June 27, 2017

Tenth Circuit: Possession of Stolen Property is Crime Involving Moral Turpitude

The Tenth Circuit Court of Appeals issued its opinion in Obregon de Leon v. Lynch on Tuesday, December 22, 2015.

Cristian Eduardo Obregon de Leon was a native citizen of Guatemala who entered the United States without inspection in September 1997. In 2007, he adjusted his status to that of a lawful permanent resident (LPR). In 2011, he was charged with and pleaded guilty to four offenses in Oklahoma state court: (1) one count of operation of a chop shop, (2) four counts of possession of vehicles with altered identification numbers, (3) four counts of possession of a stolen vehicle, and (4) two counts of receipt of stolen property.

In January 2013, the Department of Homeland Security filed a Notice to Appear, charging that Mr. Obregon was removable for committing a crime involving moral turpitude (CIMT). Mr. Obregon admitted the factual allegations at hearing but denied removability, arguing his crimes did not qualify as CIMTs. The Immigration Judge ultimately found that all four crimes counted as CIMTs and concluded he was not eligible for waiver relief. Mr. Obregon appealed, and a single BIA judge dismissed his appeal, concluding that the stolen property offenses counted as CIMTs because they required a mens rea of knowing the property was stolen.

Mr. Obregon appealed to the Tenth Circuit, arguing none of his convictions counted as CIMTs and that he should be eligible for waiver because he adjusted to LPR status after entering the United States. The Tenth Circuit first evaluated the term “crime involving moral turpitude,” and determined it was quintessentially ambiguous. However, following several other circuits and BIA precedent, the Tenth Circuit found that possession of stolen property satisfies the scienter element to create a CIMT. Mr. Obregon argued there must be intent to permanently deprive the rightful owner of the property, but the Tenth Circuit disagreed, finding Mr. Obregon’s “application of legal imagination” did not suffice to show that the requisite scienter was permanent deprivation. The Tenth Circuit affirmed the BIA’s determination that Mr. Obregon’s possession of stolen property crimes were crimes involving moral turpitude.

However, as to Mr. Obregon’s argument that he was eligible for waiver because he adjusted his status to that of LPR after entering the United States, the Tenth Circuit agreed. Following recent Tenth Circuit and BIA precedent, the Tenth Circuit ruled that the plain language of the waiver statute barred application for waiver only for those who received LPR status before or upon entering the United States.

The Tenth Circuit affirmed in part, reversed in part, and remanded for further proceedings.

Tenth Circuit: Couple’s Conflicting Statements Indicate Sham Marriage for Immigration Purposes

The Tenth Circuit Court of Appeals issued its opinion in Vladimirov v. Lynch on Tuesday, November 10, 2015.

Vladimir Vladimirov entered the United States in February 1996 as a nonimmigrant visitor authorized to stay until August 1996. However, he never left the United States. In 2005, he married Valentina Bakhrakh, a U.S. citizen. Bakhrakh filed an I-130 petition for alien relative to adjust Vladimirov’s immigration status, and Vladimirov filed an I-485 application for adjustment of status.

U.S. Customs and Immigration Services (USCIS) Officer Randall interviewed Bakhrakh and Vladimirov in March and May 2006 to ascertain the bona fides of their marriage. Based on their conflicting statements under oath about their address, how long they had lived there, the number of bedrooms and bathrooms at their address, Vladimirov’s marriage proposal, the type of ring, the wedding, their morning routine, and what they had done the previous weekend, Officer Randall requested a site visit, which occurred in April 2008 by USCIS Officer Gibson. Officer Gibson questioned Vladimirov about various items she found in home and he admitted they belonged to his ex-wife, not Bakhrakh. Vladimirov also admitted he and Bakhrakh did not have a valid marriage and had lied to make it appear as if they did. Officer Gibson met with Bakhrakh and her adult son the next day to discuss the evidence of the sham marriage and the consequences of falsifying an I-130. At the end of the interview, Bakhrakh withdrew the I-130 petition.

Based on Bakhrakh’s withdrawal of the I-130 and the evidence of the sham marriage, Officer Randall denied Vladimirov’s I-485 application. A Notice to Appear (NTA) was then filed against Vladimirov based on his misrepresentations and the sham marriage, and he requested a hearing in front of an immigration judge. The IJ determined the government had met its burden of establishing removability based on marriage fraud and ordered Vladimirov removed to Bulgaria. Vladimirov’s appeal to the BIA was dismissed.

Vladimirov appealed to the Tenth Circuit, arguing he was not given notice of the conduct forming the basis of the fraud charges, and the government’s evidence was insufficient to prove those charges. He also argued he was denied due process in the administrative proceedings. The Tenth Circuit denied each claim in turn. The Tenth Circuit found that the NTA clearly charged him with entering into a sham marriage with Bakhrakh, and fraud and willful misrepresentation in filing an I-485 based on the sham marriage. The marriage fraud charge was based on Vladimirov’s representation that he was in a bona fide marriage with Bakhrakh. The Tenth Circuit found that this provided a basis for removability, and the NTA gave Vladimirov adequate notice of the charges against him.

As for Vladimirov’s contention that the evidence was insufficient to prove the charges against him, the Tenth Circuit declined to independently weigh the evidence. The Circuit found substantial record support for the finding that the couple’s conflicting statements about their lives together indicated they were not in a valid marriage, and together with Vladimirov’s admission about the I-485 and Bakhrakh’s withdrawal of the I-130, ample evidence supported the IJ’s finding.

Turning to Vladimirov’s due process contentions, the Tenth Circuit noted that immigration proceedings need not approximate constitutional protections afforded to criminal defendants. Vladimirov asserted four violations of his due process rights. First, he argued he was not afforded an opportunity to cross-examine Officer Gibson. The Tenth Circuit noted that there was no circuit authority requiring personal appearance by a government agent. Although the Circuit noted that better contrary evidence than Officer Gibson’s report may have “carried the day,” Vladimirov chose not to testify in his own defense, thereby forgoing any opportunity to refute the information in Officer Gibson’s report. Vladimirov next contended that the government erred by introducing “triple hearsay” in Officer Gibson’s report. However, the Tenth Circuit again noted that hearsay is regularly used in administrative adjudications, which lack the constitutional requirement of confrontation as afforded to criminal defendants. Next, Vladimirov argued that the Form I-213 denial of his I-485 application was prepared in anticipation of litigation and so lacked a presumption of reliability. Again, the Tenth Circuit rejected Vladimirov’s arguments, finding no evidence of unreliability. Finally, the Tenth Circuit considered Vladimirov’s contention that Bakhrakh was coerced into withdrawing her I-130. The Tenth Circuit characterized the allegations as serious, but noted that informing someone of the consequences of marriage fraud is not coercion.

The Tenth Circuit denied Vladimirov’s petition to review.

Tenth Circuit: Agency Decision Presumed to Apply Prospectively Only

The Tenth Circuit Court of Appeals issued its opinion in De Niz Robles v. Lynch on Tuesday, October 20, 2015.

Alfonzo De Niz Robles filed a petition for adjustment of status in 2007, relying on the Tenth Circuit’s opinion in Padilla-Caldera v. Gonzales (Padilla Caldera I), 426 F.3d 1294, 1300-01 (10th Cir. 2005), amended and superseded on reh’g, 453 F.3d 1237, 1244 (10th Cir. 2006), which held that 8 U.S.C. §§ 1255(i)(2)(A) allowed the Attorney General discretion in affording relief from removability under § 1182(a)(9)(C)(i)(I). After De Niz Robles filed his petition, the BIA issued In re Briones, 24 I. & N. Dec. 355 (BIA 2007), which overturned the Tenth Circuit’s decision in Padilla Caldera I. In 2013, the BIA ruled that De Niz Robles was categorically ineligible for relief due to its Briones decision, which it applied retroactively. De Niz Robles appealed to the Tenth Circuit.

Applying the Chevron test and guided by the Supreme Court’s ruling in National Cable & Telecommunications Ass’n v. Brand X Internet Services (Brand X), 545 U.S. 967 (2005), the Tenth Circuit determined it was required to decide whether Briones could reasonably apply retroactively, thereby overruling Tenth Circuit precedent. The Tenth Circuit analyzed the separation of powers doctrine, noting that judicial decisions are presumed to apply retroactively due to the impartial nature of the judiciary, whereas Congressional rule-making is presumably prospective only unless otherwise specifically stated. Because administrative rulemaking is a delegation of Congressional power, the Tenth Circuit found that administrative rules are presumptively prospective in application. However, when confronted with a situation where an administrative agency acts in a quasi-judicial capacity, such as the BIA did in Briones, the Tenth Circuit examined whether the administrative action is more akin to judicial function or legislative function.

The Tenth Circuit determined that, in applying its rules pursuant to a Congressional delegation of power, the BIA was acting in a quasi-legislative capacity. Examining due process and equal protection concerns, the Tenth Circuit determined it would contravene Supreme Court precedent and constitutional safeguards to allow the BIA’s decision to be applied retroactively. The Tenth Circuit therefore overturned the BIA’s refusal to consider De Niz Robles’ petition. The Tenth Circuit noted that at the time De Niz Robles filed his petition, Padilla Caldera I was the existing circuit precedent, and he was justified in his reliance on that precedent. The BIA argued that De Niz Robles should have understood that there was a conflict between § 1255 and § 1182, and that there was a chance the conflict would be resolved against De Niz Robles’ position. The Tenth Circuit found that approach illogical, noting that a litigant is justified in relying on the law at the time a petition is filed.

The Tenth Circuit remanded to the BIA for further proceedings consistent with its opinion.

Tenth Circuit: Venue for Immigration Appeals Tied to Immigration Judge’s Location at Final Hearing

The Tenth Circuit Court of Appeals issued its opinion in Lee v. Lynch on Wednesday, July 1, 2015.

Yang You Lee is a citizen of Thailand who received lawful refugee status through his Laotian parents and was admitted to the United States in 1987 at age 5. In 2014, an Immigration Judge in Dallas found him removable for a misdemeanor domestic assault charge that was a crime of violence. The BIA agreed with the IJ and dismissed his appeal. Mr. Lee filed a petition for review in the Fifth Circuit, which sua sponte summarily transferred the petition to the Tenth Circuit. The Tenth Circuit asked the parties to address venue under 8 U.S.C. § 1252(b)(2) and reviewed their responses.

The Tenth Circuit first addressed whether § 1252 affects subject matter jurisdiction or is an ordinary venue provision. Following the reasoning of a number of sister circuits that have addressed the issue, the Tenth Circuit concluded that § 1252 is a non-jurisdictional venue provision. Next, analyzing the plain language of the statute, the Circuit found venue tied to the IJ’s location when the IJ completes removal proceedings. Although the Attorney General argued venue was proper in the Tenth Circuit because the final hearing location was docketed as Oklahoma City, Oklahoma, the Tenth Circuit noted the final hearing was held in Dallas and all parties physically appeared in Dallas. The Tenth Circuit declined to defer to agency pronouncements and followed the language of the statute. The Tenth Circuit noted that although transfer would further delay the proceedings, the Fifth Circuit is the proper venue.

The Tenth Circuit transferred the petition to review to the Fifth Circuit Court of Appeals.

Tenth Circuit: “Particular Social Group” Need Not Be Visibly Distinct But Must Have Distinguishing Characteristic

The Tenth Circuit Court of Appeals issued its opinion in Rodas-Orellana v. Holder on Monday, March 2, 2015.

Benjamin Rodas-Orellana entered the United States on or around September 6, 2006, when he was 17 years old, and DHS commenced removal proceedings on September 16, 2006. Mr. Rodas-Orellana appeared before an IJ on August 28, 2007, and conceded removability but applied for asylum and withholding of removal, indicating he sought to escape poverty and gang violence in El Salvador. Mr. Rodas-Orellana specifically contended that the MS-13 gang had pressured him to join in the past and he had resisted, and this constituted a well-founded fear of persecution because of his membership in a particular social group, specifically young Salvadoran males who refused to join the gang.

On June 28, 2012, the IJ denied Mr. Rodas-Orellana’s applications for asylum and withholding of removal, finding that although Mr. Rodas-Orellana had suffered in the past at the hands of gang members, he had indicated no reason for him to be targeted by gang members other than their general desire to control the population in their areas. The IJ further concluded that Salvadoran youth who have resisted recruitment by gangs do not constitute a particular social group. Mr. Rodas-Orellana appealed to the BIA, who rejected his appeal in a January 22, 2014 final order of removal. The BIA agreed with the IJ that Mr. Rodas-Orellana’s rejection of gang membership did not place him in a particular social group, and also that perceived American nationality did not constitute a particular social group. On March 11, 2014, Mr. Rodas-Orellana filed a motion to reconsider with the BIA in light of two recent decisions, but the BIA denied his motion on May 1, 2014. On June 13, 2014, Mr. Rodas-Orellana filed a motion to consolidate his two BIA appeals, which the Tenth Circuit granted.

The Tenth Circuit reviewed the two BIA denials to consider (1) if the BIA erred in determining Mr. Rodas-Orellana was not a member of a particular social group, in light of recent BIA decisions on the issue, and (2) if the BIA erred in determining Mr. Rodas-Orellana was not persecuted based on his membership in a particular social group.

The Tenth Circuit first examined the BIA’s interpretation of the term “particular social group,” especially in light of the two recent BIA decisions narrowing its definition. The Tenth Circuit determined that a group need not be literally visibly distinguishable to constitute a “particular social group” but must have some special characteristic enabling recognition of group members. The Tenth Circuit found Mr. Rodas-Orellana failed to prove that his proposed group of young Salvadoran males who resist gang membership is socially distinct. The Tenth Circuit’s 2012 decision in Rivera-Barrientos v. Holder, 666 F.3d 641 (10th Cir. 2012), where a young Salvadoran female who resisted gang membership was denied asylum, controlled as to Mr. Rodas-Orellana. Although the record reflected that gang activity is not well controlled in El Salvador, nothing suggested that Mr. Rodas-Orellana belonged to a group more susceptible to gang violence than general members of the population.

The Tenth Circuit denied Mr. Rodas-Orellana’s petition for review, finding no evidence that Mr. Rodas-Orellana was a member of a particular social group or that he was persecuted because of that membership.

Tenth Circuit: Reinstatement of Removal Not Final Until Reasonable Fear Proceedings Complete

The Tenth Circuit Court of Appeals issued its opinion in Luna-Garcia v. Holder on Tuesday, February 10, 2015.

Melida Teresa Luna-Garcia is a native of Guatemala whose removal was ordered in 2004. She executed that order in 2007 when she left the United States and returned to Guatemala. She was again discovered in the United States on July 9, 2014, and DHS reinstated the 2004 removal order on July 11, 2014. Luna-Garcia expressed fear of harm if she returned to Guatemala and was referred to an asylum officer. She filed a petition for review with the Tenth Circuit on August 11, 2014, before the asylum officer issued a reasonable fear determination. Later, the asylum officer determined she did not have a reasonable fear, but an immigration judge has since reversed the asylum officer’s finding and Luna-Garcia is now in withholding of removal proceedings before the immigration judge.

Luna-Garcia requested the Tenth Circuit to determine when a reinstatement of removal order is final for purposes of appeal. The Tenth Circuit explained the process of reinstating a removal order and possibilities for review of reinstatement. The INA defines finality in terms of review by the BIA, but reinstatement orders are not appealable to the BIA. The Tenth Circuit examined the meaning of “final” and found that it generally means there is nothing more to do than execute the judgment. In the case where an alien argues fear of harm precludes removal, the reinstatement order is not final until the reasonable fear proceedings are complete.

The Tenth Circuit granted the government’s motion and dismissed the proceedings for lack of jurisdiction.

Tenth Circuit: Acquittal on Drug Trafficking Charges Does Not Preclude Immigration Removal

The Tenth Circuit Court of Appeals issued its opinion in Mena-Flores v. Holder on Friday, January 23, 2015.

Gustavo Mena-Flores entered the United States illegally in 1990. In 2006, the Department of Homeland Security initiated removal proceedings. Mr. Mena-Flores admitted he was “undocumented,” but sought permanent residency based on his marriage to a U.S. citizen. The Department contended Mr. Mena-Flores was not eligible for residency due to criminal activity, stemming from an arrest of Mr. Mena-Flores on charges of drug trafficking.

Mr. Mena-Flores’ brother, Santiago, ran a drug trafficking organization. During his arrest and indictment, four witnesses identified Mr. Mena-Flores as involved in Santiago’s organization. Although Mr. Mena-Flores was eventually acquitted of all charges, the Department argued he should be denied residency due to “reason to believe” he could have been involved in the drug trade. The immigration judge granted Mr. Mena-Flores’ request for adjustment in status, but the Department appealed, and the BIA remanded to the immigration judge to consider all evidence of drug trafficking activity. On remand, the immigration judge denied Mr. Mena-Flores’ petition, finding there was reasonable, substantial, and probative evidence creating a reason to believe he had been involved in drug trafficking.

Mr. Mena-Flores appealed to the BIA, which upheld the immigration judge’s decision. He appealed the BIA’s decision to the Tenth Circuit. He then hired new counsel, who urged the BIA to reopen the case to consider new evidence. Mr. Mena-Flores argued his trial counsel was ineffective by failing to present the evidence earlier. The BIA denied the motions and Mr. Mena-Flores appealed.

Before addressing the merits of Mr. Mena-Flores’ appeals, the Tenth Circuit addressed the Department’s arguments that it lacked jurisdiction to hear the appeal. The Department argued 8 U.S.C. § 1252 barred review of (1) orders against aliens who are removable because of participation in drug trafficking, (2) orders involving discretionary relief, and (3) unexhausted arguments.

The Tenth Circuit extensively evaluated the term “removable” and determined that, although there was an inference Mr. Mena-Flores was involved in drug trafficking, he was not “removable” based on the drug trafficking because he was being removed for lack of documentation. The Department next argued that since adjustment in status involves a form of discretionary relief, the Tenth Circuit lacked jurisdiction. The jurisdictional bar in 8 U.S.C. § 1252(a)(2)(B)(i) does not apply to the nondiscretionary aspects of relief. Finally, the Department argued Mr. Mena-Flores had not exhausted his administrative remedies, but the Tenth Circuit disagreed.

Addressing the merits of the appeal, the Tenth Circuit evaluated whether the BIA’s conclusion that Mr. Mena-Flores’ participation in drug trafficking precluded permanent residency was supported by substantial evidence. The Tenth Circuit looked at the inferences that Mr. Mena-Flores participated in drug trafficking and noted that he bore the burden of proof to show he was not involved in the drug trade. The Tenth Circuit would uphold the BIA’s determination if the evidence was “reasonable, substantial and probative.”

The Tenth Circuit found no error in the BIA’s determination. Witness statements, a special agent’s affidavit, and Mr. Mena-Flores’ testimony all influenced the immigration judge’s decision that Mr. Mena-Flores was not eligible for an adjustment in status due to his participation in drug trafficking activity. Because Mr. Mena-Flores bore the burden of proof, the Tenth Circuit found no error in the BIA’s decision. The evidence presented by Mr. Mena-Flores that tended to show non-involvement did not outweigh the inference created by the government’s evidence.

Mr. Mena-Flores also appealed the BIA’s denial of his motion to reopen. Although he argued that he had presented new evidence to the BIA, the Tenth Circuit disagreed. Mr. Mena-Flores’ counsel’s discretionary and tactical decisions to include or exclude evidence did not constitute ineffective assistance.

The Tenth Circuit found that Mr. Mena-Flores failed to meet his burden of proof, and affirmed the BIA’s decisions.

Tenth Circuit: Attorney’s Failure to Submit Evidence of Residence Constituted Ineffective Representation in Removal Proceeding

The Tenth Circuit Court of Appeals issued its opinion in Martinez Molina v. Holder on Tuesday, August 19, 2014.

Alberto Martinez Molina and Cristina Ramirez Rivera, a married couple, are Mexican citizens subject to final orders of removal from the United States. The government began removal proceedings on October 16, 2008, and, in order to cancel the removal, the couple had to show continuous presence in the United States for the past ten years, beginning October 16, 2008. At a 2008 hearing, the couple’s first attorney submitted paystubs showing that Mr. Martinez had worked in the United States since 1998 and vaccination records showing that the couple’s minor child had been vaccinated throughout 1998. Following this hearing, the couple relocated and obtained the services of a second attorney, Mr. Senseney. At the second hearing, Senseney presented evidence of residence from 1999 to 2010, but did not present any evidence regarding 1998. The immigration judge denied relief, relying in part on the missing documentation but also relying on discrepancies in the couple’s testimony. Senseney appealed to the BIA but did not challenge any of the immigration judge’s rulings. The BIA dismissed the appeal.

After the dismissal, the couple hired a third attorney, who petitioned to reopen based on ineffective representation. The couple argued that they had received ineffective representation from Senseney based on his failure to submit evidence of residence during 1998. The BIA denied the motion, ruling that it appeared from the record that the evidence was substantially similar to that relied upon by the IJ. The couple appealed to the Tenth Circuit on two grounds: (1) the immigration judge failed to consider all of the evidence, including the evidence submitted at the 2008 hearing by their first attorney, and (2) ineffective representation.

The Tenth Circuit declined to address the couple’s first argument because it lacked jurisdiction to do so. The couple had not appealed that ruling to the BIA, and without exhaustion of lower court remedies, the Tenth Circuit had no jurisdiction to hear the issue. As to the second argument, the Tenth Circuit affirmed the BIA’s decision as to Ms. Ramirez but reversed as to Mr. Martinez.

The Tenth Circuit found that the BIA abused its discretion in denying Mr. Martinez’s petition to reopen because it ruled that the evidence regarding Mr. Martinez’s presence in 1997 and 1998 that was attached to his petition appeared the same or substantially similar to that considered by the immigration judge. However, the immigration judge did not consider evidence from 1998 because she referenced the absence of evidence proving residence in October 1998. The Tenth Circuit remanded to the BIA for further findings regarding the 1998 evidence.

As to Ms. Ramirez, the Tenth Circuit found no abuse of discretion. The vaccination records from 1998 that she submitted with her petition to reopen were already in the record, leading the BIA and Tenth Circuit to conclude the immigration judge considered this evidence.

The BIA’s denial was affirmed as to Ms. Ramirez and reversed and remanded as to Mr. Martinez.

Tenth Circuit: Application for Cancellation of Removal Deemed Abandoned by Failure to Complete Biometric Requirement

The Tenth Circuit Court of Appeals issued its opinion in Ramirez-Coria v. Holder on Friday, August 1, 2014.

Gustavio Ramirez-Coria entered the United States illegally in 1995. He was placed in removal proceedings in April 2009 and conceded removability. At a second hearing in May 2009, Ramirez-Coria requested a continuance to complete his application for cancellation of removal (Form EOIR-42B), and his hearing was continued to June 2009. At the June hearing, Ramirez-Coria submitted Form EOIR-42B, but he did not submit the required biometric information (his fingerprints), despite the instructions on Form EOIR-42B directing him to attend an appointment at an Application Support Center (ASC) and obtain a biometrics completion notice to attach to his application. The immigration judge (IJ) rescheduled his hearing to October 2010 and informed Ramirez-Coria that he was responsible for completing the biometrics, and that failure to do so could result in a denial of his petition. The IJ later rescheduled the hearing until January 2012.

Ramirez-Coria’s counsel moved to withdraw prior to the January 2012 hearing, claiming that his client had lost all interest in his own case. New counsel entered an appearance and the hearing was rescheduled for March 2012. At the March hearing, Ramirez-Coria again submitted Form EOIR-42B without the biometric information. His counsel told the IJ that Ramirez-Coria had gone to an ASC the previous day and provided his fingerprints, but the ASC would not complete the process because he did not have any form of ID, including his birth certificate. The government stated that they had no record Ramirez-Coria had submitted his fingerprints. The IJ determined that Ramirez-Coria’s application for cancellation of removal should be deemed abandoned because at no time in the 2 1/2 years his case had been pending had Ramirez-Coria attempted to obtain his birth certificate, and his counsel had never informed the court he was having trouble completing the biometric requirement. The IJ dismissed his application but granted Ramirez-Coria voluntary departure. Ramirez-Coria appealed to the BIA, which agreed with the IJ and dismissed his appeal.

The Tenth Circuit reviewed the BIA’s decision for abuse of discretion and found none. Ramirez-Coria raised several arguments on appeal that were contradicted by the record. Ramirez-Coria had been informed by the IJ that his application could be dismissed if he did not complete the biometrics, yet he failed to do so. Ramirez-Coria claimed he had good cause for his failure to complete the biometrics because his family in Mexico would not send him his birth certificate. However, the BIA rejected this claim, noting that at some point within the more than 2 1/2 years Ramirez-Coria could have petitioned Mexican authorities for the documentation. The Tenth Circuit ruled that the IJ acted well within his authority in determining that Ramirez-Coria abandoned his application, and upheld the decision of the IJ and BIA.

Tenth Circuit: Pretrial Confinement Period Included in Calculation of Total Confinement Period for Immigration Purposes

The Tenth Circuit Court of Appeals issued its opinion in Garcia-Mendoza v. Holder on Monday, June 2, 2014.

Enrique Garcia-Mendoza is a citizen of Mexico who lawfully entered the United States in January 1996 as a temporary visitor for six months and never left. In 2010, he was arrested and charged with driving under the influence. He could not afford bond and remained confined during the pretrial period for a total of 104 days. He was sentenced to 270 days with credit for time served, and was released after serving a total of 197 days. Upon release, the Department of Homeland Security seized Garcia-Mendoza and initiated removal proceedings. Petitioner conceded that he exceeded his authorized stay and applied for cancellation of removal. The immigration judge denied his request because Garcia-Mendoza had been confined for more than 180 days and therefore could not meet the good moral character requirement. Subsequently, Garcia-Mendoza petitioned the state trial court for a sentence amendment, alleging that his counsel failed to advise him of the immigration consequences of his guilty plea and requesting the sentence to be reduced to 166 days with no credit for time served in the pretrial period. The court granted the motion, nunc pro tunc, and reduced his sentence. However, the IJ again denied cancellation of removal, because Garcia-Mendoza’s actual time served was greater than 180 days. The BIA upheld the IJ’s decision, and Garcia-Mendoza appealed to the Tenth Circuit.

The Tenth Circuit reviewed 8 U.S.C. § 1101(f)(7) and determined that the clear statutory language did not account for nunc pro tunc sentence adjustments but rather required that no actual period of confinement exceed 180 days. The Tenth Circuit also considered Garcia-Mendoza’s argument that the pretrial confinement period should be excluded because it does not qualify as confinement as a result of a conviction. Upon analysis of circuit precedent, the Tenth Circuit affirmed the BIA’s interpretation of the statute as including the pretrial period when conviction was entered. The decision of the BIA was affirmed.