Lopez-Chavez v. Garland
| Decision Date | 22 March 2021 |
| Docket Number | No. 18-3735,18-3735 |
| Parties | Brigido LOPEZ-CHAVEZ, Petitioner v. Merrick B. GARLAND, Attorney General of the United States Respondent |
| Court | U.S. Court of Appeals — Eighth Circuit |
Andrew Kenneth Nietor, Nietor Law Office, San Diego, CA, for Petitioner.
Kevin Conway, Carl H. McIntyre, U.S. Department of Justice, Civil Division, Office of Immigration Litigation, Washington, DC, Margaret Anne O'Donnell, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC, for Respondent.
Before BENTON, SHEPHERD, AND KELLY, Circuit Judges.
Brigido Lopez-Chavez, a native and citizen of Mexico, petitions this court for review of the denial of his application for cancellation of removal. Under the Immigration and Nationality Act (INA), 8 U.S.C. § 1101 et seq. , the Attorney General has the discretion to cancel removal proceedings in certain circumstances. Noncitizens who have "been convicted of any aggravated felony," however, are ineligible for cancellation of removal. Id. § 1229b(a).
In May 2017, an Immigration Judge (IJ) determined that Lopez-Chavez is ineligible for cancellation of removal because his 2006 federal conviction for illegal reentry in violation of 8 U.S.C. § 1326 qualifies as an aggravated felony. The Board of Immigration Appeals (BIA) affirmed the IJ's ruling and dismissed Lopez-Chavez's administrative appeal the following year.
The question now before the court is whether Lopez-Chavez's 2006 conviction qualifies as an aggravated felony under the INA, thus making Lopez-Chavez statutorily ineligible for cancellation of removal. We hold that it does not.
In 1986, after spending a couple of years in California as a seasonal agricultural worker, Lopez-Chavez moved to St. Louis, Missouri and started working at a restaurant. He became a legal permanent resident in 1990.
Lopez-Chavez's immigration-related problems started in 2003 after he was convicted in Missouri state court of possessing marijuana with intent to deliver. See Mo. Rev. Stat. § 195.211 (2016), transferred to and modified by Mo. Rev. Stat. § 579.055. In June of that year, the Department of Homeland Security (DHS), relying explicitly on his Missouri conviction, issued a Notice to Appear (NTA) alleging that Lopez-Chavez was removable because he had "been convicted of an aggravated felony." See 8 U.S.C. § 1227(a)(2)(A)(iii) (). Specifically, the NTA alleged that he had been convicted of an aggravated felony as defined in § 1101(a)(43)(B) of the INA, involving "illicit trafficking in a controlled substance." Id. § 1101(a)(43)(B). As a result, on June 25, 2003, the immigration court ordered that Lopez-Chavez be removed to Mexico.
Lopez-Chavez was removed in August 2003, but he reentered the country shortly thereafter. In 2006, Lopez-Chavez pleaded guilty in Missouri federal district court to illegal reentry in violation of 8 U.S.C. § 1326 and was sentenced to 38 months’ imprisonment. The 2003 removal order was reinstated, and Lopez-Chavez was once again removed to Mexico. He attempted reentry a second time in November 2009 but was detained either at the border or shortly after entering. In December 2009, he pleaded guilty to illegal reentry in violation of 8 U.S.C. § 1325 in Arizona federal district court and was sentenced to 180 days’ imprisonment. The 2003 removal order was again reinstated and Lopez-Chavez was removed to Mexico for the third time.
Less than a year later, in September 2010, Lopez-Chavez was arrested at a California port of entry. He was subsequently indicted in federal court on one count of attempted reentry and one count of illegal entry. See 8 U.S.C. §§ 1325, 1326(a). Lopez-Chavez moved to dismiss the attempted reentry count pursuant to § 1326(d), which allows noncitizens to challenge the validity of an underlying removal order if (1) they have "exhausted any administrative remedies that may have been available to seek relief against the order," (2) "the deportation proceedings at which the order was issued improperly deprived [them] of the opportunity for judicial review," and (3) "the entry of the order was fundamentally unfair." See 8 U.S.C. § 1326(d). Lopez-Chavez argued that he received ineffective assistance of counsel during the 2003 removal proceedings and that the IJ erroneously found him removable by classifying his 2003 Missouri conviction as an aggravated felony. The federal district court in California denied the motion, and in 2011 Lopez-Chavez pleaded guilty to attempted reentry, reserving the right to appeal the denial of his motion to dismiss.
In July 2014,2 the Ninth Circuit reversed. See United States v. Lopez-Chavez, 757 F.3d 1033, 1044 (9th Cir. 2014). The court determined that Lopez-Chavez received ineffective assistance of counsel throughout the 2003 removal proceedings, which prevented him from reasonably presenting his case, prejudiced him, and rendered the proceedings fundamentally unfair. Id. at 1042-43. Finding that Lopez-Chavez "satisfie[d] all three requirements necessary to sustain a collateral challenge to his underlying removal" under § 1326(d), the Ninth Circuit instructed the district court to dismiss the indictment. Id. at 1044.
On remand, the California federal district court vacated Lopez-Chavez's 2011 conviction. Meanwhile, Lopez-Chavez filed a motion to reopen the 2003 removal proceedings, which the immigration court granted, thus vacating the 2003 removal order and restoring Lopez-Chavez's status as a lawful permanent resident. See, e.g., Nken v. Holder, 556 U.S. 418, 429 n.1, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009) (); Bonilla v. Lynch, 840 F.3d 575, 589 (9th Cir. 2016) (); Bronisz v. Ashcroft, 378 F.3d 632, 637 (7th Cir. 2004) ().
But Lopez-Chavez's troubles did not end there. In February 2016, DHS filed an amended charge of removability against him under 8 U.S.C. § 1227(a)(2)(B)(i) for having been convicted of a controlled substance offense. Lopez-Chavez conceded the charge but filed an application for cancellation of removal as a lawful permanent resident under 8 U.S.C. § 1229b(a). The IJ, however, ruled that Lopez-Chavez is ineligible for cancellation of removal, reasoning that his 2006 illegal reentry conviction constituted an aggravated felony within the meaning of the INA. The BIA affirmed, and Lopez-Chavez timely petitioned this court for review. See id. § 1252(a)-(b).
Though we lack jurisdiction to review the BIA's ultimate, discretionary denial of cancellation of removal, 8 U.S.C. § 1252(a)(2)(B), we retain jurisdiction over any constitutional claims or questions of law raised in the petition for review. Id. § 1252(a)(2)(D). This includes the jurisdiction "to review the nondiscretionary determinations underlying a denial of an application for cancellation of removal, such as the predicate legal question [of] whether the BIA properly applied the law to the facts in determining an individual's eligibility to be considered for relief." Dominguez-Herrera v. Sessions, 850 F.3d 411, 414-15 (8th Cir. 2017) (cleaned up) (quoting Solis v. Holder, 647 F.3d 831, 832 (8th Cir. 2011) ). "We review questions of law de novo and accord substantial deference to the BIA's interpretation of immigration law and agency regulations." Id. at 415 (quoting Bernal-Rendon v. Gonzales, 419 F.3d 877, 880 (8th Cir. 2005) ).
Under 8 U.S.C. § 1229b(a), the Attorney General has the discretion to cancel removal proceedings for noncitizens who (1) have been "lawfully admitted for permanent residence for not less than 5 years," (2) have "resided in the United States continuously for 7 years after having been admitted in any status," and (3) have "not been convicted of any aggravated felony." 8 U.S.C. § 1229b(a). "The INA defines ‘aggravated felony’ to include a host of offenses." Moncrieffe v. Holder, 569 U.S. 184, 188, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013) ; see 8 U.S.C. § 1101(a)(43). One of them is "an offense described in section 1325(a) or 1326 of this title committed by an alien who was previously deported on the basis of a conviction for an offense described in another subparagraph of this paragraph" (meaning another "aggravated felony" under § 1101(a)(43) ). See 8 U.S.C. § 1101(a)(43)(O). Here, because Lopez-Chavez pleaded guilty in 2006 to "Illegal Reentry into the United States Subsequent to an Aggravated Felony Conviction" in violation of § 1326, the government contends his conviction "necessarily meets the requirements" of an aggravated felony under § 1101(a)(43)(O). We disagree.
To determine whether Lopez Chavez's 2006 conviction constitutes an aggravated felony under § 1101(a)(43)(O), we turn first to the language of the statute.3
See United States v. Cacioppo, 460 F.3d 1012, 1016 (8th Cir. 2006) (). Recall that an aggravated felony under § 1101(a)(43)(O) means "an offense described in section 1325(a) or 1326 of this title committed by an alien who was previously deported on the basis of a conviction for an offense described in another subparagraph of this paragraph." 8 U.S.C. § 1101(a)(43)(O). Thus, a court applying § 1101(a)(43)(O) must determine: (1) whether the noncitizen has committed an offense under § 1325(a) or § 1326 ; (2) whether the noncitizen committed that offense after having been "previously deported"; and (3) whether the previous deportation was...
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...jurisdiction to review the underlying legal determination of eligibility. 8 U.S.C. § 1252(a)(2)(B) & (D) ; Lopez-Chavez v. Garland, 991 F.3d 960, 963–64 (8th Cir. 2021). To be eligible, a petitioner must prove, among other things, that he has not been convicted for "a violation of (or a con......