21-6151-ag Nemis v. Garland

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 25th day of March, two thousand twenty-four.

PRESENT: BARRINGTON D. PARKER, RAYMOND J. LOHIER, JR., MICHAEL H. PARK, Circuit Judges. ------------------------------------------------------------------ SANNY MONTEFAR NEMIS,

Petitioner,

v. No. 21-6151-ag

MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL,

Respondent. ------------------------------------------------------------------ FOR PETITIONER: MATTHEW L. GUADAGNO, Law Office of Matthew L. Guadagno, New York, NY

FOR RESPONDENT: CRAIG A. NEWELL, JR., Senior Litigation Counsel (Brian M. Boynton, Principal Deputy Assistant Attorney General, Lindsay B. Glauner, Senior Litigation Counsel, on the brief), United States Department of Justice, Washington, DC

UPON DUE CONSIDERATION of this petition for review of a Board of

Immigration Appeals (BIA) decision, it is hereby ORDERED, ADJUDGED, AND

DECREED that this petition for review is GRANTED and the matter is

REMANDED for further proceedings.

Petitioner Sanny Nemis seeks review of a final order of removal issued by

the BIA. We assume the parties’ familiarity with the underlying facts and the

record of prior proceedings, to which we refer only as necessary to explain our

decision to grant the petition for review.

Nemis was convicted of conspiracy to commit an offense against the

United States under

by submitting certain immigration

documents in violation of

(a). The BIA affirmed the Immigration

Judge’s findings after determining that Nemis’s crime of conviction qualified as a

2 crime involving moral turpitude (CIMT). Matter of Nemis,

, 259

(BIA 2021). The BIA affirmed the discretionary denial of cancellation of removal

under 8 U.S.C. § 1229b(a) and ordered Nemis’s removal from the United States

under

(a)(2)(A)(i)(I).

at 260–61. Nemis disputes that his

conviction was a CIMT and now petitions for review of the BIA’s removal order.

We review the BIA’s conclusion de novo. See Gill v. INS,

(2d Cir.

2005).

To determine whether a petitioner was convicted of a CIMT, we apply the

categorical approach and look to whether the “criminal category must by

definition, and in all instances, contain each of those elements that constitute a

CIMT.”

If a statute is divisible – that is, if it “sets out one or more elements of

the offense in the alternative and thereby defines multiple crimes” – we apply a

“modified” categorical approach. Giron-Molina v. Garland,

(2d

Cir. 2023) (quotation marks omitted). This approach “permits us to review a

limited class of documents from the record of conviction to determine which of

the alternate offenses was the crime of conviction that serves as the alleged

CIMT.”

(quotation marks omitted). The indictment is one of the

documents we may review.

3 There is no dispute on appeal that § 371 is divisible and that the modified

approach applies to this case. Our review of the record documents underlying

Nemis’s prior conviction reveals that he was convicted of conspiring to violate

§ 1546(a). Section 1546(a), which contains four paragraphs, is itself divisible

because at least two of its paragraphs define distinct offenses. Paragraph three

targets:

Whoever, when applying for an immigrant or nonimmigrant visa, permit, or other document required for entry into the United States, or for admission to the United States personates another, or falsely appears in the name of a deceased individual, or evades or attempts to evade the immigration laws by appearing under an assumed or fictitious name without disclosing his true identity, or sells or otherwise disposes of, or offers to sell or otherwise dispose of, or utters, such visa, permit, or other document, to any person not authorized by law to receive such document[.]

(a). While paragraph four targets:

Whoever knowingly makes under oath, or as permitted under penalty of perjury under section 1746 of title 28, United States Code, knowingly subscribes as true, any false statement with respect to a material fact in any application, affidavit, or other document required by the immigration laws or regulations prescribed thereunder, or knowingly presents any such application, affidavit, or other document which contains any such false statement or which fails to contain any reasonable basis in law or fact[.]

Paragraph three “clearly requires proof of a fact that [paragraph four] does

not, namely false identity, while [paragraph four] requires proof of knowing

4 presentment of a false statement in an immigration document.” United States v.

Khalje,

(2d Cir. 1981).

Nemis was charged with and ultimately convicted of violating only

paragraph four. In charging Nemis under paragraph four, the Government

clearly “select[ed] the relevant element from its list of alternatives” within

§ 1546(a). Descamps v. United States,

(2013).

With this in mind, we focus on whether the BIA applied the correct

framework in considering whether violating paragraph four of § 1546(a), the

relevant crime of conviction in this case, qualifies as a CIMT. Defendants can be

convicted under paragraph four for: (1) knowingly making under oath or

subscribing as true a false statement of material fact in a document required by

immigration laws or related regulations, or (2) knowingly presenting a document

required by immigration laws or related regulations that lacks “any reasonable

basis in law or fact.”

(a). Here, the BIA determined that Nemis’s

“conduct is inherently dishonest and fraudulent” and thus constitutes a CIMT

because he “knowingly prepar[ed] and submit[ted] fraudulent visa applications

. . . so that others would receive nonimmigrant visas for which they were

ineligible.” Matter of Nemis, 28 I. & N. Dec. at 258. This misconstrues the

5 approach to determining whether a crime of conviction is a CIMT. It is not the

specific “factual circumstances surrounding any particular violation” that

determine whether an offense qualifies as a CIMT. Jang v. Garland,

(2d Cir. 2022) (quotation marks omitted). Instead, the BIA should have

considered the “intrinsic nature of the offense,” looking to the minimum conduct

necessary to satisfy the elements of the statute or statutory subdivision of

conviction.

(quotation marks omitted); see Giron-Molina,

.

We do not decide whether a conviction under the fourth paragraph of

(a) is categorically a CIMT. Rather, we grant Nemis’s petition

and remand for the BIA to reconsider his case in view of the proper legal test

delineated above.

We have considered the Government’s remaining arguments and conclude

that they are without merit. For the foregoing reasons, the petition for review is

GRANTED and the matter is REMANDED to the BIA for further proceedings.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

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