Guevara-Solorzano v. Sessions

• Decision Date: 24 May 2018
• Docket Number: No. 17-1833,No. 16-2434,16-2434
• Citation: 891 F.3d 125
• Parties: Rene GUEVARA–SOLORZANO, Petitioner, v. Jefferson B. SESSIONS III, U.S. Attorney General, Respondent. Rene Guevara–Solorzano, Petitioner, v. Jefferson B. Sessions III, U.S. Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

891 F.3d 125

Rene GUEVARA–SOLORZANO, Petitioner,

v.Jefferson B. SESSIONS III, U.S. Attorney General, Respondent.

Rene Guevara–Solorzano, Petitioner,

v.Jefferson B. Sessions III, U.S. Attorney General, Respondent.

No. 16-2434

No. 17-1833

United States Court of Appeals, Fourth Circuit.

Argued: March 20, 2018

Decided: May 24, 2018

ARGUED: Jeremy Layne McKinney, MCKINNEY IMMIGRATION LAW, Greensboro, North Carolina, for Petitioner. Andrew Nathan O'Malley, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Chad A. Readler, Principal Deputy Assistant Attorney General, Cindy S. Ferrier, Assistant Director, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Before NIEMEYER and KING, Circuit Judges, and Leonie M. BRINKEMA, United States District Judge for the Eastern District of Virginia, sitting by designation.

No. 16-2434, petition dismissed in part and denied in part; No. 17-1833, petition dismissed by published opinion. Judge Brinkema wrote the opinion, in which Judge Niemeyer and Judge King joined.

BRINKEMA, District Judge:

In this immigration case, petitioner Rene Guevara–Solorzano ("Guevara–Solorzano" or "petitioner") petitions for review of two final orders of the Board of Immigration Appeals ("BIA") respectively issued on December 6, 2016 and July 6, 2017. In petition number 16-2434, Guevara–Solorzano challenges the BIA's determination that he is subject to removal pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii) (Immigration and Nationality Act ("INA") § 237(a)(2)(A)(ii) ) as an alien who has been convicted of two crimes involving moral turpitude ("CIMTs") not arising out of a single scheme of misconduct and that he is ineligible for a waiver of removal under former INA § 212(c). In petition number 17-1833, Guevara–Solorzano challenges the BIA's denial of his motion to reconsider and reopen and, in particular, the BIA's determination that he is subject to removal pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) (INA § 237(a)(2)(A)(iii) ) as an alien who has been convicted of an aggravated felony relating to the illicit trafficking in a controlled substance and is therefore ineligible for cancellation of removal pursuant to 8 U.S.C. § 1229b(a) (INA § 240A(a) ).

For the reasons that follow, we hold that petitioner's 1995 conviction for unlawful possession of marijuana with intent to manufacture, deliver, or sell constitutes a conviction of both an aggravated felony and a CIMT. Therefore, we do not have jurisdiction to review petitioner's challenges to the BIA's decisions, except to the extent that they raise constitutional or legal issues. In addition, we hold that petitioner is ineligible for relief under former INA § 212(c) because his 2000 convictions for felony larceny and felony breaking and entering constitute convictions of CIMTs that are not waivable under § 212(c), which was repealed in 1996. Moreover, petitioner is ineligible for cancellation of removal under INA § 240A(a) because such relief is not available to any alien who has been convicted of an aggravated felony.

Accordingly, we dismiss petition number 17-1833 and dismiss in part and deny in part petition number 16-2434.

I

Guevara–Solorzano, who is a native and citizen of Mexico, first came to the United States in 1984, when his parents moved to this country to work as manual agricultural laborers. AR 45. In 1990, he adjusted his status to lawful permanent resident. AR 428. On March 13, 1995, Guevara–Solorzano pleaded guilty in Tennessee to the state crime of unlawful possession of marijuana with intent to manufacture, deliver, or sell, in violation of Tennessee Code § 39-17-417. Id. On July 20, 2000, he pleaded guilty in state court in Guilford County, North Carolina to felony breaking and entering and felony larceny.¹ Id.

The Department of Homeland Security initiated removal proceedings against petitioner on August 12, 2010 by filing a Notice to Appear, which charged Guevara–Solorzano with being subject to removal on three grounds. Specifically, he was charged under 8 U.S.C. § 1227(a)(2)(A)(ii) (INA § 237(a)(2)(A)(ii) ) with being an alien who has been convicted of two CIMTs not arising out of a single scheme of criminal misconduct; under 8 U.S.C. § 1227(a)(2)(A)(iii) (INA § 237(a)(2)(A)(iii) ) with being an alien who has been convicted of an aggravated felony relating to the illicit trafficking in a controlled substance; and under 8 U.S.C. § 1227(a)(2)(B)(i) (INA § 237(a)(2)(B)(i) ) with being an alien who has been convicted of a controlled substance offense. AR 905.

At a hearing before an immigration judge ("IJ"), Guevara–Solorzano, through counsel, conceded that he was removable as charged for being an alien convicted of an aggravated felony and of a controlled substance offense; however, he denied that he was subject to removal as an alien convicted of two or more CIMTs not arising out of a single scheme of misconduct. AR 440. After conceding his removability, petitioner sought a waiver under former INA § 212(c), 8 U.S.C. § 1182(c) (repealed 1996), for his 1995 Tennessee marijuana conviction. AR 438–467, 499–502. Section 212(c) authorized discretionary relief from deportation for some permanent resident aliens who had been domiciled in the United States for seven consecutive years; however, between 1990 and 1996, Congress progressively narrowed the class of aliens eligible for § 212(c) relief and repealed § 212(c) entirely in September 1996, replacing it with INA § 240A, 8 U.S.C. § 1229b, which allows some aliens to apply for cancellation of removal but excludes any alien who has been convicted of an aggravated felony. Resp. Br. 5 n.3.

On January 15, 2014, the IJ issued a written decision pretermitting and denying petitioner's § 212(c) application. AR 431–435. The IJ found that Guevara–Solorzano's convictions in 1995 and 2000 were for offenses qualifying as CIMTs that did not arise out of a single scheme of criminal misconduct. Because this ground for removability did not arise until 2000, four years after the statute had been repealed, § 212(c) relief was no longer available at the time Guevara–Solorzano became removable on the CIMT basis. Therefore, the IJ held that Guevara–Solorzano was ineligible for § 212(c) relief with respect to the CIMT ground of removability. Id. In reaching this conclusion, the IJ relied on a published BIA decision holding that a conviction "may be alleged as one of the [two CIMTs] in a second proceeding, even though the first proceeding was terminated by" a § 212(c) waiver if "the second crime alleged is a subsequent conviction or a conviction that was not disclosed in the prior proceeding." AR 433 (quoting In re Balderas , 20 I. & N. Dec. 389, 391 (BIA 1991) ). The IJ also relied on a Seventh Circuit decision directly on point, which held that an alien may not "avoid removal using a section 212(c) waiver" if the alien has a second CIMT conviction to which § 212(c) relief does not apply. AR 434 (citing Bakarian v. Mukasey , 541 F.3d 775 (7th Cir. 2008) ). Petitioner appealed the IJ's decision to the BIA.

On December 6, 2016, the BIA dismissed Guevara–Solorzano's appeal, AR 355–358, observing that he had conceded that his 2000 convictions were for crimes qualifying as CIMTs and that the marijuana offense to which he pleaded guilty in 1995 constituted an aggravated felony as well as a controlled substance offense, which concessions subjected him to removal, AR 355–356. The BIA further held, relying on BIA precedent establishing that participation in illicit drug trafficking is a CIMT, that petitioner's 1995 conviction also constituted being convicted of a CIMT. AR 356. Although the BIA observed that there was no dispute that a § 212(c) waiver would waive the aggravated felony and controlled substance conviction grounds of removability, both of which relied solely on the 1995 conviction, it held, as had the IJ, that § 212(c) relief was not available to waive the CIMT ground for removability. AR 356–357. According to the BIA, "[b]ecause 'a grant of section 212(c) relief waives the finding of excludability or deportability rather than the basis of the excludability itself,' it cannot waive a charge of deportability where it does not reach one of the convictions that is the basis for the charge." AR 357 (quoting In re Balderas , 20 I. & N. Dec. at 391 ). Because the 2000 convictions, which occurred after the repeal of § 212(c), were one of the bases for the CIMT ground for removability, the BIA determined that § 212(c) was not available to waive this ground. Accordingly, the BIA affirmed the IJ's decision and dismissed the appeal. Id. On December 20, 2016, petitioner filed a timely petition in this Court for review of this decision.

On January 5, 2017, petitioner filed with the BIA a motion requesting that the BIA reconsider its December 6, 2016 decision and reopen proceedings to permit him to apply for cancellation of removal pursuant to INA § 240A(a). AR 317–326. The basis of this motion was the combination of the Supreme Court's decision in Moncrieffe v. Holder , 569 U.S. 184, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013), which Guevara–Solorzano contended rendered his 1995 conviction no longer to qualify as a conviction of an aggravated felony, and this Court's decision in Jaghoori v. Holder , 772 F.3d 764 (4th Cir. 2014), which petitioner contended rendered him eligible to seek cancellation of removal if his 1995 conviction was not for a crime qualifying as an aggravated felony. The BIA denied Guevara–Solorzano's motion, rejecting his argument that the Tennessee drug statute did not qualify as an aggravated felony and finding that, as an alien who has been convicted of an aggravated felony, he was ineligible for cancellation of removal under INA § 240A(a). AR 3–4. Petitioner filed a timely petition for review of this decision. Petitioner's two petitions for review have been consolidated and are now before us.

II

Although orders of removal are generally...