Rene Guevara-Solorzano v. Jefferson B. Sessions III

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-2434
RENE GUEVARA-SOLORZANO,
Petitioner,
v.
JEFFERSON B. SESSIONS III, U.S. Attorney General,
Respondent.
No. 17-1833
RENE GUEVARA-SOLORZANO,
Petitioner,
v.
JEFFERSON B. SESSIONS III, U.S. Attorney General,
Respondent.
On Petitions for Review of Orders of the Board of Immigration Appeals.
Argued: March 20, 2018 Decided: May 24, 2018
Before NIEMEYER and KING, Circuit Judges, and Leonie M. BRINKEMA, United
States District Judge for the Eastern District of Virginia, sitting by designation.
No. 16-2434, petition dismissed in part and denied in part; No. 17-1833, petition
dismissed by published opinion. Judge Brinkema wrote the opinion, in which Judge
Niemeyer and Judge King joined.
ARGUED: Jeremy Layne McKinney, MCKINNEY IMMIGRATION LAW,
Greensboro, North Carolina, for Petitioner. Andrew Nathan O’Malley, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON
BRIEF: Chad A. Readler, Principal Deputy Assistant Attorney General, Cindy S. Ferrier,
Assistant Director, Office of Immigration Litigation, Civil Division, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
2
BRINKEMA, District Judge:
In this immigration case, petitioner Rene Guevara-Solorzano (“Guevara-
Solorzano” or “petitioner”) petitions for review of two final orders of the Board of
Immigration Appeals (“BIA”) respectively issued on December 6, 2016 and July 6, 2017.
In petition number 16-2434, Guevara-Solorzano challenges the BIA’s determination that
he is subject to removal pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii) (Immigration and
Nationality Act (“INA”) § 237(a)(2)(A)(ii)) as an alien who has been convicted of two
crimes involving moral turpitude (“CIMTs”) not arising out of a single scheme of
misconduct and that he is ineligible for a waiver of removal under former INA § 212(c).
In petition number 17-1833, Guevara-Solorzano challenges the BIA’s denial of his
motion to reconsider and reopen and, in particular, the BIA’s determination that he is
subject to removal pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) (INA § 237(a)(2)(A)(iii)) as
an alien who has been convicted of an aggravated felony relating to the illicit trafficking
in a controlled substance and is therefore ineligible for cancellation of removal pursuant
to 8 U.S.C. § 1229b(a) (INA § 240A(a)).
For the reasons that follow, we hold that petitioner’s 1995 conviction for unlawful
possession of marijuana with intent to manufacture, deliver, or sell constitutes a
conviction of both an aggravated felony and a CIMT. Therefore, we do not have
jurisdiction to review petitioner’s challenges to the BIA’s decisions, except to the extent
that they raise constitutional or legal issues. In addition, we hold that petitioner is
ineligible for relief under former INA § 212(c) because his 2000 convictions for felony
larceny and felony breaking and entering constitute convictions of CIMTs that are not
3
waivable under § 212(c), which was repealed in 1996. Moreover, petitioner is ineligible
for cancellation of removal under INA § 240A(a) because such relief is not available to
any alien who has been convicted of an aggravated felony. Accordingly, we dismiss
petition number 17-1833 and dismiss in part and deny in part petition number 16-2434.
I
Guevara-Solorzano, who is a native and citizen of Mexico, first came to the
United States in 1984, when his parents moved to this country to work as manual
agricultural laborers. AR 45. In 1990, he adjusted his status to lawful permanent resident.
AR 428. On March 13, 1995, Guevara-Solorzano pleaded guilty in Tennessee to the state
crime of unlawful possession of marijuana with intent to manufacture, deliver, or sell, in
violation of Tennessee Code § 39-17-417. Id. On July 20, 2000, he pleaded guilty in state
court in Guilford County, North Carolina to felony breaking and entering and felony
larceny. 1 Id.
The Department of Homeland Security initiated removal proceedings against
petitioner on August 12, 2010 by filing a Notice to Appear, which charged Guevara-
Solorzano with being subject to removal on three grounds. Specifically, he was charged
under 8 U.S.C. § 1227(a)(2)(A)(ii) (INA § 237(a)(2)(A)(ii)) with being an alien who has
been convicted of two CIMTs not arising out of a single scheme of criminal misconduct;
under 8 U.S.C. § 1227(a)(2)(A)(iii) (INA § 237(a)(2)(A)(iii)) with being an alien who has
1
These two charges apparently stemmed from Guevara-Solorzano’s “unlawful
entry into a bar and the concurrent larceny of approximately $100 worth of beer and
cigarettes.” AR 499, 808.
4
been convicted of an aggravated felony relating to the illicit trafficking in a controlled
substance; and under 8 U.S.C. § 1227(a)(2)(B)(i) (INA § 237(a)(2)(B)(i)) with being an
alien who has been convicted of a controlled substance offense. AR 905.
At a hearing before an immigration judge (“IJ”), Guevara-Solorzano, through
counsel, conceded that he was removable as charged for being an alien convicted of an
aggravated felony and of a controlled substance offense; however, he denied that he was
subject to removal as an alien convicted of two or more CIMTs not arising out of a single
scheme of misconduct. AR 440. After conceding his removability, petitioner sought a
waiver under former INA § 212(c), 8 U.S.C. § 1182(c) (repealed 1996), for his 1995
Tennessee marijuana conviction. AR 438-467, 499-502. Section 212(c) authorized
discretionary relief from deportation for some permanent resident aliens who had been
domiciled in the United States for seven consecutive years; however, between 1990 and
1996, Congress progressively narrowed the class of aliens eligible for § 212(c) relief and
repealed § 212(c) entirely in September 1996, replacing it with INA § 240A, 8 U.S.C. §
1229b, which allows some aliens to apply for cancellation of removal but excludes any
alien who has been convicted of an aggravated felony. Resp. Br. 5 n.3.
On January 15, 2014, the IJ issued a written decision pretermitting and denying
petitioner’s § 212(c) application. AR 431-435. The IJ found that Guevara-Solorzano’s
convictions in 1995 and 2000 were for offenses qualifying as CIMTs that did not arise
out of a single scheme of criminal misconduct. Because this ground for removability did
not arise until 2000, four years after the statute had been repealed, § 212(c) relief was no
longer available at the time Guevara-Solorzano became removable on the CIMT basis.
5
Therefore, the IJ held that Guevara-Solorzano was ineligible for § 212(c) relief with
respect to the CIMT ground of removability. Id. In reaching this conclusion, the IJ relied
on a published BIA decision holding that a conviction “may be alleged as one of the [two
CIMTs] in a second proceeding, even though the first proceeding was terminated by” a §
212(c) waiver if “the second crime alleged is a subsequent conviction or a conviction that
was not disclosed in the prior proceeding.” AR 433 (quoting In re Balderas, 20 I. & N.
Dec. 389, 391 (BIA 1991)). The IJ also relied on a Seventh Circuit decision directly on
point, which held that an alien may not “avoid removal using a section 212(c) waiver” if
the alien has a second CIMT conviction to which § 212(c) relief does not apply. AR 434
(citing Bakarian v. Mukasey, 541 F.3d 775 (7th Cir. 2008)). Petitioner appealed the IJ’s
decision to the BIA.
On December 6, 2016, the BIA dismissed Guevara-Solorzano’s appeal, AR 355-
358, observing that he had conceded that his 2000 convictions were for crimes qualifying
as CIMTs and that the marijuana offense to which he pleaded guilty in 1995 constituted
an aggravated felony as well as a controlled substance offense, which concessions
subjected him to removal, AR 355-356. The BIA further held, relying on BIA precedent
establishing that participation in illicit drug trafficking is a CIMT, that petitioner’s 1995
conviction also constituted being convicted of a CIMT. AR 356. Although the BIA
observed that there was no dispute that a § 212(c) waiver would waive the aggravated
felony and controlled substance conviction grounds of removability, both of which relied
solely on the 1995 conviction, it held, as had the IJ, that § 212(c) relief was not available
to waive the CIMT ground for removability. AR 356-357. According to the BIA,
6
“[b]ecause ‘a grant of section 212(c) relief waives the finding of excludability or
deportability rather than the basis of the excludability itself,’ it cannot waive a charge of
deportability where it does not reach one of the convictions that is the basis for the
charge.” AR 357 (quoting In re Balderas, 20 I. & N. Dec. at 391). Because the 2000
convictions, which occurred after the repeal of § 212(c), were one of the bases for the
CIMT ground for removability, the BIA determined that § 212(c) was not available to
waive this ground. Accordingly, the BIA affirmed the IJ’s decision and dismissed the
appeal. Id. On December 20, 2016, petitioner filed a timely petition in this Court for
review of this decision.
On January 5, 2017, petitioner filed with the BIA a motion requesting that the BIA
reconsider its December 6, 2016 decision and reopen proceedings to permit him to apply
for cancellation of removal pursuant to INA § 240A(a). AR 317-326. The basis of this
motion was the combination of the Supreme Court’s decision in Moncrieffe v. Holder,
569 U.S. 184 (2013), which Guevara-Solorzano contended rendered his 1995 conviction
no longer to qualify as a conviction of an aggravated felony, and this Court’s decision in
Jaghoori v. Holder, 772 F.3d 764 (4th Cir. 2014), which petitioner contended rendered
him eligible to seek cancellation of removal if his 1995 conviction was not for a crime
qualifying as an aggravated felony. The BIA denied Guevara-Solorzano’s motion,
rejecting his argument that the Tennessee drug statute did not qualify as an aggravated
felony and finding that, as an alien who has been convicted of an aggravated felony, he
was ineligible for cancellation of removal under INA § 240A(a). AR 3-4. Petitioner filed
7
a timely petition for review of this decision. Petitioner’s two petitions for review have
been consolidated and are now before us.
II
Although orders of removal are generally subject to judicial review, 8 U.S.C. §
1252(a)(1), our jurisdiction is limited by 8 U.S.C. § 1252(a)(2)(C), which provides that
“no court shall have jurisdiction to review any final order of removal against an alien
who is removable by reason of having committed” an aggravated felony, a controlled
substance offense, or, in some situations, two or more CIMTs. Because we always have
jurisdiction to determine our jurisdiction, we must first evaluate whether petitioner has
been convicted of an offense triggering the jurisdiction-stripping provision. Argaw v.
Ashcroft, 395 F.3d 521, 523-24 (4th Cir. 2005). Whether a crime is an aggravated felony
or a CIMT is a question of law that we review de novo. See Castendet-Lewis v. Sessions,
855 F.3d 253, 260 (4th Cir. 2017). Of course, we always retain jurisdiction to review
“constitutional claims or questions of law.” 8 U.S.C. § 1252(a)(2)(D).
III
A
To determine whether petitioner is removable as an alien who has been convicted
of the aggravated felony of “illicit trafficking in a controlled substance,” 8 U.S.C. §
1101(a)(43)(B), we must apply the categorical approach, which requires us to “compare
the elements of the statute forming the basis of the defendant’s conviction with the
elements of the ‘generic’ crime, i.e., the offense as commonly understood.” Descamps v.
United States, 570 U.S. 254, 257 (2013). Petitioner’s 1995 marijuana conviction
8
categorically qualifies as an aggravated felony conviction “only if the statute’s elements
are the same as, or narrower than, those of the generic offense” of illicit trafficking in a
controlled substance. Id. The Supreme Court has determined that the generic offense of
illicit trafficking in a controlled substance “encompasses all state offenses that proscrib[e]
conduct punishable as a felony under” the Controlled Substances Act (“CSA”).
Moncrieffe, 569 U.S. at 192 (alteration in original) (internal quotation marks omitted).
Accordingly, if there is a “realistic probability” that the relevant Tennessee statute taken
as a whole could be applied to conduct that is not punishable as a felony under the CSA,
petitioner’s conviction under that statute does not categorically qualify as a conviction of
an aggravated felony, see id. at 191 (internal quotation marks omitted), unless the statute
is divisible. To determine whether the statute is “divisible,” we must evaluate whether it
“list[s] elements in the alternative, and thereby define[s] multiple crimes.” Mathis v.
United States, 136 S. Ct. 2243, 2249 (2016). Lastly, if the statute is divisible, we may
look “to a limited class of documents” to “determine what crime, with what elements, a
defendant was convicted of,” and then compare this narrower crime to the relevant
generic offense, using the categorical approach described above. See id.
In 1995, the Tennessee statute that Guevara-Solorzano was convicted of violating,
Tennessee Code § 39-17-417, read in relevant part:
39-17-417 Criminal offenses and penalties
(a) It is an offense for a defendant to knowingly:
(1) Manufacture a controlled substance;
(2) Deliver a controlled substance;
(3) Sell a controlled substance; or
(4) Possess a controlled substance with intent to manufacture, deliver or
sell such controlled substance.
9
...
(g)
(1) A violation of subsection (a) with respect to a Schedule VI
controlled substance classified as marijuana containing not less than
one-half ounce (14.175 grams) nor more than ten pounds (10 lbs.) (4535
grams) of marijuana, or a Schedule VI controlled substance defined as a
non-leafy, resinous material containing tetrahydrocannabinol (hashish),
containing not more than two pounds (2 lbs.) (905 grams) of hashish is a
Class E felony and, in addition thereto, may be fined not more than five
thousand dollars ($5,000).
(2) A violation of subsection (a) with respect to a Schedule VI
controlled substance classified as marijuana containing not less than ten
pounds (10 lbs.), one (1) gram (4536 grams) nor more than seventy
pounds (70 lbs.) (31,696 grams) of marijuana, or a Schedule VI
controlled substance defined as a non-leafy, resinous material
containing tetrahydrocannabinol (hashish) and containing not less than
two pounds (2 lbs.), one (1) gram (906 grams) nor more than fifteen
pounds (15 lbs.) (6,792 grams) of hashish is a Class D felony and, in
addition thereto, may be fined not more than fifty thousand dollars
($50,000).
....
AR 505-507.
The government concedes, contra the BIA panel decision in this case, that a
conviction under this undivided statute does not qualify as an aggravated felony. Resp.
Mem. 20-22. As discussed in Moncrieffe, the CSA contains a misdemeanor exception for
individuals who distribute a “small amount of marihuana for no remuneration.” See 21
U.S.C. § 841(b)(4). Although the CSA does not define “small amount,” the Moncrieffe
decision observed that the BIA has suggested that 30 grams, or approximately 1 ounce, is
a useful guidepost. See 569 U.S. at 194 n.7. The Tennessee statute at issue reaches
conduct including possession with intent to deliver one half-ounce, or approximately 14
grams, of marijuana and does not include any reference to remuneration. See Tenn. Code
§ 39-17-417(g)(1). Accordingly, the undivided statute criminalizes conduct including
10
conduct characterized as a misdemeanor under the CSA. Therefore, a conviction under
the undivided statute does not categorically constitute a conviction of an aggravated
felony of illicit trafficking in a controlled substance.
Although a conviction under the undivided Tennessee statute does not
categorically qualify as an aggravated felony conviction, we must next determine whether
the statute is divisible with respect to the drug types and quantities listed after subsection
(a) 2 and, if so, whether the record indicates that petitioner was convicted under a divided
subsection that itself categorically qualifies as illicit trafficking in a controlled substance.
As an initial matter, we find that the statute is divisible because each subsection
provides for a different punishment depending on the quantity and type of drug involved.
See Mathis, 136 S. Ct. at 2256 (“[T]he statute on its face may resolve the issue. If
statutory alternatives carry different punishments, then under [Apprendi v. New Jersey,
530 U.S. 466 (2000),] they must be elements.”). Moreover, the Supreme Court has held
that federal courts may “peek” at the “record of a prior conviction itself” to determine
whether the statute lists alternative elements. Id. at 2256-57 (internal quotation marks
omitted). For example, if an indictment “referenc[es] one alternative term to the
exclusion of all others,” it indicates that “the statute contains a list of elements, each one
of which goes toward a separate crime.” Id. at 2257. Although the indictment underlying
petitioner’s 1995 conviction does not cite statutory subsections (e.g., (a)(4) or (g)(2)) but
2
The parties do not dispute that § 39-17-417 is divisible with respect to the four
offenses listed in subsection (a) and that petitioner was convicted of violating (a)(4). See
Resp. Mem. 23-24.
11
instead charges petitioner more generally with violating § 39-17-417, it specifically spells
out that petitioner was charged in Count 1 with “possess[ing] with intent to sell a
controlled substance, to wit: MARIJUANA, in an amount in excess of four thousand five
hundred thirty-six (4536) grams,” and in Count 2 with “possess[ing] with intent to deliver
a controlled substance, to wit: MARIJUANA, in an amount in excess of four thousand
five hundred thirty-six (4536) grams.” AR 822-823. 3 The indictment’s allegations of the
type and quantity of drugs indicate that the statutory subsections define different
elements. This conclusion is reinforced by the state court judgment specifying that
Guevara-Solorzano’s conviction was for a Class D Felony, which is consistent only with
a conviction under subsection (g)(2) and not with a conviction under subsection (g)(1).
AR 821.
This conclusion is bolstered by Tennessee case law, which indicates that the type
and quantity of drugs are elements of the offense that must be proven beyond a
reasonable doubt. See, e.g., State v. Walker, 29 S.W.3d 885, 892-93 (Tenn. Crim. App.
1999) (“We conclude that the trial court erred by failing to instruct the jury that it must
find beyond a reasonable doubt that the defendant sold one-half gram or more of cocaine.
The amount of cocaine sold by the defendant is an essential element of the Class B felony
of selling cocaine.”); State v. Hilliard, 906 S.W.2d 466, 469-70 (Tenn. Crim. App. 1995)
3
The state court judgment appears to indicate that Guevara-Solorzano pleaded
guilty to Count 1, which specified possession with intent to sell, see AR 821; however, as
discussed below, Tennessee case law indicates that intent to sell and intent to deliver are
different means of committing the same crime, not different elements, and it is therefore
immaterial to our current analysis whether the guilty plea involved Count 1 or Count 2.
12
(reducing a conviction from a Class B felony to a Class C felony when the indictment
failed to allege drug weight because “the type of crime committed depends on the amount
possessed, making the amount an element of the offense” that must be alleged in the
indictment).
Although petitioner cites two cases for the proposition that the various enumerated
drug types and quantities represent “alternative means of violating” the statute “rather
than elements of the offense,” Pet. Reply 7-8 (citing Taylor v. State, No. W2011-27-
CCA-43-PC, 2012 WL 432856 (Tenn. Crim. App. Feb. 7, 2012); and Justice v. State, No.
M2012-183-CCA-R3-PC, 2013 WL 1965999 (Tenn. Crim. App. May 13, 2013)), neither
case is helpful to petitioner. In both cases, the court held that the intents specified in
subsection (a)(4), which criminalizes possession with the intent to manufacture, deliver,
or sell the controlled substance, represent means rather than elements. Accordingly, an
indictment need not specify, and a jury need not unanimously agree on, which of the
three intents a criminal defendant possessed. Although both cases use the same broad
language that could be read to indicate that drug type and quantity are not elements, see
Taylor, 2012 WL 432856, at *5 (“The offense has three elements: (1) knowing
possession, (2) of contraband, (3) with the intent to manufacture, deliver, or sell it.”);
Justice, 2013 WL 1965999, at *10 (quoting Taylor), it is clear that the court in each case
held only that the intents to manufacture, deliver, and sell are not distinct elements. These
two cases do not overcome the conclusion compelled by the case law cited above, and by
the varying punishments the statute provides for different drug types and quantities, as
well as the record documents in this case, that the drug types and quantities are distinct
13
elements. Therefore, § 39-17-417 is divisible among the various subsections with respect
to drug type and quantity, and the record documents further make clear that petitioner
was convicted of violating subsections (a)(4) and (g)(2), see AR 821-825, which only
apply to possession with intent to manufacture, deliver, or sell between ten and seventy
pounds of marijuana.
Based on the Moncrieffe analysis, such a crime is categorically an aggravated
felony because it only involves conduct that would be criminalized as a felony under the
CSA, specifically the knowing or intentional “possess[ion] with intent to manufacture,
distribute, or dispense, a controlled substance.” 21 U.S.C. § 841(a)(1). A violation of §
841(a)(1) that involves “less than 50 kilograms of marihuana,” with the exception of a
violation involving the “distribut[ion of] a small amount of marihuana for no
remuneration,” id. § 841(b)(4), is a felony punishable by a term of imprisonment of not
more than five years, id. § 841(b)(1)(D). A violation of subsections (a)(4) and (g)(2) of §
39-17-417 involves possessing with intent to manufacture, deliver, or sell between
approximately 4.5 kilograms and 31.7 kilograms of marijuana, conduct that is entirely
covered by 21 U.S.C. § 841(b)(1)(D) and, therefore, conduct that is criminalized as a
felony under the CSA. Accordingly, petitioner’s 1995 marijuana conviction was for the
aggravated felony of illicit trafficking in a controlled substance.
In response to the government’s concession that the BIA incorrectly determined
that the undivided Tennessee Code § 39-17-417 categorically matches the aggravated
felony of illicit drug trafficking, Guevara-Solorzano argues that we “may affirm the BIA
only on the grounds stated in the opinion and may not substitute what [this Court]
14
consider[s] to be a more adequate or proper basis for its conclusion.” Pet. Reply 6
(alterations in original) (quoting Oliva v. Lynch, 807 F.3d 53, 57 (4th Cir. 2015)).
Although this is a correct statement of the law, exceptions have been recognized. For
example, in Crespin-Valladares v. Holder, 632 F.3d 117 (4th Cir. 2011), the Court
acknowledged this rule but declined to remand to the BIA where it was likely that the
BIA would reach the same conclusion for more adequate reasons, concluding that under
such circumstances a remand would just waste resources. See id. at 123.
The question of whether petitioner’s 1995 conviction constitutes a conviction of
an aggravated felony is determined de novo by this Court. Regardless of the basis upon
which the BIA reached its decision, our conclusion that petitioner’s 1995 conviction does
so qualify resolves the issue, and it would waste the resources of the parties and the BIA
to remand the question. Moreover, with respect to the categorical approach, the agency
has no particular expertise to bring to the matter, nor is there any need to develop or
evaluate factual evidence beyond that already in the record. Accordingly, there is no
principled reason to remand to the agency.
On this record, the BIA correctly determined, although for the wrong reason, that
Guevara-Solorzano was convicted in 1995 of an aggravated felony, thereby rendering
him removable pursuant to INA § 237(a)(2)(A)(iii). This conclusion means we are
without jurisdiction to review Guevara-Solorzano’s petition number 17-1833, which
challenges the BIA’s denial of his motion to reopen so that it might reconsider its
determination that the 1995 conviction qualified as a conviction of an aggravated felony,
and that as a result of having that conviction, petitioner is removable and ineligible for
15
cancellation of removal pursuant to INA § 240A(a). For these reasons, petition number
17-1833 must be dismissed.
B
To determine whether Guevara-Solorzano’s 1995 marijuana conviction also
constitutes a conviction of a CIMT, we must again apply the categorical approach, which
involves comparing the elements of the statute of conviction against the elements
recognized for a CIMT. A CIMT is a crime that is “inherently base, vile, or depraved,”
meaning that it involves conduct “that not only violates a statute but also independently
violates a moral norm.” Uribe v. Sessions, 855 F.3d 622, 625 (4th Cir. 2017) (internal
quotation marks omitted). This Court has held that a CIMT “requires two essential
elements: a culpable mental state and reprehensible conduct.” Sotnikau v. Lynch, 846
F.3d 731, 735-36 (4th Cir. 2017) (internal quotation marks omitted). 4 Under our previous
conclusion that the Tennessee statute is divisible, if the “least of the acts criminalized” by
the two subsections (a)(4) and (g)(2), which were violated by petitioner, involves a
culpable mental state and reprehensible conduct, then petitioner’s conviction constitutes a
conviction of a CIMT. See Moncrieffe, 569 U.S. at 190-91 (internal quotation marks and
alterations omitted).
4
Petitioner argues, in a footnote and without substantial elaboration, that the term
“crime involving moral turpitude” should “be declared void for vagueness.” Pet. Br. 13
n.3. This Court has recently rejected this argument. See Boggala v. Sessions, 866 F.3d
563, 569-70 (4th Cir. 2017).
16
It is clear that a violation of subsections (a)(4) and (g)(2) of § 39-17-417 is a
CIMT. First, such a violation requires a culpable mental state because subsection (a)(4)
only reaches the “knowing[]” possession of a controlled substance with intent to
manufacture, deliver or sell. Tenn. Code § 39-17-417(a). This Court has held that the
culpable mental state element is satisfied if the crime includes “knowing or intentional
conduct [a]s an element of [the] offense.” Sotnikau, 846 F.3d at 736 (internal quotation
marks omitted). Because subsection (a)(4) includes both a “knowing” element, as well as
an intent element, a violation of that subsection requires a culpable mental state. 5
In addition, a violation of subsections (a)(4) and (g)(2) involves reprehensible
conduct. The BIA has “long held that evil intent is inherent in the illegal distribution of
drugs and that ‘participation in illicit drug trafficking is a crime involving moral
turpitude.’” In re Gonzalez Romo, 26 I. & N. Dec. 743, 746 (BIA 2016) (quoting In re
Khourn, 21 I. & N. Dec. 1041, 1046-47 (BIA 1997)). The (g)(2) subsection under which
petitioner was convicted reaches only trafficking in quantities of marijuana in excess of
ten pounds. Such conduct falls well within the heartland of the illicit drug trafficking
described in Gonzalez Romo and therefore qualifies as reprehensible. As such, the BIA
properly determined that petitioner’s 1995 conviction constitutes a conviction of a CIMT.
5
Petitioner argues that the Tennessee offense does not involve reprehensible
conduct because Tennessee law allows the jury to infer the intent to deliver, sell, or
manufacture from the circumstances, Pet. Br. 17-20; however, Tennessee does not create
a presumption that any specific quantity of drugs is indicative of the necessary intent.
Instead, the intent element must, like any other element, be proven to the jury beyond a
reasonable doubt. Accordingly, this statute satisfies the culpable mental state prong of the
CIMT definition.
17
Because there is no dispute that petitioner’s 2000 convictions also constitute convictions
of CIMTs, petitioner is removable pursuant to INA § 237(a)(2)(A)(ii) as an alien who has
been convicted of two or more CIMTs not arising out of a single scheme of criminal
misconduct. Accordingly, we are without jurisdiction to review Guevara-Solorazano’s
petition number 16-2434 to the extent that it challenges the BIA’s determination that his
two convictions for CIMTs render him removable. Therefore, that portion of the 16-2434
petition must be dismissed, leaving as the only remaining issue whether the BIA correctly
found that petitioner is ineligible for relief under former INA § 212(c).
IV
In petition number 16-2434, Guevara-Solorzano also challenges the BIA’s
determination that he is ineligible for relief under former INA § 212(c) because one of
the CIMTs that subjects him to removability occurred after that section was repealed in
1996. That conclusion involves a question of law, which we have jurisdiction to review
notwithstanding the BIA’s determination that Guevara-Solorzano’s 1995 and 2000
convictions render him removable as a criminal alien. 8 U.S.C. § 1252(a)(2)(D).
Although such review is de novo, we must accord appropriate deference to the BIA under
Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
See Larios-Reyes v. Lynch, 843 F.3d 146, 152 (4th Cir. 2016).
At the time of petitioner’s 1995 conviction, § 212(c) stated, in its entirety:
Aliens lawfully admitted for permanent residence who temporarily
proceeded abroad voluntarily and not under an order of deportation, and
who are returning to a lawful unrelinquished domicile of seven consecutive
years, may be admitted in the discretion of the Attorney General without
regard to the provisions of subsection (a) of this section (other than
18
paragraphs (3) and (9)(C)). Nothing contained in this subsection shall limit
the authority of the Attorney General to exercise the discretion vested in
him under section 1181(b) of this title. The first sentence of this subsection
shall not apply to an alien who has been convicted of one or more
aggravated felonies and has served for such felony or felonies a term of
imprisonment of at least 5 years.
8 U.S.C. § 1182(c) (1994). Although the section was limited by its terms to aliens
returning from abroad, the parties do not dispute that it applies to removal proceedings as
well. See Resp. Br. 5 n.3 (citing INS v. St. Cyr, 533 U.S. 289, 295 (2001)). 6
The effect of a § 212(c) waiver is to grant discretionary relief from removal for an
alien who meets the residency requirement but who has been found deportable for any of
a variety of reasons, including the grounds charged for petitioner’s removal. The
Supreme Court has held that the 1996 repeal of § 212(c) was not retroactive, such that “§
212(c) relief remains available for aliens . . . [who] would have been eligible for § 212(c)
relief at the time of their plea under the law then in effect.” St. Cyr, 533 U.S. at 326.
Here, of the grounds that have been charged for petitioner’s deportation, it is undisputed
that he would have been eligible for § 212(c) relief with respect to both the aggravated
felony and the controlled substance convictions, because both grounds rest entirely on the
1995 marijuana conviction, which pre-dates the repeal of § 212(c). Where the parties
6
For purposes of this analysis, the “terms ‘deportation’ and ‘removal’ are
interchangeable.” United States v. Moreno-Tapia, 848 F.3d 162, 165 n.1 (4th Cir. 2017).
In 1996, Congress “eliminate[d] the previous legal distinction between deportation,
removal and exclusion, merging all of these proceedings into a broader category entitled
‘removal proceedings.’” United States v. Gomez, 757 F.3d 885, 890 n.1 (9th Cir. 2014).
“Cases post-dating this amendment generally use the term ‘removal proceedings,’” but
some of the relevant cases and statutes “continue[] to refer to ‘deportation proceedings.’”
Moreno-Tapia, 848 F.3d at 165 n.1.
19
disagree is on the question of whether petitioner is eligible for § 212(c) relief with respect
to the CIMT charge of removability, which is based on the combination of the 1995
marijuana conviction and the 2000 North Carolina convictions.
The BIA’s decision below, 7 and respondent’s argument, are based primarily on In
re Balderas, 20 I. & N. Dec. 389, in which the BIA considered whether a CIMT that has
been used as part of the basis for a “two or more CIMTs” charge of removability in an
immigration proceeding that terminated with a § 212(c) waiver may later be used as part
of the basis for a “two or more CIMTs” charge of removability if the alien in question
commits another CIMT after the first immigration proceeding was terminated. 8 The BIA
held that such a previously found CIMT could be used with a new CIMT to support a
charge of removability because a “grant of section 212(c) relief ‘waives’ the finding of
excludability or deportability rather than the basis of the excludability itself.” Id. at 391.
In other words, “the crimes alleged to be grounds for excludability or deportability do not
disappear from the alien’s record for immigration purposes.” Id. Because this
7
Although the BIA’s decision in petitioner’s case is not entitled to deference
under Chevron because it was unpublished, the BIA’s interpretation of § 212(c) in In re
Balderas is entitled to Chevron deference because it was published. See Sijapati v.
Boente, 848 F.3d 210, 215 (4th Cir. 2017).
8
In re Balderas involved an alien who had been charged with being removable on
the basis of having committed a petty theft offense and being an accessory to a felony
(burglary), both CIMTs. 20 I. & N. Dec. at 390. That proceeding terminated with a §
212(c) waiver. Id. at 389. After the proceeding was terminated, the alien was convicted of
another petty theft offense qualifying as a CIMT and was again charged with being
removable on the basis of having committed two or more CIMTs: the earlier petty theft
offense and the newer petty theft offense. Id. at 390.
20
interpretation of the effect of § 212(c) relief is a reasonable interpretation of the statutory
language, Chevron demands that we defer to this construction.
Based on this construction, respondent’s position is correct. Because the crimes
eligible for § 212(c) relief “do not disappear from the alien’s record,” petitioner’s 1995
marijuana conviction continued to count as a conviction of a CIMT. When he was
convicted in 2000 in North Carolina of another CIMT, he became deportable, and by then
§ 212(c) relief no longer applied. See also Bakarian, 541 F.3d at 784 (holding that a 2003
conviction could be used in conjunction with a 1996 conviction to form a basis for
removability but that § 212(c) relief would not be available). This construction is not
inconsistent with the logic of St. Cyr, which held that the repeal of § 212(c) was not
retroactive in part because aliens who pleaded guilty to crimes before § 212(c) was
repealed “almost certainly relied upon th[e] likelihood [of § 212(c) relief] in deciding
whether to forgo their right to a trial.” 533 U.S. at 325. By contrast, an alien who has
pleaded guilty to an additional CIMT after the repeal of § 212(c) cannot be said to have
relied on the possibility of § 212(c) relief in the same way, and it is reasonable to
interpret the repeal of § 212(c) as foreclosing relief from a charge of removability based
in part on post-1996 criminal conduct. Similarly, the concern expressed by the Supreme
Court that retroactive application of the elimination of § 212(c) could improperly
“impair[] vested rights acquired under existing law[],” id. at 321 (internal quotation
marks omitted), is inapplicable to petitioner’s situation. Because petitioner did not
become deportable on the basis of having committed two or more CIMTs until after
1996, his right to § 212(c) relief with respect to that ground of deportability had not
21
vested at the time § 212(c) was repealed. Lastly, although petitioner cites a single
unpublished BIA decision that held in his favor, see In re Melo, 2008 WL 1734639 (BIA
Mar. 24, 2008), the published In re Balderas opinion represents the BIA’s authoritative
construction of § 212(c) and is the decision entitled to our deference. 9
Accordingly, the BIA correctly determined that petitioner is ineligible for relief
under former INA § 212(c) because one of the CIMT convictions that renders him
removable pursuant to INA § 237(a)(2)(A)(ii) occurred after the repeal of § 212(c) in
1996. Therefore, petition number 16-2434 is denied to the extent that it challenges this
determination.
V
For the foregoing reasons, petition number 16-2434 is
DENIED IN PART AND DISMISSED IN PART,
and petition number 17-1833 is
DISMISSED.
9
After oral argument, petitioner submitted a letter pursuant to Fed. R. App. P.
28(j) directing our attention to In re Abdelghany, 26 I. & N. Dec. 254, 270-72 (BIA
2014), in which the BIA held, in relevant part, that an alien may be eligible for § 212(c)
relief if the alien is “otherwise eligible” and is “presently deportable or removable by
virtue of a plea or conviction that occurred before” the repeal of § 212(c), even if the plea
or conviction did not render the alien deportable under the law in effect at the time the
plea or conviction occurred. Our holding that Guevara-Solorzano is ineligible for §
212(c) relief is not in tension with the BIA’s analysis in In re Abdelghany because that
decision only reaches aliens who are deportable solely by virtue of pre-repeal
convictions, which means that it does not answer the question presented by Guevara-
Solorzano’s situation, in which one of the convictions forming the basis of deportability
occurred after § 212(c) was repealed.
22