Ismael Dominguez-Herrera v. Jefferson B. Sessions , 850 F.3d 411 ( 2017 )

United States Court of Appeals
For the Eighth Circuit
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No. 15-3457
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Ismael Dominguez-Herrera; Lidia Cristina Hernandez-Martinez
lllllllllllllllllllllPetitioners
v.
Jefferson B. Sessions, III, Attorney General of the United States1
lllllllllllllllllllllRespondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: November 17, 2016
Filed: March 7, 2017
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Before RILEY, Chief Judge, WOLLMAN and KELLY, Circuit Judges.
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KELLY, Circuit Judge.
Petitioners Lidia Cristina Hernandez-Martinez and Ismael Dominguez-Herrera,
a married couple, appeal the denial of their consolidated applications for cancellation
of removal under section 240A(b) of the Immigration and Nationality Act (INA), 8
1
Jefferson B. Sessions, III, is automatically substituted pursuant to Federal Rule
of Appellate Procedure 43(c)(2).
U.S.C. § 1229b(b)(1). Because the petitioners have failed to meet their burden under
the REAL ID Act to establish their eligibility for cancellation of removal, we deny
their petition. See 8 U.S.C. § 1229a(c)(4).
I. Background
Hernandez-Martinez and Dominguez-Herrera are non-permanent residents of
the United States. On February 17, 2011, the Department of Homeland Security
served Hernandez-Martinez with a Notice to Appear, charging her with deportability
under section 237(a)(1)(B) of the INA, 8 U.S.C. § 1227(a)(1)(B), on the grounds that
she was an alien who had remained in the country longer than permitted. On April
26, 2012, she submitted a written pleading admitting to the factual allegations of the
Notice to Appear and conceding removability. On August 9, 2011, the Department
of Homeland Security served Dominguez-Herrera with a Notice to Appear, charging
him with inadmissibility under section 212(a)(6)(A)(i) of the INA, 8 U.S.C.
§ 1182(a)(6)(A), on the grounds that he was an alien present in the country without
being admitted or paroled. He admitted the factual allegations of the Notice to
Appear, and an immigration judge (IJ) found that he was subject to removal on
September 8, 2011.
Both petitioners applied for cancellation of removal under section 240A(b) of
the INA, 8 U.S.C. § 1229b(b)(1), which provides, “The Attorney General may cancel
removal of, and adjust to the status of an alien lawfully admitted for permanent
residence, an alien who is inadmissible or deportable from the United States if the
alien” meets certain conditions. One condition is that the alien has not been
convicted of an offense under 8 U.S.C. § 1227(a)(2). The IJ concluded, and the BIA
affirmed, that both petitioners had committed an offense described in 8 U.S.C.
§ 1227(a)(2)(A)(i): “a crime involving moral turpitude . . . for which a sentence of
one year or longer may be imposed.” Specifically, the IJ concluded that Hernandez-
Martinez had been convicted of theft in the municipal court of Hutchinson, Kansas,
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and Dominguez-Herrera had been convicted of theft in the municipal court of Great
Bend, Kansas. Both Hutchinson and Great Bend have adopted the Kansas Uniform
Public Offense Code (UPOC). The IJ concluded that each petitioner was convicted
of theft under UPOC § 6.1. The relevant version of UPOC § 6.1 provides, in part:
Theft is any of the following acts done with the intent to deprive the
owner permanently of the possession, use or benefit of the owner’s
property:
(a) Obtaining or exerting unauthorized control over property;
(b) Obtaining by deception control over property;
(c) Obtaining by threat control over property; or
(d) Obtaining control over stolen property knowing the property to have
been stolen by another.
In determining that each petitioner was convicted of theft under UPOC § 6.1,
the IJ relied on various municipal court documents. With respect to Hernandez-
Martinez, the record includes: a complaint charging Hernandez-Martinez with
violating UPOC § 6.1(a); a form titled Waiver of Right to Counsel and Trial, which
states that Hernandez-Martinez was charged with theft under the UPOC; and a court
docket sheet indicating that Hernandez-Martinez pleaded guilty to a violation of
UPOC § 6.1(a). With respect to Dominguez-Herrera, the only document in the record
is an Abstract of Conviction, which states Dominguez-Herrera was convicted of
“theft” in violation of “21-3701.” Kan. Stat. Ann. § 21-3701 (recodified effective
July 1, 2011 at § 21-5801) is a state criminal statute that is nearly identical to UPOC
§ 6.1.
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Thus, the IJ concluded the petitioners were not eligible for cancellation of
removal, and ordered the petitioners to be removed. The Board of Immigration
Appeals (BIA) affirmed, and the petitioners filed the present petition for review.
II. Discussion
The petitioners appeal the BIA’s conclusions on three grounds: (1) that the
municipal judgments against them are not criminal convictions; (2) that the offenses
were not crimes involving moral turpitude; and (3) that the maximum penalty possible
for each offense was less than a year.
Under 8 U.S.C. § 1252(a)(2)(B)(i), “no court shall have jurisdiction to review”
the denial of cancellation of removal under § 1229b. “Even so, this court has
jurisdiction of ‘constitutional claims or questions of law raised upon a petition for
review.’” Solis v. Holder, 647 F.3d 831, 832 (8th Cir. 2011) (quoting 8 U.S.C.
§ 1252(a)(2)(D)). Thus, we have jurisdiction “to review the nondiscretionary
determinations underlying a denial of an application for cancellation of removal, such
as the ‘predicate legal question whether the [BIA] properly applied the law to the
facts in determining an individual’s eligibility to be considered for the relief.’” Id.(alteration in original) (quoting Solano-Chicas v. Gonzales, 440 F.3d 1050, 1055 (8th
Cir. 2006)).
“We review questions of law de novo and accord substantial deference to the
BIA’s interpretation of immigration law and agency regulations.” Bernal-Rendon v.
Gonzales, 419 F.3d 877, 880 (8th Cir. 2005). “Congress has not defined the phrase
‘crime involving moral turpitude,’ and the meaning of that phrase was left ‘to future
administrative and judicial interpretation.’” Chanmouny v. Ashcroft, 376 F.3d 810,
811 (8th Cir. 2004) (quoting Franklin v. INS, 72 F.3d 571, 572 (8th Cir. 1995)).
Thus, we generally accord Chevron deference to the BIA’s interpretation of the
phrase, and will “uphold its construction as long as it is reasonable.” Id.; see Chevron
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U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842–44 (1984).
However, Chevron deference applies only to “agency action that ‘carries the force of
law.’” Godinez-Arroyo v. Mukasey, 540 F.3d 848, 850 (8th Cir. 2008) (alteration
omitted) (quoting United States v. Mead Corp., 533 U.S. 218, 221 (2001)). We have
previously acknowledged that an unpublished BIA opinion, like the one in this case,
“may lack the force of law and Chevron deference may be inappropriate.” Id. But
even if Chevron deference would not be appropriate, an unpublished BIA opinion
would be entitled to “a lesser form of deference” under Skidmore v. Swift & Co., 323
U.S. 134 (1944). Id. Under Skidmore, an agency’s non-binding opinion is accorded
weight “depend[ing] upon the thoroughness evident in its consideration, the validity
of its reasoning, its consistency with earlier and later pronouncements, and all those
factors which give it power to persuade.” Skidmore, 323 U.S. at 140. We need not
decide whether Chevron or Skidmore deference is appropriate in this case, because
even applying the lesser Skidmore deference, we affirm the BIA’s decision. See
Godinez-Arroyo, 540 F.3d at 851.
A. Criminal conviction
The petitioners first argue that the municipal judgments against them were for
infractions, not criminal convictions. Congress has defined “conviction” to mean “a
formal judgment of guilt of the alien entered by a court.” 8 U.S.C. § 1101(a)(48)(A).
The BIA has interpreted “a formal judgment of guilt of the alien” to refer to a
judgment of guilt in a criminal proceeding. See In re Eslamizar, 23 I. & N. Dec. 684,
687 (B.I.A. 2004). A criminal proceeding, the BIA has explained, is “a trial or other
proceeding whose purpose is to determine whether the accused committed a crime
and which provides the constitutional safeguards normally attendant upon a criminal
adjudication.” Id. In determining whether a judgment is a criminal conviction, the
BIA considers several factors, including how the relevant state classifies the judgment
and whether each element of the offense must be proven beyond a reasonable doubt.
See id. at 687–88.
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In Matter of Cuellar-Gomez, the BIA applied the Eslamizar test to a Wichita,
Kansas, municipal judgment for the offense of possession of marijuana, and found
that it was a criminal conviction. 25 I. & N. Dec. 850, 853 (B.I.A. 2012). The BIA
relied primarily on three circumstances: that Kansas state law gives municipal court
judges the “authority to enter judgments of guilt in marijuana possession cases, and
to impose fines or order the incarceration of defendants against whom judgments of
guilt are entered”; that Kansas state law requires that the prosecution must prove
every element of the charge beyond a reasonable doubt for a municipal judgment to
be entered; and that Kansas state courts consider a municipal judgment to be a
conviction for purposes of calculating a defendant’s criminal history when sentencing
the defendant for a subsequent state crime. Id. at 853.
In this case, the IJ concluded that the Great Bend and Hutchinson municipal
judgments were not distinguishable from the Wichita judgment in Cuellar-Gomez.
However, the petitioners contend they have identified various circumstances that
were not considered in Cuellar-Gomez and that demonstrate the municipal judgments
at hand are not criminal convictions under the Eslamizar test.2 The petitioners
additionally argue that the BIA erred in determining that Dominguez-Herrera’s
judgment was for a misdemeanor and not an infraction.
2
The petitioners also suggest that relying on Cuellar-Gomez would be
erroneous because in Castillo v. Attorney General, 729 F.3d 296 (3d Cir. 2013), the
Third Circuit found it to be inconsistent with the BIA’s other decisions. In Castillo,
the BIA had determined that the petitioner’s conviction was criminal solely because
the petitioner was found guilty beyond a reasonable doubt. Id. at 305. The Third
Circuit granted the petition, concluding that the BIA’s decision arbitrarily departed
from Cuellar-Gomez and other precedential BIA decisions applying Eslamizar, and
was therefore not entitled to deference. Id. at 309–10. Thus, Castillo does not
undermine the legitimacy of Cuellar-Gomez.
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First, the petitioners argue that Kansas does not consider municipal offenses
to be crimes. In support of this argument, they point to a 2002 opinion by the Kansas
Attorney General that takes the position that municipal courts need not comply with
Kansas’ Uniform Mandatory Disposition of Detainers Act. Kan. Office of Att’y Gen.,
Opinion Letter No. 2002-48 (Oct. 18, 2002), 2002 WL 31373428. In part, the
opinion relies on the Attorney General’s conclusion that the Detainers Act applies
only to complaints defining “a crime.” Id. at *2. The term “crime,” as used in the
Kansas Criminal Code, refers to crimes defined by state law, not municipal law. Id.(citing Kan. Office of Att’y Gen., Opinion Letter No. 1997-31 (Mar. 27, 1997), 1997
WL 156519). In the petitioners’ view, this analysis demonstrates that Kansas does
not consider municipal offenses to be criminal in nature. But a more reasonable
reading of the opinion is that the Detainers Act does not apply to municipal offenses
because the legislature intended the Detainers Act to have a limited scope, not
because municipal offenses can never be criminal. This interpretation is reinforced
by the opinion’s note that its conclusions are “limited to the application of the
Detainers Act,” and that “a municipal court may still have to grapple with speedy trial
issues under the Sixth Amendment to the United States Constitution.” Id. at *3.
Moreover, Kansas courts consistently treat municipal judgments under the
UPOC as criminal convictions. See, e.g., City of Prairie Vill. v. Hogan, 855 P.2d 949,
952 (Kan. 1993) (referring to the enforcement of a UPOC ordinance as a
“prosecution” and a “criminal action” and determining whether the evidence
supported a finding of guilt beyond a reasonable doubt); City of Lindsborg v. Hulse,
236 P.3d 573, *2 (Kan. Ct. App. 2010) (unpublished table decision) (referring to the
violation of a municipal ordinance defined under the UPOC as a “crime” and
applying the rule of lenity to the interpretation of the ordinance). Thus, the
petitioners’ argument that Kansas does not consider municipal judgments to be
criminal convictions is unavailing.
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Second, the petitioners observe that when the BIA concluded that the municipal
judgments at issue were criminal convictions, it relied on Kan. Stat. Ann. § 21-6810,
which provides that a municipal judgment can be used to enhance a defendant’s
sentence for a subsequent state criminal conviction. The petitioners contend that this
reliance was erroneous, because juvenile adjudications, which are not considered
“criminal convictions” in Kansas, State v. LaMunyon, 911 P.2d 151, 155 (Kan.
1996), can also be used to enhance a defendant’s sentence. See Kan. Stat. Ann. § 21-
6810(a). Thus, the petitioners argue, “the fact that [municipal judgments] can be used
to enhance a later sentence is not determinative.” We agree that, by itself, this fact
might be insufficient to establish that a municipal offense is criminal. However, a
fact need not be determinative to be relevant. Here, § 21-6810 represents the Kansas
legislature’s judgment that municipal violations can be comparable to state criminal
convictions. The BIA did not err in relying on this circumstance, together with
others, in determining that the municipal judgments against the petitioners were
criminal convictions.
Next, the petitioners point out that in Kansas, the right to appeal an order
revoking probation is available to those convicted under state law, but not under
municipal law. Because the right to appeal is a touchstone of criminal prosecutions,
they argue, the municipal judgments at issue here were therefore not criminal. But
“[p]robation revocation . . . is not a stage of a criminal prosecution.” Gagnon v.
Scarpelli, 411 U.S. 778, 782 (1973). Although some due process protections apply
in a probation revocation proceeding, they are not coextensive with those that apply
in the underlying criminal proceeding. See id. In fact, even someone convicted of
a Kansas state crime may not appeal a probation revocation in all circumstances. See
State v. Legero, 91 P.3d 1216, 1218 (Kan. 2004) (holding that there is no right to
appeal to district court when a magistrate judge revokes a defendant’s probation for
a state criminal conviction). Thus, the lack of an appeals process for probation
revocations has little bearing on the question of whether the underlying conviction
was criminal.
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Finally, the petitioners argue that the judgment against Dominguez-Herrera is
not a criminal conviction because on the Abstract of Conviction, a box labeled
“infraction” was marked. Because an infraction is punishable only by the imposition
of a fine, Kan. Stat. Ann. § 8-2118, the petitioners argue that Dominguez-Herrera’s
offense was therefore not criminal. The BIA rejected this argument, concluding that
the marking of the box labeled “infraction” was a “scrivener’s error,” and that, in fact,
Dominguez-Herrera was convicted of a criminal offense. We agree. It is true that the
Abstract of Conviction does not refer explicitly to UPOC § 6.1. But it does state that
Dominguez-Herrera was convicted of “theft” in violation of “21-3701” in Great Bend
Municipal Court. The most reasonable interpretation of the document is that
Dominguez-Herrera was convicted of theft under the municipal analogue to Kan. Stat.
Ann. § 21-3701: UPOC § 6.1. Moreover, it was Dominguez-Herrera’s burden to
establish his eligibility for cancellation of removal, see 8 U.S.C. § 1229a(c)(4), and
he offered no evidence or testimony supporting a different interpretation of the
document. Theft under UPOC § 6.1 is a Class A violation, the maximum sentence
for which is “a definite term of confinement . . . which shall be fixed by the court and
shall not exceed one year.” UPOC § 12.1(a)(1). Thus, the judgment against
Dominguez-Herrera is for a criminal offense, not an infraction.
B. Crimes involving moral turpitude
Next, the petitioners argue that the crimes they were convicted of did not
involve moral turpitude. The BIA has interpreted the phrase “moral turpitude” to
mean “conduct which is inherently base, vile, or depraved, and contrary to the
accepted rules of morality and the duties owed between persons or to society in
general.” Chanmouny, 376 F.3d at 811–12 (quoting In re Ajami, 22 I. & N. Dec. 949,
950 (B.I.A. 1999)). “It is well settled that theft or larceny offenses involve moral
turpitude.” In re Jurado-Delgado, 24 I. & N. Dec. 29, 33 (B.I.A. 2006) (citing In re
De La Nues, 18 I. & N. Dec. 140, 145 (B.I.A. 1981); In re Westman, 17 I. & N. Dec.
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50, 51 (B.I.A. 1979)). However, “[o]rdinarily, a conviction for theft is considered to
involve moral turpitude only when a permanent taking is intended.” In re Grazley,
14 I. & N. Dec. 330, 333 (B.I.A. 1973).
To determine whether a particular conviction is for a crime involving moral
turpitude, we first examine the statute itself. See Chanmouny, 376 F.3d at 812. “If
the statute defines a crime in which moral turpitude necessarily inheres, then the
conviction is for a crime involving moral turpitude for immigration purposes, and our
analysis ends.” Id. (quoting In re Ajami, 22 I. & N. Dec. at 950). But “if the statute
contains some offenses which involve moral turpitude and others which do not, it is
to be treated as a ‘divisible’ statute, and we look to the record of conviction, meaning
the indictment, plea, verdict, and sentence, to determine the offense of which the
respondent was convicted.” Id. (quoting In re Ajami, 22 I. & N. Dec. at 950).
The BIA concluded that UPOC § 6.1 defines a crime in which moral turpitude
necessarily inheres because it applies only when a permanent taking was intended.
This interpretation is supported by the text of UPOC § 6.1, which limits its definition
of “theft” to acts done “with the intent to deprive the owner permanently of the
possession, use or benefit of the owner’s property.” The petitioners, on the other
hand, argue that UPOC § 6.1 applies to temporary takings as well as permanent
takings, because the finder of fact may sometimes presume intent to permanently
deprive. UPOC § 6.2 provides a list of factual circumstances that constitute “prima
facie evidence of intent to permanently deprive the owner or lessor of property of the
possession, use or benefit thereof.” For example, it is prima facie evidence of intent
to permanently deprive if the defendant fails to return rented personal property for
more than ten days after the due date and more than seven days after being notified
to return the property. UPOC § 6.2(a)(2).
The petitioners’ argument rests on the theory that the presumptions listed in
UPOC § 6.2 effectively allow a defendant to be convicted under UPOC § 6.1 even if
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the government does not prove intent to permanently deprive beyond a reasonable
doubt. It is true that in some circumstances, a statutory presumption can
unconstitutionally “undermine the factfinder’s responsibility at trial, based on
evidence adduced by the State, to find the ultimate facts beyond a reasonable doubt.”
Cty. Court of Ulster Cty. v. Allen, 442 U.S. 140, 156 (1979). However, where a
statutory presumption “leaves the trier of fact free to credit or reject the inference and
does not shift the burden of proof, it affects the application of the ‘beyond a
reasonable doubt’ standard only if, under the facts of the case, there is no rational way
the trier could make the connection permitted by the inference.” Id. at 157. We
conclude that UPOC § 6.2 allows a factfinder to accept or reject the suggested
inferences, and that the inferences have a rational connection to the ultimate question
of whether a defendant acted with intent to permanently deprive. See State v. Smith,
573 P.2d 985, 989 (Kan. 1977) (finding that presumptions nearly identical to those
listed in UPOC § 6.2 did not unconstitutionally infringe on the reasonable-doubt
standard). Accordingly, intent to permanently deprive is an element of UPOC § 6.1
that must be proven beyond a reasonable doubt.
The petitioners also point out that UPOC § 6.1 criminalizes conduct that
includes relatively trivial misdeeds, such as failing to return a library book, see UPOC
§ 6.2(b). We recognize that UPOC § 6.1 encompasses acts that do not seem
particularly “base, vile, or depraved,” as those words are commonly used. However,
Chevron requires us to defer to the BIA’s numerous published opinions interpreting
“crime involving moral turpitude” to include thefts where a permanent taking was
intended. See Franklin, 72 F.3d at 572 (“Having consistently adhered to its view . . .
for nearly twenty years, the BIA’s interpretation is entitled to deference.”). Thus, the
judgments against the petitioners were crimes involving moral turpitude.
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C. Maximum penalty
Finally, the petitioners argue that the BIA erred in determining that the offenses
the petitioners were convicted of were punishable by a year or more in prison. With
respect to Hernandez-Martinez, the petitioners note that her Waiver of Right to
Counsel and Trial form indicates she was charged with a “Class A Misdemeanor,
maximum penalties of up to 1 year in jail and a $2,500 fine.” The petitioners argue
that this does not include a penalty of one year, because when the Kansas state
legislature intends to include the maximum amount of time in a range, it uses the
phrase “up to and including.” But it is the text of the UPOC, not the Waiver of Right
to Counsel and Trial form, that sets the maximum punishment for a violation of
UPOC § 6.1. UPOC § 6.1 provides that theft of property worth less than $1,000 is
a Class A violation. For a Class A violation, the UPOC authorizes a municipal court
to impose “a definite term of confinement in the city or county jail which shall be
fixed by the court and shall not exceed one year.” UPOC § 12.1(a)(1). Accordingly,
Hernandez-Martinez was convicted of an offense punishable by a year in prison.
With respect to Dominguez-Herrera, the petitioners reiterate their argument that his
conviction was an infraction, for which no term of incarceration could be imposed.
As explained above, the BIA did not err in determining that Dominguez-Herrera was
convicted of violating UPOC § 6.1. Thus, like Hernandez-Martinez, Dominguez-
Herrera was convicted of an offense punishable by a year in prison.
III. Conclusion
We deny the petition.
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