Renteria-Morales v. Mukasey

• Decision Date: 10 July 2008
• Docket Number: No. 06-73283.,No. 04-74742.,04-74742.,06-73283.
• Citation: 532 F.3d 949
• Parties: Irma RENTERIA-MORALES, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent. Maria Jesus Rivera de Alvarado, Petitioner, v. Michael B. Mukasey, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

532 F.3d 949

Irma RENTERIA-MORALES, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent.

Maria Jesus Rivera de Alvarado, Petitioner, v. Michael B. Mukasey, Attorney General, Respondent.

No. 04-74742.

No. 06-73283.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 9, 2007.

Filed July 10, 2008.

Martin R. Guajardo (brief) and Marty Robles (argued), Law Office of Martin R. Guajardo, San Francisco, CA, for the petitioner, Irma Renteria-Morales.

Marshall Tamor Golding (brief) and Ann Carroll Varnon (argued), United States Department of Justice, Civil Division, Washington, D.C., for the respondent, Michael B. Mukasey.

Carol Dvorkin, San Francisco, CA, for the petitioner, Maria Jesus Rivera de Alvarado.

David Schor, United States Department of Justice, Civil Division, Washington, D.C., for the respondent, Michael B. Mukasey.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency Nos. A92-202-968, A17-970-844.

Before: SIDNEY R. THOMAS, RICHARD C. TALLMAN, and SANDRA S. IKUTA, Circuit Judges.

Opinion by Judge IKUTA; Partial Concurrence and Partial Dissent by Judge TALLMAN

IKUTA, Circuit Judge:

The two petitions for review consolidated in this opinion¹ raise the question whether a conviction for failure to appear in court in violation of 18 U.S.C. § 3146² is categorically an aggravated felony as defined by 8 U.S.C. § 1101(a)(43)(S)³ or 8 U.S.C. § 1101(a)(43)(T).⁴ Applying the categorical approach prescribed by Taylor v. United States, 495 U.S. 575, 600-02, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), we conclude that a violation of § 3146 is not categorically an aggravated felony under either provision. Applying the modified categorical approach to the two petitions before us, we determine that the prior conviction of one petitioner qualifies as an aggravated felony and the prior conviction of the other petitioner does not.

I

Irma Renteria Morales (Renteria) and Maria Jesus Rivera de Alvarado (Rivera), both natives and citizens of Mexico, petition for review of the affirmance by the Board of Immigration Appeals (BIA) of a final order of removal.

A

Renteria became a lawful permanent resident of the United States in 1990. On January 13, 1998, Renteria pleaded guilty to violation of 18 U.S.C. § 3146. The judgment entered by the district court stated: "The defendant is convicted of the offense(s) of: violating Title 18, United States Code, Sections 3146, Bail Jumping, as charged in the Information filed herein." The information stated:

That on or about July 20, 1992, at or near Tucson, in the District of Arizona, IRMA LINDA RENTERIA-MORALES, after having been released on or about March 2, 1992, pursuant to Chapter 207 of Title 18 of the United States Code, in connection with a charge of possession with intent to distribute marijuana, in violation of Title 21 United States Code § 841(a)(1), an offense punishable by imprisonment for a term of not more than five (5) years, and having been directed to appear before the District Court of Arizona at Tucson, Arizona, on July 20, 1992, wilfully did fail to appear as required;

All in violation of Title 18 United States Code Section 3146.

On March 3, 1998, the government filed a notice to appear alleging that Renteria was subject to removal under 8 U.S.C. § 1227(a)(2)(A)(iii)⁵ due to her violation of 18 U.S.C. § 3146. The government claimed that a violation of § 3146 constituted an aggravated felony for purposes of 8 U.S.C. § 1101(a)(43)(T). Over Renteria's objections, the immigration judge (IJ) agreed with the government's interpretation of § 1101(a)(43)(T) and pretermitted Renteria's application for cancellation of removal. See 8 U.S.C. § 1229b(a)(3). Renteria appealed to the BIA, which affirmed the IJ's determination without an opinion. Renteria timely filed a petition for review to this court.

B

Rivera became a lawful permanent resident of the United States in 1967. In 1973, she was indicted by a grand jury for conspiracy to illegally import heroin, illegal importation of heroin, conspiracy to possess a controlled substance with intent to distribute, and possession of a controlled substance with intent to distribute. Rivera pleaded not guilty and was released on bail. While on bail, she fled the United States. The government filed a second indictment charging Rivera with violation of 18 U.S.C. § 3150⁶ in August 1973. In 2004, Rivera was arrested while crossing the border from Mexico into the United States based on an outstanding warrant for failure to appear. Rivera pleaded guilty to a violation of 18 U.S.C. § 3146, and the government dismissed the drug charges. Rivera was sentenced to a $100.00 assessment and a sentence of twelve months and one day.

In 2005, the government filed a notice to appear alleging that Rivera was subject to removal on two grounds: (1) under 8 U.S.C. § 1182(a)(2)(A)(i)(I) for being an alien who committed a crime of moral turpitude, and (2) under 8 U.S.C. § 1182(a)(2)(C), for being an alien who "the Attorney General knows or has reason to believe ... is or has been a knowing aider, abettor, assister, conspirator, or colluder with others in the illicit trafficking in any such controlled ... substance." 8 U.S.C. § 1182(a)(2)(C)(i). On November 14, 2005, Rivera filed an application for cancellation of removal.

The IJ sustained the two charges of removability and pre-termitted and denied the application for cancellation of removal on the ground that Rivera's conviction under 18 U.S.C. § 3146 qualified as an aggravated felony under 8 U.S.C. § 1101(a)(43)(S) as "an offense relating to obstruction of justice." See 8 U.S.C. § 1229b(a)(3).

Rivera appealed to the BIA challenging only the denial of her application for cancellation of removal. The BIA affirmed the IJ in a reasoned opinion, agreeing "that the respondent was convicted of an aggravated felony because the offense of bail jumping falls within the definition of an obstruction of justice crime under section 101(a)(43)(S) of the Immigration and Nationality Act." Rivera timely filed a petition for review to this court.

We have jurisdiction under 8 U.S.C. § 1252(a) to review the legal question whether a conviction underlying an order of removal or the denial of relief constitutes an aggravated felony. See Li v. Ashcroft, 389 F.3d 892, 895 (9th Cir. 2004). If the BIA conducted "an independent review ... we review the BIA's decision and not that of the IJ." Sinotes-Cruz v. Gonzales, 468 F.3d 1190, 1194 (9th Cir. 2006). However, where the BIA summarily affirms the holding of the IJ without opinion, we review the IJ's decision as the final agency determination. See Falcon Carriche v. Ashcroft, 350 F.3d 845, 849 (9th Cir.2003).

II

In analyzing Renteria's petition, we must determine whether a conviction for failure to appear in court in violation of 18 U.S.C. § 3146 constitutes an aggravated felony under 8 U.S.C. § 1101(a)(43)(T), which defines aggravated felony to include certain offenses relating to a failure to appear. In analyzing Rivera's petition, we must determine whether a conviction for violating § 3146 constitutes an aggravated felony under § 1101(a)(43)(S), which defines aggravated felony to include certain offenses relating to obstruction of justice. If a violation of § 3146 meets the definition set forth in § 1101(a)(43)(S) or (T), it counts as an aggravated felony for purposes of making the alien removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii). It will also count as an aggravated felony for purposes of rendering an alien ineligible for cancellation of removal pursuant to 8 U.S.C. § 1229b(a)(3).

To determine whether a conviction under § 3146 constitutes an aggravated felony under § 1101(a)(43)(S) or (T), we apply the categorical approach set forth in Taylor, 495 U.S. 575, 110 S.Ct. 2143, to the Immigration and Nationality Act (INA). See Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1125 (9th Cir.2006) (en banc). Using this approach, we determine what Congress meant by "obstruction of justice" or "failure to appear" in § 1101(a)(43)(S) and (T) respectively by discerning the generic federal definition of these crimes. Because § 1101(a)(43) is part of the INA, we must defer to the BIA's articulation of the generic federal definition "if the statute is silent or ambiguous with respect to the specific issue before the agency and the BIA's interpretation is `based on a permissible construction of the statute.'" Parrilla v. Gonzales, 414 F.3d 1038, 1041 (9th Cir.2005) (quoting INS v. Aguirre-Aguirre, 526 U.S. 415, 424, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999)). We accord Chevron deference where there is "binding agency precedent on-point (either in the form of a regulation or a published BIA case)." Kharana v. Gonzales, 487 F.3d 1280, 1283 n. 4 (9th Cir.2007); see Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).

After determining the elements of the generic crimes listed in § 1101(a)(43)(S) and (T), the second step in the Taylor analysis is to identify the elements of the specific crime of conviction, in this case § 3146. We do not defer to the BIA's interpretations of state law or provisions of the federal criminal code. Parrilla, 414 F.3d at 1041. Rather, we review de novo whether the specific crime of conviction meets the INA's definition of an aggravated felony. Li, 389 F.3d at 895; Randhawa v. Ashcroft, 298 F.3d 1148, 1151 (9th Cir.2002). If the elements of the specific crime of conviction are narrower than or the same as the elements of the generic crime, then the specific crime of conviction categorically counts as an offense listed in § 1101(a)(43). See Fernandez-Ruiz, 466 F.3d at 1125.

If the elements of the specific crime of conviction are broader than the elements of the generic crime listed in the INA, we may "go beyond the mere fact of conviction" and consider whether the petitioner was necessarily convicted of all the elements of the generic...