Torres-Valdivias v. Lynch

• Decision Date: 11 August 2014
• Docket Number: No. 11–70532.,11–70532.
• Citation: 786 F.3d 1147
• Parties: Jose Guadalupe TORRES–VALDIVIAS, aka Guadalupe Torres, Petitioner, v. Loretta E. LYNCH, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

786 F.3d 1147

Jose Guadalupe TORRES–VALDIVIAS, aka Guadalupe Torres, Petitioner

v.Loretta E. LYNCH, Attorney General, Respondent.

No. 11–70532.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 11, 2014.

Amended May 8, 2015.

Lamar Peckham, Santa Rosa, CA, for Petitioner.

Stuart F. Delery, Acting Assistant Attorney General, Civil Division, Mary Jane Candaux, Assistant Director, Kiley L. Kane, Senior Litigation Counsel, and Gary J. Newkirk (argued), Trial Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.

Mary Kenney, Washington, D.C., for Amicus Curiae American Immigration Council.

Zachary Nightingale, Avantika Shastri, and Genna Beier, Van Der Hout, Brigagliano & Nightingale, LLP, San Francisco, California, for Amicus Curiae Immigrant Legal Resource Center.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A079–643–573.

Before: BARRY G. SILVERMAN and RICHARD R. CLIFTON, Circuit Judges, and DERRICK KAHALA WATSON, District Judge.^*

ORDER

The opinion filed September 5, 2014 , is AMENDED as follows:

1. Section III.C.3, the four-paragraph section that appears on pages 15 [766 F.3d at 1113–14] through 17 of the slip opinion, including footnotes 4 and 5, is deleted.

2. The third sentence of the first full paragraph on page 4 of the slip opinion currently reads as follows:

Finally, we uphold the BIA's extension of the Matter of Jean standard to adjustment of status applications under 8 U.S.C. § 1255.

The sentence is amended to read as follows:

Finally, we uphold the BIA's application of the Matter of Jean standard to adjustment of status applications under 8 U.S.C. § 1255.

3. The last sentence of the first paragraph of § III.C on page 11 of the slip opinion currently reads as follows:

We disagree, and we uphold the BIA's decision to apply Matter of Jean to cases that would previously have been governed by Matter of Arai, provided the alien has been convicted of a violent or dangerous crime.

The sentence is amended to read as follows:

We disagree, and we uphold the BIA's conclusion that Matter of Jean applies to applications for adjustment of status under § 245 in which the alien has been convicted of a violent or dangerous crime.

4. The third sentence of the first paragraph of § IV on page 17 of the slip opinion currently reads as follows:

Finally, the BIA did not err in extending the Matter of Jean standard to the context of adjustment of status applications under 8 U.S.C. § 1255.

The sentence is amended to read as follows:

Finally, the BIA did not err in holding that the Matter of Jean standard applies to the context of adjustment of status applications under 8 U.S.C. § 1255, a conclusion compelled by the published decisions in Matter of Jean and Matter of K–A–.

With these amendments, the panel has voted to deny the petition for panel rehearing. Judges Silverman and Clifton have voted to deny the petition for rehearing en banc, and Judge Watson has so recommended.

The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.

The Petition for Rehearing and Petition for Rehearing En Banc, filed on December 19, 2014, is DENIED.

No further petitions for rehearing following this amendment may be filed.

CLIFTON, Circuit Judge:

OPINION

Petitioner Jose Guadalupe Torres–Valdivias petitions for review of a Board of Immigration Appeals' (“BIA”) decision upholding a final order of removal against him. In deciding this case, we consider the scope of the Attorney General's decision in Matter of Jean, 23 I. & N. Dec. 373 (Att'y Gen.2002), which established a heightened standard that aliens convicted of violent or dangerous crimes must satisfy to be granted discretionary relief from removal.

Torres–Valdivias was placed in removal proceedings, where he applied for and was denied adjustment of status under 8 U.S.C. § 1255(i). The BIA held that Torres–Valdivias's sexual battery conviction was a violent or dangerous crime and, on that basis, applied the Matter of Jean standard to guide the exercise of its discretion. In making the violent or dangerous crime determination, the BIA considered the facts underlying Torres–Valdivias's sexual battery offense as testified to by Torres–Valdivias at his removal hearing and as stated in police reports from the time of the offense. Applying the Matter of Jean standard, the BIA denied Torres–Valdivias's adjustment of status application, as a matter of discretion.

We uphold the BIA's decision not to apply the categorical approach in the context of its discretionary decisions, such as the one at issue here. We also conclude that, where the correct legal standard is applied, the ultimate determination of whether a crime was violent or dangerous under Matter of Jean is discretionary and therefore unreviewable under 8 U.S.C. § 1252(a)(2)(B). Finally, we uphold the BIA's application of the Matter of Jean standard to adjustment of status applications under 8 U.S.C. § 1255. Accordingly, we dismiss in part and deny in part Torres–Valdivias's petition for review.

I. Background

Petitioner Jose Guadalupe Torres–Valdivias, a native and citizen of Mexico, has resided in the United States since coming in illegally in 1989. He married a U.S. citizen, through whom he was granted conditional permanent resident status in 2003. That status was revoked in 2006, however, as a result of a 2001 conviction for sexual battery in violation of California Penal Code § 243.4(a). Upon revocation of his status, Torres–Valdivias was charged with being an alien illegally present in the United States and therefore removable under 8 U.S.C. § 1182(a)(6)(A)(i).

In removal proceedings in front of an Immigration Judge (“IJ”), Torres–Valdivias applied for adjustment of status under 8 U.S.C. § 1255(i). In adjudicating this application, the IJ considered the facts underlying Torres–Valdivias's sexual battery conviction, including the facts as stated in his testimony at the removal hearing and as described in the police reports from the time of the offense. The facts found by the IJ are not in dispute:

[Torres–Valdivias] first said that when he was 14 or 15, and the victim, his stepsister, was 10 or 11, he touched her on her breasts and vagina over her clothing once. He repeated this activity one more time, about a year later. He insisted he did nothing else. Later, after being confronted with the police reports in the case, he admitted that he touched her vagina while the victim was not wearing clothes. He subsequently admitted to forcing his finger into her vagina, and also getting on top of her and simulating sexual intercourse. [Torres–Valdivias] denied putting his penis into his stepsister's vagina and denied engaging in oral sex with her.

The IJ concluded that Torres–Valdivias's crime of sexual battery “was quite clearly violent or dangerous” and applied the heightened standard for granting discretionary relief from removal to violent or dangerous criminals established in Matter of Jean . Under this heightened standard, the IJ concluded, as a matter of discretion, that Torres–Valdivias's adjustment of status application should be denied and therefore ordered him removed.

Torres–Valdivias appealed to the BIA. On appeal, a three-member panel of the BIA agreed with the IJ's application of the heightened Matter of Jean standard to an adjustment of status application but remanded for the IJ to further analyze whether Torres–Valdivias's offense was a violent or dangerous crime warranting application of that standard.

On remand, the IJ incorporated his prior decision by reference and provided more detailed facts and further legal analysis.¹ The IJ again concluded that Torres–Valdivias's crime of sexual battery constituted a violent or dangerous crime and denied, as a matter of discretion, his application for adjustment of status. The IJ again ordered Torres–Valdivias removed and certified the case back to the BIA. The BIA adopted and affirmed the IJ's decision under Matter of Burbano, 20 I. & N. Dec. 872 (BIA 1994).

Torres–Valdivias timely petitioned this court for review of the final order of removal entered against him.

II. Jurisdiction and Standard of Review

The Immigration and Nationality Act (“INA”) bars this court from exercising jurisdiction over various discretionary decisions of the immigration authorities, including “any judgment regarding the granting of relief under” 8 U.S.C. § 1255. 8 U.S.C. § 1252(a)(2)(B)(i). The BIA's ultimate discretionary decision to deny Torres–Valdivias adjustment of status under 8 U.S.C. § 1255(i) is therefore unreviewable. Pursuant to 8 U.S.C. § 1252(a)(2)(D), however, this court retains jurisdiction over constitutional questions and questions of law. We review questions of law de novo. Annachamy v. Holder, 733 F.3d 254, 258 (9th Cir.2013).

III. Discussion

Torres–Valdivias's petition for review raises various issues framed as questions of law, namely: (1) whether the BIA erred in not applying the categorical approach in determining whether Torres–Valdivias's crime was violent or dangerous for purposes of applying Matter of Jean ; (2) whether the BIA committed an error of law when it determined that Torres–Valdivias's crime was violent or dangerous; and (3) whether Matter of Jean is applicable in the context of an adjustment of status application under 8 U.S.C. § 1255(i).² With respect to the first and third issues, we agree with Torres–Valdivias that they present questions of law but disagree with him on the merits. With respect to the second issue, however, we conclude that it presents a challenge to a discretionary decision of the BIA and that we therefore lack jurisdiction to review it.

A. Applicability of the Categorical Approach

The heightened standard of Matter of Jean applies by its own terms only to aliens convicted of violent or dangerous crimes. 23 I. & N. Dec. at 383 ; see also Matter of K–A–, ...