Awuku-Asare v. Garland, 19-9516

991 F.3d 1123

Daniel Kofi AWUKU-ASARE, a/k/a Daniel Kofi Awuku Asare, a\k\a Asare, Petitioner,

v.Merrick B. GARLAND, United States Attorney General,^* Respondent.

No. 19-9516

United States Court of Appeals, Tenth Circuit.

FILED March 16, 2021

Edgar Chavarria, student attorney (Christopher N. Lasch and Tania N. Valdez on the briefs), Immigration Law & Policy Clinic at the University of Denver Sturm College of Law, Denver, Colorado, for Petitioner.

Christopher A. Bates, Senior Counsel to the Assistant Attorney General (Erik R. Quick, Trial Attorney, Joseph H. Hunt, Assistant Attorney General, Derek C. Julius, Assistant Director, on the brief), United States Department of Justice, Civil Division, Washington, D.C., for Respondent.

Before HOLMES, BACHARACH, and MORITZ, Circuit Judges.

MORITZ, Circuit Judge.

Daniel Awuku-Asare appeals the decision of the Board of Immigration Appeals (BIA) affirming his removal order. Awuku-Asare entered the country on a nonimmigrant F-1 visa and could lawfully remain in the United States so long as he complied with the conditions of his visa. Relevant here, maintaining an F-1 visa status requires maintaining a full course of study at an approved educational institution. But Awuku-Asare did not comply with this full-course-of-study requirement because he was incarcerated for approximately 13 months for a crime of which he was ultimately acquitted.

Raising an issue of first impression, Awuku-Asare argues that even though he did not comply with the conditions of his visa, he did not fail to maintain his status. Specifically, he argues that "the failure to maintain status must be attributable to the nonimmigrant to render him [removable]." Aplt. Supp. Br. 8. He further contends that because circumstances beyond his control—his incarceration—caused the lapse in his status, he is not removable.

Because we determine that the plain meaning of the relevant statute does not support this interpretation, we reject Awuku-Asare's arguments and affirm the BIA's decision.

Background

Awuku-Asare, a native and citizen of Ghana, first entered the United States in 2012 on an F-1 student visa. He attended Saint Leo University in St. Leo, Florida.

Later, Awuku-Asare sought out another educational opportunity at Rhema Bible Training College, which accepted him as a transfer student in August 2017. But two weeks after his acceptance, Awuku-Asare was arrested and charged with first-degree rape. Although a jury later acquitted Awuku-Asare, he was incarcerated for about 13 months, from August 2017 to September 2018. As a result of his incarceration, Awuku-Asare was not enrolled in a full course of study.

Soon after his acquittal, Awuku-Asare received a Notice to Appear charging him as removable under 8 U.S.C. § 1227(a)(1)(C)(i) for failing to maintain his F-1 status. In a hearing before the immigration judge (IJ), Awuku-Asare acknowledged that he could not maintain his F-1 status while incarcerated because he was not engaged in a full course of study. Because Awuku-Asare did not maintain a full course of study, the IJ found Awuku-Asare ineligible for any form of relief and ordered him removed. The BIA sustained the removability charge for the same reason, determining that "[a]s a result of his arrest and detention," Awuku-Asare could not "pursue the requisite ‘full course of study.’ " App. 2 (quoting 8 C.F.R. § 214.2(f)(5)(i) ). Awuku-Asare appeals.

Analysis

Awuku-Asare challenges his removal order on two fronts. He argues that the BIA improperly interpreted § 1227(a)(1)(C)(i), which makes noncitizens removable for "fail[ing] to maintain [their] nonimmigrant status." He also argues that if we agree with his interpretation of § 1227(a)(1)(C)(i), then we must further find that his removal order is not supported by substantial evidence.¹

When analyzing Awuku-Asare's arguments, we review "the BIA's legal determinations de novo[ ] and its findings of fact under a substantial-evidence standard." Xue v. Lynch , 846 F.3d 1099, 1104 (10th Cir. 2017) (quoting Niang v. Gonzales , 422 F.3d 1187, 1196 (10th Cir. 2005) ).

I. Statutory Interpretation

Under the Immigration and Nationality Act of 1952, 8 U.S.C. §§ 1101 – 1537, the Department of Homeland Security can allow certain classes of nonimmigrant "foreign nationals [to] enter the country for fixed, temporary periods of time pursuant to a visa." Wash. All. of Tech. Workers v. U.S. Dep't of Homeland Sec. , 892 F.3d 332, 336 (D.C. Cir. 2018). For instance, and as relevant here, the F-1 student visa—so named for the statutory subsection that authorizes such a visa—enables "bona fide student[s] ... to enter the United States temporarily and solely for the purpose of pursuing ... a [full] course of study" at an approved educational institution. 8 U.S.C. § 1101(a)(15)(F)(i) ; see also Lee v. Mukasey , 527 F.3d 1103, 1108 (10th Cir. 2008) (Hartz, J., dissenting).

F-1 students are "admitted for duration of status," meaning that they are admitted for "the time during which [they are] pursuing a full course of study at an [approved] educational institution." 8 C.F.R. § 214.2(f)(5)(i). A "[f]ull course of study" must be directed toward "the attainment of a specific educational or professional objective," and it generally requires a certain number of credit hours or attendance hours.² § 214.2(f)(6).

If an F-1 student fails to maintain his or her status, he or she generally becomes removable.³ See § 1227(a)(1)(C)(i). And that is what occurred here, according to the BIA: Awuku-Asare failed to maintain his F-1 student status because he was not pursuing a full course of study while incarcerated.

On appeal, Awuku-Asare does not dispute that he was not pursuing a full course of study while incarcerated; instead, he argues that the BIA erred in interpreting § 1227(a)(1)(C)(i) to apply in these circumstances. Section 1227(a)(1)(C)(i) states that "[a]ny [noncitizen] who was admitted as a nonimmigrant and who has failed to maintain the nonimmigrant status in which the [noncitizen] was admitted ... or to comply with the conditions of any such status, is [removable]." (Emphasis added.) Focusing on the emphasized language, Awuku-Asare asserts that under this statute, a nonimmigrant is only removable if "the failure to maintain status [is] attributable to the nonimmigrant." Aplt. Supp. Br. 8. Therefore, he reasons, he is not removable because the failure to maintain his F-1 status is attributable to his incarceration for a crime of which he was ultimately acquitted rather than to him.

In support of this argument, Awuku-Asare appropriately begins with the plain language of the statute. See Hasan v. Chase Bank USA, N.A ., 880 F.3d 1217, 1218–19 (10th Cir. 2018) ("Statutory interpretation begins with the words in the statute."). In particular, he argues that because the statute uses the active voice in requiring that the nonimmigrant must have "failed" to maintain the conditions of his status, the "plain language of the statute provides that the [noncitizen] ... must be the one who fails." Aplt. Supp. Br. 15. Awuku-Asare then concludes that because the statute uses the active voice, it requires the " ‘failure’ that results in termination of status [to] be attributable to and performed by the noncitizen in order to trigger deportation." Aplt. Supp. Br. 16 (emphasis added). In other words, he contends that the failure must be the nonimmigrant's fault or that the nonimmigrant must at least perform some affirmative act to cause such failure.

Awuku-Asare's first point is not disputed. The statute utilizes the active voice: the subject of the sentence is the noncitizen, and it is the noncitizen who must have failed to maintain his or her status. But Awuku-Asare extends this analysis too far when he suggests the use of the active voice necessarily means that the nonimmigrant's failure to maintain status must have been caused by some affirmative act performed by the nonimmigrant or that the failure to maintain status was otherwise the nonimmigrant's fault. Neither the statute nor the use of the active voice mandates this latter conclusion.

Awuku-Asare's focus on the active voice overlooks the ordinary meaning of the word "fail." See Lee , 527 F.3d at 1106 ("[W]e ‘must give words their ordinary or natural meaning.’ " (quoting Leocal v. Ashcroft , 543 U.S. 1, 8–9, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004) )). Merriam-Webster defines "fail" as "to fall short," "to be unsuccessful," or "to leave undone." Fail , Merriam-Webster.com, https://www.merriam-webster.com/dictionary/failed (last visited Feb. 22, 2021). A learners’ dictionary also published by Merriam-Webster further explains that "fail," when "followed by to + verb ," means "to not succeed," "to end without success," "to not do (something that you should do or are expected to do)," or simply "to not do something." Fail , LearnersDictionary.com, https://learnersdictionary.com/definition/fail (last visited Feb. 22, 2021). Thus, § 1227(a)(1)(C)(i) unambiguously provides that a noncitizen "who has failed to maintain" nonimmigrant status has simply been unsuccessful at, or has not completed, the anticipated action: maintaining nonimmigrant status. Accordingly, Awuku-Asare's proposed interpretation—that the noncitizen's failure must be attributable to or be the fault of the noncitizen—necessarily adds text to an unambiguous statute. And that is something we cannot do. See Exby-Stolley v. Bd. of Cty. Comm'rs , 979 F.3d 784, 810 (10th Cir. 2020) (en banc) (noting that when interpreting a statute, it "is generally impermissible" to "effectively add[ ] words to the statute").

Nevertheless, Awuku-Asare argues that his reading of the statute is consistent with this court's interpretation of a similar statute in Lee , 527 F.3d 1103. There, we interpreted 8 U.S.C. § 1184(m)(2), which concerns visas for study at private secondary schools and provides in relevant part that students who "terminate[ ] or abandon[ ] such course of study at such a school" and enroll in a public school...