St. John v. Garland

82 F.4th 42

Sandra ST. JOHN, Petitioner, v. Merrick B. GARLAND, Respondent.

No. 22-1695

United States Court of Appeals, First Circuit

September 19, 2023

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

Michael A. Ugolini for Petitioner.

Elizabeth M. Dewar, Trial Attorney, Office of Immigration Litigation, with whom Brian M. Boynton, Principal Deputy Assistant Attorney General, Civil Division, and Edward E. Wiggers, Senior Litigation Counsel, were on brief, for Respondent.

Before Kayatta, Lynch, and Montecalvo, Circuit Judges.

MONTECALVO, Circuit Judge.

Petitioner Sandra St. John seeks review of the Board of Immigration Appeals' ("BIA") dismissal of her appeal from the Immigration Judge's ("IJ") denial of her statutory motion to reopen.¹ St. John argues that the agency² committed legal error in concluding that her pending postconviction motion to vacate did not disturb the finality of the challenged conviction for immigration purposes, and thus was not an adequate basis for reopening her proceedings. We hold that the agency did not abuse its discretion in finding that St. John's pursuit of post-conviction relief neither destroys the finality of the underlying conviction for immigration purposes nor invalidates the basis for the removal order predicated on it. St. John's petition is therefore denied.

I. Background

St. John came to the United States from Trinidad and Tobago in 1981 as a child. She remained and, in 1990, became a lawful permanent resident. Decades later, St. John was convicted in Hampden County Superior Court of several felonies, including, as relevant here, "mayhem," in violation of Massachusetts General Laws ch. 265, § 14, for breaking into a woman's home and assaulting her with hot cooking oil.³ She appealed, and the convictions were subsequently affirmed by the Massachusetts Appeals Court on June 15, 2012. A few months later, the Department of Homeland Security ("DHS") initiated removal proceedings against St. John based on the mayhem conviction, charging her as removable pursuant to 8 U.S.C. § 1227(a)(2)(iii) for committing an aggravated felony crime of violence under 8 U.S.C. § 1101(a)(43)(F). On November 18, 2013, after several failed attempts at securing counsel, St. John appeared pro se from a corrections facility for her merits hearing. Before the IJ, she conceded that the mayhem conviction rendered her removable, but insisted that she had been wrongfully convicted and asked what would happen if her conviction were overturned. In response, the IJ explained that St. John would no longer be removable if the state court vacated her conviction. At the end of the hearing, St. John was found removable as charged, and the IJ ordered her removed to Trinidad and Tobago. St. John did not appeal the order of removal, which soon after became final.

On December 31, 2021, St. John completed her criminal sentence and was released directly into U.S. Immigration and Customs Enforcement ("ICE") custody pursuant to an immigration detainer associated with her final order of removal. See 8 U.S.C. § 1226(c); 8 C.F.R. § 287.7.

After going into ICE custody, St. John engaged counsel, who, on September 13, 2021, filed a motion in the Massachusetts Superior Court asking it to vacate her conviction and grant a new trial ("motion to vacate") on the grounds of ineffective assistance of counsel, pursuant to Massachusetts Rule of Criminal Procedure 30(b).

St. John believed her motion to vacate had rendered the mayhem conviction non-final for immigration purposes, thereby invalidating the basis for her removability. On this theory, St. John moved for reopening of her removal proceedings, termination of those proceedings, and a stay of removal.⁴ About a week later, on January 14, 2022, the IJ provisionally granted the stay of removal pending resolution of St. John's requests for reopening. On March 3, 2022, the IJ denied, without prejudice, St. John's statutory motion to reopen and her request for reopening sua sponte. The IJ's orders permitted St. John to refile for reopening if her convictions were later overturned, but vacated the IJ's initial stay of removal. If the conviction were to be vacated, the IJ noted, "the stay w[ould] be re-visited." St. John, represented by counsel, appealed.

On August 22, 2022, the BIA dismissed the appeal, having found "no reason to disturb the Immigration Judge's decision." The BIA concluded that St. John's likelihood of success on her motion to vacate, almost ten years after the appellate court had affirmed her convictions, was "purely speculative." It therefore agreed with the IJ's decision to deny the motion, observed that the motion was untimely, and held that St. John had failed to show the exceptional circumstances necessary for sua sponte reopening. Affirming the IJ, the BIA added that St. John would remain removable subject to her mayhem conviction unless and until it should be vacated.⁵ Finally, the agency, citing its prior decisions, followed the rule that a post-conviction motion does not render a conviction non-final, and so could not justify a stay of removal proceedings. St. John timely petitioned this court for review.

II. Discussion

We review the denial of a motion to reopen for abuse of discretion. Thompson v. Barr, 959 F.3d 476, 479-80 (1st Cir. 2020); see Guerrero v. Holder, 766 F.3d 122, 126 (1st Cir. 2014). To satisfy this standard, the petitioner must demonstrate that the agency either "committed an error of law or exercised its judgment in an arbitrary, capricious, or irrational way" in denying the motion. Cabas v. Barr, 928 F.3d 177, 181 (1st Cir. 2019) (quoting Xue Su Wang v. Holder, 750 F.3d 87, 89 (1st Cir. 2014)). This analysis "necessarily hinges on the facts and circumstances of each particular case," but to guide the process, "we have explained that the BIA may abuse its discretion 'by neglecting to consider a significant factor that appropriately bears on the discretionary decision, by attaching weight to a factor that does not appropriately bear on the decision, or by assaying all the proper factors and no improper ones, but nonetheless making a clear judgmental error in weighing them.' " Sihotang v. Sessions, 900 F.3d 46, 50 (1st Cir. 2018) (quoting Murillo-Robles v. Lynch, 839 F.3d 88, 91 (1st Cir. 2016)).

Noncitizens have a statutory right to file one motion to reopen within ninety days of a removal order's becoming final, with a few delineated exceptions. 8 U.S.C. § 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c). Neither party contends that a statutory exception applies here.⁶

On appeal to the BIA, St. John argued that her "statutory motion to reopen should [have] be[en] granted since there is overwhelming evidence that she is completely innocent of the charges that were the basis of the removal order." But the BIA was unpersuaded. It too explained that a conviction remains final for immigration purposes, and further noted that the IJ's denial of St. John's statutory motion was appropriate because the motion was untimely.

Before us, St. John argues that the agency has misconstrued what it takes to render a conviction non-final for immigration purposes. She argues that the agency's denial of her motion rests on the erroneous legal conclusion that unless and until her conviction is vacated, she is not eligible for relief from its immigration consequences.

DHS contests, for several reasons, our jurisdiction and ability to review St. John's challenge to the agency's decision to deny her motion to reopen. DHS specifically argues that St. John's claims were not exhausted, as required by 8 U.S.C. § 1252(d)(1), and that they do not raise "colorable constitutional claims and questions of law" that would permit judicial review under § 1252(a)(2)(D).

On the exhaustion issue, according to the government, St. John never argued before the agency that her pending motion for a new trial in state court negated the finality of her convictions for immigration purposes. The government also argues that St. John's failure to file a motion for reconsideration of the BIA's decision means that her argument that the agency had engaged in impermissible fact-finding was not exhausted. That second aspect of the government's argument is, concededly, precluded by the Supreme Court's decision in Santos-Zacaria v. Garland, 598 U.S. 411, 143 S.Ct. 1103, 215 L.Ed.2d 375 (2023), which held that, because reconsideration is not available "as of right," 8 U.S.C. § 1252(d)(1), a petitioner is not required to pursue it in order to exhaust their remedies. Santos-Zacaria, 598 U.S. at 425, 143 S.Ct. 1103.

On the different jurisdictional issue of whether St. John presents "constitutional claims or questions of law" under 8 U.S.C. § 1252(a)(2)(D), the government disagrees with St. John's argument that the agency's reasoning necessarily implicated legal error.⁷

We need not express a view on these procedural arguments. Consistent with our approach in other immigration cases, we may bypass these complex statutory jurisdictional questions when, assuming that St. John's claims are reviewable, her petition clearly fails on the merits. See Alvarado v. Holder, 743 F.3d 271, 276 (1st Cir. 2014) ("Here, the question of whether we possess statutory jurisdiction under 8 U.S.C. § 1252(a)(2)(D) is not easily answered, but the outcome on the merits is quite straightforward. Thus, without further ado, we pass over the jurisdictional issue and press on with the substance of petitioner['s] claims."); see also Tacuri-Tacuri v. Garland, 998 F.3d 466, 472 (1st Cir. 2021) ("Fortunately, we need not decide [petitioner's jurisdictional argument] because, as this Court has done before when statutory jurisdiction is ambiguous but the merits are straightforward, we bypass the jurisdictional issue and explain why the merits hold no water.").

For immigration purposes, a conviction becomes final when the defendant exhausts or waives the right to direct appellate review. Matter of J. M. Acosta, 27 I. & N. Dec. 420, 432...