Mondragón v. Holder

• Decision Date: 31 January 2013
• Docket Number: Nos. 11–2133,12–1070.,s. 11–2133
• Citation: 706 F.3d 535
• Parties: Manuel MONDRAGÓN, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent. Manuel Mondragón, Petitioner, v. Eric H. Holder, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

706 F.3d 535

Manuel MONDRAGÓN, Petitioner,

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

Manuel Mondragón, Petitioner,

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

Nos. 11–2133, 12–1070.

United States Court of Appeals,Fourth Circuit.

Argued: Oct. 23, 2012.

Decided: Jan. 31, 2013.

ARGUED:Nancy Aileen Noonan, Arent Fox, LLP, Washington, D.C., for Petitioner. Woei–Tyng Daniel Shieh, United States Department of Justice, Washington, D.C., for Respondent. ON BRIEF:Ralph A. Taylor, Jr., Peter V.B. Unger, Jennifer S. Allen, Eli M. Sheets, Arent Fox, LLP, Washington, D.C., for Petitioner. Stuart F. Delery, Acting Assistant Attorney General, Civil Division, Carl H. McIntyre, Jr., Assistant Director, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.

Before NIEMEYER, KING, and AGEE, Circuit Judges.

Petitions denied by published opinion. Judge NIEMEYER wrote the opinion, in which Judge KING and Judge AGEE joined.

OPINION

NIEMEYER, Circuit Judge:

Manuel Mondragón, a citizen of El Salvador, who entered the United States illegally and is therefore removable, sought discretionary relief from his removal under the Nicaraguan Adjustment and Central American Relief Act (“NACARA”). Mondragón would be eligible for this discretionary relief only if he could show that he had not been previously convicted of an aggravated felony, defined in the Immigration and Nationality Act (“INA”) as a crime of violence, for which the term of imprisonment is at least one year. The Board of Immigration Appeals (“BIA” or “Board”) found Mondragón ineligible for relief because he was unable to demonstrate that his 1996 Virginia conviction for assault and battery was not a crime of violence.

Although Mondragón could produce no conviction-related documents describing the conduct of his conviction, he offered his own affidavit in which he described in detail his conduct in an effort to show that it was nonviolent. Applying a modified categorical approach, the BIA rejected Mondragón's affidavit and found that the evidence of record was inconclusive as to whether Mondragón's conviction was for a crime of violence. Because Mondragón had the burden of demonstrating his eligibility for discretionary relief, the BIA found that Mondragón failed to carry his burden and ordered him removed.

At their core, Mondragón's arguments on appeal center on the BIA's refusal to permit him to present evidence that his conduct of conviction was nonviolent. He claims that the use of the modified categorical approach is too restrictive in the circumstances where he had the burden of proof and that the BIA should have allowed him to present his affidavit to demonstrate why he was eligible for relief from removal. He also argues that he was improperly disqualified for discretionary relief based on a definition of crime of violence that was adopted after his conviction and made retroactively applicable to him, in violation of his due process rights.

As appealing as Mondragón makes his case, we must ratify the BIA's application of the modified categorical approach. The failure to do so would bring about dramatic—and constitutionally problematic—consequences. Earlier convictions such as Mondragón's would be retried in immigration proceedings, putting to question the finality of earlier adjudications, and unfairness would inevitably result, as one party or the other would be unable to retrieve lost evidence, witnesses, or memories. Moreover, eligibility for relief from removal would no longer depend on the categorical fact that an alien had been convicted of a crime of violence, as provided for in NACARA, but rather on the retrial of the underlying facts for determination of whether the conduct constituted a crime of violence. As we explain more fully herein, both the law and prudence require that we reject Mondragón's arguments. We also reject his argument that the statute was improperly made retroactive. Accordingly, we deny his petitions for review.

I

Mondragón entered the United States illegally in 1990 and, shortly after arriving, applied for and was granted temporary protected status based on an ongoing civil war in El Salvador. He later married and now has three children who were born in the United States.

In August 1995, Mondragón applied for asylum pursuant to a settlement agreement reached in American Baptist Churches v. Thornburgh, 760 F.Supp. 796 (N.D.Cal.1991). While his asylum petition was pending, Mondragón pleaded guilty in early 1996 to a “misdemeanor” assault and battery charge in Virginia General District Court and was sentenced to one year's imprisonment, suspended. The only record relating to this conviction is a two-page document that served as a warrant for his arrest and recorded the disposition of the charge. That document indicates that on January 10, 1996, Mondragón pleaded guilty to assaulting and battering Jamship Kashani, in violation of Virginia Code § 18.2–57, and that he was sentenced to one year's imprisonment, suspended.

Because of this conviction, the Asylum Office in Arlington, Virginia, denied Mondragón's application for asylum on April 2, 2007, as the settlement agreement in American Baptist Churches, on which he relied to make his application, provided that class members who had been convicted of an “aggravated felony” as defined in the INA ( i.e., a crime of violence for which the term of imprisonment is at least one year) were not eligible for the benefits of the agreement. As Mondragón had entered the country illegally and thus remained removable, he was ordered to appear for removal proceedings. See8 U.S.C. § 1182(a)(6)(A)(i) (providing that “[a]n alien present in the United States without being admitted or paroled ... is inadmissible”).

Mondragón conceded removability, but he applied for relief from removal, this time under § 203 of NACARA, Pub.L. No. 105–100, 111 Stat. 2160, 2198 (1997), which provides that for NACARA-eligible aliens, “the Attorney General may ... cancel removal of, and adjust to the status of an alien lawfully admitted for permanent residence, an alien who is inadmissible or deportable from the United States.” (Emphasis added).^* NACARA further provides, however, that an alien who has committed an “aggravated felony,” as defined in the INA, is ineligible for its discretionary relief. Id.

On January 10, 1996, when Mondragón pleaded guilty to assault and battery, his conviction did not constitute an “aggravated felony.” At that time, the term “aggravated felony” was defined in the INA to include a crime of violence for which the term of imprisonment was at least five years, whereas the maximum sentence for Virginia's misdemeanor assault and battery was one year. See8 U.S.C. § 1101(a)(43)(F) (1995); Va.Code Ann. § 18.2–11. But the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), which was enacted in 1996 after Mondragón had pleaded guilty, amended the definition of “aggravated felony” to be a crime of violence for which the term of imprisonment was at least one year. See IIRIRA §§ 321(a)(3), 322(a), Pub.L. No. 104–208, 110 Stat. 3009, 3009–627, 3009–629 (1996) (codified at 8 U.S.C. § 1101(a)(43)(F) (2006)). Moreover, IIRIRA made this new definition of “aggravated felony” retroactive, providing that the amendment was to “apply to actions taken on or after the date of enactment of [IIRIRA], regardless of when the conviction occurred.” IIRIRA § 321(c) (emphasis added); see also id. § 322(c).

At Mondragón's removal hearing on December 22, 2008, the government challenged Mondragón's eligibility for NACARA relief from removal, contending that Mondragón's 1996 conviction was an “aggravated felony” which disqualified him from that relief. Mondragón maintained, however, that at the time he pleaded guilty, his conviction did not meet the definition of aggravated felony because the crime was not punishable by imprisonment for at least five years.

An immigration judge (“IJ”) denied Mondragón's application for relief from removal in a decision rendered on August 16, 2010, noting that IIRIRA § 321's aggravated-felony definition applied retroactively, so that Mondragón's 1996 conviction qualified as an aggravated felony “notwithstanding the fact that at the time he made the plea, he could not have been aware of the immigration consequences.” The IJ also applied a modified categorical approach to assess whether Mondragón's conviction was for a crime of violence and concluded that the available record of Mondragón's 1996 conviction, while complete, was inconclusive on the issue. Because Mondragón bore the burden of proof in seeking relief from removal, the IJ ruled that the inconclusive record was insufficient to show that Mondragón was eligible for cancellation of removal under NACARA.

Mondragón appealed the IJ's decision to the Board of Immigration Appeals and requested that it remand the case to permit him to present evidence demonstrating that he had not committed a “crime of violence.” He also argued that the retroactive application of the statutory definitionof “aggravated felony” was unconstitutional. The Board affirmed the IJ, finding that Mondragón did not satisfy his burden of demonstrating eligibility for NACARA's discretionary relief. It also agreed with the IJ that “the most recent amendments to the definition of ‘aggravated felony’ apply regardless of the date of the conviction.” Finally, the Board declined to remand the case, finding that Mondragón's request to present additional evidence about his 1996 conviction was “not supported by any pertinent, persuasive legal authority or by any affidavit from [Mondragón] or other evidence necessary to demonstrate that a remand is warranted.” From this decision of the Board, Mondragón filed his first petition for review in this court.

At the same time that he filed his first petition for review, Mondragón also filed a motion with the Board to reopen and reconsider its...