Maniar v. Garland

998 F.3d 235

Rajen MANIAR, Petitioner,

v.Merrick GARLAND, U.S. Attorney General, Respondent.

No. 18-60667

United States Court of Appeals, Fifth Circuit.

FILED May 20, 2021

Bradley Bruce Banias, Esq., Trial Attorney, Wasden Banias, L.L.C., Charleston, SC, for Petitioner.

Joseph D. Hardy, Trial Attorney, Anthony Cardozo Payne, Assistant Director, U.S. Department of Justice, Civil Division, Washington, DC, for Respondent.

Before Barksdale, Elrod, and Ho, Circuit Judges.

James C. Ho, Circuit Judge:

The Board of Immigration Appeals (BIA) determined that Rajen Maniar is removable from the United States for having committed an aggravated felony under 8 U.S.C. § 1101(a)(43)(U). That provision defines "aggravated felony" to include, inter alia , any "attempt or conspiracy to commit an offense" enumerated in § 1101(a)(43). Maniar claims that the BIA erred because, he contends, § 1101(a)(43)(U) requires proof of an overt act in furtherance of the conspiracy. But we need not decide that question, because we conclude that Maniar's conviction for conspiracy to commit money laundering plainly constitutes an aggravated felony under § 1101(a)(43)(D). And his remaining contentions are either meritless or unexhausted. Accordingly, the petition for review is denied in part and dismissed in part.

I.

Maniar lawfully entered the United States on an H1B visa. In 2017, he pleaded guilty to three federal offenses—including conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h) —and was ordered to pay over $26 million in restitution. He served just one month of imprisonment as a result of his cooperation with the United States Attorney's office.

The government then initiated removal proceedings against Maniar. The immigration judge (IJ) found Maniar removable under the Immigration and Nationality Act (INA) because he was "convicted of an aggravated felony." 8 U.S.C. § 1227(a)(2)(A)(iii). Specifically, the IJ determined that Maniar had committed an aggravated felony as defined in (1) § 1101(a)(43)(D) (an offense described in 18 U.S.C. §§ 1956 – 57 involving more than $10,000); (2) § 1101(a)(43)(M) (a crime of fraud, deceit, or tax evasion involving more than $10,000); and (3) § 1101(a)(43)(U) (an "attempt or conspiracy to commit an offense described in this paragraph").

In finding Maniar removable under the conspiracy provision, the IJ rejected Maniar's argument that § 1101(a)(43)(U) covers only convictions that required proof of an overt act in furtherance of the conspiracy. Cf. Whitfield v. United States , 543 U.S. 209, 211, 125 S.Ct. 687, 160 L.Ed.2d 611 (2005) (holding that a conviction for conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h) does not require proof of an overt act). In short, the IJ determined that it is irrelevant that Maniar's crime did not require proof of an overt act—it's still an aggravated felony under 8 U.S.C. § 1101(a)(43)(U).

Maniar then attempted to avoid removal by adjusting his immigration status. As part of that process, Maniar sought to obtain a waiver of inadmissibility under 8 U.S.C. § 1182(h). But the IJ determined that Maniar is inadmissible under § 1182(a)(2)(I)(ii) —which covers "a knowing ... conspirator ... with others in an offense ... described in [ 18 U.S.C. § 1956 or § 1957 ]"—and that waivers are not available for aliens who are inadmissible on those grounds.

While his appeal was pending before the BIA, Maniar filed two additional motions. First, he moved to terminate his removal proceedings on the ground that his notice to appear was defective under Pereira v. Sessions , ––– U.S. ––––, 138 S. Ct. 2105, 201 L.Ed.2d 433 (2018). Second, he moved to acquire the transcripts of all the hearings related to his removal proceedings.

The BIA ruled that Maniar's 18 U.S.C. § 1956(h) conviction is an aggravated felony under the conspiracy definition of 8 U.S.C. § 1101(a)(43)(U), agreeing with the IJ that § 1101(a)(43)(U) —like 18 U.S.C. § 1956(h) —does not require proof of an overt act in furtherance of the conspiracy. The BIA also affirmed the IJ's conclusion that Maniar is ineligible for a waiver of inadmissibility, declined to terminate the proceedings under Pereira , and ruled that all of the allegedly non-transcribed hearings had in fact been continued. Maniar petitions this court for review.

II.

A.

"We must begin by determining whether we have jurisdiction to review the BIA's decision." Rodriguez v. Holder , 705 F.3d 207, 210 (5th Cir. 2013) (quoting Nehme v. INS , 252 F.3d 415, 420 (5th Cir. 2001) ). The government claims that we lack jurisdiction to consider Maniar's petition under the "criminal alien review bar" of 8 U.S.C. § 1252(a)(2)(C). That provision generally "limits the scope of [judicial] review [of a final order of removal] where the removal rests upon the fact that the alien has committed certain crimes, including aggravated felonies." Guerrero-Lasprilla v. Barr , ––– U.S. ––––, 140 S. Ct. 1062, 1067, 206 L.Ed.2d 271 (2020).

But another provision of the INA expressly "permits judicial review of ‘constitutional claims or questions of law.’ " Id. at 1071 (quoting 8 U.S.C. § 1252(a)(2)(D) ). See also Nasrallah v. Barr , ––– U.S. ––––, 140 S. Ct. 1683, 1690, 207 L.Ed.2d 111 (2020) (explaining that, in cases "involving noncitizens convicted of [certain] crimes," "a court of appeals may review constitutional or legal challenges to a final order of removal, but ... not ... factual challenges").

We have previously held that "whether a conviction qualifies as an aggravated felony" is a "question[ ] of law." Shroff v. Sessions , 890 F.3d 542, 544 (5th Cir. 2018). And that is precisely the type of question presented here—whether Maniar has committed an aggravated felony under 8 U.S.C. § 1101(a)(43)(U). Accordingly, we have statutory jurisdiction over this claim.

B.

We decline to answer Maniar's legal question, however. For it does not ultimately matter whether Maniar has committed an aggravated felony under 8 U.S.C. § 1101(a)(43)(U). That is because he has clearly committed an aggravated felony under § 1101(a)(43)(D).

Section 1101(a)(43)(D) defines "aggravated felony" to include those offenses that are "described in section 1956 of Title 18 (relating to laundering of monetary instruments) ... if the amount of funds exceeded $10,000." That provision easily applies here. Maniar pleaded guilty to conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h), and the funds involved well exceeded $10,000. A § 1956(h) violation is obviously "an offense described in section 1956 of Title 18." 8 U.S.C. § 1101(a)(43)(D). Accordingly, Maniar is removable because he has committed an "aggravated felony" under the plain language of § 1101(a)(43)(D). See id. § 1227(a)(2)(A)(iii) ("Any alien who is convicted of an aggravated felony at any time after admission is deportable.").

C.

Maniar contends that, because the BIA based its conclusion on § 1101(a)(43)(D) in conjunction with § 1101(a)(43)(U), we would violate the Chenery doctrine if we were to base our decision solely on § 1101(a)(43)(D), as we do today.

It is a "foundational principle of administrative law that a court may uphold agency action only on the grounds that the agency invoked when it took the action." Michigan v. EPA , 576 U.S. 743, 758, 135 S.Ct. 2699, 192 L.Ed.2d 674 (2015) (citing SEC v. Chenery Corp. (Chenery I ), 318 U.S. 80, 87, 63 S.Ct. 454, 87 L.Ed. 626 (1943) ). We have accordingly recognized that "[w]e may usually only affirm the BIA on the basis of its stated rationale." Luna-Garcia v. Barr , 932 F.3d 285, 291 (5th Cir. 2019) (emphasis added). See also Kwon v. INS , 646 F.2d 909, 916 (5th Cir. 1981) (en banc) (citing SEC v. Chenery Corp. (Chenery II ), 332 U.S. 194, 67 S.Ct. 1760, 91 L.Ed. 1995 (1947) ).

But our circuit precedents have made clear that this rule is not absolute, at least in the immigration context. See Luna-Garcia , 932 F.3d at 291. ("[I]n certain circumstances, there may be limited exceptions to this rule."). Indeed, "[e]ven if there is a reversible error in the BIA's analysis, affirmance may be warranted ‘where there is no realistic possibility that[ ] ... the ... BIA would have reached a different conclusion.’ " Id. (quoting Enriquez-Gutierrez v. Holder , 612 F.3d 400, 407 (5th Cir. 2010) ). See also Nguhlefeh Njilefac v. Garland , 992 F.3d 362, 365 (5th Cir. 2021) ("[E]ven if the [BIA] erred at some point in its analysis, we can still uphold its ultimate decision if there is no realistic possibility that [its] conclusion would have been different absent the error.") (quotations omitted). As the Supreme Court has observed, "[t]o remand would be an idle and useless formality. Chenery does not require that we convert judicial review of agency action into a ping-pong game." Morgan Stanley Cap. Grp. v. Pub. Util. Dist. No. 1 of Snohomish Cnty. , 554 U.S. 527, 545, 128 S.Ct. 2733, 171 L.Ed.2d 607 (2008) (quoting NLRB v. Wyman-Gordon Co. , 394 U.S. 759, 766 n.6, 89 S.Ct. 1426, 22 L.Ed.2d 709 (1969) (plurality opinion)).

Maniar committed an aggravated felony under the plain language of § 1101(a)(43)(D). We find "no realistic possibility that the BIA would reach another outcome than to dismiss [Maniar's] appeal." Luna-Garcia , 932 F.3d at 292. "Accordingly, we ... deny [Maniar's] petition for review on th[is] alternative ground[ ]." Id.¹

III.

The remainder of Maniar's claims are either meritless or unexhausted.

First, Maniar disputes the BIA's determination that he is ineligible for an adjustment of status, arguing that he is eligible to receive a waiver of inadmissibility under 8 U.S.C. § 1182(h).

The Attorney General may adjust the status of an alien, but only if the alien is "admissible ... for permanent residence." 8 U.S.C. § 1255(a). And "[a]ny alien ... who ... the Attorney General knows ... has been[ ] a knowing aider, abettor, assister, conspirator, or colluder ... in an offense described in [ 18 U.S.C. § 1956 or § 1957 ] ... is inadmissible." Id. § 1182(a)(2)(I)(ii).

Maniar...