Mata-Guerrero v. Holder

• Decision Date: 24 November 2010
• Docket Number: No. 10-1664,10-1664
• Citation: 627 F.3d 256
• Court: U.S. Court of Appeals — Seventh Circuit
• Parties: Pedro MATA-GUERRERO, Petitioner, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

627 F.3d 256 Pedro MATA-GUERRERO, Petitioner, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent. No. 10-1664. United States Court of Appeals, Seventh Circuit. Argued Sept. 22, 2010. Decided Nov. 24, 2010.

Elisabeth Clayton, Attorney (argued), Kempster, Keller & Lenz-Calvo, Chicago, IL, for Petitioner.

Blair O'Connor, Attorney (argued), Oil, Attorney, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before MANION, TINDER, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge.

Petitioner Pedro Mata-Guerrero is a native of Mexico and has been a legal permanent resident of the United States since 1991. The Department of Homeland Security seeks to remove Mata-Guerrero from the United States under 8 U.S.C. § 1227(a)(2)(A)(iii) as an alien who has been convicted of an aggravated felony after his admission to the United States. Mata-Guerrero did not dispute the facts underlying the government's petition for removal, but he sought adjustment of his status and a waiver of inadmissibility under the former 8 U.S.C. § 1182(c) (a "212(c) waiver" in shorthand), on the basis that he had been convicted of only one crime of "moral turpitude." The government would have discretion not to remove him if he was convicted of only one crime of moral turpitude, but a second conviction for a crime of moral turpitude would bar him from the prospect of discretionary relief from removal.

The government contends that Mata-Guerrero has been convicted of a second crime of moral turpitude that bars him from seeking a 212(c) waiver. The issue is whether his conviction for failing to register as a sex offender as required by Wisconsin law was a crime of moral turpitude. Concluding that Mata-Guerrero's failure to register was a crime of moral turpitude, the Board of Immigration Appeals affirmed the immigration judge in denying Mata-Guerrero's application for a 212(c) waiver. However, the Board's conclusion was based entirely on an earlier Board decision that analyzed whether a failure to register was a crime of moral turpitude using the "categorical approach." In the meantime, the Attorney General has abandoned that approach. Because the Attorney General's determination of the appropriate methodology is controlling, and because the Board did not use that methodology in Mata-Guerrero's case, we grant the petition for review and remand to the Board for further proceedings under the proper methodology.

Before the repeal of section 212(c) in 1996, most deportable aliens who had accrued seven years of lawful permanent residence in the United States could request discretionary relief from deportation by arguing that the equities weighed in favor of allowing them to remain in the United States. Even an alien convicted of an aggravated felony (like Mata-Guerrero) was eligible for discretionary relief if he served a prison term of less than five years. Section 212(c) relief was unavailable, however, for an alien who had committed two or more crimes of moral turpitude.See 8 U.S.C. § 1182(c) (1994). Then, in 1996, the Illegal Immigration Reform and Immigrant Responsibility Act repealed section 212(c) relief and replaced it with a procedure called "cancellation of removal." Cancellation of removal is not available to an alien convicted of an aggravated felony. See 8 U.S.C. § 1229b(a); see also 8 U.S.C. § 1182(h) (provision of the Antiterrorism and Effective Death Penalty Act rendering aliens convicted of an aggravated felony, regardless of the length of sentence, ineligible for discretionary relief from deportation under former section 212(c)). Despite the statutory change, the Supreme Court has held that petitioners who pled guilty to their underlying offenses before the 1996 repeal of section 212(c) are still eligible to seek waiver under its terms. See Immigration and Naturalization Service v. St. Cyr, 533 U.S. 289, 326, 121 S.Ct. 2271, 150 L.Ed.2d 347(2001).

Mata-Guerrero pled guilty to first degree sexual assault of a child in violation of Wisconsin Statute § 948.02(1) in 1993. All agree that this crime was sufficient to justify his removal and that it was a crime of moral turpitude. Under the repealed section 212(c) and St. Cyr, the issue is whether Mata-Guerrero has also been convicted of a second crime of moral turpitude. Wisconsin has instituted a sex offender registry. Because of his 1993 conviction, Mata-Guerrero was required to register as a sex offender with the Wisconsin Department of Corrections and to provide certain information as set forth by statute. See Wis. Stat. § 301.45. Mata-Guerrero failed to register, and on October 19, 2005 he pled guilty to a misdemeanor for having failed to register as a sex offender under Wisconsin Statute § 301.45(2)(a). ¹ His sentence was two days of time served. Whether he is now even legally eligible for a discretionary section 212(c) waiver turns on whether this second conviction, like his first, was a crime of moral turpitude. If it was, no waiver is available.

Mata-Guerrero has argued before the Board of Immigration Appeals and on judicial review that his conviction for failing to register was not a crime of moral turpitude because the provision of Wisconsin law under which he pled guilty, section 301.45(2)(a), is a strict liability, regulatory offense that does not require proof of criminal intent, such as proof that Mata-Guerrero failed to register willfully or knowingly. He has argued that the record does not show that he had any criminal intent when he failed to register, much less that his conduct rose to the level of a crime of moral turpitude. A case from the Ninth Circuit supported Mata-Guerrero's position. See Plasencia-Ayala v. Mukasey, 516 F.3d 738 (9th Cir.2008).² The Board refused to give Plasencia-Ayala controlling weight in a matter arising in this circuit. Instead, the Board looked to one of its earlier decisions that found a "willful" failure to register as a sex offender under California law to be a crime of moral turpitude. See Matter of Tobar-Lobo, 24 I. & N. Dec. 143 (2007). Relying on that case, the Board concluded thatMata-Guerrero's conviction for failure to register was a crime of moral turpitude and therefore that Mata-Guerrero was ineligible for a section 212(c) waiver, even though Wisconsin Statute § 301.45(2)(a) contains no element of intent or even knowledge.

Because the classification of a crime as one of moral turpitude is a question of law, we have jurisdiction. See 8 U.S.C. § 1252(a)(2)(D). Our review of an agency's determination of whether a particular crime should be classified as a crime of moral turpitude ordinarily is deferential under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) (where Congress has left an administrative agency with discretion to resolve a statutory ambiguity, judicial review is deferential); accord, Immigration and Naturalization Service v. Aguirre-Aguirre, 526 U.S. 415, 424-25, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999) (applying Chevron principles to statutory interpretation by the Attorney General and the Board of Immigration Appeals); Ali v. Mukasey, 521 F.3d 737, 739 (7th Cir.2008) (applying Chevron deference to Board of Immigration Appeals decision regarding whether gun trafficking was a crime of moral turpitude for purposes of a waiver of inadmissibility).

The government urges us to defer to the Board's decision in this case. Chevron deference, however, assumes that an agency has taken a careful look at the general legal issue and has adopted a reasonably consistent approach to it. See Chen v. Holder, 607 F.3d 511, 514 (7th Cir.2010) (Board's decision was not precedential and therefore "did not count" for Chevron purposes, which required a formal resolution of the question by rulemaking or adjudication); Ghani v. Holder, 557 F.3d 836, 840 (7th Cir.2009) ( Chevron deference applied to the crime of moral turpitude question so long as it was clear that the Board engaged in substantive analysis and was not affirming without providing reasoning of its own).

In Mata-Guerrero's case, that simply has not happened. The Board relied on Matter of Tobar-Lobo without any independent analysis, and only in the absence of Seventh Circuit authority on the issue.³ How can we defer to the Board's decision in Mata-Guerrero's case when the Board did not actually adjudicate the issue and expressed that it would defer to this Court on the same question? Mata-Guerrero would be the victim of a procedural Catch-22.

Nor can we give deference to Tobar-Lobo. In Tobar-Lobo, the Board examined the California registry statute under which Tobar-Lobo had been convicted by using the "categorical approach" used for other recidivist statutes that require classification of prior crimes. See generally Taylor v. United States, 495 U.S. 575, 600-02, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and its progeny. In other words,the Board looked not to whether the "actual conduct constitute[d] a crime involving moral turpitude, but rather, whether the full range of conduct encompassed by the statute constitute[d] a crime of moral turpitude." 24 I. & N. Dec. at 144, quoting Fernandez-Ruiz v. Gonzales, 468 F.3d 1159, 1163 (9th Cir.2006). Equating failing to register with the crimes of statutory rape, child abuse, and spousal abuse, the Board in Tobar-Lobo found that failure to register as a sex offender under the California statute, even as a result of forgetfulness, was a crime of moral turpitude. Id. at 145-47. Even if we could overlook the clear distinction between that case and this one (the California statute considered by the Board in Tobar-Lobo required willfulness, while the Wisconsin statute under which Mata-Guerrero was convicted required no intent whatsoever), we cannot overlook that the Board in Tobar-Lobo applied the categorical approach. That methodology is no longer valid in determining whether a particular offense arises to a...