Arroyo v. Garland

994 F.3d 905

Diego Ulises Aquino ARROYO, Petitioner

v.Merrick B. GARLAND, Attorney General of the United States¹ Respondent

Nos. 19-3032 & 20-1259

United States Court of Appeals, Eighth Circuit.

Submitted: December 16, 2020

Filed: April 14, 2021

Benjamin David Bergmann, Alexander David Smith, PARRISH & KRUIDENIER, Des Moines, IA, for Petitioner.

Alexander J. Lutz, Carl H. McIntyre, Anthony Cardozo Payne, Assistant Director, U.S. DEPARTMENT OF JUSTICE, Civil Division, Office of Immigration Litigation, Washington, DC, for Respondent.

Before SMITH, Chief Judge, LOKEN and MELLOY, Circuit Judges.

MELLOY, Circuit Judge.

Diego Ulises Aquino Arroyo appeals the Board's determination that a 2011 Iowa conviction for possession of a controlled substance disqualifies him from relief in the form of cancellation of removal. Under our prior-conviction analysis, he argues the Iowa statute is overbroad but non-divisible such that it categorically does not qualify as a controlled-substance offense. He also appeals the Board's denials of a motion to reopen proceedings before the IJ for the purpose of administrative closure and a motion for reconsideration. We find no errors nor abuses of discretion, and we affirm the Board's denial of Arroyo's petition and motions.

I.

Arroyo, a native and citizen of Mexico, entered the United States without admission or parole in 2000 when he was eight years old. In early 2011, before he turned nineteen, he pleaded guilty to a violation of Iowa Code Section 124.401(5) which criminalizes the simple possession of controlled substances. The Iowa court entered a deferred judgment and a sentence of one year's probation.

In 2017, Arroyo received deferral of removal for two years pursuant to the program known as Deferred Action for Childhood Arrivals (DACA).² In 2018, while under DACA, he was charged in Iowa with domestic assault by impeding breathing or circulation in violation of Iowa Code Sections 708.1(2) and 708.2A(2)(d). In August 2018, based on these charges, he pleaded guilty to the offense of disorderly conduct in violation of Iowa Code Section 723.4(2).

The 2018 criminal proceedings brought him to the attention of the Department of Homeland Security (Government). The Government initiated removal proceedings alleging removability based on two grounds: Arroyo's entry into the United States without admission or parole, 8 U.S.C. § 1182(a)(6)(A)(i) ; and his 2011 conviction for a controlled-substance offense, 8 U.S.C. § 1182(a)(2)(a)(i)(II). Arroyo denied both charges of removability. As to the allegation of removability based on the Iowa controlled-substance conviction, he argued the Iowa statute was overbroad but non-divisible. He also applied for withholding of removal and relief pursuant to the Convention Against Torture (CAT). Finally, he applied for cancellation of removal. By this time, Arroyo was married, his wife had received temporary protected status, and he was the father of a United-States-citizen child. In his application for cancellation of removal, he alleged removal would cause harm to his wife and child. To overcome a bar to cancellation of removal based on the Iowa controlled-substance conviction, he asserted the same overbreadth argument that he asserted against the charge of removability.

An immigration judge (IJ) sustained both charges of removability and denied all forms of relief. Regarding cancellation of removal, the IJ found Arroyo's 2011 Iowa statute of conviction overbroad but divisible. Applying the modified categorical approach, the IJ determined that qualifying judicial records showed Arroyo had been convicted for possessing marijuana, specifically, rather than some different controlled substance illegal in Iowa but not included in the applicable federal definitions.

On appeal to the Board, Arroyo challenged the IJ's denial of cancellation of removal. He did not challenge the denials of withholding of removal or CAT relief. While his appeal was pending, he filed a motion asking the Board to reopen his proceedings before the IJ for the purpose of administratively closing his removal proceedings as a whole. According to Arroyo, he had applied to renew DACA relief and would likely receive such relief if his then-current removal proceedings were closed. The Government opposed his motion arguing DACA relief was unlikely in light of Arroyo's two criminal convictions and also arguing the removal proceedings had progressed to a point where administrative closure would be inefficient.

In August 2019, the Board affirmed the IJ and denied Arroyo's motion to reopen. The Board agreed with the IJ that the 2011 Iowa controlled-substance conviction precluded cancellation of removal. The Board, like the IJ, found the Iowa statute divisible and applied the modified categorical approach, relying on the fact that Arroyo had pleaded guilty to possessing marijuana rather than some other substance. The Board deemed the claims for withholding of removal and CAT relief abandoned. In denying the motion to reopen, the Board noted that Arroyo's "potential eligibility" for DACA relief was not an "exceptional situation." The Board also noted that DACA was "a matter of prosecutorial discretion" that was "simply the result of an administrative policy to give low priority to the enforcement of immigration laws in certain cases." Finally, the Board held that an administrative ruling, Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018), had limited the availability of administrative closure to certain defined circumstances not present in Arroyo's case.

Arroyo then filed a timely motion for reconsideration with the Board arguing for the first time that not only was the Iowa controlled-substance statute overbroad in general, but that a 2018 amendment to the federal definition of controlled substances had narrowed the federal definition of marijuana specifically to exclude certain substances containing low levels of THC—substances that were included in Iowa's 2011 definition of marijuana. According to Arroyo, the proper analysis required comparison of the Iowa statute at issue in his 2011 conviction to the federal controlled-substance definition as amended in 2018 with specific focus on the new federal definition of marijuana. The Government resisted Arroyo's motion for reconsideration arguing that Arroyo's 2011 Iowa statute of conviction and the state's list of controlled substances must be compared to the federal list of controlled substances in place at the time of the conviction rather than the federal list of controlled substances as modified in 2018.

The Board did not reach the substantive question raised in Arroyo's motion for reconsideration. Rather, the Board denied the motion as an impermissible attempt to assert a new legal argument that was available prior to the IJ or the Board's rulings but not raised in those proceedings. Arroyo appeals in our case number 19-3032 challenging the BIA's finding of removability, denial of cancellation of removal, and denial of the motion to reopen. In our case number 20-1259, he challenges the BIA's denial of his motion for reconsideration.

II.

We first address the Board's denial of Arroyo's petition for cancellation of removal.³ Cancellation of removal is a form of discretionary relief available to removable petitioners who prove their eligibility. 8 U.S.C. § 1229b(b). We lack jurisdiction to review the exercise of discretion but possess jurisdiction to review the underlying legal determination of eligibility. 8 U.S.C. § 1252(a)(2)(B) & (D) ; Lopez-Chavez v. Garland, 991 F.3d 960, 963–64 (8th Cir. 2021).

To be eligible, a petitioner must prove, among other things, that he has not been convicted for "a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21)." 8 U.S.C. § 1182 (a)(2)(A)(i)(II) (emphasis added); see also 8 U.S.C. 1229b(b)(1)(C). The federal criminal code definition for "controlled substance" often is not coextensive with a state's definition. As such, we apply the categorical approach to determine whether a petitioner's state conviction necessarily qualifies as "relating to a controlled substance." See Moncrieffe v. Holder, 569 U.S. 184, 190, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013) (applying the categorical approach to determine whether a prior conviction precluded discretionary relief); see also Gonzalez v. Wilkinson, 990 F.3d 654 (8th Cir. 2021) (applying the categorical approach to analyze the controlled-substance bar for cancellation of removal). Where substances prohibited by state law are not prohibited by federal law, we describe the state offense as overbroad. Rendon v. Barr, 952 F.3d 963, 968 (8th Cir. 2020) ; see also Moncrieffe, 569 U.S. at 190–91, 133 S.Ct. 1678 ("Because we examine what the state conviction necessarily involved, not the facts underlying the case, we must presume that the conviction ‘rested upon [nothing] more than the least of th[e] acts’ criminalized, and then determine whether even those acts are encompassed by the generic federal offense." (citation omitted)). In such a situation, we look to see whether the state statute is divisible, that is, whether it sets forth alternative elements defining separate offenses. See Rendon, 952 F.3d at 968 ("we ask whether it includes multiple, alternative elements that create several different crimes"). Where a state statute is overbroad but non-divisible, our analysis ends. A conviction under an overbroad and non-divisible statute is not necessarily a conviction "relating to a controlled substance" defined by 21 U.S.C. § 802.

Where a state statute is overbroad but divisible, however, we apply the modified categorical approach. See Rendon, 952 F.3d at 968–69. Under this approach, we " ‘determine, based on a limited class of judicial records, the crime of which the alien was convicted’ and whether the ‘offense of conviction fit[s] within the...