Peter Balogun, a Nigerian citizen, challenged the Board of Immigration Appeals (BIA) decision which upheld the immigration judge's (IJ) ruling to deny his relief from removal and a subsequent request to reopen his case. Balogun, who entered the U.S. in 1960 and became a lawful permanent resident, was convicted in 1988 of embezzlement and conspiracy, receiving a fifteen-month prison sentence. Although he was pardoned in 1997, the pardon was not unconditional, as it excluded his right to possess firearms and indicated that he would be treated as a habitual offender for future crimes.
Upon returning to the U.S. in 2002, Balogun was charged with removability due to his prior crimes, which rendered him inadmissible. He conceded to being removable but sought waivers based on the time elapsed since his crime, the potential hardship to his U.S. citizen children, and the pardon he received. The IJ dismissed his arguments, ruling that the waivers were inapplicable because his embezzlement convictions qualified as aggravated felonies, and his pardon did not meet the necessary conditions.
The BIA affirmed the IJ’s findings. Balogun subsequently filed a motion to reopen his case, citing a new unconditional pardon received shortly after the BIA's decision, asserting that this should allow for a waiver of his inadmissibility. The court ultimately denied his petitions for review of both the IJ’s and the BIA’s decisions.
The BIA denied Balogun's motion to reopen his case, determining that his new pardon was not "full and unconditional" as required under 8 U.S.C. § 1227(a)(2)(A)(v). The BIA noted that the pardon did not alleviate all legal consequences from his federal criminal convictions. Balogun appealed this decision, asserting that he did not commit an "aggravated felony" that would prevent him from having his inadmissible status waived. He argued that aggravated felonies only pertain to crimes against individuals or corporate entities, implying that crimes against the United States do not qualify. The court disagreed, emphasizing that crimes of moral turpitude render an alien inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(I), with waivers available under certain conditions. However, if the alien committed an aggravated felony while a lawful permanent resident, waivers are not permitted. The BIA upheld the IJ’s finding that Balogun’s embezzlement convictions constituted aggravated felonies, thus denying any discretion to waive his inadmissible status.
Prior to May 11, 2005, the court's jurisdiction to review such cases was limited under 8 U.S.C. § 1252(a)(2)(c), which prohibits judicial review for aliens removable due to criminal offenses listed in § 1182(a)(2). Given that Balogun met the criteria of being an alien who was removable for a crime of moral turpitude and did not claim any constitutional violations, the court would have had to dismiss his petition for lack of jurisdiction. However, the enactment of the REAL ID Act on May 11, 2005, modified these jurisdictional restraints, allowing the court to review legal questions raised by aliens in removal petitions.
The REAL ID Act clarifies that provisions limiting judicial review do not prevent the review of constitutional claims or legal questions in appeals filed with courts of appeals. Section 106(a)(1)(A)(iii) was added to address issues of fragmented litigation. Prior to the Act, aliens who committed certain crimes were barred from appealing legal questions related to their removal orders, instead relying on federal district courts for habeas corpus petitions to challenge BIA errors. The Supreme Court's decision in INS v. St. Cyr allowed for habeas review, inadvertently providing more judicial avenues for criminal aliens compared to non-criminals. To streamline this process, the REAL ID Act eliminates the dual review system, requiring criminal aliens to seek all legal error reviews directly from courts of appeals, making habeas corpus unnecessary. This restructuring applies retroactively to all pending cases. The courts of appeals now maintain jurisdiction to assess whether a petitioner’s conviction qualifies as an aggravated felony under immigration law. In the case of Balogun, he contends that his embezzlement conviction does not constitute an aggravated felony since he defrauded the government, not an individual, despite acknowledging the fraud exceeded $10,000.
Balogun relies on 8 U.S.C. 1101(a)(43)(M)(ii) to argue that the term "victim" in 8 U.S.C. 1101(a)(43)(M)(i) does not include the United States government, as the former explicitly names the government in the context of tax evasion. He suggests that this distinction implies a limitation on the definition of "victim" in subparagraph (i). However, the analysis indicates that Congress intentionally used the broader term "victim" in subparagraph (i) to encompass individuals, corporate entities, and the government, as tax evasion uniquely victimizes the government. Courts have consistently recognized government agencies as victims in similar contexts, such as under the Victim and Witness Protection Act and the Mandatory Victims’ Restitution Act. The Board of Immigration Appeals (BIA) interprets "victim" in 8 U.S.C. 1101(a)(43)(M)(i) to include the government, a view that merits Chevron deference if reasonable. Given the ambiguity in the term "victim," the BIA's interpretation is deemed reasonable, leading to the conclusion that Balogun's embezzlement conviction qualifies as an aggravated felony under 8 U.S.C. 1101(a)(43)(M)(i). Consequently, he is ineligible for a waiver of inadmissibility under 8 U.S.C. 1182(h), validating the BIA's order of removal and necessitating the denial of his petition for review. Additionally, Balogun argues that the BIA should have reopened his removal proceedings following an unconditional pardon granted by Alabama six days after the removal order; however, this point remains unaddressed in the judgment.
The Board of Immigration Appeals (BIA) can reopen removal proceedings if an alien presents new, material evidence within ninety days of a final removal order that was unavailable at the previous hearing, per 8 C.F.R. 1003.2(c)(1). Balogun timely filed a motion to reopen and submitted new evidence. He claims eligibility for a waiver of his inadmissible status under 8 U.S.C. 1227(a)(2)(A)(v) based on a purported "full and unconditional pardon" from a state governor. The government counters that the pardon is not truly "full and unconditional" as it does not eliminate federal consequences of his embezzlement convictions.
Despite agreeing with the BIA's interpretation of "full and unconditional pardon," the issue of Balogun's eligibility for the waiver under section 1227(a)(2)(A)(v) is moot since he is classified as an inadmissible alien under 8 U.S.C. 1182(a)(2)(A)(i)(I), not a deportable alien. Section 1227 applies only to deportable aliens, while section 1182 governs those who are ineligible to enter the U.S. due to certain reasons. The absence of a pardon provision in section 1182 implies that Congress did not intend to extend such waivers to inadmissible aliens. Thus, even if Balogun's pardon satisfied section 1227's criteria, he would still be removable. Consequently, Balogun's petitions for review of the BIA's final order of removal and his motion to reopen are denied.
