Peralta Sauceda v. Lynch , 819 F.3d 526 ( 2016 )

United States Court of Appeals
For the First Circuit
No. 14-2042
JOSE RICARDO PERALTA SAUCEDA,
Petitioner,
v.
LORETTA E. LYNCH,*
Attorney General of the United States,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Lynch, and Kayatta,
Circuit Judges.
Brian P. Goldman, with whom Robert M. Loeb, Thomas M. Bondy,
Orrick, Herrington & Sutcliffe LLP, Carlos E. Estrada, and Estrada
Law Office were on brief, for petitioner.
Leon Fresco, Deputy Assistant Attorney General, with whom
Benjamin C. Mizer, Principal Deputy Assistant Attorney General,
Donald E. Keener, Deputy Director, and Patrick J. Glen, Senior
Litigation Counsel, Office of Immigration Litigation, Civil
Division, U.S. Department of Justice, were on brief, for
respondent.
Jayashri Srikantiah, Lisa Weissman-Ward, Immigrants' Rights
Clinic, Mills Legal Clinic, Stanford Law School, Manuel Vargas,
Andrew Wachtenheim, and Immigrant Defense Project, on brief for
* Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Loretta E. Lynch has been substituted for former Attorney General
Eric H. Holder, Jr., as the respondent.
Immigrant Defense Project, National Immigration Project of the
National Lawyers Guild, American Immigration Lawyers Association,
Detention Watch Network, Committee for Public Counsel Services,
New Hampshire Association of Criminal Defense Lawyers, Maine
Association of Criminal Defense Lawyers, Political
Asylum/Immigration Representation Project, Harvard Immigration and
Refugee Clinical Program, Boston University Immigrants' Rights
Clinic, Suffolk University Law School Immigration Clinic, Post-
Deportation Human Rights Project, Ninth Circuit Appellate Project
at Boston College School of Law, and Professors Mary Holper, Irene
Scharf, and Anna Welch, amici curiae in support of petitioner.
April 22, 2016
LYNCH, Circuit Judge. Jose Ricardo Peralta Sauceda, who
entered the United States illegally in 1993 from Honduras, conceded
in 2007 that he was removable but requested cancellation of
removal. He now petitions for review of the Board of Immigration
Appeals' ("BIA") affirmance of an immigration judge's ("IJ")
decision that he was not eligible for cancellation of removal,
based on extreme hardship to his wife and son, because he had
failed to meet his burden of proving by a preponderance of the
evidence that he had not previously been "convicted of" a "crime
of domestic violence" in 2006. See 8 U.S.C. §§ 1227(a)(2)(E)(i),
1229b(b)(1)(C).
Peralta Sauceda and the government agree that the
competent evidence that exists regarding his 2006 Maine conviction
for assault cannot definitively show whether Peralta Sauceda was
in fact convicted of a "crime of domestic violence," as defined by
federal law. In an initial opinion, now withdrawn, we had denied
his petition for review, based on the arguments then before us.
See Peralta Sauceda v. Lynch, 804 F.3d 101 (1st Cir. 2015), reh'g
granted, opinion withdrawn by Sauceda v. Lynch, No. 14-2042, 2016
WL 760293 (1st Cir. Feb. 3, 2016).
Peralta Sauceda petitioned for rehearing and for the
first time presented a developed argument based on the Supreme
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Court's decision in Moncrieffe v. Holder, 133 S. Ct. 1678 (2013).1
We granted rehearing and took additional briefing from the parties.
See Sauceda, 2016 WL 760293, at *1. We also acknowledge the
helpful briefs amici curiae filed.
We are now convinced, despite strong arguments to the
contrary by the respondent, that the issue before us is one of law
and that Moncrieffe requires us to reach a different outcome than
before. So we grant the petition and remand to the agency.
I.
Peralta Sauceda, a native and citizen of Honduras,
entered the United States illegally on December 23, 1993, when he
was 29 years old. He is now 52 years old, has lived in the United
States for over 22 years, and is married to Hattie, a U.S. citizen
who is disabled and relies on her husband for care. He has a
teenage son, also a U.S. citizen, from a prior relationship. His
son suffers from a variety of medical and emotional problems.
1 We are satisfied that this argument was adequately
raised in Peralta Sauceda's initial petition so as not to be waived
on rehearing.
The government argued in its opposition to Peralta
Sauceda's petition for rehearing that an argument raised by amici
concerning whether and to what extent the government bears a burden
of production under 8 C.F.R. § 1240.8(d) was never adequately
raised by Peralta Sauceda, see Albathani v. INS, 318 F.3d 365, 375
n.6 (1st Cir. 2003)(noting that "amici may not present legal
theories not argued by the parties"), and was not presented to the
agency and was therefore unexhausted, see Meng Hua Wan v. Holder,
776 F.3d 52, 56 (1st Cir. 2015). As we explain below, whether or
not this issue is waived, we need not reach it.
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On December 11, 2006, Peralta Sauceda pleaded guilty to
Count One of a criminal complaint that charged him with assaulting
his wife in violation of Me. Rev. Stat. Ann. tit. 17-A,
§ 207(1)(A). That section states that "[a] person is guilty of
assault if: A. The person intentionally, knowingly or recklessly
causes bodily injury or offensive physical contact to another
person." He was sentenced to 180 days of imprisonment, which was
suspended in full, served no time in prison, and served one year
of probation.
On August 29, 2007, Peralta Sauceda was served by the
Department of Homeland Security with a Notice to Appear that
charged him with being an alien present in the United States
without being admitted or paroled. See 8 U.S.C.
§ 1182(a)(6)(A)(i). At a preliminary hearing, he conceded
removability and requested cancellation of removal, which was
based on a claim that his removal would cause extreme hardship to
Hattie and his son. See id. § 1229b(b)(1).2 At the July 29, 2009,
2 8 U.S.C. § 1229b(b)(1) establishes four eligibility
requirements for certain nonpermanent residents applying for
cancellation of removal:
The Attorney General may cancel removal of,
and adjust to the status of an alien lawfully
admitted for permanent residence, an alien who
is inadmissible or deportable from the United
States if the alien--
(A) has been physically present in the
United States for a continuous period of
not less than 10 years immediately
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merits hearing before the IJ, the question was raised whether his
Maine assault conviction qualified as a "crime of domestic
violence" under 8 U.S.C. § 1227(a)(2)(E)(i). If so, the conviction
disqualified him from eligibility for cancellation of removal.
See id. § 1229b(b)(1)(C). The IJ was sympathetic to his extreme
hardship claim, finding that he had shown his removal would cause
extreme hardship to Hattie and his son.3 See id. § 1229b(b)(1)(D).
She also found that Peralta Sauceda had taken responsibility for
assaulting Hattie, had sought help for his drinking, and that there
had been no prior or further attacks on Hattie.
The effect of Peralta Sauceda's 2006 conviction on his
eligibility for cancellation of removal remained an open question,
preceding the date of such application;
(B) has been a person of good moral
character during such period;
(C) has not been convicted of an offense
under section 1182(a)(2), 1227(a)(2), or
1227(a)(3) of this title, subject to
paragraph (5); and
(D) establishes that removal would result
in exceptional and extremely unusual
hardship to the alien's spouse, parent,
or child, who is a citizen of the United
States or an alien lawfully admitted for
permanent residence.
8 U.S.C. § 1229b(b)(1).
3 The IJ found that Peralta Sauceda had also satisfied the
continuous physical presence requirement. See 8 U.S.C.
§ 1229b(b)(1)(A). The IJ, however, never made a finding, in the
context of Peralta Sauceda's application for cancellation of
removal, regarding the final eligibility requirement of "good
moral character." Id. § 1229b(b)(1)(B).
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and a series of appeals to and remands from the BIA followed. The
BIA concluded that the modified categorical approach4 must be
applied to the Maine assault statute. On September 19, 2013, the
IJ issued her final order, pretermitting Peralta Sauceda's
application for cancellation of removal because he was not
eligible. In performing the modified categorical approach
analysis, the IJ found that the record as presented showed that
Peralta Sauceda had pleaded guilty to committing a domestic
violence crime, but that "the record of conviction documents d[id]
not clarify" whether he was convicted under the "bodily injury"
prong or the "offensive physical contact" prong of the Maine
statute.5 The BIA had held in a prior order that only a conviction
under the "bodily injury" prong would qualify as a federal "crime
4 Under the categorical approach, we ask "whether 'the
state statute defining the crime of conviction' categorically fits
within the 'generic' federal definition of a" disqualifying
offense. Moncrieffe, 133 S. Ct. at 1684 (quoting Gonzales v.
Duenas-Alvarez, 549 U.S. 183, 186 (2007)); see also Welch v. United
States, No. 15-6418, 2016 WL 1551144, at *3 (U.S. Apr. 18, 2016).
When a "statute is 'divisible' -- i.e., comprises multiple,
alternative versions of the crime," courts may use the modified
categorical approach and "examine a limited class of documents to
determine which of a statute's alternative elements formed the
basis of . . . conviction." Descamps v. United States, 133 S. Ct.
2276, 2284 (2013).
5 The IJ had previously issued an order to the parties on
July 23, 2013, granting them additional time to provide "any other
part of the record of conviction" that could clarify under which
prong he was convicted. Peralta Sauceda informed the IJ on August
1, 2013, that he was unable to secure any other documents because
the Superior Court of the county where he was convicted does not,
in misdemeanor cases, maintain copies of the documents he needed.
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of domestic violence" and render him ineligible for cancellation
of removal. The IJ held that because Peralta Sauceda had failed
to produce Shepard6 documents showing that his 2006 assault
conviction was not a "crime of domestic violence," he had failed
to meet his burden of proving eligibility for cancellation of
removal. See Shepard v. United States, 544 U.S. 13, 16, 26 (2005).
That burden was placed on him by statute and regulation. See 8
U.S.C. § 1229a(c)(4)(A); 8 C.F.R. § 1240.8(d).7 The BIA affirmed.
Peralta Sauceda's petition for review followed.
6 Shepard documents include "the statutory definition,
charging document, written plea agreement, transcript of plea
colloquy, and any explicit factual finding by the trial judge to
which the defendant assented." Shepard v. United States, 544 U.S.
13, 16 (2005).
7 In removal proceedings, the statute provides, in
relevant part, that "[a]n alien applying for relief or protection
from removal has the burden of proof to establish that the alien
-- (i) satisfies the applicable eligibility requirements." 8
U.S.C. § 1229a(c)(4)(A). The applicable regulation similarly
states:
The respondent shall have the burden of
establishing that he or she is eligible for
any requested benefit or privilege and that it
should be granted in the exercise of
discretion. If the evidence indicates that
one or more of the grounds for mandatory
denial of the application for relief may
apply, the alien shall have the burden of
proving by a preponderance of the evidence
that such grounds do not apply.
8 C.F.R. § 1240.8(d).
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II.
Since "the BIA adopted and affirmed the IJ's ruling, and
discussed some of the bases for the IJ's opinion, we review both
the BIA's and IJ's opinions." Idy v. Holder, 674 F.3d 111, 117
(1st Cir. 2012). We review legal conclusions de novo, while
affording "appropriate deference to the BIA's interpretation of
immigration statutes." Ruci v. Holder, 741 F.3d 239, 242 (1st
Cir. 2013).
We start with the areas of agreement. Both parties agree
that the Maine statute is divisible and that, accordingly, the
modified categorical approach is the proper way to analyze the
case. See Descamps v. United States, 133 S. Ct. 2276, 2281 (2013).
Both parties agree that only a conviction under the "bodily injury"
portion of the Maine statute would qualify as a "crime of domestic
violence" and render Peralta Sauceda ineligible for cancellation
of removal. Both parties agree that the only Shepard documents
that the State of Maine maintained are the criminal complaint and
the judgment reflecting his guilty plea. Both parties agree that
the Shepard documents that exist are unable to help identify the
prong of the Maine statute under which Peralta Sauceda was
convicted.
In Moncrieffe, the Supreme Court established a
presumption that dictates the outcome of this case: "Because we
examine what the state conviction necessarily involved, not the
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facts underlying the case, we must presume that the conviction
'rested upon [nothing] more than the least of th[e] acts'
criminalized, and then determine whether even those acts are
encompassed by the generic federal offense." Moncrieffe, 133 S.
Ct. at 1684 (alterations in original) (quoting Johnson v. United
States, 559 U.S. 133, 137 (2010)); see also Descamps, 133 S. Ct.
at 2284 ("[A] conviction based on a guilty plea can qualify as [a
predicate offense] only if the defendant 'necessarily admitted
[the] elements of the generic offense.'" (third alteration in
original) (quoting Shepard, 544 U.S. at 26)).
The Court in Moncrieffe explained that this "least of
the acts" presumption is not absolute and that in the case of a
divisible statute, like the Maine assault statute, "a court may
determine which particular offense the noncitizen was convicted of
by" looking to Shepard documents, which may rebut the presumption.
Moncrieffe, 133 S. Ct. at 1684. But where, as here, it is
undisputed that all the Shepard documents have been produced and
that they shed no light on the nature of the offense or conviction,
the Moncrieffe presumption must stand since it cannot be rebutted.8
We must defer to this presumption.
8 Because all the Shepard documents were produced, and, as
a matter of law, the Moncrieffe presumption cannot be rebutted, we
need not reach the nettlesome question, posed in our order granting
rehearing, of whether and to what extent the government bears a
burden of production under 8 C.F.R. § 1240.8(d) in the case of a
divisible state statute. See Sauceda, 2016 WL 760293, at *1.
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The government responds that there is still uncertainty
as to whether Peralta Sauceda, in fact, pleaded guilty to a "crime
of domestic violence," and that he has not met the burden of
proving that he did not.9 While there may be factual uncertainty
on this score, that is not the question that Congress or the
Supreme Court has directed us to answer. Rather, the question is
whether, as a matter of law, under these precise circumstances,
Peralta Sauceda was "convicted of" a "crime of domestic violence."
See 8 U.S.C. § 1229b(b)(1)(C). As to this question, given
Moncrieffe, there is no uncertainty. We hold that since all the
Shepard documents have been produced and the modified categorical
approach using such documents cannot identify the prong of the
divisible Maine statute under which Peralta Sauceda was convicted,
the unrebutted Moncrieffe presumption applies, and, as a matter of
law, Peralta Sauceda was not convicted of a "crime of domestic
violence."10
9 The IJ took testimony from Peralta Sauceda and Hattie,
and, in her July 29, 2009, decision, the IJ determined from her
own evaluation of the testimony that Peralta Sauceda "knew at the
time he attacked his wife that she was suffering from severe back
and neck problems, and despite his own emotional state, pushed her
to the ground and dragged her around." In a later decision on
September 9, 2009, the IJ similarly found that Peralta Sauceda
"did, in fact, physically assault and batter his wife by 'grabbing
her by the arms or by the hair and dragging her to the ground.'"
10 Our approach and outcome is consistent with Almanza-
Arenas v. Lynch, 815 F.3d 469, 487–89 (9th Cir. 2016) (en banc)
(Watford, J., concurring); Thomas v. Att'y Gen. of U.S., 625 F.3d
134, 141–48 (3d Cir. 2010); Martinez v. Mukasey, 551 F.3d 113,
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III.
The government raises several arguments in support of
its position. Supreme Court precedent compels us to reject them
all.
The government asserts, without any on-point authority
in support, that "Shepard-approved documents do not exhaust the
range of evidence the agency may consider in assessing whether an
alien has been 'convicted' of a disqualifying offense." It
suggests that Peralta Sauceda could have submitted testimony from
his lawyer, his wife (the victim), or the judge who accepted his
plea to ascertain what offense was charged and pleaded to in the
state court.
We disagree. As the Supreme Court in Descamps repeatedly
observed in referring to "a restricted set of materials," 133 S.
Ct. at 2284, and "approved documents," id. at 2285 n.2, the
universe of information capable of narrowing the offense of
conviction under a divisible statute does not include in any other
relevant context the type of information to which the government
points. We have not been presented with any compelling reason to
expand that universe in this context. The type of information the
121–22 (2d Cir. 2008). But see Syblis v. Att'y Gen. of U.S., 763
F.3d 348, 355–57 (3d Cir. 2014); Sanchez v. Holder, 757 F.3d 712,
720 & n.6 (7th Cir. 2014); Young v. Holder, 697 F.3d 976, 988–90
(9th Cir. 2012) (en banc); Salem v. Holder, 647 F.3d 111, 116–20
(4th Cir. 2011); Garcia v. Holder, 584 F.3d 1288, 1289–90 (10th
Cir. 2009).
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government wishes to interject into the process would turn an
essentially objective, legal assessment of court documents into a
factual, credibility-assessing adjudicative minitrial.11
The government's proposal here echoes a similar
government proposal squarely rejected by the Supreme Court in
Moncrieffe. There, the government had proposed that
"[n]oncitizens should be given an opportunity during immigration
proceedings to demonstrate that their predicate marijuana
distribution convictions involved only a small amount of marijuana
and no remuneration, just as a federal criminal defendant could do
at sentencing." Moncrieffe, 133 S. Ct. at 1690. To be sure, the
government here is making the finer point that the agency may look
to non-Shepard documents to determine what the petitioner pleaded
guilty to during the state court proceedings, not to determine the
facts of his underlying crime. In the end, though, these analogous
proposals implicate the same set of concerns. As the Court
recognized, "[t]he categorical approach serves 'practical'
purposes: It promotes judicial and administrative efficiency by
precluding the relitigation of past convictions in minitrials
11 Our holding here is consistent with prior First Circuit
immigration cases. See Villanueva v. Holder, 784 F.3d 51, 54 (1st
Cir. 2015) (citing Shepard, 544 U.S. at 26, and noting that under
the modified categorical approach only "certain documents in the
record of conviction" can be examined); Berhe v. Gonzales, 464
F.3d 74, 85 (1st Cir. 2006).
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conducted long after the fact."12 Id. (citing Chambers v. United
States, 555 U.S. 122, 125 (2009)). Much like the government's
proposal in Moncrieffe, the government's proposal here that courts
consider non-Shepard evidence of what occurred at the entry of the
plea "would have our Nation's overburdened immigration courts
entertain and weigh testimony . . . . And, as a result, two
noncitizens, each 'convicted of' the same offense, might obtain
different aggravated felony determinations depending on what
evidence remains available or how it is perceived by an individual
immigration judge." Id. As the Supreme Court noted, "[t]he
categorical approach was designed to avoid this 'potential
unfairness.'"13 Id. (quoting Taylor v. United States, 495 U.S.
575, 601 (1990)).
The government also argues that Moncrieffe's presumption
is inapplicable in this context because by its terms Moncrieffe is
12 We share the concern expressed in Shepard that expanding
the universe of documents that may be considered "amounts to a
call to ease away from the Taylor conclusion, that respect for
congressional intent and avoidance of collateral trials require
that evidence of generic conviction be confined to records of the
convicting court approaching the certainty of the record of
conviction in a generic crime State." Shepard, 544 U.S. at 23
(citing Taylor v. United States, 495 U.S. 575 (1990)).
13 The conclusion reached in Moncrieffe was not a novel
one. Indeed, the Court's favorable citation to United States ex
rel. Mylius v. Uhl, 210 F. 860, 862–63 (2d Cir. 1914), see
Moncrieffe, 133 S. Ct. at 1690, belies any notion that the
justifications for restricting courts to the record of conviction
in the immigration context are of recent vintage.
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a case about removability vel non, and is not concerned with
exceptions to removability. It argues that while it is true that
the government always bears the burden of proving removability,
see 8 U.S.C. § 1229a(c)(3)(A), the issue here of eligibility for
relief from removal is different and the burden, by statute, is on
the petitioner, see id. § 1229a(c)(4)(A); see also 8 C.F.R.
§ 1240.8(d).
We cannot agree. First, the categorical approach --
with the help of its modified version -- answers the purely "legal
question of what a conviction necessarily established." See
Mellouli v. Lynch, 135 S. Ct. 1980, 1987 (2015). As a result, the
question of the allocation of the burden of proof when the complete
record of conviction is present does not come into play. Second,
Moncrieffe explicitly stated that its "analysis is the same in
both contexts," i.e., removal and cancellation of removal. 133 S.
Ct. at 1685 n.4. This conclusion follows from the fact that the
underlying statutory language is the same in both contexts.
Congress has directed the courts to determine what the alien was
"convicted of." Compare 8 U.S.C. § 1229b(b)(1)(C) ("The Attorney
General may cancel removal of . . . an alien who is inadmissible
or deportable from the United States if the alien . . . (C) has
not been convicted of an offense under section 1182(a)(2),
1227(a)(2), or 1227(a)(3) of this title." (emphasis added)), with
8 U.S.C. § 1227(a)(2)(E)(i) ("Any alien who at any time after
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admission is convicted of a crime of domestic violence . . . is
deportable." (emphasis added)). As the Court in Moncrieffe noted,
"'[c]onviction' is 'the relevant statutory hook.'" 133 S. Ct. at
1685 (quoting Carachuri-Rosendo v. Holder, 560 U.S. 563, 580
(2010)). And what the Court made clear was that the term
"convicted of" has a formal, legal definition governed by the
presumption explained above, and that definition is uniform as
between the removal and cancellation of removal provisions of the
Immigration and Nationality Act ("INA").
The government also argues that Moncrieffe is
inapplicable because it focused on the categorical approach, not
the modified categorical approach, and so its holding is not on
point. We conclude that Supreme Court precedent precludes us from
accepting this argument. The modified categorical approach is not
a wholly distinct inquiry. Rather, as the Supreme Court has
explained, it "merely helps implement the categorical approach
when a defendant was convicted of violating a divisible statute.
The modified approach thus acts not as an exception, but instead
as a tool." Descamps, 133 S. Ct. at 2285. Whether a statute of
conviction is divisible or not does not change the basic character
of the inquiry; the question remains a legal one to which the
presumption from Moncrieffe -- if unrebutted by Shepard documents
-- still applies.
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The government, stressing the limited number of green
cards Congress has authorized the immigration agency to issue in
a given year for aliens granted cancellation of removal and
adjustment of status, see 8 U.S.C. § 1229b(e)(1),14 emphasizes the
fact that Congress intentionally placed the burden of proof on
aliens seeking what the government calls its "largesse" in the
form of discretionary relief from removal. Our holding does not
relieve an alien applying for relief of any burden. Indeed, an
alien who is found, as a matter of law, not to have been convicted
of a disqualifying offense must still prove continuous physical
presence, good moral character, and "exceptional and extremely
unusual hardship." See id. § 1229b(b)(1)(A), (B), (D); see also
Moncrieffe, 133 S. Ct. at 1692 ("[H]aving been found not to be an
aggravated felon, the noncitizen may seek relief from removal . . .
assuming he satisfies the other eligibility criteria.").
The Supreme Court in Moncrieffe laid out the framework
for determining whether an alien was "convicted of" a disqualifying
offense. It expressly recognized that the relevant statutory
language in the INA is identical in the removal and cancellation
of removal contexts, and so the "analysis is the same in both
14 "[T]he Attorney General may not cancel the removal and
adjust the status under this section, nor suspend the deportation
and adjust the status under section 1254(a) of this title (as in
effect before September 30, 1996), of a total of more than 4,000
aliens in any fiscal year." 8 U.S.C. § 1229b(e)(1).
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contexts." Moncrieffe, 133 S. Ct. at 1685 n.4. And we have
rejected the government's earlier arguments that Moncrieffe is
inapplicable to the circumstances presented by this case, finding
instead that Moncrieffe controls. The government urges that this
outcome is simply not what Congress intended. If the government
is right, and Congress intended otherwise and disagrees with
Moncrieffe, then Congress can overrule the Court and change how
the courts are to analyze these cases. We, however, cannot.
IV.
Accordingly, we grant the petition for review, vacate
the BIA's decision, and remand to the agency for further
proceedings consistent with this opinion.
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