Ronald Hernandez v. Eric H. Holder, Jr. , 760 F.3d 855 ( 2014 )

United States Court of Appeals
For the Eighth Circuit
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No. 13-2832
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Ronald Hernandez
lllllllllllllllllllllPetitioner
v.
Eric H. Holder, Jr.
lllllllllllllllllllllRespondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: April 16, 2014
Filed: July 28, 2014
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Before LOKEN and MURPHY, Circuit Judges, and LIMBAUGH,1 District Judge.
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MURPHY, Circuit Judge
Ronald Hernandez entered the United States illegally in 1989, and was placed
in removal proceedings in 2003. His requests for asylum, cancellation of removal
under the Immigration and Naturalization Act (INA), special cancellation of removal
1
The Honorable Stephen N. Limbaugh, Jr., United States District Judge for the
Eastern District of Missouri, sitting by designation.
under the Nicaraguan Adjustment and Central American Relief Act (NACARA),
withholding of removal, and protection under the Convention Against Torture (CAT)
were denied by an immigration judge (IJ). The IJ concluded that his 1989 conviction
for grand theft auto was an aggravated felony making him ineligible for asylum,
cancellation of removal, and special cancellation of removal. She also concluded that
Hernandez was not credible and had failed to meet his burden of proving his
withholding of removal and CAT claims. The Board of Immigration Appeals
affirmed the immigration judge's decision. Hernandez seeks review, arguing that the
IJ and the Board erred by determining that his 1989 conviction was an aggravated
felony and that he was not credible. We deny the petition.
I.
Ronald Hernandez illegally entered the United States in 1989 from his native
El Salvador under the name Jaime de Jesus Huezo. In June 1989 he pled guilty to
grand theft auto in California. He was sentenced to three years probation with the
condition that he spend the first 365 days in county jail. The sentencing form used
by the court shows the presiding judge crossed out the words "Sentenced Imposed as
Follows" and checked a box next to "Proceedings Suspended." The box for
"Probation Granted for a Period of Three Years" was checked, and the box for
"Sentence Is Suspended" was not.
Hernandez was deported immediately following his sentencing so that he was
unable to check in with his probation officer as required under the terms of his
probation. He reentered the United States later that year under his birth name, Ronald
Hernandez, and was granted temporary protected status in 1990. Hernandez was
arrested and sentenced to probation in 1991 for stealing cough medicine for his
family and again in 1994 for stealing shoes for himself. Hernandez was later arrested
in 1998 after neighbors called police to report an argument between him and his wife.
Despite his wife's statement to police that he had not hit her, Hernandez pled guilty
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to battery. His conviction led to the discovery of his 1989 probation violation, and
his probation was revoked. The court then reinstated his probation with the
additional condition that he serve 180 days in jail, of which he served 110 days. His
record contains no other arrests or convictions.
In 1994, Hernandez filed a second application for asylum in which he claimed
his father had been killed in 1985. Later in 2000 an application for special
cancellation of removal stated that his father had died in 1972. Hernandez was placed
into removal proceedings in December 2003, and in March 2004 he conceded his
removability before an immigration judge. The venue of these proceedings changed
from California to Missouri when Hernandez moved his family from Los Angeles to
Kansas City. Subsequently, Hernandez conceded to a second charge of removability
in a 2007 hearing. He then requested asylum, cancellation of removal under the INA,
special cancellation under NACARA, withholding of removal, and protection under
CAT. The IJ ordered Hernandez removed in April 2009, concluding that he was
ineligible for asylum, cancellation of removal, and special cancellation of removal,
and that he had failed to meet his burden for withholding of removal or CAT
protectiont.
Hernandez appealed the decision to the Board in August 2009, asserting errors
in the hearing transcript. The Board remanded with instructions to correct the errors.
The IJ held a new merits hearing in November 2010. At that hearing, Hernandez
testified that he was born in El Salvador in 1968 and that his father had been killed
by the army or government because of his alleged association with forces opposing
the government. Hernandez said that he could not remember the exact date of his
father's death, but he believed that it occurred when he himself was "around 13, 14"
years old. He testified that death threats were pushed under the door of his home for
some time after his father's death and that his mother died a short time later of
depression and grief.
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Hernandez testified that following the death of his parents and the threats, he
sought protection by moving in with a family in El Salvador called the Huezos. The
Huezos provided Hernandez with a new birth certificate bearing a new identity: Jaime
de Jesus Huezo, born March 30, 1970. Hernandez said he continued to receive death
threats at his new home and eventually fled El Salvador for the United States when
he was around 19 years old. Hernandez admitted to entering and being deported from
the United States under the name Jaime Huezo. He explained that following
deportation he reentered the United States under his birth name because "[t]here was
an opportunity to go under . . . temporary protection for Salvadorans [and] I figured
it would be best to do it under my real name." His wife testified that Hernandez first
came into the United States under the Huezo name because that family had been
helping him and that he reentered under the Hernandez name because he had finally
obtained possession of his original birth certificate. Both of his birth certificates were
submitted into evidence, as were his marriage certificate and the birth certificate of
his daughters, both United States citizens. The last name of all persons identified in
the certificates is "Huezo."
Hernandez was asked under cross examination whether he was "ever harmed
in El Salvador prior to . . . coming to the United States for the first time." He
answered that the only time was when he was "about 12 maybe, 13." He "was
arrested for a few days and . . . not physically abused but they were pointing the rifles
at me and threatening to kill me if I didn't tell them what they wanted to hear." When
he was asked whether he reported this incident in any of his asylum applications, he
replied that "I guess I blocked it out. I didn't think it was relevant to anything."
During the hearing, Hernandez provided the death certificate of a person he claimed
was a relative, as well as an article about him and numerous articles on gang violence
in El Salvador.
At the conclusion of the hearing the IJ determined that Hernandez was
ineligible for asylum, cancellation of removal, and special cancellation of removal
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because of his 1989 conviction for grand theft auto. She concluded that because he
had received a "suspended sentence of 365 days in jail and three years of probation"
as punishment for the offense, the conviction was an "aggravated felony" under 8
U.S.C. § 1101(a)(43)(G), barring him from receiving the requested relief. She found
that Hernandez was not credible due to the inconsistent dates he gave for his father's
death, the fact that he reentered the United States under a different name following
his deportation in 1989, and his failure to include the fact of his arrest in El Salvador
on his asylum applications in 1994 and 2000. The IJ concluded that Hernandez failed
to provide corroborating evidence sufficient to overcome his lack of credibility and
that even if he had been credible his claims for asylum, withholding of removal, and
CAT would have failed. The IJ then denied all his claims, and ordered his removal
from the United States. Hernandez appealed to the Board, which adopted the IJ's
findings and conclusions.
Hernandez now files this petition for review, arguing that the Board erred in
determining that he is ineligible for asylum, cancellation of removal, and special
cancellation of removal. He asserts that his 1989 conviction was not an aggravated
felony and that he is eligible for asylum even if it was. He also challenges the IJ's
adverse credibility determinations.
II.
Decisions by the Board are reviewed as the final decision of the agency. Lateef
v. Dep't of Homeland Sec., 592 F.3d 926, 929 (8th Cir. 2010). We review Board
conclusions of law de novo, deferring to its interpretation of immigration statutes and
regulation, id., unless it is "contrary to unambiguous statutory language." Cuadra v.
Gonzales, 417 F.3d 947, 950 (8th Cir. 2005) (citing Chevron, U.S.A., Inc. v. Natural
Res. Def. Council, Inc., 467 U.S. 837, 843–45. If a statute is ambiguous with respect
to a specific question, "the question for the court is whether the agency's answer is
based on a permissible construction of the statute." Chevron, 467 U.S. at 843.
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Although "[j]udicial review is generally precluded in cases involving aliens who are
removable as aggravated felons[,] . . . we retain jurisdiction to review constitutional
claims or questions of law . . . including whether a crime is an aggravated felony."
Armenta-Lagunas v. Holder, 724 F.3d 1019, 1021 (8th Cir. 2013) (internal quotation
marks and citations omitted).
The starting point for a review of the Board's statutory interpretation is the
language of the statute itself. An alien who has been convicted of an "aggravated
felony" is ineligible for asylum, 8 U.S.C. §§ 1158(b)(2)(A)(ii), 1158(b)(2)(B)(i),
cancellation of removal under the INA, 8 U.S.C. § 1227(a)(2)(A)(iii), and special
cancellation of removal under the NACARA, 8 C.F.R. § 1240.61(b). An "aggravated
felony" includes "a theft offense . . . for which the term of imprisonment [sic] at least
one year." 8 U.S.C. § 1101(a)(43)(G). Hernandez concedes that his 1989 conviction
is a theft offense, but he nevertheless contends that it is not an aggravated felony
because he was not sentenced to a term of imprisonment of at least one year. He
argues that California's sentencing system gave the judge a choice either to sentence
him to imprisonment and suspend the sentence in favor of probation or to sentence
him directly to probation. Since the judge opted to place Hernandez on probation
directly, he maintains he was sentenced to probation and not to a "term of
imprisonment."
We have determined that the phrase "term of imprisonment" in
§ 1101(a)(43)(G) is "clarifie[d]" by § 1101(a)(48)(B). United States v. Demirbas, 331
F.3d 582, 584 (8th Cir. 2003) (citing United States v. Tejeda-Perez, 199 F.3d 981,
982 (8th Cir. 1999)). Section 1101(a)(48)(B) states that:
Any reference to a term of imprisonment or a sentence with respect to
an offense is deemed to include the period of incarceration or
confinement ordered by a court of law regardless of any suspension of
the imposition or execution of that imprisonment or sentence in whole
or in part.
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8 U.S.C. § 1101(a)(48)(B). Hernandez concedes that the definition in
§ 1101(a)(48)(B) is broad, but contends that it applies to the more general term
"conviction" appearing in the INA, rather than to "term of imprisonment" in
§ 1101(a)(43)(G). This contention is meritless because "courts that have considered
the issue agree that 8 U.S.C. § 1101(a)(48)(B) . . . applies for the purpose of defining
'term of imprisonment'" as it is used in § 1101(a)(43)(G). Tejeda-Perez, 199 F.3d at
982.
The definition given to "term of imprisonment" by § 1101(a)(48)(B) broadens
the meaning of the phrase in three ways. First, it indicates that the phrase does not
refer only to imprisonment as such, but also more generally to any "sentence with
respect to an offense." It also explains that this general definition includes any
"period of incarceration or confinement ordered by a court of law." Finally, it
provides that the relevant fact for determining a "term of imprisonment" is the period
of incarceration or confinement originally ordered since any suspension of the
"imposition or execution of that imprisonment or sentence" is to be disregarded. A
California court sentenced Hernandez to 365 days incarceration in county jail. Since
there is nothing in the statutory text to indicate that Congress intended to exclude
periods of incarceration ordered as a condition of probation from the definition of
"term of imprisonment," we conclude that the Board did not err in determining that
Hernandez was sentenced to a "term of imprisonment of at least one year."
Hernandez claims several authorities contradict this conclusion. First, he refers
to our opinion in United States v. Lehmann, where we stated that the Supreme Court
has viewed probation as "'not merely a reduced sentence, but a different type of
sentence altogether.'" 513 F.3d 805, 808–09 (8th Cir. 2008) (quoting United States
v. Soperla, 494 F.3d 752, 756 (8th Cir. 2007)). The subject under consideration in
Lehmann was the place of probation in the United States Sentencing Guidelines. We
observed that the Court "emphasized" in Gall v. United States that "'offenders on
probation are subject to several standard conditions that substantially restrict their
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liberty.'" Lehmann, at 809 (quoting Gall, 552 U.S. 38, 48 (2007)). We subsequently
decided that it was substantively reasonable for a district court to sentence a
defendant to six months community confinement as a condition of probation instead
of the 37 to 46 month "term of imprisonment" recommended by the guidelines.
Lehmann, 513 F.3d at 809. Even if this reading of the sentencing guidelines were to
affect our reading of § 1101(a)(48)(B), it would tend to support the view that
probationary jail time is included in the definition of "term of imprisonment." If six
months' confinement in a halfway house is sufficiently restrictive to serve as a
substantively reasonable alternative to a 37 to 46 month prison sentence, then there
would seem to be little ground for arguing that a year's incarceration in county jail
should be treated differently than the same period of incarceration in state prison.
Hernandez next cites decisions by the Eleventh, Tenth, and Fifth Circuits,
which he asserts have concluded that "aggravated felony" excludes offenses where
the offender was sentenced directly to probation, without any prison sentence first
being imposed and then suspended. See United States v. Guzman-Bera, 216 F.3d
1019 (11th Cir. 2000); United States v. Gonzalez-Coronado, 419 F.3d 1090 (10th Cir.
2005); United States v. Mondrago-Santiago, 564 F.3d 357 (5th Cir. 2009); United
States v. Banda-Zamora, 178 F.3d 728 (5th Cir. 1999). Notably, however, Hernandez
was sentenced to serve jail time as a condition of probation, while the offenders in the
cases Hernandez cites were originally sentenced to probation with no jail time at all.
Guzman-Bera, 216 F.3d at 1020 (five years probation, no jail time); Gonzalez-
Coronado, 419 F.3d at 1092 (one to five years probation, no jail time); Mondragon-
Santiago, 564 F.3d at 359 (four years deferred adjudication probation, no jail time);
Banda-Zamora, 178 F.3d at 729 (ten years probation, no jail time). These cases
therefore do not contradict the conclusion that a probationary jail sentence is a "term
of imprisonment."
Hernandez argues that in United States v. Dowling, 962 F.2d 390 (1992), the
Fifth Circuit did decide that probationary confinement is not a "term of
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imprisonment." Although Dowling discussed whether confinement in a halfway
house as a condition of probation is a "term of imprisonment," that case is legally and
factually distinguishable from the one before this court. The issue in Dowling was
whether probation, "no matter how severe the conditions imposed on the offender,"
could be considered a "term of imprisonment" for purposes of determining the
amount of presentence detention credit due under 18 U.S.C. § 3585(b). Id. at 392.
The Fifth Circuit concluded it could not, but only because a "necessary condition to
obtain" such credit "is that the offender must first exhaust his administrative remedies
before the Bureau of Prisons." Id. at 393. Since the Bureau of Prisons does not
supervise probation, a probationer cannot exhaust his or her remedies before the
Bureau, and thus would not be eligible for credit under § 3585(b). Id. No such
administrative considerations are present in this case.
Finally, Hernandez contends that the Board itself decided in Matter of Patel
that confinement in county jail as a condition of probation is not a "term of
imprisonment." In Patel, the Board considered the same California system under
which Hernandez was sentenced, acknowledging that it "provides for alternative
sentences of imprisonment either in the state or the county jail." 15 I & N Dec. 212,
213 (BIA 1975). The offender in that case had been sentenced to "imprisonment in
the State Prison," with the execution of the sentence suspended and the offender
placed on three years probation with six months confinement in county jail as a
special condition. Id. at 213–14. The issue there was whether his offense fell under
the petty offense exception to the "crime of moral turpitude" bar against voluntary
departure. Id. at 213. The INA at the time defined "petty offense" in terms of "'the
punishment actually imposed.'" Id. (quoting the INA § 212(a)(9)). The Board
concluded that imprisonment in state prison was the "punishment actually imposed,"
not incarceration in county jail as a condition of probation. Patel, 15 I & N at 214.
Congress has amended the INA so that the statutory definition of "petty
offense" now depends on the "sentence actually imposed" rather than the
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"punishment." Matter of Castro, 19 I & N Dec. 692, 694 (BIA 1988). Even read with
this new definition, Patel does not contradict the plain meaning of § 1101(a)(48)(B),
and it is distinguishable from Hernandez' case. First of all, Patel concerned the
meaning of "punishment actually imposed" for the purpose of determining whether
a conviction was a "petty offense," whereas this case concerns the meaning of "term
of imprisonment" for the purpose of determining whether a conviction is an
"aggravated felony." The Board in Patel also considered whether the "punishment
actually imposed" was the prison sentence subsequently suspended in favor of
probation. It did not consider whether a probationary jail sentence imposed without
a suspended prison sentence would be the "punishment actually imposed."
Hernandez argues in the alternative that even if his probationary jail sentence
was a "term of imprisonment," it was for less than a year because it was modified to
180 days following his guilty plea to battery in 1998. He cites several cases from
various circuits for the proposition that a sentence imposed following a revocation of
probation is the sentence imposed for the purposes of § 1101(a)(43)(B). We need not
examine these cases, however, because we may not address the argument Hernandez
asserts they support. Neither his brief to the Board nor its decision expressly address
this issue, and we lack jurisdiction to consider an issue not raised on appeal before
the Board. See Martinez Carcamo v. Holder, 713 F.3d 916, 925 (8th Cir. 2013)
(citing 8 U.S.C. § 1252).
Hernandez also asserts that the BIA erred by determining that the aggravated
felony bar applied to his asylum claim. The INS added a regulation in October 1990
which made persons illegally present in the United States ineligible for asylum if
previously convicted of a "particularly serious crime." 8 C.F.R. § 208.13(c)(2)(i)(A).
Federal statute had already established that an "aggravated felony" is a "particularly
serious crime." 8 U.S.C. § 1158(b)(2)(B)(i). Citing a Ninth Circuit opinion,
Kankamalage v. INS, 335 F.3d 858 (9th Cir. 2003), Hernandez asserts that the
"particularly serious crime" regulation was not expressly made retroactive by
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Congress or the Attorney General. Thus, even if his 1989 conviction was an
aggravated felony, Hernandez asserts that aggravated felonies did not become a
"particularly serious crime" barring individuals from asylum until 1990. He contends
that the BIA therefore impermissibly applied the aggravated felony regulation
retroactively to his 1989 conviction.
Statutes are presumed not to apply retroactively "absent a clear indication from
Congress that it intended such a result." INS v. St. Cyr, 533 U.S. 289, 316 (2001).
The Immigration Act of 1990 established a bar to asylum for people with aggravated
felony convictions. See 8 U.S.C. § 1158(b)(2)(A)(ii). One year after the Act's
enactment, Congress passed the Miscellaneous and Technical Immigration and
Naturalization Amendments of 1991 (MTINA), which amended the Immigration Act
so that the aggravated felony bar would apply "to convictions entered before, on, or
after the date of the enactment of this Act and to applications for asylum made on or
after such date." Pub.L. No. 102–232, 105 Stat. 1733. The Sixth Circuit noted that
three circuits have concluded that Congress clearly intended to make this amendment
retroactive, while two others have decided the statute is ambiguous but have deferred
to the Board's interpretation that it is retroactive. Mossaad v. Gonzales, 244 Fed.
Appx. 701, 704 nn. 1–2 (6th Cir. 2007) (surveying cases). No circuits have
determined that the aggravated felony bar is not retroactive. Id.
We join those circuits concluding that Congress intended the aggravated felony
bar to apply to convictions received before the enactment of the MTINA in 1991, and
we conclude further that it thus applies to Hernandez' 1989 conviction. We note that
the Ninth Circuit decision in Kankamalage concluded only that the aggravated felony
bar regulation, 8 C.F.R. § 208.13(c)(2)(i)(A), is not retroactive. See Mossaad, 244
Fed. Appx. at 705 n.3. It did not address whether the statute is. Id. On this point, the
Ninth Circuit had already concluded before Kankamalage that the MTINA
demonstrated Congress' intent "that a party convicted of an aggravated felony is
precluded from obtaining political asylum, regardless of the date of conviction."
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Feroz v. INS, 22 F.3d 225, 227 (9th Cir. 1994). We thus conclude that the BIA did
not err in applying the aggravated felony bar to his 1989 grand theft auto conviction.
Finally, Hernandez challenges the IJ's adverse credibility determinations,
arguing that but for those errors, he would have been entitled to withholding of
removal and protection under CAT. The United States argues that we lack
jurisdiction to review the IJ's adverse credibility determinations. To be sure, an IJ's
"findings of fact, including findings on credibility, are generally 'conclusive,'" so long
as they are supported by "'a specific, cogent reason for disbelief.'" Lybesha v. Holder,
569 F.3d 877, 881 (8th Cir. 2009)(quoting Al Milaji v. Mukasey, 551 F.3d 768, 772
(8th Cir. 2008)).
We nevertheless decline to address Hernandez' adverse credibility claims on
mootness grounds. An issue is moot when it becomes "impossible for a court to grant
any effectual relief whatever to the prevailing party." Chafin v. Chafin, 133 S. Ct.
1017, 1023 (2013) (internal quotation marks omitted). Both the IJ and the Board
decided that even if Hernandez were credible, he would fail to show the required
elements for withholding of removal and protection under the CAT. Hernandez
devoted considerable space in his brief to contesting the IJ's credibility
determinations, but none to arguing errror by the IJ and BIA in concluding that he
would not be entitled to relief even if he were credible. Since arguments not raised
in an initial brief are waived, see DISH Network Service L.L.C. v. Laducer, 725 F.3d
877, 883 (8th Cir. 2013), Hernandez provides no argument for reversing this
conclusion if we were to determine that he is credible. Because it would be
impossible to grant him relief were we to decide this issue in his favor, we conclude
it is moot.
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III.
Because the 365 day jail sentence Hernandez received was a "term of
imprisonment of at least one year," we conclude the Board did not err in determining
that his 1989 conviction for grand theft auto was an aggravated felony which made
him ineligible for cancellation of removal and special cancellation of removal. The
BIA also did not err in deciding that the aggravated felony bar also applied to his
Hernandez' asylum claim. We further conclude that the Board did not err in denying
Hernandez' applications for cancellation of removal and protection under the CAT.
Since Hernandez raises no argument for reversing the Board's decision to deny his
applications were we to find the IJ's adverse credibility determinations were in error,
he waives his right to such forms of relief. The question of whether the IJ's
credibility determinations were erroneous is therefore moot. The petition for review
is accordingly denied.
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