Billeki-Tolosa v. Ashcroft ( 2004 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 Billeke-Tolosa v. Ashcroft No. 02-4395
ELECTRONIC CITATION: 2004 FED App. 0333P (6th Cir.)
File Name: 04a0333p.06 _________________
COUNSEL
UNITED STATES COURT OF APPEALS
ON BRIEF: Barry L. Frager, FRAGER LAW FIRM,
FOR THE SIXTH CIRCUIT Memphis, Tennessee, for Appellant. Deborah Misir, Mary
_________________ Jane Candaux, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellee.
SERGIO WALDMIR X
- _________________
BILLEKE-TOLOSA ,
Petitioner-Appellant, - OPINION
- No. 02-4395
_________________
-
v. >
, R. GUY COLE, JR., Circuit Judge. Petitioner-Appellant
- Sergio Billeke-Tolosa contends that the Board of Immigration
JOHN ASHCROFT , Attorney - Appeals (“BIA”), in affirming the decision of the Immigration
General, - Judge (“IJ’), violated its own rules by peering behind Billeke-
Respondent-Appellee. - Tolosa’s convictions for the lesser offenses of simple assault
- and disorderly conduct to use the underlying allegations of
N sexual impropriety as the basis for denying his petition for an
On Appeal from the Board of Immigration Appeals. adjustment of status. The Government rejoins that we lack
No. A29 971 713. jurisdiction to review the BIA’s decision, and that in any
event, all procedural rules were followed. Because the
Submitted: August 12, 2004 Government’s first contention is refuted by our own
precedent, and its second by that of the BIA, the order of
Decided and Filed: September 30, 2004 removal is VACATED and the case is REMANDED.
Before: MOORE and COLE, Circuit Judges; MARBLEY, I. BACKGROUND
District Judge.* In early 1990, courtesy of a student visa, Billeke-Tolosa
arrived in the United States from his native Chile. Although
the visa required him to enroll at the University of Southern
Mississippi, Billeke-Tolosa subsequently transferred to the
University of Memphis, and eventually retired altogether
from his studies. On June 14, 1995, the Immigration and
Naturalization Service mailed a show cause notice to Billeke-
Tolosa, alleging that his failure to pursue a higher education
*
The Honorable Algenon L. Marbley, United States District Judge for violated the terms of his visa. At a hearing before the IJ in
the Southern District of Ohio, sitting by designation.
1
No. 02-4395 Billeke-Tolosa v. Ashcroft 3 4 Billeke-Tolosa v. Ashcroft No. 02-4395
March 1997, Billeke-Tolosa conceded his deportability, but diagnosis of pedophilia, opined to the IJ that Billeke-Tolosa
asked for an adjustment of his status, such that he could was not a pedophile and presented no danger to children or
lawfully remain in the United States with his wife, a native- society at large. However, the IJ decided against granting the
born American citizen whom he married in 1995. adjustment of status. Although acknowledging that “the
Court cannot go behind [Billeke-Tolosa]’s guilty plea[s]”—in
A hearing on Billeke-Tolosa’s request for adjustment of which he did not admit to any sexual crime—the IJ focused
status commenced in July 2000, and focused primarily on his on the “two convictions stemming from improper touching or
criminal history. In addition to a few traffic offenses (one of improper exchanges of some type with young girls.” As to
which stemmed from charges of driving while impaired by the fact that Billeke-Tolosa had not been convicted of any
alcohol), Billeke-Tolosa had twice been accused of sexual charges involving sex abuse, the IJ noted “the difficulties in
misconduct involving young girls. The first criminal proving [child-sex offenses] to the State. A child would have
complaint alleged that, while at a Christmas party, he “pulled to testify about what had happened several years before.”
down the garment of [a five year old girl], exposing her
genital area, and then unlawfully and intentionally touched Similarly, the IJ rejected the possibility that Billeke-
[her] genital area with his hand.” The second charged that he Tolosa’s landlady had, with the help of a police officer,
exposed himself to the four-year old granddaughter of his concocted the allegations for mischievous ends, wondering
landlady. “would it not have been easier for [the child’s] [grand]mother
to say that [Billeke-Tolosa] exposed himself to her? Then,
Billeke-Tolosa denied both charges. The first allegation, he instead of dragging her child into this, she herself would
maintained, was motivated by a husband who was jealous that simply have gone to Court and testified.” Indeed, counseled
his wife had been socializing with Billeke-Tolosa at the the IJ, “[i]f one is engaged in an act to frame a neighbor, and
Christmas party. The second allegation, he contended, was if the person engaged in the framing is a police officer, the
hatched by his landlady, who was on the losing end of a scheme should expose the actors to as little risk as possible.”
dispute about the rent, and who had access to his criminal
record—and therefore knew that he was vulnerable to charges The IJ ordered Billeke-Tolosa removed, and the BIA
of child-sex abuse—because her daughter was dating a police affirmed without opinion.
officer. Purportedly advised by his attorney in each case that
a “he-said/she-said” confrontation with a young child was a II. ANALYSIS
risky proposition, Billeke-Tolosa admitted to lesser charges
in each instance. In the first, he pled guilty to misdemeanor Billeke-Tolosa argues that in denying his request for
assault, for which he was sentenced to time served and fined adjustment of status, the IJ impermissibly considered
$1,000. In the second, he pled guilty to disorderly conduct, unproven allegations that did not result in convictions, in
and received a suspended sentence based on the court’s violation of BIA precedent. Because the BIA affirmed
determination that “the Defendant is not likely again to without explanation, “we review the IJ’s decision to
engage in a criminal course of conduct.” determine whether the BIA [erred].” Denko v. INS, 351 F.3d
717, 723 (6th Cir. 2003).
Concerned that “where there’s smoke, there’s fire,” the IJ
appointed Linda Shoun, a licensed clinical social worker, to
evaluate Billeke-Tolosa. Shoun, who was trained in the
No. 02-4395 Billeke-Tolosa v. Ashcroft 5 6 Billeke-Tolosa v. Ashcroft No. 02-4395
A. Appellate Jurisdiction save for the Seventh, which has considered the question. See
Mickeviciute v. INS, 327 F.3d 1159, 1164 n.4 (10th Cir.
The Government urges us to stop short of the merits, 2003); Okpa v. INS, 266 F.3d 313, 317 (4th Cir. 2001); Najjar
maintaining that we lack jurisdiction to review the BIA’s v. Ashcroft, 257 F.3d 1262, 1297 (11th Cir. 2001); Bernal-
discretionary denial of a request for status adjustment. The Vallejo v. INS, 195 F.3d 56, 62 (1st Cir. 1999); Kalaw v. INS,
parties agree that the “transitional rules” of the Illegal 133 F.3d 1147, 1150 (9th Cir. 1997); but see Pilch v.
Immigration Reform and Immigrant Responsibility Act of Ashcroft, 353 F.3d 585, 587 (7th Cir. 2003).
1996 (“IIRIRA”) govern our review. One such rule decrees
that “there shall be no appeal of any discretionary decision [to In short, we lack jurisdiction over this appeal—which seeks
grant or deny adjustment of status].” IIRIRA § 309(c)(4)(E). to redress the IJ and BIA’s failure to follow binding BIA
From the Government’s vantage point, because Billeke- rules—only if the IJ was free to ignore the BIA’s binding
Tolosa seeks review of the denial of such discretionary relief, rules. This appears unlikely, given that “[i]t is an elemental
there is simply nothing for us to review. principal of administrative law that agencies are bound to
follow their own regulations.” Wilson v. Comm’r of Social
But Billeke-Tolosa does not challenge the IJ’s exercise of Security, 378 F.3d 541, 545 (6th Cir. 2004). Here, of course,
discretion per se; rather, he argues that the IJ made a legal Billeke-Tolosa is claiming that the BIA ignored its
error in the course of exercising his discretion. A prohibition precedential case law, rather than an agency regulation. But
against the review of a discretionary decision need not extend the Government offers no reason why the BIA should be
to non-discretionary decisions upon which the discretionary bound by its regulations yet free to ignore its own precedents.
decision is predicated. See, e.g., Skutnik v. I.N.S., 128 F.3d See also Hernandez v. Ashcroft, 345 F.3d 824, 846 (9th Cir.
512, 514 (7th Cir. 1997) (Easterbrook, J.) (“[D]oes the 2003) (“A nonprecedential decision by the BIA in defiance of
prohibition of judicial review apply when the [BIA]’s its own precedential case law simply cannot be classified as
decision is said to violate the Constitution because (for discretionary.”). Nor would the BIA itself endorse such a
example) it is based on religion or speech?”). Whether we view, as its own regulations provide that “[e]xcept as Board
may consider Billeke-Tolosa’s challenge—which asserts that, decisions may be modified or overruled by the Board or the
in the course of exercising its discretion, the BIA violated one Attorney General, decisions of the Board, and decisions of the
of its nondiscretionary duties—“depend[s] on whether it is Attorney General, shall be binding on all officers and
best to emphasize the word ‘decision’ (all decisions under employees of the Department of Homeland Security or
§ 244 could be based on an exercise of discretion) or the word immigration judges in the administration of the immigration
‘discretionary’ (only a subset of actions under § 244 reflect an laws of the United States.” 8 C.F.R. § 1003.1(g).
exercise of discretion).” Id.
The consistent application of an agency’s precedents, like
We have chosen the latter course—holding that we may the consistent application of its regulations, serves a critical
review the non-discretionary decisions that underlie purpose: the provision of fair notice to those subject to the
determinations that are ultimately discretionary. See agency’s decisions. As its regulations provide, “the Board,
Valenzuela-Alcantar v. INS, 309 F.3d 946, 949 (6th Cir. through precedent decisions, shall provide clear and uniform
2002) (prohibition on review applies when the specific guidance to the Service, the immigration judges, and the
decision is “discretionary, demanding an exercise of general public on the proper interpretation and administration
judgment”). Our approach is echoed by every other circuit, of the Act and its implementing regulations.” 8 C.F.R.
No. 02-4395 Billeke-Tolosa v. Ashcroft 7 8 Billeke-Tolosa v. Ashcroft No. 02-4395
§ 1003.01(d)(1) (emphasis added). Because the BIA’s Id. The facts in our case are materially the same, suggesting
precedential decisions are expressly prepared for the public’s that the IJ erred. Although the IJ was concerned that Billeke-
consumption, the BIA’s ability to ignore its own precedents Tolosa had a history of sexually abusing young children, he
at will would “tend[] to cause unjust discrimination and deny was not convicted of any such crime, denied committing such
adequate notice’ and consequently may result in a violation of a crime, and was confronted with no independent evidence
an individual’s constitutional right to due process.” Wilson, suggesting otherwise.
378 F.3d at 545 (internal quotations omitted).
Arreguin de Rodriguez does not apply, asserts the
All of this is a roundabout way of saying that the BIA had Government, for three reasons. First, the Government argues
no discretion to ignore its own precedent. Billeke-Tolosa’s that “[i]n that case, the issue was whether or not to provide a
appeal—which asserts that the BIA did so—falls within our discretionary waiver of criminal conduct under the former
purview. Section 212(c) of the INA.” But the uncorroborated
allegations relied upon by the IJ in that case had nothing to do
B. Whether BIA Precedent was Followed with the conviction that prompted the petitioner’s initial
exposure to deportation. Like the IJ in our case, the IJ had
Billeke-Tolosa argues that the IJ’s consideration of the “concluded that this incident was a negative factor to be
unproven allegations of sexual misconduct contravened the considered in exercising discretion.” Id. at 42. In short, that
BIA’s resolution of In re Catalina Arreguin de Rodriguez, the trigger for the deportation proceedings was an unrelated
21 I. & N. Dec. 38 (1995). In that case, on the way to criminal conviction, rather than noncompliance with a student
denying discretionary relief from deportation following a drug visa, is a distinction without a difference.
conviction, the IJ had considered the “applicant’s arrest in
1980 on suspicion of smuggling aliens,” which the petitioner Second, the Government insists that “while the alien in
denied and for which the petitioner was never convicted. Id. Arreguin de Rodriguez was not prosecuted for the conduct
at 42. In reversing the IJ’s decision, the BIA noted that: alleged in the arrest report, petitioner, in contrast, was
prosecuted and pled guilty.” This would certainly be relevant
The Immigration Judge concluded that this incident was if Billeke-Tolosa had pled guilty to the sex crimes with which
a negative factor to be considered in exercising he was initially charged. But Billeke-Tolosa pled to simple
discretion. Just as we will not go behind a record of assault in one case and disorderly conduct in the other; the IJ
conviction to determine the guilt or innocence of an denied relief due to his concern that Billeke-Tolosa was a
alien, so we are hesitant to give substantial weight to an sexual deviant. That he was convicted of lesser crimes is
arrest report, absent a conviction or corroborating beside the point.
evidence of the allegations contained therein. Here, the
applicant conceded that the arrest took place but admitted Third, the Government contends that the above-mentioned
to no wrongdoing. Considering that prosecution was passage was dicta. Dicta, of course, is language that is only
declined and that there is no corroboration, from the “incidental to th[e] holding.” United States v. De John, 368
applicant or otherwise, we give the apprehension report F.3d 533, 539 (6th Cir. 2004). The BIA’s prohibiting
little weight. consideration of unproven allegations that lack any other
corroboration, however, was necessary to its reversal of the
IJ: in that case, the rule it announced undermined the key
No. 02-4395 Billeke-Tolosa v. Ashcroft 9 10 Billeke-Tolosa v. Ashcroft No. 02-4395
basis upon which the IJ had denied the petitioner charges] in Germantown I would have adjusted three
discretionary relief. hours ago, but I want to know more.
Finally, because an agency’s failure to follow its own (emphasis added). Because the IJ suggested that Billeke-
procedural rules will rarely constitute harmless error, see Tolosa would have received discretionary relief, but for
Wilson, 378 F.3d at 547 (“We do not decide the question of factors that the IJ was not permitted to consider, the IJ’s
whether a de minimis violation may qualify as harmless erroneous consideration of these factors was necessarily
error.”), the BIA’s failure to follow its precedent subjected prejudicial.
Billeke-Tolosa to substantial prejudice. There was no
independent evidence of the allegations against him, and III. CONCLUSION
Shoun, the court-retained social worker, concluded that
Billeke-Tolosa probably had not committed either of the For the preceding reasons, the order of deportation is
offenses and likely was not a pedophile. And as noted above, VACATED and the case is REMANDED for additional
when Billeke-Tolosa pled guilty to disorderly conduct, his consideration, consistent with this opinion.
sentence was suspended because the court determined that
“Defendant is not likely again to engage in a criminal course
of conduct.”
Moreover, the record clearly reflects that the IJ’s concerns
about Billeke-Tolosa’s sexual conduct were the driving force
behind the denial of his petition for adjusted status. Even
before Billeke-Tolosa was examined by Shoun, the IJ
announced that:
I’m satisfied at this time that [Billeke-Tolosa] and his
wife are very hard-working. I’m satisfied that they have
a very stable economic life in the United States. I’m
satisfied that they have what appears to be a more marital
relationship. Mrs. [Billeke-Tolosa] has stood by her
husband through a number of run-ins with the police in
a very stressful, difficult situation with a . . . landlady.
I’m satisfied that they pay their taxes. I’m satisfied that
he’s making financial contributions to the community
through paying his taxes. I’m also satisfied that he has
some community involvement. He testified about
helping build this house through a local Presbyterian
Church. If I don’t hear anything about indecent
exposure charges in . . . Nasvhille and [sexual battery