Argued and Submitted, Honolulu, Hawaii: October 9,
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A087-957-052.
The panel denied Etumai Mtoched's petition for review from the Board of Immigration Appeals' order removing him based on his conviction for assault with a dangerous weapon under Commonwealth of the Northern Mariana Islands law, 6 N. Mar. I. Code § 1204(a).
The panel held that United States immigration laws could properly be applied to Mtoched within the CNMI, even though he entered the territory, committed the crime, and was convicted before U.S. immigration laws were extended to the CNMI pursuant to 48 U.S.C. § 1806. The panel held that such application was not impermissibly retroactive, and that it did not infringe upon CNMI's right to self-government in violation of the terms of the Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States.
The panel also held that Mtoched's conviction constituted a crime involving moral turpitude, making him removable under the Immigration and Nationality Act. The panel concluded that § 1204(a) is divisible into three subparts all involving bodily injury to another person with a dangerous weapon. Applying the modified categorical approach, the panel held that because Mtoched's conviction entailed purposeful conduct, more than simply reckless conduct, it demonstrated evil intent and constituted a CIMT.
The panel also held that Mtoched was statutorily ineligible for an INA § 212(h) waiver of inadmissibility, because under 8 C.F.R. § 1245.1(f) a waiver for an alien within the United States is available only in connection with an application for adjustment of status, even if he is not eligible to apply for adjustment.
Joseph E. Horey, O'Conner, Berman, Dotts & Banes, Saipan, MP, for Petitioner.
Anthony W. Norwood (argued) and Jesse M. Bless, United States Department of Justice, Washington, D.C., for Respondent.
Before: A. Wallace Tashima, Johnnie B. Rawlinson, and Richard R. Clifton, Circuit Judges. Opinion by Judge Clifton.
CLIFTON, Circuit Judge:
Etumai Mtoched, a citizen of Palau and a resident of the Commonwealth of the Northern Mariana Islands (" CNMI" ), petitions for review of an order of removal from the United States. That order was entered based on Mtoched's conviction for assault with a dangerous weapon under CNMI law, 6 N. Mar. I. Code § 1204(a).
One set of issues raised by Mtoched's petition arises from CNMI's unique posture in relationship with United States immigration law. Prior to 2009, CNMI could be described as being outside the immigration boundary of the United States. Accordingly, United States immigration laws, including the Immigration and Nationality Act (" INA" ), did not apply to CNMI. Instead, the CNMI government was itself responsible for enacting and administering laws governing immigration into and deportation from CNMI. That changed when most of the United States immigration laws, including the INA, were extended to CNMI via legislation codified as 48 U.S.C. § 1806, contained within the Consolidated Natural Resources Act of 2008 (" CRNA" ), Pub. L. 110-229, 122 Stat. 754, effective on November 28, 2009. Shortly thereafter, the Department of Homeland Security initiated proceedings against Mtoched that culminated in the order of removal that is the subject of this petition. Mtoched challenges that order as a violation of CNMI's right to self-government and as an impermissible retroactive application of law. We reject those challenges and conclude that United States immigration laws may properly be applied and enforced within CNMI to Mtoched even though he entered that territory, committed the crime, and suffered the conviction upon which the removal order is based prior to the extension of United States immigration laws to the Commonwealth.
Mtoched also challenges the determination that his conviction was for a crime involving moral turpitude (" CIMT" ), making him removable under the INA. We disagree and conclude that it was.
In addition, we reject his contention that he is eligible for a waiver of inadmissibility under§ 212(h) of the INA, 8 U.S.C. § 1182(h). The Board of Immigration Appeals (" BIA" ) held that he was ineligible because, under the governing regulation, an application for such a waiver can only be made by someone already within the United States together with an application
for adjustment of status, and Mtoched was not eligible to submit an application for adjustment of status. We accept the BIA's interpretation. As a ...