Hector Bravo-Cocco v. Jefferson Sessions ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 17 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HECTOR HUGO BRAVO-COCCO, AKA No. 14-72989
Hector Albertene, AKA Hector Bravo, AKA
Hector H. Bravo, AKA Hector Hugo Bravo, Agency No. A200-080-750
AKA Hector Bravo Cocco, AKA Hector
Hugo Bravo Cocco, AKA Hector Cocco,
AKA Hector Hugo Cocco, AKA Hector
Hugo Coco, AKA Hugo Sass, AKA Hugo L. MEMORANDUM*
Sass, AKA Flaco Three,
Petitioner,
v.
JEFFERSON B. SESSIONS III, United
States Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted January 9, 2018
Pasadena, California
Before: M. SMITH and FRIEDLAND, Circuit Judges, and RAKOFF,** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Jed S. Rakoff, Senior United States District Judge for
the Southern District of New York, sitting by designation.
Hector Hugo Bravo-Cocco, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ (“BIA”) decision dismissing his
appeal. The BIA affirmed the Immigration Judge’s (“IJ”) order denying Bravo-
Cocco’s application for cancellation of removal under 8 U.S.C. § 1229b(b). We
have jurisdiction under 8 U.S.C. § 1252. We review questions of law de novo. See
Corona-Mendez v. Holder, 593 F.3d 1143, 1146 (9th Cir. 2010). We review
administrative findings of fact for substantial evidence. See Urzua Covarrubias v.
Gonzales, 487 F.3d 742, 747 (9th Cir. 2007). We DENY the petition.
To be eligible for cancellation of removal, an alien must prove, among other
things, that he has been “a person of good moral character” during the ten years
preceding his application for relief. 8 U.S.C. §§ 1229a(c)(4)(A)(i), 1229b(b)(1).
The IJ denied Bravo-Cocco’s application, finding that Bravo-Cocco could not be
“regarded as a person of good moral character” because in the preceding ten years
he had been “confine[d] to a penal institution for an aggregate period of 180 days
or more.” The BIA agreed.
1. The Government initially argues that we lack jurisdiction to consider
Bravo-Cocco’s challenges to the agency’s decision because he failed to raise
before the BIA the arguments he raises here. We disagree. We have “jurisdiction to
review a final order of removal and the issues raised in a petition for review only if
‘the alien has exhausted all administrative remedies available to the alien as of
2
right.’” Figueroa v. Mukasey, 543 F.3d 487, 492 (9th Cir. 2008) (quoting 8 U.S.C.
§ 1252(d)(1)). “[W]e do not employ the exhaustion doctrine in a formalistic
manner, but rather inquire into whether the issue was before the BIA such that it
had an opportunity to correct its error. The exhaustion doctrine requires that the
petitioner ‘put the BIA on notice’ as to the specific issues . . . .” Id. (quoting Zhang
v. Ashcroft, 388 F.3d 713, 721 (9th Cir. 2004)). Moreover, Bravo-Cocco was
proceeding pro se below, and papers of aliens proceeding pro se before the BIA
must be construed liberally. See Agyeman v. INS, 296 F.3d 871, 877-78 (9th Cir.
2002).
Under these generous standards, the BIA was on notice as to the specific
issues Bravo-Cocco raises in this appeal. First, the BIA’s decision actually
addressed the allocation of the burden of proof, placing the burden on Bravo-
Cocco. See Rodriguez-Castellon v. Holder, 733 F.3d 847, 852 (9th Cir. 2013)
(explaining that this court “may review any issue addressed on the merits by the
BIA”). Second, Bravo-Cocco argued before the BIA that the evidence did not
support the IJ’s conclusion about his criminal record, identifying specific
convictions that were dismissed. This is a good example of “inartfully” drafted
papers that do “not contain the exact legalese” but still identify the issue in lay
terms. Agyeman, 296 F.3d at 877-78. Accordingly, we have jurisdiction to consider
Bravo-Cocco’s arguments on appeal.
3
2. On the merits, Bravo-Cocco argues that the BIA erred by relying on a
conviction that was later dismissed under California Penal Code § 1203.4, pursuant
to which a defendant is, “with certain enumerated exceptions, released ‘from all
penalties and disabilities’ resulting from [a dismissed] conviction,” People v. Park,
299 P.3d 1263, 1276 (Cal. 2013) (quoting Cal. Penal Code § 1203.4). We disagree.
“[A]s a general rule, an expunged conviction qualifies as a conviction under the
INA.” Ramirez-Castro v. INS, 287 F.3d 1172, 1174 (9th Cir. 2002) (citing Murillo-
Espinoza v. INS, 261 F.3d 771, 774 (9th Cir. 2001)); see also Nunez-Reyes v.
Holder, 646 F.3d 684, 690 (9th Cir. 2011) (en banc) (holding that an expunged
state conviction still qualifies as a “conviction” for federal immigration purposes).
In particular, “a conviction expunged under [California Penal Code § 1203.4]
remains a conviction for purposes of federal law.” Ramirez-Castro, 287 F.3d at
1175.
Bravo-Cocco attempts to distinguish Ramirez-Castro on the ground that it
involved an INA provision targeting a specific kind of criminal conduct that
Congress had singled out for negative immigration consequences, whereas the INA
provision at issue here, 8 U.S.C. § 1101(f)(7), “does not identify any particular
forbidden conduct, but instead defers to state law on whether conduct is serious
enough to justify immigration consequences.” As the Government points out,
however, § 1101(f)(7) is predicated on the time spent in custody as a result of
4
conviction, and this period of confinement does not change in response to
expungement under § 1230.4. Moreover, both Ramirez-Castro and this petition
concern whether the INA’s statutory definition of “conviction” in 8 U.S.C.
§ 1101(a)(48)(A) includes convictions expunged under California Penal Code
§ 1203.4. Ramirez-Castro found that it does and therefore forecloses Bravo-
Cocco’s argument.
3. Bravo-Cocco also contends that the BIA erred in considering periods of
pre-conviction detention in determining whether he was eligible for cancellation of
removal. This argument, too, is foreclosed by binding circuit precedent – as Bravo-
Cocco concedes. See Arreguin-Moreno v. Mukasey, 511 F.3d 1229, 1233 (9th Cir.
2008) (“[W]hen pre-trial detention is credited against the sentence imposed upon
conviction, the period of pre-trial detention must be considered as confinement as a
result of a conviction within the meaning of [8 U.S.C.] § 1101(f)(7).”).
4. Finally, Bravo-Cocco argues that the BIA erred in placing the burden of
proof on him to demonstrate that he had not been incarcerated for 180 days or
more in the ten years preceding his application for cancellation of removal. We
need not reach this issue in light of the foregoing determinations. Bravo-Cocco
challenges the BIA’s calculation of the number of days he spent incarcerated only
on the grounds discussed above and substantial evidence supports the BIA’s
finding that Bravo-Cocco was incarcerated for more than 180 days – and that
5
would be true of the evidence regardless of who has the burden. See Simeonov v.
Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004) (courts and agencies are not required
to reach non-dispositive issues).
PETITION DENIED.
6