                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-8-2004

Togbah v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1753




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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                    No. 03-1753


                         TARRION MORCOLOR TOGBAH

                                          v.

             John Ashcroft, UNITED STATES ATTORNEY GENERAL;
                IMMIGRATION & NATURALIZATION SERVICE;
                    JAMES W. ZIGLAR, I.N.S. Commissioner;
             ANDREA QUARANTILLO, District Director I.N.S. Newark;
               LORI VALVERDE, Assistant I.N.S. District Director for
                             Detention and Deportation;
            RALPH GREEN, Warden, Hudson County Correctional Center,
                                                            Appellants


                      Appeal from the United States District Court
                             for the District of New Jersey
                             (D.C. Civil No. 02-cv-05565)
                District Judge: Honorable John W. Bissell, Chief Judge


                              Argued February 23, 2004

             Before: RENDELL, BARRY and ROSENN, Circuit Judges.

                                (Filed: July 8, 2004)




Colette R. Buchanan
Office of the U.S. Attorney
970 Broad Street, Room 700
Newark, NJ 07102
Donald E. Keener
Alison R. Drucker [ARGUED]
U.S. Department of Justice
Office of Immigration Litigation
Ben Franklin Station
P.O. Box 878
Washington, DC 20044
  Counsel for Appellants

E. James Mullaly, III [ARGUED]
Mullaly & Diefenbach
2109 Pennington Road
Ewing, NJ 08638
   Counsel for Appellee




                               OPINION OF THE COURT


RENDELL, Circuit Judge.

       Like a pendulum, Tarrion Togbah’s fate has swung back and forth as his request

for a waiver of inadmissibility has made its way through the necessary administrative and

judicial channels. While his application for adjustment of status was pending, Togbah

became ineligible for the adjustment by virtue of a robbery conviction that rendered him

inadmissible. At issue is Togbah’s qualification for a waiver of inadmissibility under 8

U.S.C. § 1159(c), which allows the Attorney General to waive many of the grounds for

inadmissibility enumerated in 8 U.S.C. § 1182(a). 1


  1
   The Government contends that the District Court lacked jurisdiction to review the
claims asserted by Togbah in this case on a habeas petition because Togbah’s challenges
are directed at acts committed to the discretion of the IJ, acting as a designee of the

                                             2
       The Immigration Judge (“IJ”) granted Togbah’s request for waiver on the basis of

assuring family unity, one of the considerations listed in § 1159(c). The Board of

Immigration Appeals (“BIA”) reversed the IJ’s grant of waiver, largely based upon the

opinion of the Attorney General in In re Jean, 23 I. & N. Dec. 373 (A.G. 2002), which

highlighted the importance of the seriousness of the alien’s offense in the agency’s

consideration of such waiver requests. The District Court vacated the BIA’s order based

on its view that the Attorney General had overstepped his bounds by emasculating the

statutory considerations and adding offenses to the list of convictions that will render an

alien ineligible for waiver. Accordingly, the District Court granted Togbah’s habeas

petition and remanded to the BIA for consideration of the waiver issue under the standard

that existed prior to the Attorney General’s decision.

       On appeal, we fear that the pendulum must swing back once again, as we disagree

with the District Court and conclude that the BIA did not err in its decision to consider

Togbah’s waiver in light of the policy regarding waiver in cases of violent crimes,




Attorney General. We conclude that the District Court did have jurisdiction because
where, as here, statutory limits are placed upon an IJ’s discretionary power – specifically,
an IJ can only grant waiver for the reasons set forth in § 1159(c) – the legal aspects of that
determination are properly explored in habeas proceedings. Bakhtriger v. Elwood, 360
F.3d 414, 424 (3d Cir. 2004); cf. Spencer Enters., Inc. v. United States, 345 F.3d 683, 690
(9th Cir. 2003) (discussing federal jurisdiction to review acts of discretion guided by
statutory standards in the context of appeals under 8 U.S.C. § 1252(a)(2)(B)(ii)). Thus,
the District Court properly found that it had jurisdiction over Togbah’s petition under 28
U.S.C. § 2241, and we have jurisdiction to review the District Court’s final order
pursuant to 28 U.S.C. § 1291.

                                              3
articulated by the Attorney General in Jean. However, we believe that further

proceedings are necessary before the agency because Togbah did not have the opportunity

at his initial hearing to address the Attorney General’s opinion in Jean or to attempt to

meet the heightened evidentiary standard it created. Therefore, while we disagree with

the District Court’s rationale, we find that the grant of the writ of habeas corpus is

necessary to remedy the deficiencies, from a due process standpoint, caused by the BIA’s

application of Jean without giving Togbah an opportunity to meet its heightened

evidentiary standard. Accordingly, we will instruct the District Court to remand the

matter to the BIA in order to give Togbah a chance to meet the Jean standard.




                                              I.

       Togbah is a 25-year-old native of Liberia. His father, after serving as a

government official in Liberia for several years, entered the United States in April of

1995. After being granted asylum the following October, his father petitioned to have the

rest of his family join him in the United States. That petition was granted in December of

1995, and Togbah arrived in the United States with his mother and his four siblings in

August of 1996. Upon his arrival, he was granted temporary derivative asylum status

under 8 U.S.C. § 1158(b)(3), and that status was to be valid until August 22, 1997.

       When his asylum status was about to expire, Togbah filed an application seeking

to adjust his immigration status to that of an alien lawfully admitted for permanent



                                              4
residence. See 8 U.S.C. § 1159; 8 C.F.R. § 1209.2. Togbah then waited to be contacted

for examination by the Immigration and Naturalization Service (“INS”),2 in order for the

INS to determine whether he was admissible and thereby eligible for a change to lawful

permanent resident status. In August of 1998, when Togbah was 20 years old, he was

arrested in New Jersey. He pled guilty to conspiracy to commit armed robbery and was

sentenced to five years in prison.

       The incident leading to his arrest and conviction involved an armed robbery and is

described at various places in the record. Togbah was in a car with three of his friends

when they decided to commit a robbery to obtain money for gas. They followed a woman

in her car, and, when she parked in her driveway, two of Togbah’s friends got out of the

car to rob her. One carried a BB gun, and the other had a baseball bat. They took money

from her and assaulted her, hitting her with the bat and the gun. Then the two young men

returned to the car, leaving the woman on the ground, and they drove away. Togbah did

not physically participate in the robbery or the assault, nor did he attempt to prevent it; he

simply stayed in the car with the fourth young man. When his friends drove away,

Togbah did not know the extent of the victim’s injuries, but he did not call for help. The

arrest that followed was Togbah’s first.


  2
   Pursuant to the Homeland Security Act of 2002, Pub. L. No. 107-296 § 451, 116 Stat.
2135, 2195 (2002) (codified at 6 U.S.C. § 271 (2003)), the functions of the INS were
transferred to various bureaus within the Department of Homeland Security. Because of
the status of the agency at the time the proceedings in this case began, and for ease of
reference, we will continue to refer to the agency as the INS.

                                              5
       Togbah was incarcerated at a youthful offender facility in New Jersey, and was

released on probation after serving two and a half years of his sentence. While

incarcerated, Togbah had no disciplinary infractions. Despite the fact that his conviction

rendered him inadmissible and ineligible for adjustment of status, Togbah renewed his

request for admission as a lawful permanent resident before an IJ. Togbah sought a

discretionary waiver of his inadmissibility under 8 U.S.C. § 1159(c), urging that he

should be permitted to remain in the United States based on unusual hardship arising out

of his family circumstances. Around the same time, the INS filed a Notice to Appear and

initiated removal proceedings.

       In late March of 2001, Togbah appeared before an IJ, conceded that his conviction

rendered him inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i), and sought discretionary

waiver of inadmissibility. The IJ agreed to entertain the waiver request and scheduled

hearings on the matter. Togbah was taken into custody for the duration of his

proceedings. While these proceedings were pending, the INS unsuccessfully attempted to

terminate them based on procedural concerns related to the fact that Togbah’s asylum

status had not been finally terminated prior to the filing of the Notice to Appear.

       The IJ held extensive hearings on the merits of the waiver issue. Togbah and his

parents testified; the INS called no witnesses. Togbah described the facts surrounding his

arrest in a manner consistent with the police reports and his Presentence Report. His

parents testified that Togbah has no family remaining in Liberia, and that he does not



                                              6
speak any of the languages that are spoken there. His father is a permanent U.S. resident

and has been married to Togbah’s mother for over twenty-seven years. Two of Togbah’s

four siblings attended the hearing. None of his siblings have ever been arrested. His

parents testified that they regret what happened, and that they would provide a loving and

supportive environment for Togbah in their Philadelphia home if he were released and

allowed to stay in the United States.

       Togbah also offered documentary evidence, including letters from family, friends,

and the Director of Social Services at the youthful offender facility where he served his

sentence, as well as certificates of completion from behavior modification programs that

he completed while at the facility. The INS offered the Presentence Report that had been

prepared when Togbah pled guilty and was sentenced in 1998.

       Based on all of the evidence presented to him, the IJ granted Togbah’s request for

waiver of inadmissibility in a written opinion filed in January of 2002. The IJ explicitly

recognized the extraordinary nature of waiver, but found that it was appropriate for

Togbah in order to serve a purpose listed by Congress in the relevant statute, namely, “to

assure family unity.” 8 U.S.C. § 1159(c). According to the IJ, family unity was

particularly compelling in Togbah’s case due to his “strong family unit,” the sincerity of

his parents, and his lack of any connections in Liberia. In the IJ’s view, these factors

outweighed the seriousness of Togbah’s criminal conduct and rendered his case

sufficiently extraordinary to warrant granting waiver. The IJ entered an order granting



                                              7
waiver, adjusting Togbah’s status to lawful permanent resident, and ordering his

immediate release from custody. 3

       The INS appealed the IJ’s order to the BIA, and Togbah remained in custody while

the appeal was pending. Togbah sought a bond hearing, but the IJ denied the request,

finding that Togbah was considered to be an “arriving alien” under 8 C.F.R. § 1001.1(q)

once his asylum status ended. This subjected him to mandatory detention under 8 U.S.C.

§ 1225(b)(1)(B)(iii)(IV), and the IJ believed he could not re-examine the INS’s decision

to hold Togbah in custody. See 8 C.F.R. § 1003.19(h)(2)(i)(B). Pursuant to 8 C.F.R. §

1003.1(a)(7), the BIA affirmed the IJ’s custody determination without issuing an opinion.

       In July of 2002, the BIA issued an opinion reversing the IJ’s grant of waiver, citing

an intervening decision of the Attorney General as the basis for its reversal. See In re

Jean, 23 I. & N. Dec. 373 (A.G. 2002). The BIA viewed Jean as requiring it to balance

the evidence offered by Togbah in support of the statutory considerations and those

factors listed in Jean against the nature of his offense, essentially resulting in the

application of a heightened burden of proof in the case of an alien seeking waiver after

being convicted of a serious crime. Focusing on the violent nature of Togbah’s offense,

the BIA determined that none of the mitigating considerations served to overcome the




  3
  Because he adjusted Togbah’s status, it was unnecessary for the IJ to consider
Togbah’s claim that he would be eligible for relief from removal under the Convention
Against Torture (“CAT”).

                                               8
seriousness of his crime. Thus, the BIA ordered Togbah removed to Liberia.4 In

November of 2002, just prior to his scheduled removal, Togbah filed a petition seeking

habeas corpus relief in the United States District Court for the District of New Jersey, and

his removal was stayed pending the resolution of the habeas proceedings.

       In an opinion dated December 20, 2002, the District Court vacated the BIA’s

removal order. The Court made three determinations, two of which are challenged on this

appeal by the INS. First, the Court concluded that Togbah should have been afforded an

individualized bond hearing because, based on an explicit provision of 8 C.F.R. §

1001.1(q), Togbah’s arrival date excludes him from the subsequently-enacted mandatory

detention provision for arriving aliens. Thus, the Court applied our decision in Patel v.

Zemski, 275 F.3d 299 (3d Cir. 2001), and held that Togbah was entitled to the type of

individualized bond hearing that would be accorded to any other admitted, removable

alien who was pursuing his administrative remedies.

       Second, the Court decided that the Attorney General, in his Jean opinion,5 had

“overstated his discretionary role and encroached upon powers granted only to Congress.”



  4
    Togbah also asserted his claim for CAT relief before the BIA, but the BIA deemed the
claim waived. The District Court subsequently determined that the claim was not actually
waived, and the INS conceded that the BIA erred in that respect. This issue is not before
us now, so in addition to the issues we explore in this opinion, Togbah will also be
permitted to pursue his CAT claim following our remand.
  5
   The Attorney General, using the power granted to him in 8 C.F.R. § 1003.1(h)(1)(i),
directed the BIA to refer Jean to him for review after the BIA considered the case and
rendered a decision. See Jean, 23 I. & N. Dec. at 373-74.

                                             9
This conclusion flowed from the District Court’s reading of Jean as essentially legislating

by adding to § 1159(c) a new type of conviction that renders an alien ineligible for

waiver, despite what the Court viewed as a clear statement by Congress that waiver

should only be categorically denied in cases involving the four types of crimes

specifically enumerated in the statute. The Court vacated Togbah’s removal order and

remanded the matter to the BIA for reconsideration of the waiver issue.

       Lastly, the Court determined that Togbah should be permitted to pursue a claim for

relief from removal under the CAT, if such a claim became necessary. Thus, the District

Court granted a writ of habeas corpus and remanded on all three issues. The Government

appeals the first two determinations of the District Court, both of which we will explore

fully below.6




                                            II.

       We begin with the language of the waiver statute. 8 U.S.C. § 1159(c) states that

“the Attorney General may waive any other provision of [the section of the INA




  6
    We review de novo a district court’s decision to grant a habeas corpus petition.
Duvall v. Elwood, 336 F.3d 228, 229 (3d Cir. 2003). The issues presented by Togbah’s
petition are purely legal in nature, and they require us to examine the application of
statutory provisions contained in the Immigration and Nationality Act (“INA”). Because
the INS is charged with administering those statutes, we will defer to the agency’s
reasonable interpretation of them in the event that the statutes are silent or ambiguous
with respect to the issues before us. INS v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999);
Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842 (1984).

                                            10
delineating categories of inadmissible aliens] . . . with respect to such an alien [seeking

adjustment of status] for humanitarian purposes, to assure family unity, or when it is

otherwise in the public interest.” The statute explicitly removes from eligibility those

aliens convicted of certain offenses, including trafficking in controlled substances,

espionage, and terrorist activities. 8 U.S.C. § 1159(c). Thus, Togbah was eligible to

request waiver, as his crime is not specifically excluded by the statutory language.

       The language of the statute plainly indicates that if a waiver is granted, it must be

based on those aspects listed in the statute, namely, family unity, humanitarian concerns,

and the public interest. Id. In other words, although Congress has placed the decision of

whether to grant waiver within the discretion of the Attorney General and his designees

(including IJs), the grant of discretionary power is not absolute. An IJ would surely run

afoul of the congressional directive if he granted a waiver for reasons other than those set

forth in the statute, or in a case lacking any facts bearing on the enumerated

considerations.

       On the other hand, where an IJ finds compelling facts related to one of the

statutory considerations, the statute’s language regarding the grant of waiver does not

compel a certain result. Section 1159(c) states that waiver “may” be granted, rather than

that it “shall” be granted, in appropriate cases. So once a case is deemed appropriate –

based on humanitarian concerns, for example – the statute grants the Attorney General (or

the IJ, acting as his designee) the discretion to decide whether or not to waive in that case.



                                             11
Thus, it appears to be within the discretion of the IJ to first assess how compelling the

facts of a given case are with respect to the statutory considerations, and to then consider

any relevant countervailing factors in order to reach a determination regarding waiver.

       In Jean, the Attorney General added the violence or dangerousness of the offense

as a factor to be considered in the weighing process under § 1159(c), directing the agency

to balance the “claims of hardship to the respondent’s family against the gravity of her

criminal offense.” Jean, 23 I. & N. Dec. at 383. In doing so, he created a heightened

standard for cases of aliens who are inadmissible due to their convictions for crimes of

violence. Id. He articulated the test as follows:

       It would not be a prudent exercise of the discretion afforded to me by this
       provision [§ 1159(c)] to grant favorable adjustments of status to violent or
       dangerous individuals except in extraordinary circumstances, such as those
       involving national security or foreign policy considerations, or cases in
       which an alien clearly demonstrates that the denial of status adjustment
       would result in exceptional and extremely unusual hardship. Moreover,
       depending on the gravity of the alien’s underlying criminal offense, such a
       showing might still be insufficient. . . . For those aliens . . . who engage in
       violent criminal acts during their stay here, this country will not offer its
       embrace.

Id. at 383-84.

       The District Court held that, in Jean, the Attorney General had exceeded his

power. First, the Court found that by focusing on serious crimes as generally rendering

the petitioner ineligible, Jean added a category of crimes to those enumerated in the

statute as convictions that will render an alien ineligible for waiver. Second, the Court

viewed Jean as essentially changing the considerations upon which the agency could rely

                                             12
in granting a request for waiver from those listed in the statute to those listed by the

Attorney General.

       We disagree. By articulating additional factors aimed at implementing agency

policy, the Attorney General has neither added a class of aliens to those who are

statutorily ineligible for waiver, nor has he instructed the BIA to ignore the statutory

considerations of family unity, humanitarian concerns, and public interest. Thus, we

conclude that as long as the Attorney General’s decision in Jean was not arbitrary or

capricious, it is a permissible exercise of his statutory discretion in enhancing the waiver

standards for a class of applicants, namely, those convicted of “dangerous and violent”

crimes. See INS v. Yang, 519 U.S. 26, 31 (1996). Thus, the BIA could have been – and,

indeed, should have been – guided by the Attorney General’s decision in Jean as it

considered Togbah’s request for waiver.

       We conclude that the BIA properly employed the policy articulated in Jean, while

also applying the considerations that are relevant according to the statute. The BIA

recognized the seriousness of Togbah’s conviction, stating that “although the respondent

did not actually beat the victim or carry the gun, he assisted in the commission of a

violent act by his knowledge and his silence.” Thus, the BIA stated its view that “the

adverse factors in [Togbah’s] case [were] considerable.” However, the opinion makes it

clear that the BIA looked past the criminal conduct and considered facts relevant to the

statutory considerations as well. Specifically, the BIA recognized that there were facts



                                              13
indicating that “family unity” was a particular concern in Togbah’s case, noting that his

removal would “impose a strain on his family” and cause him hardship upon his return to

Liberia. The BIA, relying on the administrative record made before Jean was published,

declined to grant the waiver.

       Nonetheless, it would be unfair to Togbah if we were to permit the Attorney

General to announce a new policy and change the evidentiary burden in cases like his

midstream, without providing him with an opportunity to meet the heightened burden. As

we have indicated, Togbah asserted an argument with respect to family unity throughout

the administrative process, and the Immigration Judge was persuaded by his evidence

related to that factor. However, it is not clear whether Togbah advanced other arguments,

which may now be necessary in order to overcome the purported violent nature of his

crime. For example, he may wish to offer further evidence regarding his level of

participation in the robbery, evidence related to humanitarian concerns and the public

interest, or further facts that would show that his hardship, if deported, is extremely

unusual, in order to meet the new policy announced in Jean. Since the balance has

changed as a result of Jean, we think it only fair that Togbah have the opportunity to

adduce additional evidence or argument, should he wish to do so, in support of his request

for waiver. See Singh v. INS, 213 F.3d 1050 (9th Cir. 2000) (finding a due process

violation and remanding where the court determined that the BIA had created a new

standard in Singh’s case and then applied it to him without giving him a chance to meet



                                             14
it); Arrieta v. INS, 117 F.3d 429 (9th Cir. 1997) (remanding where the IJ applied a

presumption announced in an agency decision that was filed after Arrieta’s relevant

submissions without giving Arrieta a chance to offer evidence to rebut the new

presumption).

       Therefore, while we disagree with the District Court’s conclusion regarding the

BIA’s application of Jean in general, we are persuaded that a remand is necessary in order

to prevent the injustice that would arise if a subsequently announced policy formed the

basis for the denial of Togbah’s waiver request.




                                            III.

       The Government also challenges the District Court’s order requiring the BIA to

hold an individualized bond hearing for Togbah.7 The District Court based its conclusion

that Togbah was not subject to mandatory detention on our decision in Patel v. Zemski,

275 F.3d 299 (3d Cir. 2001). There, we determined that 8 U.S.C. § 1226(c), the

mandatory detention statute applicable to both Patel and Togbah, was unconstitutional.


  7
   Preliminarily, we reject Togbah’s argument that we lack jurisdiction to consider the
bond issue. Togbah asserts that the question is moot, due to the fact that the INS has
voluntarily released him from custody. A careful review of the procedural history
relevant to this issue persuades us that his release was based on the District Court’s order
vacating the BIA’s order, which was the only administrative or judicial action mandating
Togbah’s detention. In other words, the District Court’s decision regarding bond left the
INS without a basis for keeping Togbah in custody. We have jurisdiction to review that
decision, as the Government asserts before us that, in fact, it does have the statutory
authority to detain Togbah. Thus, the issue is not moot.

                                             15
However, after the District Court filed its opinion in this case, but before the parties filed

their briefs on appeal, the Supreme Court issued its opinion in Demore v. Kim, 538 U.S.

510 (2003), abrogating our decision in Patel and upholding the constitutionality of the

mandatory detention statute. We find no basis for distinguishing Demore or creating an

exception to its holding for Togbah. Accordingly, we are compelled to reverse the

District Court’s ruling regarding the bond hearing and conclude that Togbah may be

detained for the duration of his proceedings without an individualized hearing.




                                             IV.

       Because we view the BIA’s application of Jean to Togbah’s case as implicating

due process concerns, as he was not provided with a chance to address the heightened

standard, we conclude that there is a basis for granting the habeas relief sought by

Togbah. Therefore, we agree with the District Court that habeas should be granted so as

to require a remand to the BIA for further proceedings. Accordingly, we will AFFIRM

the ultimate order of the District Court – namely, the order granting the writ of habeas

corpus – but we do so for different reasons. We will REMAND to the District Court,

instructing that the matter should be remanded to the BIA with directions to remand to the

IJ for further proceedings consistent with this opinion. The stay of removal will remain in

effect pending completion of the proceedings aforesaid.




                                              16
