Odia Lavina Mcdonald v. U.S. Attorney General , 533 F. App'x 938 ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-10253
Non-Argument Calendar
________________________
Agency No. A042-250-269
ODIA LAVINA MCDONALD,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(August 19, 2013)
Before MARCUS, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
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Odia Lavina McDonald, a native and citizen of Jamaica, petitions for review
of the decision of the Board of Immigration Appeals that affirmed an order to
remove her from the United States, 8 U.S.C. § 1227(a)(2)(A)(ii), (iii), and denied
her application for cancellation of removal, id. § 1229b(a). We deny McDonald’s
petition.
McDonald entered the United States lawfully in 1989. After her admission,
McDonald committed several felonies in Florida and was convicted in 1996 for
robbery, see Fla. Stat. § 812.13(2)(c), and in 2007 for felony petit theft, see id.§ 812.014(3)(c). In 2010, the Department of Homeland Security served McDonald
with a notice to appear charging that she was removable because she had been
convicted of two or more crimes involving moral turpitude, see 8 U.S.C.
§ 1227(a)(2)(A)(ii), and an aggravated felony for a theft offense, see id.§ 1127(a)(2)(A)(iii). McDonald eventually admitted that she was removable, and
an immigration judge told McDonald that she had 30 days to file an application for
relief under the United Nations Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment and that she would receive a copy
of the application form by mail. See id. § 1231(b)(3).
McDonald failed to file an application for relief under the Convention, and
the immigration judge ordered McDonald removed to Jamaica. McDonald
appealed to the Board and moved to remand her case to apply for deferral of
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removal. In her motion, which the Department did not oppose, McDonald argued
that the immigration judge failed to send her an application. The Board granted
McDonald’s motion and remanded the case for her to apply for relief under the
Convention with instructions for the immigration judge to conduct “further
proceedings consistent with [the] opinion.”
On remand, McDonald initially filed an application for withholding of
removal under the Convention, but she later moved to terminate her immigration
proceedings on the ground that she was not removable and, in the alternative, for
waiver and a cancellation of removal, see 8 U.S.C. § 1182(c) (repealed Sept.
1996). The Department filed additional charges that McDonald was removable
because she had been convicted of an aggravated felony for a crime of violence,
see id. § 1227(a)(2)(A)(iii), and the notice listed nine additional convictions of
McDonald in the Florida courts, including a conviction in 2002 for forgery, see
Fla. Stat. § 831.01. The Department submitted records from the Florida courts,
including several scoresheets reflecting that McDonald had a conviction for felony
third degree forgery, see id. § 831.01, and an arrest warrant and minutes of
sentencing establishing that McDonald received a sentence of one year in February
1996 for robbery, see id. § 812.13.
The immigration judge reconsidered the charges against McDonald and
again ordered her removed from the United States. The immigration judge found
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that McDonald was removable on two grounds: (1) she had been convicted of two
or more crimes of moral turpitude, see 8 U.S.C. § 1227(a)(2)(A)(ii), including
robbery, see Fla. Stat. § 812.13(2)(c), forgery, see id. § 831.01, and fraudulent use
of personal identification, see id. § 817.568; and (2) her conviction in 1996 for
robbery was a crime of violence, see 8 U.S.C. § 1227(a)(2)(A)(iii). The
immigration judge also found that McDonald was ineligible for a waiver and
cancellation of removal because her conviction for robbery constituted an
aggravated felony for a crime of violence. See id. § 1229b. McDonald moved for
reconsideration and, after the immigration judge denied the motion, McDonald
withdrew her application for withholding of removal under the Convention and
appealed to the Board.
The Board affirmed the decision of the immigration judge. The Board found
that the Department had the authority to file additional charges of removability
after the remand because McDonald’s “removal proceedings were still pending”
and the immigration judge correctly classified McDonald’s conviction for robbery
as an aggravated felony for a crime of violence. The Board also found that
McDonald had a prior conviction for forgery and, because she did not dispute that
her conviction for fraudulent use of personal identification also was a crime of
moral turpitude, she was removable on that basis. See id. § 1227(a)(2)(A)(ii). The
Board further found that McDonald was statutorily ineligible for a waiver and
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cancellation of removal, see id. § 1229b(a), and, even if she had been eligible, the
Board would have denied “relief as a matter of discretion given [McDonald’s]
lengthy criminal history and lack of countervailing positive equities.”
The Board did not err in finding that the Department could lodge additional
charges against McDonald on remand. The Board did not “qualif[y] or limit[] the
remand for a specific purpose, . . . [and] the remand [was] effective . . . for
consideration of any and all matters which [the immigration judge] deem[ed]
appropriate.” See Matter of Patel, 16 I & N Dec. 600, 601 (BIA 1978). Because
the removal proceedings were not final, the immigration judge had the authority to
allow the Department to file new charges against McDonald. See Dormescar v.
U.S. Att’y Gen., 690 F.3d 1258, 1270 (11th Cir. 2012); 8 C.F.R. § 1003.30 (“At
any time during deportation or removal proceedings, additional or substituted
charges of deportability and/or factual allegations may be lodged by the Service in
writing.”). And McDonald received notice of and an opportunity to respond to the
new charges. See 8 C.F.R. §§ 1003.30, 1240.10(e). After the Department filed the
additional charges, the immigration judge held three hearings to determine whether
McDonald was removable and whether she was eligible for cancellation of
removal.
The Board also did not err in finding that McDonald’s prior conviction for
forgery was a crime involving moral turpitude. Although the term “moral
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turpitude” is not defined by statute, we consider an offense involving dishonesty or
false statements to be a crime of moral turpitude. Itani v. Ashcroft, 298 F.3d 1213,
1215 (11th Cir. 2002). McDonald’s forgery crime for making a false writing, see
Fla. Stat. § 831.01, qualifies as a prohibited offense. See Cano v. U.S. Att’y Gen.,
709 F.3d 1052, 1053 (11th Cir. 2013) (stating that a crime of moral turpitude
involves conduct “contrary to the accepted and customary rule of right and duty
between man and man” (internal quotation marks omitted)); Itani, 298 F.3d at 1215(same).
And the Department introduced sufficient evidence of McDonald’s
conviction for forgery. See 8 U.S.C. § 1229a(c)(3)(B); 8 C.F.R. § 1003.41(d). The
Department introduced several scoresheets on which the Florida courts relied on
McDonald’s conviction for forgery to calculate her criminal history score, and
those scoresheets were, by law, reviewed for accuracy by defense counsel and the
sentencing judge in each case. See Fla. Stat. § 921.002; Fla. R. Crim. P.
3.704(d)(1), 3.704(d)(4), 3.992. These official records sufficed as proof of
McDonald’s forgery conviction. See Fequiere v. Ashcroft, 279 F.3d 1325, 1327
(11th Cir. 2002) (“[S]ection 1229a(c)(3)(B) does not state that the forms of proof it
lists constitute the sole means of establishing a criminal conviction; rather, the
statute merely says that such forms ‘shall constitute proof of a criminal
conviction.’ Other forms of proof will suffice if ‘probative.’”).
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McDonald argues that she was eligible for cancellation of removal because
her prior conviction for robbery did not qualify as a crime of violence, but we need
not address that argument. Even if we were to assume that McDonald’s prior
conviction did not qualify as a crime of violence, we could not give her any
meaningful relief. See Al Najjar v. Ashcroft, 273 F.3d 1330, 1336 (11th Cir.
2001). The Board stated that “if [McDonald] was eligible [for cancellation of
removal], [it] would deny relief as a matter of discretion,” and this Court would not
have jurisdiction to review that discretionary decision, see 8 U.S.C.
§ 1252(a)(2)(B)(i).
We DENY McDonald’s petition.
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