Rendon v. Mukasey

• Decision Date: 15 February 2008
• Docket Number: No. 05-77064.,No. 05-77150.,05-77064.,05-77150.
• Citation: 520 F.3d 967
• Parties: Benedicto RENDON, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent. Benedicto Rendon, Petitioner, v. Michael B. Mukasey, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

520 F.3d 967

Benedicto RENDON, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent.

Benedicto Rendon, Petitioner, v. Michael B. Mukasey, Attorney General, Respondent.

No. 05-77064.

No. 05-77150.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 7, 2007.

Filed February 15, 2008.

Amended March 19, 2008.

Eileen R. Ridley, Michael A. Naranjo, Patrick T. Wong, Foley & Lardner LLP, San Francisco, CA, for the petitioner.

Stephen J. Flynn, Melissa Neiman-Kelting, Office of Immigration Litigation, Civil Division, Department of Justice, Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A90-111-293.

Before: MARY M. SCHROEDER, CYNTHIA HOLCOMB HALL, and JAY S. BYBEE, Circuit Judges.

ORDER

The opinion, filed on February 15, 2008, slip opinion 1417, is amended as follows:

At slip opinion 1422, first full paragraph, last sentence, replace "Rendon then timely appealed.", with "Rendon then timely appealed to this court, and was appointed pro bono counsel for the appeal."

At slip opinion 1424, footnote 2, last sentence, replace "Rendon's counsel could have challenged the IJ's decision on this issue, but simply did not do so.", with "Rendon's previous attorney could have challenged the IJ's decision on this issue, but simply did not do so."

The Motion by Petitioner for Clarification or Correction of Decision is GRANTED to the extent of these amendments.

OPINION

BYBEE, Circuit Judge:

In this case, we consider whether a state felony conviction for possession with intent to sell a controlled substance contains a trafficking element. We conclude that it does and therefore it qualifies as an aggravated felony under the immigration laws.

I. FACTS AND PROCEDURAL HISTORY

Benedicto Rendon is a native and citizen of Mexico who has been a lawful permanent resident of the United States since 1995. In April 1997, he was convicted of possession with the intent to sell marijuana under Kansas law (the "Kansas conviction"). See KAN. STAT. ANN. § 65-4163(a). Six years later, in May 2003, Rendon was convicted in Utah for attempting to possess cocaine in violation of UTAH CODE ANN. § 58-37-8(2)(a)(i) (the "Utah conviction"). The Department of Homeland Security ("Department") issued to Rendon a Notice to Appear on April 8, 2005, which charged him with removability under 8 U.S.C. § 1227(a)(2)(B)(i), as an alien who, after admission to the United States, has been convicted of a controlled substance violation. The Notice to Appear listed the Utah conviction as the basis for removal.

Rendon appeared pro se at his removal hearing before the Immigration Judge ("IJ"). He conceded his removability but applied for cancellation of removal, asylum, withholding of removal, and protection under the Convention Against Torture ("CAT").¹ The IJ found Rendon to be removable under § 1227(a)(2)(B)(i) on the basis of the Utah conviction. The IJ also found Rendon to be ineligible for any of the relief he requested because his Kansas conviction was an aggravated felony, see 8 U.S.C. § 1229b(a)(3), and as such was also a "particularly serious crime," see id. §§ 1158(b)(2)(A)(ii); 1158(b)(2)(B)(i); 1231(b)(3)(B)(ii).

Counsel represented Rendon during his appeal to the Board of Immigration Appeals ("BIA"), where he argued that the IJ erred in finding that the Kansas conviction was an aggravated felony. He also argued, inexplicably, that the IJ had erred in finding him removable on the basis of the Kansas conviction, even though the government never relied on the Kansas conviction as a basis of removal. Rendon did not mention the Utah conviction to the BIA or challenge that it was an appropriate basis for removal.

The BIA dismissed the appeal on December 6, 2005, concluding that Rendon had failed to challenge the finding of removability based on the Utah conviction, that Rendon had conceded his removability, and that the Department had submitted the conviction records to establish his removability. Although the BIA acknowledged that KAN. STAT. ANN. § 65-4163(a) criminalized conduct that is not an aggravated felony as well as conduct that is an aggravated felony, it found that it could determine from the records of the Kansas conviction that Rendon had been convicted of possession with intent to sell a controlled substance. The BIA agreed with the IJ that such a conviction contained a trafficking element, which made it an aggravated felony. Accordingly, the BIA sustained the IJ's finding that Rendon was ineligible for the relief he requested. Rendon then timely appealed to this court, and was appointed pro bono counsel for the appeal.

II. STANDARD OF REVIEW

We review the BIA's determination of purely legal questions, such as whether a conviction is a controlled substance offense that makes an alien removable under § 1227 and whether a conviction is an aggravated felony, de novo. See Cazarez-Gutierrez v. Ashcroft, 382 F.3d 905, 909 (9th Cir.2004).

III. DISCUSSION

A. Jurisdiction to Consider Removability Under § 1227

Rendon first argues that the BIA erred in affirming the IJ's finding that he was removable under 8 U.S.C. § 1227(a)(2)(B)(i) for his Utah conviction of attempted possession of cocaine. The government counters that Rendon did not raise this argument before the BIA and we therefore are without jurisdiction to hear this portion of his appeal. We agree with the government.

A court can only review a final order of removal if "the alien has exhausted all administrative remedies available to the alien as of right." 8 U.S.C. § 1252(d)(1). An alien's failure to exhaust his administrative remedies deprives this court of jurisdiction to hear the appeal. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004). Furthermore, "[a] petitioner cannot satisfy the exhaustion requirement by making a general challenge to the IJ's decision, but, rather, must specify which issues form the basis of the appeal." Zara v. Ashcroft, 383 F.3d 927, 930 (9th Cir.2004). Exhaustion of administrative remedies at the BIA level is required to "prevent ... `premature interference with the agency's processes,'" and to provide the BIA with notice of the issues that the petitioner asserts were wrongly decided. Id. at 931 (quoting Liu v. Waters, 55 F.3d 421, 424 (9th Cir.1995)).

In this case, the administrative record demonstrates that Rendon did not "specify which issue [] form[s] the basis of the appeal" and, at best, only made "a general challenge to the IJ's decision" concerning removability under § 1227. Id. at 930. The brief submitted to the BIA challenged only the finding of removability on the ground that Rendon's Kansas conviction was a controlled substance offense or an aggravated felony — a ground for removal that the Department has never put forward or relied upon. Indeed, Rendon's brief to the BIA never once mentioned the Utah conviction. The BIA is not required to anticipate objections that Rendon utterly failed to make, and we lack jurisdiction to address them here.

Rendon argues that he is permitted to make new arguments on appeal in support of the claims that he made to the BIA, citing to Lebron v. National Railroad Passenger Corp., 513 U.S. 374, 378-79, 115 S.Ct. 961, 130 L.Ed.2d 902 (1995). Because he argued to the BIA that he was not removable under § 1227, he attempts to construe his challenge to the Utah conviction as a new argument in support of that same general claim. We find no support in Lebron for this argument. The contention that the BIA erred in finding him removable under the Utah conviction is most appropriately categorized as a different claim, not a different argument supporting the same claim. The Utah and Kansas convictions are not related in any way and could each serve as an independent basis for removability. The Lebron rule does not save Rendon's forfeited claim.

We find unavailing Rendon's argument that any "waiver" of his right to challenge the finding of removability based on the Utah conviction was not considered and intelligent and he was therefore denied due process. The "considered and intelligent" requirement for waiver applies to an explicit waiver of the right to appeal. See United States v. Pallares-Galan, 359 F.3d 1088, 1095-96 (9th Cir.2004). Rendon did not waive his right to bring an appeal. The IJ gave Rendon detailed instructions on how to file the appeal, and Rendon had ample opportunity to present his arguments concerning the Utah conviction to the BIA but simply failed even to mention them. Rendon forfeited his challenge to the Utah conviction; he did not waive it.² See, e.g., United States v. Jacobo Castillo, 496 F.3d 947, 952 n. 1 (9th Cir.2007) (en banc) ("Waiver is `the intentional relinquishment or abandonment of a known right,' whereas forfeiture is `the failure to make the timely assertion of [that] right.'" (alteration in original) (quoting United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993))).

Because Rendon failed to exhaust his administrative remedies in connection with the finding of removability based on the Utah conviction, we do not have jurisdiction over this issue. We dismiss that portion of his petition.

B. Possession with the Intent to Sell Marijuana as an Aggravated Felony

Rendon next argues that the BIA and the IJ incorrectly found his Kansas conviction to be an aggravated felony for purposes of cancellation of removal, asylum, and withholding of removal.³ As an applicant for cancellation of removal and asylum, Rendon bears the burden of proving that he is eligible for the discretionary relief he is seeking. See 8 U.S.C. §§ 1158(b)(1)(B)(i); 1229a(c)(4)(A); Salviejo-Fernandez v. Gonzales, 455 F.3d 1063, 1066 (9th Cir.2006). When "the evidence indicates that one or more of the grounds for mandatory denial of the application for relief may apply, the alien shall have the burden of proving by a preponderance of the evidence that such grounds do not apply." 8...