Ballinas-Lucero v. Garland

44 F.4th 1169

Luis Maximino BALLINAS-LUCERO, Petitioner,

v.Merrick B. GARLAND, Attorney General, Respondent

No. 17-73260

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 15, 2022 San Francisco, California

Filed August 15, 2022

Richard Lucero (argued), Law Office of Richard Lucero, Los Angeles, California; Rosana Kit Wai Cheung, Law Offices of Rosana Kit Wai Cheung, Los Angeles, California; for Petitioner.

Edward E. Wiggers (argued), Senior Litigation Counsel; Mary Jane Candaux, Assistant Director; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

Before: William A. Fletcher, Ronald M. Gould, and Daniel P. Collins, Circuit Judges.

W. FLETCHER, Circuit Judge:

Luis Maximino Ballinas-Lucero petitions for review of the decision of the Board of Immigration Appeals ("BIA") dismissing his appeal from an order of an Immigration Judge ("IJ") denying his application for cancellation of removal. The BIA held that Ballinas-Lucero was statutorily barred from cancellation of removal under 8 U.S.C. § 1229b(b)(1)(C) because, in the view of the BIA, his six misdemeanor convictions for petty theft remained convictions for immigration purposes even after they had been vacated by a California Superior Court.

We hold that under Pereida v. Wilkinson , ––– U.S. ––––, 141 S. Ct. 754, 209 L.Ed.2d 47 (2021), an applicant for cancellation of removal bears the burden of proving that a state-court conviction was vacated because of a substantive or procedural defect in the criminal proceedings, and not solely for immigration purposes or for rehabilitative or equitable reasons. We hold, further, that Ballinas-Lucero carried this burden of proof. The record compels a finding that the Superior Court vacated his six misdemeanor convictions because of substantive or procedural defects in the criminal proceedings, and did not do so solely for immigration purposes or for rehabilitative or equitable reasons. After vacatur of his six misdemeanor convictions, Ballinas-Lucero was convicted of a single misdemeanor that may qualify for the petty offense exception under 8 U.S.C. § 1182(a)(2)(A)(ii)(II), which would render him statutorily eligible for cancellation of removal.

We therefore grant the petition for review and remand the case to the BIA so that it may decide in the first instance whether Ballinas-Lucero's single petty theft conviction is a conviction that falls within the petty offense exception under 8 U.S.C. § 1182(a)(2)(A)(ii)(II), and whether he satisfies the other statutory criteria for cancellation of removal under 8 U.S.C. § 1229b(b)(1).

I. Background

A. Factual Background

Ballinas-Lucero was born in Puebla, Mexico, in 1969. He entered the United States without inspection in 1988 and has resided continuously in the United States since 1996. Ballinas-Lucero is married and has three children, two of whom are U.S. citizens. His parents are lawful permanent residents of the United States. Prior to being detained by the U.S. Department of Homeland Security ("DHS"), Ballinas-Lucero lived in Tustin, California, and worked as a manager at a Burger King restaurant.

On January 4, 2012, Ballinas-Lucero was arrested at his workplace. He was arraigned in the Orange County Superior Court two days later on six misdemeanor charges, three for "Theft from elder adult" under California Penal Code § 368(d) and three for "Theft by employee – under $400" under California Penal Code §§ 484(a), 488, 508. The charges stemmed from three disputes regarding change given to a disabled customer and her caregiver on December 8, 2011, December 16, 2011, and January 4, 2012.

Ballinas-Lucero had never been arrested before. Without representation by an attorney, he pleaded guilty to all six charges the same day he was arraigned. The court minutes from his January 6, 2012, arraignment state that a Spanish interpreter was present and that Ballinas-Lucero was "formally arraigned and informed of the charges." The minutes state that Ballinas-Lucero "understands [his] rights as explained," and "understands [the] consequences of the plea."

The Superior Court sentenced Ballinas-Lucero to six days in county jail and three years of informal probation on the theft from an elder adult charges. It stayed his sentence on the theft by employee charges. Ballinas-Lucero was credited with time served and released the same day.

B. Initial Immigration Proceedings

Several days after his release from jail, DHS detained Ballinas-Lucero and issued a Notice to Appear in removal proceedings. DHS charged him with violating § 212(a)(6)(A)(i) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(a)(6)(A)(i), for entering the United States without being admitted or paroled.

Ballinas-Lucero conceded removability during a master calendar hearing on January 31, 2012. Through counsel, he filed an I-589 application for asylum, withholding of removal, and relief from removal under the Convention Against Torture ("CAT"). He also applied for cancellation of removal and adjustment of status under 8 U.S.C. § 1229b(b). To be eligible for cancellation of removal, an applicant generally must demonstrate, inter alia , that he or she has not been convicted of an offense under 8 U.S.C. § 1182(a)(2), which renders inadmissable applicants convicted of certain crimes, including crimes involving moral turpitude ("CIMTs") or crimes involving controlled substances. Id. § 1229b(b)(1)(C). Petty theft in violation of certain statutes, including California Penal Code §§ 484, 488, is a CIMT. Castillo-Cruz v. Holder , 581 F.3d 1154, 1159 (9th Cir. 2009) (collecting cases); see also Silva v. Garland , 993 F.3d 705, 716–17 (9th Cir. 2021) (casting doubt on the reasoning of our prior § 484 CIMT holdings, but concluding they remained binding). However, a noncitizen with only one conviction for a CIMT crime is not inadmissible if the crime qualifies under the "petty offense exception." Castillo-Cruz , 581 F.3d at 1157 (citing 8 U.S.C. § 1182(a)(2)(A)(ii)(II) ). A CIMT qualifies under the petty offense exception if "the maximum penalty possible for the crime of which the alien was convicted ... did not exceed imprisonment for one year and ... the alien was not sentenced to a term of imprisonment in excess of [six] months." Lafarga v. INS , 170 F.3d 1213, 1214–15 (9th Cir. 1999) (quoting 8 U.S.C. § 1182(a)(2)(A)(ii)(II) ).

Ballinas-Lucero appeared for his first merits hearing before an IJ on April 9, 2012. He testified through an interpreter. On direct examination, Ballinas-Lucero briefly testified about his fear of returning to Mexico. On cross-examination, the government attorney questioned him about his theft convictions. The attorney asked, "Who did you steal from?" Ballinas-Lucero responded that he was "accused of having taken the change from a customer." He explained that this customer, a woman, was not elderly, but "not doing, not so well," or, in the words of the government's attorney, was "mentally handicapped."

The IJ also questioned Ballinas-Lucero. The IJ asked him if he had pleaded guilty to the theft charges. Ballinas-Lucero responded, "[I]t was the first time I ever gone to court and it was in Orange and I really had no idea what to say, whether to say yes or no." He further testified about his lack of experience in criminal court and his failure to understand the charges against him:

[W]hen I went to court, they read me the charges, but everything was codified. It was all in codes, so nobody said to me specifically that this is for this, or that is for that. And the translator just said to me to say yes, simply and uh-huh. After I was accepted, after I accepted or agreed to the charges, the attorney asked me what the charges had been and I told, I told her or him, I, I don't even know what they really were, uh-huh. And, and I was told by the attorney that they have to explain them to me or read them to me and I said I don't know. This was the first time I'm ever in court.

Ballinas-Lucero said that he did not have an attorney to represent him. He had "only a translator." When the IJ pressed him as to why he did not ask for an attorney, Ballinas-Lucero answered, "I'm sorry, perhaps this was my ignorance because it was my first time in court. I really didn't know what I was supposed to do."

The IJ asked Ballinas-Lucero about the circumstances underlying the theft charges. Ballinas-Lucero explained that he was arrested at his workplace, and that it was a caregiver for the person whose change he was accused of taking who "caught" him. He said the customer in question was a regular at the Burger King. Ballinas-Lucero testified that he did not steal from the customer, but instead that the customer was confused about the price of her order, which had not been her usual order.

The IJ concluded the hearing stating, "[U]nfortunately, I cannot alter your conviction and it appears you pled guilty to it. If you think you were wrongly convicted, your only option would be to go back to that court and try to get it to correct, it's what, you believe is an error." The IJ said that he credited Ballinas-Lucero's testimony as to his fears about returning to Mexico but found that he was nevertheless ineligible for asylum, withholding, and CAT protection. The IJ offered him voluntary departure, but Ballinas-Lucero refused to waive his right to appeal the IJ's decision and elected instead to appeal the IJ's decision to the BIA.

In an oral decision, the IJ denied Ballinas-Lucero's applications for asylum, withholding, CAT protection, and cancellation of removal. The IJ questioned the validity of Ballinas-Lucero's criminal convictions:

[T]he Court did ask how he committed this offense and from what respondent said he did, it did not appear he was guilty. Realizing he was not represented, believing that he may have, as he says, not understood since they were all talking in code, there may have been a miscarriage of justice here.

The IJ held that because the...