Mtoched v. Lynch

An alien convicted of a crime involving moral turpitude, and subject to removal proceedings under 8 U.S.C. § 1182(a)(2)(A)(i)(I), may submit a waiver under 8 U.S.C. §1182(h) if the alien is already in the United States, and submits an application for adjustment of status in conjunction with the waiver application.

Etumai Mtoched, a resident of Palau, moved to Saipan, located within the Commonwealth of the Northern Mariana Islands (“CNMI”), and was convicted of assault with a deadly weapon. Since Mtoched moved to Saipan before United States immigration laws were extended to CNMI, Mtoched was governed by CNMI law. After United States immigration laws were extended to CNMI, the federal government began removal proceedings for Mtoched, as his conviction constituted a crime involving moral turpitude (“CIMT”), which made him removable under 8 U.S.C. § 1182(a)(2)(A)(i)(I). Mtoched motioned to terminate the removal proceedings, and the Immigration Judge (“IJ”) denied his motion. Mtoched tried to submit a waiver under 8 U.S.C § 1182(h)(2), also known as a § 212(h) waiver, which would allow him to avoid removal. However, the IJ determined that Mtoched was ineligible because he did not submit an application for adjustment of status with his waiver application. On appeal, Mtoched argued that the application for removal violated CNMI’s right to self-government, and that it offered retroactive application of laws. Mtoched also challenged his CIMT conviction, arguing that he was eligible to submit his waiver. The Ninth Circuit held that Congress was authorized to enact the provisions, and the actions of the federal government to commence removal proceedings were not a retroactive application of laws. The panel also concluded that Mtoched committed a crime involving moral turpitude because it met one of the three divisions under 6 N. Mar. I. Code § 1204(a), which all include bodily injury of another person with a deadly weapon. Finally, the panel agreed with the IJ that Mtoched was ineligible to submit a § 212(h) waiver because he did not submit an application for adjustment of status under 8 C.F.R. § 1245.1(f). DENIED.