Solano-Chicas v. Gonzales, 04-3373.

Citation440 F.3d 1050
Decision Date17 March 2006
Docket NumberNo. 04-3755.,No. 04-3373.,04-3373.,04-3755.
PartiesAngel Abad SOLANO-CHICAS, Petitioner, v. Alberto GONZALES, Attorney General of the United States of America,<SMALL><SUP>1</SUP></SMALL> Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Before SMITH, HEANEY, and BENTON, Circuit Judges.

HEANEY, Circuit Judge.

Angel Abad Solano-Chicas petitions for review of the decisions of the Board of Immigration Appeals (BIA) ordering him removed from the United States, and denying his motion to reopen such that he could apply for an adjustment of status. We deny the petitions.

BACKGROUND

Solano-Chicas is a thirty-seven-year-old native and citizen of El Salvador. He entered the United States over twenty years ago, and became a lawful permanent resident on October 24, 1986. Since September 5, 1998, he has been married to Janine Solano, who is a naturalized United States citizen and the mother of three of Solano-Chicas's children.2 On February 11, 2003, Solano-Chicas pled guilty to Second-Degree Criminal Sexual Conduct in Minnesota state court. He was alleged to have fondled a nine- or ten-year-old girl who was staying at his house. He was sentenced to a ten-day term of imprisonment, to be followed by eighty days of home confinement. Subsequently, the government instituted proceedings to deport Solano-Chicas.

During the pendency of these removal proceedings, Solano-Chicas returned to state court in an attempt to withdraw his guilty plea on his criminal sexual conduct conviction. He proceeded on the theory that he did not intend to plead guilty to that offense and that he was innocent of the crime charged. Solano-Chicas's motion to withdraw his guilty plea was granted, and in the same proceeding, Solano-Chicas entered a plea of guilty to the gross misdemeanor charge of Fifth-Degree Assault. Solano-Chicas, who was being held in custody due to an immigration detainer, did not appear for the criminal proceedings. Rather, his plea to the Fifth-Degree Assault charge was based on his signed petition to enter a plea of guilty and the same set of facts that originally led to the criminal sexual conduct charge, namely, an offense of unwanted touching involving a nine- or ten-year-old victim.

Based on the above circumstances, the Immigration Judge (IJ) found that Solano-Chicas was removable, as he had been convicted of a crime involving child abuse. The IJ then considered whether to grant Solano-Chicas cancellation of removal, allowing him to remain in the United States. The IJ observed the correct legal standard; that is, whether the factors in favor of allowing Solano-Chicas to stay outweighed the factors supporting removal. See 8 U.S.C. § 1229a(c)(4)(B). According to the IJ, the factors in favor of cancellation were Solano-Chicas's familial ties and long-term residence in the United States. Forcing Solano-Chicas to leave the country would impose a significant emotional and financial hardship not only on Solano-Chicas, but also on his wife and children. Moreover, because Solano-Chicas had no strong ties in El Salvador, returning him there would be very burdensome to him. On the other hand, the IJ recognized that Solano-Chicas had a criminal history that was not insubstantial, and that he did not perform well on supervised release. The IJ also was concerned that Solano-Chicas had unpaid child support and tax arrears. Troubled, the IJ stated that "[u]ltimately, the Court's not really thrilled with either outcome in this case," but considering all the factors, the IJ "tip[ped] the scales in [Solano-Chicas's] favor," allowing him the privilege of cancellation of removal. (IJ Order at 27.)

The Department of Homeland Security (DHS) appealed to the BIA. The BIA affirmed the IJ's finding that Solano-Chicas was removable, but reversed the IJ's decision that Solano-Chicas was entitled to cancellation of removal. The BIA stated that although Solano-Chicas had some factors, such as familial ties, that weighed in his favor, those factors "cannot outweigh the seriousness of the circumstances surrounding his extensive criminal record for purposes of his application for cancellation of removal." (BIA Order on Cancellation of Removal at 4.)

Subsequently, Solano-Chicas moved to reopen his case on the basis that he was entitled to an adjustment of status because he was married to a United States citizen. The BIA denied the motion, characterizing his Fifth-Degree Assault conviction as a crime of moral turpitude that disqualified him for an adjustment of status. This appeal followed.

ANALYSIS

We discern essentially three issues in this appeal: (1) whether the BIA, as opposed to the IJ, had the power to order Solano-Chicas removed, (2) whether and to what extent we may review the BIA's discretionary decision to deny cancellation of removal, and (3) whether the BIA abused its discretion in finding Solano-Chicas's Fifth-Degree Assault conviction was a crime of moral turpitude.

I. BIA AUTHORITY TO ORDER AN ALIEN REMOVED

Solano-Chicas asserts that the BIA has authority to affirm or reverse an order of an IJ, but cannot order an alien removed on its own. If that is true, the BIA acted beyond the scope of its power in this case by ordering Solano-Chicas removed, and its order to that effect is a nullity. Without a final order of removal, we would have no jurisdiction to consider the petition.

To our knowledge, only one circuit has considered this issue, and it favors Solano-Chicas's position.3 In Molina-Camacho v. Ashcroft, 393 F.3d 937 (9th Cir. 2004), the court was presented with precisely the situation we have. The petitioner, a removable alien from Mexico, was granted cancellation of removal by the IJ. The government appealed, and the BIA reversed and entered an order removing Molina-Camacho. In his petition for review, Molina-Camacho argued that the BIA acted beyond its power when it ordered him removed, because removal authority was vested solely in the IJ. The Ninth Circuit agreed; in reviewing the Immigration and Naturalization Act, the court noted that the BIA, as an appellate body, was essentially tasked with affirming or reversing IJ decisions. Id. at 940. The court opined that the BIA did not, however, have authority to issue orders of removal in the first instance. Id. Thus, even though the IJ had found Molina-Camacho removable and the BIA had reversed the IJ's decision cancelling removal the actual order of removal was still left up to the IJ, not the BIA. Id. at 941 ("The Government's reasoning is also flawed because it conflates the BIA's uncontested substantive power to reverse a finding of removability or eligibility for cancellation of removal on appeal with the procedural power to issue the order of removal that results from such a reversal.").4

With respect, we part ways with the Ninth Circuit in this case. There can be no doubt that the IJ in the first instance possesses the power to determine whether an alien is removable, 8 U.S.C. § 1229a(a)(1), and to order an alien deported, 8 U.S.C. § 1101(a)(47)(A). Once a finding of removability has been made, the burden is on the alien to show that he or she is eligible for relief from removal. 8 U.S.C. § 1229a(c)(4)(a). Absent that showing, however, an order of removal is appropriately entered by an IJ, and becomes final, inter alia, upon an order from the BIA affirming the IJ's order. 8 U.S.C. § 1101(a)(47)(A) & (B). Thus, it follows that where the BIA reverses the IJ's order granting cancellation of removal, the BIA, in essence, gives effect to the IJ's order of removability, for the BIA decision eliminates the impediments to removal. It would be an imprudent expenditure of resources to require that the case nonetheless be remanded to the IJ for an actual order of removability to be entered, a proposition that we believe neither Congress nor the Attorney General intended.

Recent amendments to the applicable regulations convince us that our approach is consistent with the intent of the Attorney General. In order to ensure that aliens are properly documented prior to the grant of immigration relief, the regulations have been amended to require an investigation into the identity of the alien. See 70 Fed.Reg. 4743, 4752-53 (Jan. 31, 2005) (amending 8 C.F.R. § 1003.1). The amendment is telling: it requires that such an investigation be completed before the BIA issues any decision "affirming or granting to an alien an immigration status, relief or protection from removal, or other immigration benefit." 8 C.F.R. § 1003.1(d)(6)(i) (Apr. 1, 2005) (emphasis added). Thus, contrary to the Ninth Circuit's view, the BIA's power is not just one of merely affirming or reversing IJ decisions; it may order relief itself. Compare Molina-Camacho, 393 F.3d at 940 (holding that "nothing in the regulations enumerating the powers of the BIA indicates that the scope of those powers goes beyond appellate review of immigration judges' decisions and other `administrative adjudications'" (quoting 8 C.F.R. 1003.1(d)(1))), with 8 C.F.R. 1003.1(d)(6)(i) (presuming the BIA maintains the power to "grant" immigration relief). We find it entirely consistent that the BIA also may deny status and order an alien removed.

II. REVIEW OF THE CANCELLATION OF REMOVAL DECISION

The Immigration and Naturalization Act limits our jurisdiction to review discretionary decisions of the BIA. Reyes-Vasquez v. Ashcroft, 395 F.3d 903, 906 (8th Cir.2005). As such, we may not generally review the BIA's decision to deny an alien cancellation of removal. Id. We retain the power,...

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