Mendiola v. Holder, No. 12-9570

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtJEROME A. HOLMES Circuit Judge
PartiesEDDIE MENDIOLA, Petitioner, v. ERIC H. HOLDER, JR., United States Attorney General, Respondent.
Decision Date22 August 2014
Docket NumberNo. 12-9570

ERIC H. HOLDER, JR., United States Attorney General, Respondent.

No. 12-9570


August 22, 2014


Before LUCERO, EBEL, and HOLMES, Circuit Judges.

Petitioner-Appellant Eddie Mendiola petitions this court for review of a final order issued by the Board of Immigration Appeals (the "Board" or "BIA") on July 11, 2012, denying his third, untimely motion to reopen his removal proceedings. Mr. Mendiola argued that although the motion to reopen was untimely and numerically barred, his case nonetheless merited sua sponte reopening based on intervening fundamental changes in the law. Mr. Mendiola

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argued that sua sponte reopening was warranted because, due to new Supreme Court precedent relating to the basis for his removal and to alleged ineffective assistance of counsel, his initial removal was legally invalid. The Board denied Mr. Mendiola's motion, concluding that the ineffective-assistance claim failed on its merits because Mr. Mendiola had not demonstrated that he was prejudiced by his attorney's alleged failings, and finding that Mr. Mendiola had failed to show that the purported fundamental changes in the law entitled him to relief.

To the extent that Mr. Mendiola challenges the Board's exercise of discretion in declining to sua sponte reopen removal proceedings, we dismiss for lack of jurisdiction. With respect to Mr. Mendiola's ineffective-assistance argument and his change-of-law argument based on the Supreme Court's decision in Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010)—to the extent that he argues that the case affects the fact of his removability—we find that these arguments fail on their merits; accordingly, we deny Mr. Mendiola's petition and affirm the decision of the Board on these points. Finally, with respect to Mr. Mendiola's argument that, under Carachuri-Rosendo he is entitled to seek cancellation of removal, for the reasons set forth below we grant the petition and remand this claim to the Board to clarify the basis of its decision.

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Mr. Mendiola is a native citizen of Peru who became a lawful permanent resident of the United States on April 28, 1989. Mr. Mendiola has a lengthy criminal history. On July 29, 1996, he was convicted in the Superior Court of Orange County, California, for assault with a deadly weapon, a felony, in violation of section 245(a)(1) of the California Penal Code; and of possession of a controlled substance (steroids), a misdemeanor, in violation of section 11377(a) of the California Health and Safety Code. On April 7, 2000, Mr. Mendiola was convicted once again for possession of a controlled substance (steroids) in violation of section 11377(a), this time as a felony.1 On September 25, 2003, Mr. Mendiola was convicted in the First Judicial District of Kootenai County, Idaho, of accessory to a felony, in violation of Sections 18-205 and 18-206 of the Idaho Code.

The Department of Homeland Security ("DHS") commenced removal proceedings against Mr. Mendiola on April 16, 2004, in Aurora, Colorado, under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1227(a)(2)(A)(iii), based on Mr. Mendiola's conviction of an aggravated felony as defined in section 101(a)(43)(B) of the INA, 8 U.S.C. § 1101(a)(43)(B).

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On July 14, 2004, the immigration judge entered an oral decision, concluding that Mr. Mendiola's conviction for possession of steroids was a "drug offense [a]s defined in the federal statutes." R. at 780 (Oral Decision of Immigration Judge, dated July 14, 2004). The immigration judge further concluded that Mr. Mendiola was removable as an aggravated felon based on his second conviction, explaining that "[i]f an individual is convicted of a second drug offense under the federal code, it is regarded as a felony."2 Id. Based on these findings, the immigration judge ordered Mr. Mendiola removed to Peru.

Mr. Mendiola appealed the decision of the immigration judge to the Board, which affirmed the decision on November 9, 2004. The Board explained:

[Mr. Mendiola's] California convictions for possession of a controlled substance was [sic] a "drug trafficking crime" under 18 U.S.C. § 924(c)(2) and therefore an aggravated felony under . . . 8 U.S.C. § 1101(a)(43)(B). In removal proceedings, the determination [of] whether a state drug offense constitutes a "drug trafficking crime" is made by reference to decisional

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authority from the pertinent [jurisdiction]. The Tenth Circuit has consistently held that a state drug offense qualifies as a drug trafficking aggravated felony if it is punishable under federal narcotics law and classified as a felony in the convicting jurisdiction. The Immigration Judge found that steroids are controlled substances under federal law, the possession of which violates 21 U.S.C. § 844(a), and the respondent has not contested that finding on appeal. Moreover, California classifies the respondent's 2000 offense as a felony. It follows that the Immigration Judge correctly concluded that the respondent was an aggravated felon, and ineligible for any form of relief from removal.

Id. at 726 (Board Order, dated Nov. 9, 2004) (citations omitted).

Mr. Mendiola was removed from the United States on March 2, 2005. He re-entered the country illegally on or about July 15, 2005. Following reentry, Mr. Mendiola petitioned this court for judicial review of the Board's 2004 order. On July 27, 2006, we dismissed that petition in part and denied it in part. See Mendiola v. Gonzales, 189 F. App'x 810 (10th Cir. 2006). On November 14, 2006, DHS issued an order reinstating Mr. Mendiola's prior removal order.

On May 14, 2007, Mr. Mendiola, through his attorney, filed his first motion to reopen his removal proceedings with the Board. In this motion, Mr. Mendiola made several arguments, including: (1) that the initial removal order "ha[d] been collaterally overturned by the Supreme Court" in Lopez v. Gonzales, 549 U.S. 47 (2006), which he cited for the proposition that "a possessory offense of a controlled substance is a misdemeanor under federal law," R. at 712, 715 (Mot. to Reopen Removal Proceedings, filed May 14, 2007); (2) that the Board could

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reopen his proceedings sua sponte; and (3) that his motion was not number-barred or barred on any other procedural grounds. The Board denied this motion for lack of jurisdiction on June 11, 2007. It explained that under 8 C.F.R. § 1003.2(d)—the so-called "post-departure bar"—"[a] motion to reopen may not be made by an alien in removal proceedings subsequent to his departure from the United States."3 Id. at 701 (Board Order, dated June 11, 2007).

Mr. Mendiola again petitioned this court for judicial review of the Board's decision. On May 30, 2008, we affirmed the Board's jurisdictional ruling. We rejected Mr. Mendiola's belated appellate argument challenging the application of the post-departure bar, explaining that Mr. Mendiola had failed to challenge the Board's application of the doctrine in his opening brief and thus had "waived this argument." Mendiola v. Mukasey, 280 F. App'x 719, 722 (10th Cir. 2008). We also noted, however, that even if the post-departure bar did not apply to Mr. Mendiola, his invocation of the Supreme Court's decision in Lopez "[would] not assist him," because "[u]nder the Controlled Substances Act, a conviction for possession of a controlled substance committed after a prior possession

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conviction" is a felony. Id.

On September 11, 2008, Mr. Mendiola, through new counsel, filed with the Board a second motion to reopen, styled a "motion to reopen and motion to reconsider to vacate invalid removal order pursuant to 8 C.F.R. § 1003.2(a) and 8 C.F.R. § 1003.2(c)(1)." R. at 478 (Mot. to Reopen & Reconsider, filed Sept. 11, 2008) (capitalization altered). In this motion, Mr. Mendiola asked the Board to exercise its sua sponte authority to reopen his proceedings and vacate his removal on the basis that his 2005 removal had been unlawful because it was predicated on the finding that his conviction in 2000 (his second conviction for possession of steroids) was a felony conviction, whereas "[o]n August 28, 2007, the Superior Court of the State of California entered an order clarifying that [the conviction] was and will always be a misdemeanor" under state law. Id. at 486-87. Alternatively, Mr. Mendiola argued that his removal proceeding should be reopened "pursuant to 8 C.F.R. § 1003.2(c)(1) based on ineffective assistance of counsel," principally because his former attorney "failed to raise available defenses and remedies establishing that Mr. Mendiola had not been convicted of any offense that has adverse immigration consequences." Id. at 498. Although the motion was filed well after the ninety-day deadline for motions to reopen, see 8 C.F.R. § 1003.2(c)(2), Mr. Mendiola argued that the motion to reopen was not time-barred for two reasons: first, because "numerical and time limitations for filing a motion to reopen do not confine [the Board's] sua sponte authority to

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reopen proceedings," R. at 496, and second, because his delay in filing was a consequence of his "former attorney's actions and omissions" and thus any applicable time and number limits should be equitably tolled, see id. at 496-98.

The Board denied Mr. Mendiola's second motion to reopen on October...

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