8 In contrast, if Mayorga is “merely”
removable for being present in the United States without
having been admitted or paroled, he would be eligible to seek
admission after ten years. INA § 212(a)(9)(A)(ii). The
difference between these scenarios is not speculative. 9
8
See note 3, supra.
9
The Dissent appears to suggest that we should await the
expiration of the 10-year ban which would follow from
Mayorga’s illegal presence offense before considering the
CIMT issue. This ignores our recent opinion in Cadapan v.
Att’y Gen., No. 13-1944, 2014 WL 1064135 (3d Cir. May 9,
2014). The path proposed by the Dissent would be
incompatible with Cadapan, where the BIA argued, and we
held, that we had reason to address whether an alien,
concededly removable on other grounds, had been convicted
of an aggravated felony because of this determination’s
“impact on his…ability to re-immigrate to the United States
after removal.” Id. at *1 n.1.” Our opinion was
unanimous.
9
Mayorga also easily meets the requirement set out in
Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990),
that “a litigant must . . . be threatened with[] an actual injury
traceable to the defendant and likely to be redressed by a
favorable judicial decision” (citations omitted). Here
Mayorga is threatened with a lifetime ban on reentry to the
United States—surely an “actual injury”—which would be
traceable to the IJ’s decision on the CIMT charge, and would
be redressable by a favorable decision from this court. As the
Supreme Court has elsewhere noted, when “the plaintiff is
himself an object of the action . . . at issue . . . . there is
ordinarily little question that the action . . . has caused him
injury, and that a judgment preventing or requiring the action
will redress it.” Lujan v. Defenders of Wildlife, 504 U.S. 555,
561-62 (1992). 10
The government further contends that any harm to
Mayorga is made “less concrete and more tenuous” by the
fact that he could apply for a waiver of inadmissibility.
10
The Dissent claims that Mayorga fails to meet the causation
requirement set out in Lujan. This is incorrect. If we do not
decide this issue, the IJ’s determination that Mayorga was
convicted of a CIMT will stand, and he will therefore likely
be held inadmissible. See INA § 212(a)(2)(A)(i). We have
heretofore held that res judicata and collateral estoppel apply
to agency decisions. See Duhaney v. Att’y Gen., 621 F.3d
340, 347-48 (3d Cir. 2010). Inadmissibility is distinct from
removability, and absent a decision from this court, would
apply to Mayorga even if he had been granted voluntary
departure, and therefore was not removed at all.
10
While such a waiver is conceivably possible, see INA §
212(h); 8 U.S.C. § 1182(h), it is completely discretionary.
Discretionary decisions by the Attorney General in this area
are not subject to judicial review. INA § 242(a)(2)(B)(i).
The bare possibility of a waiver cannot, therefore, render the
harm to Mayorga “tenuous.” The government also suggests
that any harm Mayorga might face is “remote and tenuous”
because any possible return to the United States by Mayorga
would be conditional on his obtaining a visa. Although it is
true that Mayorga would need to obtain a visa to re-enter the
United States, the fact that he is an immediate relative of a
U.S. citizen (his wife), and the father of U.S. citizen children,
makes the possibility of obtaining a visa after the passing of
the ten-year bar a real possibility, not a mere theoretical one.
The government’s argument here, therefore, fails as well.
This court has not yet had the opportunity to address
the particular sort of justiciability issue raised by Mayorga,
but when we have considered somewhat similar
circumstances, we have consistently taken into account the
collateral consequences of IJ decisions. See, e.g., Steele v.
Blackman, 236 F.3d 130, 134 n.4 (3d. Cir. 2001) (“Erroneous
conviction of an aggravated felony will have several
continuing and serious legal consequences . . . including
serving as a permanent bar preventing his return to the United
States to visit his family.”). In earlier cases such as Steele,
however, the IJ decision that the petitioner sought to have
overturned had not only the collateral consequence of a
lifetime ban on entry to the United States, but also the direct
consequence of ruling on the merits of the petitioner’s
removal. Steele therefore differs from the present case in an
important way, and cannot on its own establish that
Mayorga’s petition is justiciable. However, while we cannot
11
and do not rely merely on Steele here, it does provide further
support for Mayorga’s contention that significant collateral
consequences in an immigration case, such as the lifetime ban
on entry to the United States at issue here, render his petition
justiciable. See also Alwan v. Ashcroft, 388 F.3d 507, 510-
11(5th Cir. 2004); Kamagate v. Ashcroft, 385 F.3d 144, 149-
51 (2d Cir. 2004); Tapia Garcia v. I.N.S., 237 F.3d 1216,
1218 (10th Cir. 2001); Chong v. District Dir., I.N.S., 264 F.3d
378, 383-86 (3d Cir. 2001). For these reasons, we hold that
we may hear Mayorga’s challenge to the merits of the IJ’s
CIMT determination, and will now turn to that issue.
III.
Mayorga pled guilty to violating 18 U.S.C. §
922(a)(1)(A), which criminalizes engaging in the business of
importing, manufacturing, or dealing in firearms without the
appropriate license, (“It shall be unlawful for any person—
(A) except a licensed importer, licensed manufacturer, or
licensed dealer, to engage in the business of importing,
manufacturing, or dealing in firearms, or in the course of such
business to ship, transport, or receive any firearms in
interstate or foreign commerce”) and 18 U.S.C. § 922(a)(2),
which provides that it is unlawful for a licensed importer,
manufacturer, dealer, or collector to ship or transport any
firearm across state lines to a person who does not have the
appropriate license (“(2) for any importer, manufacturer,
dealer, or collector licensed under the provisions of this
chapter to ship or transport in interstate or foreign commerce
any firearm to any person other than a licensed importer,
licensed manufacturer, licensed dealer, or licensed
collector”). No evidence about the underlying facts leading
to Mayorga’s plea agreement with the government was
12
introduced at the removal proceedings, although we note that
the IJ devoted much of her opinion to the underlying facts
Mayorga asserted in support of his various motions and
petitions to avoid removal.
In her opinion issued at the end of removal
proceedings, the IJ declared that Mayorga’s offense was a
“malum in se crime which involves moral turpitude,” and that
it was “not a petty offense because he was sentenced to 46
months in prison,” and that Mayorga was therefore
inadmissible. See App. 9, 10. The IJ further stated that
The respondent’s offense is a malum in se crime
which involves moral turpitude. Certain commercial
trades require a license due to their inherent potential
risk to the public welfare, health, and safety, and the
Court would include unlicensed dealing in firearms in
that category. Just as selling illegal controlled
substances without a license creates a public risk, so
does, by its very nature, illicit dealing in firearms
without a license. The respondent’s decision to
circumvent the government’s need to track the
dealing of weapons is categorically turpitudinous.
See App. 9.
While “moral turpitude” has long been a problematic
notion, both the BIA and this court have held that it is
“conduct that is inherently base, vile, or depraved, contrary to
the accepted rules of morality and the duties owed to other
persons, either individually or to society in general.” Totimeh
v. Att’y Gen., 666 F.3d 109, 114 (3d Cir. 2012) (quoting
Knapik v. Ashcroft, 384 F.3d 84, 89 (3d Cir. 2004)).
Furthermore, “[i]t is the nature of the act itself and not the
13
statutory prohibition of it which renders a crime one of moral
turpitude.” Totimeh, 666 F.3d at 114 (quoting Matter of
Flores, 17 I. & N. Dec. 225, 227 (BIA 1980)).
In deciding whether an alien’s criminal conviction is
for a CIMT, we apply the “categorical” approach. Jean-Louis
v. Att’y Gen., 582 F.3d 462, 465-66 (3d Cir. 2009).
Following this approach, we “look to the elements of the
statutory. . . offense, not to the specific facts, reading the
applicable statute to ascertain the least culpable conduct
necessary to sustain a conviction under the statute.” Id.
(internal quotation and citation omitted). The “possibility of
conviction for non-turpitudinous conduct, however remote, is
sufficient to avoid removal.” Id. at 471. 11
On its face, the crime Mayorga was convicted of is a
regulatory/licensing offense. While the IJ stated that
Mayorga’s crime was malum in se, or inherently wrongful,
such a conclusion is highly dubious, and inconsistent with
precedent. In Matter of Abreu-Semino, 12 I. & N. Dec. 775,
776 (BIA 1968), a long-standing BIA precedential opinion,
the BIA held that “the violation of a regulatory, or licensing,
11
On occasion, we may apply a “modified categorical”
approach, “examining the record of conviction for the narrow
purpose of determining the specific subpart [of a statute
containing disjunctive elements] under which the defendant
was convicted.” Jean-Louis,. 582 F.3d at 466 (citation
omitted). However, the relevant statutes in this case are not
obviously divisible, and no record evidence, such as an
indictment or sentencing memorandum, was introduced by
the government in the proceedings below, further foreclosing
this possibility.
14
or revenue provision of a statute is not a crime involving
moral turpitude” (citation omitted). This is consistent with
our recent decision in Totimeh, where we held that failure to
register under a state predatory offender registration statute is
not categorically a CIMT, even though conduct indirectly
regulated by the registration requirement, sexual violence,
would be a CIMT. Totimeh, 666 F.3d at 116. The conclusion
that Mayorga’s crime of conviction is not categorically a
CIMT is further buttressed by the Seventh Circuit’s decision
in Ali v. Mukasey, 521 F.3d 737 (7th Cir. 2008). There, when
evaluating whether conspiracy to violate 18 U.S.C. §
922(a)(1)(A) constituted a CIMT, the Seventh Circuit held
that “Licensing of dealers . . . of firearms is a recent
development . . . . [t]he choice between licensing (a form of
limited control before the fact) and punishment for misuse of
firearms is not an obvious one.” Id. at 740.
We recognize that the intentional violation of even
regulatory offenses might involve significant moral content, 12
but our application of the categorical approach, forecloses this
line of reasoning in this case. Mayorga’s crime of conviction
is obviously one that could be violated unintentionally and in
a non-turpitudinous manner. For example, a dealer who
inadvertently let his or her license lapse would be in violation
of 18 U.S.C. § 922(a)(1)(A). Given these facts, we cannot
sustain the IJ’s determination that Mayorga’s crime of
conviction was categorically a CIMT.
12
See Stuart P. Green, Why it’s a Crime to Tear the Tag off a
Mattress: Overcriminalization and the Moral Content of
Regulatory Offenses, 46 Emory L.J. 1533 (1997) (explaining
how malum prohibitum offenses may have significant moral
content).
15
IV.
The final question we must face is what disposition is
appropriate. The BIA, in its review of the IJ’s decision,
provided only cursory discussion of the CIMT issue, and the
government contends that we should therefore remand the
issue to the BIA so that it may decide the issue. Remand to
the BIA is, in this instance, unnecessary. The IJ, in her
opinion, explains why she concluded that Mayorga’s crime
was a CIMT. Furthermore, though the BIA’s discussion was
cursory, it did note this part of the IJ’s decision. See App. 23.
In particular, one element of the BIA’s opinion, agreeing with
the IJ that Mayorga was ineligible for cancellation of removal
under INA § 240A(b)(1)(C), specifically required accepting
the IJ’s conclusion that Mayorga was convicted of a CIMT.
See App. 24.
Ideally, the BIA would have provided more analysis,
explaining why it accepted the IJ’s (erroneous) reasoning on
the CIMT issue. However, the record does indicate that the
BIA recognized the issue and therefore had opportunity to
consider it. There is no indication in the BIA’s decision that
it had decided not to consider the issue. Rather, the best
interpretation is that the BIA merely adopted the IJ’s
reasoning, which we have concluded was not persuasive.
When the BIA adopts an IJ’s reasoning without significantly
adding to it, we may review the IJ’s reasoning. See Xie v.
Ashcroft, 359 F.3d 239, 242 (3d Cir. 2004). Moreover, the
issue of the scope of a CIMT is a legal one, and this court is
the forum that must decide legal issues. There is therefore no
reason to remand this case to the BIA.
16
V.
For the reasons stated above, we hold that Mayorga
would suffer a serious adverse consequence if his crime of
conviction were found to categorically be a CIMT, and that
his challenge to the IJ’s CIMT ruling is therefore justiciable.
We further hold that the IJ and the BIA were incorrect in
finding that Mayorga’s crime of conviction was categorically
a CIMT, and that there is no reason to remand the case to the
BIA. We therefore grant the petition for review and reverse
the BIA’s conclusion that Mayorga is removable for having
been convicted of a CIMT.
17
Mayorga v. Attorney General United States, No. 13-2011
HARDIMAN, Circuit Judge.
Petitioner Rene Montes Mayorga seeks review of an
order of the Board of Immigration Appeals (BIA) because he
claims it bans him from forever reentering the United States.
In fact, the order under review has no effect on Mayorga’s
ability to reenter the country after ten years. Because the
order Mayorga appeals from has not caused his stated injury,
Mayorga lacks standing to challenge the agency’s
determination that he committed a crime involving moral
turpitude (CIMT). For that reason, I would dismiss
Mayorga’s petition.
To establish standing Mayorga must show: (1) an
injury in fact, (2) a causal connection between the injury and
the conduct complained of, and (3) a likelihood that the injury
will be redressed by a favorable decision. See Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560–61 (1992). “To
have standing at the appellate stage . . . a litigant must
demonstrate ‘injury caused by the judgment rather than injury
caused by the underlying facts.’” Tachiona v. United States,
386 F.3d 205, 211 (2d Cir. 2004) (quoting 15A Charles Alan
Wright, Arthur R. Miller & Edward H. Cooper, Federal
Practice and Procedure § 3902, at 63 (2d ed. 1992)). Thus,
Mayorga must show that the removal order caused the
lifetime ban of which he complains.
Although the Immigration Judge (IJ) ordered
Mayorga’s removal from the United States, the lifetime ban
was not at issue before the IJ nor the BIA. Although it is true
that an IJ’s holding that an alien committed a CIMT could
result in a lifetime ban, that is only so when collateral
estoppel applies to the holding. Absent the collateral estoppel
effect of a CIMT determination, causation is lacking.
In this case, the IJ’s determination that Mayorga
committed a CIMT has no collateral estoppel effect, as the
Government rightly conceded at oral argument. 1 If, after his
ten-year ban expires, Mayorga wishes to seek reentry into the
United States, the IJ’s CIMT determination would play no
1
See April 8, 2014, oral argument audio recording at
6:54 and 8:20. The doctrine applies only when the legal issue
was “essential to the judgment,” Parklane Hosiery Co. v.
Shore, 439 U.S. 322, 326 n.5 (1979), and the CIMT
determination was not essential to the judgment for either the
IJ or the BIA. The Government asserted two grounds for
Mayorga’s removability: his unlawful presence in the United
States, 8 U.S.C. § 1182(a)(6)(A), and his conviction for a
CIMT, 8 U.S.C. § 1182(a)(2)(A)(i)(I). Mayorga conceded his
removability for unlawful presence, and the IJ held him
removable for both reasons. Mayorga then sought
cancellation of removal, which the IJ denied for two
independent reasons: his lack of good moral character as a
matter of law, which Mayorga conceded, 8 U.S.C.
§ 1229b(b)(1)(B), and his conviction for a CIMT, 8 U.S.C.
§ 1229b(b)(1)(C). When the BIA reviewed Mayorga’s
removal order, it decided both his removability and
ineligibility for cancellation of removal on the same grounds
as the IJ. The BIA did not analyze the CIMT issue, nor was it
necessary to do so to affirm the removal order. The BIA’s
failure to address the CIMT issue is unsurprising in light of
the fact that Mayorga did not contest the point before the
BIA.
2
role in the agency’s analysis. 2 Accordingly, that
determination did not cause his stated injury, a lifetime ban,
so he lacks standing to petition this Court to review it.
The standing requirement is not an idle formality, as
the procedural history of Mayorga’s case demonstrates. By
requiring litigants to demonstrate injury in fact, causation,
and redressability, courts are protected from adjudicating
issues that are not subject to vigorous, adversarial
presentations that inform our judgments. See Baker v. Carr,
369 U.S. 186, 204 (1962). As I shall briefly describe, as it
relates to the CIMT issue, Mayorga’s case was the antithesis
of the vigorous, adversarial presentation we typically see.
The parties gave the CIMT issue short shrift before the
IJ. At one hearing, the Government was wholly unprepared to
litigate the CIMT charge—arguing that the wrong crime was
a CIMT until the IJ cut the lawyer off. At the next hearing,
the Government gave a nine-sentence argument, relying only
on an unnamed, unpublished decision of the BIA.
Unbeknownst to the Government, the Seventh Circuit had
already reversed the BIA in that case. See Ali v. Mukasey, 521
F.3d 737, 739–40 (7th Cir. 2008). Mayorga never countered
the Government’s hollow argument. Even worse, at a prior
hearing, Mayorga actually conceded that he had been
convicted of a CIMT (an admission the IJ declined to accept).
2
Unlike this case, the legal issue appealed in Cadapan
v. Att’y Gen., 749 F.3d 157 (3d Cir. 2014), was essential to
the judgment because the alien’s aggravated felony was the
sole ground upon which the BIA denied Cadapan “relief from
removal.” Because it was essential to the judgment, it had
preclusive effect, i.e., effectively imposing a lifetime ban
from re-entry. Id. at 158 n.1.
3
On this remarkably sparse record, the IJ held that Mayorga’s
firearms crime was a CIMT. Only three paragraphs in the IJ’s
fourteen-page decision discussed the CIMT issue, and its
analysis adopts word-for-word the reasoning of the opinion of
the BIA that was reversed by the Seventh Circuit in Ali.
Following Mayorga’s appeal of the IJ’s removal order,
the BIA said nothing about whether it agreed with the IJ’s
CIMT analysis; it merely noted that determination in passing.
This was no oversight by the BIA, since neither Mayorga’s
brief nor the Government’s brief discussed the CIMT issue. 3
After losing his appeal to the BIA, Mayorga filed a
petition for review with this Court. In motions practice before
us, Mayorga referenced various arguments, but never asked
us to review the CIMT issue. Instead, the motions panel
noticed the IJ’s dubious CIMT reasoning and the Seventh
Circuit’s reversal of the case upon which the IJ had relied. 4 At
3
Mayorga simply did not “appeal[] the IJ’s denial of
cancellation of removal on the basis that he had been
convicted of a CIMT to the BIA.” Op. at 6. Rather, he argued
that “[t]he Immigration Judge as a matter of discretion should
have granted [him] cancellation of removal . . . based on [his]
non serious [sic] criminal history” and the hardship on his
family. App. at 15. Mayorga never challenged the IJ’s CIMT
determination.
4
Specifically, Mayorga filed motions for appointment
of counsel and for a stay. Our decision on motions of this
character turns on whether the movant has some probability
of success on the merits. See Nken v. Holder, 556 U.S. 418,
434 (2009). To answer that question, we reviewed the record
below for potentially meritorious issues.
4
the same time, the motions panel recognized that the CIMT
issue might not be justiciable, so we requested briefing on
both the CIMT issue and its justiciability. Mayorga briefed
both issues, but the Government demurred on the merits of
the CIMT question, instead arguing that Mayorga’s petition
was not justiciable, and if it were, remand to the agency
would be appropriate.
The Government’s demurrer to our order is
unsurprising since it never asked the agency to impose a
lifetime ban upon Mayorga. Rather, it simply sought his
removal from the United States. Once Mayorga conceded his
unlawful presence in the United States and that he had been
incarcerated for more than six months, the Government
achieved its objective and it had no reason to press the CIMT
issue.
For the reasons stated, I respectfully dissent.
5