Toro-Romero v. Ashcroft

• Decision Date: 30 August 2004
• Docket Number: No. 02-74460.,02-74460.
• Citation: 382 F.3d 930
• Parties: Luis TORO-ROMERO, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 930

382 F.3d 930

Luis TORO-ROMERO, Petitioner, v. John ASHCROFT, Attorney General, Respondent.

No. 02-74460.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 5, 2004.

Filed August 30, 2004.

Kaye A.Y. Evans, Beverly Hills, CA, for the petitioner.

Paul Fiorino, Office of Immigration Litigation, U.S. Department of Justice, Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals.

Before: NOONAN, KLEINFELD, and BERZON, Circuit Judges.

BERZON, Circuit Judge:

Appellant Luis Toro-Romero appeals the decision of the Board of Immigration Appeals ("BIA") affirming the Immigration Judge's ("IJ's") determination that he was inadmissible because he had "falsely represented[ ] himself ... to be a citizen of the United States" in order to gain entry to the United States.

I. Factual and Procedural Background

Toro-Romero, a native and citizen of Mexico, was one year old when he entered the United States in 1974. In 1989, he became a lawful permanent resident. Four years later, Toro-Romero pleaded guilty to having violated California Penal Code § 459, a criminal statute prohibiting burglary. The conviction was expunged in 1998.

On December 13, 1997, Toro-Romero took a day-trip to Mexico. At the border, he used another person's valid California birth certificate and claimed to be a United States citizen. According to Toro-Romero, he did this because he had lost his legal permanent resident card and did not know how to re-enter the United States without it. The border guards determined that Toro-Romero was not, in fact, a U.S. citizen and that the birth certificate was not his.

Toro-Romero was then served with a Notice to Appear. The Notice charged him with being inadmissible (1) as an alien convicted of a crime involving moral turpitude, 8 U.S.C. § 1182(a)(2)(A)(i)(I), and (2) as an alien who falsely represented himself as a U.S. citizen for a purpose or benefit under the Immigration and Nationality Act ("INA") or any other Federal or State law, 8 U.S.C. § 1182(a)(6)(C)(ii).¹

The IJ found Toro-Romero inadmissible (1) under 8 U.S.C. § 1182(a)(2)(A)(i)(I), because he had been convicted of a crime of moral turpitude, and (2) under 8 U.S.C. § 1182(a)(6)(C)(ii), because he had "falsely represented[ ] himself ... to be a citizen of the United States" in order to gain entry to the United States. The IJ also pretermitted Toro-Romero's application for relief under 8 U.S.C. § 1229b, a provision that allows cancellation of removal for certain permanent residents.² The IJ reached this conclusion because "any period of continuous residence ... in the United States" ends "when the alien [commits] an offense referred to in Section 212(a)(2) that renders the alien inadmissible to the United States under Section 212(a)(2)." See 8 U.S.C. § 1229b(d)(1). Toro-Romero gained lawful temporary resident status in 1987 and permanent legal resident status in 1989, but was then convicted of burglary (a crime involving moral turpitude, according to the IJ) in 1993, which the IJ held broke the period of continuous residence. Because Toro-Romero therefore had not "resided in the United States continuously for seven years after having been admitted in any status," the IJ concluded, he was ineligible for cancellation of removal.

Toro-Romero appealed the IJ's decision to the BIA, arguing, among other things, that the IJ abused her discretion by not granting his requests for cancellation of removal under 8 U.S.C. § 1229b(a) and for waiver of inadmissibility under 8 U.S.C. § 1182(i).³ He also claimed that neither the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104 132, 110 Stat. 1214, nor the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") Pub.L. 104-208, 110 Stat. 3009-546,⁴ can be applied retroactively to deprive him of his right to apply for a waiver of removal. Such a waiver of removal had been available to certain lawfully admitted, permanent residents under 8 U.S.C. § 1182(c),⁵ a provision of the INA that was subsequently repealed. Finally, Toro-Romero argued that the IJ erred in concluding that he was convicted of a crime of moral turpitude. See 8 U.S.C. § 1182(a)(2)(A)(i)(I) (stating that aliens convicted of a crime involving moral turpitude are ineligible for admission).

The BIA affirmed the IJ's conclusion that Toro-Romero was inadmissible, but on the sole ground that he had falsely represented himself to be a citizen of the United States. The Board held that Toro-Romero was not eligible for the exception to this inadmissability provision, 8 U.S.C. § 1182(a)(6)(C)(ii)(II), noting: "Under the Act, an alien who falsely claims that he is a United States citizen to obtain a benefit under the Act may be admissible if the alien establishes that he or she `reasonably believed at the time of making' the representation that he or she was a citizen of the United States." The BIA concluded that respondent's "mistake of judgment" did not satisfy the exception. Finally, the BIA recited that, "[a]s [Toro-Romero's] falsely claiming United States citizenship cannot be waived as a ground of inadmissibility and provides an independent ground for his removability, we need not decide any other issue raised on appeal."

Toro-Romero appeals the BIA's decision, making the argument, among others, that as a lawful permanent resident, Toro-Romero was not "seeking admission" when he tried to re-enter the United States, and thus could not be found "inadmissible" as charged under 8 U.S.C. § 1182(a)(6)(C)(ii).

II. Analysis

A. Jurisdiction

Our first inquiry must be whether we have jurisdiction to review the BIA's decision. See Aragon-Ayon v. INS, 206 F.3d 847, 849 (9th Cir.2000) (holding that a federal court retains its jurisdiction to determine whether or not it has jurisdiction). According to 8 U.S.C. § 1252(a)(2)(C), we do not "have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in section 212(a)(2) [8 U.S.C. § 1182(a)(2)]." Section 212(a)(2)(A)(i)(I), 8 U.S.C. § 1182(a)(2)(A)(i)(I), in turn, covers convictions for crimes involving moral turpitude. See supra n. 1. If Toro-Romero had been ordered removed solely because he had committed a crime involving moral turpitude, we would not have jurisdiction to review the agency's decision.

On the other hand, we have not been stripped of jurisdiction to review a final removal order based on 8 U.S.C. § 1182(a)(6)(C)(ii), false representation of citizenship. See generally 8 U.S.C. § 1252 (delineating the scope of federal court jurisdiction to review removal orders). Again, if Toro-Romero had been ordered removed solely because of his false representation at the border, we would have jurisdiction to review the agency's decision.

In Toro-Romero's case, of course, matters are not so clear-cut. While the IJ found Toro-Romero removable on both grounds (i.e., for having been convicted of a crime involving moral turpitude and for falsely representing himself as a U.S. citizen), the BIA only affirmed his removal on the false representation ground. Therefore, the sole ground for the final order of removal is Toro-Romero's false representation at the border. 8 U.S.C. § 1101(a)(47)(B)(i) (stating that an "order of deportation" becomes final upon "a determination by the Board of Immigration Appeals affirming such order"); 8 C.F.R. § 241.1(a) ("An order of removal made by the immigration judge ... shall become final ... [u]pon dismissal of an appeal by the Board of Immigration Appeals....").⁶

In Alvarez-Santos v. INS, 332 F.3d 1245 (9th Cir.2003), we were faced with a somewhat similar procedural posture. There, the IJ ordered Alvarez-Santos removed for having entered the United States illegally, found he was not removable for having committed a crime of moral turpitude, and granted his request for voluntary departure. Id. at 1249. On appeal, the BIA affirmed the denials of asylum and withholding of removal, but held Alvarez-Santos ineligible for voluntary departure because he had admitted the essential elements of a crime of moral turpitude. Id. The INS argued on review that this court was obliged independently to determine whether an alien was "removable"—meaning "could have been removed"—for having committed a crime involving moral turpitude. Id. at 1249-50. Not convinced, we held that "a person is not `removable' on a particular basis unless or until the IJ determines that he is." Id. at 1251. We therefore asserted jurisdiction, as Alvarez-Santos had not been removed for having committed a crime of moral turpitude. Id. at 1253.

In the proceedings against Toro-Romero, the IJ did find Toro-Romero removable due to his burglary conviction. The BIA, however, conducted a de novo review of the IJ's legal conclusions,⁷ issued a decision on the merits dismissing Toro-Romero's appeal, expressly declined to review the IJ's determination that Toro-Romero was removable because of his burglary conviction, and held Toro-Romero's false representation of citizenship an independent and sufficient ground for removal. Our review is limited to the BIA's decision. Duarte de Guinac v. INS, 179 F.3d 1156, 1160 (9th Cir.1999); see also Awe v. Ashcroft, 324 F.3d 509, 514 (7th Cir.2003) ("Since our appellate review is limited to the BIA's final orders of removal, we decline to look beyond the BIA's stated, procedural reasons for dismissing Awe's appeal and will not undertake a review of the merits of Awe's case as decided by the IJ.").

Whether or not the BIA could have found Toro-Romero inadmissible because of his burglary conviction, it did not. Alvarez-Santos, 332 F.3d at 1252 ("[A]n alien is not deportable on a specific ground simply because the agency could deport him on those grounds, although it did not."). As Toro-Romero thus is not, pursuant to Alvarez-Santos, "removable by reason of having committed a...