Amador v. Garland

28 F.4th 72

Ivan VALDEZ Amador, Petitioner,

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

No. 13-71406

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 8, 2021 Pasadena, California

Filed March 9, 2022

Mario Acosta Jr. (argued), Law Office of Mario Acosta Jr., Santa Fe Springs, California, for Petitioner.

Rebecca Hoffberg Phillips (argued), Trial Attorney; John S. Hogan, Assistant Director; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

Before: Susan P. Graber and John B. Owens, Circuit Judges, and Jack Zouhary,^* District Judge.

Opinion by Judge Zouhary;

Partial Concurrence and Partial Dissent by Judge Graber

ZOUHARY, District Judge:

Petitioner Ivan Valdez Amador ("Valdez"), a native and citizen of Mexico, was ordered removed after an Immigration Judge ("IJ") determined that he was removable due to his conviction for domestic violence and ineligible for cancellation of removal due to his conviction for rape of an unconscious person. After remanding the case to the IJ three times, the Board of Immigration Appeals ("BIA") determined in 2013 that Valdez's criminal convictions rendered him removable and ineligible for cancellation of removal. Valdez then petitioned for review of the BIA decision. This Court has jurisdiction under 8 U.S.C. § 1252(a).

FACTUAL AND PROCEDURAL BACKGROUND

Valdez was admitted as a legal permanent resident in 1989 at age nine. In 2005, he was convicted in state court of "inflicting corporal injury on a spouse or cohabitant," in violation of California Penal Code § 273.5(a), and of driving under the influence of alcohol. He was sentenced to 150 days incarceration. Later that year, Valdez was convicted of violating a protective order and sentenced to 20 days incarceration.

In 2010, Valdez was convicted in the same state court for "felony rape of an unconscious person" in violation of California Penal Code § 261(a)(4). He was sentenced to one year in prison, five years of probation, and ordered to register as a sex offender. Weeks later, the federal government served Valdez with a notice to appear, alleging he was removable due to his status as an aggravated felon. In 2011, Valdez appeared with counsel before an IJ. He admitted that he had been convicted of rape of an unconscious person, but argued that the crime did not constitute an aggravated felony. The government then lodged two more removal charges: one for being convicted of a crime involving domestic violence ( Section 273.5(a) ), and another for being convicted of two "crimes involving moral turpitude" ("CIMT"). The IJ concluded that Valdez's actual conduct in committing the crime of "rape of an unconscious person" fit the common law definition of rape, rendering Valdez an "aggravated felon" who is both removable and ineligible for cancellation of removal.

Valdez appealed to the BIA, arguing: (1) Section 261(a)(4) is "divisible" because two subsections of the statute involve the use of fraud to obtain sex; (2) the IJ improperly relied on the criminal complaint to determine which subsection of the statute he was convicted under; (3) the electronic conviction records were not properly authenticated; and (4) Section 273.5(a) is not categorically a crime of domestic violence or a CIMT because the statute criminalizes violence against a person who is not in a protected relationship.

The BIA found that, in light of Banuelos-Ayon v. Holder , 611 F.3d 1080 (9th Cir. 2010), the conviction documents underlying the Section 273.5(a) conviction were sufficient to demonstrate removability. But the BIA remanded to the IJ for reconsideration of cancellation of removal. In particular, the IJ considered whether a violation of Section 261(a)(4) was categorically a "rape" offense under 8 U.S.C. § 1101(a)(43)(A). The IJ ruled that the Section 261(a)(4) conviction categorically constituted an aggravated felony.

Back to the BIA once again. This time, Valdez pointed to intervening case law holding that a violation of Section 273.5(a) was not a categorical CIMT, and he argued that it was similarly not a crime of domestic violence. The BIA rejected that argument and again found Valdez removable due to the Section 273.5(a) conviction. However, the BIA held that Section 261(a)(4) encompassed "some conduct that is commonly understood as rape" and "some conduct that is not," namely "sexual intercourse with a victim who consented due to fraud." So, in 2012, the BIA again remanded to the IJ to determine whether Valdez could demonstrate eligibility for cancellation of removal.

On remand, the IJ disagreed. The IJ certified the record back to the BIA for "reconsideration," arguing the decision was inconsistent with "binding precedential authority," specifically, Castro-Baez v. Reno , 217 F.3d 1057 (9th Cir. 2000). Castro-Baez held that rape under Section 261(a)(3), involving a victim who is "prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance," is categorically an aggravated felony. 217 F.3d at 1059. The BIA was unmoved and noted that Castro-Baez was inapposite because it dealt with a statute that "require[d] absence of consent as an element." The BIA declined the request for certification and again remanded—this time to a different IJ.

Before the new IJ, the government presented transcripts from the preliminary hearing and guilty-plea hearing outlining the factual basis of Valdez's guilty plea under Section 261(a)(4). The IJ held that the conviction documents made clear Valdez was not convicted under the fraudulent-representation subsection of the statute—the only portion of the statute that would not be an aggravated felony. Valdez appealed again, arguing the preliminary-hearing transcript was insufficient to demonstrate under which subsection of Section 261(a)(4) he pled guilty and that Section 273.5(a) was a divisible statute.

In April 2013, the BIA dismissed Valdez's appeal for three reasons. First, the BIA again noted that Valdez was removable for his Section 273.5(a) conviction and that he had waived any argument to the contrary. Second, Valdez was not eligible for cancellation of removal because, applying the modified categorical approach, the conviction documents demonstrated that he did not plead guilty under the fraudulent-representation provision of Section 261(a)(4), and he therefore failed to establish that he was not an aggravated felon. Finally, the BIA noted that Valdez waived any other claims to asylum, withholding of removal, protection under the Convention Against Torture, adjustment of status, or voluntary departure.

Valdez then petitioned this Court for review. In 2013, a motions panel denied Valdez's motion for a stay of removal, as well as the government's motion for summary disposition. Valdez's case was stayed pending resolution of several cases, including Almanza-Arenas v. Lynch , 815 F.3d 469 (9th Cir. 2016) (en banc), and Mathis v. United States , 579 U.S. 500, 136 S. Ct. 2243, 195 L.Ed.2d 604 (2016). This Court then sought briefing on possible remand, after Pereida v. Wilkinson , ––– U.S. ––––, 141 S. Ct. 754, 761–63, 209 L.Ed.2d 47 (2021), held that, where a statute is divisible, petitioners are "obliged to show" they were convicted under the statute's non-aggravated-felony provision in order to demonstrate eligibility for cancellation of removal. Both parties agreed a remand was unnecessary, as this case turns on statutory interpretation, not the record of conviction.

Valdez presents a two-fold challenge to the BIA decision. He argues: (1) his conviction under Section 273.5(a) is not a removable offense; and (2) he is eligible for cancellation of removal because Section 261(a)(4) is not a categorical aggravated felony. We address each argument below.

LEGAL STANDARD

We review de novo the BIA's conclusions that Valdez is removable and ineligible for discretionary relief. See Carrillo v. Holder , 781 F.3d 1155, 1157 (9th Cir. 2015) ; Coronado v. Holder , 759 F.3d 977, 982 (9th Cir. 2014). In doing so, we review de novo whether a state conviction is an aggravated felony, Jauregui-Cardenas v. Barr , 946 F.3d 1116, 1118 (9th Cir. 2020), and employ the categorical and modified categorical approaches. Syed v. Barr , 969 F.3d 1012, 1017 (9th Cir. 2020). Under either approach, we "ask whether the statutory elements of the crime of conviction match the elements of the generic offense." Id.

DISCUSSION

Valdez is removable for his domestic-violence conviction.

Under 8 U.S.C. § 1227 (a)(2)(E)(i), a person is removable if convicted of any "crime of domestic violence." Valdez argues that, "because [ Section 273.5(a) ] punishes injury committed on a co-habitant, and this may involve one with whom the defendant has no special ‘domestic’ relationship with," it is not categorically a crime of domestic violence. He points to Morales-Garcia v. Holder , 567 F.3d 1058, 1060 (9th Cir. 2009), which held that a violation of Section 273.5(a) is not categorically a CIMT. But we have squarely rejected that argument:

[W]e do not overlook Morales-Garcia [ ], which decided that § 273.5 is not categorically a CIMT. That case is simply inapposite to the issue before us. It did not, and could not, decide whether § 273.5 was a crime of domestic violence; it simply decided whether it was a CIMT. Perhaps a conviction under § 273.5 will sometimes be a CIMT; perhaps it will sometimes be an aggravated felony; but it categorically is a crime of domestic violence.

Carrillo , 781 F.3d at 1159–60 (emphasis added).

Valdez makes a second argument—that the IJ relied on improper conviction documents, and therefore the government "failed to prove the existence of this conviction." Before the IJ, the government produced the criminal information and the minute order from Valdez's sentencing. Count 4 of the information charged Valdez with "the crime of INFLICTING CORPORAL INJURY UPON A SPOUSE OR COHABITANT, in violation of [ Section] 273.5(A)" by ...