Hernandez v. Garland
| Decision Date | 28 June 2022 |
| Docket Number | 21-70493 |
| Parties | Jose Alberto HERNANDEZ, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Niels W. Frenzen (argued) and Jean E. Reisz, University of Southern California, Gould School of Law, Immigration Clinic, Los Angeles, California, for Petitioner.
Lindsay Corliss (argued), Trial Attorney; Brianne Whelan Cohen, Senior Litigation Counsel; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.
Before: Paul J. Kelly, Jr.,* Milan D. Smith, Jr., and Danielle J. Forrest, Circuit Judges.
Opinion by Judge Forrest
The Board of Immigration Appeals (BIA) denied Petitioner Jose Alberto Hernandez cancellation of removal concluding that his receipt of temporary protected status (TPS) was not an admission and, therefore, he could not meet the statutory requirement that he have seven years of continuous residence in the United States after admission. The BIA also denied Hernandez's application for asylum concluding that his 2016 domestic-violence conviction was a "particularly serious crime" that barred him from relief. Hernandez challenges the BIA's decision raising two primary arguments: (1) under our precedent, his TPS does constitute an admission "in any status" under the cancellation statute, 8 U.S.C. § 1229b(a), and (2) the BIA applied an improper legal standard in deciding that his 2016 conviction was for a particularly serious crime.
We reject both arguments. In doing so, we hold that the Supreme Court's recent decision in Sanchez v. Mayorkas , ––– U.S. ––––, 141 S. Ct. 1809, 210 L.Ed.2d 52 (2021), effectively overruled our precedent requiring that the benefits conferred by an alien's immigration status be analyzed to determine if the alien had been "admitted in any status," see Miller v. Gammie , 335 F.3d 889, 893 (9th Cir. 2003) (en banc), and we conclude that under Sanchez and the plain language of the relevant immigration statutes, Hernandez's TPS does not constitute an admission under 8 U.S.C. § 1229b(a)(2). We also conclude that the BIA did not err in classifying his 2016 domestic-violence conviction as a particularly serious crime that bars him from obtaining asylum.
Hernandez, a native and citizen of El Salvador, entered the United States unlawfully in 1999. The Government granted him TPS in 2003. The TPS program "provides humanitarian relief to foreign nationals in the United States who come from specified countries." Sanchez , 141 S. Ct. at 1812 ; 8 U.S.C. § 1254a(b). The Government may designate a country for protection if the country suffers from dangerous conditions arising from armed conflicts or natural disasters. 8 U.S.C. § 1254a(b). Citizens of the designated country who are already present in the United States may then obtain TPS. Id. § 1254a(c)(1). TPS protects aliens from removal for the duration of their country's designation and allows them to work in the United States. Id. § 1254a(a). An alien's unlawful entry generally does not preclude them from being granted TPS. Id. § 1254a(c)(2)(A)(ii).
In 2010, approximately seven years after Hernandez received TPS, the Government admitted him into the United States as a lawful permanent resident. Hernandez was convicted of multiple crimes after becoming a lawful permanent resident. He was convicted in 2014, 2015, and 2016 of "domestic violence with injury" under California Penal Code § 273.5(A) and sentenced to increasingly longer terms of imprisonment for each offense—four days, 30 days, and 364 days, respectively. The victim in all three cases was Hernandez's now ex-wife. Hernandez also was convicted of taking a vehicle without the owner's permission, California Vehicle Code § 10851A, and receiving or purchasing stolen property, California Penal Code § 496d(a). For his receiving-stolen-property conviction, he was sentenced to 16 months' imprisonment and served 200 days.
In August 2016, the Government charged Hernandez as removable based on his 2016 domestic-violence conviction, which was based on acts committed approximately five years after Hernandez became a lawful permanent resident. Hernandez conceded removability and sought cancellation of removal under 8 U.S.C. § 1229b(a) (LPR cancellation) and asylum. In 2017, the BIA denied his applications for relief based on his receiving-stolen-property conviction, not his 2016 domestic-violence conviction, and ordered him removed. But two years after Hernandez sought review of the BIA's decision, the California Superior Court vacated his receiving-stolen-property conviction upon which the BIA had based its denial of relief, and we granted the Government's unopposed motion to remand to the BIA.
On remand, the BIA returned the case to an Immigration Judge (IJ) for an analysis of how the vacatur of Hernandez's conviction affected his eligibility for LPR cancellation and asylum.1 At a hearing, the IJ assumed without deciding that Hernandez's vacated2 receiving-stolen-property conviction did not bar him from either form of relief. Hernandez confirmed that the Government admitted him as a lawful permanent resident on April 29, 2010. Although he was charged with removability for acts committed only five years later, Hernandez argued that he had nonetheless established the required seven years of continuous residence based on his 2003 grant of TPS. Because the Government argued that his 2016 domestic-violence conviction was a particularly serious crime that barred him from receiving asylum, Hernandez's testimony about his convictions focused on his domestic-violence convictions.
The IJ denied Hernandez's application for LPR cancellation concluding that Hernandez failed "to show seven years of continuous residence in the United States after having been admitted in any status." The BIA rejected Hernandez's argument that, under our precedent, receiving TPS is a grant of admission. Instead, the IJ found that Hernandez was admitted to the United States in April 2010, when he became a lawful permanent resident. The IJ also found that Hernandez stopped accruing continuous residency five years later—two years short of the requirement—when he committed the assault for which he was convicted in 2016.
Regarding Hernandez's application for asylum, the IJ concluded that Hernandez was ineligible for this relief because his 2016 domestic-violence conviction was a particularly serious crime. The IJ concluded that Hernandez's own testimony established this fact—Hernandez acknowledged that he was convicted of hitting his ex-wife in the face after two prior incidents where he became angry and hit her and rejected Hernandez's attempts to minimize the severity of the conduct and harm underlying his 2016 conviction. The IJ also considered the length of Hernandez's sentence for his 2016 conviction, which was one day short of this conviction being an aggravated felony and nondiscretionary particularly serious crime. See 8 U.S.C. §§ 1158(b)(2)(B)(i) (), 1101(a)(43)(F) ().
The BIA dismissed Hernandez's appeal. It agreed with the IJ that Hernandez was not eligible for LPR cancellation because he had not shown seven years of continuous residence after admission. The BIA also found that a grant of TPS did not qualify as being "admitted in any status." In addition, the BIA rejected Hernandez's challenge to his 2016 domestic-violence conviction being classified as a particularly serious crime. The BIA found that the IJ properly considered the nature of Hernandez's crime, an assault committed with physical force, and the length of his sentence. The BIA also concluded that it was "significant" that Hernandez continued to engage in abusive behavior after his first two domestic-violence convictions and that "[t]hese circumstances ... were properly considered in[ ] the overall assessment of whether [Hernandez's] third conviction for domestic violence in a little over a year was ‘particularly serious.’ "
"[W]e review de novo the BIA's determinations of questions of law and its legal conclusions." Rodriguez v. Holder , 683 F.3d 1164, 1169 (9th Cir. 2012). If the BIA's decision "adopts or relies on the IJ's reasoning," we review both decisions; otherwise, we review only the BIA's. Alanniz v. Barr , 924 F.3d 1061, 1065 (9th Cir. 2019). Where, as here, the BIA's decision was not published or "directly controlled by a published decision," we review issues of statutory construction de novo and give no deference to the BIA's decision. Eleri v. Sessions , 852 F.3d 879, 884 (9th Cir. 2017) (citation omitted); Route v. Garland , 996 F.3d 968, 975 (9th Cir. 2021). We review for abuse of discretion whether the BIA "relied on the appropriate factors and proper evidence" to reach its determination that an alien committed a "particularly serious crime." Bare v. Barr , 975 F.3d 952, 961 (9th Cir. 2020) (internal quotation marks, alterations, and citation omitted).
To be eligible for LPR cancellation, an alien must establish that he "has resided in the United States continuously for 7 years after having been admitted in any status. " 8 U.S.C. § 1229b(a)(2) (emphasis added); see Alanniz , 924 F.3d at 1065. "Admission" is defined as "the lawful entry of the alien into the United States after inspection and authorization by an immigration officer." 8 U.S.C. § 1101(a)(13)(A) ; Posos-Sanchez v. Garland , 3 F.4th 1176, 1182–83 (9th Cir. 2021) ; see also In re Reza-Murillo , 25 I. & N. Dec. 296, 297 (BIA 2010) (). This definition, however, does not cover circumstances like Hernandez's where an alien enters the United States without inspection and...
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