Alvarez-Santos v. I.N.S.
| Decision Date | 20 June 2003 |
| Docket Number | No. 01-71478.,01-71478. |
| Citation | 332 F.3d 1245 |
| Parties | Lucio Ricardo ALVAREZ-SANTOS, aka Luciano Ricardo Alvarez aka Lucio Ricardo Alvarez, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Frank P. Sprouls, Law Office of Ricci & Sprouls, San Francisco, CA, for the petitioner-appellant.
Patrick Shen and Michelle Slack, Office of Immigration Litigation, United States Department of Justice, Washington, DC, for the respondent-appellee.
On Petition for Review of an Order of the Board of Immigration Appeals. INS No. A72-137-814.
Before NOONAN, BERZON, and TALLMAN, Circuit Judges.
Lucio Ricardo Alvarez-Santos ("Alvarez-Santos") petitions for review of an Immigration and Naturalization Service ("INS") order removing him for having entered the United States illegally. The pivotal question is whether we lack jurisdiction over his petition because the Board of Immigration Appeals ("BIA"), for another purpose (the denial of voluntary departure), determined that Alvarez-Santos had committed a crime of moral turpitude. We conclude that the pertinent section of the Immigration and Nationality Act ("INA"), § 306(a) of the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), 110 Stat. 3009-546, 607 (1996), (codified at 8 U.S.C. § 1252(a)(2)(C)),1 strips us only of jurisdiction to review orders of removal predicated on commission or admission of a crime, not orders of removal not so predicated.
Reaching the substance of Alvarez-Santos's petition, however, we deny it as without merit.
Alvarez-Santos, a citizen of Guatemala, illegally entered the United States in 1990. He eventually settled in San Rafael, California with Francisca Lopez, another Guatemalan immigrant and worked as a gardener. He and Lopez have since had two children, both United States citizens.
In 1993, Alvarez-Santos filed an application for political asylum, claiming that he feared persecution if forced to return to Guatemala. The application represented that he and his family had been active in the political party "MAS," and that his father and brother were members of the local Civil Defense Patrol, a government-backed organization opposed to the guerillas. Both these affiliations, he maintained, made him a target for the local guerilla group "URNG." The record does not show what action was taken on this application, if any.
Four years later, the Marin County District Attorney's Office charged Alvarez-Santos with spouse abuse.2 Alvarez-Santos initially pleaded guilty but was then permitted to withdraw his plea and enter a "batterer's reeducation program." After Alvarez-Santos successfully completed the program, the District Attorney dismissed the charge.
The INS thereafter initiated removal proceedings. The Notice to Appear ("NTA") charged Alvarez-Santos with removability on two grounds: (1) entering the United States without permission; and, (2) conviction of a crime of moral turpitude. He conceded removability on the first ground but challenged the second.
Whether he was removed for having entered without permission or for having committed a crime of moral turpitude was potentially of great significance to Alvarez-Santos. If found removable on the latter ground rather than the former, Alvarez-Santos would be ineligible for cancellation of removal, see § 1229b(b)(1)(C), or voluntary departure, see § 1229c(b)(1)(B), and faced detention prior to removal, see § 1231(a)(2). If unable to depart voluntarily, he would have been ineligible to seek admission to the United States for ten years following his removal. See § 1182(a)(9)(A)(ii). The reasons for removal can have other dramatic consequences: An alien removed for having committed an aggravated felony is ineligible to return to the United States for twenty years. See § 1182(a)(9)(A)(i).
Having conceded removability, Alvarez-Santos requested asylum or withholding of removal. In the new asylum application he asserted that he, his father, and his brother were all members of the Civil Defense Patrol, and that he had received threatening letters from a guerilla group called "ORPA." The letters demanded money and promised death if he did not pay. Alvarez-Santos averred that he fled Guatemala because he did not have the money ORPA demanded and could not obtain it. He feared ORPA would attempt to hurt or kill him if he returned.
Testifying in support of his asylum application at his removal hearing, Alvarez-Santos stated that he feared reprisals from ORPA if he returned to Guatemala; that the letters he had received demanded that he either pay money to ORPA or join the guerilla group; that he was part of the Civil Defense Patrol, and that neither he nor his family had ever participated in politics or expressed any political opinions. He attributed the contrary assertions in his 1993 asylum application to an unscrupulous preparer who filled out the application without listening to Alvarez-Santos's complete narration of the events that led him to flee Guatemala.
At the very end of his direct testimony, after a short break, Alvarez-Santos was asked by his attorney if he had anything else to add. He then proffered for the first time the following story: In 1988, shortly after he received the last of the threatening letters from ORPA, some men came looking for him at his house. They wore black clothes, carried guns, and called for him by name. Alvarez-Santos fled on foot, but the black-clothed men caught him and stabbed him in the shoulder. They did not kill him because they wanted him alive. Alvarez-Santos spent four or five days in the highlands of Guatemala dressing his wounds with herbs and then fled to Mexico. On the basis of these events he feared that, if he returned to Guatemala, ORPA might again find and injure him or, this time, kill him.
The IJ denied Alvarez-Santos's request for asylum. Petitioner's testimony was not credible, found the IJ, and he therefore had not demonstrated a well-founded fear of persecution on a protected ground. The IJ also denied Alvarez-Santos's request for withholding of removal, because he necessarily could not meet the more stringent requirements for withholding of removal. The IJ therefore ordered him removed for having entered the United States illegally. She also found, however, that Alvarez-Santos was not removable for having committed a crime of moral turpitude, as the diversion to the batterer's reeducation program was not a conviction. Finally, the IJ determined Alvarez-Santos to be a person of good moral character, notwithstanding the spouse abuse incident, and granted his request for voluntary departure.
Alvarez-Santos appealed to the Board of Immigration Appeals on the asylum and withholding of removal issues. The INS cross-appealed the voluntary departure question. The INS did not challenge the IJ's finding that Alvarez-Santos had not been convicted of a crime. Instead, the INS's appeal was directed specifically at the IJ's discretionary decision that Alvarez-Santos merited voluntary departure, maintaining that the facts surrounding the spousal abuse incident counseled against a favorable exercise of discretionary relief.
The BIA affirmed the denials of asylum and withholding of removal but reversed the grant of voluntary departure. Deciding the voluntary departure issue on a ground the INS had not raised, the BIA held that Alvarez-Santos had admitted the essential elements of a crime of moral turpitude (spouse abuse), and thus was statutorily ineligible for voluntary departure. Alvarez-Santos appeals both aspects of the BIA's decision.
The initial question is whether we have jurisdiction to review the BIA's decisions denying Alvarez-Santos's requests for asylum and withholding of removal. The INS argues that under § 1252(a)(2)(C) we do not.
That section provides:
[N]o court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in section 1182(a)(2) or 1227(a)(2)(A)(iii), (B), (C), or (D) of this title, or any offense covered by section 1227(a)(2)(A)(ii) of this title for which both predicate offenses are, without regard to their date of commission, otherwise covered by section 1227(a)(2)(A)(i) of this title.
§ 1252(a)(2)(C). According to the INS, the BIA's finding on appeal of the grant of voluntary departure that Alvarez-Santos had admitted the essential elements of a crime of moral turpitude renders him "removable by reason of having committed a criminal offense." In other words, the INS's position is that § 1252(a)(2)(C) precludes judicial review of an otherwise reviewable removal order where the record establishes that the individual could have been but was not ordered removed for having committed a covered criminal offense.
The scope of § 1252(a)(2)(C) in this regard is "not entirely clear." Calcano-Martinez v. I.N.S., 533 U.S. 348, 350 n. 2, 121 S.Ct. 2268, 150 L.Ed.2d 392 (2001). On the one hand, "removable by reason of having committed a criminal offense" could refer back to the "reason" for the "final order of removal" under review. Alternatively, although less probably given the juxtaposition of "final order of removal" and "removable" in the same sentence, the "removable" phrase could refer to circumstances that exist but were not the basis for the "final order of removal." The "background principles of statutory construction and constitutional concerns" must guide a determination of the scope of § 1252(a)(2)(C). Calcano-Martinez, 533 U.S. at 350 n. 2, 121 S.Ct. 2268. In approaching the statutory language and context, several principles of statutory construction, some particular to immigration law, are of some aid.
First, there is a "strong presumption in favor of judicial review of...
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