Tlalpan-Ochoa v. Lynch , 618 F. App'x 946 ( 2015 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 29, 2015
_________________________________
Elisabeth A. Shumaker
Clerk of Court
ALEJANDRO TLALPAN-OCHOA,
Petitioner,
v. No. 14-9599
(Petition for Review)
LORETTA E. LYNCH,
United States Attorney General,*
Respondent.
_________________________________
ORDER AND JUDGMENT**
_________________________________
Before HARTZ, PHILLIPS, and McHUGH, Circuit Judges.
_________________________________
Alejandro Tlalpan-Ochoa, a native and citizen of Mexico and nonpermanent
resident of the United States, has filed a petition for review of the decision of the
Board of Immigration Appeals (BIA) upholding an immigration judge’s (IJ) order
denying his application for cancellation of removal. After determining that Mr.
*
In accordance with Rule 43(c)(2) of the Federal Rules of Appellate
Procedure, Loretta E. Lynch is substituted for Eric H. Holder, Jr., as the respondent
in this action.
**
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
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 This order and judgment is not binding precedent,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.
Tlalpan had been convicted of a “crime of domestic violence” as defined by 8 U.S.C.
§ 1227(a)(2)(E)(i), the BIA concluded that the conviction rendered him ineligible for
cancellation of removal under 8 U.S.C. § 1229b(b)(1)(C). We exercise jurisdiction
under 8 U.S.C. § 1252(a)(1) and deny the petition for review.1
I. BACKGROUND
Mr. Tlalpan has resided in the United States since 1989. His wife and two
children are all United States citizens. He was charged with having entered the
United States in 1989 without inspection. He conceded removability and applied for
cancellation of removal. Following a hearing at which he was represented by
counsel, the IJ determined that in 1996 Mr. Tlalpan had been convicted of an offense
under § 273.5(a) of the California Penal Code and, further, concluded that the
conviction was categorically “a crime of domestic violence.” Accordingly, the IJ
found Mr. Tlalpan ineligible for cancellation of removal and denied the application,
but granted Mr. Tlalpan’s request for voluntary departure.
Mr. Tlalpan appealed to the BIA, arguing that the IJ’s order should be reversed
because (1) Mr. Tlalpan was entitled to relief based on his pending petition seeking
post-conviction relief—based on ineffective assistance of counsel—filed in
California state court; and (2) Mr. Tlalpan’s 1996 conviction was not for a crime of
1
Although the BIA’s decision was to deny the discretionary relief of
cancellation of removal, the underlying issue is a legal one: whether Mr. Tlalpan met
his burden of proving that his conviction was not a crime of domestic violence.
Therefore, while this court generally lacks jurisdiction over denials of discretionary
relief, see 8 U.S.C. § 1252(a)(2)(B), we do have jurisdiction over the legal question
presented, see id. § 1252(a)(2)(D).
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moral turpitude under 8 U.S.C. § 1227(a)(ii)(A)(i), supposedly thus rendering him
eligible to be considered for cancellation of removal under § 1229b(b)(1)(C).
The BIA rejected Mr. Tlalpan’s argument based on his pending post-conviction
motion, noting that until the motion succeeded, the conviction required denial of the
requested cancellation of removal. The BIA found Mr. Tlalpan’s argument focusing
on whether he had committed a crime of moral turpitude misdirected, given the IJ’s
disqualifying him from relief instead for his having committed a crime of domestic
violence within the meaning of 8 U.S.C. §§ 1227(a)(2)(E) and 1229b(b)(1)(C).
Although recognizing that the IJ did not specify what portion of § 1227(a)(2) on
which he relied, the BIA found that the IJ had obviously relied on § 1227(a)(2)(E)
because the IJ referred to “domestic violence” at the hearing and because Mr.
Tlalpan’s California domestic-violence conviction fell within this definition. Ruling
that Mr. Tlalpan’s conviction was indeed a crime of domestic violence under
§ 1227(a)(2)(E), the BIA declared Mr. Tlalpan ineligible for cancellation of removal.
Accordingly, the BIA dismissed the appeal. Mr. Tlalpan now seeks review in this
court.
II. DISCUSSION
To be eligible for cancellation of removal under 8 U.S.C. § 1229b(b)(1),
Mr. Tlalpan had the burden to show that (1) he had been continuously present in the
United States for at least ten years preceding his application; (2) he had been a person
of good moral character during that time; (3) he had not been convicted of certain
crimes, including any crime of domestic violence; and (4) his removal would result in
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exceptional and extremely unusual hardship to a qualifying relative. See 8 U.S.C.
§ 1229a(c)(4) (placing burden of proof on alien to establish eligibility). Here, Mr.
Tlalpan disputes just the third element.
The BIA issued a single-member decision affirming the IJ’s order. As we
begin our review, we consider that “although we will not affirm on grounds raised in
the IJ decision unless they are relied upon by the BIA, we are not precluded from
consulting the IJ’s more complete explanation of those same grounds.” Maatougui v.
Holder, 738 F.3d 1230, 1237 n.2 (10th Cir. 2013) (brackets, ellipsis, and internal
quotation marks omitted).
A. Crime of Domestic Violence
Mr. Tlalpan argues that the IJ failed to specify whether he found Mr. Tlalpan’s
conviction to be a crime involving moral turpitude, see § 1227(a)(2)(A)(i), or a crime
of domestic violence, see § 1227(a)(2)(E)(i). Therefore, he maintains he is entitled to
relief or, alternatively, that this court should address his arguments that he was not
convicted of a crime of domestic violence, even though he did not raise those
arguments in his brief to the BIA.
Mr. Tlalpan relies on a remark made by the IJ during a discussion with counsel
at the removal hearing. Noting the absence of any documentation on the California
conviction, the IJ speculated that the conviction might qualify as a crime involving
moral turpitude. See Admin. R. at 110. But this remark preceded Mr. Tlalpan’s
attorney’s locating and proffering a document entitled, “Results of Criminal and
Traffic/Minor Offense Record Search,” which reflected Mr. Tlalpan’s 1996
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conviction for violating § 273.5(a). Thereafter, the IJ stated during the hearing that
he would “find that the domestic violence conviction in California is categorically a
crime of domestic violence,” id. at 126, and he would deny relief “because of the
domestic violence conviction,” id. at 128. In addition, the IJ further announced in his
oral decision that the conviction was “categorically a crime of domestic violence.”
Id. at 88. The BIA determined that the IJ had concluded that Mr. Tlalpan’s
conviction was for a crime of domestic violence. See id. at 3-4 & n.1. We agree and
find no error in the BIA’s conclusion that the basis for the IJ’s denial of discretionary
relief was Mr. Tlalpan’s conviction of a crime of domestic violence.
In his BIA brief, Mr. Tlalpan did not raise the issue of whether his conviction
was a crime of domestic violence. Generally, “an alien must present the same
specific legal theory to the BIA before he or she may advance it in court.”
Garcia-Carbajal v. Holder, 625 F.3d 1233, 1237 (10th Cir. 2010). Nevertheless, the
BIA exercised its discretion to decide the issue substantively, leaving us free to
review that ruling. See id. at 1237-39 (stating that an issue not presented to the BIA
may not be brought in court unless three criteria are met, including that the BIA
explicitly decided the issue “in a full explanatory opinion or substantive discussion”).
“In our review of the agency’s decision, we decide purely legal questions de novo.”
Karki v. Holder, 715 F.3d 792, 800 (10th Cir. 2013) (internal quotation marks
omitted). Thus, we review de novo the BIA’s legal determination that Mr. Tlalpan’s
conviction under § 273.5 of the California Penal Code qualified as a crime of
domestic violence.
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The California statute under which Mr. Tlalpan was convicted provides as
follows:
Any person who willfully inflicts upon his or her spouse, or any person
who willfully inflicts upon any person with whom he or she is
cohabiting, or any person who willfully inflicts upon any person who is
the mother or father of his or her child, corporal injury resulting in a
traumatic condition, is guilty of a felony, and upon conviction thereof
shall be punished by imprisonment in the state prison for two, three, or
four years, or in a county jail for not more than one year, or by a fine of
up to six thousand dollars ($6,000), or by both.
Cal. Penal Code § 273.5(a) (1994).2
Mr. Tlalpan argues that the IJ and the BIA should have analyzed § 273.5 under
the “categorical approach” and the “modified categorical approach” discussed in
Descamps v. United States, 133 S. Ct. 2276, 2281 (2013), to determine whether his
state conviction was a crime of domestic violence. We agree with the Ninth Circuit’s
recent decision concluding that convictions under § 273.5(a) are indeed categorically
crimes of domestic violence within the meaning of § 1227(a)(2)(E)(i). Carrillo v.
Holder, 781 F.3d 1155, 1159 (9th Cir. 2015).3 Accordingly, we reject Mr. Tlalpan’s
challenges to the BIA’s determination that his conviction was a crime of domestic
violence rendering him ineligible for cancellation of removal under
§§ 1227(a)(2)(E)(i) and 1229b(b)(1)(C).
2
Mr. Tlalpan was charged on August 7, 1996, and convicted on November 5,
1996. The version of § 273.5 then in effect was the 1994 version.
3
Carrillo addressed the 2002 version of § 273.5(a), which is not materially
different from the 1994 version applicable to Mr. Tlalpan’s conviction. Compare
Carrillo v. Holder, 781 F.3d 1155, 1158 (9th Cir. 2015) with 1994 Cal. Legis. Serv.
28 (West).
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B. Motion for Post-Conviction Relief
Mr. Tlalpan also claims he is entitled to relief based on his state
post-conviction challenge to his conviction under § 273.5. In that motion, he argued
that he was denied effective assistance of counsel because his criminal defense
attorney failed to advise him in 1996 of the immigration consequences of his guilty
plea. See Padilla v. Kentucky, 559 U.S. 356, 374 (2010) (holding “counsel must
inform her client whether his plea carries a risk of deportation”). This argument is
foreclosed by Vasiliu v. Holder, 651 F.3d 1185 (10th Cir. 2011). There, we held that
“the Supreme Court’s decision in Padilla did not alter [the] rule” that “collateral
challenges to predicate criminal convictions are beyond the scope of [removal]
proceedings.” Id. at 1187-88 (internal quotation marks omitted); cf. Chaidez v.
United States, 133 S. Ct. 1103, 1113 (2013) (stating “defendants whose convictions
became final prior to Padilla . . . cannot benefit from its holding”). Because
Mr. Tlalpan’s collateral challenge to his conviction under § 273.5 is beyond the
scope of these proceedings, he is not entitled to relief on that basis.
III. CONCLUSION
The petition for review is denied.
Entered for the Court
Gregory A. Phillips
Circuit Judge
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