Matter of Almanza-Arenas
| Citation | 24 I&N Dec. 771 |
| Decision Date | 13 April 2009 |
| Docket Number | Interim Decision No. 3638.,File A078 755 092. |
| Parties | Matter of Gabriel ALMANZA-Arenas, Respondent. |
| Court | U.S. DOJ Board of Immigration Appeals |
In a decision dated November 1, 2006, an Immigration Judge found the respondent removable on his own admissions and denied his application for cancellation of removal under section 240A(b)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(1) (2006), but granted his request for voluntary departure. The respondent has appealed from that decision. The Department of Homeland Security ("DHS") filed a brief in opposition to the appeal. The respondent's appeal will be dismissed.
The respondent is a native and citizen of Mexico who last arrived in the United States without being admitted or paroled after inspection by an immigration officer. He was convicted of vehicle theft in violation of section 10851(a) of the California Vehicle Code on September 12, 2000.1 The record of conviction includes a felony complaint, count I of which charged that the respondent "did unlawfully drive and take a vehicle . . . without the consent of and with intent either permanently or temporarily to deprive the owner of title to and possession of said vehicle." The written plea agreement indicates that the respondent pled guilty to this count, but that it was reduced to a misdemeanor offense pursuant to section 17(b)(5) of the California Penal Code. It also indicates that the respondent admitted the charges in count I of the complaint, and that in the space for a description of the facts supporting the charge, the notation "Peo. v. West" is entered, which is a reference to People v. West, 477 P.2d 409 (1970).2
On February 2, 2005, the DHS filed a Notice to Appear charging that the respondent is subject to removal under section 212(a)(6)(A)(i) of Act, 8 U.S.C. § 1182(a)(6)(A)(i) (2006), as an alien who is present in the United States without being admitted or paroled. In removal proceedings, the respondent conceded removability and applied for cancellation of removal. The Immigration Judge denied the respondent's application, concluding that he failed to establish his eligibility for relief under section 240A(b)(1)(C) of the Act, because he failed to prove that he had not been "convicted of an offense" under section 237(a)(2) of the Act, 8 U.S.C. § 1227(a)(2) (2006), i.e., a crime involving moral turpitude.
In reaching his conclusion, the Immigration Judge first noted that the respondent bears the burden of proving that he is statutorily eligible for relief and that he merits a favorable exercise of discretion. In this regard, he concluded that the respondent's application is subject to the provisions of the REAL ID Act of 2005, Division B of Pub. L. No. 109-13, 119 Stat. 231 (enacted May 11, 2005) ("REAL ID Act"), which places the burden of proof on the respondent to show that he "satisfies the applicable eligibility requirements" for an application for relief from removal pursuant to section 240(c)(4)(A)(i) of the Act, 8 U.S.C. § 1229a(c)(4)(A)(i) (2006). Furthermore, he noted that under section 240(c)(4)(B) of the Act, when an Immigration Judge determines that corroborating evidence is required, the respondent must provide such evidence unless he demonstrates that he does not have the evidence and cannot reasonably obtain it.
The Immigration Judge then turned to the question whether the respondent's offense was a crime involving moral turpitude. He determined that section 10851 of the California Vehicle Code is a divisible statute because it could include the act of joyriding—defined as a crime of general intent to temporarily use a vehicle without authorization—as well as an actual theft offense, which requires a specific intent to deprive the owner vehicle of title to or possession of a vehicle, either temporarily or permanently.3 Because the respondent failed to provide evidence to prove that his crime was outside the scope of "theft," and thus not a crime involving moral turpitude, the Immigration Judge concluded that he failed to establish his eligibility for cancellation of removal.
The issue on appeal is whether the Immigration Judge erred in finding that the respondent failed to meet his burden of proving that he was not convicted of a crime involving moral turpitude in order to establish his eligibility for cancellation of removal.
We review the Immigration Judge's findings of fact, including questions regarding the credibility of testimony, under the "clearly erroneous" standard, while we review de novo questions of law, discretion, and judgment. See Matter of V-K-, 24 I&N Dec. 500 (BIA 2008); Matter of A-S-B-, 24 I&N Dec. 493 (BIA 2008); 8 C.F.R. § 1003.1(d)(3) (2008).
The respondent first argues that the Immigration Judge improperly applied the provisions of the REAL ID Act regarding the burden of proof to his case, because his Notice to Appear was filed on February 2, 2005, prior to the passage of the REAL ID Act. The REAL ID Act applies to all applications for relief filed on or after May 11, 2005, the effective date of its enactment. REAL ID Act § 101(h)(2), 119 Stat. at 305 (); see also Matter of S-B-, 24 I&N Dec. 42, 43 n.2 (BIA 2006) (). Contrary to the respondent's argument, it is the date the application for relief was filed that governs, rather than the date the Notice to Appear was filed. Because the respondent's application for relief was filed on January 18, 2006, the REAL ID Act provisions clearly apply to his case. Cf. Sandoval-Lua v. Gonzales, 499 F.3d 1121, 1132 n.10 (9th Cir. 2007) ().
The respondent next asserts that the Immigration Judge erred in requiring him to produce further evidence from the record of his criminal conviction, evidence that could resolve whether he was convicted under those elements of section 10851 that reach morally turpitudinous conduct. He contends that because his plea under People v. West, supra, does not require a finding of "factual guilt," see supra note 2, further evidence such as a plea colloquy could not be determinative of whether he was "convicted" of joyriding or theft.
It has been noted that a plea entered pursuant to People v. West is ambiguous with regard to the specific facts to which a criminal defendant has pled. See, e.g., United States v. Vidal, 504 F.3d 1072, 1089 (9th Cir. 2007) ("By entering a West plea, a defendant `[does] not admit the specific details about his conduct on the . . . counts [to which] he pled guilty.'" (quoting Carty v. Nelson, 425 F.3d 1064, 1068 (9th Cir. 2005)). For this reason, the United States Court of Appeals for the Ninth Circuit held that such a plea, without the transcript of the plea hearing, was insufficient to meet the Government's burden of proof to establish that a conviction under section 10851 was for a "theft offense" for purposes of imposing a sentence enhancement on the basis of a conviction for an aggravated felony. Id. at 1088-89. In this case, however, the respondent is seeking discretionary relief from removal, so he bears the burden of proof under sections 240(c)(4)(A)(i) and 240A(b)(1)(C) of the Act to establish that his offense was not "theft" and therefore was not a crime involving moral turpitude. Furthermore, under section 240(c)(4)(B), he also has the burden to produce corroborating evidence requested by the Immigration Judge to support his claim and must explain why any such evidence was not available if it is not submitted.
In light of the ambiguity in the respondent's conviction record resulting from the notation to People v. West, it was appropriate for the Immigration Judge to require the respondent, who bore the burden of proof, to produce more specific evidence, including the plea colloquy. As the Ninth...
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