Gutierrez-Vargas v. Garland
| Decision Date | 01 August 2022 |
| Docket Number | 21-3520 |
| Citation | 42 F.4th 877 |
| Parties | Salvador GUTIERREZ-VARGAS, Petitioner v. Merrick B. GARLAND, Attorney General of the United States, Respondent |
| Court | U.S. Court of Appeals — Eighth Circuit |
Michael J. Greco, Greco Law Office, Chicago, IL, for Petitioner.
Rachel Berman-Vaporis, U.S. Department of Justice, Civil Division, Washington, DC, Carl H. McIntyre, U.S. Department of Justice, Civil Division, Office of Immigration Litigation, Washington, DC, for Respondent.
Before COLLOTON, WOLLMAN, and SHEPHERD, Circuit Judges.
Salvador Gutierrez-Vargas petitions for review of the Board of Immigration Appeals's (BIA) denial of his applications for asylum, withholding of removal, and deferral of removal. We deny the petition.
Gutierrez-Vargas, a native and citizen of Mexico, entered the United States without inspection in 1979. One evening in June 2013, Gutierrez-Vargas and his family returned home to find that his daughter's boyfriend, Milton Miranda, had murdered a man in their house. To prevent Gutierrez-Vargas from calling the police, Miranda took his phone and threatened to kill his family. He then told Gutierrez-Vargas to help him bury the body. The two men moved the victim's body to the back of the house, where Miranda, using Gutierrez-Vargas's tools, dismembered the body while Gutierrez-Vargas dug a hole in the backyard. With Gutierrez-Vargas's daughter's help, they put the body parts into garbage bags, which they then buried in the hole.
Gutierrez-Vargas was arrested in August 2013 after his daughter told police about the murder and the location of the body. He was held in custody in Illinois until his state court conviction in 2018 of dismembering a human body in violation of 720 Ill. Comp. Stat. Ann. 5/12-20.5 and concealing a homicidal death in violation of 720 Ill. Comp. Stat. Ann. 5/9-3.4(a), for which he was sentenced to 15 years’ and 5 years’ imprisonment respectively. He was released from custody in February 2021, at which time the Department of Homeland Security initiated removal proceedings against him under 8 U.S.C. §§ 1182(a)(6)(A)(i) and 1182(a)(2)(A)(i)(I). Gutierrez-Vargas admitted removability but applied for asylum under Section 208 of the Immigration and Nationality Act (INA), withholding of removal under INA Section 241(b)(3), and withholding and deferral of removal under the Convention Against Torture (CAT), 8 C.F.R. §§ 1208.16 and 1208.17.
During a removal hearing, Gutierrez-Vargas testified that Miranda had told him and his daughter that he was a member of the Zetas, a criminal gang, and that Miranda had carved a "Z" into the victim's face. Gutierrez-Vargas testified that the Zetas have members "all over," including in his home state in Mexico, but he did not know whether Miranda had close personal relationships there. He expressed fear that if he returned to Mexico, members of the Zetas or other friends of Miranda would harm him and his family. Gutierrez-Vargas explained that prior to his arrest, an unknown man had stopped his wife while she was running in the park and, after mentioning Miranda, had told her that "they [were] watching [the family]." Once Gutierrez-Vargas was in jail, he was also approached by men claiming to be Miranda's friends, who told him that "they knew everything" and threatened him. He did not know if any of these people were members of the Zetas. Gutierrez-Vargas stated that his family in Mexico had not been threatened or harmed by the Zetas, but he did not believe that the Mexican government would protect him because of corruption in their ranks. Gutierrez-Vargas further testified that he had never been harmed by the Mexican government, but he was afraid that the government would associate him with the Zetas because of his role in the murder committed by Miranda.
An immigration judge (IJ) concluded that Gutierrez-Vargas was not eligible for asylum or withholding of removal because his conviction for dismembering a human body constituted a particularly serious crime. The IJ further concluded that he was not eligible for deferral of removal because he failed to demonstrate that it was more likely than not that he would be tortured if returned to Mexico. The BIA affirmed that decision. Gutierrez-Vargas petitions for review, arguing that the conduct underlying his conviction did not constitute a "particularly serious crime" and that the IJ abused his discretion in determining that Gutierrez-Vargas did not qualify for deferral of removal under CAT.
"We review the Board's decision as the final agency action, including the IJ's findings and reasoning to the extent that the Board expressly adopted them." Mumad v. Garland, 11 F.4th 834, 837 (8th Cir. 2021). We review the BIA's conclusions of law de novo and give Chevron deference to its interpretation of immigration statutes and regulations. Hernandez v. Holder, 760 F.3d 855, 858–59 (8th Cir. 2014) ; see Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843–45, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). We do not disturb the BIA's findings of fact "unless any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B).
A petitioner is ineligible for asylum, withholding of removal under the INA, and withholding of removal under CAT if the petitioner, "having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States." 8 U.S.C. § 1158(b)(2)(A)(ii) ; see also 8 U.S.C. § 1231(b)(3)(B)(ii) ; 8 C.F.R. § 1208.16(d)(2). We review de novo "[w]hether the BIA applied the correct legal framework in its particularly serious crime determination." Shazi v. Wilkinson, 988 F.3d 441, 447 (8th Cir. 2021).
In making this determination, the BIA considers the nature of the crime of conviction, the underlying facts and circumstances, and the sentence imposed. Tian v. Holder, 576 F.3d 890, 897 (8th Cir. 2009). The BIA may consider "all reliable information" regarding these factors. In re N-A-M-, 24 I. & N. Dec. 336, 342 (BIA 2007). "[C]rimes against persons are more likely to be categorized as particularly serious," id. at 343, but the "particularly serious" designation is not limited to such crimes, Denis v. Att'y Gen., 633 F.3d 201, 216 (3d Cir. 2011). Although the BIA previously considered whether "the alien will be a danger to the community," it has since ceased to engage in this analysis, focusing instead "on the nature of the crime." Tian, 576 F.3d at 897 (). We defer to the BIA's determination of the proper focus and therefore reject Gutierrez-Vargas's argument that the BIA erred by failing to consider whether he is a danger to the community. See Mumad, 11 F.4th at 840 .
We conclude that the IJ and the BIA applied the correct legal framework in determining that Gutierrez-Vargas's conviction constituted a particularly serious crime. The IJ noted the elements of the offense, Gutierrez-Vargas's role in dismembering and concealing the victim's body, his "lengthy prison sentence," and the state courts’ characterization of Gutierrez-Vargas's actions.
Gutierrez-Vargas argues that the IJ erred in concluding that his crime of dismemberment was against a person because the victim was already deceased. The IJ agreed with the Third Circuit's decision in Denis, however, which concluded that a crime need not be against a person to be particularly serious. See 633 F.3d at 216 ().
Furthermore, the jurisdictional limitation under 8 U.S.C. § 1252(a)(2)(C) precludes us from reviewing the IJ's and BIA's weighing of the relevant factors. See Tian, 576 F.3d at 897 ; 8 U.S.C. § 1252(a)(2)(C) ().1 Gutierrez-Vargas is therefore ineligible for asylum and withholding of removal.
An applicant who is ineligible for withholding of removal because of a conviction for a particularly serious crime is still eligible for deferral of removal under CAT if he is more...
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