Gomez-Lopez v. Ashcroft ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FLORIBERTO EUDOXIO GOMEZ-LOPEZ,  No. 03-70142
Petitioner, Agency No.
v.
 A76-355-983
JOHN ASHCROFT, Attorney General, ORDER AND
Respondent. AMENDED
 OPINION
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 3, 2004*
Pasadena, California
Filed December 15, 2004
Opinion Withdrawn and Amended Opinion Filed
January 3, 2005
Before: A. Wallace Tashima, Raymond C. Fisher, and
Richard C. Tallman, Circuit Judges.
Opinion by Judge Tashima
*This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
17
GOMEZ-LOPEZ v. ASHCROFT 19
COUNSEL
Martin Zaehringer, Ventura, California, for the petitioner.
Luis E. Perez, Civil Division, U.S. Department of Justice,
Washington, D.C., for the respondent.
20 GOMEZ-LOPEZ v. ASHCROFT
ORDER
The opinion filed December 15, 2004, slip op. at 16977, is
withdrawn and is replaced by the amended opinion filed con-
currently with this order.
OPINION
TASHIMA, Circuit Judge:
Floriberto Eudoxio Gomez-Lopez (“Gomez”), a native and
citizen of Mexico, petitions for review of an order of the
Board of Immigration Appeals (“BIA”) affirming without
opinion the decision of the Immigration Judge (“IJ”). The sole
issue raised in his petition is whether his incarceration in a
county jail constitutes confinement in a penal institution for
purposes of the Immigration and Nationality Act (“INA”) —
specifically, 8 U.S.C. § 1101(f). The IJ denied Gomez’s appli-
cation for cancellation of removal and voluntary departure
because his conviction and incarceration for vehicular man-
slaughter precluded a finding that he is a person of good
moral character under the INA.1 We conclude that incarcera-
tion in a county jail does constitute confinement in a penal
institution within the meaning of the INA and therefore deny
the petition.
JURISDICTION
We generally have jurisdiction over a petition for review
pursuant to 8 U.S.C. § 1252. We agree, however, with the
Immigration and Naturalization Service (“INS”)2 that we lack
1
The IJ also denied Gomez’s application for adjustment of status
because Gomez did not establish that a visa number was immediately
available to him. Gomez does not challenge this decision.
2
The INS has been abolished and its functions transferred to the Depart-
ment of Homeland Security. See Homeland Security Act of 2002, Pub. L.
No. 107-296, 116 Stat. 2142 (2002), 6 U.S.C. §§ 101-557. For simplicity’s
sake, we will refer to the government agency as the INS.
GOMEZ-LOPEZ v. ASHCROFT 21
jurisdiction over the IJ’s denial of Gomez’s application for
voluntary departure. 8 U.S.C. § 1229c(f) provides that “[n]o
court shall have jurisdiction over an appeal from denial of a
request for an order of voluntary departure under subsection
(b) of this section, nor shall any court order a stay of an
alien’s removal pending consideration of any claim with
respect to voluntary departure.” We do not have jurisdiction
to review the denial of voluntary departure. Alvarez-Santos v.
INS, 332 F.3d 1245, 1255 (9th Cir. 2003).
Moreover “the scope of our review in a cancellation of
removal case is limited.” Lagandaon v. Ashcroft, 383 F.3d
983, 986 (9th Cir. 2004). 8 U.S.C. § 1252(a)(2)(B) prohibits
judicial review of “any judgment regarding the granting of
relief under section . . . 1229b,” the section governing cancel-
lation of removal. 8 U.S.C. § 1252(a)(2)(B)(i). Nonetheless,
judicial review is precluded only with respect to decisions that
constitute an exercise of the Attorney General’s discretion.
Lagandaon, 383 F.3d at 986; see also Ramirez-Perez v. Ash-
croft, 336 F.3d 1001, 1005 (9th Cir. 2003) (stating that, under
8 U.S.C. § 1252(a)(2)(B)(i), “we lack jurisdiction to review
discretionary decisions in the cancellation of removal con-
text”).
A determination that an alien lacks good moral character
that is based upon a finding that the applicant falls into one
of the “per se exclusion categories” of 8 U.S.C. § 1101(f),
such as the finding here that Gomez was confined in a penal
institution for the requisite amount of time, is not a discretion-
ary decision and therefore does not strip this court of jurisdic-
tion to review a denial of cancellation of removal. Romero-
Torres v. Ashcroft, 327 F.3d 887, 890 (9th Cir. 2003). Fur-
thermore, the question of whether a county jail is a penal
institution “turns solely upon statutory interpretation” and
“entails no exercise of discretion.” Lagandaon, 383 F.3d at
986-87. We conclude that we have jurisdiction to review
Gomez’s challenge to the IJ’s denial of his application for
cancellation of removal.
22 GOMEZ-LOPEZ v. ASHCROFT
BACKGROUND
Gomez entered the United States without being admitted or
paroled after inspection in March 1988. In January 1999,
Gomez pled guilty in Ventura County Superior Court to one
count of vehicular manslaughter while under the influence of
alcohol, in violation of California Penal Code § 192(c)(3). He
was ordered to serve 365 days in the Ventura County Jail,
beginning on March 10, 1999. The INS then filed a Notice to
Appear, charging Gomez with removability as an alien pres-
ent in the United States without being admitted or paroled.
At a hearing before the IJ, Gomez conceded removability
and designated Mexico as the country to which he wished to
be removed. In a later hearing, he sought a continuance in
order to apply for cancellation of removal, pursuant to INA
§ 240A, 8 U.S.C. § 1229b.
The IJ found that Gomez was statutorily ineligible for can-
cellation of removal because of his incarceration following his
conviction for a period of over 180 days. The IJ also found
that Gomez could not establish good moral character in order
to obtain voluntary departure because of his conviction.
Finally, the IJ found that Gomez could not establish eligibility
for adjustment of status because he could not establish that a
visa number was immediately available to him. The BIA
affirmed the decision without opinion, pursuant to 8 C.F.R.
§ 3.1(e) (2002).
STANDARD OF REVIEW
Where the BIA affirms the decision of the IJ without opin-
ion, we review the IJ’s decision. Avendano-Ramirez v. Ash-
croft, 365 F.3d 813, 815 (9th Cir. 2004). Purely legal
questions about the meaning of immigration laws are
reviewed de novo. Lagandaon, 383 F.3d at 987.
GOMEZ-LOPEZ v. ASHCROFT 23
DISCUSSION
[1] Section 240A(b) of the INA, 8 U.S.C. § 1229b(b), per-
mits the Attorney General to cancel the removal of a deport-
able alien if the alien (a) has been physically present in the
United States for a continuous period of not less than 10 years
immediately preceding the date of such application; (b) has
been a person of good moral character during such period; (c)
has not been convicted of certain offenses; and (d) establishes
that removal would result in extreme hardship to the alien’s
spouse, parent, or child, who is a citizen of the United States
or an alien lawfully admitted for permanent residence. 8
U.S.C. § 1229b(b)(1). The IJ concluded that Gomez was sta-
tutorily ineligible for cancellation of removal pursuant to 8
U.S.C. § 1101(f), which provides:
No person shall be regarded as, or found to be, a
person of good moral character who, during the
period for which good moral character is required to
be established, is, or was . . . one who during such
period has been confined, as a result of conviction,
to a penal institution for an aggregate period of one
hundred and eighty days or more.
8 U.S.C. § 1101(f)(7).
Gomez’s sole argument in this petition is that his incarcera-
tion in a county jail does not constitute confinement in a
“penal institution” for purposes of § 1101(f). His only author-
ity for this proposition is 42 U.S.C. § 259, which was repealed
in October 2000.3
3
Prior to its repeal, § 259 provided for the transfer of federal prisoners
who were drug addicts to Public Health Service hospitals from any “penal,
correctional, disciplinary, or reformatory institution of the United States,”
including federal prisoners “confined in State and Territorial prisons, peni-
tentiaries, and reformatories. . . .” 42 U.S.C. § 259(a) (repealed 2000).
County jails were not listed in former § 259(a).
24 GOMEZ-LOPEZ v. ASHCROFT
[2] In attempting to determine the meaning of a statute, “we
look first to the plain meaning . . . and give effect to that
meaning where fairly possible.” Lagandaon, 383 F.3d at 987.
It is self-evident that Gomez’s incarceration in county jail fol-
lowing a vehicular manslaughter conviction constitutes “con-
fine[ment], as a result of conviction, to a penal institution,”
within the meaning of § 1101(f)(7). 8 U.S.C. § 1101(f)(7);
see, e.g., Rivera-Zurita v. INS, 946 F.2d 118, 121 & nn. 3 &
4 (10th Cir. 1991) (assuming, without explanation, that the
petitioner’s placement in the custody of the county sheriff, as
well as his thirty-day confinement in jail, counted as confine-
ment to a penal institution for purposes of § 1101(f)(7)); Mat-
ter of Valdovinos, 18 I. & N. Dec. 343, 344 (BIA 1982)
(assuming that the alien’s incarceration in county jail consti-
tuted confinement to a penal institution for purposes of
§ 1101(f)(7)). There is no indication in the statute that Con-
gress intended to exclude from the purview of the statute con-
finement in a county jail or other local detention center. The
requirement that the confinement be as a result of a conviction
precludes counting any time a person may have spent in pre-
trial detention. Thus, the plain meaning of the statute is that
confinement in any facility — whether federal, state, or local
— as a result of conviction, for the requisite period of time,
falls within the meaning of § 1101(f)(7).4 We therefore con-
Besides the fact that this statute has been repealed, it was located in a
part of the United States Code dealing with the Public Health Service, in
Chapter 6A, Subchapter II, Part E, of Title 42, which is entitled “Narcotic
Addicts and Other Drug Abusers,” and does not concern immigration law.
4
This interpretation is consistent with decisions of the BIA in which the
Board interpreted § 1101(f)(7) to include penal institutions that are not
state or federal prisons. See Valdovinos, 18 I. & N. Dec. at 345 (assuming
that the alien’s incarceration in county jail constituted confinement in a
penal institution and finding that a county minimum security area with a
work furlough facility was a penal institution); Matter of Piroglu, 17 I. &
N. Dec. 578, 580 (BIA 1980) (stating that “the rationale behind [8 U.S.C.
§ 1101(f)(7)] was that a person who has served a jail term of a specified
length is not worthy of special exemptions from the penalties of the immi-
gration laws”) (emphasis added).
GOMEZ-LOPEZ v. ASHCROFT 25
clude that Gomez’s incarceration in a county jail constitutes
confinement to a penal institution for purposes of
§ 1101(f)(7).
CONCLUSION
[3] We do not have jurisdiction to review the IJ’s denial of
Gomez’s application for voluntary departure. We agree with
the IJ that Gomez is statutorily ineligible for cancellation of
removal pursuant to 8 U.S.C. § 1101(f)(7). The petition for
review accordingly is
DISMISSED in part and DENIED in part.