Sinotes-Cruz v. Gonzales
| Decision Date | 22 November 2006 |
| Docket Number | No. 04-70745.,04-70745. |
| Citation | 468 F.3d 1190 |
| Court | U.S. Court of Appeals — Ninth Circuit |
| Parties | Joaquin SINOTES-CRUZ, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent. |
Kelly A. Evans, Jeffrey F. Barr, Snell & Wilmer, Las Vegas, NV, Joaquin Sinotes-Cruz, Pro Se, Tucson, AZ, Lynn Marcus, University of Arizona, Tucson, AZ, for the petitioner.
David V. Bernal, Andrew C. MacLachlan, U.S. Department of Justice, Washington, D.C., for the respondent.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A91-427-266.
Before ALEX KOZINSKI and WILLIAM A. FLETCHER, Circuit Judges, and H. RUSSEL HOLLAND,* District Judge.
Petitioner Jose Joaquin Sinotes-Cruz petitions for review from an order of removal. We hold that the government has introduced sufficient evidence to carry its burden of proof that Sinotes-Cruz is removable. We also hold, based on INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), that the permanent stop-time rule of § 240A(d)(1) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1229b(d)(1), may not be applied retroactively to prevent Sinotes-Cruz from fulfilling the sevenyear continuous residence requirement of INA § 240A(a)(2), 8 U.S.C. § 1229b(a)(2), for cancellation of removal. Finally, we hold that Sinotes-Cruz does not need a waiver of deportation under INA § 212(c), 8 U.S.C. § 1182(c) (repealed 1996), in order to be eligible for cancellation of removal. Thus we do not reach the question whether Sinotes-Cruz may simultaneously apply for waiver of deportation under § 212(c) and for cancellation of removal under § 1229b(a).
We therefore grant Sinotes-Cruz's petition and remand for further proceedings consistent with this opinion.
Sinotes-Cruz petitions for review of the Board of Immigration Appeals' ("BIA") order requiring that he be removed to Mexico. He initially entered the United States without inspection in 1981. He was granted lawful temporary resident status in May 1988. He was granted lawful permanent resident status in June 1990.
On June 2, 1993, before the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Sinotes-Cruz pled guilty to two counts of attempted aggravated assault in violation of Arizona Revised Statutes §§ 13-1001(C)(3), 13-1204(A)(2) and (B). Imposition of sentence was "suspended," and he was placed on four years probation. On August 6, 1997, after the enactment of IIRIRA, he pled guilty to "[c]hild or vulnerable adult abuse" in violation of Arizona Revised Statutes §§ 13-3623(C)(2) and 13-902(E). Sentence was again "suspended," and he was placed on three years probation.
On October 2, 2000, the former Immigration and Naturalization Service ("INS")1 commenced removal proceedings against Sinotes-Cruz by serving him with a Notice to Appear. The notice charged removability on two grounds. First, it charged removability under INA § 237(a)(2)(A)(ii), 8 U.S.C. § 1227(a)(2)(A)(ii), for having been convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct. The two predicate convictions were either of the two attempted aggravated assault convictions in 1993, plus the "child abuse" conviction in 1997. Second, it charged removability under INA § 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i), for having been convicted of the crime of child abuse in 1997.
On February 13, 2001, the INS added a third charge of removability under INA § 237(a)(2)(A)(i), 8 U.S.C. § 1227(a) (2)(A)(i), for having been convicted of a crime involving moral turpitude, which was committed within five years of admission, and for which a sentence of one year or longer could have been imposed. The predicate conviction for this charge was either of the two attempted aggravated assault convictions in 1993. Sinotes-Cruz was admitted in May 1988, when he was granted temporary resident status. The date of the crimes underlying the two convictions was March 1993, just short of five years after Sinotes-Cruz's admission.
Although he had brief-writing and other assistance from a law school immigration clinic, Sinotes-Cruz appeared pro se during the proceedings in the Immigration Court. Sinotes-Cruz did not contest his removability in those proceedings. Instead, he filled out Form EOIR-42A, requesting cancellation of removal under § 1229b(a). He later asked, in the alternative, for simultaneous waiver of deportation under § 212(c) and cancellation of removal under § 1229b(a).
In a written decision, the Immigration Judge ("IJ") stated that Sinotes-Cruz "admitted the allegations and conceded removability under the charges." Based on Sinotes-Cruz's "admissions and concessions," the IJ held that he was removable under the two initial charges of removability. The IJ did not directly address the third charge. The IJ further held that Sinotes-Cruz was ineligible for cancellation of removal because under the stop-time rule of § 1229b(d)(1) either of his 1993 convictions stopped the accrual of the seven years of continuous residence required for cancellation of removal. See 8 U.S.C. § 1229b(d)(1). Because neither of the first two charges of removability would have triggered the operation of the stop-time rule under § 1229b(d)(1) in a manner detrimental to Sinotes-Cruz's accumulation of seven years of continuous presence, the IJ necessarily, but implicitly, also found that Sinotes-Cruz was removable under the third charge. Finally, the IJ held that Sinotes-Cruz could not apply simultaneously for a waiver of deportation under § 212(c) and cancellation of removal under § 1229b(a). In the IJ's view, this conclusion was necessary to support an order of removal because he believed that a waiver of deportation under § 212(c) would have allowed Sinotes-Cruz to escape the stop-time rule that would otherwise have stopped the accrual of his seven years of continuous residence. Based on these holdings, the IJ entered an order of removal allowing voluntary departure.
The BIA affirmed. It held that Sinotes-Cruz was removable, but it did not base its decision on Sinotes-Cruz's purported admissions; instead, it relied on electronically transmitted records of conviction introduced into evidence by the government. It further held that the IJ had properly applied the stop-time rule to the seven-year continuous residence requirement. Finally, it held that Sinotes-Cruz could not simultaneously apply for waiver of deportation under § 212(c) and cancellation of removal under § 1229b(a).
Sinotes-Cruz timely filed a petition for review in this court.
When the BIA conducts an independent review of the IJ's findings we review the BIA's decision and not that of the IJ. Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir.2004). To the extent the BIA incorporates the IJ's decision as its own, we treat the IJ's statements of reasons as the BIA's and review the IJ's decision. Gonzalez v. INS, 82 F.3d 903, 907 (9th Cir.1996). We may review a decision on a point of law raised for the first time on appeal to the BIA if the BIA considers that point on the merits. See Sagermark v. INS, 767 F.2d 645, 648 (9th Cir.1985).
The BIA's interpretation and application of the immigration laws are generally entitled to deference. Ma v. Ashcroft, 361 F.3d 553, 558 (9th Cir.2004). However, we are not obligated to accept an interpretation that is demonstrably irrational or clearly contrary to the plain and sensible meaning of the statute. Jahed v. INS, 356 F.3d 991, 997 (9th Cir.2004).
Whether a particular conviction is a removable offense is a question of law reviewed de novo. Lara-Chacon v. Ashcroft, 345 F.3d 1148, 1151 (9th Cir.2003) (as amended). Legal determinations regarding an alien's eligibility for cancellation of removal are reviewed de novo. See Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1145 (9th Cir.2002). Whether application of IIRIRA is impermissibly retroactive presents a question of law that is reviewed de novo. See Jimenez-Angeles v. Ashcroft, 291 F.3d 594, 599-600 (9th Cir.2002).
The government has argued that under INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C), we lack jurisdiction to review the petition. However, this argument was made prior to the enactment of the REAL ID Act of 2005. Pub.L. No. 109-13, 119 Stat. 231, 310 (2005). Section 106(a)(1)(A)(iii) of the Act amended 8 U.S.C. § 1252 to add a new subsection. That subsection provides: "Nothing in subparagraph (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 filed with an appropriate court of appeals in accordance with this section." 8 U.S.C. § 1252(a)(2)(D). We are presented with reviewable questions of law.
We take the BIA's three holdings in turn—proof of removability, operation of the "stop-time" rule, and simultaneous applications for a waiver of deportation under § 212(c) and cancellation of removal under § 1229b(a).
The government has the burden to prove "by clear and convincing evidence" that an alien is removable. INA § 240(c)(3)(A), 8 U.S.C. § 1229a(c)(3)(A). A determination of removability by an IJ or the BIA must be "based upon reasonable, substantial, and probative evidence." Id. To determine whether a prior conviction supports a removal order, we first apply the "`categorical' approach, `looking only to the statutory definition[ ] of the prior offense.'" Tokatly v. Ashcroft, 371 F.3d 613, 620 (9th Cir.2004) (alteration in original) (quoting Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)). If the statutory definition of the offense of conviction is broader than the definition of the...
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