Ortega v. Holder ( 2013 )

United States Court of Appeals
For the First Circuit
No. 11-2280
CARMEN ORTEGA,
Petitioner,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Selya, Circuit Judge,
and Hillman,* District Judge.
Kurt Wm. Hemr for petitioner.
Meadow W. Platt, Department of Justice, Civil Division, Office
of Immigration Litigation, with whom Stuart F. Delery, Acting
Assistant Attorney General, Civil Division, and Terri J. Scadron,
Assistant Director, Office of Immigration Litigation, were on
brief, for respondent.
November 27, 2013
*
Of the District of Massachusetts, sitting by designation.
HILLMAN, District Judge. Petitioner Carmen Ortega seeks
review of a decision of the Board of Immigration Appeals finding
her ineligible for cancellation of removal under 8 U.S.C. § 1229b.
Ortega challenges the Board's holding and its procedural steps for
determining that her second state conviction for possession of a
controlled substance corresponded to the federal offense of
"recidivist possession" under 21 U.S.C. § 844(a). Because we lack
jurisdiction to review Ortega's claims on this petition for review,
we must dismiss the case.
I. Facts and Background
Carmen Ortega is a 62-year-old native and citizen of the
Dominican Republic. She was admitted to the United States as a
lawful permanent resident in January of 1969. In the four decades
since, she has worked at two nursing homes and as a home health
aide treating elderly patients. Her family in the United States
includes five children, fourteen grandchildren, and one great-
grandchild, all citizens, as well as an older brother and his wife.
Ortega has no family remaining in the Dominican Republic. In the
spring of 2012, Ortega was diagnosed with Alzheimer's disease.
In June of 2008, Ortega pleaded nolo contendere in a
Rhode Island state court to possession of a controlled substance in
violation of section 21-28-4.01 of the Rhode Island General Laws.
Ortega's plea agreement included a waiver of her right to appeal
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her sentence. The Rhode Island state court ultimately sentenced
Ortega to nine months' imprisonment on the charge.
In October of 2009, Ortega once more pleaded nolo
contendere to possession of a controlled substance. Because the
charge was Ortega's second offense, Ortega's plea reflected that
she had been charged with "Poss heroine 2nd off." and the state
court recorded a guilty plea for "Poss Sch. I-V Contrl Sub/2nd
Off." Pursuant to Rhode Island General Laws § 21-28-4.11, which
subjects a second controlled-substances offender to twice the
prison term of a first-time offender, the court sentenced Ortega to
one year imprisonment, with a suspended sentence of five years and
a term of probation of five years.
On November 25, 2009, the Department of Homeland Security
(DHS) initiated removal proceedings against Ortega under 8 U.S.C.
§ 1227(a)(2)(B)(i) as an alien convicted of violating a law
relating to a controlled substance. Ortega conceded her
removability as charged, but applied for cancellation of removal
under 8 U.S.C. § 1229b(a). Following a hearing in April of 2010,
an Immigration Judge (IJ) granted Ortega's application for relief.
While mindful of Ortega's criminal charges, the IJ found that
Ortega's extended residency in the United States, history of
employment, strong family ties, and lack of family in the Dominican
Republic weighed in favor of cancellation.
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On appeal by the DHS, the Board of Immigration Appeals
(BIA) vacated the IJ's decision. The BIA found that Ortega's
second state conviction for possession of a controlled substance
could be seen to correspond to the federal offense of "recidivist
possession" under 21 U.S.C. § 844(a), an aggravated felony
rendering an applicant statutorily ineligible for cancellation of
removal. Because an alien bears the burden of demonstrating her
eligibility where a statutory bar "may apply" under 8 U.S.C.
§ 1229b(a)(3), and because Ortega failed to disprove the
correspondence between the two recidivist statutes, the BIA
concluded that Ortega was ineligible for relief.
On remand, the IJ entered an order of removal and the BIA
affirmed. In its September 30, 2011 decision, the BIA reiterated
its position that Ortega's second state conviction was an
aggravated felony rendering her ineligible for cancellation of
removal. The BIA further found that, regardless of the statutory
bar, Ortega did not merit relief in the exercise of its discretion.
The BIA acknowledged the positive equities in favor of relief,
including Ortega's extensive family ties in the United States.
Nevertheless, it concluded that the severe and repetitive nature of
Ortega's criminal convictions, not least the suggestion that she
had sold as well as possessed controlled substances, counseled
against cancellation. Of the three panelists, one member
dissented, finding that Ortega had demonstrated both her
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eligibility for cancellation and entitlement to relief on the
merits.
On March 16, 2012, following her diagnosis with
Alzheimer's disease, Ortega filed a motion to reopen her removal
proceedings so that the BIA could take into account her new medical
condition. On May 8, 2012, the BIA denied Ortega's motion as
untimely, having been filed well over 90 days after the BIA's
September 30, 2011 decision. The BIA further found that reopening
was unwarranted because, in light of her criminal convictions,
Ortega had failed to demonstrate prima facie eligibility for
relief.
II. Discussion
Before us, Ortega contends that the BIA committed two
legal errors in determining that her second state conviction
triggered the statutory bar against her application for
cancellation of removal. First, Ortega argues that Rhode Island's
sentencing enhancement for second-time offenders under R.I. Gen.
Laws § 21-28-4.11 cannot correspond to the federal felony of
"recidivist possession" under 21 U.S.C. § 844(a) because only the
federal, but not the state, framework gives prosecutors discretion
over whether to charge a defendant as a repeat offender. Second,
Ortega argues that the BIA violated the procedural requirements of
Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010), by looking
outside the record of Ortega's second state conviction to determine
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that her first conviction had become "final," a required element of
recidivist possession under 21 U.S.C. § 844(a).
This court lacks the jurisdiction to consider either of
Ortega's claims.
Under the Immigration and Nationality Act (INA),
appellate courts have no jurisdiction to review "any judgment
regarding the granting of relief under section 1182(h), 1182(i),
1229b, 1229c, or 1255 of this title." 8 U.S.C. § 1252(a)(2)(B)(i).
The enumerated sections include 8 U.S.C. § 1229b, the provision
governing cancellation of removal. The INA's divestiture of
appellate jurisdiction is subject to one statutory exception:
judicial review of purely legal or constitutional issues. Hasan v.
Holder, 673 F.3d 26, 32 (1st Cir. 2012); 8 U.S.C. § 1252(a)(2)(D).
Purely discretionary decisions or determinations by the BIA,
however, fall beyond the review of the appellate courts. Hasan,
673 F.3d at 32.
While the BIA's September 30, 2011 decision affirmed that
Ortega's second state conviction rendered her statutorily
ineligible for cancellation of removal, that same opinion also held
that Ortega failed to establish a claim for relief on the merits.
This alternative holding is a purely discretionary decision.
Because we cannot overturn the BIA's discretionary denial of relief
regardless of our legal conclusions, any opinion we reach on
Ortega's statutory or procedural claims would be purely advisory
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and beyond our authority under Article III. See State of R.I. v.
Narragansett Indian Tribe, 19 F.3d 685, 705 (1st Cir. 1994)
("Article III of the Constitution forbids courts from issuing
advisory opinions or answering hypothetical questions."). As this
court observed in Zajanckauskas v. Holder, where "we lack
jurisdiction to review the discretionary ground" for denial of
cancellation and "a reversal of the [alternate] grounds we have
jurisdiction to review would not change the outcome, review of the
legal questions would be moot." 611 F.3d 87, 89 (1st Cir. 2010).
In such a case, "we must dismiss [the] appeal." Id. at 90.1
Ortega argues that her petition is not mooted by the
BIA's discretionary holding because the question of whether her
state conviction constitutes an "aggravated felony" has independent
legal significance under the INA, bearing for example on Ortega's
eligibility for a temporary return to the United States under
8 U.S.C. § 1182(d)(3). It is true that an alien convicted of an
aggravated felony loses access to certain privileges and
opportunities under the INA. See, e.g., 8 U.S.C.
1
Ortega relies on the Supreme Court's decision in Kucana v.
Holder, 558 U.S. 233 (2010), to argue that the BIA cannot insulate
its decisions from review merely by terming them "discretionary."
However, the Court's holding in Kucana addressed limitations
imposed by the BIA's internal regulations, rather than
congressional statutes. See id. at 243. Kucana explicitly
affirmed that "the decisions Congress enumerated in
§ 1252(a)(2)(B)(i)" are "insulat[ed] . . . from judicial review."
Id. at 247. Kucana therefore has no bearing on an appellate
court's jurisdiction over the BIA's decisions pursuant § 1229b, a
section enumerated in § 1252(a)(2)(B)(i).
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§ 1182(a)(9)(A)(ii) (rendering "inadmissible" aliens previously
removed under § 1229a who have "been convicted of an aggravated
felony"). However, Ortega's argument misconstrues the burden-
shifting framework underlying the BIA's denial of Ortega's
application for cancellation. Regardless of the substantive merits
of the BIA's conclusions, as a legal matter the BIA found only that
Ortega's second conviction established that a statutory bar "may
apply" to her eligibility for relief, and that Ortega subsequently
did not carry her burden of showing by a preponderance of the
evidence that she was not, in fact, an "aggravated felon." See
8 C.F.R. § 1240.8(d) ("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.").
The BIA's finding that Ortega failed to disprove that an
aggravated-felon prohibition "may apply" to her case is not
equivalent to a finding that Ortega was in fact convicted of an
aggravated felony so as to affect her privileges under 8 U.S.C.
§ 1182.
Alternately, Ortega argues that this court's reversal of
the BIA's legal holding might yet change the outcome of her case,
because on remand the BIA may revise its discretionary holding in
light of her recent Alzheimer's diagnosis. While Ortega's
prediction may be plausible, it is one that should be raised on
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petition for review of the BIA's denial of Ortega's motion to
reopen rather than here. In general, an applicant who wishes to
introduce new evidence to the BIA must do so through a motion to
reopen, not through a remand from the court of appeals. See He
Chen v. Attorney Gen. of U.S., 388 F. App'x 146, 148 n.1 (3d Cir.
2010) ("[T]o the extent [the petitioner] wishes to present new
evidence to the BIA of changed country conditions, she should do so
in a motion to reopen."); Topalli v. Ashcroft, 121 F. App'x 133,
137 (7th Cir. 2005) ("If [the petitioner] wanted to submit new
evidence, however, he should have submitted it to the BIA as part
of a motion to reopen." (citation omitted)). At this stage of the
proceedings, where Ortega failed to introduce her medical records
to either the IJ or the BIA, this court does not have authority to
remand for the consideration of further evidence. See
Castaneda-Castillo v. Holder, 723 F.3d 48, 64 (1st Cir. 2013)
("[R]emanding a case to an immigration agency with the purpose of
having it collect additional evidence, at least at the behest of a
petitioner, appears to be prohibited under a plain reading of
section 242 of the INA . . . ."); 8 U.S.C. § 1252(a)(1).
III. Conclusion
For the foregoing reasons, we dismiss this petition for
review for lack of jurisdiction. We neither consider nor affirm
the BIA's finding that Ortega failed to carry her burden to
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establish eligibility for cancellation of removal under 8 U.S.C.
§ 1229b(a).
The petition for review is dismissed.
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