Armando Gutierrez v. Eric Holder, Jr. ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARMANDO GUTIERREZ, AKA No. 11-71788
Arturo Ramirez,
Petitioner, Agency No.
A095-733-635
v.
ERIC H. HOLDER, JR., OPINION
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
August 8, 2013—Pasadena, California
Filed September 13, 2013
Before: Richard C. Tallman, Richard R. Clifton,
and Consuelo M. Callahan, Circuit Judges.
Per Curiam Opinion
2 GUTIERREZ V. HOLDER
SUMMARY*
Immigration
The panel held that the Department of Homeland Security
may seek to terminate a prior grant of withholding of removal
in conjunction with removal proceedings, so long as it meets
its burden of demonstrating the grounds for doing so, and that
two separate proceedings are not required pursuant to
8 C.F.R. § 1208.24(f).
The panel held that Department of Homeland Security
may file a Notice to Appear when an alien is subject to an
extant withholding of removal; there need not be a separate
hearing on the termination of the withholding; the
government has the burden of demonstrating by the
preponderance of the evidence the grounds for the
termination of withholding; the government met its burden by
submitting official state records of Gutierrez’s state
convictions; and Gutierrez has not shown a denial of
procedural due process because her proceedings were not
fundamentally unfair and further proceedings would not have
changed the outcome.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
GUTIERREZ V. HOLDER 3
COUNSEL
Elizabeth A. Lopez, San Diego, California, for Petitioner.
Stuart F. Delery, Acting Assistant Attorney General, Edward
J. Duffy, Katherine A. Smith, and Dana Camilleri (argued),
Department of Justice, Washington, D.C., for Respondent.
OPINION
PER CURIAM:
Armando “Lupita” Gutierrez appeals from the denial of
her request for withholding of removal under the Convention
Against Torture (“CAT”). In a separate memorandum
disposition filed concurrently with this opinion, we conclude
that substantial evidence supports the Board of Immigration
Appeal’s determination that she is not likely to be tortured if
she is returned to Mexico. We issue this per curiam opinion
to clarify that the Department of Homeland Security (“DHS”)
may seek to terminate a prior grant of withholding of removal
in conjunction with removal proceedings as long as the DHS
meets its burden of demonstrating the grounds for doing so.
We hold that two separate proceedings are not required
pursuant to 8 C.F.R. § 1208.24(f).
Ms. Gutierrez was born in Mexico in 1970 and entered
the United States without permission in 1999. In July 2007,
an Immigration Judge (“IJ”) issued an order denying her
asylum but granting her withholding of removal.
The DHS subsequently learned that Ms. Gutierrez had
been convicted in August 2007 in a California court for
4 GUTIERREZ V. HOLDER
transporting and distributing cocaine, and sentenced to four
years in prison. It also discovered that previously, in
February 2007, Ms. Gutierrez had been convicted in state
court of a similar offense. On November 16, 2007, the DHS
issued a new Notice to Appear (“NTA”) charging that Ms.
Gutierrez was subject to removal as an alien present within
the United States without being admitted or paroled, and as
an alien convicted of a controlled substance offense.1
Ms. Gutierrez moved to terminate the proceedings,
arguing that because she had been granted withholding of
removal, she could not be removed until after the government
had met its burden of terminating the extant grant of
withholding of removal pursuant to 8 C.F.R. § 1208.24(f).2
1
8 U.S.C. § 1182(a) states that aliens who are convicted of “a violation
of (or a conspiracy or attempt to violate) any law or regulation of a State,
the United States, or a foreign country relating to a controlled substance
(as defined in section 802 of Title 21)” “are ineligible to receive visas and
ineligible to be admitted to the United States.”
2
8 C.F.R. § 1208.24(f) states:
Termination of asylum, or withholding of deportation
or removal, by an immigration judge or the Board of
Immigration Appeals. An immigration judge or the
Board of Immigration Appeals may reopen a case
pursuant to § 3.2 or § 3.23 of this chapter for the
purpose of terminating a grant of asylum, or a
withholding of deportation or removal. In such a
reopened proceeding, the Service must establish, by a
preponderance of evidence, one or more of the grounds
set forth in paragraphs (a) or (b) of this section. In
addition, an immigration judge may terminate a grant of
asylum, or a withholding of deportation or removal,
made under the jurisdiction of the Service at any time
after the alien has been provided a notice of intent to
GUTIERREZ V. HOLDER 5
The IJ denied the motion, holding that the issuance of an
NTA was a proper means of terminating a prior grant of
withholding of removal.3 The IJ explained:
8 C.F.R. § 1208.24(f) . . . reiterates that any
termination under this paragraph may occur in
conjunction with exclusion, deportation, or
removal proceedings and the Service must
establish, by a preponderance of the evidence,
that one or more of the grounds set forth in
paragraphs A or B of the subsection prevail.
One of the reasons to terminate the previous
withholding is if the alien is no longer entitled
to that because they have committed another
act which would have been grounds to either
deny that or that there are subsequent grounds
for removability or inadmissibility.
Ms. Gutierrez proceeded to oppose the NTA, arguing that she
was entitled to deferral of removal to Mexico under CAT.
The IJ denied Ms. Gutierrez withholding of removal and she
appealed to the Board of Immigration Appeals (“BIA”). The
BIA dismissed the appeal, finding that Ms. Gutierrez had not
demonstrated a likelihood of torture and that the IJ properly
terminate by the Service. Any termination under this
paragraph may occur in conjunction with an exclusion,
deportation, or removal proceeding.
3
Neither party has questioned the authority of the IJ and the BIA to
reopen removal proceedings and determine whether the grant of
withholding should be terminated. Thus, it does not appear that our
opinion in Nijjar v. Holder, 689 F.3d 1077 (9th Cir. 2012) preempts
8 C.F.R. § 1208.24(f) as it relates to this case. See also Matter of A-S-J-,
25 I. & N. Dec. 893 (BIA 2012).
6 GUTIERREZ V. HOLDER
denied her motion to terminate. Ms. Gutierrez filed a timely
petition for review.
Ms. Gutierrez’s motion to terminate alleged that the
government could not file a new NTA without first
terminating the existing grant of withholding of removal. She
argues, quoting from Ntangsi v. Gonzales, 475 F.3d 1007,
1012 (8th Cir. 2007), that when the government seeks to
reopen the proceedings of an alien who has been granted legal
status in this country, “it carries the burden of proving – by a
preponderance of the evidence – one of several grounds for
terminating asylum.” She argues that although the issue has
not been determined by the Ninth Circuit, we should agree
with the Eighth Circuit and hold that “the failure to place this
burden upon the government is reversible legal error.” Id.Ms. Gutierrez’s request for relief fails on several counts.
First, 8 C.F.R. § 1208.24(f) clearly contemplates that
termination of withholding proceedings may be brought while
a grant of withholding is outstanding. Subsection (f)
concludes with the sentence: “Any termination under this
paragraph may occur in conjunction with an exclusion,
deportation, or removal proceeding.” (Emphasis added.)
Accordingly, we agree with the BIA that the DHS properly
initiated the NTA.
Second, the government has met its burden of
demonstrating the grounds for the termination of withholding.
Like the Eighth Circuit in Ntangsi, 475 F.3d at 1012, we read
8 C.F.R. § 1208.24(f) as requiring the government to show by
a preponderance of the evidence the presence of one of
several grounds for terminating the withholding of removal.
Here, the government met its burden by submitting official
state court records of the criminal complaints filed against
GUTIERREZ V. HOLDER 7
Ms. Gutierrez and of her convictions. Indeed, Ms. Gutierrez
has never denied that she was twice charged and convicted in
California of transporting and distributing cocaine.
Ms. Gutierrez’s convictions rendered her ineligible for
any visa under 8 U.S.C. § 1182(a)(2)(A)(i)(II). In addition,
they constituted grounds for the termination of withholding
pursuant to 8 C.F.R. § 1208.24(b). She failed to mention her
first conviction in her application for withholding, and
§ 1208.24(b)(2) provides for termination where “[t]here is a
showing of fraud in the alien’s application such that the alien
was not eligible for withholding of removal at the time it was
granted.” Furthermore, Ms. Gutierrez’s second conviction
supports termination of withholding pursuant to 8 C.F.R.
§ 1208.24(b)(3) (providing for termination for an alien who
“has committed any other act that would have been grounds
for denial of withholding of removal under section
241(b)(3)(B) of the Act had it occurred prior to the grant of
withholding of removal.”); see also Miguel-Miguel v.
Gonzales, 500 F.3d 941, 949 (9th Cir. 2007) (accepting the
Attorney General’s strong presumption that all drug
trafficking offenses are particularly serious crimes).
Finally, Ms. Gutierrez’s assertion that DHS should follow
a two-step process of first holding a separate hearing on
termination before considering her request for relief under the
CAT is not well taken. Such a proceeding is not required by
the regulations and would not have led to a different result.
In Zetino v. Holder, 622 F.3d 1007 (9th Cir. 2010) (en banc),
we reiterated that for the court to grant relief on a claim of a
denial of due process by the BIA, the petitioner must show
“(1) the proceeding was so fundamentally unfair that the alien
was prevented from reasonably presenting his case, and (2)
the alien demonstrates prejudice, which means that the
8 GUTIERREZ V. HOLDER
outcome of the proceeding may have been affected by the
alleged violation.” Id. at 1013 (quoting Ibarra-Flores v.
Gonzales, 439 F.3d 614, 620–21 (9th Cir. 2006)). Ms.
Gutierrez’s proceedings were not fundamentally unfair.
Moreover, she has not proffered any evidence that might have
justified the IJ not terminating her withholding of removal.
We conclude that: (1) DHS may file a Notice to Appear
when an alien is subject to an extant withholding of removal;
(2) there need not be a separate hearing on the termination of
the withholding; (3) the government has the burden of
demonstrating by the preponderance of the evidence the
grounds for the termination of withholding; (4) the
government met its burden by submitting official state
records of Ms. Gutierrez’s state convictions; and (5) Ms.
Gutierrez has not shown a denial of procedural due process
because her proceedings were not fundamentally unfair and
further proceedings would not have changed the outcome.
The petition for review is DENIED.