Blandino-Medina v. Holder

• Decision Date: 10 April 2013
• Docket Number: No. 11–72081.,11–72081.
• Citation: 712 F.3d 1338
• Parties: Roberto Javier BLANDINO–MEDINA, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

712 F.3d 1338

Roberto Javier BLANDINO–MEDINA, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 11–72081.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 17, 2012.

Filed April 10, 2013.

Madeline Feldon (argued), Amy VyHanh Nguyen (argued), and Evangeline G. Abriel, Santa Clara University School of Law, Santa Clara, CA, for Petitioner.

Zoe J. Heller (argued), Office of Immigration Litigation, Washington, D.C., for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A077–223–173.

Before: CARLOS T. BEA and ANDREW D. HURWITZ, Circuit Judges, and WILLIAM K. SESSIONS, District Judge.^*

OPINION

BEA, Circuit Judge:

Roberto Xavier Blandino–Medina, a Nicaraguan citizen, seeks review of two decisions by the Board of Immigration Appeals (“BIA”): (1) a decision reversing an Immigration Judge's (“IJ's”) grant of withholding of removal pursuant to the Convention Against Torture (“CAT”), and (2) a decision affirming the IJ's finding that Blandino's conviction for lewd and lascivious acts with a child under the age of 14, in violation of California Penal Code § 288(a), is a particularly serious crime, rendering him statutorily ineligible for withholding of removal.

We have jurisdiction under 8 U.S.C. § 1252(a)(1). We affirm the BIA's decision concerning withholding of removal pursuant to the CAT, but vacate its decision holding that Blandino's conviction under Section 288(a) is a particularly serious crime per se, and remand to the BIA to consider the circumstances of the offense.

I. Facts and Procedural Background

Blandino is a Nicaraguan citizen, born in 1982. Several members of Blandino's family were affiliated with the Somoza regime, and after the Sandinistas took power, his family was persecuted. Blandino's father fled to the United States in 1986 and was later granted political asylum. In 1987, Blandino came to California to live with his father.

When Blandino was ten years old, his father sent him back to Nicaragua. Shortly after returning, Blandino encountered problems with the Sandinista National Liberation Front (“FSLN”). While Blandino was in school, the FSLN forced students to do manual labor. Blandino was forced to build barricades and beaten for not complying with the FSLN's instructions. When he was fifteen years old, Blandino was detained by the police for three days and questioned about his parents.

On December 19, 1998, Blandino entered the United States without permission and was apprehended by Border Patrol agents. The Immigration and Nationalization Service (“INS”) sought to remove him for entering the country illegally. Blandino applied for Temporary Protected Status (“TPS”), and in 1999 the INS granted that application and closed removal proceedings.

Since 1999, Blandino has been convicted of three crimes. The third conviction is central to this appeal: a 2008 guilty plea to the felony of lewd and lascivious conduct with a child under the age of fourteen in violation of Section 288(a),¹ for which Blandino was sentenced to one year in county jail, five years of felony probation, and registration as a sex offender.

In 2009, the Department of Homeland Security (“DHS”) re-instituted removal proceedings. Blandino appeared before an IJ, conceded the legal and factual bases for removal, but sought cancellation of removal and adjustment of status (along with a waiver of inadmissibility) pursuant to 8 U.S.C. § 1182(h), as a spouse or child of a person granted asylum. Claiming political persecution, Blandino also applied for asylum, withholding of removal under 8 U.S.C. § 1231(b)(3), and relief under the CAT.

The IJ denied Blandino's applications for cancellation of removal and for a waiver of inadmissibility in conjunction with his application for adjustment of status. The IJ also denied Blandino's asylum application. However, the IJ granted Blandino's application for withholding of removal under 8 U.S.C. § 1231(b)(3), and relief under the CAT.

The government appealed the IJ's grant of withholding of removal under 8 U.S.C. § 1231(b)(3) and the CAT to the BIA; Blandino did not seek review of the IJ's denial of cancellation of removal, waiver of inadmissibility, or asylum. The BIA remanded for the IJ to determine whether Blandino's conviction under Section 288(a) was a “particularly serious crime” rendering him ineligible for withholding of removal.² The BIA instructed the IJ “to examine the statutory elements of the alien's crime; if an offense qualifies as a particularly serious crime based solely on its elements, then no further inquiry is required and the application for withholding of removal must be pretermitted.”

On remand, the IJ noted that he had previously found Blandino's Section 288(a) conviction not particularly serious because “respondent honestly believed based upon the victim's representation that she was 19 years old.” After examining the elements of Section 288(a), but without reexamining the facts and circumstances of Blandino's conviction, the IJ concluded that Blandino had been convicted of a particularly serious crime.

The BIA dismissed Blandino's appeal, agreeing “with the Immigration Judge's determination that the respondent is ineligible for withholding of removal under the [INA] as his offense constitutes a ‘particularly serious crime’ per se.” This petition for review followed.

II. Mootness

DHS removed Blandino to Nicaragua after this court granted Blandino's request to lift a temporary stay of removal. The threshold issue is whether Blandino's appeal from the denial of withholding of removal presents a live case or controversy.

“Mootness is a jurisdictional issue which [this court] review[s] de novo.” In re Arnold & Baker Farms, 85 F.3d 1415, 1419 (9th Cir.1996). An individual who has already been removed can satisfy the case-or-controversy requirement by raising a direct challenge to the removal order. See, e.g., Lopez v. Gonzales, 549 U.S. 47, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006). A petitioner can also establish a live controversy by demonstrating concrete collateral consequences from the removal. See, e.g., Zegarra–Gomez v. INS, 314 F.3d 1124, 1127 (9th Cir.2003) (holding that because petitioner's inability to return to the United States for twenty years as a result of his removal was “a concrete disadvantage imposed as a matter of law, the fact of his deportation did not render the pending habeas petition moot”).

Blandino claims standing to challenge his removal because it renders him inadmissible to the United States for ten years pursuant to 8 U.S.C. § 1182(a)(9)(A)(ii). The government, relying on Kaur v. Holder, 561 F.3d 957 (9th Cir.2009), argues that there is an independent basis for Blandino's inability to reenter the United States, namely, the agency's independent determination that his conviction under Section 288(a) is a crime involving moral turpitude.

In Kaur, the petitioner sought review of a BIA decision denying him asylum and withholding of removal. Id. at 958. The BIA had found that Cheema was a danger to the security of the United States. Id. This court dismissed his petition as moot because he had “already been deported and he suffer[ed] no collateral consequences from the withholding decision.” Id. at 959. He did not fall under the collateral consequences exception to mootness because his inadmissibility to the United States was “not a collateral consequence of the BIA's denial of withholding of deportation; rather it [was] a collateral consequence of the Board's unchallenged determination under 8 U.S.C. § 1182(a)(3)(B)(i)(I) that Cheema is an alien who engaged in terrorist activities.” Id.

However, there is a significant distinction between Cheema's situation and Blandino's: although there is no waiver of inadmissibility for aliens who, like Cheema, are found to have engaged in terrorist activities, see8 U.S.C. § 1182(a)(3)(B)(i), a discretionary waiver is available for aliens who, like Blandino, have been convicted of crimes involving moral turpitude, see8 U.S.C. § 1182(h).

The government correctly notes that Blandino has already applied for such a waiver, which has been denied. However, that denial does not preclude him from again seeking the same waiver in connection with a new visa petition. Rather, “USCIS does not place a restriction on the number of times [an alien] may file a Form I–601.” See U.S. Citizenship and Immigration Services, Centralized Filing and Adjudication for Form I–601, Application for Waiver of Grounds of Inadmissibility. When evaluating a waiver of inadmissibility, the adjudicator “is required to balance the equities and adverse matters to determine whether discretion should be favorably exercised.” Matter of Mendez–Moralez, 21 I. & N. Dec. 296, 301 (BIA 1996). Given the highly discretionary nature of this determination, it is possible that a future adjudicator will “balance the equities and adverse matters” in a manner different than did the original IJ. This is sufficient to give Blandino “a personal stake” in the litigation. Swaby v. Ashcroft, 357 F.3d 156, 161 (2d Cir.2004).

III. The BIA's Authority to Determine that Certain Offenses Are “Particularly Serious Crimes” Per Se

Whether the BIA applied the proper legal standard in determining whether Blandino's crime was “particularly serious” raises a question of law. We have jurisdiction over questions of law raised in petitions for review. 8 U.S.C. § 1252(a)(2)(D); see also Miguel–Miguel v. Gonzales, 500 F.3d 941, 944 (9th Cir.2007). Although we “cannot reweigh evidence to determine if the crime was indeed particularly serious, [we] can determine whether the BIA applied the correct legal standard.” Afridi v. Gonzales, 442 F.3d 1212, 1218 (9th Cir.2006). This Court reviews both the BIA's decision and those portions of the IJ's decision incorporated by the BIA. See Kalubi v. Ashcroft, 364 F.3d 1134, 1137 n. 3 (9th Cir.2004).

A. Standard of Review and Chevron Deference

We ordinarily review...