Argued: March 21, 2017
Petition for Review of an Order of the Board of Immigration
Parsonage, ELLIOT MORGAN PARSONAGE PLLC, Winston-Salem, North
Carolina, for Petitioner.
Ramnitz, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent.
Benjamin C. Mizer, Principal Deputy Assistant Attorney
General, Civil Division, Shelley R. Goad, Assistant Director,
Jennifer A. Singer, Office of Immigration Litigation, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Zota, NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS
GUILD, Boston, Massachusetts, for Amici Curiae.
WILKINSON, DIAZ, and FLOYD, Circuit Judges.
Boggala, a citizen and native of India, petitions this Court
for review of an order from the Board of Immigration Appeals
(BIA), which found him both removable and inadmissible on the
basis of his North Carolina deferred prosecution agreement
for soliciting a child by computer to commit a sex act.
Because the BIA properly found Boggala removable and
inadmissible for being convicted of a crime involving moral
turpitude, we deny Boggala's petition for review.
begin with a brief overview of the relevant statutory scheme
contained in the Immigration and Nationality Act (INA). An
alien who is a permanent resident of the United States can
lose permanent resident status upon a finding of
removability, based on the criteria for removability listed
in INA § 237, 8 U.S.C. § 1227. Once an alien is
found removable, the alien may attempt to reobtain permanent
resident status by requesting an adjustment of status under
INA § 245(a), 8 U.S.C. § 1255(a). To obtain an
adjustment of status, the alien must be found to be
admissible. The criteria that render an alien inadmissible
are found in INA § 212, 8 U.S.C. § 1182. If an
alien is found to be inadmissible under certain provisions of
INA § 212, the alien may apply for a waiver of
inadmissibility pursuant to INA § 212(h), 8 U.S.C.
§ 1182(h). If the alien has committed a crime that is
"violent or dangerous, " then a heightened standard
applies to the § 212(h) waiver application, requiring
"extraordinary circumstances" for the waiver to be
granted. 8 C.F.R. § 1212.7(d).
turn to the facts of this case. Boggala is a 37-year-old
doctor who completed medical school in India; he traveled to
the United States in 2007 with a valid visa to prepare for
and participate in a residency at a hospital in Greensboro,
North Carolina. In 2008, Boggala married a United States
citizen, and in 2009, he adjusted his status to that of a
lawful permanent resident based on his marriage.
January 12, 2012, Boggala initiated a conversation in a
chatroom with an individual who used the screenname
"JennAngel2010." A.R. 778.
"JennAngel2010" told Boggala that she was a
14-year-old girl living in Fayetteville, North Carolina.
Unbeknownst to Boggala, "JennAngel2010" was
actually an undercover police officer. During this first
conversation, Boggala attempted to arrange a meeting with
"JennAngel2010" for that day. He also told her that
he wanted to have sex with her and made a variety of other
sexually explicit remarks.
and "JennAngel2010" continued to have sexually
explicit conversations for about 19 days, and eventually made
plans to meet on January 31, 2012. On January 31, Boggala
drove from Greensboro to Fayetteville, and arrived at the
parking lot where he had arranged to meet
"JennAngel2010." He was then taken into custody by
the police. He had four condoms in his pocket when he was
apprehended. When interviewed by the police, Boggala-who was
31 years old at the time-admitted that he believed that
"JennAngel2010" was only 14 years old.
was charged by criminal information with soliciting a child
by computer to commit an unlawful sex act in violation of
N.C. Gen. Stat. § 14-202.3(a). On August 14, 2012,
Boggala and his attorney met with the prosecutor. During this
meeting, Boggala waived indictment by signing the criminal
information (the "Information"). The Information
alleged that Boggala engaged in conduct that constitutes the
offense of soliciting a child by computer to commit an
unlawful sex act, and listed relevant factual details such as
Boggala's age (31), the child's age (14), and the
location where they were going to meet. A.R. 816. Also during
the meeting, Boggala entered into a deferred prosecution
agreement pursuant to N.C. Gen. Stat. § 15A-1341(a1),
which established that the state of North Carolina would
defer prosecution of the crime in exchange for Boggala's
fulfillment of certain conditions. A.R. 818-819.
that day, a deferred prosecution hearing was held in North
Carolina Superior Court. At that hearing, the court told
Sir, you are admitting responsibility and stipulating to the
facts to be used against you and admitted into evidence
without objection in the state's prosecution against you
for this offense should prosecution become necessary as a
result of these terms, that is, if you do not complete the
terms of this agreement. Do you understand that?
A.R. 826. Boggala responded, "Yes." Id.
The court then accepted the deferred prosecution agreement
and placed Boggala on supervised probation for twelve months.
of Boggala's offense, the Department of Homeland Security
(DHS) apprehended Boggala on February 26, 2013, and issued
him a notice to appear for removal proceedings. DHS charged
Boggala with removability as (1) an alien convicted of an
aggravated felony under INA § 237(a)(2)(A)(iii), 8
U.S.C. § 1227(a)(2)(A)(iii); and (2) an alien convicted
of a crime involving moral turpitude under INA §
237(a)(2)(A)(i), 8 U.S.C. § 1227(a)(2)(A)(i).
March 12, 2013, Boggala appeared at a preliminary hearing
before an immigration judge (IJ) and denied that he was
removable as charged. Boggala filed a motion to terminate his
removal proceedings, arguing that his deferred prosecution
did not constitute a "conviction" for immigration
purposes and that, in any event, his offense did not qualify
as an aggravated felony or a crime involving moral turpitude.
DHS filed in opposition, and submitted into evidence the
Information, the deferred prosecution agreement, and the
transcript from the deferred prosecution hearing.
January 30, 2014, the IJ denied Boggala's motion to
terminate proceedings, based on a determination that Boggala
was removable under INA § 237(a)(2)(A)(iii), 8 U.S.C.
§ 1227(a)(2)(A)(iii), for being convicted of an
aggravated felony. A.R. 214. The IJ reserved judgment on
whether Boggala was additionally removable under INA §
237(a)(2)(A)(i), 8 U.S.C. § 1227(a)(2)(A)(i), for being
convicted of a crime involving moral turpitude. A.R. 214 n.2.
Boggala then indicated that he intended to apply for relief
from removal through an application for adjustment of status
in conjunction with a § 212(h) waiver of
October 8, 2014, Boggala conceded that his offense qualified
as a crime involving moral turpitude, rendering him
removable; however, he argued that his offense did not render
him inadmissible because it was subject to the petty offense
exception under INA § 212(a)(2)(A)(ii)(II), 8 U.S.C.
§ 1182(a)(2)(A)(ii)(II),  and that for this reason, he did not need
to apply for a § 212(h) waiver. The IJ disagreed, and on
March 3, 2015, found that Boggala's conviction was for a
crime involving moral turpitude and that the petty offense
exception did not apply, rendering Boggala inadmissible. As a
result, Boggala was required to apply for a § 212(h)
waiver. The IJ adjourned the proceedings to allow the parties
to brief whether Boggala's crime was ...