Gutierrez v. Sessions

887 F.3d 770

Miriam GUTIERREZ, Petitioner,

v.Jefferson B. SESSIONS, III, Attorney General, Respondent.

No. 17-3749

United States Court of Appeals, Sixth Circuit.

Decided and Filed: April 16, 2018

ON BRIEF: Alicia J. Triche, Triche Immigration Law, Memphis, Tennessee, for Petitioner. Sarah Byrd, United States Department of Justice, Washington, D.C., for Respondent.

Before: SILER, BATCHELDER and DONALD, Circuit Judges.

BERNICE BOUIE DONALD, Circuit Judge.

Petitioner Miriam Gutierrez ("Gutierrez"), a Lawful Permanent Resident ("LPR"), seeks judicial review of the Board of Immigration Appeals ("BIA") affirmance of the Immigration Judge's ("IJ") denial of her application for cancellation of removal under 8 U.S.C. § 1229b(a), and granting the motion of the Department of Homeland Security ("DHS") to pretermit the application on the grounds that Gutierrez failed to establish that her convictions were not aggravated felonies. An LPR who has been "convicted" of an "aggravated felony" is disqualified from cancellation under § 240A(a)(3) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1229b(a)(3). In this appeal, we are called upon to decide, where an alien was convicted under a divisible criminal statute and the record is inconclusive as to whether the conviction was for an aggravated felony, whether such inconclusiveness defeats the alien's eligibility for relief or, rather, should be construed in the alien's favor, thereby establishing eligibility. For the reasons stated herein, we DENY the petition and AFFIRM the BIA's order.

I

Gutierrez, a native and citizen of Bolivia, has been an LPR since her admission to the United States in 1980. Pertinent to the present appeal, she was convicted in 2012 for two counts of credit card theft in violation of Virginia Code § 18.2-192(1), after entering a guilty plea.¹ Gutierrez also had prior convictions for petty larceny, Virginia Code § 18.2-96 (in January 2009), and for prescription fraud, Virginia Code § 18.2-258.1 (in March 2012).

In March 2012, DHS initiated removal proceedings against Gutierrez by serving her with a Notice to Appear ("NTA") in Immigration Court. The NTA charged her with removability pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii), based on her convictions for petty larceny and prescription fraud, considered as crimes involving moral turpitude. At an October 2014 hearing, Gutierrez admitted the NTA's allegations and conceded her removability.

Gutierrez applied for cancellation of removal pursuant to 8 U.S.C. § 1229b(a). DHS moved to pretermit Gutierrez's application for relief, based on statutory ineligibility because she had been convicted of an aggravated felony. Specifically, DHS argued that Gutierrez's 2012 credit card theft conviction² was an aggravated felony theft offense under 8 U.S.C. § 1101(a)(43)(G). DHS noted that Gutierrez had not provided proof that her credit card convictions were not for an aggravated felony. Following a hearing in February 2015, the IJ found that Gutierrez had failed to carry her burden of proving the absence of a disqualifying theft aggravated felony conviction. Therefore, the IJ concluded that Gutierrez was ineligible for relief, and granted DHS' motion to pretermit.

Gutierrez then appealed to the BIA. She did not contest removability; she argued that the Virginia credit card theft statute was overbroad and indivisible and thus "[could] [ ]not serve as [a] predicate offense[ ]" under 8 U.S.C. § 1101(a)(43)(G).³ In the alternative, Gutierrez argued that even if the statute were "subject to the modified categorical approach," her inconclusive record of conviction should be construed in her favor.

The BIA "employ[ed] the ‘categorical approach’ " to determine whether Gutierrez's state conviction qualified as a theft aggravated felony under 8 U.S.C. § 1101(a)(43)(G). At the first step, the BIA found Virginia Code § 18.2-192(1)"overbroad vis-à-vis the ‘theft offense’ concept" because the statute contained at least one subdivision, (1)(c), under which "a person can be convicted ... absent proof of an ‘intent to deprive’ the rightful owner of the property." At the second step of the analysis, the BIA determined that the section was divisible because its subdivisions "criminalize[d] diverse acts, committed with different mental states." At the third step, given that the evidence showed that the 8 U.S.C. § 1229b(a)(3)"aggravated felony bar ‘may apply’ " to Gutierrez's application for relief, the BIA applied 8 C.F.R. § 1240.8(d) and required Gutierrez to "prove by a preponderance of the evidence that the bar [was] inapplicable." Gutierrez could meet this burden "by producing conviction records indicating that she was charged and pled guilty under section 18.2-192(1)(c)" rather than under another subdivision. However, the BIA noted that the only conviction-related records Gutierrez supplied were "silent as to the subdivision under which she was convicted," and the resulting "inconclusiveness of the conviction record necessarily inure[d]to her detriment." The BIA concluded that Gutierrez was "removable as charged based on her concession, and [was] ineligible for cancellation of removal because she did not prove that she ‘has not been convicted of any aggravated felony,’ as required by [ 8 U.S.C. § 1229b(a)(3) ]." The BIA dismissed Gutierrez's appeal and granted the DHS motion to pretermit her application. This timely appeal followed.

II

As a threshold matter we note that while 8 U.S.C. § 1252(a)(2)(C) bars our "jurisdiction to review any final order of removal against an alien who is removable by reason of having committed" a crime of moral turpitude, subparagraph (C) does not "preclud[e] review of constitutional claims or questions of law" in a petition for review. Id. § 1252(a)(2)(D). We review such claims de novo. See Trela v. Holder , 607 Fed.Appx. 527, 531 (6th Cir. 2015). Where the BIA reviews the IJ's decision and issues a separate opinion, rather than summarily affirming the IJ's decision, we review the BIA's decision as the final agency determination. Khalili v. Holder , 557 F.3d 429, 435 (6th Cir. 2009) (citing Morgan v. Keisler , 507 F.3d 1053, 1057 (6th Cir. 2007) ). We review de novo an agency's determinations of questions of law. Khozhaynova v. Holder , 641 F.3d 187, 191 (6th Cir. 2011) (citing Zhao v. Holder , 569 F.3d 238, 246 (6th Cir. 2009) ).

III

A

An "aggravated felony" conviction disqualifies an LPR from cancellation of removal. 8 U.S.C. § 1229b(a)(3).⁴ The applicant for relief must demonstrate eligibility. Id. , § 1229a(c)(4)(A)(i). Where "grounds for mandatory denial of ... relief may apply," the applicant must "prov[e] by a preponderance of the evidence that such grounds do not apply." 8 C.F.R. § 1240.8(d) ; see Diaz-Zanatta v. Holder , 558 F.3d 450, 458 (6th Cir. 2009).

An "aggravated felony" is defined to include "a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment [is] at least one year." 8 U.S.C. § 1101(a)(43)(G). The generic definition of a "theft offense" for purposes of § 1101(a)(43)(G) is a "taking of property or an exercise of control over property without consent with the criminal intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less than total or permanent." Gonzales v. Duenas-Alvarez , 549 U.S. 183, 189, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007) ; Matter of V-Z-S- , 22 I. & N. Dec. 1338 (BIA 2000).

To determine whether a state statute matches a predicate offense in a federal statutory scheme, courts conduct a three-step inquiry. See Mathis v. United States , ––– U.S. ––––, 136 S.Ct. 2243, 2248, 195 L.Ed.2d 604 (2016) ; United States v. Ritchey , 840 F.3d 310, 315-16 (6th Cir. 2016). First, the court asks "whether the state law is a categorical match with" the generic federal offense. Marinelarena v. Sessions , 869 F.3d 780, 785 (9th Cir. 2017) (citation omitted). Only a statute whose "elements are the same as, or narrower than, those of the generic offense" categorically matches the generic offense. Descamps v. United States , 570 U.S. 254, 257, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). Such a match ends the inquiry.

Absent a categorical match, the second step asks whether the "overbroad" statute has but "a single ... set of elements" and therefore "defines[s] a single crime." Mathis , 136 S.Ct. at 2248. A finding that a statute is thus "indivisible" ends the inquiry because "an indivisible, overbroad statute can never serve as a predicate offense." Medina-Lara v. Holder , 771 F.3d 1106, 1112 (9th Cir. 2014) (citing Descamps , 570 U.S. at 265, 133 S.Ct. 2276 ).

In contrast, a "divisible" statute "list[s] elements in the alternative, and thereby define[s] multiple crimes." Mathis , 136 S.Ct. at 2249. Such statutes receive "modified categorical" analysis. Descamps , 570 U.S. at 257, 133 S.Ct. 2276. Therein, the court reviews "a limited class of documents to determine" not the facts of the underlying criminal conduct but rather "which of a statute's alternative elements formed the basis of the ... conviction," Id. at 262, 133 S.Ct. 2276 (emphases added). The Supreme Court has set forth the relevant documents: the judgment of conviction, the charging document, a written plea agreement, a plea colloquy, or other "comparable judicial record." Shepard v. United States , 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). The list of permitted Shepard documents is limited in order to further the categorical approach's broad goal of preventing "relitigation of past convictions ... long after the fact." See Moncrieffe v. Holder , 569 U.S. 184, 200-01, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013) (citing Chambers v. United States , 555 U.S 122, 125, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009) ).

It is undisputed that Gutierrez is removable due to her convictions for crimes of moral turpitude, (Pet'r's Br. at 12-14), and that her eligibility for relief depends on having no "convict[ion] of any aggravated felony," (id. at 4-5). Also...