Velerio-Ramirez v. Lynch

• Decision Date: 11 December 2015
• Docket Number: No. 14–2318.,14–2318.
• Citation: 808 F.3d 111
• Parties: Lizbeth Patricia VELERIO–RAMIREZ, Petitioner, v. Loretta E. LYNCH, Attorney General of the United States.
• Court: U.S. Court of Appeals — First Circuit

808 F.3d 111

Lizbeth Patricia VELERIO–RAMIREZ, Petitioner,

v.Loretta E. LYNCH,^* Attorney General of the United States.

No. 14–2318.

United States Court of Appeals, First Circuit.

Dec. 11, 2015.

Mary P. Holper, Director, Boston College Legal Services LAB, Immigration Clinic, for petitioner.

Jem Colleen Sponzo, with whom Francis W. Fraser, Senior Litigation Counsel, Office of Immigration Litigation, United States Department of Justice, Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, and John W. Blakeley, Assistant Director, Office of Immigration Litigation, were on brief, for respondent.

Manny D. Vargas, Trina Realmuto, and Khaled Alrabe, on brief for the National Immigration Project of the National Lawyers Guild and the Immigrant Defense Project, amici curiae in support of petitioner.

Philip L. Torrey, on brief for Harvard Immigration and Refugee Clinical Program, Harvard Law School, amicus curiae in support of petitioner.

Before TORRUELLA, LYNCH, and KAYATTA, Circuit Judges.

LYNCH, Circuit Judge.

Inconsistent characterization of the governing law by the immigration authorities and insufficient analysis by the Board of Immigration Appeals ("BIA") lead us, in an abundance of caution, to remand this petition to the BIA.

Lizbeth Patricia Velerio–Ramirez¹ ("Valerio"), a native and citizen of Costa Rica, petitions for review of an order of the BIA denying her application for withholding of removal. Her petition contends that the BIA erred in upholding the immigration judge's ("IJ") determination that her conviction for aggravated identity theft was a "particularly serious crime" rendering her ineligible for withholding of removal under 8 U.S.C. § 1231(b).

However, Valerio is not in fact in removal proceedings subject to 8 U.S.C. § 1231. The Immigration and Naturalization Service ("INS") placed Valerio in deportation—not removal—proceedings in 1991. By the time the Department of Homeland Security² ("DHS") took action in Valerio's case in 2011, however, Congress had replaced deportation with removal, a process governed by a different set of statutes, and DHS mistakenly regarded Valerio as being in removal proceedings. DHS leveled removability charges against her, and the IJ's decision applied removal law in denying her application for relief.

In its 2014 denial of Valerio's appeal of the IJ's decision, the BIA identified the error and stated that Valerio was in deportation proceedings governed by 8 U.S.C. § 1253. It also said that the law governing the two proceedings was the same. But the statutory language is not the same, a fact not acknowledged by the agency. The version of former 8 U.S.C. § 1253(h) governing Valerio's claim for withholding of deportation contains an additional provision, § 1253(h)(3), which was added by Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") § 413(f) and was nullified only a few months later in 1996 when Congress replaced deportation with removal. The language of § 1253(h)(3) is not present in the withholding of removal statute, 8 U.S.C. § 1231(b)(3), or earlier versions of 8 U.S.C § 1253(h).

Here, the BIA's review of Valerio's application not only omitted any reference to § 1253(h)(3) but also failed to acknowledge its existence or discuss how it applies. Given these circumstances, and the additional fact that the BIA has not spoken on how § 1253(h)(3) applies to non-aggravated felons such as Valerio, we do not reach the merits of Valerio's petition out of deference to the agency. It is not our place to interpret in the first instance a statute which the BIA has been charged with interpreting.³ We reject the government's position that the petitioner has precluded remand because she failed to exhaust the issue of applicable law; the BIA itself raised the issue, and that suffices. We also reject the government's argument that remand is inappropriate because this court in Choeum v. INS, 129 F.3d 29 (1st Cir.1997) already decided what there is to decide. It is for the BIA to consider Choeum on remand. Accordingly, we now remand Valerio's case to the BIA to interpret and apply the correct law: former 8 U.S.C. § 1253(h) as amended by AEDPA § 413(f).

I.

At age 22, Valerio left Costa Rica and entered the United States with her then-boyfriend Carlos Gomez.⁴ Soon after entering the United States in March 1991, Valerio was apprehended and placed in deportation proceedings for entering without inspection. Those proceedings were administratively closed after Valerio failed to appear before an IJ in April 1991.

After settling in the United States, between 1995 and 2007, Valerio obtained and used the social security number and identification documents of a real person named Rosa Hernández, in order to obtain employment, a driver's license, and credit cards. In 2007, the real Rosa Hernández contacted the police about possible identity theft, and Valerio was subsequently arrested and indicted for three counts of mail fraud, in violation of 18 U.S.C. § 1341, and one count of aggravated identity theft, in violation of 18 U.S.C. § 1028A. Valerio was found guilty after a jury trial in federal court, and this court affirmed the conviction. See United States v. Valerio, 676 F.3d 237, 240 (1st Cir.2012). The sentencing judge imposed an order of restitution in the amount of $176,669.77 and imprisonment of two years and one day. Valerio served her sentence and was afterward transferred into DHS custody.

In 2011, DHS re-calendared Valerio's deportation proceeding under the original 1991 charge of deportability pursuant to former § 241(a)(1)(B) of the Immigration and Nationality Act ("INA") (entering without inspection). In her March 29, 2011, responsive pleading, Valerio conceded deportability as charged. On May 5, 2011, Valerio, apparently believing that she was in removal proceedings, filed an application for asylum and withholding of removal.⁵ The record includes numerous letters from the government to Valerio stating that she is in removal proceedings, and in July 2012, DHS leveled three charges of removability against her.⁶ Although the IJ stated at a March 22, 2011, hearing that Valerio was in deportation proceedings and was applying for relief under the "old rule," the IJ's January 7, 2013, written opinion treated Valerio as being in removal proceedings and applied removal law.

In its January 7, 2013, order and opinion, the IJ pretermitted Valerio's application for withholding of removal on the basis that her crime was "particularly serious." The IJ also denied her motion to amend her application and ordered her removed to Costa Rica. After finding Valerio removable, the IJ applied the BIA's multi-factor test set forth in Matter of Frentescu, 18 I. & N. Dec. 244 (BIA 1982), to determine that Valerio's conviction for aggravated identity theft was a "particularly serious crime," barring her from obtaining withholding of removal under 8 U.S.C. § 1231(b)(3). Finding Valerio barred from withholding by that conviction, the IJ did not address the mail fraud conviction and did not reach the merits of Valerio's application.

On appeal, the BIA upheld the IJ's determination that Valerio had been convicted of a "particularly serious crime" barring withholding but vacated the IJ's order as to the three removability charges. The beginning of the BIA's opinion, in a footnote, states that the IJ mischaracterized the applicable law in referring to withholding of removal, as Valerio was "in deportation proceedings and [was] applying for withholding of deportation pursuant to section 243 of the Act, 8 U.S.C. § 1253." The BIA stated, nonetheless, that "[t]he particularly serious crime analysis is the same under both provisions." Turning to Valerio's withholding application, the BIA applied the Frentescu test, and found, as had the IJ, that Valerio's conviction for aggravated identity theft was a "particularly serious crime," noting that her crime involved a real victim and that identity theft "is a serious problem in our society." The BIA ordered Valerio deported to Costa Rica. This petition followed.

II.

Valerio's petition for review challenges the BIA's application of the "particularly serious crime" exception to her conviction for aggravated identity theft. However, we do not reach the merits of that petition. Her case is governed by the withholding of deportation statute, former 8 U.S.C. § 1253(h), as amended by AEDPA § 413(f). In rejecting her position, the BIA omitted analysis of a portion of the governing statute. While it is well-settled that we defer to the BIA's interpretation of the immigration laws where reasonable, the BIA's decision failed to acknowledge whether or how, if at all, AEDPA § 413(f) changes the "particularly serious crime" determination for a non-aggravated felon like Valerio. We think it prudent to remand to the agency for consideration of the issue. We explain below.

A. The "Particularly Serious Crime" Exception

Congress has long prohibited the Attorney General from deporting a person to a country if she "determines that [an] alien's life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion," 8 U.S.C. § 1253(h)(1) (1980) ; id. (1990); id. (1996). See Alphonsus v. Holder, 705 F.3d 1031, 1037–41 (9th Cir.2013) (discussing the statute's history). An exception to that rule provides that withholding of deportation "shall not apply to any alien if the Attorney General determines that ... (B) the alien, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States," 8 U.S.C. § 1253(h)(2) (1980).

In 1982, the BIA in Matter of Frentescu set forth a multi-factor test to determine whether a crime is "particularly serious." See 18 I. & N. Dec. at 247 ("In judging the seriousness of a crime, we look to such factors as the nature of the conviction, the circumstances and underlying facts of the conviction, the type...