Zaragoza v. Garland
| Docket Number | s. 19-3437 & 20-1591 |
| Decision Date | 08 November 2022 |
| Citation | 52 F.4th 1006 |
| Parties | Dulce M. ZARAGOZA, Petitioner, v. Merrick B. GARLAND, Attorney General of the United States, Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Robert N. Hochman, Attorney, Sidley Austin LLP, Chicago, IL, Charles Roth, Attorney, National Immigrant Justice Center, Chicago, IL, for Petitioner.
Dana M. Camilleri, Attorney, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.
Nadia Anguiano-Wehde, Benjamin Richard Casper Sanchez, Attorneys, University of Minnesota Law School, James H. Binger Center for New Americans, Minneapolis, MN, for Amici Curiae American Immigration Lawyers Association, American Immigration Council, Immigrant Legal Resource Center, Immigrant Defense Project, National Immigration Project of the National Lawyers Guild, Harvard Law School Crimmigration Clinic, National Immigration Litigation Alliance.
Kari Hong, Attorney, Florence Immigrant & Refugee Rights Project, Tucson, AZ, for Amicus Curiae Immigration Professors, Scholars, and Clinicians.
Before Sykes, Chief Judge, and Flaum and St. Eve, Circuit Judges.
Dulce Zaragoza, a native and citizen of Mexico and a lawful permanent resident of the United States, pleaded guilty to the Indiana offense of criminal neglect of a dependent after locking her six-year-old son in a closet for six hours. She was sentenced to one year in jail suspended to time served plus 30 days, with the remainder of the sentence to be served on probation. After completing her sentence, she traveled abroad and presented herself for admission when she returned. The Department of Homeland Security ("DHS") found her inadmissible based on the neglect conviction, which the agency classified as a "crime involving moral turpitude." 8 U.S.C. § 1182(a)(2)(A)(i)(I). She was placed in removal proceedings.
Zaragoza fought removal on several grounds, with her arguments expanding as the proceedings progressed. Before the immigration judge, she argued that the Indiana neglect offense does not qualify as a crime involving moral turpitude. The judge disagreed and entered a removal order, and Zaragoza appealed to the Board of Immigration Appeals ("BIA" or "the Board"). In the meantime, she petitioned the state court to modify her sentence. Her purpose was to bring herself within the so-called "petty offense" exception to inadmissibility, which is available to first-time offenders sentenced to six months or less. Id. § 1182(a)(2)(A)(ii)(II). The state court obliged and reduced her one-year sentence to 179 days. With that order in hand, Zaragoza argued before the BIA that Indiana's neglect offense is not a crime involving moral turpitude, and regardless, the petty-offense exception applies.
The BIA rejected both arguments, agreeing with the immigration judge that the Indiana offense is categorically a crime involving moral turpitude, and further holding that the sentence-modification order was not effective to establish Zaragoza's eligibility for the petty-offense exception. For the latter conclusion, the Board relied on a recent decision of the Attorney General declaring that state-court sentence-modification orders are effective for immigration purposes only if based on a legal defect in the underlying criminal proceeding. Matter of Thomas & Thompson ("Thomas "), 27 I. & N. Dec. 674, 690 (Att'y Gen. 2019).
Zaragoza sought reconsideration, this time adding two more arguments: (1) the phrase "crime involving moral turpitude" is unconstitutionally vague; and (2) the Attorney General's decision in Thomas is impermissibly retroactive as applied to her. The BIA disagreed on both counts. Zaragoza petitioned for review in this court, reprising the entire array of arguments she presented to the Board.
We agree with the BIA's resolution of all issues but one: applying Thomas in Zaragoza's case is an impermissibly retroactive application of a new rule. We therefore remand to the BIA for further proceedings consistent with this opinion.
After emigrating from her native Mexico, Zaragoza settled in Indiana with her three children and in August 2011 became a lawful permanent resident. On October 9, 2013, she punished her six-year-old son by barricading him in a closet while she was at work. She left him with nothing except a cup of water, a hot-dog bun with ketchup on it, and a bowl to urinate in if needed. After instructing her older son not to release the younger boy from the closet, she left the house. The boy remained in confinement for six hours.
Zaragoza was charged in state court with neglect of a dependent in violation of Indiana Code § 35-46-1-4(a)(2), which makes it unlawful for "[a] person having the care of a dependent ... [to] knowingly or intentionally ... abandon[ ] or cruelly confine[ ] the dependent." Though the offense was a Class D felony, id. § 35-46-1-4(a) (2013),1 punishable by a term of imprisonment of up to three years, id. § 35-50-2-7(a), Zaragoza entered into a plea agreement pursuant to a statute that permitted the court to enter judgment for a Class A misdemeanor, id. § 35-5-2-7(c), punishable by a maximum term of imprisonment of one year, id. § 35-50-3-2. On March 31, 2014, a state-court judge approved the plea agreement, accepted Zaragoza's guilty plea, and sentenced her to one year in jail suspended to time served plus 30 days, with the remainder of the one-year term to be served on probation, and a $50 fine. She completed her sentence and was discharged from supervision in March 2015.
A few months later, Zaragoza traveled abroad. On July 7, 2015, she returned through Chicago and presented herself for inspection as a returning lawful permanent resident. Customs officials discovered her neglect conviction and paroled her into the United States in anticipation of removal proceedings. On August 6 DHS initiated removal proceedings based on her neglect conviction, which the agency classified as a "crime involving moral turpitude," making her inadmissible under § 1182(a)(2)(A)(i)(I).
Zaragoza moved to terminate the proceedings, arguing that neglect of a dependent is not a crime involving moral turpitude. An immigration judge disagreed, concluding that Indiana's neglect offense is a crime involving moral turpitude under the categorical approach as explained in the BIA's decision in Matter of Silva-Trevino , 26 I. & N. Dec. 826, 830 (B.I.A. 2016). The judge denied Zaragoza's motion and ordered her removed.
Zaragoza sought review in the BIA. While her appeal was pending, she petitioned the state court to modify her sentence to 179 days in prison. That was an odd request on the surface, not least because Zaragoza had long since completed her sentence. But her purpose was apparent in light of the removal peril she faced. As a first-time offender, if her sentence was not "in excess of 6 months," she would qualify for the petty-offense exception to inadmissibility under § 1182(a)(2)(A)(ii)(II). The prosecutor approved Zaragoza's request, and on February 13, 2019, the state court entered an order modifying her sentence to 179 days suspended, with all terms and financial obligations satisfied.
Back before the BIA, Zaragoza reiterated her position that the Indiana neglect offense is not a crime involving moral turpitude, but she now also claimed that the petty-offense exception lifted the inadmissibility bar. The BIA rejected both arguments. In a decision issued on November 14, 2019, the Board first agreed with the immigration judge's ruling that the neglect offense is categorically a crime of moral turpitude. Turning to the petty-offense exception, the Board explained that under the Attorney General's recent decision in Thomas , issued just a few weeks earlier, the state court's sentence-modification order had no effect for immigration purposes because it was not based on a procedural or substantive defect in the underlying criminal proceeding. Zaragoza's eligibility thus turned on her original sentence, not her sentence as modified. Because she was originally sentenced to one year in prison, she did not qualify for the exception. The Board dismissed her appeal, and Zaragoza petitioned for review of that order.
In the meantime, she asked the BIA to reconsider its decision. Her motion added two new arguments. She now claimed that the statutory phrase "crime involving moral turpitude" is unconstitutionally vague. She also argued that applying the Attorney General's decision in Thomas to her amounted to an impermissibly retroactive application of a new rule.
The Board denied the reconsideration motion, standing by its decision that the Indiana neglect offense is a crime involving moral turpitude and rejecting the new vagueness challenge to the statute. The Board also rejected Zaragoza's claim that applying Thomas in her case is an impermissibly retroactive application of a new rule. Zaragoza petitioned for review of the BIA's second order, and we consolidated the two petitions. See 8 U.S.C. § 1252(b)(6).
Zaragoza reprises the full assortment of legal challenges that she raised before the agency. Some of the issues are complex, and two have attracted support from amici curiae. For ease of presentation, we separate them into two groups.
In the first group are arguments pertaining to the meaning and application of § 1182(a)(2)(A)(i)(I) —specifically, whether the phrase "crime involving moral turpitude" is unconstitutionally vague and whether Indiana's neglect offense qualifies as such a crime under the categorical approach and the BIA's decision in Silva-Trevino . In the second group are claims pertaining to the petty-offense exception, including Zaragoza's arguments that the Attorney General's decision in Thomas is wrong as a matter of law and not entitled to deference and is impermissibly retroactive as applied to her.
Because these are legal issues, our standard of review is de novo, Meraz-Saucedo v. Rosen , 986 F.3d 676, 684 (...
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