Hernandez v. Holder

• Decision Date: 28 July 2014
• Docket Number: No. 13–2832.,13–2832.
• Citation: 760 F.3d 855
• Parties: Ronald HERNANDEZ, Petitioner v. Eric H. HOLDER, Jr., Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

760 F.3d 855

Ronald HERNANDEZ, Petitioner
v.
Eric H. HOLDER, Jr., Respondent.

No. 13–2832.

United States Court of Appeals,
Eighth Circuit.

Submitted: April 16, 2014.
Filed: July 28, 2014.

[760 F.3d 856]

Matthew Lorn Hoppock, argued, Kansas City, MO, for Petitioner.

Leslie McKay, argued, Washington, DC, for Respondent.

Before LOKEN and MURPHY, Circuit Judges, and LIMBAUGH,¹ District Judge.

MURPHY, Circuit Judge.

Ronald Hernandez entered the United States illegally in 1989, and was placed in removal proceedings in 2003. His requests for asylum, cancellation of removal under the Immigration and Naturalization Act (INA), special cancellation of removal under the Nicaraguan Adjustment and Central American Relief Act (NACARA), withholding of removal, and protection under the Convention Against Torture (CAT) were denied by an immigration judge (IJ). The IJ concluded that his 1989 conviction for grand theft auto was an aggravated felony making him ineligible for asylum, cancellation of removal, and special cancellation of removal. She also concluded that Hernandez was not credible and had failed to meet his burden of proving his withholding of removal and CAT claims. The Board of Immigration Appeals affirmed the immigration judge's decision. Hernandez seeks review, arguing that the IJ and the Board erred by determining that his 1989 conviction was an aggravated felony

[760 F.3d 857]

and that he was not credible. We deny the petition.

I.

Ronald Hernandez illegally entered the United States in 1989 from his native El Salvador under the name Jaime de Jesus Huezo. In June 1989 he pled guilty to grand theft auto in California. He was sentenced to three years probation with the condition that he spend the first 365 days in county jail. The sentencing form used by the court shows the presiding judge crossed out the words “Sentenced Imposed as Follows” and checked a box next to “Proceedings Suspended.” The box for “Probation Granted for a Period of Three Years” was checked, and the box for “Sentence Is Suspended” was not.

Hernandez was deported immediately following his sentencing so that he was unable to check in with his probation officer as required under the terms of his probation. He reentered the United States later that year under his birth name, Ronald Hernandez, and was granted temporary protected status in 1990. Hernandez was arrested and sentenced to probation in 1991 for stealing cough medicine for his family and again in 1994 for stealing shoes for himself. Hernandez was later arrested in 1998 after neighbors called police to report an argument between him and his wife. Despite his wife's statement to police that he had not hit her, Hernandez pled guilty to battery. His conviction led to the discovery of his 1989 probation violation, and his probation was revoked. The court then reinstated his probation with the additional condition that he serve 180 days in jail, of which he served 110 days. His record contains no other arrests or convictions.

In 1994, Hernandez filed a second application for asylum in which he claimed his father had been killed in 1985. Later in 2000 an application for special cancellation of removal stated that his father had died in 1972. Hernandez was placed into removal proceedings in December 2003, and in March 2004 he conceded his removability before an immigration judge. The venue of these proceedings changed from California to Missouri when Hernandez moved his family from Los Angeles to Kansas City. Subsequently, Hernandez conceded to a second charge of removability in a 2007 hearing. He then requested asylum, cancellation of removal under the INA, special cancellation under NACARA, withholding of removal, and protection under CAT. The IJ ordered Hernandez removed in April 2009, concluding that he was ineligible for asylum, cancellation of removal, and special cancellation of removal, and that he had failed to meet his burden for withholding of removal or CAT protection.

Hernandez appealed the decision to the Board in August 2009, asserting errors in the hearing transcript. The Board remanded with instructions to correct the errors. The IJ held a new merits hearing in November 2010. At that hearing, Hernandez testified that he was born in El Salvador in 1968 and that his father had been killed by the army or government because of his alleged association with forces opposing the government. Hernandez said that he could not remember the exact date of his father's death, but he believed that it occurred when he himself was “around 13, 14” years old. He testified that death threats were pushed under the door of his home for some time after his father's death and that his mother died a short time later of depression and grief.

Hernandez testified that following the death of his parents and the threats, he sought protection by moving in with a family in El Salvador called the Huezos. The Huezos provided Hernandez with a new birth certificate bearing a new identity:

[760 F.3d 858]

Jaime de Jesus Huezo, born March 30, 1970. Hernandez said he continued to receive death threats at his new home and eventually fled El Salvador for the United States when he was around 19 years old. Hernandez admitted to entering and being deported from the United States under the name Jaime Huezo. He explained that following deportation he reentered the United States under his birth name because “[t]here was an opportunity to go under ... temporary protection for Salvadorans [and] I figured it would be best to do it under my real name.” His wife testified that Hernandez first came into the United States under the Huezo name because that family had been helping him and that he reentered under the Hernandez name because he had finally obtained possession of his original birth certificate. Both of his birth certificates were submitted into evidence, as were his marriage certificate and the birth certificate of his daughters, both United States citizens. The last name of all persons identified in the certificates is “Huezo.”

Hernandez was asked under cross examination whether he was “ever harmed in El Salvador prior to ... coming to the United States for the first time.” He answered that the only time was when he was “about 12 maybe, 13.” He “was arrested for a few days and ... not physically abused but they were pointing the rifles at me and threatening to kill me if I didn't tell them what they wanted to hear.” When he was asked whether he reported this incident in any of his asylum applications, he replied that “I guess I blocked it out. I didn't think it was relevant to anything.” During the hearing, Hernandez provided the death certificate of a person he claimed was a relative, as well as an article about him and numerous articles on gang violence in El Salvador.

At the conclusion of the hearing the IJ determined that Hernandez was ineligible for asylum, cancellation of removal, and special cancellation of removal because of his 1989 conviction for grand theft auto. She concluded that because he had received a “suspended sentence of 365 days in jail and three years of probation” as punishment for the offense, the conviction was an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(G), barring him from receiving the requested relief. She found that Hernandez was not credible due to the inconsistent dates he gave for his father's death, the fact that he reentered the United States under a different name following his deportation in 1989, and his failure to include the fact of his arrest in El Salvador on his asylum applications in 1994 and 2000. The IJ concluded that Hernandez failed to provide corroborating evidence sufficient to overcome his lack of credibility and that even if he had been credible his claims for asylum, withholding of removal, and CAT would have failed. The IJ then denied all his claims, and ordered his removal from the United States. Hernandez appealed to the Board, which adopted the IJ's findings and conclusions.

Hernandez now files this petition for review, arguing that the Board erred in determining that he is ineligible for asylum, cancellation of removal, and special cancellation of removal. He asserts that his 1989 conviction was not an aggravated felony and that he is eligible for asylum even if it was. He also challenges the IJ's adverse credibility determinations.

II.

Decisions by the Board are reviewed as the final decision of the agency. Lateef v. Dep't of Homeland Sec., 592 F.3d 926, 929 (8th Cir.2010). We review Board conclusions of law de novo, deferring to its interpretation of immigration statutes and regulation, id., unless it is “contrary to unambiguous statutory language.”

[760 F.3d 859]

Cuadra v. Gonzales, 417 F.3d 947, 950 (8th Cir.2005) (citing Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843–45, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). If a statute is ambiguous with respect to a specific question, “the question for the court is whether the agency's answer is based on a permissible construction of the statute.” Chevron, 467 U.S. at 843, 104 S.Ct. 2778. Although “[j]udicial review is generally precluded in cases involving aliens who are removable as aggravated felons[,] ... we retain jurisdiction to review constitutional claims or questions of law ... including whether a crime is an aggravated felony.” Armenta–Lagunas v. Holder, 724 F.3d 1019, 1021 (8th Cir.2013) (internal quotation marks and citations omitted).

The starting point for a review of the Board's statutory interpretation is the language of the statute itself. An alien who has been convicted of an “aggravated felony” is ineligible for asylum, 8 U.S.C. §§ 1158(b)(2)(A)(ii), 1158(b)(2)(B)(i), cancellation of removal...