Dominguez v. Barr

• Citation: 975 F.3d 725
• Decision Date: 21 July 2020
• Docket Number: No. 18-72731,18-72731
• Parties: Gonzalo Banuelos DOMINGUEZ, Petitioner, v. William P. BARR, Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

975 F.3d 725

Gonzalo Banuelos DOMINGUEZ, Petitioner,

v.William P. BARR, Attorney General, Respondent.

No. 18-72731

United States Court of Appeals, Ninth Circuit.

Submitted May 11, 2020^* Portland, Oregon

Filed July 21, 2020

Amended September 18, 2020

ORDER AND AMENDED OPINIONORDER

The Petitioner's Motion for Miscellaneous Relief (Docket Entry No. 33) requesting the opinion be depublished is DENIED but the alternative request to amend is GRANTED in part.

The opinion filed on July 21, 2020, and published at 965 F.3d 1091 is AMENDED by the opinion filed concurrently with this Order.

On page 19 of the slip opinion, after the sentence "Oregon law incorporates the federal schedule of controlled substances. Or. Rev. Stat. § 475.005(6) ; State v. Ness , 54 Or.App. 530, 635 P.2d 1025, 1029 (1981)," the following footnote is added:

While incorporating the federal schedule, Oregon law further authorizes the State Board of Pharmacy to modify or add to Oregon's schedules of controlled substances. Or. Rev. Stat. § 475.035 ; State v. Henry , 840 P.2d 1335, 1336 (1992) ; State v. Eells , 696 P.2d 564, 567 (1985). Because Petitioner does not argue that the Oregon definition of "controlled substance" is distinct from the federal definition, this Court does not address that issue.

CARDONE, District Judge:

Petitioner Gonzalo Banuelos Dominguez was convicted under Oregon law for manufacturing marijuana, a violation of Oregon Revised Statutes ("ORS") § 475.992(1)(a), and subsequently charged with removability. An Immigration Judge ("IJ") found that Dominguez was removable as charged because his conviction constituted an "aggravated felony," and Dominguez was ineligible for withholding of removal under the Immigration and Nationality Act ("INA") and the Convention Against Torture ("CAT") because he committed a "particularly serious crime." The Board of Immigration Appeals ("BIA") affirmed, and it also denied Dominguez's motion to terminate proceedings based on deficient notice. Dominguez now petitions for review of the BIA's decision.

We consider as a matter of first impression whether ORS § 475.992(1)(a) is divisible as between its "manufacture" and "delivery" terms. We find that it is, and we conclude that the offense of conviction constitutes an aggravated felony. Further, we hold that the BIA did not abuse its discretion in finding Dominguez's offense to be a particularly serious crime and that the notice provided to Dominguez was sufficient to vest the IJ with jurisdiction. Accordingly, we deny the petition.

FACTUAL AND PROCEDURAL HISTORY

Dominguez is a native and citizen of Mexico, now sixty-three years old, who was admitted to the United States as a lawful immigrant in 1963, a lawful permanent resident since at least 1969. In August 2002, Dominguez was indicted on charges of "manufacture of a schedule 1 controlled substance (a felony; ORS 475.992(1A))." Count One of the single-count Indictment alleged that Dominguez manufactured marijuana. Dominguez entered a guilty plea and was convicted of the charges.

On March 20, 2009, the Department of Homeland Security ("DHS") filed a Notice to Appear ("NTA") with the Portland immigration court, initiating removal proceedings against Dominguez. The government charged Dominguez as removable under § 237(a)(2)(A)(iii) of the INA for conviction of an aggravated felony. Specifically, the NTA alleges, "You were, on October 7, 2002, convicted ... for the offense of Manufacture/Delivery of a Controlled Substance, to wit: Marihuana, in violation of ORS 475.9921A." The NTA ordered Dominguez to appear on "a date to be set" and at "a time to be set."

One week later, DHS filed a Form I-261, bringing additional charges of removability. The government alleged that Dominguez was also removable under § 237(a)(2)(B)(i) of the INA for conviction of an offense "relating to a controlled substance." The same day, the Immigration Court sent Dominguez a "Notice of Hearing in Removal Proceedings," which stated that an initial hearing was set for June 23, 2009, at 10:00 A.M.

Dominguez appeared before an IJ for his initial hearing in June 2009. The removal hearing continued on November 5, 2009, when the court issued a ruling from the bench that Dominguez's conviction constituted an aggravated felony, and therefore Dominguez was ineligible for asylum, adjustment of status, and cancellation of removal. On March 20, 2012, removal proceedings continued in another hearing, this one considering Dominguez's claims for withholding of removal under the INA and the CAT. The same day, the court issued an "Oral Decision of the Immigration Judge," pretermitting Dominguez's withholding application and denying his CAT claim.

Dominguez appealed the IJ's decision to the BIA on April 10, 2012. On September 17, 2013, the BIA found "the [IJ's] decision is insufficient to permit meaningful appellate review," and remanded the case to the IJ to "issue a new decision with additional findings." On April 2, 2014, the IJ issued a written opinion.

The IJ made an adverse credibility determination, finding that Dominguez's testimony regarding the conduct underlying his criminal conviction was "logically implausible," and that some of Dominguez's in-court testimony contradicted his prior written declaration. Considering the first charge of removability, the IJ found that ORS § 475.992(1) is divisible between "manufacture" and "delivery."¹ Implicitly applying the modified categorical approach, the IJ found Dominguez was convicted of a manufacturing offense and was therefore removable because manufacturing a controlled substance is an aggravated drug trafficking offense. The IJ also found Dominguez removable on the second charge of removability, concluding that his conviction was "related to a controlled substance" based on the plain language of the statute. Based on the finding of removability, the IJ found Dominguez's asylum application statutorily barred.

Then, the IJ denied Dominguez's withholding of removal application. The IJ found that, based on the underlying circumstances, Dominguez's conviction constituted a particularly serious crime, rendering withholding of removal under the INA and CAT unavailable. The IJ noted that, alternatively, she would deny Dominguez's withholding application for lack of a nexus to a protected ground, even absent the aggravated felony and particularly serious crime bar. Finally, the IJ denied Dominguez's CAT claim for deferral of removal as well, finding Dominguez had not shown it was more likely than not that he would be tortured in Mexico.

On April 28, 2014, Dominguez appealed the IJ's decision to the BIA. While the parties’ briefing was pending, in February 2017, Dominguez filed a supplemental brief requesting remand to the IJ based on Sandoval v. Sessions , 866 F.3d 986 (9th Cir. 2017). The Sandoval decision concerns the divisibility of the statute of Dominguez's conviction, ORS § 475.992(1)(a), and the BIA ordered the parties to file supplemental briefs addressing the case in February 2018. In July 2018, Dominguez filed a motion to terminate proceedings based on Pereira v. Sessions , ––– U.S. ––––, 138 S. Ct. 2105, 201 L.Ed.2d 433 (2018). Dominguez argued that, under Pereira , the lack of a date and time for the initial hearing in his NTA was fatal to the IJ's jurisdiction over his case.

On September 11, 2018, the BIA issued its decision. As to removability, the BIA found that Dominguez only contested the aggravated felony basis for removal, waiving any challenge to removability based on a conviction related to a controlled substance.² On the aggravated felony charge, the BIA affirmed the IJ's opinion that the modified categorical approach applies to § 475.992(1)(a) because the statute is divisible as between "manufacture" and "delivery," rejecting Dominguez's argument that Sandoval controls the case. Applying that approach, the BIA also affirmed that Dominguez's manufacturing offense is a categorical match to the generic offense of a "drug trafficking crime." Next, the BIA agreed with the IJ that Dominguez's offense was a particularly serious crime. And, the BIA found that Dominguez failed to challenge the IJ's denial of his CAT claim for deferral of removal. Finally, the BIA denied Dominguez's motion to terminate proceedings. The BIA found that even an NTA lacking a date and time of the initial hearing serves to vest the IJ with jurisdiction, and the Supreme Court's holding in Pereira does not require a different result.

Dominguez timely petitioned for review of the BIA's decision.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction over Dominguez's appeal under 8 U.S.C. § 1252. "We lack jurisdiction to review ‘any final order of removal against an alien who is removable’ " for committing an aggravated felony, retaining jurisdiction only to review jurisdictional issues, questions of law, and constitutional claims. Mairena v. Barr , 917 F.3d 1119, 1123 (9th Cir. 2019) (per curiam) (citation omitted). Likewise, we lack jurisdiction over the BIA's determination that a petitioner committed a particularly serious crime, retaining jurisdiction only to determine whether the BIA applied the proper legal standard. Flores-Vega v. Barr , 932 F.3d 878, 884 (9th Cir. 2019). We have jurisdiction to review the BIA's denial of a motion to terminate proceedings based on a ground other than the petitioner's criminal conviction. See Flores v. Barr , 930 F.3d 1082, 1086–87 (9th Cir. 2019) (per curiam).

We review purely legal questions de novo and review a denial of a motion to terminate for abuse of discretion. Aguilar Fermin v. Barr , 958 F.3d 887, 891–92 (9th Cir. 2020).

DISCUSSION

Dominguez challenges three conclusions reached by the BIA: (1) the aggravated felony finding, (2) the particularly serious crime finding, and (3) the denial of his motion to reopen proceedings. We address each in turn.

A

"Any alien who is convicted of an aggravated felony at any time after admission is deportable." Flores-Vega , 932 F.3d at 882 (quoting 8...