Acevedo v. Garland

44 F.4th 241

Rodolfo Josue TINOCO ACEVEDO, Petitioner,

v.Merrick B. GARLAND, Attorney General, Respondent.

No. 20-2048

United States Court of Appeals, Fourth Circuit.

Argued: May 4, 2022

Decided: August 11, 2022

ARGUED: Benjamin Ross Winograd, IMMIGRANT & REFUGEE APPELLATE CENTER, LLC, Alexandria, Virginia, for Petitioner. Kathleen Kelly Volkert, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Brian M. Boynton, Acting Assistant Attorney General, Jeffrey R. Leist, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Before GREGORY, Chief Judge, MOTZ, and WYNN, Circuit Judges.

Petition for review granted; vacated and remanded by published opinion. Chief Judge Gregory wrote the opinion, in which Judge Motz and Judge Wynn joined.

GREGORY, Chief Judge:

Petitioner Rodolfo Josue Tinoco Acevedo appeals an order of the Board of Immigration Appeals ("BIA") affirming the denial of his application for cancellation of removal. Because the BIA failed to address whether Tinoco Acevedo's case should be remanded to a new immigration judge ("IJ") under Matter of Y-S-L-C- , 26 I. & N. Dec. 688 (BIA 2015), we grant Tinoco Acevedo's petition for review, vacate the order of removal, and remand to the BIA for further proceedings consistent with this opinion.

I.

A.

Tinoco Acevedo, a citizen of Nicaragua, first entered the United States on a nonimmigrant visa in 2001. In 2008, Tinoco Acevedo obtained legal permanent resident status, based on his marriage to a United States citizen, and today he has three United States citizen children.¹ Since immigrating to the United States, Tinoco Acevedo has traveled to Nicaragua to visit his family. When returning from one such visit in 2019, Tinoco Acevedo applied for admission to the United States as a returning permanent resident. Due to his criminal record, however, his inspection was deferred for an admissibility determination.

While living in the United States, Tinoco Acevedo incurred multiple convictions, including one conviction for contributing to the delinquency of a minor, and three convictions for driving while intoxicated.² Under 8 U.S.C. § 1182(a)(2)(B), a noncitizen is considered inadmissible when he has been convicted of criminal offenses for which the aggregate sentence equals five years or more. Because the aggregate sentence for Tinoco Acevedo's convictions exceeded five years, the Department of Homeland Security ("DHS") issued a Notice to Appear charging him with removability on October 22, 2019. See 8 U.S.C. § 1182(a)(2)(B) ; A.R. 392–94. This is the second time that Tinoco Acevedo has been placed in removal proceedings.³ Here, Tinoco Acevedo conceded removability and applied for cancellation of removal for a permanent resident.

B.

Under 8 U.S.C. § 1229b(a), "[t]he Attorney General may cancel removal in the case of an alien who is inadmissible or deportable from the United States" if he: (1) was a permanent resident for at least five years; (2) continuously resided in the United States for seven years after being admitted; and (3) has not been convicted of an aggravated felony. Both parties agreed that Tinoco Acevedo met these qualifications and the question before the IJ was whether Tinoco Acevedo merited relief as a matter of discretion.

On February 13, 2020, an IJ conducted a hearing on Tinoco Acevedo's application for cancellation of removal. Tinoco Acevedo pointed to factors that he argued supported granting relief. Two of these factors included the financial and emotional support he provided to his three United States citizen children, as well as the steps he had taken to rehabilitate his alcohol addiction. Tinoco Acevedo also testified that after living in the United States as an adult for twenty years, he felt like a "stranger" in Nicaragua. A.R. 135. Counsel asked whether Tinoco Acevedo felt "in control of the Spanish language" and the following exchange occurred. Id.

Tinoco Acevedo: I can speak Spanish, but not like, I say 100 percent. I would say, like 60 to like no, it's, it's—

IJ: No. That makes no sense. I'm terribly sorry, sir. You, you were how old when you came to the United States? Eighteen?

Tinoco Acevedo: Eighteen.

IJ: And you're claiming that at 38, you can only function [at] 60 percent in Spanish. [B]ecause I really find that so incredible, it's laughable. Seriously, I—

Tinoco Acevedo: The thing is the words that I—I'm sorry, Your Honor. The thing is the words they use back—the words, the way they speak back home is different than the way they speak Spanish, here.

IJ: So, what? What's your point?

Tinoco Acevedo: The language, the Spanish.

IJ: Well, so what's so different about Spanish in Nicaragua that's different from Spanish spoken in the United States [by] all kinds of people from many different Latin speaking countries?

Tinoco Acevedo: Yes, one thing can mean different things in other Spanish.

IJ: Okay. So, because of that, you think [you're] at 60 percent proficiency. Is that what you're saying?

Tinoco Acevedo: No. It's not only that. I don't, I don't know how to explain it.

IJ: That's fine.

Tinoco Acevedo: It's just hard. To explain it, saying—how do you say it?

IJ: Never mind.

A.R. 135–37 (emphasis added). Then, speaking directly to Tinoco Acevedo's attorney, the IJ stated, "Go ahead. I mean, I don't even know why you went there. I mean, it sounds so stupid, honest to God. Eighteen years old and you actually ask that kind of a question? If he was eight or nine, maybe, maybe. Let's move on, please." A.R. 137 (emphasis added).

During cross-examination, the government attorney asked Tinoco Acevedo about his 2005 conviction. This line of questioning revealed that Tinoco Acevedo was accused of exposing his genitals to his eleven-year-old cousin and pleaded guilty to contributing to the delinquency of a minor under Va. Code. Ann. 18.2-371. A.R. 98, 139–41. Although the government attorney referenced the police report describing the facts that led to this conviction, no attempt was made to offer the police reports into the record. The government attorney did, however, inform the IJ that Tinoco Acevedo's 2005 conviction and the police report were filed during Tinoco Acevedo's first removal proceeding.

At the end of the hearing, the IJ stated that she was "truly, truly at the cusp," and the case could "go either way." A.R. 171. On March 13, 2020, however, the IJ issued a written decision denying Tinoco Acevedo's application for cancellation of removal. A.R. 97–109. In weighing Tinoco Acevedo's positive and negative factors, the IJ discussed the police report relevant to Tinoco Acevedo's 2005 conviction. Because the police report was not submitted into the record, the IJ had retrieved it after the hearing by reviewing the record from Tinoco Acevedo's first removal proceeding. The IJ found the police report "[m]ost concerning," but also explained that Tinoco Acevedo's criminal history outweighed his positive factors. A.R. 108; see A.R. 107.

Tinoco Acevedo appealed to the BIA and argued that the IJ's denial of relief should be reversed because: (1) the IJ improperly considered the police report and violated Tinoco Acevedo's right to due process by not allowing him to respond to it; and (2) Tinoco Acevedo's positive factors outweighed his negative factors. In the alternative, Tinoco Acevedo argued that his case should be remanded to a new IJ because the initial IJ failed to meet the high standard expected of IJs under Matter of Y-S-L-C- . See A.R. 36–49.

Affirming the IJ's decision, the BIA held that Tinoco Acevedo's criminal record, specifically focusing on his alcohol-related convictions, was too serious to warrant granting discretionary relief. Given his other convictions, the BIA found that even assuming—without deciding—that the IJ's reliance on the police report was inappropriate, Tinoco Acevedo still failed to meet his burden establishing that he merited relief. And regardless of the police report, Tinoco Acevedo's one-year sentence for his 2005 conviction "underscore[d] the gravity of the crime." A.R. 4. The BIA also noted that because this was Tinoco Acevedo's second removal proceeding, he had been "put on notice that further criminal conduct could lead to adverse immigration consequences." Id.

In response to Tinoco Acevedo's alternative argument that his case should be remanded to a new IJ, the BIA concluded that while it did "not condone the [IJ's] offhand remarks" concerning Tinoco Acevedo's Spanish fluency, the "record as a whole" demonstrated that the IJ behaved in a professional manner. A.R. 5. Therefore, the BIA found it sufficient to hold that Tinoco Acevedo failed to establish that the IJ caused him to suffer prejudice and there was "no indication that the [IJ's] actions amount[ed] to a violation of due process." Id. It did so, however, without ever addressing Tinoco Acevedo's argument that he was entitled to a new hearing because the IJ's behavior failed to meet the high standard expected of IJs under Matter of Y-S-L-C- . Indeed, the BIA affirmed the IJ's denial of relief without even a citation referencing Matter of Y-S-L-C- .

II.

We review both the constitutional claim and the question of law de novo. See Obioha v. Gonzales , 431 F.3d 400, 409 (4th Cir. 2005). When, as here, the BIA provides its own reasoning to affirm the IJ's findings, our review is limited to the BIA's decision. See Cabrera v. Garland , 21 F.4th 878, 883 (4th Cir. 2022). And absent an abuse of discretion, we defer to the BIA's interpretation of its own governing regulations. See Turkson v. Holder , 667 F.3d 523, 527 (4th Cir. 2012).

III.

On appeal, Tinoco Acevedo challenges the BIA's decision for two reasons. First, Tinoco Acevedo argues that the BIA erred when it failed to address whether the IJ satisfied the high standards expected of IJs under Matter of Y-S-L-C- and, instead, declined to remand, finding Tinoco Acevedo did not establish a due process violation. See ...