Ivan Aleman v. Eric Holder, Jr. , 541 F. App'x 457 ( 2013 )

Case: 12-60748 Document: 00512401929 Page: 1 Date Filed: 10/09/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 9, 2013
No. 12-60748
Summary Calendar Lyle W. Cayce
Clerk
IVAN RIVERA ALEMAN, also known as Ivan Alejandro River Aleman,
Petitioner
v.
ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A089 941 138
Before KING, BARKSDALE, and HIGGINSON, Circuit Judges.
PER CURIAM:*
Ivan Rivera Aleman, a native and citizen of Mexico, petitions for review
of the Board of Immigration Appeals’ (BIA) dismissing his appeal of the
immigration judge’s (IJ) order that, inter alia, he was not eligible for cancellation
of removal. The IJ based that ruling on Aleman’s conviction for a crime
involving moral turpitude for which a sentence of more than one year in prison
could be imposed.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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No. 12-60748
Aleman contends his prior conviction does not bar his eligibility for
cancellation of removal under 8 U.S.C. § 1229b(b)(1)(C), which provides that a
nonpermanent resident may be eligible for cancellation of removal if he has not
been convicted of an offense under three statutes, including 8 U.S.C. § 1227(a)(2)
(deportable criminal offenses). Aleman claims: § 1229b(b)(1)(C) should be
interpreted to include all of the immigration-related elements in the three
statutes; and the BIA improperly concluded only language regarding the
criminal offense determines whether an offense is “under” one of the three
statutes. Aleman additionally asserts the BIA’s construction of § 1229b(b)(1)(C)
has an impermissible retroactive effect. To the extent that Aleman raised other
claims in the immigration proceedings, he has abandoned them by not
presenting them in his petition for review. See Soadjede v. Ashcroft, 324 F.3d
830, 833 (5th Cir. 2003).
The Government claims we lack jurisdiction to review Aleman’s petition
because he failed to exhaust administrative remedies with respect to his
appellate issues. The Government alternatively maintains Aleman’s claims lack
merit and are effectively foreclosed by this court’s precedent. We pretermit any
jurisdictional concerns because Aleman’s claims lack merit. See Zamora-Vallejo
v. Holder, 378 F. App’x 386, 389 (5th Cir. 2010); Lakhavani v. Mukasey, 255 F.
App’x 819, 822 (5th Cir. 2007); Madriz-Alvarado v. Ashcroft, 383 F.3d 321,
327-28 (5th Cir. 2004).
The BIA’s legal conclusions are reviewed de novo “unless a conclusion
embodies the [BIA]’s interpretation of an ambiguous provision of a statute that
it administers”. Singh v. Gonzales, 436 F.3d 484, 487 (5th Cir. 2006). Such a
conclusion is entitled to deference. Chevron U.S.A., Inc. v. Natural Res. Def.
Council, 467 U.S. 837, 844 (1984).
The first, well-known step in interpreting a statute is to determine
whether Congress has directly spoken to the question at issue. Id. at 842. If so,
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we, as well as the agency, must give effect to the unambiguously expressed
intent of Congress. Id. at 842-43. As is also well established, if an unambiguous
answer is not found, we must determine whether the agency’s interpretation is
based on a permissible construction of the statute. Id. at 843. And, when
deciding the permissibility of an agency’s interpretation, we must consider “only
whether the decision is arbitrary, capricious, or manifestly contrary to the
statute”. Khalid v. Holder, 655 F.3d 363, 366-67 (5th Cir. 2011) (internal
quotation marks and citation omitted).
Previously, our court has rejected contentions virtually identical to those
made by Aleman. Nino v. Holder held the plain language of § 1229b(b)(1)(C)
unambiguously refers to the elements of the offenses set forth in the three
statutes and does not refer to any aspects of immigration law. 690 F.3d 691,
697-98 (5th Cir. 2012) (concluding § 1227(a)(2) provides “a list of the kinds of
offenses which bar cancellation of removal” and “it does not matter when the
offense occurred in relation to the alien’s admission”). Furthermore, because
Nino held there was an unequivocal answer to the meaning of § 1229b(b)(1)(C),
our court declined in Nino to engage in additional Chevron analysis and consider
the BIA’s construction of the statute. Id. at 698.
In the light of our holding in Nino, Aleman’s contentions that
§1229b(b)(1)(C) should be read to include aspects of immigration law and that
the BIA wrongly interpreted the statute by reaching a contrary determination
are effectively foreclosed. Similarly, his claim he should not be subject to the
BIA’s construction of § 1229b(b)(1)(C) because such a construction conflicts with
the BIA’s prior decisions and is impermissibly retroactive is unavailing, given
the holding in Nino that the plain language of § 1229b(b)(1)(C) is unambiguous.
See id. To the extent Aleman contends Nino should be ignored or overturned,
it goes without saying that a panel of this court may not overrule the holding in
an earlier opinion of this court, absent an intervening change in law or an en
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banc or Supreme Court decision. See Burge v. Parish of St. Tammany, 187 F.3d
452, 466 (5th Cir. 1999).
DENIED.
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