Vargas-Hernandez v. Gonzales

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation497 F.3d 919
Docket NumberNo. 04-73343.,04-73343.
PartiesJuan Carlos VARGAS-HERNANDEZ, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.
Decision Date03 August 2007

Louis A. Gordon (argued), Gordon Law Offices, Los Angeles, CA, and Vera Weisz, Law Office of Vera A. Weisz, Los Angeles, CA, for the petitioner.

Jennifer Paisner (argued), Assistant Attorney General Peter D. Keisler, Senior Litigation Counsel Julia Doig Wilcox, and Melissa Neiman-Kelting, Office of Immigration Litigation, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A92-434-343.

Before: CYNTHIA HOLCOMB HALL and CONSUELO M. CALLAHAN, Circuit Judges, and JAMES L. ROBART,* District Judge.

CALLAHAN, Circuit Judge:

Petitioner Juan Carlos Vargas-Hernandez ("Vargas") petitions for review from the Board of Immigration Appeals' ("BIA") dismissal of his appeal from the immigration judge's ("IJ") order of removal. The BIA rejected Vargas' attempt to remand his case so that he could apply for adjustment of status, and concluded that Vargas failed to make a heightened showing to justify discretionary relief under former Immigration and Nationality Act ("INA") § 212(c), formerly codified at 8 U.S.C. § 1182(c). The BIA also found that the record did not show that the IJ was biased against him to the extent that she denied him due process. We dismiss the petition concerning the treatment of Vargas' juvenile conviction, and deny the petition regarding Vargas' due process claims.

FACTUAL BACKGROUND

Vargas is a native and citizen of Mexico who became a lawful permanent resident on September 3, 1989. In 1990, Vargas was prosecuted as an adult for murder and attempted murder. On February 4, 1991, he pleaded guilty to one count of voluntary manslaughter and was sentenced to one year in jail on a suspended sentence of eleven (11) years. At the time, Vargas was approximately sixteen (16) years old. Vargas was also convicted of misdemeanor vandalism in 1996.

PROCEDURAL HISTORY

The Immigration and Naturalization Service ("INS") began removal proceedings against Vargas in 2002, alleging that he had been convicted of voluntary manslaughter, an aggravated felony. On July 30, 2002, the IJ sustained the charge of removability against Vargas, and Vargas requested § 212(c) relief.1 At the beginning of the final hearing on February 12, 2003, Vargas filed a motion to continue to request an opportunity to file for an adjustment of status as the husband of a United States citizen.2 The IJ denied § 212(c) relief on February 12, 2003, and ordered Vargas deported.

Vargas' wife Sandra filed a petition for alien relative (I-130) on March 9, 2003. Vargas filed his appeal from the IJ's removal order on August 4, 2003, after receiving an extension of time. Vargas attached an undated application to register for permanent residence or adjust status to his February 9, 2004 motion to remand the removal proceedings for adjustment of status. The BIA denied the motion to remand and dismissed Vargas' appeal, concluding that the IJ appropriately denied discretionary relief under § 212(c), that Vargas had not shown good cause for any further continuances, and that Vargas failed to demonstrate bias by the IJ.

STANDARD OF REVIEW

We have jurisdiction over petitions for review that raise colorable constitutional claims or questions of law. 8 U.S.C. § 1252(a)(2)(D). This court lacks jurisdiction to review certain orders of removal against criminal aliens. 8 U.S.C. § 1252(a)(2)(C). Questions of law, including due process claims, are reviewed de novo. Fernandez-Ruiz v. Gonzales, 410 F.3d 585, 587 (9th Cir.2005); Colmenar v. I.N.S., 210 F.3d 967, 971 (9th Cir.2000). Our review is limited to the BIA's decision and the grounds for the final order of removal affirmed by the BIA. Kelava v. Gonzales, 434 F.3d 1120, 1123 (9th Cir. 2006).

DISCUSSION
I.

Vargas argues that because he was sixteen (16) years old when he committed the offense that led to his 1991 voluntary manslaughter conviction, his conviction qualified for treatment under the Federal Juvenile Delinquency Act ("FJDA"), and should not be used as a conviction in the removal proceedings.3 Although the BIA did not address this argument when it affirmed the IJ's decision and denial of § 212(c) relief, the DHS argues before this court that because Vargas was prosecuted by California as an adult, his conviction cannot qualify for treatment as a juvenile adjudication.

The term "conviction" for the purposes of the INA is defined as follows:

(48)(A) The term "conviction" means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where—

(i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and

(ii) the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed.

INA § 101(a)(48)(A) codified at 8 U.S.C. § 1101(a)(48)(A). Congress specifically added this definition to the INA in 1996 to clarify that all that is necessary for a conviction is an admission or finding of guilt and a punishment imposed. See Uritsky v. Gonzales, 399 F.3d 728, 732-33 (6th Cir.2005) (discussing legislative history of § 1101(a)(48)).

In Morasch v. INS, 363 F.2d 30, 31 (9th Cir.1966), this court noted that the statute permitting deportation upon conviction of two crimes of moral turpitude did not allow for differentiation by age at the time of offense. Although Oregon could have treated the alien as a juvenile offender, it chose to treat him as an adult. Id. This court refused to reclassify the alien's adult conviction as a juvenile adjudication, concluding that "the Service was entitled to take the record as it found it, and neither it nor we are required to import separate juvenile proceedings which were not used by the Oregon court." Id.

In Vieira Garcia v. INS, 239 F.3d 409, 412-14 (1st Cir.2001), the First Circuit interpreted INA § 101(a)(48)(A) and rejected a petitioner's argument that, although he was tried as an adult by Rhode Island, the FJDA should apply. The First Circuit noted that § 101(a)(48)(A) is clear and unambiguous, and the fact that the petitioner pleaded guilty and a judge ordered him imprisoned meant that the petitioner had a "conviction" under the statute. Id. at 413. In rejecting the petitioner's argument, the First Circuit concluded that "[n]either we nor the BIA have jurisdiction to determine how a state court should adjudicate its defendants. Once adjudicated by the state court, as either a juvenile or an adult, we are bound by that determination." Id. The First Circuit also rejected an equal protection challenge to the BIA's reliance on the state's choice of how to handle the minor alien's criminal case, concluding that reliance on the state's prosecutorial choice had a rational basis. Id. at 414-15.

Applying Morasch and Vieira Garcia to this case, Vargas' 1991 conviction for voluntary manslaughter constitutes a conviction under INA § 101(a)(48)(A).4 Vargas pleaded guilty, and a judge sentenced him to eleven (11) years in prison, suspended, and 365 days' imprisonment. There is no evidence he was ever adjudged a juvenile delinquent. In addition, the state court's decision to try Vargas as an adult had a rational basis and did not violate the equal protection clause. See City of Dallas v. Stanglin, 490 U.S. 19, 25-28, 109 S.Ct. 1591, 104 L.Ed.2d 18 (1989) (concluding age classification is analyzed under rational basis); Toomey v. Clark, 876 F.2d 1433, 1439-40 (9th Cir.1989) (applying rational basis test to juvenile court's decision to decline jurisdiction). Therefore, the voluntary manslaughter conviction was properly used to find Vargas removable under INA § 237(a)(2)(A)(iii) for having been convicted of an aggravated felony. Accordingly, because we conclude that Vargas' adult conviction was an aggravated felony conviction, we dismiss Vargas' petition on these claims for lack of jurisdiction under 8 U.S.C. § 1252(a)(2)(C).

II.
A.

Vargas argues that the IJ should have granted him a continuance so he could apply for an adjustment of status. The denial of a motion for continuance is reviewed for an abuse of discretion. Nakamoto v. Ashcroft, 363 F.3d 874, 883 n. 6 (9th Cir.2004). Discretionary decisions, including whether or not to grant § 212(c) relief, are not reviewable. 8 U.S.C. § 1252(a)(2)(B)(ii). Abuse of discretion challenges to discretionary decisions, even if recast as due process claims, do not constitute colorable constitutional claims. See Torres-Aguilar v. INS, 246 F.3d 1267, 1271 (9th Cir.2001).

The IJ did not abuse her discretion in this case. Although Vargas married his wife in 1996, and his wife naturalized in 1998, Vargas waited until the fifth hearing in February 2003 to attempt to adjust his status. The IJ specifically noted that Vargas could have filed an I-130 petition well before the final hearing and that the first hearing was in July 2002. Without any explanation for the delay in filing his motion for a continuance, we cannot conclude that the IJ abused her discretion in denying the last minute continuance.

B.

Vargas also challenges the BIA's denial of his motion to remand, which we review for an abuse of discretion. Malhi v. INS, 336 F.3d 989, 993 (9th Cir.2003). "The BIA or the IJ decides whether an applicant is entitled to a favorable exercise of agency discretion on a case by case basis by `taking into account the social and humane considerations presented in the applicant's favor and balancing them against the adverse factors that evidence the applicant's undesirability as a permanent resident.'" Rashtabadi v. INS, 23 F.3d 1562, 1570 (9th Cir.1994) (quoting Yepes-Prado v. INS, 10 F.3d 1363, 1365-66 (9th Cir.1993)). "Where an alien has...

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