Daniel Onduso v. Jefferson B. Sessions, III , 877 F.3d 1073 ( 2017 )

United States Court of Appeals
For the Eighth Circuit
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No. 16-2164
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Daniel Oginga Onduso
lllllllllllllllllllllPetitioner
v.
Jefferson B. Sessions, III, Attorney General of the United States
lllllllllllllllllllllRespondent
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No. 17-1526
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Daniel Oginga Onduso
lllllllllllllllllllllPetitioner
v.
Jefferson B. Sessions, III, Attorney General of the United States
lllllllllllllllllllllRespondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: October 18, 2017
Filed: December 20, 2017
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Before SMITH, Chief Judge, GRUENDER and BENTON, Circuit Judges.
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GRUENDER, Circuit Judge.
Daniel Onduso petitions for review of the Board of Immigration Appeals’
(“BIA”) decision dismissing his appeal of a removal order. The BIA correctly
determined that Minnesota misdemeanor domestic assault qualifies as a crime of
domestic violence and, accordingly, that Onduso’s conviction for this offense
rendered him ineligible for cancellation of removal. Therefore, we deny the petition.
Onduso, a native and citizen of Kenya, legally entered the United States as a
temporary visitor in January 1999. He overstayed his six-month visa and has resided
here unlawfully ever since. On June 8, 2009, the Department of Homeland Security
commenced removal proceedings against Onduso by issuing a Notice to Appear
(“NTA”), charging him as removable for remaining in the United States for a period
longer than permitted. See 8 U.S.C. § 1227(a)(1)(B). After a series of proceedings
not relevant here, an immigration judge (“IJ”) found Onduso removable as charged
in the NTA and ineligible for cancellation of removal pursuant to 8 U.S.C.
§ 1229b(b)(1)(C), due to his 2004 Minnesota conviction for domestic assault. See
Minn. Stat. § 609.2242, subd. 1. On appeal, the BIA rejected Onduso’s claim that
this misdemeanor offense does not categorically qualify as a “crime of domestic
violence” based on its analysis of Minnesota case law and our relevant crime-of-
violence determination in United States v. Salido-Rosas, 662 F.3d 1254, 1256 (8th
Cir. 2011) (concluding that “[k]nowingly or purposely causing or attempting to cause
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bodily injury or making another person fear imminent bodily harm necessarily
requires using, attempting to use, or threatening to use physical force”).
Onduso then filed a motion to reconsider, arguing that the BIA’s analysis was
“starkly in opposition” to in its approach in Matter of Guzman-Polanco I, 26 I&N
Dec. 713 (B.I.A. 2016). In that case, which arose in the First Circuit, the BIA held
that Puerto Rico third-degree battery was not a crime of violence because it could be
committed “by means that do not require the use of violent physical force,” such as
by poisoning a victim. See id. at 717-18. Applying similar logic, Onduso argued that
Minnesota misdemeanor domestic assault did not categorically qualify as a crime of
domestic violence under 8 U.S.C. § 1227(a)(2)(E)(i). In ruling on Onduso’s motion,
the BIA first observed that “[t]he record . . . does not specify whether [he] violated
subsection 1 or subsection 2” of Minn. Stat. § 609.2242, subd. 1. It went on to
conclude, however, that this ambiguity was irrelevant, as both subsections
categorically qualify as crimes of domestic violence under Eighth Circuit precedent.
See Matter of Guzman-Polanco II, 26 I&N Dec. 806, 808 (B.I.A. 2016) (“Our
decision in Matter of Guzman-Polanco [I] should not be read as attempting to
establish a nationwide rule addressing the scope of the use of force through indirect
means, including poisoning. Rather, for our purposes, circuit law governs this
issue . . . .”). Onduso then petitioned this court for review, primarily arguing that we
should reverse several of our prior opinions concerning the application of the
minimum-conduct test in light of the Supreme Court’s decision in Moncrieffe v.
Holder. See 569 U.S. 184, 190-91 (2013). We decline his invitation to “rescue” the
BIA from these purportedly “stale” cases, particularly given that our recent decision
in Ramirez-Barajas v. Sessions rejected a similar set of arguments in a case involving
subsection 1 of the same Minnesota statute. See Nos. 16-4014 & 17-1618, 2017 WL
6390314 (8th Cir. Dec. 15, 2017); see also United States v. Eason, 829 F.3d 633, 641
(8th Cir. 2016) (“It is a cardinal rule in our circuit that one panel is bound by the
decision of a prior panel.”).
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“We review the BIA’s legal determinations de novo,” including whether a state
offense qualifies as a bar to cancellation of removal. Roberts v. Holder, 745 F.3d
928, 930 (8th Cir. 2014) (per curiam). The Immigration and Nationality Act
authorizes the Attorney General to cancel the removal of nonpermanent residents,
provided that, among other things, they have not been convicted of a disqualifying
criminal offense. See 8 U.S.C. § 1229b(b). This includes “crime[s] of domestic
violence,” see id. § 1227(a)(2)(E)(i), which are offenses involving any “crime of
violence”—as that term is defined in 18 U.S.C. § 16—directed against a person in a
qualifying domestic relationship,” id. Title 18, in turn, defines “crime of violence”
as:
(a) an offense that has as an element the use, attempted use, or
threatened use of physical force against the person or property of
another, or
(b) any other offense that is a felony and that, by its nature, involves a
substantial risk that physical force against the person or property of
another may be used in the course of committing the offense.
18 U.S.C. § 16. Onduso concedes that he was in a qualifying domestic relationship
with the victim of his assault, and it is undisputed that his conviction was for a
misdemeanor offense, not a felony, thereby negating the application of § 16(b). Thus,
the only question before us is whether Minnesota misdemeanor domestic assault
categorically qualifies as a crime of violence under § 16(a), which we have treated as
equivalent to the force clause of the United States Sentencing Guidelines and the
Armed Career Criminal Act (“ACCA”). See Roberts, 745 F.3d at 930-31.
Onduso was convicted of misdemeanor domestic assault under Minn. Stat.
§ 609.2242, subd. 1, which provides:
Whoever does any of the following against a family or household
member . . . commits an assault and is guilty of a misdemeanor:
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(1) commits an act with intent to cause fear in another of
immediate bodily harm or death; or
(2) intentionally inflicts or attempts to inflict bodily harm upon
another.
For purposes of this statute, “bodily harm” is defined as “physical pain or injury,
illness, or any impairment of physical condition.” Id. § 609.02, subd. 7. Although
Onduso urged the IJ to find that he was convicted under subsection 2 of the statute,
the BIA correctly determined that the record is unclear as to which subsection—(1)
assault-fear or (2) assault-harm—served as the basis for his conviction. Thus, we
consider whether both offenses categorically qualify as crimes of violence.
As an initial matter, we agree with the BIA that the then-applicable Eighth
Circuit and Minnesota precedent suggested that both subsections satisfy § 16(a).
First, the BIA correctly recognized that our decision in United States v. Schaffer
guided its crime-of-violence determination concerning subsection 1. See 818 F.3d
796 (8th Cir. 2016) (concluding that this offense qualified as a violent felony for
ACCA purposes). However, this analysis became considerably simpler after our
decision in Ramirez-Barajas extended Schaffer to the § 16(a) context and further
concluded that intervening Minnesota case law did not affect its conclusion. See
2017 WL 6390314, at *1-2. We follow Ramirez-Barajas’s express holding that
subsection 1 categorically qualifies as a crime of domestic violence. See id. at *2.
Second, although we have not directly addressed whether subsection 2 also
qualifies as a crime of violence, the logic underlying relevant circuit precedent
resolves the issue. As the BIA noted, by its very terms this offense requires the
intentional or attempted infliction of bodily harm, and we previously have explained
that “it is impossible to cause bodily injury without using force ‘capable of’
producing that result.” United States v. Rice, 813 F.3d 704, 706 (8th Cir. 2016)
(quoting United States v. Castleman, 134 S. Ct. 1405, 1416-17 (2014) (Scalia, J.,
concurring)). Moreover, our conclusion that subsection 2 categorically qualifies as
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a crime of violence follows naturally from the analysis of subsection 1 in Ramirez-
Barajas. Given that convictions for both offenses include the same element of
“bodily harm,” we see no basis for reaching the opposite result here. Thus, whichever
provision served as the basis for Onduso’s conviction, we find that it necessarily
involved a crime of violence and thereby qualifies as a crime of domestic violence
under 8 U.S.C. § 1227(a)(2)(E)(i).
Accordingly, because Onduso’s conviction for Minnesota misdemeanor
domestic assault rendered him statutorily ineligible for cancellation of removal, we
deny the petition.
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