Diaz Esparza v. Garland ( 2022 )

Case: 19-60699 Document: 00516168969 Page: 1 Date Filed: 01/17/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
January 17, 2022
No. 19-60699
Lyle W. Cayce
Clerk
Santiago Alejandro Diaz Esparza,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A096 567 521
Before Owen, Chief Judge, and Clement and Higginson, Circuit
Judges.
Priscilla R. Owen, Chief Judge:
Santiago Alejandro Diaz Esparza seeks review of a Board of
Immigration Appeals (BIA) decision finding him subject to removal under 8
U.S.C. § 1227(a)(2)(A)(ii), which permits the deportation of aliens who
commit two crimes involving moral turpitude (CIMTs) after admission to
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No. 19-60699
the United States.1 Diaz Esparza argues that this court should vacate the
BIA’s decision because res judicata bars the removal proceedings against
him, he has not been convicted of two CIMTs, and his convictions did not
occur after admission. For the reasons that follow, Diaz Esparza’s arguments
are unavailing, and we dismiss his petition for review.
I
Diaz Esparza, a native and citizen of Mexico, entered the United
States without inspection in 1999. He adjusted his status to that of a lawful
permanent resident in 2005. In 2013, Diaz Esparza was convicted of deadly
conduct in violation of Texas Penal Code section 22.05(a). In 2014, Diaz
Esparza was convicted of evading arrest with a motor vehicle in violation of
Texas Penal Code section 38.04.
The following year, the Department of Homeland Security (DHS)
served Diaz Esparza with a notice to appear, charging him with removability
under 8 U.S.C. § 1227(a)(2)(A)(iii). Section 1227(a)(2)(A)(iii) renders
“deportable” aliens convicted of aggravated felonies after being admitted to
this country.2 Finding that Diaz Esparza’s conviction for evading arrest
constituted an aggravated felony, the immigration judge (IJ) sustained the
charge of removability and ordered Diaz Esparza’s removal. The BIA
dismissed Diaz Esparza’s appeal, and this court denied his petition for
review.3 However, the Supreme Court granted certiorari, vacated this
court’s judgment, and remanded the case back to us for additional
consideration in light of Sessions v. Dimaya, which held a portion of the
1
See 8 U.S.C. § 1227(a)(2)(A)(ii).
2
8 U.S.C. § 1227(a)(2)(A)(iii).
3
See Diaz-Esparza v. Sessions, 697 F. App’x 338 (5th Cir. 2017) (per curiam), cert.
granted, vacated, 138 S. Ct. 1986 (2018) (mem.).
2
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statutory definition of “aggravated felony” unconstitutionally vague.4 We
remanded the case to the BIA, and the BIA terminated the removal
proceedings because Diaz Esparza was not removable as charged under
Dimaya.
In 2019, DHS served Diaz Esparza with a second notice to appear, this
time charging him with removability under 8 U.S.C. § 1227(a)(2)(A)(ii).
Section 1227(a)(2)(A)(ii) provides that “[a]ny alien who at any time after
admission is convicted of two or more crimes involving moral turpitude, not
arising out of a single scheme of criminal misconduct . . . is deportable.”5
Diaz Esparza filed a motion to terminate the proceedings. The IJ conducted
a hearing, sustained the charge of removability, and denied the motion to
terminate. Diaz Esparza appealed, but the BIA affirmed the IJ’s decision and
dismissed the appeal. Diaz Esparza then filed a timely petition for review
with this court.
II
We first address Diaz Esparza’s arguments regarding res judicata.
“The doctrine of res judicata applies to administrative adjudications in the
immigration context,” and “[t]he res judicata effect of a prior judgment is a
legal question that we review de novo.”6
Diaz Esparza contends that res judicata bars the present removal
proceedings. Specifically, he asserts that because his conviction for evading
4
Sessions v. Dimaya, ___U.S.___, 138 S. Ct. 1204, 1210-11 (2018); see Diaz-
Esparza, 138 S. Ct. at 1986.
5
8 U.S.C. § 1227(a)(2)(A)(ii).
6
Chavez-Mercado v. Barr, 946 F.3d 272, 275 (5th Cir. 2020) (internal citation
omitted).
3
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arrest was the basis of a prior proceeding under § 1227(a)(2)(A)(iii), this
conviction cannot now support removal under § 1227(a)(2)(A)(ii).
Our precedent forecloses this argument. In Peters v. Ashcroft, we held
that res judicata does not bar a subsequent removal proceeding based on a
conviction that also supported a prior terminated removal proceeding, so
long as the two proceedings occur pursuant to distinct statutory provisions.7
In other words, even when the “second removability charge [is] based on the
same underlying . . . offense as the first,” “so long as the Government relied
on a different provision the second time around, res judicata is no bar.” 8 We
have reaffirmed this principle on multiple occasions.9
Accordingly, “the BIA’s prior decision” that Diaz Esparza was not
removable “has no res judicata effect on the current removal proceeding,”
which “is based on a wholly separate provision.”10 Although both removal
proceedings against Diaz Esparza rely on his conviction for evading arrest,
the second removability charge is based on § 1227(a)(2)(A)(ii)—requiring
conviction of two or more CIMTs—whereas the first removability charge
7
See Peters v. Ashcroft, 383 F.3d 302, 304, 305 n.2 (5th Cir. 2004).
8
Cruz Rodriguez v. Garland, 993 F.3d 340, 344 (5th Cir. 2021) (per curiam).
9
See id. at 344-45; Chavez-Mercado, 946 F.3d at 276 (noting that “we have found
res judicata inapplicable where subsequent removal proceedings were brought under a
different statutory provision” (citing Peters, 383 F.3d at 305 n.2)); see also Diaz De Leon-
Munoz v. Holder, 395 F. App’x 139, 139-140 (5th Cir. 2010) (per curiam) (holding res
judicata inapplicable “because ‘the current removal proceeding pending against [the
petitioner] is based on a wholly separate provision’ than the prior removal proceeding”
(quoting Peters, 383 F.3d at 305 n.2)); Maringo v. Holder, 364 F. App’x 903, 905-06 (5th
Cir. 2010) (per curiam) (holding that res judicata did not bar removal when “the current
basis for [the petitioner’s] removal . . . is a separate provision from the charge in the first
proceeding,” even though “the INS had the opportunity to charge him with the instant
violation in the previous removal proceedings that were terminated in his favor”).
10
Peters, 383 F.3d at 305 n.2.
4
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was based on § 1227(a)(2)(A)(iii)—requiring conviction of an aggravated
felony.11 Because each proceeding has a distinct statutory basis, res judicata
does not bar the present proceeding.12
III
Diaz Esparza also contends that he does not meet the statutory
requirements for deportation because he has not been convicted of two
CIMTs after admission to the United States, as required by
§ 1227(a)(2)(A)(ii).13
A
First, Diaz Esparza asserts that his conviction for deadly conduct is
not a CIMT, so he has not been convicted of two CIMTs.
The Immigration and Nationality Act “does not define the term moral
turpitude and legislative history does not reveal congressional intent
regarding which crimes are turpitudinous. Instead, Congress left the
interpretation of this provision to the BIA and interpretation of its application
to state and federal laws to the federal courts.” 14 When determining whether
an offense is a CIMT, this court thus affords “Chevron deference to the
BIA’s interpretation of the term ‘moral turpitude’ and its guidance on the
11
See 8 U.S.C. §§ 1227(a)(2)(A)(ii), (iii).
12
See Peters, 383 F.3d at 305 n.2; Cruz Rodriguez, 993 F.3d at 344; Chavez-Mercado,
946 F.3d at 276.
13
See 8 U.S.C. § 1227(a)(2)(A)(ii).
14
Munoz-Rivera v. Wilkinson, 986 F.3d 587, 590 (5th Cir. 2021) (per curiam)
(internal quotation marks omitted) (quoting Rodriguez-Castro v. Gonzales, 427 F.3d 316,
319-20 (5th Cir. 2005)).
5
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general categories of offenses which constitute CIMTs.”15 However, we
review de novo whether a particular offense qualifies as a crime of moral
turpitude.16
According to the BIA, moral turpitude refers to:
conduct that shocks the public conscience as being inherently
base, vile, or depraved, and contrary to the accepted rules of
morality and the duties owed between persons or to society in
general. Moral turpitude has been defined as an act which is
per se morally reprehensible and intrinsically wrong, or malum
in se, so it is the nature of the act itself and not the statutory
prohibition of it which renders a crime one of moral turpitude.
Among the tests to determine if a crime involves moral
turpitude is whether the act is accompanied by a vicious motive
or a corrupt mind.17
Moreover, the BIA has observed that “moral turpitude is intrinsic to an
offense that necessarily involves ‘reprehensible conduct’ committed with
some form of ‘scienter,’ such as specific intent, knowledge, willfulness, or
recklessness.”18
When analyzing whether a given crime satisfies the BIA’s definition
of a CIMT, this court employs a “categorical approach.” 19 This analysis
“focuses on the inherent nature of the crime, as defined in the statute . . .
15
Villegas-Sarabia v. Sessions, 874 F.3d 871, 877 (5th Cir. 2017) (quoting Esparza-
Rodriguez v. Holder, 699 F.3d 821, 823 (5th Cir. 2012)).
16
See Mercado v. Lynch, 823 F.3d 276, 278 (5th Cir. 2016) (per curiam).
17
Villegas-Sarabia, 874 F.3d at 877-78 (quoting Hyder v. Keisler, 506 F.3d 388, 391
(5th Cir. 2007)).
18
Matter of Leal, 26 I. & N. Dec. 20, 21 (BIA 2012).
19
Villegas-Sarabia, 874 F.3d at 877.
6
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rather than the circumstances surrounding the particular transgression.”20
Under the categorical approach, “the statute must be read as the minimum
criminal conduct necessary to sustain a conviction.”21
Texas law defines deadly conduct as “recklessly engag[ing] in conduct
that places another in imminent danger of serious bodily injury.”22 An
individual acts recklessly when “he is aware of but consciously disregards a
substantial and unjustifiable risk that the circumstances [surrounding his
conduct] exist or the result [of his conduct] will occur.”23 “‘Serious bodily
injury’ means bodily injury that creates a substantial risk of death or that
causes death, serious permanent disfigurement, or protracted loss or
impairment of the function of any bodily member or organ.” 24
1
Diaz Esparza argues that deadly conduct cannot be a CIMT because
under this court’s decision in Gomez-Perez v. Lynch, CIMTs require a mens
rea more culpable than recklessness. Gomez-Perez held that misdemeanor
assault—a violation of Texas Penal Code section 22.01(a)(1)—was not a
CIMT.25 In that case, “[b]oth sides agree[d] that the Texas assault statute
viewed as a whole does not qualify as a [CIMT] because it applies to acts that
20
Munoz-Rivera v. Wilkinson, 986 F.3d 587, 591 (5th Cir. 2021) (quoting Villegas-
Sarabia, 874 F.3d at 877).
21
Id.
22
Tex. Penal Code § 22.05(a).
23
Tex. Penal Code § 6.03(c).
24
Tex. Penal Code § 1.07(a)(46).
25
See Gomez-Perez v. Lynch, 829 F.3d 323, 325, 327-28 (5th Cir. 2016).
7
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are not intentional.”26 Consequently, the central question in Gomez-Perez
was whether the assault statute was divisible, such that we could apply the
“‘modified categorical approach’ to determine if the offense involved the
intentional conduct that would qualify as a crime of moral turpitude.” 27
Concluding that the statute was not divisible, we held that “Texas’s assault
statute can be committed by mere reckless conduct and thus does not qualify
as a crime involving moral turpitude, which requires a more culpable mental
state.”28
Gomez-Perez, however, is distinguishable. That case dealt with
misdemeanor assault, which encompasses “relatively minor physical
contacts.”29 Deadly conduct, however, requires “imminent danger of
serious bodily injury,”30 i.e., “bodily injury that creates a substantial risk of
death or that causes death, serious permanent disfigurement, or protracted
loss or impairment of the function of any bodily member or organ.” 31
Although both crimes are assaultive offenses, 32 deadly conduct entails a
much greater degree of potential physical harm than misdemeanor assault.
26
Id. at 325; see also id. at 328 (returning to “the general categorical inquiry about
which the parties, the immigration judge, and the Board agree”).
27
Id. at 326.
28
Id. at 328.
29
Esparza-Rodriguez v. Holder, 699 F.3d 821, 824 (5th Cir. 2012) (citation omitted),
overruled on other grounds by Mathis v. United States, 136 S. Ct. 2243 (2016); see Gomez-Perez,
829 F.3d at 325, 328; Tex. Penal Code § 22.01(a)(1) (defining misdemeanor assault as
“intentionally, knowingly, or recklessly caus[ing] bodily injury to another”).
30
Tex. Penal Code § 22.05(a).
31
Tex. Penal Code § 1.07(a)(46).
32
Tex. Penal Code § 22.
8
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These varying degrees of harm are integral to our analysis. To define
a CIMT, an assault statute must generally contain both (1) a “scienter
element . . . requir[ing] . . . ‘evil intent, depraved or vicious motive, or
corrupt mind’” and (2) a conduct element requiring “a meaningful level of
harm, which must be more than mere offensive touching.” 33 Both
elements—“the state of mind and the level of harm”—are critical to the
CIMT inquiry “[b]ecause the term ‘assault’ captures ‘a broad spectrum of
misconduct, [including] relatively minor offenses, e.g., simple assault.’”34
Thus, the BIA has determined that “in the context of assault crimes, . . . as
the level of conscious behavior decreases, i.e., from intentional to reckless
conduct, more serious resulting harm is required in order to find that the
crime involves moral turpitude.”35
The inverse relationship between scienter and harm explains our
holding in Gomez-Perez and renders that case inapplicable here. As explained
above, Gomez-Perez concerned misdemeanor assault, which includes reckless
infliction of de minimis bodily injury.36 Because its low degree of harm was
not offset by a “more culpable mental state,” misdemeanor assault was not a
CIMT.37 Deadly conduct, by contrast, demands an imminent threat of
serious physical injury.38 Because its potential harm is grave, no
33
Esparza-Rodriguez, 699 F.3d at 824 (quoting Matter of Solon, 24 I. & N. Dec. 239,
241-42 (BIA 2007)).
34
Id. (quoting Matter of Fualaau, 21 I. & N. Dec. 475, 477 (BIA 1996); Matter of
Solon, 24 I. & N. Dec. at 242).
35
Solon, 24 I. & N. Dec. at 242.
36
See Gomez-Perez, 829 F.3d 323, 325, 328 (5th Cir. 2016).
37
Id. at 328.
38
See Tex. Penal Code §§ 1.07(a)(46), 22.05(a) (defining deadly conduct and
serious bodily injury).
9
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countervailing, heightened mens rea is necessary for deadly conduct to
constitute a CIMT; recklessness suffices.39
Indeed, outside the context of misdemeanor assault, this court has not
held that a mens rea of recklessness precludes an offense from being a CIMT.
Instead, we have implied that recklessness can be a sufficiently culpable
mental state.40 This implication is consistent with a number of BIA decisions
holding that some crimes committed recklessly are CIMTs.41 Accordingly,
we conclude that reckless offenses may constitute CIMTs.
2
Having so concluded, we turn to whether deadly conduct is a CIMT.
Guiding our analysis are several decisions of our sister circuits holding that
analogous statutes define CIMTs. For instance, in Idy v. Holder, the First
Circuit determined that reckless conduct, defined in New Hampshire as
“recklessly engag[ing] in conduct which places or may place another in
danger of serious bodily injury,” was “inherently” a CIMT because it
entailed “reprehensible conduct” and an “actual awareness and a conscious
disregard for a substantial and unjustifiable risk.”42 Similarly, in Leal v.
39
See Solon, 24 I. & N. Dec. at 242 (describing, for purposes of discerning whether
an assault crime constitutes a CIMT, the inverse relationship between the requisite degree
of harm and scienter).
40
See Rodriguez-Castro v. Gonzales, 427 F.3d 316, 323 (5th Cir. 2005) (observing
that “[a]s a general rule, laws that authorize criminal punishment without proof that the
offender intended or recklessly disregarded the potential consequences of his act do not
define CIMTs” (emphasis added)).
41
See, e.g., Matter of Leal, 26 I. & N. Dec. 20, 23 (BIA 2012); Matter of Ruiz-Lopez,
25 I. & N. Dec. 551, 554 (BIA 2011); Matter of Torres-Varela, 23 I. & N. Dec. 78, 89-90 (BIA
2001); Matter of Franklin, 20 I. & N. Dec. 867, 870 (BIA 1994); Matter of Wojtkow, 18 I. &
N. Dec. 111, 112-13 (BIA 1981); Matter of Medina, 15 I. & N. Dec. 611, 613-14 (BIA 1976).
42
674 F.3d 111, 118-19 (1st Cir. 2012) (internal quotation marks omitted) (quoting
N.H. Rev. Stat. Ann. § 631:3 (2011)).
10
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Holder, the Ninth Circuit held that the BIA reasonably concluded that felony
endangerment under Arizona law—which forbids “recklessly endangering
another person with a substantial risk of imminent death or physical
injury”—is a CIMT.43 Likewise, in Keungne v. United States Attorney
General, the Eleventh Circuit concluded that the Georgia reckless conduct
statute, which criminalized “consciously disregarding a substantial and
unjustifiable risk that [an] act or omission will cause harm or endanger the
safety of the other person,” defined a CIMT.44 Finally, in Knapik v. Ashcroft,
the Third Circuit agreed with the BIA’s determination that New York’s first
degree reckless endangerment statute—which prohibited “engag[ing] in
conduct which creates a grave risk of death to another person” “under
circumstances evincing a depraved indifference to human life”—was a
CIMT.45
Persuaded by this authority, we conclude that deadly conduct is
categorically a CIMT. Deadly conduct requires an offender to take actions
creating “imminent danger” of serious physical injury, i.e., “permanent
disfigurement” or “protracted” bodily “impairment,” to another person.46
This behavior is “reprehensible conduct”47 that “shocks the public
conscience as being inherently base, vile, or depraved, and contrary to the
43
771 F.3d 1140, 1144, 1148-49 (9th Cir. 2014) (quoting Ariz. Rev. Stat. Ann.
§ 13-1201(A) (2006)).
44
561 F.3d 1281, 1286 (11th Cir. 2009) (per curiam) (quoting Ga. Code Ann.
§ 16-5-60(b) (2006)).
45
384 F.3d 84, 86 n.1, 89 (3d Cir. 2004) (internal quotation marks omitted)
(quoting N.Y. Penal Law § 120.25 (2000)).
46
Tex. Penal Code §§ 1.07(a)(46), 22.05(a).
47
Matter of Leal, 26 I. & N. Dec. 20, 21 (BIA 2012).
11
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accepted rules of morality and the duties owed between persons.” 48
Moreover, deadly conduct requires the offender to be “aware of but
consciously disregard[]” the “substantial and unjustifiable risk” of injury his
behavior poses.49 Such conscious disregard of grave harm indicates a
sufficiently “vicious motive or . . . corrupt mind.”50 Deadly conduct meets
the BIA’s definition of moral turpitude and is categorically a CIMT.
Diaz Esparza counters that deadly conduct cannot be a CIMT because
the offense encompasses acts creating a serious risk of harm, but not actual
harm, and thus includes conduct that is not morally turpitudinous. He first
raised this assertion in a Rule 28j letter submitted after the close of briefing,
then referred to it again during oral argument. We ordinarily do not consider
such belated contentions,51 but even if we did, the claim fails. Both the BIA
and other courts of appeal have determined that offenses need not require
actual infliction of physical harm to constitute CIMTs.52 We agree with their
reasoning and conclude that “[w]ith regard to reckless acts, moral turpitude
inheres in the conscious disregard of a substantial and unjustifiable risk of
severe harm or death,” such that Diaz Esparza’s “good fortune in not
48
Villegas-Sarabia v. Sessions, 874 F.3d 871, 877 (5th Cir. 2017) (internal quotation
marks omitted) (quoting Hyder v. Keisler, 506 F.3d 388, 391 (5th Cir. 2007)).
49
Tex. Penal Code § 6.03(c); see Tex. Penal Code § 22.05(a).
50
Villegas-Sarabia, 874 F.3d at 878 (quoting Hyder, 506 F.3d at 391).
51
United States v. Huntsberry, 956 F.3d 270, 282 n.4 (5th Cir. 2020) (“As a general
rule, we do not consider arguments raised for the first time in a . . . 28j letter.”); see also
United States v. Arellano-Banuelos, 912 F.3d 862, 865 n.2 (5th Cir. 2019) (“‘[W]e generally
do not consider contentions raised for the first time at oral argument,’” as “[t]he proper
time to closely examine the record and develop legal defenses is before the completion of
briefing.” (quoting Martinez v. Mukasey, 519 F.3d 532, 545 (5th Cir. 2008))).
52
See Matter of Leal, 26 I. & N. Dec. 20, 25, 26 (BIA 2012); Knapik v. Ashcroft, 384
F.3d 84, 90 n.5 (3d Cir. 2004); Leal v. Holder, 771 F.3d 1140, 1146 (9th Cir. 2014); Keungne
v. U.S. Att’y Gen., 561 F.3d 1281, 1287 (11th Cir. 2009).
12
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injuring or killing anyone does not change the quality of his actions.” 53 In
sum, we hold that deadly conduct is categorically a CIMT; Diaz Esparza’s
arguments to the contrary are unavailing.
B
Next, Diaz Esparza contends that his 2005 adjustment of status to
lawful permanent residency is not an admission, so his convictions did not
occur after he was admitted to the United States. The BIA determined that
under this court’s precedent, Diaz Esparza’s status adjustment does
constitute an admission. We review this determination de novo.54
Diaz Esparza was charged with removability under 8 U.S.C.
§ 1227(a)(2)(A)(ii), which permits the deportation of aliens convicted of two
CIMTs “at any time after admission.”55 Admission means “the lawful entry
of the alien into the United States after inspection and authorization by an
immigration officer.”56 This court has not squarely addressed whether an
adjustment of status is an admission for purposes of § 1227(a)(2)(A)(ii), such
that an individual is removable when he commits two CIMTs after adjusting
his status. We have, however, discussed the relationship between admissions
and adjustments of status in the context of other statutory provisions, leading
to ostensibly conflicting lines of precedent.
In one line of cases—which Diaz Esparza urges us to follow—this
court has concluded that the term “admission” does not encompass
adjustments of status to lawful permanent residency. In Marques v. Lynch, an
53
Knapik, 384 F.3d at 90 n.5; see also Leal, 26 I. & N. Dec. at 26; Leal, 771 F.3d at
1146; Keungne, 561 F.3d at 1287.
54
See Ramos-Torres v. Holder, 637 F.3d 544, 547 (5th Cir. 2011).
55
8 U.S.C. § 1227(a)(2)(A)(ii).
56
8 U.S.C. § 1101(a)(13)(A).
13
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alien lawfully entered on a non-immigrant visa, subsequently adjusted his
status to that of a lawful permanent resident, then was charged with
removability under 8 U.S.C. §§ 1227(a) and 1182(a)(7).57 These statutes
deem removable “any immigrant at the time of application for admission”
“who is not in possession of a . . . valid entry document.”58 We held that
“the documentation requirements of Section 1182(a)(7)”—which apply
“only when an alien is making an application for admission”—“do not apply
to an alien who was previously validly admitted as a nonimmigrant, who is
residing in the United States, and who applies for an adjustment of status.”59
In other words, we determined that in the context of § 1182(a)(7), an
application for an adjustment of status did not “fit within the meaning of” an
application for admission.60 This holding relied in part on our prior decision
in Martinez v. Mukasey.61
Martinez, in turn, held that § 1182(h)—which declares ineligible for
waiver of inadmissibility any alien “previously . . . lawfully admitted for
permanent residence [who] . . . since the date of such admission . . . has been
convicted of an aggravated felony”62—did not apply to an alien who was
convicted of an aggravated felony after adjusting to lawful permanent
resident status several years after his initial lawful entry as a non-immigrant
57
834 F.3d 549, 551, 553-54 (5th Cir. 2016).
58
Id. at 553-54 (quoting 8 U.S.C. § 1182(a)(7)(A)(i)(I)) (quote at 554).
59
Id. at 555, 562.
60
See id. at 558-62 (internal quotation marks omitted) (first quoting 8 U.S.C.
§ 1104(a), which defines “application for admission” as used in § 1182(a)(7); and then
quoting 8 U.S.C. § 1101(a)(13)(A) (quote at 558)).
61
519 F.3d 532 (5th Cir. 2008); see Marques, 834 F.3d at 560.
62
8 U.S.C. § 1182(h).
14
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visitor.63 Discussing the statutory definition of “admission,” we observed
that “admission is the lawful entry of an alien after inspection, something
quite different, obviously, from post-entry adjustment of status.”64 Thus,
both Martinez and Marques recognized a distinction between “admission”
and “adjustment of status,” at least for the purposes of §§ 1182(h) and
1182(a)(7), respectively.
In Deus v. Holder, however, this court perceived no such distinction.
That decision concluded that an alien was “admitted” to the United States
at the time she adjusted to lawful permanent resident status. 65 Deus had
illegally entered the United States as an infant with her mother, then later
adjusted her status to that of a lawful permanent resident. 66 After she was
charged with removability, Deus sought to cancel her removal under 8 U.S.C.
§ 1229b(a), which permits cancellation for aliens who have, inter alia,
“resided in the United States continuously for 7 years after having been
admitted in any status.”67 The BIA determined that Deus did not satisfy the
statutory residence requirement, noting that “because Deus entered the U.S.
illegally, she was not ‘admitted in any status’ until she adjusted her status to
that of a lawful permanent resident.”68 We agreed, observing that
“[b]ecause Deus first entered the U.S. illegally, she was not ‘admitted’ as
63
Martinez, 519 F.3d at 546.
64
Id. at 544 (internal quotation marks omitted).
65
See Deus v. Holder, 591 F.3d 807, 811 (5th Cir. 2009) (noting that the alien
adjusted her status to that of a lawful permanent resident in 1996, and ultimately concluding
that she was “‘admitted’ as that term is statutorily defined as requiring ‘inspection and
authorization by an immigration officer’ . . . in 1996”).
66
Id. at 808.
67
Id. (quoting 8 U.S.C. § 1229b(a)(2)).
68
Id. at 810.
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that term is statutorily defined as requiring ‘inspection and authorization by
an immigration officer’ until she was admitted as a legal permanent resident
in 1996.”69
Our case law regarding the relationship between admissions and
adjustments of status thus creates some tension. Marques and Martinez
determined that the plain text of the INA unambiguously excludes
adjustments of status from the definition of “admission.”70 Deus, however,
concluded that an alien was admitted when she adjusted her status to that of
a lawful permanent resident.71
These seemingly discordant holdings result from a key factual
circumstance: the petitioner’s manner of initial entry into the United
States.72 Marques and Martinez both dealt with aliens who first entered the
country legally on non-immigrant visas.73 Thus, these aliens’ initial entries
constituted “admissions,” i.e., “lawful entr[ies] . . . after inspection and
authorization by an immigration officer,” by virtue of which they were
69
Id. at 811.
70
See Marques v. Lynch, 834 F.3d 549, 562 (5th Cir. 2016); Martinez v. Mukasey,
519 F.3d 532, 546 (5th Cir. 2008).
71
See Deus, 591 F.3d at 811.
72
See Marques, 834 F.3d at 562 (“We hold that . . . the documentation
requirements of Section 1182(a)(7) do not apply to an alien who was previously validly
admitted as a nonimmigrant, who is residing in the United States, and who applies for an
adjustment of status.” (emphasis added)); Deus, 591 F.3d at 811 (“In short, § 1229b(a)(2)
only counts the period of continuous residence in the United States after the petitioner has
‘been admitted in any status.’ Because Deus first entered the U.S. illegally, she was not
‘admitted’ as that term is statutorily defined as requiring ‘inspection and authorization by
an immigration officer’ until she was admitted as a legal permanent resident in 1996.”
(emphasis added)).
73
See Marques, 834 F.3d at 551; Martinez, 519 F.3d at 536.
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present in the United States.74 Deus, by contrast, concerned an alien who
entered the United States “illegally without inspection” and thus was not
“admitted” at the time of entry.75 Diaz Esparza’s situation is analogous to
that of Deus: he initially entered the country illegally, then later adjusted his
status to that of a lawful permanent resident.76
In cases involving aliens who—like Deus and Diaz Esparza—enter the
United States unlawfully then adjust to lawful permanent resident status,
interpreting “admission” to exclude these status adjustments generates
absurdity under certain provisions of the INA. For Deus, interpreting
“admission” to exclude adjustment of status would have left her with no
relevant date by which to measure her length of presence in the United States
and eligibility for cancellation of removal. For Diaz Esparza, such
interpretation would, as the Government points out, “create an absurd result
whereby DHS could not remove an alien like [Diaz Esparza] merely because
the initial entry into the country was unlawful, while DHS could remove an
alien who lawfully entered the country.” Our case law has prefigured this
absurd result and expressed a willingness to address it in future cases.77
Other circuits have confronted this potential absurdity and
interpreted “admission” to encompass adjustments of status obtained by
aliens who first entered illegally. For example, in Estrada-Hernandez v.
74
8 U.S.C. § 1101(a)(13)(A) (defining admission).
75
Deus, 591 F.3d at 808.
76
See id. at 808.
77
See Marques, 834 F.3d at 562 n.4 (“The Government argues that this conclusion,
if extended to every provision in the INA, would create absurd results. We find ourselves
bound by the reasoning of Martinez, which as we have noted here also faced arguments
about absurd consequences. The ramifications of this opinion can be addressed if they arise in
subsequent cases.” (emphasis added)).
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Lynch, the Seventh Circuit rejected an alien’s argument that he was not
removable under § 1227(a)(2)(A)(iii)—which permits removal of aliens who
commit an aggravated felony after admission—because “his adjustment of
status, which occurred after he had entered the United States unlawfully,
d[id] not qualify as an ‘admission.’”78 The court held that, “for an alien who
had entered the United States illegally, an adjustment of status is an
‘admission’ for purpose of § 1227(a)(2)(A)(iii) because the adjustment of
status is the first point at which that individual is lawfully in the United
States. Otherwise, illegal entrants would be exempt from removal and would,
paradoxically, enjoy greater rights than lawful immigrants.”79
Likewise, in Ocampo-Duran v. Ashcroft, the Ninth Circuit rejected the
argument that an alien who entered without inspection but later adjusted to
lawful permanent resident status had not been “admitted,” and was thus not
removable, under § 1227(a)(2)(A)(iii).80 The court disagreed with the
alien’s “overly-narrow interpretation of” the statute, observing that he failed
to explain “why Congress would create a loophole in the removal laws for
aliens who enter the country without inspection, adjust their status, and then
commit aggravated felonies.”81 Accordingly, the Ninth Circuit held that the
alien had been admitted at the time he adjusted his status and thus could be
removed.82 The Fourth Circuit has indicated its receptivity to a similar
approach.83 In sum, other courts have recognized that the manner in which
78
819 F.3d 324, 328 (7th Cir. 2016) (per curiam).
79
Id. (internal citation omitted).
80
254 F.3d 1133, 1134-35 (9th Cir. 2001).
81
Id. at 1135.
82
Id. at 1134-35.
83
See Leiba v. Holder, 699 F.3d 346, 354 (4th Cir. 2012) (recognizing that “for
aliens such as [the petitioner],” “who never entered this country legally but who ha[ve]
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an alien initially entered the United States may inform judicial analysis
regarding whether “admission” includes adjustments of status under various
provisions of immigration law.84
Such context-specific analysis was implicit to our holding in Deus,85
and we extend it here. Interpreting “admission” to exclude Diaz Esparza’s
status adjustment would leave him with no relevant date of admission by
which to assess his removability and thus preclude him from being removed
under § 1227(a)(2)(A)(ii). Put differently, this interpretation creates an
absurdity whereby DHS could not remove aliens who enter unlawfully, adjust
their statuses, then commit multiple CIMTs, but could remove aliens who
commit multiple CIMTs after entering the country lawfully. To avoid this
absurd result, we conclude that, as in Deus, Diaz Esparza was “admitted”
when he adjusted his status to that of a lawful permanent resident in 2005. 86
Diaz Esparza contests this conclusion, arguing that he was
“admitted,” i.e., he lawfully entered the United States after inspection by an
immigration officer, on February 9, 2019. However, even assuming arguendo
adjusted to LPR status,” “it is arguable that the date of their status adjustment should be
used as a proxy for their date of admission to avoid an absurd result” under
§ 1227(a)(2)(A)(iii)).
84
See, e.g., Negrete-Ramirez v. Holder, 741 F.3d 1047, 1055 (9th Cir. 2014)
(Berzon, J., concurring) (“We must apply a plain words interpretation to the statutory
definition of ‘admission’ and ‘admitted’ in the INA when we can sensibly do so. . . . In
some instances, however, such as where there has been no admission of the sort
contemplated by the statute, yet the context requires some trigger date by which to measure
a later event, or where the result of treating an adjustment of status as if there had been no
admission would be absurd, adjustment of status must be treated as admission.”).
85
See Deus v. Holder, 591 F.3d 807, 811 (5th Cir. 2009) (explaining that “[b]ecause
Deus first entered the U.S. illegally, she was not ‘admitted’ as that term is statutorily
defined as requiring ‘inspection and authorization by an immigration officer’ until she was
admitted as a legal permanent resident in 1996”).
86
See id.19
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that Diaz Esparza was admitted in 2019, this admission is irrelevant to the
present removal proceeding. The BIA has determined that when an alien has
multiple dates of admission, the operative date for determining removability
is “the date of the admission by virtue of which the alien was present in the
United States when he committed his crime,” which—for aliens who initially
entered without inspection—includes the date of adjustment to lawful
permanent resident status.87 Diaz Esparza was convicted of deadly conduct
in 2013 and evading arrest in 2014. Thus, even if Diaz Esparza was admitted
in February 2019, he was not present in the United States by virtue of this
admission when he committed his crimes; hence this admission is not
pertinent to his removability.
In sum, we hold that Diaz Esparza’s 2005 adjustment to lawful
permanent resident status constitutes the operative admission for purposes
of this removal proceeding under § 1227(a)(2)(A)(ii). Because his
convictions for deadly conduct and evading arrest occurred after he adjusted
his status, Diaz Esparza has been convicted of two CIMTs after admission to
the United States.88
* * *
As explained above, res judicata does not bar this removal proceeding,
deadly conduct is categorically a CIMT, and Diaz Esparza was admitted to
the United States when he adjusted his status to that of a lawful permanent
resident. Accordingly, we DISMISS the petition for review.
87
Matter of Alyazji, 25 I. & N. Dec. 397, 406, 408 & n.9 (BIA 2011) (quote at 406).
88
See 8 U.S.C. § 1227(a)(2)(A)(ii).
20