Hernandez v. Garland

Jose Alberto Hernandez, Petitioner, v. Merrick B. Garland, Attorney General, Respondent.

No. 21-70493

United States Court of Appeals, Ninth Circuit

June 28, 2022

Argued and Submitted December 9, 2021 Pasadena, California

On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A094-447-896

Niels W. Frenzen (argued) and Jean E. Reisz, University of Southern California, Gould School of Law, Immigration Clinic, Los Angeles, California, for Petitioner.

Lindsay Corliss (argued), Trial Attorney; Brianne Whelan Cohen, Senior Litigation Counsel; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

Before: Paul J. Kelly, Jr., ^[*] Milan D. Smith, Jr., and Danielle J. Forrest, Circuit Judges.

SUMMARY^[**]

Immigration

Denying Jose Alberto Hernandez's petition for review of a decision of the Board of Immigration Appeals, the panel held that: (1) Hernandez's receipt of temporary protected status ("TPS") was not an admission, and he therefore could not meet the statutory requirement that he have seven years of continuous residence in the United States after admission for purposes of lawful permanent resident cancellation of removal; and 2) the Board properly concluded that Hernandez's domestic-violence conviction was a particularly serious crime ("PSC") that barred him from obtaining asylum.

Considering the Supreme Court's recent decision in Sanchez v Mayorkas, 141 S.Ct. 1809 (2021), and the plain language of the TPS statute, 8 U.S.C. § 1254a(c)(5), the panel concluded that the granting of TPS does not constitute being "admitted in any status" under the cancellation statute, 8 U.S.C. § 1229b(a). The panel held that Sanchez effectively overruled circuit precedent requiring consideration of the benefits conferred by an alien's immigration status in determining whether the alien had been admitted. The panel explained that circuit precedent judicially expanding the statutory definition of admission was clearly irreconcilable with Sanchez's holding that lawful status and admission are distinct concepts in immigration law. The panel wrote that Sanchez is clear that TPS does not constitute an admission to the United States no matter how great its benefits.

The panel wrote that the plain language of the TPS statute reinforced its conclusion that receiving TPS does not constitute an admission under the cancellation statute. Most compelling is the statute's express statement that a grant of TPS does not constitute an admission. Moreover certain other language indicates that TPS is a disfavored way to establish any of the cancellation-of-removal requirements, and notably absent from the statute's list of benefits is admission. Accordingly, the panel agreed with the BIA that Hernandez failed to satisfy the 7-year continuous residence requirement after having been admitted in any status, and he was therefore not eligible for lawful permanent resident cancellation of removal.

The panel rejected Hernandez's argument that the BIA legally erred in its PSC determination by considering the cumulative effect of his three domestic-violence convictions, instead of considering his third conviction in 2016 alone. The panel concluded that the BIA's specific references to Hernandez's third domestic-violence conviction made clear that it did not hold that all three convictions, considered collectively, constituted a particularly serious crime. Rather, the agency held only that the third conviction was particularly serious in light of the previous convictions. The panel concluded that it need not address whether the BIA properly considered Hernandez's prior convictions in deciding that his third conviction was particularly serious because Hernandez did not "specifically and distinctly" argue that this was error in his opening brief, and thus forfeited the issue.

OPINION

FORREST, Circuit Judge:

The Board of Immigration Appeals (BIA) denied Petitioner Jose Alberto Hernandez cancellation of removal concluding that his receipt of temporary protected status (TPS) was not an admission and, therefore, he could not meet the statutory requirement that he have seven years of continuous residence in the United States after admission. The BIA also denied Hernandez's application for asylum concluding that his 2016 domestic-violence conviction was a "particularly serious crime" that barred him from relief. Hernandez challenges the BIA's decision raising two primary arguments: (1) under our precedent, his TPS does constitute an admission "in any status" under the cancellation statute, 8 U.S.C. § 1229b(a), and (2) the BIA applied an improper legal standard in deciding that his 2016 conviction was for a particularly serious crime.

We reject both arguments. In doing so, we hold that the Supreme Court's recent decision in Sanchez v. Mayorkas, 141 S.Ct. 1809 (2021), effectively overruled our precedent requiring that the benefits conferred by an alien's immigration status be analyzed to determine if the alien had been "admitted in any status," see Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc), and we conclude that under Sanchez and the plain language of the relevant immigration statutes, Hernandez's TPS does not constitute an admission under 8 U.S.C. § 1229b(a)(2). We also conclude that the BIA did not err in classifying his 2016 domestic-violence conviction as a particularly serious crime that bars him from obtaining asylum.

I. BACKGROUND

Hernandez, a native and citizen of El Salvador, entered the United States unlawfully in 1999. The Government granted him TPS in 2003. The TPS program "provides humanitarian relief to foreign nationals in the United States who come from specified countries." Sanchez, 141 S.Ct. at 1812; 8 U.S.C. § 1254a(b). The Government may designate a country for protection if the country suffers from dangerous conditions arising from armed conflicts or natural disasters. 8 U.S.C. § 1254a(b). Citizens of the designated country who are already present in the United States may then obtain TPS. Id. § 1254a(c)(1). TPS protects aliens from removal for the duration of their country's designation and allows them to work in the United States. Id. § 1254a(a). An alien's unlawful entry generally does not preclude them from being granted TPS. Id. § 1254a(c)(2)(A)(ii).

In 2010, approximately seven years after Hernandez received TPS, the Government admitted him into the United States as a lawful permanent resident. Hernandez was convicted of multiple crimes after becoming a lawful permanent resident. He was convicted in 2014, 2015, and 2016 of "domestic violence with injury" under California Penal Code § 273.5(A) and sentenced to increasingly longer terms of imprisonment for each offense-four days, 30 days, and 364 days, respectively. The victim in all three cases was Hernandez's now ex-wife. Hernandez also was convicted of taking a vehicle without the owner's permission, California Vehicle Code § 10851A, and receiving or purchasing stolen property, California Penal Code § 496d(a). For his receiving-stolen-property conviction, he was sentenced to 16 months' imprisonment and served 200 days.

In August 2016, the Government charged Hernandez as removable based on his 2016 domestic-violence conviction, which was based on acts committed approximately five years after Hernandez became a lawful permanent resident. Hernandez conceded removability and sought cancellation of removal under 8 U.S.C. § 1229b(a) (LPR cancellation) and asylum. In 2017, the BIA denied his applications for relief based on his receiving-stolen-property conviction, not his 2016 domestic-violence conviction, and ordered him removed. But two years after Hernandez sought review of the BIA's decision, the California Superior Court vacated his receiving-stolen-property conviction upon which the BIA had based its denial of relief, and we granted the Government's unopposed motion to remand to the BIA.

On remand, the BIA returned the case to an Immigration Judge (IJ) for an analysis of how the vacatur of Hernandez's conviction affected his eligibility for LPR cancellation and asylum.^[1] At a hearing, the IJ assumed without deciding that Hernandez's vacated^[2] receiving-stolen-property conviction did not bar him from either form of relief. Hernandez confirmed that the Government admitted him as a lawful permanent resident on April 29, 2010. Although he was charged with removability for acts committed only five years later, Hernandez argued that he had nonetheless established the required seven years of continuous residence based on his 2003 grant of TPS. Because the Government argued that his 2016 domestic-violence conviction was a particularly serious crime that barred him from receiving asylum, Hernandez's testimony about his convictions focused on his domestic-violence convictions.

The IJ denied Hernandez's application for LPR cancellation concluding that Hernandez failed "to show seven years of continuous residence in the United States after having been admitted in any status." The BIA rejected Hernandez's argument that, under our precedent, receiving TPS is a grant of admission. Instead, the IJ found that Hernandez was admitted to the United States in April 2010, when he became a lawful permanent resident. The IJ also found that Hernandez stopped accruing continuous residency five years later-two years short of the requirement-when he committed the assault for which he was convicted in 2016.

Regarding Hernandez's application for asylum, the IJ concluded that Hernandez was ineligible for this relief because his 2016 domestic-violence conviction was a particularly serious crime. The IJ concluded that Hernandez's own testimony established this fact- Hernandez...