Cruz Rodriguez v. Garland ( 2023 )

Case: 21-60722 Document: 00516721566 Page: 1 Date Filed: 04/21/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
April 21, 2023
No. 21-60722
Lyle W. Cayce
Clerk
Marcos A. Cruz Rodriguez,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A088 413 328
Before Barksdale, Southwick, and Higginson, Circuit Judges.
Per Curiam:*
Marcos A. Cruz Rodriguez petitions for review of a decision by the
Board of Immigration Appeals (“BIA”) denying his motion for
reconsideration of its dismissal of his appeal from an order of removal. His
motion as well as his petition here improperly present an issue that he had
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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not earlier raised with the BIA in his appeal. We agree with the BIA’s
resolution of what was validly raised there and DENY the petition.
FACTUAL AND PROCEDURAL BACKGROUND
Marcos A. Cruz Rodriguez is a native and citizen of Honduras. His
mother was granted asylum in 2006, and he entered the United States in 2010
as a derivative beneficiary of that asylum. On August 12, 2011, he committed
a Texas state robbery offense. Ten days later, his status was adjusted to that
of a legal permanent resident. In 2012, Cruz Rodriguez pled guilty to two
counts of robbery in state court. He was sentenced to eight years of deferred
adjudication probation.
In 2012, the federal government charged Cruz Rodriguez as
removable under 8 U.S.C. § 1227(a)(2)(A)(i), which applies to an alien who
is convicted of a crime involving moral turpitude for which a sentence of one
year or longer may be imposed. He sought withholding of removal and
protection under the Convention Against Torture (“CAT”), but the
immigration judge (“IJ”), in August 2013, denied his application and ordered
him removed to Honduras.
In September 2013, Cruz Rodriguez filed a motion for an emergency
stay of removal and a motion to reopen his case. He also sought readjustment
of status with a waiver of inadmissibility based on an approved alien relative
visa petition filed by his lawful permanent resident mother. In October 2013,
the motion to reopen was granted. In March 2014, the IJ granted a
discretionary waiver of inadmissibility under Section 1182(h) and adjusted
his status back to that of a legal permanent resident on the basis of 8 U.S.C.
§ 1255(a).
Cruz Rodriguez later violated the terms of his deferred adjudication.
In November 2015, a state court formally adjudicated him guilty and imposed
a two-year term of imprisonment. The federal government again charged
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him as removable, this time under Section 1227(a)(2)(A)(iii), as an alien who
committed an aggravated felony, namely a crime of violence and a theft
offense for which a term of imprisonment of at least one year had (belatedly)
been imposed. See 8 U.S.C. § 1101(43)(F), (G). Cruz Rodriguez moved to
terminate proceedings in part on the basis of res judicata, arguing that the
Government could not again charge him with removability based on the same
robbery offense. In March 2017, the IJ terminated the removal proceedings.
In September 2017, however, the BIA vacated the IJ’s decision and remanded
the case, finding no res judicata effects from the prior rulings.
On remand, Cruz Rodriguez moved in October 2017 for termination
of the proceedings, again arguing that he was not removable under Section
1227(a)(2)(A)(iii) because he had not been convicted of any crimes after his
status readjustment in March 2014. In November 2018, the IJ ordered Cruz
Rodriguez’s removal. He made four arguments on appeal to the BIA, but he
did not dispute that he was convicted after being admitted to this country.
In June 2019, the BIA dismissed his appeal.
In his first petition for review in this court, Cruz Rodriguez presented
these issues: (1) res judicata barred his second removability charge; (2) he was
denied due process in the removal proceedings; and (3) he had not been
convicted after admission. Cruz Rodriguez v. Garland, 993 F.3d 340, 342–43
(5th Cir. 2021). In April 2021, we denied his petition with respect to the
argument that res judicata prevented the Government’s second removability
charge. Id. at 343–44. We reasoned that a different “nucleus of operative
facts” underlay each removal proceeding because “[t]he Government could
not have previously charged Cruz Rodriguez as an aggravated felon” under
Section 1227(a)(2)(A)(iii) before he was sentenced in 2015, so the
“availability of a new ground of removability was a central fact making res
judicata inapplicable.” Id. at 344. He could not have been removed as an
aggravated felon until his deferred adjudication was terminated and he was
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adjudicated guilty of robbery and sentenced to a term of two years’
imprisonment. Id. at 343–44.
With regards to Cruz Rodriguez’s argument that he was not
removable as an aggravated felon because his conviction pre-dated his
admission, we held that the claim had not been presented to the BIA, was
thus unexhausted and beyond our jurisdiction to consider. Id. at 345–46. The
same default and the same result applied to his argument about due process.
Id. No renewed argument about the latter has been made for our review.
When we issued our opinion in 2021, Cruz Rodriguez’s motion for
reconsideration of the 2019 decision was pending at the BIA. In August 2021,
the BIA denied reconsideration. Cruz Rodriguez timely petitioned this court
for review. 8 U.S.C. § 1252(b)(1).
DISCUSSION
A motion filed with the BIA to reconsider a decision “shall specify the
errors of law or fact in the previous order and shall be supported by pertinent
authority.” 8 U.S.C. § 1229a(c)(6)(C). We review a BIA denial of a motion
for reconsideration under a highly deferential abuse-of-discretion standard.
Gonzales-Veliz v. Barr, 938 F.3d 219, 226 (5th Cir. 2019). “To succeed on a
motion for reconsideration, the petitioner must identify a change in the law,
a misapplication of the law, or an aspect of the case that the BIA overlooked.”
Id. (quotation marks and citation omitted). Legal conclusions are reviewed
de novo. Ramos-Torres v. Holder, 637 F.3d 544, 547 (5th Cir. 2011).
A motion for reconsideration at the BIA is not an opportunity to raise
previously available but overlooked issues. Instead, the limited purpose of a
motion for reconsideration is to show error in the resolution of issues already
presented to the BIA. Omari v. Holder, 562 F.3d 314, 319 (5th Cir. 2009).
“[A] motion to reconsider based on a legal argument that could have been
raised earlier in the proceedings will be denied.” Id. (quoting In re O–S–G-,
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24 I. & N. Dec. 56, 58 (BIA 2006)). An “issue raised for the first time in a
motion for reconsideration that could have been raised earlier has not been
properly presented to the BIA.” Id.Consequently, before analyzing Cruz Rodriguez’s arguments about
error in the denial of reconsideration, we must assure ourselves that his
arguments either were made to the BIA in his original briefing or only became
available after the initial BIA decision. Thus, we start with the issue he
presents to this court, then work back through the earlier proceedings.
The only issue before us is whether “the BIA erred in determining
that Petitioner was ‘[an] alien . . . convicted of an aggravated felony at any
time after admission.’” He argues that his admission was in 2014 while his
conviction was in 2012.1
We now examine Cruz Rodriguez’s arguments in his motion for
reconsideration. He made three different filings — an initial motion and two
supplemental filings. Petitioner’s original motion for reconsideration, filed
in July 2019, alleged error in the BIA decision about res judicata, in denying
relief under CAT, and in resolving his appeal through the decision of one
member of the BIA instead of three. None of that is before us now.
In October 2019, Cruz Rodriguez filed additional authorities. Besides
repeating arguments made in the original motion, he argued that he had not
been convicted of any crime after his 2014 adjustment of status to that of a
lawful permanent resident. Then, in his last supplemental filing in January
2020, he discussed at length an Attorney General decision that postdated the
1
The Government insists his entry as an asylee in 2010 was an admission. Cruz
Rodriguez disagrees. Possibly relevant events after 2010 are an adjustment of status in
2011, an order of removal in 2013, and a new adjustment of status in 2014.
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BIA’s earlier rulings. See Matter of Thomas & Thompson, 27 I. & N. Dec. 674
(A.G. 2019).2 He also repeated his earlier arguments.
With these as his arguments, we must decide, as a threshold matter,
whether in seeking reconsideration Cruz Rodriguez was alleging error in the
resolution of one or more issues he had raised with the BIA before its initial
decision. As we summarized earlier, this court in 2021 found he had not
made an issue initially to the BIA of whether he had been convicted after his
ostensible admission in 2014. Cruz Rodriguez, 993 F.3d at 345. Our opinion
also stated that he had earlier presented but then abandoned the issue. Id.
What may have been the issue’s earliest appearance was in a November 2016
motion to terminate the proceedings pending before an IJ. The lead issue
concerned res judicata, but he also argued that he had not been convicted after
a 2014 admission. The last time (before his motion for reconsideration at the
BIA in October 2019) Cruz Rodriguez presented the issue he presses here
was in his October 2017 motion before an IJ to terminate proceedings. At the
BIA, by not raising the issue he effectively conceded that his conviction
occurred after admission.
The record is large, and perhaps we missed a presentation after 2017.
Key, though, is there is no dispute that Cruz Rodriguez’s appeal to the BIA
did not present the issue of whether he had been convicted after an
admission. Therefore, it was not a proper issue to include in a motion for
reconsideration to the BIA unless for some reason that issue was previously
unavailable to him. Omari, 562 F.3d at 319.
We now examine how the BIA addressed his reconsideration issues.
2
The Attorney General directed the BIA to refer the decisions the BIA had already
made in those two cases to him for review. See Matter of Thomas & Thompson, 27 I. & N.
Dec. 556 (A.G. 2019). That directive was authorized by 8 C.F.R. § 1003.1(h)(1)(i).
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The BIA analyzed Cruz Rodriguez’s argument based on Matter of
Thomas & Thompson. That Attorney General opinion was issued after the
original BIA decision. The Attorney General discussed two immigrants who
had been sentenced in different state courts to one year of imprisonment;
over two decades later, each state court granted each alien’s motion to reduce
his sentence to a day or two less than one year. Matter of Thomas and
Thompson, 27 I. & N. Dec. at 678–79. The question was whether being given
new sentences of less than one year, though the original sentences had been
fully served decades ago, meant their convictions could no longer be
considered as being for aggravated felonies. Id. at 677–79. The Attorney
General held that correction of an actual error in an initial sentence would
cause the new sentence to be the operative one; conversely, if the alteration
of a sentence is for rehabilitative or immigration reasons, the original
sentence establishes the immigration consequences. Id. at 682–83.
We conclude that this Attorney General opinion has little relevance to
the issue Cruz Rodriguez is making now. The Attorney General considered
the different effects of modifications in sentences made, on the one hand, as
a result of an initial error in sentencing, and on the other, for rehabilitative or
immigration purposes. The possibility of a change in Cruz Rodriguez’s
sentence, though, was inherent in the conditions placed on the initial
sentence. That possibility is unrelated to actual error being corrected or a
reduction in a sentence to eliminate immigration consequences.
Certainly, Cruz Rodriguez insists the opinion matters. He argued to
the BIA that the new opinion made clear that the date of his actual conviction
remained in 2012; that the new sentence in 2015 did not result in any new
conviction; that his relevant admission, therefore, was “to lawful permanent
residency” in 2014. None of that explains how the Attorney General opinion
created an issue about the relationship between his admission and his
conviction that had not been available beforehand. No one had cited the BIA
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opinions to us whose analysis was revised by the Attorney General’s opinion.
That is some indication the new opinion is irrelevant. We conclude that at
most, the opinion removed any doubt that the 2015 sentence of imprisonment
can be assigned immigration consequences. Quite differently, the Attorney
General opinion does not affect the analysis of whether it matters that Cruz
Rodriguez’s 2012 conviction occurred prior to a 2014 adjustment of status
but after his entry as an asylee and after his first adjustment of status.
The Attorney General opinion is the only potential, cited change in
the legal landscape that could have — but it did not — make Cruz
Rodriguez’s issue before us newly available. Nonetheless, if the BIA resolved
the previously abandoned issue being raised now, we need to consider the
effect of its addressing the issue. The BIA first held that relying on an
intervening change in the law such as the Attorney General’s opinion did not
meet the standard for reconsideration, which it said was to show an error in
fact or law in the prior decision,3 citing 8 C.F.R. § 1003.2(b)(1). The BIA
then briefly discussed the arguments about res judicata, which the BIA found
to be “substantially similar” to those it had already rejected. In discussing
the Attorney General’s opinion about revising sentences, the BIA stated that
Cruz Rodriguez’s “2012 conviction, for which he was sentenced to deferred
adjudication, was never modified or clarified” by anything that occurred
later. His post-conviction violation of the terms of his parole, though, made
him removable. The BIA explained that the 2012 robbery conviction became
an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(F) & (G) as a “crime
of violence” and a “theft offense” with a term of imprisonment of at least
3
Our standard for a motion for reconsideration at the BIA is at least phrased
differently: the petitioner must “identify a change in the law, a misapplication of the law,
or an aspect of the case that the BIA overlooked.” Gonzales-Veliz, 938 F.3d at 226 (quoting
Zhao v. Gonzales, 404 F.3d 295, 301 (5th Cir. 2005)).
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one year. That holding does not revive the previously abandoned issue about
the conviction being before admission.
Had the BIA gone no further, no further analysis would be needed
here. What created ambiguity was the BIA’s summary:
The final adjudication of guilt, upon which the aggravated
felony charge was based, occurred after the respondent’s
March 14, 2014, re-adjustment of status as a lawful permanent
resident.
Whatever the BIA meant by a “final adjudication of guilt,” a term
without clear relevance to “conviction” or “sentence,” the quoted sentence
is the only statement in the BIA’s denial of reconsideration that potentially
relates to the issue Cruz Rodriguez wrongly sought to raise in his motion for
reconsideration, and now raises in this petition. The fact that the BIA stated
the “final adjudication” occurred after the 2014 adjustment of status could
be seen as implying that his admission was in 2014 and the 2015 sentencing
was the conviction. The Government is concerned about that implication
and urges us to reject that the BIA’s reference to the “final adjudication of
guilt” was a holding that his conviction was in 2015. Instead, the
Government argues, the BIA should be understood to mean, first, that 2012
remained the date of conviction — indeed, we already quoted the BIA’s
statement that the “2012 conviction, for which he was sentenced to deferred
adjudication, was never modified or clarified.” Second, because Cruz
Rodriguez was not sentenced in 2012 to at least a year of imprisonment, the
new sentence in 2015 made him eligible for removal for being convicted of an
aggravated felony.
While we are not sure what the BIA meant by stating the final
adjudication of guilt occurred after 2014, we cannot conclude that this one
sentence both sua sponte resuscitated the issue of whether Cruz Rodriguez
was convicted after admission and resolved it in his favor. The only newly
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available authority was the Attorney General’s opinion. The BIA quite
reasonably stated, in the sentence in its opinion that followed the one we
block-quoted above: “we do not find that the issuance of Matter of Thomas
and Thompson affects the respondent’s removability.” We agree, as the
Attorney General opinion did not change how convictions and admissions are
identified.
The BIA was certainly within its discretion to conclude that Cruz
Rodriguez did not “identify a change in the law, a misapplication of the law,
or an aspect of the case that the BIA overlooked.” Gonzales-Veliz, 938 F.3d
at 226 (quoting Zhao, 404 F.3d at 301). The BIA does not “overlook” a
nonjurisdictional issue that no one presented. The BIA did not err in denying
the motion for reconsideration.
Before concluding, we mention a new opinion from this court that the
Government’s brief cited. The opinion was handed down after the BIA’s
denial of reconsideration and after the petitioner’s opening brief had been
filed. See Diaz Esparza v. Garland, 23 F.4th 563 (5th Cir. 2022). Cruz
Rodriguez discussed it in his reply brief. In the opinion, we considered how
to identify the relevant admission date when there have been multiple
admissions. Id. at 571–75. As our opinion demonstrated, the legal principles
are not new. We reviewed several opinions from this court and sought to
harmonize what might seem to be their dissonant statements; we also relied
on a decade-old BIA decision. Id. at 575 n.87 (citing Matter of Alyazji, 25 I. &
N. Dec. 397, 406, 408 & n.9 (BIA 2011)).
We examine the BIA’s 2011 Alyazji opinion first. It analyzed removal
when the immigrant had been “convicted of a crime involving moral turpitude
committed within five years . . . after the date of admission.” §
1227(a)(2)(A)(i) (emphasis added). The BIA held that
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to ascertain an alien’s deportability under section
237(a)(2)(A)(i) of the Act, we look first to the date when his
crime was committed. If, on that date, the alien was in the
United States pursuant to an admission that occurred within
the prior 5-year period, then he is deportable.
Alyazji, 25 I. & N. Dec. at 406. Our January 2022 Diaz Esparza opinion
applied Alyazji in deciding the applicability of the other subsections of that
statute, namely, the multiple-convictions and aggravated-felony provisions
found in Section 1227(a)(2)(A)(ii) & (iii). See Diaz Esparza, 23 F.4th at 575.4
Our holding was entirely consistent with the existing Alyazji authority.
Arguments based on the previously available issues discussed in the
2011 Alyazji decision were not raised by Cruz Rodriguez at the BIA nor did
the BIA discuss them when denying reconsideration. Therefore, they are not
properly before us.
Petition DENIED.
4
We mention a difference between the moral turpitude subpart (i) relevant in
Alyazji and subparts (ii) and (iii) relevant in Diaz Esparza. § 1227(a)(2)(A)(i)-(iii). The
moral turpitude requirements are that the crime be committed within a certain time period
after admission and that a conviction follows. For multiple crimes and for aggravated
felonies, it is necessary that conviction occur after admission. The latter two subparts also
do not limit the relevance of the convictions to a certain time period after admission.
11