Manuel Mondragon v. Eric Holder, Jr. , 706 F.3d 535 ( 2013 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
MANUEL MONDRAGÓN, 
Petitioner,
v.
 No. 11-2133
ERIC H. HOLDER, JR., Attorney
General,
Respondent.

MANUEL MONDRAGÓN, 
Petitioner,
v.
 No. 12-1070
ERIC H. HOLDER, JR., Attorney
General,
Respondent.

On Petitions for Review of Orders
of the Board of Immigration Appeals.
Argued: October 23, 2012
Decided: January 31, 2013
Before NIEMEYER, KING, and AGEE, Circuit Judges.
Petitions denied by published opinion. Judge Niemeyer wrote
the opinion, in which Judge King and Judge Agee joined.
2 MONDRAGÓN v. HOLDER
COUNSEL
ARGUED: Nancy Aileen Noonan, ARENT FOX, LLP,
Washington, D.C., for Petitioner. Woei-Tyng Daniel Shieh,
UNITED STATES DEPARTMENT OF JUSTICE, Washing-
ton, D.C., for Respondent. ON BRIEF: Ralph A. Taylor, Jr.,
Peter V. B. Unger, Jennifer S. Allen, Eli M. Sheets, ARENT
FOX, LLP, Washington, D.C., for Petitioner. Stuart F. Delery,
Acting Assistant Attorney General, Civil Division, Carl H.
McIntyre, Jr., Assistant Director, Office of Immigration Liti-
gation, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
OPINION
NIEMEYER, Circuit Judge:
Manuel Mondragón, a citizen of El Salvador, who entered
the United States illegally and is therefore removable, sought
discretionary relief from his removal under the Nicaraguan
Adjustment and Central American Relief Act ("NACARA").
Mondragón would be eligible for this discretionary relief only
if he could show that he had not been previously convicted of
an aggravated felony, defined in the Immigration and Nation-
ality Act ("INA") as a crime of violence, for which the term
of imprisonment is at least one year. The Board of Immigra-
tion Appeals ("BIA" or "Board") found Mondragón ineligible
for relief because he was unable to demonstrate that his 1996
Virginia conviction for assault and battery was not a crime of
violence.
Although Mondragón could produce no conviction-related
documents describing the conduct of his conviction, he
offered his own affidavit in which he described in detail his
conduct in an effort to show that it was nonviolent. Applying
a modified categorical approach, the BIA rejected Mondra-
MONDRAGÓN v. HOLDER 3
gón’s affidavit and found that the evidence of record was
inconclusive as to whether Mondragón’s conviction was for
a crime of violence. Because Mondragón had the burden of
demonstrating his eligibility for discretionary relief, the BIA
found that Mondragón failed to carry his burden and ordered
him removed.
At their core, Mondragón’s arguments on appeal center on
the BIA’s refusal to permit him to present evidence that his
conduct of conviction was nonviolent. He claims that the use
of the modified categorical approach is too restrictive in the
circumstances where he had the burden of proof and that the
BIA should have allowed him to present his affidavit to dem-
onstrate why he was eligible for relief from removal. He also
argues that he was improperly disqualified for discretionary
relief based on a definition of crime of violence that was
adopted after his conviction and made retroactively applicable
to him, in violation of his due process rights.
As appealing as Mondragón makes his case, we must ratify
the BIA’s application of the modified categorical approach.
The failure to do so would bring about dramatic—and consti-
tutionally problematic—consequences. Earlier convictions
such as Mondragón’s would be retried in immigration pro-
ceedings, putting to question the finality of earlier adjudica-
tions, and unfairness would inevitably result, as one party or
the other would be unable to retrieve lost evidence, witnesses,
or memories. Moreover, eligibility for relief from removal
would no longer depend on the categorical fact that an alien
had been convicted of a crime of violence, as provided for in
NACARA, but rather on the retrial of the underlying facts for
determination of whether the conduct constituted a crime of
violence. As we explain more fully herein, both the law and
prudence require that we reject Mondragón’s arguments. We
also reject his argument that the statute was improperly made
retroactive. Accordingly, we deny his petitions for review.
4 MONDRAGÓN v. HOLDER
I
Mondragón entered the United States illegally in 1990 and,
shortly after arriving, applied for and was granted temporary
protected status based on an ongoing civil war in El Salvador.
He later married and now has three children who were born
in the United States.
In August 1995, Mondragón applied for asylum pursuant to
a settlement agreement reached in American Baptist Churches
v. Thornburgh, 760 F. Supp. 796 (N.D. Cal. 1991). While his
asylum petition was pending, Mondragón pleaded guilty in
early 1996 to a "misdemeanor" assault and battery charge in
Virginia General District Court and was sentenced to one
year’s imprisonment, suspended. The only record relating to
this conviction is a two-page document that served as a war-
rant for his arrest and recorded the disposition of the charge.
That document indicates that on January 10, 1996, Mondra-
gón pleaded guilty to assaulting and battering Jamship
Kashani, in violation of Virginia Code § 18.2-57, and that he
was sentenced to one year’s imprisonment, suspended.
Because of this conviction, the Asylum Office in Arlington,
Virginia, denied Mondragón’s application for asylum on April
2, 2007, as the settlement agreement in American Baptist
Churches, on which he relied to make his application, pro-
vided that class members who had been convicted of an "ag-
gravated felony" as defined in the INA (i.e., a crime of
violence for which the term of imprisonment is at least one
year) were not eligible for the benefits of the agreement. As
Mondragón had entered the country illegally and thus
remained removable, he was ordered to appear for removal
proceedings. See 8 U.S.C. § 1182(a)(6)(A)(i) (providing that
"[a]n alien present in the United States without being admitted
or paroled . . . is inadmissible").
Mondragón conceded removability, but he applied for relief
from removal, this time under § 203 of NACARA, Pub. L.
MONDRAGÓN v. HOLDER 5
No. 105-100, 111 Stat. 2160, 2198 (1997), which provides
that for NACARA-eligible aliens, "the Attorney General may
. . . cancel removal of, and adjust to the status of an alien law-
fully admitted for permanent residence, an alien who is inad-
missible or deportable from the United States." (Emphasis
added).* NACARA further provides, however, that an alien
who has committed an "aggravated felony," as defined in the
INA, is ineligible for its discretionary relief. Id.
On January 10, 1996, when Mondragón pleaded guilty to
assault and battery, his conviction did not constitute an "ag-
gravated felony." At that time, the term "aggravated felony"
was defined in the INA to include a crime of violence for
which the term of imprisonment was at least five years,
whereas the maximum sentence for Virginia’s misdemeanor
assault and battery was one year. See 8 U.S.C.
§ 1101(a)(43)(F) (1995); Va. Code Ann. § 18.2-11. But the
Illegal Immigration Reform and Immigrant Responsibility Act
of 1996 ("IIRIRA"), which was enacted in 1996 after Mon-
dragón had pleaded guilty, amended the definition of "aggra-
vated felony" to be a crime of violence for which the term of
imprisonment was at least one year. See IIRIRA §§ 321(a)(3),
322(a), Pub. L. No. 104-208, 110 Stat. 3009, 3009-627, 3009-
629 (1996) (codified at 8 U.S.C. § 1101(a)(43)(F) (2006)).
Moreover, IIRIRA made this new definition of "aggravated
felony" retroactive, providing that the amendment was to
"apply to actions taken on or after the date of enactment of
[IIRIRA], regardless of when the conviction occurred."
IIRIRA § 321(c) (emphasis added); see also id. § 322(c).
At Mondragón’s removal hearing on December 22, 2008,
the government challenged Mondragón’s eligibility for
NACARA relief from removal, contending that Mondragón’s
1996 conviction was an "aggravated felony" which disquali-
fied him from that relief. Mondragón maintained, however,
*NACARA, which is not codified in the U.S. Code, was signed into law
on November 19, 1997.
6 MONDRAGÓN v. HOLDER
that at the time he pleaded guilty, his conviction did not meet
the definition of aggravated felony because the crime was not
punishable by imprisonment for at least five years.
An immigration judge ("IJ") denied Mondragón’s applica-
tion for relief from removal in a decision rendered on August
16, 2010, noting that IIRIRA § 321’s aggravated-felony defi-
nition applied retroactively, so that Mondragón’s 1996 con-
viction qualified as an aggravated felony "notwithstanding the
fact that at the time he made the plea, he could not have been
aware of the immigration consequences." The IJ also applied
a modified categorical approach to assess whether Mondra-
gón’s conviction was for a crime of violence and concluded
that the available record of Mondragón’s 1996 conviction,
while complete, was inconclusive on the issue. Because Mon-
dragón bore the burden of proof in seeking relief from
removal, the IJ ruled that the inconclusive record was insuffi-
cient to show that Mondragón was eligible for cancellation of
removal under NACARA.
Mondragón appealed the IJ’s decision to the Board of
Immigration Appeals and requested that it remand the case to
permit him to present evidence demonstrating that he had not
committed a "crime of violence." He also argued that the
retroactive application of the statutory definition of "aggra-
vated felony" was unconstitutional. The Board affirmed the
IJ, finding that Mondragón did not satisfy his burden of dem-
onstrating eligibility for NACARA’s discretionary relief. It
also agreed with the IJ that "the most recent amendments to
the definition of ‘aggravated felony’ apply regardless of the
date of the conviction." Finally, the Board declined to remand
the case, finding that Mondragón’s request to present addi-
tional evidence about his 1996 conviction was "not supported
by any pertinent, persuasive legal authority or by any affidavit
from [Mondragón] or other evidence necessary to demon-
strate that a remand is warranted." From this decision of the
Board, Mondragón filed his first petition for review in this
court.
MONDRAGÓN v. HOLDER 7
At the same time that he filed his first petition for review,
Mondragón also filed a motion with the Board to reopen and
reconsider its decision, now supported by his affidavit, in
which he stated that during the encounter leading to his 1996
conviction, he was not the aggressor and that any assault was
not violent. The affidavit described in detail the incident giv-
ing rise to the charge and stated that he was merely taking
"this man by one arm to move him away from my car, just
like you would take your child by the arm across the street."
He asserted that he "did not hurt him. I didn’t hit him, and
there were no injuries. I did not do anything violent at all."
The Board denied Mondragón’s motion and his request that
"his own personal account of what occurred should be consid-
ered along with the record of conviction." From the Board’s
ruling, Mondragón filed his second petition for review.
Both petitions for review are now before us.
II
Mondragón contends first that the retroactive application of
IIRIRA § 321(a)(3) (defining "aggravated felony" to be a
crime of violence for which the term of imprisonment is at
least one year) "violates bedrock constitutional principles of
fairness and due process." He emphasizes that at the time he
pleaded guilty to Virginia assault and battery, "his conviction
[was not an aggravated felony as defined by the INA and]
would not have precluded him from cancellation of removal."
Only by applying IIRIRA § 321 retroactively is he denied the
possibility of relief. Although he does not rest his retroactivity
argument on any specific violation of the Due Process Clause,
he argues, relying on INS v. St. Cyr, 533 U.S. 289 (2001), that
the application of amendments made to the INA after he
pleaded guilty violates "[e]lementary considerations of fair-
ness," as individuals should "have an opportunity to know
what the law is and to conform their conduct accordingly."
(Quoting St. Cyr, 533 U.S. at 316 (internal quotation marks
8 MONDRAGÓN v. HOLDER
and citation omitted)). He thus attempts to build his due pro-
cess claim on St. Cyr, reasoning:
Like the St. Cyr respondent, at the time Mr. Mondra-
gón entered his guilty plea, it would not have ren-
dered him ineligible for relief from deportation.
Thus, as the Court reasoned in St. Cyr, applying his
1996 guilty plea to retroactively strip Mr. Mondra-
gón of eligibility for cancellation of removal would
contravene established principles of fair notice,
repose, informed decision-making, and reasonable
reliance on the law—principles that serve as a bed-
rock of the United States judicial system and founda-
tional precepts of the rule of law.
Mondragón’s argument makes a strong claim to fairness
and, at the same time, implicitly provides sharp criticism of
Congress in making its choice to apply its 1996 amendment
to the definition of "aggravated felony" retroactively. But his
argument falls short of demonstrating a violation of the Due
Process Clause.
It is uncontroverted that Mondragón entered the United
States illegally and is therefore removable. See 8 U.S.C.
§ 1182(a)(6)(A)(i). But Mondragón sought to avoid removal
by invoking the relief of cancellation of removal under
NACARA § 203. Relief under NACARA is given to a quali-
fying alien in the discretion of the Attorney General, and no
matter how strong and appealing an alien is able to make his
case, relief is "not a matter of right under any circumstances,
but rather is in all cases a matter of grace." Jay v. Boyd, 351
U.S. 345, 354 (1956) (emphasis added). Mounting a success-
ful due process challenge to the Executive Branch’s exercise
of discretion is a difficult undertaking. As Justice Scalia
observed in his dissent in St. Cyr:
The furthest our cases have gone in imposing due
process requirements upon analogous exercises of
MONDRAGÓN v. HOLDER 9
Executive discretion is the following. (1) We have
required "minimal procedural safeguards" for death-
penalty clemency proceedings, to prevent them from
becoming so capricious as to involve a "state official
flipp[ing] a coin to determine whether to grant clem-
ency" . . . [and] (2) [w]e have recognized the exis-
tence of a due process liberty interest when a State’s
statutory parole procedures prescribe that a prisoner
"shall" be paroled if certain conditions are satisfied.
533 U.S. at 345-46 (Scalia, J., dissenting) (first alteration in
original); see also Mohammed v. Ashcroft, 261 F.3d 1244,
1251 (11th Cir. 2001) (holding that the alien has "no
constitutionally-protected right to discretionary relief from
removal, and therefore cannot—at least in these
circumstances—claim a substantive Due Process violation
based upon Congress’s decision in IIRIRA to make a broader
class of aliens ineligible for this relief"); Huicochea-Gomez v.
INS, 237 F.3d 696, 700 (6th Cir. 2001) (noting that, in the
context of a claim of ineffective assistance of counsel, there
is no constitutionally protected liberty interest infringed by
denying cancellation of removal). Indeed, the Constitution
would not prohibit Congress from eliminating all discretion-
ary authority to give relief to illegal aliens who commit aggra-
vated felonies. This is indicative of the well-established
proposition that "[a] constitutional entitlement [i.e., one pro-
tected by the Due Process Clause] cannot ‘be created—as if
by estoppel—merely because a wholly and expressly discre-
tionary state privilege has been granted generously in the
past.’" Conn. Bd. of Pardons v. Dumschat, 452 U.S. 458, 465
(1981) (quoting Leis v. Flynt, 439 U.S. 438, 444 n.5 (1979)).
Even when the discretion of the Executive is not at issue,
Congress may, consistent with the Due Process Clause, alter
rights and responsibilities retroactively so long as it has a
rational basis for doing so. See, e.g., Gen. Motors Corp. v.
Romein, 503 U.S. 181, 191 (1992) (upholding the retroactive
effect of economic legislation that had a "legitimate legisla-
10 MONDRAGÓN v. HOLDER
tive purpose furthered by rational means") (citing Pension
Benefit Guaranty Corp. v. R.A. Gray & Co., 467 U.S. 717,
730 (1984)); see also United States v. Yacoubian, 24 F.3d 1,
7-8 (9th Cir. 1994) (applying rational basis test to decide
whether retroactive application of a provision of the INA vio-
lates an alien’s due process rights); Hamama v. INS, 78 F.3d
233, 235-36 (6th Cir. 1996) (same).
There is little question that in enacting a new definition of
"aggravated felony" and making it retroactive, Congress had
a rational basis for doing so. By imposing a stiffer require-
ment for discretionary relief and making it retroactive, Con-
gress was implementing its policy of increasing the protection
of American society by reducing benefits to illegal aliens who
commit aggravated felonies. See Kuhali v. Reno, 266 F.3d 93,
111 (2d Cir. 2001) (rejecting a due process challenge to
IIRIRA § 321, finding that Congress had a "legitimate interest
in protecting society from the commission of aggravated felo-
nies" and deporting those aliens "is a rational means of fur-
thering that interest"); Cordes v. Gonzales, 421 F.3d 889, 895-
96 (9th Cir. 2005) (same), rev’d for lack of jurisdiction sub
nom. Cordes v. Mukasey, 517 F.3d 1094 (9th Cir. 2008); see
also Lovan v. Holder, 574 F.3d 990, 997 (8th Cir. 2009);
Ahdab v. Gonzales, 189 F. App’x 73, 78-79 (3d Cir. 2006);
Lopez-Elias v. Reno, 209 F.3d 788, 793 n.12 (5th Cir. 2000).
For these reasons, it is not surprising that we have found no
decision that has held that IIRIRA § 321(c)’s retroactive
application of the new definition of "aggravated felony" is
unconstitutional.
Despite—or perhaps because of—the minimal protections
afforded by the Due Process Clause in this area, Mondragón
urges us, based on St. Cyr, to evaluate independently the
injustice imposed by this retroactive statute. But St. Cyr does
not advance his case. Although the facts in St. Cyr were much
like those here, its holding was confined to a statutory inter-
pretation of an ambiguous provision of the INA. By its own
MONDRAGÓN v. HOLDER 11
terms, St. Cyr limits its applicability to those situations where
Congress leaves the issue of retroactivity unresolved.
Enrico St. Cyr, a lawful permanent resident, pleaded guilty
in state court to a charge of selling a controlled substance, and
his conviction made him deportable. See St. Cyr, 533 U.S. at
293. The government maintained that St. Cyr was ineligible
for a waiver of deportation due to the retroactive application
of a provision adopted after his guilty plea. St. Cyr contended
that at the time he pleaded guilty, he would have been eligible
for a waiver of deportation at the discretion of the Attorney
General and that IIRIRA’s subsequent amendment of the INA
to withdraw that discretion was not retroactively applicable.
See id.
The Supreme Court agreed with St. Cyr, holding that the
government impermissibly construed the ambiguous statutory
provision to be retroactive. The Court’s analysis was
expressly predicated on the ambiguity of the provision at
issue. See id. at 314 ("The absence of a clearly expressed
statement of congressional intent also pervades our review of
the merits of St. Cyr’s claim"). Thus, the Court’s decision was
confined to an interpretation of the statute at issue. The Court
recognized that if Congress had been clear about its intent to
make the statute retroactive, such clearly expressed intent
would have prevailed and overcome the general presumption
against the retroactive application of statutes. See id. at 316
("Despite the dangers inherent in retroactive legislation, it is
beyond dispute that, within constitutional limits, Congress has
the power to enact laws with retrospective effect").
Here, we do not face the situation presented in St. Cyr.
Congress stated clearly that IIRIRA § 321 applies retroac-
tively, see IIRIRA § 321(c) (providing that the new definition
of "aggravated felony" applies "to actions taken on or after the
date of enactment of this Act, regardless of when the convic-
tion occurred" (emphasis added)), and Mondragón does not
contend otherwise. Thus, St. Cyr, because it addresses only
12 MONDRAGÓN v. HOLDER
how to construe an ambiguous provision, provides no service
in the face of this unambiguous provision.
Finally, Mondragón contends that the statute’s retroactivity
violates the Sixth Amendment. He argues that "the retroactive
application of IIRIRA § 321(a)(3) . . . effectively deprived
him of effective assistance of counsel during the plea-
bargaining process in his 1996 case." (Citing Lafler v. Coo-
per, 132 S. Ct. 1376, 1384 (2012)). It is not clear to us, how-
ever, that Mondragón’s trial counsel could have been
ineffective in the circumstances of this case. To be sure, in
Padilla v. Kentucky, 130 S. Ct. 1473, 1486 (2010), the
Supreme Court held that the Sixth Amendment requires a
criminal defendant’s counsel to "inform her client whether his
plea carries a risk of deportation." But this duty has not been
made retroactive. See United States v. Mathur, 685 F.3d 396
(4th Cir. 2012). Moreover, at the time Mondragón pleaded
guilty, his conviction did not carry any risk of deportation
since it was under the five-year threshold of the pre-IIRIRA
definition of "aggravated felony."
But whatever argument that Mondragón could make to
challenge the performance of his counsel during his prior con-
viction, such argument is not one that we can consider years
after his prior conviction became final. See Custis v. United
States, 511 U.S. 485, 497 (1994) (rejecting a defendant’s
challenge during sentencing to the use of a prior conviction
based on a claimed ineffective assistance of counsel during
the course of that conviction).
In Custis, the Court advanced several grounds for refusing
to reopen prior convictions to determine whether the defen-
dant there received ineffective assistance of counsel. It noted
that the Armed Career Criminal Act of 1984 ("ACCA"),
which provides for an enhanced sentence based on prior qual-
ifying convictions, "focuses on the fact of the conviction and
nothing suggests that the prior final conviction may be subject
to collateral attack for potential constitutional errors before it
MONDRAGÓN v. HOLDER 13
may be counted." 511 U.S. at 491 (emphasis in original). In
addition, the Court highlighted jurisprudential and practical
reasons for precluding a defendant subject to ACCA’s
enhancement from using the federal sentencing forum to gain
review of state convictions. See id. at 497. Explaining the
Court’s recitation of the practical difficulties of reopening
prior proceedings to evaluate the performance of counsel, we
have said:
The [Custis] Court concluded that "Congress did not
prescribe and the Constitution does not require such
delay and protraction of federal sentencing process."
Such review would burden the district courts with
the task of "rummag[ing] through frequently nonex-
istent or difficult to obtain state court transcripts or
records that may date from another era, and may
come from any one of the 50 states." The Court also
acknowledged the "interest in promoting the finality
of judgments," which applies "with at least equal
force" in the sentencing context as it does in a
habeas corpus action.
United States v. Bacon, 94 F.3d 158, 162-63 (4th Cir. 1996)
(internal citations omitted).
The same reasoning that led Custis to limit collateral
attacks on prior convictions used for sentencing purposes has
led the Supreme Court, as well as lower courts, to apply a
similar limitation in habeas proceedings challenging a sen-
tencing enhancement. See Daniels v. United States, 532 U.S.
374, 382-83 (2001) ("The presumption of validity that
attached to the prior conviction at the time of sentencing is
conclusive, and the defendant may not collaterally attack his
prior conviction through a motion under § 2255"); Lacka-
wanna Cnty. Dist. Attorney v. Coss, 532 U.S. 394, 403-04
(2001) ("If that [state] conviction is later used to enhance a
criminal sentence, the defendant generally may not challenge
the enhanced sentence through a petition under § 2254 on the
14 MONDRAGÓN v. HOLDER
ground that the prior conviction was unconstitutionally
obtained"). Indeed, the same reasoning has also led courts to
apply Custis to the immigration context. See, e.g., Drakes v.
INS, 330 F.3d 600, 604 (3d Cir. 2003) ("There is no meaning-
ful difference between a collateral attack on an expired state
conviction underlying removal proceedings and a collateral
attack on an expired state criminal conviction underlying an
enhanced sentence"); Taylor v. United States, 396 F.3d 1322,
1330 (11th Cir. 2005) (same).
The same theoretical and practical concerns that animate
this entire line of cases are present here. First, NACARA
focuses on the fact of conviction in precluding eligibility for
relief from removal, just as the ACCA was observed to do in
Custis. See 511 U.S. at 490-91. Second, there is a strong need
for the finality of convictions as they relate to immigration
consequences. See Daniels, 532 U.S. at 381. Finally, the same
practical concerns that favored precluding the reopening of a
prior conviction under the Custis line of cases applies here.
See id. at 379.
In short, whether Mondragón lodges his argument on his
claim that counsel was in fact ineffective at the plea hearing
or should be deemed ineffective by operation of a retroactive
statute, we reject his Sixth Amendment challenge.
At bottom, we conclude that IIRIRA § 321(c)’s retroactive
application of the revised definition of "aggravated felony"
survives Mondragón’s constitutional challenges.
III
Mondragón also contends that the Board erred in denying
him the right to present evidence of his conduct of conviction
to demonstrate that his prior conviction was not for a crime
of violence. More particularly, he challenges the BIA’s use of
a modified categorical approach, which limited its consider-
ation to the record of conviction.
MONDRAGÓN v. HOLDER 15
Mondragón acknowledges that he carries the burden of
demonstrating his eligibility for relief from removal. He also
acknowledges that when the modified categorical approach is
used, he is unable to demonstrate that his conviction for
assault and battery was nonviolent. He argues that because the
burden of proof rests on him, the evidentiary limitations
inherent in the categorical and modified categorical
approaches should not apply. He reasons that the policies
underlying these approaches may be suited for the circum-
stances when the government bears the burden of proof, but
those policies do not support the use of these approaches in
a proceeding such as this, where the alien bears the burden of
proof:
[A]pplying the categorical approach to cases such as
Mr. Mondragón’s, necessarily means that any defi-
ciencies in the record are resolved in favor of the
Government, making it legally impossible for appli-
cants such as Mr. Mondragón with inconclusive
records of conviction to meet their burden of proof
through no fault of their own.
Moreover, he claims that the application of a modified cate-
gorical approach deprives him of the statutorily granted right
to present evidence on his own behalf. See 8 U.S.C.
§ 1229a(b)(4)(B).
We begin with an understanding of the statutory context.
The government bears the burden of showing removability by
clear and convincing evidence. 8 U.S.C. § 1229a(c)(3)(A); see
also Salem v. Holder, 647 F.3d 111, 114 (4th Cir. 2011). And
the burden to demonstrate eligibility for discretionary relief
from removal rests on the alien seeking the relief. 8 U.S.C.
§ 1229a(c)(4)(A).
In this case, Mondragón seeks discretionary relief from
removal under NACARA and therefore had to carry the bur-
den of demonstrating his eligibility. Because he had a prior
16 MONDRAGÓN v. HOLDER
conviction for assault and battery that put in question his eli-
gibility for relief, he had to show that the conviction was not
for an "aggravated felony" as defined in the INA. See
NACARA, Pub. L. No. 105-100, § 203(b), 111 Stat. 2160,
2198; see also 8 C.F.R. § 1240.66(a) ("To establish eligibility
for special rule cancellation of removal, the applicant . . .
must not have been convicted of an aggravated felony");
Salem, 647 F.3d at 114. An "aggravated felony" in the INA
includes a crime of violence that is punishable by a term of
imprisonment of at least one year. See 8 U.S.C.
§ 1101(a)(43)(F); 18 U.S.C. § 16. Inasmuch as a "crime of
violence" involves the use of "violent force, that is, force
capable of causing physical pain or injury to another person,"
United States v. White, 606 F.3d 144, 153 (4th Cir. 2010)
(quoting Johnson v. United States, 130 S. Ct. 1265, 1271
(2010)), Mondragón therefore had the burden of showing that
his prior conviction was not for a crime involving the use of
"force capable of causing physical pain or injury to another
person."
In January 1996, Mondragón pleaded guilty to "misdemea-
nor" assault and battery in the Virginia General District Court,
which was punishable by up to one year’s imprisonment. See
Va. Code Ann. §§ 18.2-57, 18.2-11. He was sentenced to one
year’s imprisonment, and the sentence was suspended. The
record of his conviction only reveals that Mondragón pleaded
guilty and that he assaulted and battered Jamship Kashani, in
violation of § 18.2-57, without giving further detail. Because
the crime of conviction could cover conduct that was violent
or nonviolent, it cannot be ascertained from this record of
conviction whether the conviction was for a crime of vio-
lence.
We have previously concluded that the presentation of an
inconclusive record of conviction, such as in this case, is
insufficient to meet an alien’s burden of demonstrating eligi-
bility for cancellation of removal. See Salem, 647 F.3d at 116.
Thus, the government argues that because Mondragón has
MONDRAGÓN v. HOLDER 17
presented only an inconclusive record of conviction, his peti-
tion for discretionary relief should likewise fail.
But Mondragón points to other language in Salem—that the
Salem petitioner "made no attempt to offer additional evi-
dence to the IJ beyond the record of conviction"—to justify
the admission of additional evidence in this case. 647 F.3d at
119. And in this case, Mondragón proffered his affidavit
describing the events that led to his arrest and conviction. In
the affidavit, he stated in some detail his encounter with Jam-
ship Kashani:
I wasn’t going to get aggravated, because I had
always been taught to respect people older than me.
But I needed to leave, and this was getting ridicu-
lous. I took this man by one arm to move him away
from my car, just like you would take your child by
the arm across the street, and he was resisting, but I
pulled him away from my car door so I could get in.
I walked him about ten feet away from my car. Then
I got in my car and I left. I also locked the doors
right away, to protect myself from this crazy, scary
man. . . . That was it. I did not hurt him. I didn’t hit
him, there were no injuries.
Even though Mondragón’s call for a more expansive evi-
dentiary inquiry rings with the tone of fairness, it nonetheless
fails to address the many reasons that support the BIA’s use
of the modified categorical approach. Were we to agree with
Mondragón, we would have to require the IJ to consider not
only Mondragón’s evidence about his conduct leading to his
assault and battery conviction, but also evidence that the gov-
ernment might be able to retrieve about the incident. This
could well include testimony from the victim and witnesses to
the assault. The judge would then be put in the position of
retrying the assault and battery case, which had been disposed
of more than 10 years earlier. Aside from the overburdening
complications of retrying a prior case, expanding the current
18 MONDRAGÓN v. HOLDER
case to such a degree would inevitably prove to be unfair to
one party or the other because of the loss of evidence, witness
testimony, and memory.
Moreover, while Mondragón’s conviction was based on his
guilty plea, the accommodation that Mondragón seeks in this
case would also apply if he had been convicted by a jury. In
either case, the IJ would then be put in the position of redeter-
mining the facts of conviction that had previously been deter-
mined by either a guilty plea or a jury, undermining the
finality of prior convictions.
In the face of these perils, it is significant that Congress, in
enacting provisions of the INA, did not rest disqualification
from discretionary relief on the facts of an alien’s conduct
underlying a prior qualifying crime. Rather, it disqualified an
alien who was convicted of a qualifying crime. The fact of
conviction is a more limited fact than are the facts of conduct
underlying the conviction, and in resting disqualification on
the conviction of a qualifying crime and not on the conduct
of conviction, Congress adopted a categorical approach that
turns on the fact of conviction and the elements of the crime.
These considerations led the Supreme Court to adopt the
categorical and modified categorical approaches in the con-
text of criminal sentencing when determining whether to
enhance a sentence based on a prior conviction. See Taylor v.
United States, 495 U.S. 575 (1990); Shepard v. United States,
544 U.S. 13 (2005).
First, the Taylor Court found that the "language of [the
Armed Career Criminal Act] generally support[ed] the infer-
ence that Congress intended the sentencing court to look only
to the fact that the defendant had been convicted of crimes
falling within certain categories." 495 U.S. at 600. That is,
Congress sought to give effect to any conviction that fell
within certain categories—i.e., violent crimes—for purposes
of enhancing sentences. In the immigration context, Congress
MONDRAGÓN v. HOLDER 19
did something similar. It gave effect—ineligibility for discre-
tionary relief—to convictions that fell within the same cate-
gory, "violent crimes." See NACARA § 203; 8 C.F.R.
§ 1240.66(a); 8 U.S.C. § 1101(a)(43). The language in these
statutes gives effect not to the underlying conduct, but to the
fact of conviction and the elements of the crime.
Second, the Court in Taylor found that "the legislative his-
tory of the enhancement statute showed that Congress gener-
ally took a categorical approach to predicate offenses." 495
U.S. at 601. The plain language of the "aggravated felony"
class of immigrants, likewise, manifests Congress’ categorical
approach. In prohibiting aliens convicted of aggravated felo-
nies (i.e., violent crimes for which punishment was at least
one year) from receiving discretionary relief, Congress neces-
sarily targeted that category. Moreover, with respect to the
immigration laws, Congress has been particularly active by
altering the size of that category. See IIRIRA § 321(a)(3)
(reducing the sentence term from five years to one year in the
definition of "aggravated felony").
Finally, Taylor limited its review to the record of convic-
tion given "the practical difficulties and potential unfairness
of a factual approach" that would go behind the conviction.
495 U.S. at 601. The Court noted that a categorical approach
would prohibit "an elaborate factfinding process regarding the
defendant’s prior offenses." See id. at 601. These concerns are
particularly acute in the immigration context, given the possi-
bly lengthy periods of time since a conviction and the lack of
other evidence available to the immigration judge. Thus, lim-
iting review to the record of conviction allows "sentencing
courts [to] avoid conducting ‘mini-trials’" that would create
unreliable and time-consuming wastes of judicial resources.
United States v. Spence, 661 F.3d 194, 198 (4th Cir. 2011).
It is thus apparent that the factors embraced by the Supreme
Court in Taylor are not relevant solely to criminal sentencing
statutes. Rather, the concerns expressed there are also relevant
20 MONDRAGÓN v. HOLDER
to the analysis of any statute that makes the fact of a convic-
tion of a specified category of crime essential to application
of the statute. Indeed, for that very reason, we have applied
the modified categorical approach of Taylor and Shepard to
the INA. See Soliman v. Gonzales, 419 F.3d 276, 284 (4th
Cir. 2005); see also Gertsenshteyn v. U.S. Dep’t of Justice,
544 F.3d 137, 143 (2d Cir. 2008) ("We have adopted a ‘cate-
gorical approach’ to deciding whether a crime of conviction
fits within the definition of ‘aggravated felony’ in
§ 1101(a)(43), thereby rendering an alien removable under
§ 1227(a)(2)(A)(iii)"). And we conclude that the BIA was
correct in applying it here.
Mondragón also contends that a modified categorical
approach abridges his statutory right to present evidence on
his own behalf. See 8 U.S.C. § 1229a(b)(4)(B). But Mondra-
gón reads this right too broadly. His right goes only to the
opportunity to present evidence relevant to an issue that is
properly before the immigration judge. Here, that issue is
whether Mondragón’s conviction renders him ineligible for
relief, not the conduct of conviction.
Mondragón was convicted of Virginia assault and battery,
the elements of which are broad and allow for the possibility
that Mondragón was convicted of either a crime of violence
or a crime of nonviolence. See United States v. White, 606
F.3d 144, 148-49 (4th Cir. 2010). And "when the fact of con-
viction and the statutory definition of the offenses are unduly
vague or ambiguous," as is the case with Virginia’s assault
and battery statute, a court can employ the modified categori-
cal approach. Id. at 155 (quoting United States v. Harcum,
587 F.3d 219, 223 (4th Cir. 2009)).
Consequently, Mondragón was statutorily authorized to
present evidence resolving the ambiguity of his conviction in
accordance with the modified categorical approach, using
what are known as Shepard documents. See Shepard v.
United States, 544 U.S. 13, 20-21 (2005). But because Shep-
MONDRAGÓN v. HOLDER 21
ard documents did not exist or were not available, Mondragón
sought to introduce extrinsic evidence about his conduct. But
this evidence was not relevant to demonstrating whether his
prior conviction categorically denied his eligibility for relief
and therefore did not fall within the class of evidence pro-
tected by 8 U.S.C. § 1229a(b)(4).
To press his argument further, Mondragón relies on the
Supreme Court’s decision in Nijhawan v. Holder, 557 U.S.
29, 41-43 (2009), where the Court considered facts extraneous
to those generally considered under the categorical and modi-
fied categorical approaches. But Nijhawan is distinguishable
because its holding relied on statutory factors that focused not
only on the fact of conviction for the crime of fraud but also
on the fact that the fraud crime involved losses greater than
$10,000. But when looking at a statute which turns simply on
whether the defendant or applicant had a prior conviction for
a crime of violence, the focus remains on the fact of convic-
tion and the elements of the crime.
At bottom, the government has demonstrated Mondragón’s
removability, and Mondragón has failed to demonstrate that
he is eligible for discretionary relief from removal, as
afforded by NACARA. The burden rests on him, and unfortu-
nately, he was unable to meet it.
For the foregoing reasons, Mondragón’s petitions for
review are
DENIED.