Gutierrez v. Garland

106 F.4th 866

Sergio Manrique GUTIERREZ, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.

No. 21-130

No. 22-554

United States Court of Appeals, Ninth Circuit

Argued and Submitted November 15, 2023 Pasadena, California

Filed July 2, 2024

On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. AXXX-XX1-582

Harper Otawka (argued) and Olavo Michel, ABA Immigration Justice Project, San Diego, California, for Petitioner.

Gregory D. Mack (argued), Senior Litigation Counsel, Office of Immigration Litigation, Civil Division; Sebatino F. Leo, Assistant Director; Brian M. Boynton, Principal Deputy Assistant Attorney General, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

Vincent J. Brunkow (argued) and Karla Hartzler, Federal Public Defenders, Federal Defenders of San Diego Inc., San Diego, California, for Amicus Curiae Federal Defenders of San Diego Inc.

Before: Johnnie B. Rawlinson, Richard R. Clifton, and Andrew D. Hurwitz, Circuit Judges.

OPINION

CLIFTON, Circuit Judge:

Sergio Manrique Gutierrez¹ petitions for review of a Board of Immigration Appeals ("BIA") decision dismissing his appeal of an order of removal by an Immigration Judge ("IJ") based on Gutierrez's conviction of an aggravated felony crime of violence and for having been convicted of two crimes of moral turpitude. The BIA affirmed the IJ's holding that Gutierrez's California carjacking conviction is a categorical crime of violence. The BIA did not reach the second ground for removal, concluding that Gutierrez waived his challenge to the moral turpitude removal charge. Gutierrez separately petitions for review of the BIA's denial of his motion to reopen his appeal. The petitions were consolidated, and we have jurisdiction under 8 U.S.C. § 1252.

We conclude that California carjacking under Cal. Pen. Code § 215(a) is not a categorical crime of violence. We also conclude that the BIA erroneously determined that Gutierrez waived his challenge to the moral turpitude removal charge. We grant the consolidated petition to that extent and remand the case to the BIA to decide, in the first instance, whether Gutierrez is removable for having been convicted of two crimes of moral turpitude.

Gutierrez also petitions for review of the IJ's order reopening his case to consider a change in the law. We lack jurisdiction over that issue and therefore dismiss his petition as to this claim.

Gutierrez further petitions for review of the agency's denial of his application for adjustment of status and waiver of inadmissibility under 8 U.S.C. § 1182(h), denial of protection from removal under the Convention Against Torture ("CAT"), and the agency's finding that Gutierrez was not credible. He also petitions for review of the BIA's denial of his motion to reopen his case to consider new evidence that he was incompetent and to consider his ineffective assistance of counsel claim. We deny the consolidated petition as to these claims.

I. Background

The history of this case is unusually complicated. We describe as much as is necessary to resolve Gutierrez's current claims.

Gutierrez was born in El Salvador and entered the United States with his family in 1986 when he was three or four years old, becoming a lawful permanent resident shortly thereafter. In 2006, Gutierrez was convicted of carjacking under Cal. Pen. Code § 215(a). Based on that conviction, the government filed a Notice to Appear ("NTA") charging Gutierrez as removable under 8 U.S.C. § 1227(a)(2)(A)(iii) for having been convicted of an aggravated felony crime of violence, as defined in 8 U.S.C. § 1101(a)(43)(F). The IJ concluded that California carjacking is an aggravated felony crime of violence and sustained that charge of removal against Gutierrez. Gutierrez applied for asylum, withholding of removal, and CAT protection.

The government then amended the NTA to add new charges for removability "in lieu of the original charge[ ]" of committing an aggravated felony crime of violence.² The government instead sought to remove Gutierrez under 8 U.S.C. § 1227(a)(2)(A)(iii), alleging that Gutierrez's carjacking conviction was an aggravated felony theft offense, as defined in 8 U.S.C. § 1101(a)(43)(G). The IJ sustained that charge. The amended NTA also charged that Gutierrez was removable under 8 U.S.C. § 1227(a)(2)(A)(ii) for having been convicted of two or more crimes of moral turpitude. The government alleged that Gutierrez's Cal. Pen. Code § 215(a) carjacking conviction and Cal. Pen. Code § 484(a) petty theft conviction constituted crimes of moral turpitude, but the government failed to submit evidence that Gutierrez was convicted of petty theft. Because evidence of only one conviction was submitted, the IJ declined to sustain the two or more crimes of moral turpitude charge. Gutierrez then applied for a waiver of inadmissibility and an adjustment of status.

Gutierrez next filed a renewed motion to terminate his removal proceedings. The IJ granted Gutierrez's motion, holding that his carjacking conviction was not an aggravated felony theft offense or a crime involving moral turpitude. The government timely moved for reconsideration and amended the NTA to include an additional charge that Gutierrez's carjacking conviction was an aggravated felony crime of violence warranting removal. The IJ construed the government's motion to reconsider "as a motion to reopen due to a fundamental change in the law" and granted that motion.

Gutierrez again moved to terminate the case, arguing that under United States v. Baldon, 956 F.3d 1115 (9th Cir. 2020), Cal. Pen. Code § 215(a) carjacking is not a categorical crime of violence. The IJ denied Gutierrez's motion to terminate and sustained the crime of violence charge based on his carjacking conviction. The IJ also sustained the moral turpitude charge based on Gutierrez's convictions for carjacking and petty theft.³ The IJ further determined that Gutierrez was not credible and denied his applications for waiver of inadmissibility, adjustment of status, and CAT protection. Gutierrez timely appealed to the BIA.

The BIA dismissed Gutierrez's appeal, holding that the IJ did not improperly reopen Gutierrez's case and that California carjacking is a crime of violence. The BIA declined to address whether Gutierrez was removable for having been convicted of two crimes of moral turpitude. The BIA also declined to address Gutierrez's application for waiver of inadmissibility, stating that it would have denied Gutierrez's application for adjustment of status as a matter of discretion. The BIA also affirmed the IJ's adverse credibility finding and denial of Gutierrez's application for CAT protection. Gutierrez petitioned this court for review, creating our Case No. 21-130.

Gutierrez retained new counsel and filed a motion to reopen before the BIA. The BIA again rejected Gutierrez's argument that California carjacking is not a crime of violence. The BIA also concluded that Gutierrez "raise[d] no argument in his motion regarding his removal under [8 U.S.C. § 1227 (a)(2)(A)(ii)]" for having been convicted of two or more crimes of moral turpitude. The BIA also declined to reopen Gutierrez's case to consider new evidence that he was mentally incompetent and had received ineffective assistance of counsel. Gutierrez again petitioned this court for review, creating our Case No. 22-554. Gutierrez's petitions in Case No. 21-130 and 22-554 were consolidated.

In his consolidated petition, Gutierrez argues: (1) California carjacking is not an aggravated crime of violence; (2) the BIA erroneously held that he waived any challenge to the moral turpitude removal charge; (3) the IJ abused its discretion in reopening his case sua sponte; and (4) the agency abused its discretion in finding he was not credible, in denying his application for waiver of inadmissibility, in denying his application for CAT protection, and in denying his motion to reopen to consider new evidence of incompetence and his ineffective assistance of counsel claim. We address each argument in turn.

II. Crime of Violence

Gutierrez argues that California carjacking, the crime of which he was convicted, is not an aggravated felony crime of violence. We review whether a conviction qualifies as an aggravated felony de novo. Rendon v. Holder, 764 F.3d 1077, 1082 (9th Cir. 2014). We apply the categorical approach when determining whether a conviction constitutes an aggravated felony crime of violence under 18 U.S.C. § 16(a). See Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). "Under the categorical approach, we compare the elements of each offense with the federal definition of 'crime of violence' to determine whether the [state] offense criminalizes a broader range of conduct than the federal definition captures." Baldon, 956 F.3d at 1120 (quoting United States v. Edling, 895 F.3d 1153, 1155 (9th Cir. 2018)). "If the state offense proscribes conduct beyond the federal definition, it will not qualify as a crime of violence." Id. There must be "a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime." Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007). "Whether the noncitizen's actual conduct involved such facts 'is quite irrelevant.' " Moncrieffe v. Holder, 569 U.S. 184, 190, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013). We "pay particular attention to cases 'that examine the outer contours of the conduct criminalized.' " Baldon, 956 F.3d at 1125 (quoting United States v. Strickland, 860 F.3d 1224, 1226 (9th Cir. 2017)).

We do not write on a blank slate. Our court previously held that California carjacking is not a categorical crime of violence. See Solorio-Ruiz v. Sessions, 881 F.3d 733 (9th Cir. 2018), abrogated in part by Stokeling v. United States, 586 U.S. 73, 139 S. Ct. 544, 202 L.Ed.2d 512 (2019), as recognized...