Hugo Hernandez Ceren v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 5 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HUGO HERNANDEZ CEREN, AKA Hugo No. 18-72612
Ceren,
Agency No. A073-956-722
Petitioner,
v. MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 12, 2020
Pasadena, California
Before: BERZON, TALLMAN, and R. NELSON, Circuit Judges.
Hugo Hernandez Ceren (“Ceren”), a native and citizen of El Salvador, seeks
review of the decision of the Board of Immigration Appeals (“BIA”) to affirm the
immigration judge’s (“IJ”) denial of his request for asylum, withholding of
removal, and protection under the Convention Against Torture from El Salvador
and Mexico. We deny his petition for review.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
I
Ceren does not contest that he is ineligible for asylum from El Salvador and
Convention Against Torture protection from both El Salvador and Mexico. Those
issues are therefore waived. See, e.g., Corro-Barragan v. Holder, 718 F.3d 1174,
1177 n.5 (9th Cir. 2013).
II
Ceren disputes the IJ’s determination that he was convicted of a “particularly
serious crime” and therefore is ineligible for withholding of removal. INA §§
208(b)(2)(A)(ii), 241(b)(3)(B)(ii), 8 U.S.C. §§ 1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii).
We review an agency’s decision that a crime was “particularly serious” for abuse
of discretion. Arbid v. Holder, 700 F.3d 379, 383 (9th Cir. 2012) (per curiam).
Review is “limited to ensuring that the agency relied on the appropriate factors and
proper evidence to reach [its] conclusion.” Avendano-Hernandez v. Lynch, 800
F.3d 1072, 1077 (9th Cir. 2015) (internal quotation marks omitted). Because the
BIA adopted the IJ’s decision, citing Matter of Burbano, 20 I. & N. Dec. 872, 874
(BIA 1994), the IJ’s particularly serious crime determination is the subject of our
review. Abebe v. Gonzales, 432 F.3d 1037, 1040 (9th Cir. 2005) (en banc).
The IJ employed the requisite case-by-case analysis to determine that
Ceren’s conviction for stalking under California Penal Code § 646.9(b) was a
particularly serious crime. In conducting her analysis, the IJ considered all
2
relevant factors: (1) the nature of the crime, including that it involved threats
against a person rather than property; (2) the fact that Ceren was given a “three-
year prison sentence”; and (3) the underlying circumstances of the offense. See
Alphonsus v. Holder, 705 F.3d 1031, 1041 (9th Cir. 2013).
The dissent misunderstands the original sentence imposed by the California
Superior Court when Ceren was convicted of felony stalking under California
Penal Code § 646.9(b). Ceren was sentenced to three years’ imprisonment for his
conviction for stalking; execution of the prison sentence was suspended and he was
placed on formal probation for a period of three years and ordered to serve 365
days in county jail. When he later violated his probation in 2011, the court
returned him to prison to serve the entirety of the three-year sentence. The IJ did
not err in stating that Ceren’s felony conviction led to a three-year sentence.
Generally, under the Immigration and Nationality Act, any reference to a
“sentence” also includes a suspended sentence. See 8 U.S.C. §§ 1101(a)(48)(B),
1231(b)(3)(B)(ii). Moreover, Ceren ultimately served his three-year prison
sentence after violating his probation by again contacting his ex-wife, repeating the
conduct that led to his original conviction.
This case is not governed by Flores-Vega v. Barr, 932 F.3d 878 (9th Cir.
2019), which held that the BIA abused its discretion in part by considering the
potential penalty rather than the sentence imposed, id. at 885, or by Avendano-
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Hernandez, which held that the sentence for a probation violation cannot be
considered a “sentence enhancement,” 800 F.3d at 1078. Here, Ceren was both
originally sentenced to, and actually served, a three-year prison term and the IJ did
not consider the previously suspended sentence an enhancement as punishment for
the probation violation. The IJ had all of the relevant court records before her,
which recount Ceren’s serious actions in threatening to kill his ex-wife, the “more
than a hundred messages” he sent to harass her, and his repeated violation of a
judicial restraining order. The IJ therefore did not abuse her discretion in
determining that Ceren’s conviction for stalking was a particularly serious crime.
III
The IJ also did not abuse her discretion in denying Ceren’s second motion to
continue. See Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1246–47 (9th Cir. 2008)
(per curiam). At the end of the first day of Ceren’s hearing on March 14, after all
testimony had been taken, the IJ continued the proceedings to March 22 in order to
issue her oral decision. She also allowed Ceren’s counsel that extra time to submit
properly translated copies of several documents to the court. Ceren’s counsel did
not appear on March 22 and Ceren requested a second continuance, which was
denied. The properly translated documents were never submitted to the IJ or the
BIA. Because the hearing was originally continued for the limited purpose of
allowing the IJ to render her decision and Ceren was not prejudiced by the absence
4
of his attorney during the reading of the IJ’s determination, he also was not denied
a right to counsel. See Gomez-Velazco v. Sessions, 879 F.3d 989, 994–95 (9th Cir.
2018).
The petition for review is DENIED.
5
FILED
Hernandez Ceren v. Barr, No. 18-72612 MAR 5 2020
MOLLY C. DWYER, CLERK
BERZON, Circuit Judge, dissenting: U.S. COURT OF APPEALS
I concur in Part I of the memorandum disposition, but respectfully dissent
from Parts II and III. I would grant the petition in part and remand for further
proceedings.
1. This Court’s review of a “particularly serious crime” determination is
“limited to ensuring that the agency relied on the ‘appropriate factors’ and ‘proper
evidence’ to reach [its] conclusion.” Avendano-Hernandez v. Lynch, 800 F.3d F.3d
1072, 1077 (9th Cir. 2015). Here, the IJ relied on inaccurate evidence. The IJ
erroneously stated that Ceren was “sentenced to three years in prison,” to support
her conclusion that the crime for which he was sentenced was “particularly
serious.” Ceren was in fact given a partially suspended sentence for his original
conviction, comprised of one year in county jail and three years of probation.
Almost two years later, Ceren was sentenced to three years in state prison for
violation of his probation.
The IJ either failed to acknowledge or did not realize that Ceren was
originally given a suspended sentence; never recognized that Ceren was sentenced
to time in prison only in response to a probation violation; and did not describe or
consider the seriousness of the conduct underlying the probation violation—which
was mailing one card to his ex-wife.
1
Even if it is appropriate to consider the sentence imposed for a probation
violation when it is for the same or similar conduct as the original conviction, there
is no indication that the IJ or the BIA realized that the sentence relied upon was for
a probation violation. The IJ does not mention that Ceren violated his probation or
discuss the conduct underlying the probation violation in rendering her decision.
Compare Avendano-Hernandez, 800 F.3d at 1078 (holding any error in
considering the sentence for violation of probation harmless because the BIA
properly identified Avendano-Hernandez’s original sentence).
Relatedly, the IJ did not appropriately consider the “type of sentence
imposed” for Ceren’s original conviction, which was a suspended sentence.
Receiving a suspended sentence, as opposed to a sentence of incarceration, can
affect whether a crime is “particularly serious.” Flores-Vega v. Barr emphasized
that “neither the IJ nor the BIA even mentioned, in analyzing the Frentescu factors,
that Flores-Vega received an entirely suspended one-year sentence.” 932 F.3d 878,
885 (9th Cir. 2019). In Matter of Frentescu, the case that established the relevant
factors for determining if a crime was “particularly serious,” the BIA noted that
“the applicant received a suspended sentence after spending a relatively short
period of time in prison (3 months). Such sentence, as viewed by the state circuit
court judge, reflects upon the seriousness of the applicants danger to the
community.” 18 I. & N. Dec. at 247. These cases indicate that the IJ must consider
2
the sentence imposed for the original conviction, including whether that sentence
was suspended, in assessing whether the crime was “particularly serious.”
I would hold that the IJ abused her discretion by failing to consider the
appropriate sentencing factors when making her “particularly serious crime”
determination.
2. I would also hold that the IJ abused her discretion and denied Ceren the
right to counsel when she refused to grant his motion to continue at the March 22,
2018 continued merits hearing. “Absent a showing of clear abuse, we typically do
not disturb an IJ’s discretionary decision not to continue a hearing. Nonetheless,
we cannot allow a myopic insistence upon expeditiousness to render the right to
counsel an empty formality.” Biwot v. Gonzales, 403 F.3d 1094, 1099 (9th Cir.
2005) (internal citation and quotation marks omitted).
At the March 22, 2018 continued merits hearing, Ceren appeared without
counsel. Despite understanding that Ceren’s lawyer was ill, that Ceren’s lawyer
expected to finish her closing arguments and submit translated documents for
consideration at the continued hearing, and that the hearing would have to be
postponed for only a few weeks to allow Ceren to appear with counsel, the IJ
denied Ceren’s motion to continue as not “supported by good cause because [she
was] not certain that it would be fruitful.”
3
A petitioner is not required to show that he was prejudiced by the absence of
his attorney at a merits hearing because “denial of counsel in an immigration
proceeding is serious enough to be reversible without a showing of error.” Montes-
Lopez v. Holder, 694 F.3d 1085, 1093-94 (9th Cir. 2012). I therefore would hold
that the IJ abused her discretion by denying Ceren’s motion to continue and so
violating his right to counsel. 1
For those reasons, I would deny the petition in part, grant the petition in part,
and remand for further proceedings.
1
Gomez-Velazco v. Sessions held that petitioners are required to demonstrate
prejudice when they are denied counsel during an initial interaction with DHS
officers, which is a “discrete stage” of expedited removal proceedings. 879 F.3d
989, 994 (9th Cir. 2018). Here, Ceren was denied counsel at his continued merits
hearing, not a preliminary or nonsubstantive proceeding.
4