Donjuan-Laredo v. Sessions , 689 F. App'x 600 ( 2017 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 31, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
CARLOS ISRAEL DONJUAN-LAREDO,
Petitioner,
v. No. 15-9568
(Petition for Review)
JEFF SESSIONS,*
United States Attorney General,
Respondent.
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ORDER AND JUDGMENT**
_________________________________
Before TYMKOVICH, Chief Judge, McKAY and LUCERO, Circuit Judges.
_________________________________
Carlos Israel Donjuan-Laredo is a native and citizen of Mexico. In September
2011, he pleaded guilty to using a false immigration document for work purposes in
violation of 18 U.S.C. § 1546(b)(1). In October 2011, he was convicted and
*
In accordance with Rule 43(c)(2) of the Federal Rules of Appellate
Procedure, Jeff Sessions is substituted for Loretta E. Lynch as the respondent in this
action.
**
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
sentenced to time served plus ten days. After the completion of his criminal
sentence, the Department of Homeland Security (DHS) took him into custody and
commenced removal proceedings against him, charging him with being unlawfully
present in this country without proper admission or parole. See 8 U.S.C.
§ 1182(a)(6)(A)(i).
At a hearing before an Immigration Judge (IJ), Mr. Donjuan-Laredo conceded
removability, but applied for cancellation of removal under 8 U.S.C. § 1229b(b)(1).
The IJ denied the application after finding that Mr. Donjuan-Laredo was statutorily
ineligible for such relief due to his conviction for violating § 1546. The Board of
Immigration Appeals (BIA) affirmed the IJ’s decision. Mr. Donjuan-Laredo now
petitions for review of that decision.
We first address our jurisdiction. Under 8 U.S.C. § 1252(a)(2)(B)(i), we lack
jurisdiction to review “any judgment regarding the granting of relief under
section . . . 1229b.” “We have construed the term ‘judgment’ in this subsection as
referring to the discretionary aspects of a decision concerning cancellation of
removal.” Arambula-Medina v. Holder, 572 F.3d 824, 828 (10th Cir. 2009). But we
retain jurisdiction to review decisions under § 1229b that are non-discretionary in
nature. See Sabido Valdivia v. Gonzales, 423 F.3d 1144, 1148-49 (10th Cir. 2005).
The agency’s determination that Mr. Donjuan-Laredo has a conviction that
disqualifies him from being eligible for cancellation of removal under the terms of
the statute is not a discretionary decision as it does not “involve[] a judgment call by
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the agency.” Id. at 1149 (internal quotation marks omitted). We therefore have
jurisdiction to review the agency’s decision to deny relief under § 1229b in this case.
A single member of the BIA issued a brief order affirming the IJ’s decision.
See 8 C.F.R. § 1003.1(e)(5). “[T]he (e)(5) brief order . . . produces an independent
BIA decision that constitutes the final order of removal under 8 U.S.C. § 1252(a).”
Uanreroro v. Gonzales, 443 F.3d 1197, 1204 (10th Cir. 2006). We review de novo
the BIA’s legal determination that Mr. Donjuan-Laredo’s conviction makes him
statutorily ineligible for cancellation of removal. See Herrera-Castillo v. Holder,
573 F.3d 1004, 1007 (10th Cir. 2009).
To be eligible for cancellation of removal, Mr. Donjuan-Laredo needed to
show: (A) he had been physically present in the United States for a continuous
period of at least ten years; (B) he had been a person of good moral character during
that time; (C) he had not been convicted of an offense under 8 U.S.C. §§ 1182(a)(2),
1227(a)(2) or 1227(a)(3); and (D) his “removal would result in exceptional and
extremely unusual hardship” to a qualifying relative who is a United States citizen.
8 U.S.C. § 1229b(b)(1). It is the third requirement that is relevant here.
Section 1227(a)(3)(B)(iii) provides that an alien who has been convicted of
“a violation of, or an attempt or a conspiracy to violate, section 1546 of Title 18
(relating to fraud and misuse of visas, permits, and other entry documents), is
deportable.” On October 7, 2011, Mr. Donjuan-Laredo was convicted of using false
immigration documents in violation of 18 U.S.C. § 1546(b)(1). Because he was
convicted of violating § 1546, and because § 1546 is an offense described in
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§ 1227(a)(3), the BIA agreed with the IJ that Mr. Donjuan-Laredo was ineligible for
cancellation of removal.
Mr. Donjuan-Laredo admits that he pleaded guilty to violating 18 U.S.C.
§ 1546, but he argues that “[he] did not commit a crime of fraud and misuse of visas,
permits, and other documents,” Pet’r Br. at 10, and that his conviction is “an illegal
conviction on its face,” id. at 14. He also asserts that he received ineffective
assistance of counsel during his criminal proceedings and that this should invalidate
his conviction. But as the BIA explained in rejecting these arguments, the agency
“cannot go behind [a] conviction and determine an alien’s guilt or innocence,” and it
“may not entertain a collateral attack on [Mr. Donjuan-Laredo’s] conviction.”
R. at 4. The BIA’s decision is consistent with its own precedent. See, e.g., Matter of
Madrigal-Calvo, 21 I. & N. Dec. 323, 327 (BIA 1996) (holding that “the Immigration
Judge and this Board cannot entertain a collateral attack on a judgment of conviction
unless that judgment is void on its face, and cannot go behind the judicial record to
determine the guilt or innocence of the alien”).
Likewise, “we have adhered to the rule that collateral challenges to predicate
criminal convictions are beyond the scope of [immigration] proceedings.” Vasiliu v.
Holder, 651 F.3d 1185, 1187 (10th Cir. 2011) (internal quotation marks omitted). As
we have explained, “immigration authorities must look solely to the judicial record of
final conviction and may not make their own independent assessment of the validity
of an alien’s guilty plea. Thus, once the conviction becomes final, it provides a valid
basis for deportation unless it is overturned in a post-conviction proceeding.”
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Id. (brackets, citation, and internal quotation marks omitted). We therefore conclude
that the BIA properly rejected Mr. Donjuan-Laredo’s attempts to collaterally attack
his conviction in his immigration proceedings.
Mr. Donjuan-Laredo also contends that his due process and equal protection
rights were violated when the IJ denied his application for cancellation of removal by
relying on his illegal conviction. Because this argument rests on the premise that
Mr. Donjuan-Laredo’s conviction is illegal, and because establishing that premise
would involve an impermissible collateral review of his conviction in an immigration
proceeding, the BIA properly rejected it.
Lastly, Mr. Donjuan-Laredo complains that the DHS failed to exercise its
prosecutorial discretion to forego removal proceedings against him, and he complains
that the IJ failed to review the DHS’s refusal to exercise its prosecutorial discretion.
But as the BIA explained, “the DHS’s prosecutorial discretion is not subject to
review by the [IJ].” R. at 4. We see no error in the BIA’s decision as we have held
that “neither an IJ nor the BIA has the authority to review the government’s
prosecutorial discretion decisions.” Veloz-Luvevano v. Lynch, 799 F.3d 1308, 1315
(10th Cir. 2015).
We agree with the agency that Mr. Donjuan-Laredo’s § 1546 conviction means
he is statutorily ineligible for cancellation of removal. Accordingly, we deny his
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petition for review. The sealed, ex parte attorney discipline order entered March 15,
2017 is discharged.
Entered for the Court
Timothy M. Tymkovich
Chief Judge
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