Oseguera-Garcia v. Holder, Jr. ( 2012 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 25, 2012
Elisabeth A. Shumaker
Clerk of Court
RAMIRO OSEGUERA-GARCIA,
a/k/a Ramiro Oseguera, a/k/a Ramiiro
Oseguera, Jr.,
Petitioner,
v. No. 11-9554
(Petition for Review)
ERIC H. HOLDER, JR., United States
Attorney General,
Respondent.
ORDER AND JUDGMENT*
Before TYMKOVICH, BALDOCK, and GORSUCH, Circuit Judges.
Petitioner Ramiro Oseguera-Garcia petitions for review of a decision of the
Board of Immigration Appeals, challenging the BIA’s determination that his 2002
state conviction for theft was an aggravated felony under immigration law. The BIA
relied on that determination to conclude he was removable as an aggravated felon and
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
statutorily ineligible for cancellation of removal. It also will affect his ability ever to
reenter the United States. See Tapia Garcia v. INS, 237 F.3d 1216, 1218 (10th Cir.
2001) (noting that 8 U.S.C. § 1182(a)(9)(A)(ii)-(iii) creates collateral consequence
that alien’s “removal and status as an aggravated felon render him permanently
inadmissible unless the Attorney General consents to his reapplying for admission”).
The government has moved to dismiss the appeal for lack of jurisdiction.
We deny the government’s motion to dismiss because we have jurisdiction under
8 U.S.C. § 1252(a)(2)(D) to consider a legal question as to whether a state conviction
constitutes an aggravated felony under immigration law. Hamilton v. Holder,
584 F.3d 1284, 1286 (10th Cir. 2009). But we deny the petition for review because
Mr. Oseguera concedes in his reply brief that the argument he raised in his opening
brief is no longer tenable, Pet. Reply Br. at 1, 6, and we decline to consider the new
argument he raises for the first time on appeal in his reply brief, see Jimenez-Guzman
v. Holder, 642 F.3d 1294, 1297 n.1 (10th Cir. 2011).
I. Background
Mr. Oseguera is a thirty-nine year old native and citizen of Mexico. He
became a lawful permanent resident on January 9, 1989, when he was sixteen years
old, but he presented evidence that his entire family moved to the United States when
he was five years old.
Mr. Oseguera has five state criminal convictions in Utah. Four of them are
indisputably for misdemeanor theft: two separate convictions in May 2000 and July
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2000 for theft and theft by deception, a December 2000 conviction for retail theft,
and a May 2007 conviction for theft. The fifth conviction, a January 2002 conviction
for theft, was originally a third degree felony, see Admin. R. at 506, and that was
reflected in Mr. Oseguera’s sentence “to an indeterminate term . . . not to exceed five
years in the Utah State Prison,” id. at 667. His prison term was suspended, and he
was sentenced to sixty days in the county jail. See id. at 667-68. He was also
ordered to serve a thirty-six month period of probation and to pay a $555.00 fine. Id.
at 668.
In 2010, Mr. Oseguera filed an unopposed motion in the state trial court for
relief related to his 2002 felony theft conviction under Utah Stat. Ann. § 76-3-402(2).
See Utah v. Oseguera, 267 P.3d 302, 303 (Utah App. 2011) (per curiam). That
provision allows the trial court to “enter a judgment of conviction for the next lower
degree of offense . . . after the defendant has been successfully discharged from
probation . . . if . . . [it] is in the interest of justice.” Utah Stat. Ann. § 76-3-402(2).
The trial court granted Mr. Oseguera’s motion in March 2010 and entered a judgment
of conviction decreasing the severity of the 2002 theft charge “from 3rd Degree
Felony to Class A Misdemeanor.” Admin. R. at 612, 670. But when Mr. Oseguera
later filed a motion to clarify his sentence, the trial court held that it lacked
jurisdiction to reduce his sentence, which Mr. Oseguera had already served.
Oseguera, 267 P.3d at 303.
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In September 2010, the Department of Homeland Security (“DHS”) initiated
removal proceedings against Mr. Oseguera under 8 U.S.C. § 1227(a)(2)(A)(iii) based
on his state felony theft conviction, which DHS asserted was an aggravated felony
under immigration law, 8 U.S.C. § 1101(a)(43)(G). The government later added a
charge against Mr. Oseguera under 8 U.S.C. § 1227(a)(2)(A)(ii) because he had been
“convicted of two or more crimes involving moral turpitude, not arising out of a
single scheme of criminal misconduct.” See Admin. R. at 640. Mr. Oseguera denied
the charges concerning his convictions. He also sought cancellation of removal.
During the administrative proceedings, Mr. Oseguera disputed that his 2002
conviction was an aggravated felony for purposes of immigration law. He argued
that the state court did not stipulate a sentence when it reduced his offense level to a
misdemeanor under Utah Stat. Ann. § 76-3-402(2), but the sentence obviously had to
be less than 365 days under state law. See Admin. R. at 206-10. He mentioned that
he had filed an appeal from the state trial court’s denial of his motion to clarify. The
immigration judge (“IJ”) decided that Mr. Oseguera was removable based on his
multiple convictions for crimes involving moral turpitude and his third degree felony
conviction, which was an aggravated felony under immigration law. Id. at 152,
160-63. And because the IJ concluded that Mr. Oseguera had been convicted of an
aggravated felony, the IJ held that he was statutorily ineligible for cancellation of
removal under 8 U.S.C. § 1229b(a)(3). Admin. R. at 164, 166-67.
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The BIA affirmed the IJ’s findings and dismissed Mr. Oseguera’s appeal.
Relevant to this appeal, the BIA upheld the IJ’s determination that Mr. Oseguera’s
2002 theft conviction was an aggravated felony under immigration law for two
reasons: (1) the state court did not revise his felony sentence when it reduced the
conviction from a felony to a class A misdemeanor, so the conviction remained a
felony for purposes of immigration law; and (2) the reduction of the offense level
under Utah Stat. Ann. § 76-3-402(2) was “in the nature of an expungement” and, as a
result, was not recognized for immigration purposes under BIA precedent.
Admin. R. at 4.
II. Discussion
In his opening brief, Mr. Oseguera challenged the agency’s conclusion that his
2002 conviction for third degree felony theft qualified as an aggravated felony under
immigration law, relying on In re Cota-Vargas, 23 I. & N. Dec. 849 (BIA 2005), a
BIA decision that was not addressed by either the IJ or the BIA. He argued that the
BIA held in Cota-Vargas that it would give effect to a state court’s sentence
reduction---regardless of the motivation behind the reduction---and that he was
entitled to have his third degree felony conviction treated as a misdemeanor for
purposes of immigration law because his sentence had been reduced.
But Mr. Oseguera concedes in his reply brief that the argument he raised in his
opening brief is no longer tenable. Pet. Reply Br. at 1, 6. He acknowledges that the
December 8, 2011, decision of the Utah Court of Appeals in his appeal from the
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denial of his motion to clarify sentence in his 2002 state case makes clear that his
felony sentence was not reduced when his offense level was reduced to a
misdemeanor. Oseguera, 267 P.3d at 303-04. Since all of the arguments in his
opening brief were based on the allegation that his sentence had been reduced, his
concession leaves us with no issue to review.
Mr. Oseguera urges us nonetheless to consider the new argument in his reply
brief that the reduction in his offense level from a third degree felony to a class A
misdemeanor should be given effect under immigration law under Cota-Vargas, even
if his 2002 conviction is an aggravated felony under immigration law. See Pet. Reply
Br. at 1, 5. This, he argues, may improve his chances of obtaining the Attorney
General’s consent to reenter the United States, even if he is removed as an
aggravated felon. Id. at 4-5. But “issues and arguments raised for the first time in a
reply brief” are generally deemed waived in this circuit, so we will not consider the
new argument Mr. Oseguera raises for the first time on appeal in his reply brief.
Jimenez-Guzman, 642 F.3d at 1297 n.1 (internal quotation marks omitted).
The government’s motion to dismiss is denied. The petition for review is
DENIED.
Entered for the Court
Timothy M. Tymkovich
Circuit Judge
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