Alonzo v. Lynch

• Decision Date: 22 April 2016
• Docket Number: No. 15–2024.,15–2024.
• Citation: 821 F.3d 951
• Parties: Gerardo Perez ALONZO, Petitioner v. Loretta E. LYNCH, Attorney General of United States, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

821 F.3d 951

Gerardo Perez ALONZO, Petitioner

v.Loretta E. LYNCH, Attorney General of United States, Respondent.

No. 15–2024.

United States Court of Appeals, Eighth Circuit.

Submitted: Nov. 17, 2015.

Filed: April 22, 2016.

Jessica Maffitt, argued, Des Moines, IA, for Petitioner.

William Clark Minick, argued, Washington, DC, for Respondent.

Before SMITH, BYE, and BENTON, Circuit Judges.

SMITH, Circuit Judge.

Gerardo Perez Alonzo (“Perez”) petitions for review of a decision of the Board of Immigration Appeals (BIA) dismissing his appeal from an immigration judge's (IJ) decision (1) finding him removable under 8 U.S.C. § 1227(a)(2)(A)(ii), for having been convicted of two or more crimes involving moral turpitude (CIMT) not arising out of a single scheme of criminal misconduct, and (2) denying his application for cancellation of removal. The BIA determined that Perez's convictions for domestic abuse assault, third or subsequent offense, in violation of Iowa Code Annotated § 708.2A(4), categorically constitute CIMTs. For the reasons set forth below, we grant the petition for review, vacate the order of removal, and remand to the BIA for proceedings consistent with this opinion.

I. Background

Perez, a native and citizen of Mexico, was admitted to the United States at El Paso, Texas, on September 15, 1998, as a lawful permanent resident. On November 19, 2013, the government initiated removal proceedings against Perez by filing a Notice to Appear (NTA). The NTA charged Perez with removability as an alien convicted of two separate CIMTs under § 237(a)(2)(A)(ii) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1227(a)(2)(A)(ii). The NTA alleged that Perez was convicted on October 18, 2011, in the Iowa District Court “for the offense of Assault Domestic Abuse, Third Offense (FECR172798), in violation of Iowa Code Section 708.2A(4) for which a period of imprisonment of not to exceed 5 years was imposed.” The NTA alleged that on that same date Perez was also convicted in the same court “for the offense of Assault Domestic Abuse, Third or Subsequent Offense (FECR179051), in violation of Iowa Code Section 708.2A(4) for which a period of imprisonment of not to exceed 5 years was imposed.” According to the NTA, “[t]hese crimes did not arise out of a single scheme of criminal misconduct.”

Perez denied the factual allegations related to the criminal convictions set forth in the NTA. The government introduced into evidence an I–213 Record of Deportable/Inadmissible Alien and 41 pages of supporting documents, including six pages of certified conviction records, which showed the following. In August 2004, Perez was convicted in the Iowa District Court “for the offense of Assault Domestic Abuse Causing Bodily Injury in violation of Iowa Code Section 708.2A(2)(b) for which a period of imprisonment of not to exceed 180 days was imposed.” In October 2007, Perez was convicted in the Iowa District Court “for the offense of Assault Domestic Abuse Causing Bodily Injury in violation of Iowa Code Section ... 708.2A(3)(b) for which a period of imprisonment of not to exceed 180 days was imposed.” The documents also set forth Perez's two convictions on October 18, 2011, for third-offense assault domestic abuse under Iowa Code Annotated § 708.2A(4). The “Trial Information” related to the first October 18, 2011 conviction states that

GERARDO A. PEREZ [,] on or about the 12th day of November, 2010, in Black Hawk County, Iowa did:

... assault Lisa Ohlenkamp, a family or household member, a person he/she has resided with during the past year, parents of the same minor children, and did cause bodily injury[.] The defendant having been previously convicted for Assault Domestic Abuse Causing Bodily Injury ... on August 3, 2004, ... and Assault Domestic Abuse 2nd Offense ... on October 15, 2007, ... in violation of Section 708.2A(4) of the Iowa Criminal Code.

The “Trial Information” related to the second October 18, 2011 conviction provides that

GERARDO A. PEREZ [,] on or about the 27th day of September, 2011, in Black Hawk County, Iowa did:

... assault Lisa Ohlenkamp, a family or household member, a person he/she has resided with during the past year, parents of the same minor children[.] The defendant having been previously convicted for Assault Domestic Abuse Causing Bodily Injury ... on August 3, 2004, and Assault Domestic Abuse Causing Bodily Injury ... on October 15, 2007, ... in violation of Section 708.2A(4) of the Iowa Criminal Code.

Perez objected to introduction of these documents and moved to terminate proceedings, asserting that he was not removable as charged. The IJ received the documents into evidence, denied Perez's motion to terminate, and found him removable as charged. In making this finding, the IJ applied “[t]he Silva–Trevino [I ]¹ framework[, which] retain[s] the basic categorical approach but sets forth a three-step process for determining whether a conviction [under a particular criminal statute] is a CIMT.” Villatoro v. Holder, 760 F.3d 872, 876 (8th Cir.2014) (fifth alteration in original) (footnote, quotation, and citation omitted). “Under this approach, the inquiry is terminated if the statute at issue categorically either requires or excludes conduct involving moral turpitude.” Id. at 877 (quotation and citation omitted). However, if “a realistic probability” exists “that the statute could be applied to encompass conduct that does not involve moral turpitude, as well as conduct that does, the inquiry must continue to a second step of analysis.” Id. (quotations and citation omitted). “Under step two, if the categorical inquiry does not resolve the question, look to the alien's record of conviction, including documents such as the indictment, the judgment of conviction, jury instructions, a signed guilty plea, and the plea transcript.” Id. at 877 n. 3 (quotations and citations omitted). Finally, “if the record of conviction does not resolve the inquiry,” the adjudicator proceeds to step three and “consider[s] any additional evidence the adjudicator determines is necessary or appropriate to resolve accurately the moral turpitude question.” Id. (quotation and citation omitted).

Applying step one of the Silva–Trevino I framework, the IJ first concluded that Perez's convictions are not categorically CIMTs. The IJ reasoned that although Iowa's definition of assault “requires intentional conduct, it encompasses de minimis harm, such as insulting or offensive physical contact.” “Proceeding to the modified categorical approach,” the IJ found that Perez's “records of conviction resolve the CIMT inquiry with respect to one of the two assaults in question.” He noted that “both assaults were on a person with whom [Perez] shared a ‘familial’ relationship of trust and dependency” and concluded that this constituted “an aggravating factor that elevates the moral depravity of his conduct.” (Citing In re Tran, 21 I. & N. Dec. 291, 294 (BIA 1996).) He then pointed out that while “[t]he Trial Information for the November 12, 2010, assault states that [Perez] ‘did cause bodily injury’ to his victim,” the Trial Information for the September 27, 2011 assault “d[oes] not indicate that the assault caused bodily injury or involved the infliction of any tangible harm.” (Citations omitted.) As a result, the IJ found that “the second assault may have involved mere offensive touching or other de minimis harm, and cannot be deemed a CIMT based upon the record of conviction.” (Citing In re Solon, 24 I. & N. Dec. 239, 241 (BIA 2007).) Applying the third step of the Silva–Trevino I framework, the IJ then examined “any other ‘necessary or appropriate’ evidence in the record.” (Quoting Silva–Trevino I, 24 I. & N. Dec. at 704.) He found that “police reports indicate that [Perez's] September 27, 2011, assault involved not mere offensive physical contact, but serious bodily harm.” (Citation omitted.) Based on the records of conviction and this additional evidence, the IJ concluded that Perez's two October 18, 2011 convictions for domestic abuse assault, third or subsequent offense, in violation of Iowa Code Annotated § 708.2A(4), constitute CIMTs because they “involved intentional conduct, were committed against a person with whom [Perez] shared a familial relationship, and resulted in actual bodily injury.” Perez subsequently filed an application for cancellation of removal for a non-permanent resident, which the IJ denied as a matter of discretion. The IJ denied Perez's request for voluntary departure and ordered that he be removed to Mexico.

Perez appealed to the BIA, which dismissed his appeal. The BIA concluded that “even though a single domestic violence conviction, under the Iowa statute at issue, would not constitute a [CIMT], [Perez's] third and fourth recidivist convictions for domestic violence do constitute turpitudinous crimes.” As a threshold matter, the BIA recognized that for an assault offense to be a CIMT, it must “require the infliction of some ‘tangible harm’ to the victim.” (Quoting In re Sanudo, 23 I. & N. Dec. 968, 972 (BIA 2006).) Examining Iowa's assault statute, Iowa Code Annotated § 708.1, the BIA “note [d] that the statute does not require the actual infliction of any harm to the victim[,] such that the actual infliction of harm and/or resultant injury is not an element of the offense.” But because Perez had two convictions for “a third or subsequent offense of domestic abuse assault” under Iowa Code Annotated § 708.2A(4), the BIA characterized the issue as whether those two convictions “involve an aggravating factor or factors such that they constitute [CIMTs].”

Two cases informed the BIA's conclusion that aggravating factors may transform an otherwise non-CIMT offense into a CIMT: In re Lopez–Meza, 22 I. & N. Dec. 1188 (BIA 1999), and In re Torres–Varela, 23 I. & N. Dec. 78 (BIA 2001). The BIA observed that in Lopez–Meza, it had held that a “ ‘simple DUI’ offense” under Arizona law is not a CIMT because it lacks a culpable mental state...