Rivera-Bottzeck v. Gonzales , 240 F. App'x 272 ( 2007 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
July 11, 2007
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
O TTO F. R IV ER A-B OTTZEC K,
Petitioner,
v. No. 06-9509
(No. A14 156 746)
ALBERTO R. GONZA LES, (Petition for Review)
Attorney General,
Respondent.
OR D ER AND JUDGM ENT *
Before H E N RY, B AL DOC K , and M U RPH Y, Circuit Judges.
Otto F. Rivera-Bottzeck, appearing pro se, seeks judicial review of the
denial of his application for cancellation of removal under 8 U.S.C. § 1229b(a).
W e have jurisdiction under 8 U.S.C. § 1252(a), and we deny the petition.
Petitioner is a native and citizen of Guatemala. He was admitted to the
United States in 1964, when he was three years old. He conceded removability,
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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not binding precedent, except under the doctrines of law of the case, res judicata,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 w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
but applied for cancellation of removal. An immigration judge (IJ) found him
ineligible for this discretionary relief because he failed to establish, as required
by § 1229b(a)(3), that he has not been convicted of an aggravated felony.
Specifically, 8 U.S.C. § 1101(a)(43)(M )(i) defines “aggravated felony” to include
an offense that “involves fraud or deceit in which the loss to the victim or victims
exceeds $10,000.” The Board of Immigration Appeals (BIA) issued a short
opinion affirming the IJ’s decision and dismissed the appeal.
M r. Rivera-Bottzeck has never disputed that his conviction for securities fraud
“involves fraud or deceit.” He argues only that the victims of his crime suffered
no monetary loss and therefore the offense does not qualify as an aggravated
felony under § 1101(a)(43)(M )(i). He also appeals the BIA’s denials of his
motions to reconsider and to reopen.
I. Jurisdiction
W e first address the threshold question whether w e have jurisdiction to
consider petitioner’s appeal. The government asserts that there is no statutory bar
to our jurisdiction because it did not charge M r. Rivera-Bottzeck as removable
based upon an aggravated felony conviction, and instead only relied on that
conviction as a basis to disqualify him from the discretionary relief of
cancellation of removal under § 1229b(a). W e agree that the limitation on
judicial review under 8 U.S.C. § 1252(a)(2)(C), which applies when the alien is
removable based on an aggravated felony, is not applicable in this case. But
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neither party has addressed the limitation on judicial review , pursuant to
§ 1252(a)(2)(B)(i), of decisions regarding cancellation of removal under §1229b.
In Sabido Valdivia v. Gonzales, 423 F.3d 1144, 1148-49 (10th Cir. 2005),
we considered whether, notwithstanding the limitation on judicial review of
judgments regarding granting of relief under § 1229b, we had jurisdiction to
review non-discretionary agency decisions reached under that section. In that
case the alien sought review of the agency’s determination that she did not meet
the requirement of ten years’ continuous physical presence in the United States
under § 1229b(b)(1)(A). W e concluded that determination was subject to judicial
review because it “turned on the evaluation of non-discretionary criteria,”
reasoning that “[t]his is not a question for which we can say that there is ‘no
algorithm’ on which review can be based, or one that involves a ‘judgment call’
by the agency.” Id. at 1149. W e now determine whether a particular agency
decision under § 1229b is discretionary or non-discretionary on a case-by-case
basis. See Perales-Cumpean v. Gonzales, 429 F.3d 977, 982 (10th Cir. 2005)
(holding that determination whether particular conduct rises to the level of
“extreme cruelty” under § 1229b is discretionary).
Here, M r. Rivera-Bottzeck claims that the agency erred in its determination
that he is ineligible for cancellation of removal based on his failure to establish he
has not been convicted of an aggravated felony. Specifically, the BIA determined
that he failed to demonstrate that the victims of his crime suffered a loss that was
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not in excess of $10,000. Like the determination in Sabido Valdivia, that decision
also turns on the evaluation of non-discretionary criteria and does not require a
“judgment call” by the IJ. Therefore, we hold that the jurisdictional limitation in
§ 1252(a)(2)(B)(i) does not apply in this case, because M r. Rivera-Bottzeck’s
claims address the agency’s non-discretionary determination regarding the amount
of loss to the victims under § 1101(a)(43)(M)(i).
II. Standards of Review
“W e look to the record for ‘substantial evidence’ supporting the agency’s
decision: Our duty is to guarantee that factual determinations are supported by
reasonable, substantial and probative evidence considering the record as a whole.”
Uanreroro v. Gonzales, 443 F.3d 1197, 1204 (10th Cir. 2006) (quotation and
alteration omitted). “[A]dministrative findings of fact are conclusive unless any
reasonable adjudicator would be compelled to conclude to the contrary. . . .”
8 U.S.C. § 1252(b)(4)(B). W e review the agency’s legal determinations de novo.
See Lockett v. INS, 245 F.3d 1126, 1128 (10th Cir. 2001). Because a single
member of the BIA affirmed the IJ’s decision in a brief order, we review the
BIA ’s opinion rather than the decision of the IJ. See U anreroro, 443 F.3d at
1204. W e review the BIA’s denials of petitioner’s motions to reconsider and to
reopen for an abuse of discretion. See Belay-Gebru v. INS, 327 F.3d 998, 1000
n.5 (10th Cir. 2003) (motion to reconsider); Infanzon v. Ashcroft, 386 F.3d 1359,
1362 (10th Cir. 2004) (motion to reopen).
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III. Denial of Cancellation of Removal
M r. Rivera-Bottzeck’s securities fraud conviction stemmed from a
multi-count indictment in Colorado state court, which alleged a scheme by which
he persuaded named victims to invest in his efforts to sell his patented power drill
invention. The trial court dismissed tw o theft counts on his motion for acquittal.
Two securities fraud counts went to the jury. They found him not guilty on one
count, but were unable to reach a verdict on Count Two, which charged that
petitioner violated Colo. Rev. Stat. § 11-51-501(1)(b). That statute provides:
It is unlawful for any person, in connection with the offer, sale, or
purchase of any security, directly or indirectly: . . . To make any
untrue statement of a material fact or to omit to state a material fact
necessary in order to make the statements made, in the light of the
circumstances under w hich they are made, not misleading. . . .
On the eve of a retrial on Count Two, M r. Rivera-Bottzeck pleaded guilty and
received a deferred judgment and sentence, one of the conditions of which was
payment of $65,000 in restitution. For various reasons, including his failure to
make regular restitution payments, the trial court revoked the deferred judgment
and sentenced him to eight years in prison. The BIA concluded that petitioner
failed to demonstrate that the victims of his crime suffered no loss or a loss less
than $10,000. Consequently, the BIA held that M r. Rivera-Bottzeck failed to
prove that his securities fraud conviction is not an aggravated felony which
precluded him from eligibility for cancellation of removal.
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A. Burden of Proof
Because M r. Rivera-Bottzeck’s arguments on appeal appear to be based
upon a misunderstanding of his burden of proof in support of his application for
cancellation of removal, we address that issue first. As we noted in the context of
our jurisdictional analysis, the government did not charge M r. Rivera-Bottzeck as
removable based upon conviction of an aggravated felony. Had it done so, it
would have had to establish the existence of such a conviction by clear and
convincing evidence. See Cruz-G arza v. Ashcroft, 396 F.3d 1125, 1130 (10th Cir.
2005) (holding that government had to prove by clear and convincing evidence
that alien’s conviction fell within § 1101(a)(43) in support of removal). Instead,
M r. Rivera-Bottzeck conceded removability and his claims on appeal relate only
to the agency’s determination that he is ineligible for cancellation of removal
under § 1229b(a). Therefore, “the burden shifted to him to show that he was both
statutorily eligible for relief from removal and that the Attorney General should
exercise his discretion to grant that relief.” Schroeck v. Gonzales, 429 F.3d 947,
952 (10th Cir. 2005).
“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). One of the statutory requirements for eligibility for
cancellation of removal is that the alien has not been convicted of an aggravated
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felony. See § 1229b(a)(3). Therefore, in order to qualify for cancellation of
removal under that section, M r. Rivera-Bottzeck had to establish that he has not
been convicted of an aggravated felony.
He raises tw o legal challenges to the BIA’s determination that he failed to
establish that the loss to his victims was not greater than $10,000.
B. Legality of the Restitution O rder
M r. Rivera-Bottzeck first argues that the BIA erred in relying on the
amount of the $65,000 restitution order, as the basis for concluding there was
evidence of loss to the victims exceeding $10,000, because he challenged the
legality of that order. He asserts that under Colorado law an order must be based
on actual damages, that there were no actual damages as a result of his offense,
and therefore the restitution order is illegal. He characterizes his agreement to
pay restitution as buying back the investors’ claims to any profit from the sale of
his invention, rather than compensation for their losses. Therefore, he maintains
that the BIA should have evaluated the legality of the restitution order, and
having failed to do so, that this court should make that determination in this
appeal. In the absence of such a determination, M r. Rivera-Bottzeck contends
that the BIA could not rely on the restitution order, the validity of which he
challenges. 1
1
For this proposition M r. Rivera-Bottzeck relies on an unpublished decision
of this court, St. John v. Ashcroft, No. 01-5179, 43 F. App’x 281 (10th Cir. 2002)
(continued...)
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W e disagree. “O nce the conviction becomes final, it provides a valid basis
for deportation unless it is overturned in a post-conviction proceeding.” Trench v.
INS, 783 F.2d 181, 184 (10th Cir. 1986) (quotation omitted). W e hold that
M r. Rivera-Bottzeck cannot collaterally attack the validity of the state court
restitution order in these removal proceedings. See id. (holding that BIA was not
authorized to evaluate the validity of petitioner’s state court convictions); Vargas
v. Dep’t of Homeland Sec., 451 F.3d 1105, 1107 (10th Cir. 2006) (holding that
this court had no authority to address the petitioner’s challenge to the validity of
his guilty plea in state court, regardless of w hether it had merit).
C. “M odified Categorical Approach”
M r. Rivera-Bottzeck’s second argument is that the BIA erred by failing to
apply the so-called “modified categorical approach” to determining whether he
was convicted of an aggravated felony. Under that approach, which is borrowed
from criminal sentencing law, a court first compares the definition of an
aggravated felony in the Immigration and Nationality Act (INA) with the
elements of the crime of conviction. See Vargas, 451 F.3d at 1108-09 (referring
to the “categorical approach”). At this stage, courts “‘look[] only to the statutory
definitions of the prior offenses, and not to the particular facts underlying those
convictions.” Id. at 1108 (quoting Taylor v. United States, 495 U.S. 575, 600
1
(...continued)
(unpublished). Under 10th Cir. R. 32.1, unpublished decisions of this court are
not precedential.
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(1990)) (alteration in original). But if the elements of the crime of conviction
reach “a broad range of conduct, some of which would constitute an aggravated
felony and some of which would not, courts resolve the ambiguity by consulting
reliable judicial records.” Id. at 1109 (quotations omitted). In the context of a
guilty plea, the judicial records that may be reviewed include “‘the terms of the
charging document, the terms of a plea agreement or transcript of colloquy
between judge and defendant in which the factual basis for the plea was
confirmed by the defendant, or [some] comparable judicial record of this
information.’” Id. at 1108 (quoting Shepard v. United States, 544 U.S. 13, 26
(2005)). Some courts refer to this second step review of the record of conviction
as a modified categorical approach. See Gonzales v. Duenas-Alvarez, ___ U.S.
___, 127 S.Ct. 815, 819 (2007).
The Supreme Court recently observed that the circuit courts have uniformly
applied this approach in determining whether an alien’s conviction falls within
the scope of an offense listed in the IN A, such that the alien is subject to removal.
Id. at 818. In Vargas, we applied the approach in holding that it was appropriate
for the BIA to review a charging document, in order to determine whether the
petitioner was removable on the basis of being convicted of an aggravated felony
under a different subsection of § 1101(a)(43). 451 F.3d at 1109. But we declined
to decide whether the constraints of Taylor and Shepard necessarily apply in
resolving that question. Id. at 1108. W e have not yet had an occasion to address
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whether the modified categorical approach applies in the context presented in this
case, where the agency found petitioner ineligible for cancellation of removal
based on his failure to establish he has not been convicted of an aggravated
felony.
W e need not decide that issue, however, because M r. Rivera-Bottzeck fails
to identify any aspect of the BIA’s decision in this case that deviated from the
modified categorical approach. W e have construed his pro se appeal briefs
liberally. See Ledbetter v. City of Topeka, 318 F.3d 1183, 1187 (10th Cir. 2003)
(construing pro se appellate brief liberally). His initial argument is that the BIA
failed to consider that the elements of Count Tw o do not require a showing of loss
to the victims. But a categorical match between the INA definition of an
aggravated felony and the statute of conviction is not a requirement for finding
that the conviction was an aggravated felony. W hen the statutory elements of the
offense of conviction cover both conduct that would, and conduct that would not,
constitute an aggravated felony, the lack of a categorical match simply triggers
the next step in the analysis. See Vargas, 451 F.3d at 1109.
At that next step, M r. Rivera-Bottzeck contends that the BIA should have
determined that the victims of his offense did not suffer any actual losses, yet he
points to no evidence in the record of conviction to support that conclusion.
Relying on the $65,000 restitution order, the BIA determined that there was
evidence indicating that the victims of petitioner’s offense suffered losses in
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excess of $10,000. It was permissible for the BIA to consider the amount of
restitution with respect to the question of the amount of loss to the victims. See
Khalayleh v. INS, 287 F.3d 978, 980 (10th Cir. 2002) (considering restitution for
amount of “actual loss” in plea agreement in determining whether petitioner was
removable based on conviction of an aggravated felony); Ferreira v. Ashcroft,
390 F.3d 1091, 1098 (9th Cir. 2004) (holding that IJ properly looked to $22,000
restitution order in plea agreement in determining amount of loss to the victims).
But it was petitioner’s burden to produce evidence that Count Two was not an
aggravated felony. See 8 C.F.R. § 1240.8(d). He simply did not do so. Under
the modified categorical approach the BIA could not rely solely on his factual
assertions, unsupported by the record, regarding the basis for the restitution.
Nonetheless, M r. Rivera-Bottzeck argues that under the modified
categorical approach, the record must establish that the jury was required to find
all the elements of the offense defined in the INA. He specifically points to the
state court’s instruction to the jury to disregard evidence of loss. 2 For this
proposition he cites a Ninth Circuit case: Li v. Ashcroft, 389 F.3d 892 (9th Cir.
2004). “The decisions of the Ninth Circuit are not binding on this circuit.” FDIC
v. Daily, 973 F.2d 1525, 1532 (10th Cir. 1992). In any event, the Li case is
2
The state court instructed the jury, before they deliberated on the two
securities fraud counts, “I ruled a long time ago whether [the victims] make a
great deal of money in this case or w hether they lose everything they invested is
not relevant to the charges before you.” Admin. R. at 475.
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factually dissimilar from this case because it involved a jury verdict, rather than a
guilty plea. The jury did not reach a verdict on Count Two; petitioner’s
conviction on that count instead rested on his guilty plea. Therefore, jury
instructions and findings are not part of the record of conviction of his guilty plea
that the BIA could have relied upon under the modified categorical approach. 3
Although petitioner asserted that the $65,000 restitution order was not
based on actual loss to his victims, the B IA concluded that he failed to support
that contention with any evidence. W e hold that the BIA did not apply an
incorrect legal standard in concluding that M r. Rivera-Bottzeck failed to
demonstrate that the victims of his crime did not suffer a loss in excess of
$10,000.
IV. M otion to Reconsider 4
“A motion to reconsider shall state the reasons for the motion by specifying
the errors of fact or law in the prior Board decision and shall be supported by
3
Petitioner also appears to contend that the modified categorical approach
allowed the BIA to “delve into the legitimacy of the restitution order for purposes
of aggravated felony analysis.” Pet. Br. at 3(b). W e have already rejected
petitioner’s argument that he could collaterally challenge the validity of the
restitution order in the removal proceedings. W hile the modified categorical
approach permits the BIA to examine the record of conviction, it does not allow
the BIA to assess the validity of the conviction.
4
M r. Rivera-Bottzeck filed an objection to the administrative record, which
mistakenly characterized his motion to reconsider as a motion to reopen. The
government conceded the error. W e take judicial notice that petitioner’s
January 27, 2006, filing was a motion to reconsider.
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pertinent authority.” 8 C.F.R. § 1003.2(b)(1). In his motion to reconsider,
M r. Rivera-Bottzeck repeated the contentions he had made in his appeal to the
BIA regarding an absence of loss to his victims. He cited only one case–a
decision from outside this circuit which is no longer good law. He also attached
three exhibits, two of w hich were already in the record. The third exhibit is a
transcript of the hearing during which he entered his guilty plea. The BIA found
that the transcript was not new or previously unavailable evidence, and therefore
declined to consider it. It also stated that it could not look behind petitioner’s
conviction to determine the legality of the restitution order, directing him to
address his arguments to the state court. It explained that the statutory
requirement of loss to the victims in § 1101(a)(43)(M )(i) need not be an element
of the offense of conviction. Finally, the BIA reiterated that the IJ properly relied
on the amount of restitution in finding loss to the victims in excess of $10,000.
Petitioner’s arguments on appeal with respect to the BIA’s denial of his
motion to reconsider are no different than his arguments in support of reversal of
the BIA’s underlying decision. W e have already addressed the merits of these
arguments. W e hold that the BIA did not abuse its discretion in denying
M r. Rivera-Bottzeck’s motion to reconsider.
V. M otion to Reopen
M r. Rivera-Bottzeck filed a motion to reopen alleging claims of ineffective
assistance of counsel. Specifically, he argued that his counsel abandoned him
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after the hearing before the IJ, in breach of their fee agreement, and as a result he
was forced to file his post-hearing brief pro se, with inadequate access to
immigration-related legal materials at the state prison where he was incarcerated.
The BIA denied the motion on two grounds. First, it concluded that the evidence
of ineffective assistance he submitted was previously available under 8 C.F.R.
§ 1003.2(c). Second, the BIA held that he failed to establish prejudice because
the motion did not include evidence demonstrating that he was not convicted of
an aggravated felony.
W e hold that the BIA did not abuse its discretion in denying
M r Rivera-Bottzeck’s motion to reopen because he failed to establish any
prejudice. Petitioner argues only that it is clear he was denied an opportunity to
fairly present his claims after being abandoned by his counsel and forced to
proceed on his ow n w ithout adequate legal materials.
Because deportation proceedings are civil in nature, a claim of
ineffective assistance of counsel in a deportation proceeding may be
based only on the Fifth A mendment guarantee of due process. As a
result, an alien must show that his counsel’s ineffective assistance so
prejudiced him that the proceeding was fundamentally unfair.
Akinwunmi v. INS, 194 F.3d 1340, 1341 n.2 (10th Cir. 1999) (per curiam)
(citations omitted). As the BIA noted, with his motion to reopen he still did not
present any evidence that he had not been convicted of an aggravated felony. Nor
does he indicate on appeal how the outcome of his removal hearing would have
been different if his counsel had prepared the post-hearing brief or if he had
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access to additional legal materials. Thus, his lack of counsel and legal materials
in that effort did not implicate the fundamental fairness of the proceeding.
M r. Rivera-Bottzeck’s final argument is that the BIA failed to address, in
its denial of his motion to reopen, his claim that he was deprived of adequate
legal materials, resulting in a denial of his constitutional right of access to the
courts. He asks for remand to the BIA to allow it to consider that claim. W e
conclude that remand is not necessary. In his motion petitioner characterized his
arguments as “claims of ineffective assistance of counsel,” Admin. R. at 45, and
he described his lack of access to legal materials as a consequence of his
counsel’s ineffective assistance. W e conclude that the BIA sufficiently
considered and addressed his claims of ineffective assistance of counsel in their
entirety. Its conclusion that he failed to show prejudice applies equally to his
argument regarding lack of access to legal materials. See Lewis v. Casey,
518 U.S. 343, 353 (1996) (holding prisoner must “demonstrate that a nonfrivolous
legal claim had been frustrated or was being impeded”) (footnote omitted). 5
Therefore, the BIA’s failure to explicitly discuss that aspect of his claim was not
a failure to exercise its discretion or an abuse of discretion.
W e hold that the BIA did not abuse its discretion in denying
M r. Rivera-Bottzeck’s motion to reopen.
5
W e do not decide here the parameters of a prisoner’s due process right to
adequate legal materials for use in a removal proceeding.
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The petition for review is DENIED. Petitioner’s motion to proceed without
prepaym ent of costs or fees is G RANTED.
Entered for the Court
M ichael R. M urphy
Circuit Judge
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