Ballesteros v. Ashcroft

Decision Date14 June 2006
Docket NumberNo. 04-9528.,04-9528.
Citation452 F.3d 1153
PartiesEnrique Colin BALLESTEROS, Petitioner, v. John ASHCROFT, Respondent.
CourtU.S. Court of Appeals — Tenth Circuit

Jeff Joseph, Denver, Colorado, for Petitioner.

Blair T. O'Connor, Senior Litigation Counsel (Emily Anne Radford, Assistant Director, with him on the brief), United States Department of Justice, Civil Division, Office of Immigration Litigation, Washington, D.C., for Respondent.

Before HENRY, McKAY, and TYMKOVICH, Circuit Judges.

McKAY, Circuit Judge.

In 1999, Mr. Ballesteros, a lawful permanent resident of the United States, pleaded guilty to one count of felony possession of a controlled substance. Under the terms of the plea agreement, the Idaho court withheld judgment, and Mr. Ballesteros was placed on three years' probation, which Mr. Ballesteros completed without incident.

Subsequent to Mr. Ballesteros' completion of his probation, the Department of Homeland Security ("DHS") reorganized its detention boundaries and formalized its already-existing policy of detaining in Colorado aliens arrested in Montana and Idaho. In 2003, agents from the U.S. Immigration and Customs Enforcement ("ICE") arrested Mr. Ballesteros in Idaho for immigration violations and transferred him to an immigration detention facility in Aurora, Colorado.

To the immigration judge in Colorado Mr. Ballesteros argued that his previous drug conviction was neither a conviction of a controlled substance offense nor an aggravated felony offense that would qualify him for removal without relief. He argued that, under Ninth Circuit law, a first-time convicted alien who qualified for drug treatment under the Federal First Offender Act ("FFOA") did not have a conviction for immigration purposes. Mr. Ballesteros also filed a motion for change of venue because, he argued, all the important aspects of the case occurred in Idaho and it would be more convenient for potential witnesses to travel to Seattle rather than Colorado.

The immigration judge rejected Mr. Ballesteros' arguments and held that his conviction constituted a conviction of a controlled substance offense and an aggravated felony offense under Tenth Circuit law. Such a conviction would make Mr. Ballesteros ineligible for any relief from removal and render any change in venue meaningless since there would be "no real point in having any witnesses and so the convenience to witnesses [was] not [of] substantial concern. . . ." The immigration judge treated Mr. Ballesteros' motion for change of venue as an improper attempt to secure the benefit of Ninth Circuit law and ordered that Mr. Ballesteros be removed.

Mr. Ballesteros timely filed an appeal to the Board of Immigration Appeals ("BIA") challenging the denial of his change of venue request and the application of Tenth Circuit law to his case. He also argued that the immigration judge improperly applied a previous BIA opinion that defined what constituted an aggravated felony because the BIA opinion post-dated his plea and conviction. The BIA upheld the immigration judge's denial of the change of venue motion as an appropriate exercise of discretion and held that Tenth Circuit law applied in the case. The BIA noted that the Tenth Circuit has often applied its own law to determine whether a conviction from another circuit constituted an aggravated felony.

In response to the allegation that the immigration judge impermissibly applied a BIA case retroactively, the BIA explained that its "prior interpretation of [the aggravated felony statute] was not an administrative `rule' in any meaningful sense" and that moving to a policy of following circuit court authority did not implicate retroactivity concerns. The BIA further held that, even if its previous interpretation were a rule, the Supreme Court has "acknowledged the power of administrative agencies to announce `new rules' through adjudication rather than formal rulemaking and placed the burden of proving detrimental reliance on the opponents of the new rule." Because Mr. Ballesteros did not provide any evidence of detrimental reliance, the BIA held that he had not met his burden, and BIA affirmed the immigration judge's order of removal. Mr. Ballesteros now appeals the BIA's order of removal to this court.1

Mr. Ballesteros argues to this court that (1) Ninth Circuit law should be applied in this case; (2) the change in definition of conviction for immigration purposes violated his settled expectations regarding his plea agreement; (3) the DHS detention boundary reorganization violated his due process rights because the change was not pursuant to the Administrative Procedure Act's ("APA") notice and comment requirements; (4) the BIA's decision denying the motion to change venue constituted an abuse of discretion; and (5) ICE arrested him without a valid warrant, rendering the deportation proceedings unfair.

I. Jurisdiction

Our review of immigration decisions is limited by statute. Congress has eliminated judicial review of both the BIA's discretionary decisions, 8 U.S.C. § 1252(a)(2)(B), and of any "final order of removal against an alien who is removable by reason of having committed" certain offenses, among them aggravated felonies and controlled substance offenses, 8 U.S.C. § 1252(a)(2)(C). But these jurisdictional restrictions are subject to two exceptions. First, we retain jurisdiction to examine certain aspects of an alien's removal, even when removal is for an aggravated felony or controlled substance offense. We have explained that, in reviewing final orders of removal for aggravated felonies, "[c]ourts of appeals have jurisdiction ... `to determine whether the jurisdictional bar applies. [Courts] may therefore decide whether the petitioner is (i) an alien (ii) deportable (iii) by reason of a criminal offense listed in the statute.'" Latu v. Ashcroft, 375 F.3d 1012, 1017 (10th Cir. 2004) (quoting Tapia Garcia v. INS, 237 F.3d 1216, 1220 (10th Cir.2001)). We therefore have jurisdiction to review any of Mr. Ballesteros' claims that challenge the BIA's order of removal by arguing that his plea and conviction do not constitute an offense that warranted removal without relief.

The second exception comes from the recently enacted REAL ID Act. In Calcano-Martinez v. INS, 533 U.S. 348, 350 n. 2, 121 S.Ct. 2268, 150 L.Ed.2d 392 (2001), the Supreme Court recognized a narrow exception to § 1252(a)(2)(C)'s broad jurisdiction-stripping provision and noted that courts of appeals retained "jurisdiction to review `substantial constitutional challenges' raised by aliens who come within the strictures of § 1252(a)(2)(C)." See also Morales Ventura v. Ashcroft, 348 F.3d 1259, 1262 (10th Cir.2003). With the REAL ID Act, Congress expanded this exception to § 1252's jurisdiction-stripping provision. Pub.L. No. 109-13, 119 Stat. 231, 310 (2005). The new subparagraph of § 1252 states that "[n]othing in [1252(a)(2)(B) or (C)], or in any other provision of this chapter (other than this section) which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review...." 8 U.S.C. § 1252(a)(2)(D); see Perales-Cumpean v. Gonzales, 429 F.3d 977, 982 n. 4 (10th Cir.2005). Congress expressly intended this new provision to apply retroactively to all final deportation orders. REAL ID Act § 106(b) (noting that the law applies "to cases in which the final administrative order of removal, deportation, or exclusion was issued before, on, or after the date of enactment [May 11, 2005]."). Consequently, unless another subparagraph of § 1252 precludes our review of Mr. Ballesteros' claims that raise either constitutional or legal questions, we also have jurisdiction to review those claims.2

II. Mr. Ballesteros' Arguments that He Does Not Qualify for Removal Without Relief

Mr. Ballesteros presents two arguments that his past offenses should not qualify for removal without relief. He admits both that he is an alien and that he has a prior conviction, but he disputes the government's position that his prior conviction should subject him to removal without relief. First, he argues that Ninth Circuit law should apply to this case. Second, he argues that a change in the definition of conviction for immigration purposes violated his settled expectations regarding his plea agreement. If Mr. Ballesteros is correct that Ninth Circuit law should apply, then he is entitled to relief from his removal order.

The BIA correctly dismissed Mr. Ballesteros' argument that the BIA should apply Ninth Circuit law to his case. Before the BIA and in his brief to this court, Mr. Ballesteros did not dispute that under Tenth Circuit law his conviction for drug possession constitutes an aggravated felony for immigration purposes. Instead, he argued that Ninth Circuit law controlled the facts of his case. But the choice of law in an immigration decision is not governed by the same kind of choice of law analysis applied in a diversity action. As the BIA noted in its opinion, "an immigration judge should analyze removability and relief issues using only the decisions of the circuit in which he or she sits ... since it is to that circuit that any appeal from a final order of removal must be taken." Further, an alien has "no legal right to have removal proceedings commenced against him in a particular place," Latu, 375 F.3d at 1019, and "no litigant has a right to have the interpretation of one federal court rather than that of another determine his case," Menowitz v. Brown, 991 F.2d 36, 40 (2d Cir.1993).

We routinely apply Tenth Circuit law to determine whether a conviction from another jurisdiction constitutes an aggravated felony or controlled substance offense. See United States v. Castro-Rocha, 323 F.3d 846, 851-52 (10th Cir.2003); Tapia-Garcia v. INS, 237 F.3d 1216, 1221-23 (10th Cir.2001); United States v. Cabrera-Sosa, 81 F.3d 998, 1000-01 (10th Cir.1996). We held in Elkins...

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