Lima v. Holder

• Decision Date: 08 July 2014
• Docket Number: No. 13–1583.,13–1583.
• Citation: 758 F.3d 72
• Court: U.S. Court of Appeals — First Circuit
• Parties: Dione Pereira LIMA, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.

758 F.3d 72

Dione Pereira LIMA, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 13–1583.

United States Court of Appeals, First Circuit.

July 8, 2014.

Jeffrey B. Rubin on brief for petitioner.

Stuart F. Delery, Assistant Attorney General, Linda S. Wernery, Assistant Director, and Theodore C. Hirt, Senior Litigation Counsel, Office of Immigration Litigation on brief for respondent.

Before LYNCH, Chief Judge, THOMPSON, Circuit Judge, SMITH,

District Judge.^*

THOMPSON, Circuit Judge.

“As we must account for every idle word, so must we account for every idle silence.” Benjamin Franklin's words ring true for Petitioner Dione Pereira Lima, who struggles mightily to take back his words in the proceedings below, while simultaneously attempting to assert new claims of error. In this challenge to a final removal order requiring him to return to Brazil, Lima attempts to undo his attorneys' concessions of removability. He further seeks to argue—for the first time—that the Immigration Judge violated his due process rights by denying his motion to continue the proceedings below and by failing to permit him to amend his written pleadings. We deny the petition for review.

I. BACKGROUND

Lima is a native and citizen of Brazil who entered the United States on or about December 16, 2004. He adjusted status to that of lawful permanent resident on January 27, 2009. Later that year, Lima was arrested and charged with breaking and entering in the daytime in violation of Mass. Gen. Laws ch. 266 § 18.¹ Brought before the Malden District Court on December 15, 2009, Lima admitted facts sufficient for a finding of guilt. The court ordered the case to be continued without a finding for two years, and directed Lima to pay restitution of approximately $6,220.00.

Lima was arrested a second time in December 2010, this time on suspicion of breaking into cars, and charged with another violation of Mass. Gen. Laws ch. 266 § 18. On January 4, 2011, he appeared again in the Malden District Court and admitted to facts sufficient for a finding of guilt. This time, he received two years of probation.²

Lima's convictions quickly resulted in consequences beyond probation. On February 11, 2011, the Department of Homeland Security (“DHS”) served him with a Notice to Appear (“NTA”) charging him as removable under the Immigration and Nationality Act (“INA”) § 237(a)(2)(A)(ii) for being convicted, at any time after admission into the United States, of two crimes involving moral turpitude. A series of hearings and appeals regarding Lima's removability ensued. Because of their relevance to our decision today, we provide the following summary of events.

After an initial hearing at which an Immigration Judge (“IJ”) gave Lima additional time to secure legal representation, counsel appeared on March 3, 2011. During the course of proceedings that day, counsel told the IJ that Lima “has [been convicted of] two crimes of moral turpitude, which he has a breaking and entering of a house and breaking and entering of a vehicle.” Lima's attorney went on to submit written pleadings conceding the NTA's allegations and admitting that Lima was removable as charged. Counsel explained that Lima intended to apply for asylum and withholding of removal. The IJ raised some concern as to whether Lima would be eligible for asylum and asked whether he was “trying to do anything with the convictions,” to which counsel responded in the affirmative. He further stated that he would “have [Lima] come back in to submit the applications” for asylum and/or withholding of removal, and adjourned the proceedings until April 21, 2011.

Upon his return, and in spite of his past representations, defense counsel reported now that Lima would not be applying for asylum or withholding of removal after all. The IJ scheduled the next hearing, at which Lima was to appear in person, for May 5. Sometime thereafter, Lima discharged his original attorney and hired new counsel.³

Lima, with his new attorney beside him, appeared before the IJ on May 5. Addressing Lima's change in representation, counsel explained that Lima “did not agree with the course of action that his previous counsel wanted to take on the case and he seeked [sic] our office to represent him from this point forward.” She never denied or disavowed Lima's first attorney's admission that his 2009 conviction was for breaking into a “house.” She did, however, request a continuance so that Lima could move to vacate both convictions in the Malden District Court. Counsel stated that Lima had not been advised of the immigration consequences of pleading to the criminal charges and would, therefore, seek to overturn them pursuant to the Supreme Court's ruling in Padilla v. Kentucky.⁴

The IJ first noted that Lima had previously indicated he would accept a removal order. He denied Lima's motion to continue, observing that he did not know how long it would take the Massachusetts courts to dispose of Lima's Padilla motions. The IJ proceeded to find Lima removable by clear and convincing evidence based on Lima's “admissions, as well as his concession of removability.” The IJ then ordered Lima removed to Brazil.

Lima appealed to the Board of Immigration Appeals (“BIA”), taking the position that the IJ erred in not granting him a continuance to collaterally attack his state court convictions. Notably, Lima's brief to the BIA contains the explicit statement that Lima “is removable for two convictions for which [Lima] is actively pursuing post-conviction relief.” This was the sole ground Lima advanced in favor of reversal. The BIA upheld the removal order on August 22, 2011.

That same day, the Malden District Court granted Lima's new trial motion with respect to his 2011 conviction (the one for breaking into cars, according to his first attorney) on the grounds of ineffective assistance of counsel under Padilla.⁵ With this victory in hand, Lima filed a Motion to Reopen his removal proceedings. The BIA granted the motion on November 15, 2011, and remanded the matter to the IJ.

The IJ resumed proceedings on December 8, 2011, acknowledging as he did that one of Lima's convictions had been vacated since he entered the order of removal. DHS was not idle, however, and served Lima with a new NTA at this hearing. This second NTA alleged Lima's removability under INA § 237(a)(2)(A)(i) because he had been convicted of a single crime involving moral turpitude, for which a sentence of one year or longer could have been imposed, within five years of his admission to the United States. This second NTA refers to his 2009 conviction for breaking and entering a house.

Unlike the first go-round, this time Lima denied that he was removable. He requested another continuance to give him additional time to file a motion to vacate his 2009 conviction. DHS objected, stating that the second NTA did not set forth any new allegations and simply charged Lima as removable based on his 2009 conviction alone. DHS stated that Lima's counsel “should have been very well aware that was coming” and took the position that Lima already “had ample opportunity to have both these charges vacated.”

The IJ agreed with DHS and denied Lima's motion to continue. The IJ suggested that Lima reserve his right to appeal and “do the same thing that [he] did the last time,” i.e., seek to have the remaining conviction vacated while his appeal was pending.⁶ He proceeded to find Lima removable by clear and convincing evidence in light of his previous concession that both of his criminal convictions were for crimes involving moral turpitude.

Lima filed a second appeal with the BIA. He contended this time that the government failed to prove by clear and convincing evidence that his December 2009 conviction was for a crime involving moral turpitude. In his view, the government was required to present evidence that the felony he intended to commit after breaking into the house was itself a crime involving moral turpitude. Because the government presented no evidence as to the nature of the contemplated follow-up crime, Lima argued that it failed to prove his conviction was in fact for a crime involving moral turpitude.

Notably, Lima did not claim the IJ abused his discretion in denying the motion to continue, or that the outcome of the immigration proceedings would have been any different had he been given the extra time he sought. He did not complain that his due process rights had been violated in any respect. Further, Lima lodged no argument that it was improper for his former counsel to have admitted the factual allegations contained in the original NTA, that the 2009 conviction did not involve moral turpitude, or that he was not removable as charged in the original NTA. Neither did he contradict his first attorney's statement that his 2009 conviction was predicated upon his breaking and entering a house.

The BIA found it significant that, although Lima was challenging his removability on the grounds that his 2009 conviction was not for a crime involving moral turpitude, his prior counsel had already conceded that both the 2009 and 2011 convictionswere for crimes involving moral turpitude, rendering Lima removable. The BIA held Lima to these concessions and affirmed the removal order.

Lima's timely petition to this Court followed.

II. DISCUSSION

A. Standard of Review

The BIA did not simply adopt the IJ's decision as its own, but instead affirmed after providing its own analysis. Accordingly, we focus our review on the BIA's decision rather than the IJ's. López v. Holder, 740 F.3d 207, 210 (1st Cir.2014).

We review questions of law de novo, including the BIA's conclusion that a noncitizen's criminal conviction constitutes grounds for removal. Patel v. Holder, 707 F.3d 77, 79 (1st Cir.2013). Nevertheless, we will defer to the BIA's reasonable interpretations of the INA, “including its determination that a particular crime qualifies as one of moral turpitude, unless that...