Jose Marquez Carrillo v. Eric Holder, Jr. , 781 F.3d 1155 ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE LUIS MARQUEZ CARRILLO, No. 12-70779
Petitioner,
Agency No.
v. A031-285-059
ERIC H. HOLDER, JR., Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 3, 2015*
Pasadena, California
Filed March 31, 2015
Before: Harry Pregerson, Ferdinand F. Fernandez,
and Jacqueline H. Nguyen, Circuit Judges.
Opinion by Judge Fernandez
*
The panel unanimously finds this case suitable for decision without
oral argument. Fed. R. App. P. 34(a)(2).
2 MARQUEZ CARRILLO V. HOLDER
SUMMARY**
Immigration
The panel denied Jose Luis Marquez Carrillo’s petition
for review from the Board of Immigration Appeals’ order
removing him due to his conviction for a crime of domestic
violence.
The panel held that the BIA correctly found that a
conviction for violating California Penal Code § 273.5(a)
constitutes a categorical crime of domestic violence within
the meaning of 8 U.S.C. § 1227(a)(2)(E)(i).
COUNSEL
Jaime Jasso, Law Offices of Jaime Jasso, Westlake Village,
California, for Petitioner.
Stuart F. Delery, Principal Deputy Assistant Attorney
General, Civil Divison, Terri J. Scadron, Assistant Director,
Office of Immigration Litigation, Kathryn L. DeAngelis,
Attorney, Office of Immigration Litigation, United States
Department of Justice, Washington, D.C., for Respondent.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
MARQUEZ CARRILLO V. HOLDER 3
OPINION
FERNANDEZ, Circuit Judge:
Jose Luis Marquez Carrillo, a citizen of Mexico, petitions
for review of the Board of Immigration Appeals’ (BIA) order
removing him due to his conviction for a crime of domestic
violence. See 8 U.S.C. § 1227(a)(2)(E)(i);1 Cal. Penal Code
§ 273.5(a) (2002).2 We deny the petition.
BACKGROUND
Marquez is a forty-nine-year-old native and citizen of
Mexico, who entered the United States as a lawful permanent
resident on or about July 20, 1971.
Marquez was arrested in January 2005 for domestic
violence and turned over to the Department of Homeland
Security (DHS). DHS served him with a Notice to Appear,
which charged him with removability as an alien who had
been convicted of a crime of domestic violence. The notice
alleged that his 2002 conviction under § 273.5 rendered him
removable pursuant to § 1227(a)(2)(E)(i). On February 23,
2005, Marquez appeared before an Immigration Judge (IJ)
who found him removable as charged due to the § 273.5
conviction. At that time, Marquez said his criminal record
included a 1995 conviction of great bodily injury to a child,
1
Hereafter, we will refer to this law as § 1227(a)(2)(E)(i).
2
Hereafter, we will refer to this law as § 273.5.
4 MARQUEZ CARRILLO V. HOLDER
a 2002 conviction of corporal injury to his spouse, and a 2005
domestic violence conviction.3
At a continued hearing on April 5, 2005, the IJ sustained
the charge of removability and found “that 273.5, by
definition, falls within [§ 1227(a)(2)(E)(i)].” Marquez then
filed an application for cancellation of removal. See 8 U.S.C.
§ 1229b. After years of continued hearings, Marquez
appeared before the IJ on May 20, 2010, and presented
evidence to support his application. Among other things, he
claimed that he had completed an Alcoholics Anonymous
program and several domestic violence programs. He also
submitted letters that had first been submitted, and accepted,
at a bail bond hearing some five years earlier.
The IJ then issued a decision that affirmed Marquez’s
removability because of the domestic violence conviction
from 2002, and denied his application for cancellation of
removal. The IJ found that Marquez met the statutory
elements for eligibility for cancellation of removal, but
denied discretionary relief because the negative factors in his
background outweighed the positive. The IJ accorded
minimal weight to the letters submitted in Marquez’s bond
hearing five years earlier. Regarding his wife’s letter, in
particular, the IJ noted that Marquez’s latest domestic
violence charge occurred years after his wife wrote her letter
of support. The IJ accepted Marquez’s word that he had
recently completed a domestic violence course. On balance,
the IJ found that Marquez had not sustained his burden of
establishing that he was deserving of cancellation of removal.
3
Marquez’s criminal record is extensive and includes multiple theft and
burglary convictions, a battery conviction, a conviction for driving under
the influence, and multiple domestic violence charges.
MARQUEZ CARRILLO V. HOLDER 5
On appeal to the BIA, Marquez contested his
removability in light of this court’s then recent decision that
§ 273.5 is not categorically a crime involving moral turpitude
(CIMT). He argued that by analogy the court should find that
§ 273.5 is not a crime of domestic violence. He also objected
to the IJ’s discretionary decision.
The BIA adopted and affirmed the IJ’s decision. It agreed
that § 273.5 is categorically a crime of domestic violence.
Furthermore, it agreed that the negative factors outweighed
the positive equities in Marquez’s application. The BIA
refused to consider new evidence, including a certificate of
completion of a domestic violence program, because it could
not consider new evidence on appeal; it also noted that
Marquez did not file a motion to remand and that the
evidence was not material in any event. Marquez’s timely
petition for review followed.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction pursuant to 8 U.S.C. § 1252. When,
as here, the BIA adopts the IJ’s decision and also adds its
own reasons, we review both decisions. Vasquez-Hernandez
v. Holder, 590 F.3d 1053, 1054 (9th Cir. 2010). “The Ninth
Circuit reviews de novo whether a conviction constitutes a
removable offense under the Immigration and Nationality
Act.” Szalai v. Holder, 572 F.3d 975, 978 (9th Cir. 2009)
(per curiam). Purely legal questions, including the BIA’s
interpretation of the INA, are likewise reviewed de novo. Id.
at 979.
6 MARQUEZ CARRILLO V. HOLDER
DISCUSSION
Marquez’s primary argument is that § 273.5 is not a
categorical crime of domestic violence within the meaning of
§ 1227(a)(2)(E)(i) because § 273.5 casts its protective mantel
over too many categories of victims. He recognizes that we
have previously held that § 273.5 “is categorically a crime of
domestic violence.” Banuelos-Ayon v. Holder, 611 F.3d
1080, 1081 (9th Cir. 2010); see also Vasquez-Hernandez,
590 F.3d at 1054–56. However, Marquez argues, in that case
we focused on the question of whether § 273.5 spelled out a
crime of violence and did not expressly consider the limiting
adjective — domestic. Thus, he says, Banuelos-Ayon does
not bind us. See Estate of Magnin v. Comm’r, 184 F.3d 1074,
1077 (9th Cir. 1999).
We believe that in context there was little reason for
Banuelos-Ayon to be more explicit because it is apparent that
§ 273.5 is categorically4 a crime that is both domestic and
violent in nature, but we will now put any uncertainty to rest.
We start, as we must, with the language of the statutes.
At the time of Marquez’s conviction, his crime was defined
as follows in § 273.5(a):
Any person who willfully inflicts upon a
person who is his or her spouse, former
spouse, cohabitant, former cohabitant, or the
mother or father of his or her child, corporal
injury resulting in a traumatic condition, is
guilty of a felony, and upon conviction thereof
4
See Descamps v. United States, __U.S.__, __, 133 S. Ct. 2276,
2283–85, 186 L. Ed. 2d 438 (2013).
MARQUEZ CARRILLO V. HOLDER 7
shall be punished by imprisonment in the state
prison for two, three, or four years, or in a
county jail for not more than one year, or by a
fine of up to six thousand dollars ($6,000) or
by both that fine and imprisonment.
The domestic violence language in § 1227(a)(2)(E)(i)
reads as follows:
Any alien who at any time after admission
is convicted of a crime of domestic violence,
a crime of stalking, or a crime of child abuse,
child neglect, or child abandonment is
deportable. For purposes of this clause, the
term “crime of domestic violence” means any
crime of violence (as defined in section 16 of
title 18) against a person committed by a
current or former spouse of the person, by an
individual with whom the person shares a
child in common, by an individual who is
cohabiting with or has cohabited with the
person as a spouse, by an individual similarly
situated to a spouse of the person under the
domestic or family violence laws of the
jurisdiction where the offense occurs, or by
any other individual against a person who is
protected from that individual’s acts under the
domestic or family violence laws of the
United States or any State, Indian tribal
government, or unit of local government.
It is apparent that both statutes encompass crimes
committed by a spouse or former spouse, by a person with
whom the victim shares a child, and by a cohabitant or former
8 MARQUEZ CARRILLO V. HOLDER
cohabitant. The only slight variation is that as to cohabitants
§ 1227(a)(2)(E)(i) adds the qualifier “as a spouse” whereas
§ 273.5 does not have that qualifier.
But California case law has made it plain that a spouse-
like relationship is implicit. As the California Court of
Appeal has put it: “The term ‘cohabitant’ has been interpreted
broadly to refer to those living together in a substantial
relationship — one manifested, minimally, by permanence
and sexual or amorous intimacy.” People v. Taylor, 118 Cal.
App. 4th 11, 18, 12 Cal. Rptr. 3d 693, 696 (2004) (some
internal quotation marks omitted); see also People v. Moore,
44 Cal. App. 4th 1323, 1333–34, 52 Cal. Rptr. 2d 256,
262–63 (1996). That alleviates any concern that the
California law would cover merely being together in some
sort of a “platonic, rooming-house arrangement.” People v.
Holifield, 205 Cal. App. 3d 993, 999, 252 Cal. Rptr. 729, 733
(1988).
As we see it, that rational view of cohabiting is what the
specific coverage language of § 1227(a)(2)(E)(i) is intended
to reach. That is emphasized by the somewhat less specific
language that Congress then used when it indicated that it
intended to cover individuals “similarly situated to a spouse.”
Id. On that basis alone, the match is categorical.
But, to the extent that any doubt remains, it was removed
when Congress adopted the ultimate inclusionary provision
of § 1227(a)(2)(E)(i): a crime committed by “any other
individual against a person who is protected from that
individual’s acts under the domestic or family violence laws
of . . . any State.” That language must be given effect — it
should not be seen as merely redundant or superfluous. See
Negrete-Ramirez v. Holder, 741 F.3d 1047, 1053 (9th Cir.
MARQUEZ CARRILLO V. HOLDER 9
2014); Spencer Enters., Inc. v. United States, 345 F.3d 683,
691 (9th Cir. 2003). As it is, the breadth of that language
does decidedly encompass the victims listed in § 273.5, both
in principle and in the reification of the principle.
As the California courts have explained, the Legislature’s
stated purpose has been to address the problem of domestic
violence, the elimination of which “is a compelling state
interest.” People v. Jungers, 127 Cal. App. 4th 698, 704,
25 Cal. Rptr. 3d 873, 878 (2005). It recognized “‘the high
incidence of violence in intimate relationships,’” and sought
to reduce that. Id. (quoting Cal. Judges Benchbook:
Domestic Violence Cases in Criminal Court (CJER 2000)
§ 1.7, p. 9). Thus, § 273.5 came into being. The whole
purpose of domestic violence laws like § 273.5 “is to protect
persons . . . in a special relationship for which society
demands, and the victim may reasonably expect, stability and
safety, and in which the victim, for these reasons among
others, may be especially vulnerable.” People v. Vega,
33 Cal. App. 4th 706, 710, 39 Cal. Rptr. 2d 479, 483 (1995).
No one doubts that § 273.5 was and is a domestic violence
law. See, e.g., United States v. Denton, 611 F.3d 646, 651
(9th Cir. 2010); Galen v. Cnty. of L.A., 477 F.3d 652, 656 (9th
Cir. 2007); People v. Hamlin, 170 Cal. App. 4th 1412,
1428–29, 89 Cal. Rptr. 3d 402, 416–17 (2009). While the
scope of the law has evolved, that “reflects a developing
awareness of the human factors that lead to domestic
violence”5 and the need to protect those who have found
themselves in those kinds of relationships.6
5
People v. Mora, 51 Cal. App. 4th 1349, 1355, 59 Cal. Rptr. 2d 801,
805 (1996).
6
See id.10 MARQUEZ CARRILLO V. HOLDER
The language of § 1227(a)(2)(E)(i) shows beyond
peradventure that Congress was aware of the need for fluidity
as states sought to protect victims from violent injuries that
grow out of personal, intimate relationships which are
domestic in nature. That, perforce, explains Congress’
casting a net wide enough to encompass “any other
individual”7 who has committed a crime of violence against
a person protected from that individual “under the domestic
or family violence laws of . . . any State.”8
Thus, § 273.5 is categorically a crime of domestic
violence within the meaning of § 1227(a)(2)(E)(i). In so
holding, we do not overlook Morales-Garcia v. Holder,
567 F.3d 1058, 1064–66 (9th Cir. 2009), which decided that
§ 273.5 is not categorically a CIMT. That case is simply
inapposite to the issue before us. It did not, and could not,
decide whether § 273.5 was a crime of domestic violence; it
simply decided whether it was a CIMT. Perhaps a conviction
under § 273.5 will sometimes be a CIMT;9 perhaps it will
sometimes be an aggravated felony;10 but it categorically is a
crime of domestic violence.11
7
§ 1227(a)(2)(E)(i).
8
Id.
9
See Morales-Garcia, 567 F.3d at 1066–67.
10
See 8 U.S.C. §§ 1101(a)(43)(F), 1227(a)(2)(A)(iii).
11
Marquez raises two other minor issues regarding the BIA’s
cancellation of removal decision, but we do not have jurisdiction over
either of them. He argues that the IJ erred when she gave minimal weight
to certain witness letters, but his failure to make that claim to the BIA
deprives us of jurisdiction over it. See 8 U.S.C. § 1252(d)(1); Sola v.
Holder, 720 F.3d 1134, 1135 (9th Cir. 2013) (per curiam). We also lack
MARQUEZ CARRILLO V. HOLDER 11
CONCLUSION
We hold that when Marquez was convicted in 2002 for
violation of § 273.5, he was convicted of a crime that is
categorically a crime of domestic violence under
§ 1227(a)(2)(E)(i). The BIA did not err.
Petition DENIED.
jurisdiction over his claim that the BIA should have sua sponte reopened
and remanded to the IJ. See Meija-Hernandez v. Holder, 633 F.3d 818,
823–24 (9th Cir. 2011); Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir.
2002).