Pinos-Gonzalez v. Mukasey

• Decision Date: 05 March 2008
• Docket Number: No. 07-1299.,07-1299.
• Citation: 519 F.3d 436
• Parties: Jorge PINOS-GONZALEZ, Petitioner, v. Michael B. MUKASEY, Attorney General of the United States of America, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

519 F.3d 436

Jorge PINOS-GONZALEZ, Petitioner, v. Michael B. MUKASEY, Attorney General of the United States of America, Respondent.

No. 07-1299.

United States Court of Appeals, Eighth Circuit.

Submitted: November 15, 2007.

Filed: March 5, 2008.

Richard L. Breitman, argued, Bloomington, MN, for petitioner.

Stuart S. Nickum, U.S. Dept. of Justice, argued, Washington, DC, for respondent.

Before MURPHY, HANSEN, and GRUENDER, Circuit Judges.

HANSEN, Circuit Judge.

Jorge Pinos-Gonzalez ("Pinos") petitions for review of an order of the Board of Immigration Appeals (BIA), which dismissed his appeal from the decision of an Immigration Judge (IJ) finding him ineligible for cancellation of removal. The BIA concluded that Pinos was attempting to appeal an issue that he had conceded with an argument he had not raised before the IJ. Pinos asserts that the BIA erred by not considering his legal argument regarding his eligibility for cancellation of removal, and the Attorney General¹ responds that this court should give effect to the BIA's waiver rule. We deny the petition for review.

Pinos admitted the allegations of an amended Notice to Appear in removal proceedings and conceded the charge of removability. He subsequently applied for cancellation of removal. See 8 U.S.C. § 1229b(b). At a preliminary hearing on June 9, 2005, the IJ noted that his criminal record included a 2004 Minnesota conviction of domestic assault in the fifth degree in violation of Minn.Stat. § 609.224, and a 2002 Minnesota conviction for providing false information to a police officer in violation of Minn.Stat. § 609.506. The IJ noted that she considered these to be crimes involving moral turpitude and continued the hearing to provide an opportunity for the parties to address the issue of whether these convictions rendered Pinos ineligible for cancellation of removal. See § 1229b(b)(1)(C) (providing that cancellation of removal is available to an otherwise inadmissible alien if, among other things, the alien has not been convicted of an offense under § 1182(a)(2)); id. § 1182(a)(2)(A)(i) (stating an alien who has "committed, or who admits committing acts which constitute the essential elements of — (I) a crime involving moral turpitude . . . is inadmissible").

At the continued hearing on September 22, 2005, the IJ concluded that Pinos was ineligible for cancellation of removal because he had been convicted of two crimes involving moral turpitude, referencing the domestic assault conviction and the conviction for providing false information to an officer. Pinos asserted that his domestic assault conviction might be vacated in his postconviction proceeding that was then pending in the state appellate court, and if so, he would be eligible for cancellation of removal under the petty-offenses exception. See id. § 1182(a)(2)(A)(ii)(II) (providing that an alien is not barred from seeking cancellation of removal on the basis of only one crime involving moral turpitude if the maximum penalty possible for the crime does not exceed imprisonment for one year and the alien was not sentenced to more than six months of imprisonment). His attorney expressly acknowledged that if the state court did not vacate the domestic assault conviction, Pinos's convictions would render him ineligible for cancellation of removal. (See R. at 79-80.) The IJ agreed to continue the hearing.

When the hearing reconvened on January 6, 2006, the state postconviction proceeding was still pending, and the IJ denied Pinos's request for another continuance. Pinos acknowledged his convictions for domestic assault and providing false information to a police officer, and he did not again argue that he was eligible for cancellation of removal. The IJ concluded that these convictions rendered him ineligible for cancellation of removal and denied his request for a voluntary departure.

Pinos appealed to the BIA, arguing for the first time that his conviction for providing false information to an officer was not a "crime" of moral turpitude because the record indicated that the charge to which he pleaded guilty had been amended to a petty misdemeanor, which is not considered a "crime" under Minnesota law. See Minn.Stat. § 609.02, subd. 4a. Pinos argued that his one remaining crime of moral turpitude, the conviction for domestic assault, fit within the petty-offense exception, making him eligible for cancellation of removal as a matter of law, contrary to the IJ's determination. But, the BIA dismissed the appeal and refused to consider this argument because Pinos had waived it by not presenting it to the IJ. The BIA noted that Pinos had "acknowledged several times that his convictions would preclude him from cancellation of removal," (Petitioner's Add. at 2), and emphasized that the petitioner has the burden to demonstrate his eligibility for relief from removal and to develop the relevant issues at the hearing before the IJ.

Pinos then filed this petition for judicial review, arguing that the BIA erred in dismissing his appeal without considering the merits of his legal claim that he is eligible for cancellation of removal under the petty-offense exception. This court does not have jurisdiction to review the discretionary denial of cancellation of removal under § 1229b, see 8 U.S.C. § 1252(a)(2)(B)(i), but we have jurisdiction to review constitutional claims or questions of law raised in a petition for judicial review, see id. § 1252(a)(2)(D). We may also review the nondiscretionary determinations underlying a denial of an application for cancellation of removal, "such as the predicate legal question whether the IJ properly applied the law to the facts in determining an individual's eligibility." Guled v. Mukasey, 515 F.3d 872, 880 (8th Cir.2008); see Reyes-Vasquez v. Ashcroft, 395 F.3d 903, 906 (8th Cir.2005). Here, the IJ considered Pinos's request for cancellation of removal and found him to be ineligible on the basis of two convictions involving moral turpitude. Pinos acknowledged the convictions before the IJ but raised a new argument attacking one of those convictions in his appeal to the BIA. Citing its own precedents, the BIA refused to consider this new argument, finding that Pinos had waived it by not raising the argument before the IJ. While we have jurisdiction to consider legal arguments regarding an individual's underlying eligibility for discretionary review, this case presents a situation where the agency itself has never ruled upon the merits of the argument that is presented to us, citing its own procedural waiver rule.

The federal regulations provide the BIA with discretionary authority to review the legal conclusions of immigration judges de novo, 8 C.F.R. § 1003.1(d)(3)(ii), and authority to prescribe procedural rules governing the proceedings before it, id. § 1003.1(d)(4). The BIA has held that issues not raised before the IJ are not preserved for appeal. See, e.g., In re R-S-H, 23 I & N Dec. 629, 638 (2003) (holding an alien "waived his opportunity to pursue this issue on appeal" by not raising the issue at the hearing before the IJ); see also Torres de la Cruz v. Maurer, 483 F.3d 1013, 1022-23 (10th Cir.2007) (citing several BIA cases holding the same). The Tenth Circuit in Torres de la Cruz considered the BIA's procedural bar and found it to be "wholly consistent with [the BIA's] rules of practice," including its charge to function as an appellate body. 483 F.3d at 1023 (citing 8 C.F.R. § 1003.1(d)). The Tenth Circuit reasoned that the policies underlying a general appellate waiver rule "apply with equal force to the BIA," and that the BIA can therefore appropriately apply the doctrine of waiver under its own rules and precedents. Id. The Tenth Circuit gave effect to the BIA's waiver rule by declining to reach the issue for the same reasons as the BIA. We find that reasoning to be sound. Where the agency properly applies its own waiver rule and refuses to consider the merits of an argument that was not raised...