Coyomani-Cielo v. Holder

• Citation: 758 F.3d 908
• Decision Date: 14 July 2014
• Docket Number: No. 13–2955.,13–2955.
• Parties: Carlos COYOMANI–CIELO, Petitioner, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

758 F.3d 908

Carlos COYOMANI–CIELO, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

No. 13–2955.

United States Court of Appeals,Seventh Circuit.

Argued May 22, 2014.

Decided July 14, 2014.

Andrew Michael Larson, Moline, IL, for Petitioner.

Oil, Ann M. Welhaf, Department of Justice, Washington, DC, for Respondent.

Before POSNER, FLAUM, and MANION, Circuit Judges.

FLAUM, Circuit Judge.

Carlos Coyomani entered the United States without inspection in 1997 and concedes that he is removable.¹ The question here is whether he is eligible for cancellation of removal. The Board of Immigration Appeals (BIA or Board) found him ineligible for that relief. Coyomani now petitions for review, arguing that the Board misinterpreted the relevant provision of the Immigration and Nationality Act (INA), § 240A(b)(1)(C). We find that statutory provision ambiguous but conclude that the Board's interpretation is reasonable and entitled to deference under Chevron. We therefore deny Coyomani's petition.

I. Background

Before we describe Coyomani's path through the immigration courts, we will briefly summarize the relevant statutory scheme and a few background concepts. “Federal immigration law governs both the exclusion of aliens from admission to this country and the deportation of aliens previously admitted.” Judulang v. Holder, ––– U.S. ––––, 132 S.Ct. 476, 479, 181 L.Ed.2d 449 (2011). A “removable” individual is one whom the immigration authorities may lawfully expel from the United States; both “deportable” and “inadmissible” individuals are “removable.” INA § 240(e)(2); 8 U.S.C. § 1229a(a)(2); Zamora–Mallari v. Mukasey, 514 F.3d 679, 687 n. 2 (7th Cir.2008). A “deportable” individual is a non-citizen who (in many cases) was lawfully admitted into the United States, but who later became removable for any of a number of reasons specified in INA § 237(a) (for instance, by committing a specified offense). See generallyAustin T. Fragomen, Jr. & Steven C. Bell, Immigration Fundamentals 1–28 to –30, 7–11 (4th ed.2013). An “inadmissible” individual is a non-citizen who (in many cases) was not formally admitted into the country, and who is removable for any of several reasons specified in INA § 212(a) (for example, by committing a crime involving moral turpitude). See id. See generally Xi v. INS, 298 F.3d 832, 838 (9th Cir.2002) (discussing these terms and certain of their differences). However, a removable individual (whether inadmissible or deportable) is sometimes eligible to seek “cancellation of removal,” a form of discretionary relief that the Attorney General may grant. See INA § 240A; 8 U.S.C. § 1229b. To be eligible for cancellation of removal, a nonpermanent resident alien like Coyomani must satisfy four conditions. See INA § 240A(b)(1); 8 U.S.C. § 1229b(b)(1).

Only one of those conditions is relevant in this case: the requirement that Coyomani “has not been convicted of an offense under [INA] section 212(a)(2), 237(a)(2), or 237(a)(3).” ² INA § 240A(b)(1)(C); 8 U.S.C. § 1229b(b)(1)(C). Section 237(a)(3)—relating to the fraudulent obtainment or misuse of a visa or other entry document—is not relevant in this case, but the other two cross-referenced sections are. As relevant here, INA § 212(a)(2) states that an alien is inadmissible if he commits a crime involving moral turpitude (a “CIMT,” for short) and the maximum sentence that can be imposed exceeds one year; and § 237(a)(2) provides that an alien is deportable if he commits any of a number of crimes, including “an aggravated felony at any time after admission.”

We now turn to the specifics of Coyomani's case. Coyomani, a native and citizen of Mexico, entered the United States without inspection in 1997. In 2000, he was convicted in Illinois state court of domestic battery and of resisting a peace officer. In 2009, the Department of Homeland Security placed Coyomani in removal proceedings, charging him with inadmissibility as an alien present in the United States without being admitted or paroled, see INA § 212(a)(6)(A)(i); 8 U.S.C. § 1182(a)(6)(A)(i), and as an alien who had been convicted of a CIMT, see INA § 212(a)(2)(A)(i)(I); 8 U.S.C. § 1182(a)(2)(A)(i)(I).

Later in 2009, Coyomani appeared before an immigration judge (IJ), with counsel. He denied one ground of removability—the charge that he had committed a CIMT—but he conceded the other—that he was removable because he, as a non-citizen, was present in the United States without being admitted or paroled. Nonetheless, he sought cancellation of removal as a non-lawful permanent resident. The IJ concluded that Coyomani was both removable and ineligible for cancellation of removal.

The IJ found that Coyomani was removable because he was present without being admitted or paroled. However, the IJ did not sustain the other ground of removability: a CIMT conviction under INA § 212(a)(2). Although Coyomani was convicted of domestic battery, which qualifies as a CIMT, the IJ found that Coyomani “probably” satisfied the statutory exception due to the brevity of his sentence. SeeINA § 212(a)(2)(A)(ii)(II); 8 U.S.C. § 1182(a)(2)(A)(ii)(II). The IJ further determined that Coyomani's other offense, resisting a peace officer, did not qualify as a CIMT.

Next, the IJ found that Coyomani was ineligible for cancellation of removal because he had been convicted of “an offense under” INA § 237(a)(2)—specifically, “an aggravated felony,” id. § 237(a)(2)(A)(iii). Essentially, the same crime—state domestic battery—had different implications for different sections of the INA, because § 212(a)(2) has a pertinent exception whereas § 237(a)(2) does not. The IJ noted that the Seventh Circuit had already considered the statute under which Coyomani was convicted, 720 ILCS 5/12–3.2(a)(1). See LaGuerre v. Mukasey, 526 F.3d 1037 (7th Cir.2008). In that case, we held that domestic violence, as defined by the Illinois statute, was a crime of violence because “it has as an element the use of physical force.... Therefore, we concur with the IJ that LaGuerre's domestic battery conviction is an aggravated felony that subjects LaGuerre to deportation.” Id. at 1039 (citing 8 U.S.C. § 1101(a)(43)(F)). In sum, because Coyomani had been convicted of a crime “under” INA § 237(a)(2), the IJ found him ineligible for cancellation of removal.

Coyomani had argued before the IJ (as he does on appeal) that § 237(a)(2) does not apply to him, because § 237(a)(2) provides that an alien is deportable if he commits an aggravated felony after admission, but Coyomani was never admitted. In Coyomani's view, he is subject only to § 212, under which he might be eligible for cancellation of removal. The IJ found “a certain appeal to that argument,” but held that it was foreclosed by the BIA's decision in Matter of Cortez, 25 I. & N. Dec. 301 (B.I.A.2010). In that case, the Board explained that the provision that deals with eligibility for cancellation of removal cross-references three other INA sections. The Board held that only part of the cross-referenced provisions matters when determining eligibility for cancellation of removal. Specifically, the Board would look only at the elements of the crime and the sentence potentially imposed; it would not consider the portions of the cross-referenced provisions that refer to an alien's immigration status—words like “after admission” and “deportable.” Id. at 308. The IJ deferred to the Board's interpretation, “since the Seventh Circuit has not addressed this issue.” Therefore, the IJ dismissed Coyomani's request for cancellation of removal.

Coyomani appealed to the Board, which agreed with the IJ's analysis and conclusion. Relying on Cortez and Matter of Almanza–Arenas, 24 I. & N. Dec. 771 (B.I.A.2009), the Board held that an alien convicted of an offense described under INA § 237(a)(2) is ineligible for cancellation of removal under INA § 240A(b)(1)(C), irrespective of whether the alien is charged with removal under INA § 212 (as an inadmissible alien) or § 237 (as a deportable alien). The Board rejected Coyomani's argument that the Second Circuit's recent decision in Reyes v. Holder, 714 F.3d 731 (2d Cir.2013), required a different result. (We address that decision below.) Coyomani petitioned our court for review of the Board's decision.

II. Discussion

Whether an alien is statutorily eligible for cancellation of removal is a question of law that we have jurisdiction to review. See8 U.S.C. § 1252(a)(2)(D); Iddir v. INS, 301 F.3d 492, 496–98 (7th Cir.2002). Where, as here, the Board adopts the IJ's opinion and also supplements it with the Board's own reasoning, we review both decisions. Abraham v. Holder, 647 F.3d 626, 632 (7th Cir.2011). We review questions of statutory interpretation de novo, though we often apply the familiar Chevron framework. INS v. Aguirre–Aguirre, 526 U.S. 415, 424, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999); Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). This framework applies to the Board's interpretations of the INA so long as (1) the Board's reasoning is thorough, see Mata–Guerrero v. Holder, 627 F.3d 256, 259 (7th Cir.2010); and (2) the Board's decision is issued by a multi-member panel, or relies on a Board opinion that was issued by a multi-member panel, Lagunas–Salgado v. Holder, 584 F.3d 707, 711 (7th Cir.2009). The Board's opinion in this case meets these requirements. At Chevron's first step, we determine—using ordinary principles of statutory interpretation—whether Congress has directly spoken to the precise question at issue. Chevron, 467 U.S. at 842–43 & n. 9, 104 S.Ct. 2778. If Congress has done so, our inquiry ends there. Id. at 842–43, 104 S.Ct. 2778. If not, then Congress has left the “administrative agency with discretion to resolve a statutory ambiguity,” Ali v. Mukasey, 521 F.3d 737, 739 (7th Cir.2008), so at step two, we require only that the agency's interpretation be...