Olea-Serefina v. Garland

34 F.4th 856

Aurora OLEA-SEREFINA, aka Zerefina Aurora Olea Daza, Aurora Seferina Olea, Aurora Olea-Zerefina, Petitioner,

v.Merrick B. GARLAND, Attorney General, Respondent.

No. 20-72231

United States Court of Appeals, Ninth Circuit.

Submitted December 8, 2021^* San Francisco, California

Filed May 19, 2022

David M. Whalen, San Diego, California, for Petitioner.

Zoe J. Heller, Senior Litigation Counsel; Karen L. Melnik, Trial Attorney; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

Before: Susan P. Graber and Daniel P. Collins, Circuit Judges, and Jennifer Choe-Groves, Judge^**

COLLINS, Circuit Judge:

Petitioner Zerefina Aurora Olea Daza ("Olea"), a native and citizen of Mexico, petitions for review of an order of the Board of Immigration Appeals ("BIA") upholding the decision of the Immigration Judge ("IJ") denying her application for cancellation of removal and ordering her removed to Mexico. We have jurisdiction under § 242 of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1252, and we deny the petition in part and dismiss it in part.

I

In March 2014, Olea was served with a notice to appear charging that she was removable under INA § 212(a)(6)(A)(i) because she had entered the U.S. unlawfully near Tecate, California in 1994. 8 U.S.C. § 1182(a)(6)(A)(i). Olea first appeared in immigration court in May 2014, and the IJ twice continued Olea's removal proceedings, for a total of 13 months, to allow Olea to locate counsel.

At a subsequent hearing in June 2015, Olea stated that she was unable to afford an attorney and was prepared to proceed with her case. In response to the IJ's questions concerning whether she contested removability, Olea admitted entering near Tecate in 1994, but she initially denied that she had done so illegally. The IJ then had the following exchange with Olea:

Q: So, you came through the border and were inspected by an officer, or did you come illegally through the hills?

A: Illegally.

Q: Have you ever had papers to be here legally?

A: No.

Based on that answer, the IJ found Olea removable as charged.

The IJ then asked Olea a series of questions in order to explore possible grounds for relief. In response, Olea stated that she had been in the United States continuously since 1994; that she had three U.S. citizen minor children; that she had never been convicted of a crime; that she had not previously appeared before an IJ or been granted voluntary departure; and that she did not fear that anyone would harm her if she returned to Mexico. The attorney for the Department of Homeland Security ("DHS") noted that two of Olea's responses were inaccurate: Olea had been convicted of a felony in California state court in April 2003, and she apparently had been granted voluntary departure in August 1995.

The IJ noted that Olea normally would have been eligible for cancellation of removal, and she gave Olea a cancellation application to complete. See 8 U.S.C. § 1229b(b)(1) (stating that removal may be cancelled for an alien who has been continuously present in the U.S. for more than 10 years and who, inter alia , shows that removal would result in "exceptional and extremely unusual hardship" for a U.S. citizen child). The IJ expressed concern, however, that Olea's criminal conviction might bar that relief, and so the IJ revisited the question of whether Olea was afraid to return to Mexico: "So, let me ask you one more time. Do you have any fear if anyone would harm you in Mexico?" This time, Olea answered "Yes." The IJ then handed Olea an application for asylum and withholding of removal and explained what Olea would have to show to qualify for such relief. Olea also indicated that she intended to file an application for a "U-visa" with U.S. Citizenship and Immigration Services ("USCIS"). Cf. Medina Tovar v. Zuchowski , 982 F.3d 631, 633 (9th Cir. 2020) (en banc) (explaining that a "U visa ... is designed to grant legal status to certain non-citizen victims of crime who assist law enforcement").

At a subsequent hearing in November 2015, the IJ granted Olea a further continuance to allow Olea to complete her applications, and the IJ warned her that she might not be granted a further continuance absent exceptional circumstances. At the next hearing in April 2016, Olea submitted her application for cancellation of removal. Despite the IJ's earlier warnings that further extensions might not be granted, the IJ again postponed Olea's removal hearing, this time in light of Olea's assertion that her U-visa application was pending. However, at the ensuing September 2016 hearing, DHS counsel reported that the U-visa application had actually been denied in January 2016. A friend who appeared with Olea at the hearing and who was assisting her with her applications explained that the U-visa application had to be resubmitted to USCIS in light of issues concerning the supporting paperwork. With DHS's concurrence, the IJ granted another continuance in light of the new U-visa application.

At a further hearing in May 2017, Olea handed the IJ paperwork showing that the second U-visa application had been received by USCIS in March 2017, and the IJ again granted a continuance. In October 2017, at the next hearing, the IJ granted yet another continuance in light of the still-pending U-visa application and Olea's representations that she had been trying to find an attorney. The IJ stated, however, that even if Olea still lacked an attorney at the time of the next hearing, she would proceed to address the merits of Olea's application for cancellation of removal.

The hearing on the cancellation application was held in April 2018. At the start of the hearing, Olea asked for a further continuance, stating that she had recently hired an attorney, whose last name she did not recall, and that she had not yet heard anything about the U-visa application. The IJ denied the requested continuance, noting that Olea had been given ample time to get an attorney, that no attorney had entered an appearance, and that the case had been pending for four years. DHS counsel noted for the record that the second U-visa application had been denied in November 2017. Turning to the merits of the application for cancellation, the IJ denied it on the grounds that Olea's conviction for corporal injury upon a child in violation of California Penal Code § 273d(a) rendered her statutorily ineligible for that relief. Specifically, the IJ concluded that a violation of § 273d(a) was categorically both a crime involving moral turpitude and an aggravated felony, and that Olea was therefore ineligible for cancellation under INA § 240A(b)(1). Due to the nature of Olea's conviction, the IJ also denied, as a matter of discretion, Olea's alternative request for voluntary departure and ordered her removed to Mexico.

The BIA upheld the denial of cancellation of removal, based solely on the ground that a violation of § 273d(a) is categorically an aggravated felony. The BIA also rejected Olea's contentions that the IJ violated her due process rights by allegedly failing to develop the record, that the IJ should have granted a further continuance, and that the IJ should have granted voluntary departure. Olea timely petitioned this court for review.

II

To be eligible for cancellation of removal under INA § 240A(b)(1), an alien must not have been convicted of an offense described in, inter alia , INA § 237(a)(2). See 8 U.S.C. § 1229b(b)(1)(C). Among the offenses listed in § 237(a)(2) is "an aggravated felony." See id. § 1227(a)(2)(A)(iii). We hold that the BIA properly concluded that Olea's 2003 conviction for violating California Penal Code § 273d(a) constituted a conviction for an aggravated felony within the meaning of the INA, thereby rendering her ineligible for cancellation of removal.

The INA's definition of "aggravated felony" includes, inter alia , a "crime of violence (as defined in section 16 of title 18 ...) for which the term of imprisonment [is] at least one year." 8 U.S.C. § 1101(a)(43)(F). Olea's conviction records confirm that her sentence for her § 273d(a) conviction included, as a condition of her probation, a jail term of 365 days, which meets the statutory requirement of a term of "at least one year." Id. ; see also Arellano Hernandez v. Lynch , 831 F.3d 1127, 1133 (9th Cir. 2016) (holding that a sentence of 365 days in jail that is imposed as a condition of probation "equates to imprisonment of ‘at least one year’ " (citation omitted)). Olea argues that the term of imprisonment was less than one year because she actually served fewer than 365 days in jail, but the INA specifically provides that "[a]ny reference to a term of imprisonment or a sentence with respect to an offense is deemed to include the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part." 8 U.S.C. § 1101(a)(48)(B). Because Olea's sentence, as ordered by the court, included a jail-term of 365 days, it met the statutory one-year minimum. Accordingly, whether Olea was convicted of an "aggravated felony" turns solely on whether a violation of § 273d(a) constitutes a "crime of violence" under 18 U.S.C. § 16. Reviewing that question de novo, Amaya v. Garland , 15 F.4th 976, 980 (9th Cir. 2021), we conclude that it does.

Section 16(a) defines a "crime of violence" as "an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another." 18 U.S.C. § 16(a).¹ In determining whether a violation of § 273d(a) constitutes a "crime of violence' under that definition, we apply a "categorical approach," meaning that our "sole focus is on the elements of the relevant statutory offense, not on the facts underlying the convictions." United States v. Watson , 881 F.3d 782, 784 (9th Cir. 2018). Consequently, the key question here is whether the offense...