U.S. THIRD CIRCUIT

Al-Sharif v. U.S. Citizenship and Immigration Services

IMMIGRATION

New Jersey Law Journal

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Al-Sharif v. U.S. Citizenship and Immigration Services, No. 12-2767; Third Circuit; opinion by Hardiman, U.S.C.J.; filed August 19, 2013. Before Judges McKee, Rendell, Ambro, Fuentes, Smith, Fisher, Jordan, Hardiman, Greenaway, Vanaskie, Scirica and Van Antwerpen. On appeal from the District of New Jersey, D.C. No. 10-cv-01435. [Sat below: Judge Cecchi.] DDS No. 51-8-xxxx [13 pp.]

Nizar Al-Sharif is a lawful permanent resident of the United States. In 1993, he pleaded guilty to conspiracy to commit wire fraud with a stipulation that his fraud caused a loss to the victim of between $120,000 and $200,000. He was sentenced to six months' home confinement and five years' probation, and was ordered to pay restitution.

In 2004, he applied for U.S. citizenship, but his application was denied because the U.S. Citizenship and Immigration Services determined that he had been convicted of an aggravated felony under 8 U.S.C. § 1101(a)(43)(M)(i), which precluded him from demonstrating "good moral character," as required for naturalization.

Al-Sharif contested the denial in the district court, which entered summary judgment in favor of USCIS. On appeal, he argues that he is entitled to citizenship because, under Nugent v. Ashcroft, 367 F.3d 162 (3d Cir. 2004), his conviction was not an aggravated felony.

Held: Because the hybrid offense theory adopted in Nugent v. Ashcroft has not generated any serious reliance interests, it has been seriously eroded by subsequent case law, dicta in Kawashima casts substantial doubt on it, and it cannot easily be reconciled with the text of 8 U.S.C. § 1101(a)(43), the Third Circuit overrules the theory. Since Nugent is no longer the law of the circuit, Al-Sharif was properly deemed an aggravated felon and his citizenship application was properly denied.

Section 1101(a)(43) of Title 8 lists several categories of offenses that are considered aggravated felonies for immigration purposes. Section 1101(a)(43)(G) makes any theft offense for which the term of imprisonment is at least one year an aggravated felony. Section 1101(a)(43)(M)(i) makes any offense that involves fraud or deceit in which the loss to the victim exceeds $10,000 an aggravated felony.

In Nugent, an alien had been convicted of theft by deception for passing a bad check worth $4,831, and was sentenced to six to 23 months' imprisonment. Nugent found that the offense was both a "theft offense" under § 1101(a)(43)(G) and an offense involving fraud or deceit under § 1101(a)(43)(M)(i). It held that "to qualify as an aggravated felony under the INA, the offense must meet the requirements of [§] 1101(a)(43)(M)(i), loss to the victim of more than $10,000, in addition to [§] 1101(a)(43)(G), term of imprisonment of at least one year. That an alien convicted of an offense that is both a theft offense and an offense involving fraud or deceit is an aggravated felon only if he satisfies both the loss threshold of § 1101(a)(43)(M)(i) and the imprisonment threshold of § 1101(a)(43)(G) has since been known as the "hybrid offense" theory.

Al-Sharif argues that Nugent dictates that he is not an aggravated felon because his offense was a hybrid theft/fraud offense and he was not sentenced to at least one year in prison.

The Third Circuit observes that in the nine years since it adopted the hybrid offense theory, it has not found another hybrid offense. Rather, Bobb v. Att'y Gen., 458 F.3d 213 (3d Cir. 2006), explicitly limited Nugent to "classificational schemes in which one classification is entirely a subset of another." Thus, while Bobb reaffirmed the basic premise of the theory, it raised a serious question about its scope.

The court says that since Bobb, it has struggled with the theory's applicability to fraud conspiracy cases. Two not precedential opinions found that fraud conspiracies were not hybrid offenses by analyzing the elements of the conspiracies, rather than the substantive fraud offenses. No other court of appeals has adopted the hybrid offense theory. A handful of published opinions from sister circuits have all avoided applying the theory by disposing of the cases on other grounds.

The court says Kawashima v. Holder, 132 S.Ct. 1166, 1173 (2012), cast further doubt on the hybrid offense theory, saying that: "The language of [§ 1101(a)(43)(M)(i)] is clear. Anyone who is convicted of an offense that 'involves fraud or deceit in which the loss to the victim or victims exceeds $10,000' has committed an aggravated felony." Read literally, this statement conflicts with Nugent.

In light of this history, the Third Circuit says it overrules Nugent's hybrid offense theory because it has been rejected by other courts and conflicts with the plain language of the statute.

The court notes that it does not overturn precedents lightly, but that governing decisions that are unworkable may be overturned, particularly if the precedent is recent and has not generated any serious reliance interests or if the precedent has been seriously eroded by recent decisions. The hybrid offense theory has not generated any serious reliance. Its applicability has been greatly limited, and Kawashima has cast substantial doubt on it. Further, the theory cannot easily be reconciled with the text of the statute.

Because Nugent is no longer the law of this circuit, the court holds that Al-Sharif was properly deemed an aggravated felon and the district court properly entered summary judgment in favor of USCIS.

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