Vasquez-Martinez v. Holder

• Decision Date: 02 April 2009
• Docket Number: No. 07-60900.,07-60900.
• Citation: 564 F.3d 712
• Parties: Mario VASQUEZ-MARTINEZ, also known as Mario Martinez Vasquez, Petitioner, v. Eric H. HOLDER, Jr., U.S. Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

564 F.3d 712

Mario VASQUEZ-MARTINEZ, also known as Mario Martinez Vasquez, Petitioner, v. Eric H. HOLDER, Jr., U.S. Attorney General, Respondent.

No. 07-60900.

United States Court of Appeals, Fifth Circuit.

April 2, 2009.

Maurice Hew, Jr., Thurgood Marshall Sch. of Law, Houston, TX, for Petitioner.

Luis Enrique Perez, Thomas Ward Hussey, Dir., U.S. Dept. of Justice, OIL, Washington, DC, Guadalupe R. Gonzales, Imm. & Customs Enforcement, Chief Counsel's Office, El Paso, TX, for Respondent.

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

Before SMITH, GARZA and CLEMENT, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Mario Vasquez-Martinez ("Vasquez-Martinez") petitions for review of the Board of Immigration Appeals ("BIA") dismissal of his appeal from the Immigration Judge's ("IJ") decision finding him ineligible for cancellation of removal. For the following reasons, we DENY the Petition for Review.

I

Vasquez-Martinez is a native of Mexico who was admitted to the United States as a lawful permanent resident in 1992. In 2003, Vasquez was indicted in a Texas state court for "intentionally and knowingly possess[ing], with intent to deliver, a controlled substance, namely, COCAINE ... in, on and within 1,000 feet of premises of a school ..." See TEX. HEALTH AND SAFETY CODE ANN. § 481.112(a). Vasquez-Martinez's judgment of conviction states that Vasquez pleaded guilty to possession of a controlled substance in a drug-free zone. Significantly, the judgment of conviction omitted the words "with intent to deliver." Vasquez-Martinez received a sentence of six years, which was suspended to six years on probation. In 2006, his probation was revoked and he was sentenced to two years of imprisonment.

Vasquez-Martinez was charged with removability via a Notice to Appear ("NTA") on the basis that his Texas conviction constituted (1) an "aggravated felony" pursuant to the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1227(a)(2)(A)(iii),¹ and (2) a controlled substance violation pursuant to 8 U.S.C. § 1227(a)(2)(B) of the same statute.² At his removal hearing before the IJ, Vasquez-Martinez admitted the factual allegations in the NTA. The IJ found that Vasquez-Martinez was removable for having committed a controlled substance violation, § 1227(a)(2)(B), but determined that the record did not support removability for having been convicted of an "aggravated felony" under § 1227(a)(2)(A)(iii), as the judgment of conviction stated only that Vasquez-Martinez was guilty of "possession". The IJ concluded that Vasquez-Martinez was not an aggravated felon and thus eligible to apply for discretionary cancellation of removal under 8 U.S.C. § 1229b(a).

Vasquez-Martinez filed an application for cancellation of removal, and the IJ held a hearing on the merits of that application. The Government contended that the omission of "with intent to deliver" from the judgment of conviction was solely a typographical error, and that the record as a whole reflected that Vasquez-Martinez was convicted of an aggravated felony and thus ineligible for cancellation of removal. Ultimately, the IJ found based on the judicial record that Vasquez-Martinez had been convicted of possession of cocaine with intent to deliver, and was thus ineligible for cancellation of removal because he had committed an aggravated felony. 8 U.S.C. § 1229b(a)(3).

Vasquez-Martinez appealed to the BIA. The BIA agreed with the IJ that Vasquez-Martinez had committed a controlled substance violation; having determined that he was removable on that basis, the BIA did not reach the question of whether he was removable for being an aggravated felon. The BIA did, however, uphold the IJ's conclusion that Vasquez-Martinez had been convicted of possession of cocaine with intent to deliver, finding that the record established that Vasquez-Martinez was convicted of the crime as charged in the indictment.

The BIA also found that Vasquez-Martinez had not met his burden of establishing statutory eligibility for relief, as he had not proven by a preponderance of the evidence that the aggravated felony bar to eligibility for cancellation of removal did not apply. The BIA dismissed Vasquez-Martinez's appeal. He timely petitions for review.

II

The BIA addressed two issues: first, whether Vasquez-Martinez is removable; and second, whether he is subject to the statutory bar to cancellation of removal under § 1229b(a)(3). However, only the second issue is in dispute on this petition for review.

The BIA held that Vasquez-Martinez is removable pursuant to 8 U.S.C. § 1227(a)(2)(B)(i), for having committed a violation related to a controlled substance. Because the BIA found Vasquez-Martinez removable on this ground, it pretermitted the issue of Vasquez-Martinez's removability for being an aggravated felon.

Vasquez-Martinez does not appear to contest the BIA's finding that he is removable for a violation under the Controlled Substance Act.³ Thus, the only issue before us is whether the BIA erred in holding that Vasquez-Martinez is not eligible for discretionary cancellation of removal.

III

This Court has jurisdiction to review only legal and constitutional issues raised pertaining to removal orders. See Toledo-Hernandez v. Mukasey, 521 F.3d 332, 334 (5th Cir.2008); 8 U.S.C. § 1252(a)(2)(C) (removing appeals court's jurisdiction over final orders of removal); but see 8 U.S.C. § 1252(a)(2)(D) (holding that notwithstanding § 1252(a)(2)(C), judicial review is permitted of constitutional claims and questions of law presented upon a petition for review.) The BIA's determination that an alien is ineligible for discretionary relief in the form of cancellation of removal is a question of law that we review de novo, deferring to the BIA's interpretation of the statutes and regulations it administers. See Danso v. Gonzales, 489 F.3d 709, 712-13 (5th Cir.2007); Marquez-Marquez v. Gonzales, 455 F.3d 548, 561 (5th Cir.2006).

A

The INA states that the Attorney General may cancel removal in the case of an alien who is inadmissible or deportable from the United States if the alien has not been convicted of any aggravated felony. 8 U.S.C. § 1229b(a)(3). An alien applying for relief from removal has the burden of proof to establish that he is not an aggravated felon and is therefore statutorily eligible for relief. See 8 U.S.C. § 1229a(c)(4)(A)(i). Under the regulations interpreting the INA's provisions for cancellation of removal, if 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 C.F.R. § 1240.8(d). Applying § 1240.8(d), the BIA held that Vasquez-Martinez had adduced insufficient evidence to carry his burden of proving that he was not an aggravated felon.

Vasquez-Martinez first argues that the burden is on the government to submit evidence to indicate that the mandatory statutory bar against cancellation of removal applies. In support of his argument, Vasquez-Martinez cites a Ninth Circuit case, Cisneros-Perez v. Gonzales, 451 F.3d 1053 (9th Cir.2006), amended and superseded on denial of reh'g by, 465 F.3d 386 (9th Cir.2006), that he argues holds that the government has a high burden of production to establish that an alien committed an aggravated felony and is thus barred from cancellation of removal.

Cisneros-Perez is inapposite. In Cisneros-Perez, the Ninth Circuit held that, given the factual ambiguity of the record,⁴ the government had not provided enough evidence to show that the petitioner's conviction was for an aggravated felony. In this case, however, we have limited jurisdiction to consider whether the record is conclusive as to the offense of conviction, since, as a factual question for the BIA to determine, it is barred from judicial review. 8 U.S.C. § 1252(a)(2)(C) (barring judicial review of final orders of removal where the alien is found removable based on, inter alia, having committed a controlled substance violation). The BIA held that the record of conviction establishes that Vasquez-Martinez was convicted of intentionally and knowingly possessing cocaine with intent to deliver in a drug free zone, finding that language of the indictment was incorporated into judgment of conviction by reference, notwithstanding the possible typographical error that was noted by the IJ.⁵ This is a factual determination, not a legal one. Thus, we may not review the BIA's conclusion that Vasquez-Martinez was convicted of possession with intent to deliver cocaine as opposed to mere possession.⁶

Second, neither Cisneros-Perez nor any case in this Circuit establishes the proposition that the initial burden of production of evidence that the alien is ineligible for discretionary relief lies with the government. Such a conclusion does not flow from the language of the statute or the concomitant regulation. See § 1229a(c)(4)(A)(i); 8 C.F.R. § 1240.8(d).

Accepting the factual finding that Vasquez-Martinez was convicted of possession with intent to deliver, then, we may still review the BIA's legal conclusion that the crime for which Vasquez-Martinez was convicted "may" have been an aggravated felony that disqualified him from cancellation of removal. See 8 U.S.C. § 1252(a)(2)(D).⁷

B

Having established that the burden is on Vasquez-Martinez to show that he is eligible for cancellation of removal, and treating Vasquez-Martinez's offense as possession of cocaine with intent to deliver, we now look to whether he has satisfied that burden, reviewing de novo whether the offense qualifies as an aggravated felony under the INA. See Omari v. Gonzales, 419 F.3d 303, 306 (5th Cir.2005).

Vasquez-Martinez argues that under Texas law, the crime of possession with intent to deliver is broader than, and thus includes conduct that does not fall within, the definition of "aggravated felony" in the INA.

"Aggravated...