Dominguez-Herrera v. Sessions, 15-3457

• Citation: 850 F.3d 411
• Decision Date: 07 March 2017
• Docket Number: No. 15-3457,15-3457
• Parties: Ismael DOMINGUEZ-HERRERA; Lidia Cristina Hernandez-Martinez, Petitioners v. Jefferson B. SESSIONS, III, Attorney General of the United States, Respondent
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

850 F.3d 411

Ismael DOMINGUEZ-HERRERA; Lidia Cristina Hernandez-Martinez, Petitioners

v.Jefferson B. SESSIONS, III, Attorney General of the United States¹ , Respondent

No. 15-3457

United States Court of Appeals, Eighth Circuit.

Submitted: November 17, 2016

Filed: March 7, 2017

Counsel who presented argument on behalf of the petitioner and appeared on the brief was Matthew Lorn Hoppock, of Overland Park, KS.

Counsel who presented argument on behalf of the respondent and appeared on the brief was Sabatino F. Leo, O.I.L., of Washington, DC.

Before RILEY, Chief Judge, WOLLMAN and KELLY, Circuit Judges.

KELLY, Circuit Judge.

Petitioners Lidia Cristina Hernandez-Martinez and Ismael Dominguez-Herrera, a married couple, appeal the denial of their consolidated applications for cancellation of removal under section 240A(b) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1229b(b)(1). Because the petitioners have failed to meet their burden under the REAL ID Act to establish their eligibility for cancellation of removal, we deny their petition. See 8 U.S.C. § 1229a(c)(4).

I. Background

Hernandez-Martinez and Dominguez-Herrera are non-permanent residents of the United States. On February 17, 2011, the Department of Homeland Security served Hernandez-Martinez with a Notice to Appear, charging her with deportability under section 237(a)(1)(B) of the INA, 8 U.S.C. § 1227(a)(1)(B), on the grounds that she was an alien who had remained in the country longer than permitted. On April 26, 2012, she submitted a written pleading admitting to the factual allegations of the Notice to Appear and conceding removability. On August 9, 2011, the Department of Homeland Security served Dominguez-Herrera with a Notice to Appear, charging him with inadmissibility under section 212(a)(6)(A)(i) of the INA, 8 U.S.C. § 1182(a)(6)(A), on the grounds that he was an alien present in the country without being admitted or paroled. He admitted the factual allegations of the Notice to Appear, and an immigration judge (IJ) found that he was subject to removal on September 8, 2011.

Both petitioners applied for cancellation of removal under section 240A(b) of the INA, 8 U.S.C. § 1229b(b)(1), which provides, "The Attorney General may cancel removal of, and adjust to the status of an alien lawfully admitted for permanent residence, an alien who is inadmissible or deportable from the United States if the alien" meets certain conditions. One condition is that the alien has not been convicted of an offense under 8 U.S.C. § 1227(a)(2). The IJ concluded, and the BIA affirmed, that both petitioners had committed an offense described in 8 U.S.C. § 1227(a)(2)(A)(i) : "a crime involving moral turpitude ... for which a sentence of one year or longer may be imposed." Specifically, the IJ concluded that Hernandez-Martinez had been convicted of theft in the municipal court of Hutchinson, Kansas, and Dominguez-Herrera had been convicted of theft in the municipal court of Great Bend, Kansas. Both Hutchinson and Great Bend have adopted the Kansas Uniform Public Offense Code (UPOC). The IJ concluded that each petitioner was convicted of theft under UPOC § 6.1. The relevant version of UPOC § 6.1 provides, in part:

Theft is any of the following acts done with the intent to deprive the owner permanently of the possession, use or benefit of the owner's property:

(a) Obtaining or exerting unauthorized control over property;

(b) Obtaining by deception control over property;

(c) Obtaining by threat control over property; or

(d) Obtaining control over stolen property knowing the property to have been stolen by another.

In determining that each petitioner was convicted of theft under UPOC § 6.1, the IJ relied on various municipal court documents. With respect to Hernandez-Martinez, the record includes: a complaint charging Hernandez-Martinez with violating UPOC § 6.1(a); a form titled Waiver of Right to Counsel and Trial, which states that Hernandez-Martinez was charged with theft under the UPOC; and a court docket sheet indicating that Hernandez-Martinez pleaded guilty to a violation of UPOC § 6.1(a). With respect to Dominguez-Herrera, the only document in the record is an Abstract of Conviction, which states Dominguez-Herrera was convicted of "theft" in violation of "21-3701." Kan. Stat. Ann. § 21-3701 (recodified effective July 1, 2011 at § 21-5801) is a state criminal statute that is nearly identical to UPOC § 6.1.

Thus, the IJ concluded the petitioners were not eligible for cancellation of removal, and ordered the petitioners to be removed. The Board of Immigration Appeals (BIA) affirmed, and the petitioners filed the present petition for review.

II. Discussion

The petitioners appeal the BIA's conclusions on three grounds: (1) that the municipal judgments against them are not criminal convictions; (2) that the offenses were not crimes involving moral turpitude; and (3) that the maximum penalty possible for each offense was less than a year.

Under 8 U.S.C. § 1252(a)(2)(B)(i), "no court shall have jurisdiction to review" the denial of cancellation of removal under § 1229b. "Even so, this court has jurisdiction of ‘constitutional claims or questions of law raised upon a petition for review.’ " Solis v. Holder , 647 F.3d 831, 832 (8th Cir. 2011) (quoting 8 U.S.C. § 1252(a)(2)(D) ). Thus, we have jurisdiction "to review the nondiscretionary determinations underlying a denial of an application for cancellation of removal, such as the ‘predicate legal question whether the [BIA] properly applied the law to the facts in determining an individual's eligibility to be considered for the relief.’ " Id. (alteration in original) (quoting Solano-Chicas v. Gonzales , 440 F.3d 1050, 1055 (8th Cir. 2006) ).

"We review questions of law de novo and accord substantial deference to the BIA's interpretation of immigration law and agency regulations." Bernal-Rendon v. Gonzales , 419 F.3d 877, 880 (8th Cir. 2005). "Congress has not defined the phrase ‘crime involving moral turpitude,’ and the meaning of that phrase was left ‘to future administrative and judicial interpretation.’ " Chanmouny v. Ashcroft , 376 F.3d 810, 811 (8th Cir. 2004) (quoting Franklin v. INS , 72 F.3d 571, 572 (8th Cir. 1995) ). Thus, we generally accord Chevron deference to the BIA's interpretation of the phrase, and will "uphold its construction as long as it is reasonable." Id. ; see Chevron , U.S.A. , Inc. v. Natural Res. Def. Council, Inc. , 467 U.S. 837, 842–44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). However, Chevron deference applies only to "agency action that ‘carries the force of law.’ " Godinez-Arroyo v. Mukasey , 540 F.3d 848, 850 (8th Cir. 2008) (alteration omitted) (quoting United States v. Mead Corp. , 533 U.S. 218, 221, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001) ). We have previously acknowledged that an unpublished BIA opinion, like the one in this case, "may lack the force of law and Chevron deference may be inappropriate." Id. But even if Chevron deference would not be appropriate, an unpublished BIA opinion would be entitled to "a lesser form of deference" under Skidmore v. Swift & Co. , 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944). Id. Under Skidmore , an agency's non-binding opinion is accorded weight "depend[ing] upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade." Skidmore , 323 U.S. at 140, 65 S.Ct. 161. We need not decide whether Chevron or Skidmore deference is appropriate in this case, because even applying the lesser Skidmore deference, we affirm the BIA's decision. See Godinez-Arroyo , 540 F.3d at 851.

A. Criminal conviction

The petitioners first argue that the municipal judgments against them were for infractions, not criminal convictions. Congress has defined "conviction" to mean "a formal judgment of guilt of the alien entered by a court." 8 U.S.C. § 1101(a)(48)(A). The BIA has interpreted "a formal judgment of guilt of the alien" to refer to a judgment of guilt in a criminal proceeding. See In re Eslamizar , 23 I. & N. Dec. 684, 687 (B.I.A. 2004). A criminal proceeding, the BIA has explained, is "a trial or other proceeding whose purpose is to determine whether the accused committed a crime and which provides the constitutional safeguards normally attendant upon a criminal adjudication." Id. In determining whether a judgment is a criminal conviction, the BIA considers several factors, including how the relevant state classifies the judgment and whether each element of the offense must be proven beyond a reasonable doubt. See id. at 687–88.

In Matter of Cuellar-Gomez , the BIA applied the Eslamizar test to a Wichita, Kansas, municipal judgment for the offense of possession of marijuana, and found that it was a criminal conviction. 25 I. & N. Dec. 850, 853 (B.I.A. 2012). The BIA relied primarily on three circumstances: that Kansas state law gives municipal court judges the "authority to enter judgments of guilt in marijuana possession cases, and to impose fines or order the incarceration of defendants against whom judgments of guilt are entered"; that Kansas state law requires that the prosecution must prove every element of the charge beyond a reasonable doubt for a municipal judgment to be entered; and that Kansas state courts consider a municipal judgment to be a conviction for purposes of calculating a defendant's criminal history when sentencing the defendant for a subsequent state crime. Id. at 853.

In this case, the IJ concluded that the Great Bend and Hutchinson municipal judgments were not distinguishable from the Wichita judgment in Cuellar-Gomez . However, the petitioners contend they have identified various circumstances that were not considered in Cuellar-Gomez and that demonstrate the municipal judgments at hand are not criminal convictions under the Eslamizar test.² The petitioners additionally argue that the BIA erred in determining that Dominguez-Herrera's...