Barragan-Piedra v. Garland
| Decision Date | 08 October 2021 |
| Docket Number | 20-9612,20-9550 |
| Parties | FRANCISCO BARRAGAN-PIEDRA, Petitioner, v. MERRICK B. GARLAND, United States Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Petition for Review
Before HARTZ, PHILLIPS, and EID, Circuit Judges.
Francisco Barragan-Piedra, a native and citizen of Mexico, seeks review of orders issued by the Board of Immigration Appeals (BIA) that denied his motions to remand (Petition No. 20-9550) and reopen (Petition No. 20-9612) the immigration proceedings. Exercising jurisdiction under 8 U.S.C. § 1252(a)(5), we deny these consolidated petitions.
Barragan-Piedra entered this country in January 2003 with a Form I-94 authorizing him to remain until June 2003.[1] He remained beyond that date and was charged in Colorado state court with possessing a schedule II controlled substance, driving under the influence (DUI), and operating a motor vehicle while his license was under restraint. In September 2004, he pled guilty to the DUI count and to an added count of possessing a schedule V controlled substance, a violation of Colorado Revised Statute § 18-18-405 (2004). He was placed on probation and left the United States.
Two months later, in November 2004, he returned on a nonimmigrant visitor's visa and did not leave when it expired in May 2005. Nearly eight years later, in April 2013, the Department of Homeland Security (DHS) served him with a notice to appear, charging him with overstaying his visa and having a controlled-substance conviction.
An Immigration Judge (IJ) conducted a hearing in July 2013. The IJ sustained the overstay charge but found that DHS failed to prove Barragan-Piedra's removability on the controlled-substance charge because there was no "official document [identifying] the substance." R., Pet. No. 20-9612, at 231. Next, the IJ concluded that Barragan-Piedra failed to show his conviction did not disqualify him from adjustment of status or cancellation of removal on the overstay charge. Consequently, the IJ ordered Barragan-Piedra removed to Mexico.
In January 2015, the BIA dismissed Barragan-Piedra's appeal because he did not show "his conviction is not a statutory bar to his cancellation application or that it does not render him inadmissib[le] for purposes of adjustment of status." Id. at 178. But the BIA remanded for the IJ to consider Barragan-Piedra's eligibility for voluntary departure. He did not seek judicial review.
On remand, Barragan-Piedra declined to seek voluntary departure and instead requested a continuance to collaterally attack his conviction in state court. The IJ denied the request and Barragan-Piedra appealed to the BIA.
While the appeal was pending, the Colorado Governor pardoned Barragan-Piedra in December 2018 for his controlled-substance conviction. He then moved to remand his case to the IJ claiming he was now eligible for adjustment of status or cancellation of removal. The BIA denied the motion concluding that the pardon did not affect his admissibility. Barragan-Piedra petitioned for judicial review (No. 20-9550).
While that petition was pending before this court, Barragan-Piedra filed in the BIA a motion to reopen. He argued that recent Tenth Circuit decisions show he is not inadmissible due to his controlled-substance conviction. The BIA denied the motion, stating that Barragan-Piedra "again has not demonstrated statutory eligibility for adjustment of status or cancellation of removal, given his controlled substance-related conviction, which renders him inadmissible." R., Pet. No. 20-9612, at 3. Barragan-Piedra petitioned for judicial review (No. 20-9612).
We review for abuse of discretion when the BIA denies a motion to remand. Banuelos v. Barr, 953 F.3d 1176, 1179 (10th Cir. 2020), cert. denied, 209 L.Ed.2d 731 (2021). The BIA abuses its discretion if, among other things, it makes a legal error. Id.
The BIA did not err in denying Barragan-Piedra's motion to remand based on his pardon. It is true that convictions for crimes of moral turpitude, aggravated felonies, and high speed flight cannot serve as the basis for removal "if the alien subsequent to the criminal conviction has been granted a full and unconditional pardon by the President of the United States or by the Governor of any of the several States." 8 U.S.C. § 1227(a)(2)(A)(vi). But the statute has no effect on Barragan-Piedra's removability for overstaying his visa. Nor does it waive an alien's inadmissibility for a controlled-substance conviction, which is the impediment blocking Barragan-Piedra's eligibility for adjustment of status and cancellation of removal, see id. § 1255(a) (); id. § 1182(a)(2)(A)(i) (providing that an alien convicted of any law "relating to a [federal] controlled substance . . . is inadmissible"); id. § 1229b(b)(1)(C) (authorizing the Attorney General to cancel removal of an inadmissible alien who "has not been convicted of an offense under section 1182(a)(2)"). As other circuits have observed, "a full pardon for a controlled substance conviction [does not] extinguish[ ] the immigration consequences of that offense," Aristy-Rosa v. Att'y Gen., 994 F.3d 112, 115 (3d Cir. 2021); see, e.g., Balogun v. U.S. Atty. Gen., 425 F.3d 1356, 1362 (11th Cir. 2005) ().
Apparently recognizing the pardon-waiver statute's inapplicability, Barragan-Piedra argues the statute violates equal protection. We disagree.
"Th[e] guarantee of equal protection applies to the federal government through the Fifth Amendment Due Process Clause and provides that a statute shall not treat similarly situated persons differently unless the dissimilar treatment is rationally related to a legitimate legislative objective." Jurado-Gutierrez v. Greene, 190 F.3d 1135, 1152 (10th Cir. 1999). "Our review of immigration legislation is especially limited because over no conceivable subject is the legislative power of Congress more complete than it is over the admission of aliens." Id. (internal quotation marks omitted).
Barragan-Piedra first argues the statute violates equal protection by waiving removability but not inadmissibility. Although the pardon-waiver statute covers only removability, all aliens, whether removable or inadmissible because of a controlled-substance conviction, are excluded from the statute's coverage. Thus, the statute does not treat similarly situated aliens differently. See Aguilera-Montero v. Mukasey, 548 F.3d 1248, 1254 (9th Cir. 2008) ().
Next, Barragan-Piedra contends the statute violates equal protection by treating aggravated-felony convictions more favorably than convictions for minor, controlled-substance crimes. But "Congress could have rationally decided that controlled substance offenses warrant removal because of the impact such crimes have on the entire community." Aristy-Rosa, 994 F.3d at 116 (emphasis added). Moreover, we fail to see how Barragan-Piedra has standing to complain that the statute's benefit may accrue to aliens convicted of "more serious" crimes, Pet'r's Opening Br. at 32, given that he is both removable and inadmissible without regard to the comparative "seriousness" of his offense. Specifically, as noted above, he is removable for overstaying his visa and inadmissible, which the statute does not cover.
Finally, Barragan-Piedra suggests the statute treats presidential pardons more favorably than state pardons because Congress cannot constitutionally limit the presidential pardon power. In other words, he contends there is no limit to the type of conviction a president may pardon, but there is a limit (legitimately imposed by Congress) to the type of conviction a governor may pardon. We need not address the merits of this suggestion, as Barragan-Piedra is not the recipient of a presidential pardon. See Aristy-Rosa, 994 F.3d at 117 ().
We conclude the BIA did not abuse its discretion in denying Barragan-Piedra's motion to remand.
In his motion to reopen, Barragan-Piedra argued that this court's decisions in United States v. McKibbon, 878 F.3d 967 (10th Cir. 2017), and United States v. Almanza-Vigil, 912 F.3d 1310 (10th Cir. 2019), cast doubt on the BIA's initial inadmissibility determination. The BIA denied the motion, stating only that Barragan-Piedra had again failed to show he was eligible for relief given his controlled-substance conviction. We conclude the BIA did not abuse its discretion. See Qiu v. Sessions, 870 F.3d 1200, 1202 (10th Cir. 2017) ().
To better understand the effect of McKibbon and Almanza-Vigil on Barragan-Piedra's eligibility for relief, we briefly recount the analysis applicable to whether Barragan-Piedra's 2004 Colorado conviction for possessing a controlled substance categorically "relat[es] to a [federally] controlled substance," 8 U.S.C. § 1182(a)(2)(A)(i)(II). First, the parties do not dispute that the 2004 Colorado...
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