Erwin Tobar-Barrera v. Eric Holder, Jr.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-1447
ERWIN TOBAR-BARRERA,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Argued: September 17, 2013 Decided: October 29, 2013
Before GREGORY, DAVIS, and KEENAN, Circuit Judges.
Petition granted in part and denied in part by unpublished
opinion. Judge Davis wrote the opinion, in which Judge Gregory
joined. Judge Keenan wrote a dissenting opinion.
ARGUED: Timothy William Davis, LAW OFFICE OF TIMOTHY W. DAVIS,
LLC, Baltimore, Maryland, for Petitioner. Jonathan Aaron
Robbins, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for Respondent. ON BRIEF: Stuart F. Delery, Acting Assistant
Attorney General, William C. Peachey, Assistant Director,
Matthew Allan Spurlock, Office of Immigration Litigation, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
DAVIS, Circuit Judge:
Petitioner Erwin Tobar-Barrera (“Tobar-Barrera”), a native
and citizen of Guatemala, seeks review of the Board of
Immigration Appeals’ (“Board”) order dismissing his appeal of
the decision by an Immigration Judge (“IJ”) finding him
ineligible for discretionary relief from removal under Section
203 of the Nicaraguan Adjustment and Central American Relief Act
(“NACARA”). 1 The IJ found Tobar-Barrera ineligible because he had
been convicted of a disqualifying aggravated felony and ordered
him removed. For the reasons that follow, we grant in part and
deny in part the petition for review. We vacate the Board’s
order and remand for further proceedings consistent with this
opinion.
I.
The record reveals that the then-operative Immigration and
Naturalization Service (“INS”) initiated removal proceedings on
April 27, 1990. But those proceedings were administratively
closed on September 6, 1991 to allow Tobar-Barrera to join a
class of Guatemalans who had been offered special process for
1
Pub. L. No. 105-100, 111 Stat. 2160, 2193-2201 (1997),
amended by Pub. L. No. 105-139, 111 Stat. 2644, 2644-45 (1997),
(codified as amended in scattered sections of 8 U.S.C.).
2
seeking asylum in the United States. 2 For the fourteen years that
followed, there was no appreciable change in Tobar-Barrera’s
immigration status. Tobar-Barrera filed his asylum application
in May 2005. His application remained pending for two years,
awaiting review by the U.S. Citizenship and Immigration Service
(“USCIS”), the agency that now reviews such applications. The
application was denied.
According to USCIS, Tobar-Barrera was not entitled to
relief because he had a disqualifying aggravated felony
conviction, manslaughter. USCIS applied the definition of
aggravated felony found in the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110
2
While Tobar-Barrera’s removal proceedings were pending,
the landmark settlement in American Baptist Churches v.
Thornburgh, 760 F. Supp. 796 (N.D. Cal. 1991) (“ABC Settlement”)
was reached. The ABC Settlement involved a class action
settlement among various government agencies (including the INS)
and a plaintiff class of Salvadorans and Guatemalans who had
fled their countries. The suit alleged that the United States
government had politicized its asylum policy by discriminatorily
denying refugee status to persons fleeing repressive regimes
supported by the United States.
The ABC Settlement, entered in January 1991, stipulated
that the INS would give de novo, unappealable hearings to most
Salvadoran and Guatemalan asylum applicants who were present in
the United States as of September 19, 1990, for Salvadorans, or
October 1, 1990, for Guatemalans. Id. at 799-800. This right
extended to all those who had previously been denied asylum, as
well as those who had not yet filed for asylum or whose cases
were still pending. Id. at 800. The settlement required the INS
to stay pending deportation proceedings against class members.
Id. at 805.
3
Stat. 3009-546 (1996) (“IIRIRA”). IIRIRA broadened the kinds of
offenses that qualified as “crime of violence” aggravated
felonies by decreasing the requisite imprisonment term from five
years to one year. See IIRIRA § 321(a)(3). Under the pre-IIRIRA
definition, Tobar-Barrera’s manslaughter conviction is not a
disqualifying aggravated felony.
Tobar-Barrera’s immigration proceedings languished for
another two years until the Department of Homeland Security
(“DHS”) moved to re-calendar his removal proceedings in
September 2009 because USCIS had found Tobar-Barrera ineligible
for relief. In the interim, Tobar-Barrera attacked USCIS’s
adverse ruling by filing an action for declaratory and
injunctive relief in the United States District Court for the
District of Maryland. Tobar-Barrera v. Napolitano, No. 09-3064,
2010 WL 972557 (D. Md. Mar. 12, 2010). The district court
ordered the government to provide Tobar-Barrera with a de novo
asylum adjudication because USCIS erroneously found him
ineligible for relief. Id. at *8. There was no appeal from that
ruling.
Tobar-Barrera filed a new application for relief in July
2010. He argued that the record of conviction did not
conclusively show that he had committed an aggravated felony and
asked the IJ to consider new evidence – his own live testimony –
as further proof that he was not convicted of an aggravated
4
felony. The IJ ruled that such testimony was inadmissible
extrinsic evidence, and therefore could not be considered. She
further ruled that Tobar-Barrera’s conviction was an aggravated
felony under IIRIRA, making him ineligible for relief. For these
reasons, she ordered him removed to Guatemala.
Tobar-Barrera appealed to the Board, asserting that the IJ
erroneously applied the IIRIRA-amended definition of aggravated
felony; that she also erred in failing to consider his live
testimony; and that his due process rights were violated by the
near twenty-year delay in the Attorney General’s prosecution of
his removal proceedings. The Board affirmed the IJ’s order and
dismissed the appeal.
Tobar-Barrera filed a timely petition for review in this
Court. He contends that the Board erred in concluding that
IIRIRA’s definition of “aggravated felony” applied to him. 3
3
Tobar Barrera’s second contention, that the Board erred in
affirming the IJ’s decision to exclude testimonial evidence
offered to satisfy his burden of proving that his manslaughter
conviction was not an “aggravated felony,” is no longer at
issue. We recently held, in Mondragon v. Holder, 706 F.3d 535(4th Cir. 2013), that when a statute of conviction is divisible,
an alien is limited to presenting Shepard-approved sources to
resolve any “ambiguity of his conviction.” Id. at 547 (citing
Shepard v. United States, 544 U.S. 13 (2005)). In the absence of
such documents, the non-citizen is prohibited from relying on
“extrinsic evidence about his conduct” to establish that his
conviction did not qualify as an aggravated felony. Mondragon,
706 F.3d at 548. As Tobar-Barrera concedes, in light of
Mondragon, the exclusion of his testimony is not a ground for
relief.
5
We have carefully reviewed the record and fully considered
the oral arguments of counsel.
II.
Because the Board adopted the findings and reasoning of the
IJ, we review her decision as supplemented by the Board. Niang
v. Gonzales, 492 F.3d 505, 511 n.8 (4th Cir. 2007). The Board’s
determination that Tobar-Barrera’s conviction is an aggravated
felony is a legal issue we review de novo. See Mbea v. Gonzales,
482 F.3d 276, 279 (4th Cir. 2004). For reasons that follow, we
grant, in part, the petition for review, finding as we do that
the Board erroneously applied the IIRIRA-amended definition to
the particular facts and circumstances of Tobar-Barrera’s case.
A.
There is no question that the definition of “aggravated
felony” changed while Tobar-Barrera’s case was pending before
the agency. In 1996, Congress, through IIRIRA, amended the
definition of “aggravated felony” set forth in the Immigration
and Nationality Act (“INA”), 8 U.S.C § 1101 (a)(43)(F) (2013).
IIRIRA modified the INA’s definition of aggravated felony in a
way that would make it more difficult for an alien to obtain
relief in future removal proceedings. 4 In enacting the IIRIRA
4
Members of the ABC Settlement class were particularly
affected because IIRIRA replaced the process previously
available to class members with a more restrictive scheme. Solis
(Continued)
6
amendments, Congress provided that “[t]he amendments made by
this section shall apply to actions taken on or after the date
of the enactment of this Act [September 30, 1996], regardless of
when the conviction occurred.” IIRIRA § 321(c) (emphasis added).
Thus, the interpretation of IIRIRA section 321(c) is the
source of the present dispute. See Garrido-Morato v. Gonzales,
485 F.3d 319, 323 (5th Cir. 2007) (“‘Actions taken,’ . . . is
not defined anywhere in IIRIRA and it is thus unclear what
actions are contemplated by the statute, and who must take
them.”). The Board, in affirming the IJ’s ruling, found that the
IJ properly applied the IIRIRA-amended definition of aggravated
felony to conclude that Tobar-Barrera’s conviction rendered him
ineligible for NACARA relief. The Attorney General agrees, of
course, relying primarily on Third and Fifth Circuit rulings
that the term “actions taken” under section 321(c) refers to the
Attorney General’s efforts to give effect to that particular
section of IIRIRA (i.e., determining the meaning of “aggravated
felony” to assess whether an ex-felon is eligible for
discretionary relief). Garrido-Morato, 485 F.3d at 324;
Biskupski v. Att’y Gen., 503 F.3d 274, 283 (3d Cir. 2007). In
v. Holder, 490 F. App'x 744, 746 (6th Cir. 2012) (unpublished).
Congress repealed these restrictions through NACARA and returned
to class members the less restrictive, pre-IIRIRA conditions for
relief. Id.7
effect, these circuits found that Congress intended that section
321(c) apply retroactively to all adjudications occurring on and
after the date of enactment. Garrido-Morato, 485 F.3d at 324;
Biskupski, 503 F.3d at 281-283. See also Valderrama-Fonseca v.
I.N.S., 116 F.3d 853, 856-57 (9th Cir. 1997); Xiong v. I.N.S.,
173 F.3d 601, 607 (7th Cir. 1999); Choeum v. I.N.S., 129 F.3d
29, 36-37 (1st Cir. 1997).
Tobar-Barrera, however, argues for a more narrow
interpretation of the term and contends that “actions taken”
refers to the point at which the Attorney General began its
initial removal proceedings which, in this case, was in April
1990. For support, Tobar-Barrera cites to the Sixth Circuit’s
decision in Saqr v. Holder, holding that “the term ‘action
taken’ . . . derive[s] from the point at which the removal
action begins for purposes of determining whether the pre- or
post-IIRIRA definition of aggravated felony applies.” 580 F.3d
414, 422 (6th Cir. 2009). Tobar-Barrera has the better argument.
We reject the Attorney General’s contention that we should
take the approach of the Fifth and Third Circuits in this case.
This is because we decline to interpret the statute to say
something that Congress chose not to say. There is no question
that Congress intended the amended definition of “aggravated
felony” to have some retroactive effect, in the sense that the
new definition of “aggravated felony” would apply no matter when
8
such convictions become final. But Congress did not say, as it
well knows how to say when it chooses, that the amended
definition would apply in all proceedings “‘pending on or after
the date of enactment of the Act.’” Cf., e.g., Mueller v.
Angelone, 181 F.3d 557, 566 n.4 (4th Cir. 1999)(discussing §
107(c) of the Antiterrorism and Effective Death Penalty Act of
1996, Pub. L. No. 104–132, § 105, 110 Stat. 1214, 1220); Sanders
v. Allison Engine Co., Inc., 703 F.3d 930, 934 (6th Cir.
2012)(discussing § 4(f)(1) of the Fraud Enforcement and Recovery
Act of 2009, Pub. L. No. 111–21, 123 Stat. 1617, 1625). Rather,
Congress limited the retroactive application of the amended
definition of “aggravated felony” by saying, instead, that the
new definition would apply to “actions taken” on and after the
date of enactment. The question posed, then, is what does the
limitation enacted by Congress mean?
If we give conclusive effect to post-enactment decisions of
an IJ or of the Board as “actions taken” to long-pending removal
proceedings, as in this case, then we would be reading out of
the statute the very limitation on retroactivity Congress
intended. We simply do not believe that is a plausible
interpretation of Congress’s manifest intention to limit the
application of the expanded definition of “aggravated felony” so
that the new definition applies to fewer than all proceedings
“pending on . . . the date of enactment,” Mueller, 181 F.3d at
9
566 n.4, a provision that Congress could have mandated but chose
not to mandate. Surely Congress was aware that its failure to do
so would be of consequence. Cf. I.N.S. v. Cardoza-Fonseca, 480
U.S. 421, 449 (1987) (affirming, before IIRIRA’s 1996 effective
date, “the longstanding principle of construing any lingering
ambiguities in deportation statutes in favor of the alien”).
We find the Sixth Circuit’s interpretation to be the
better-reasoned approach. It accounts for the statutory and
regulatory scheme that governs removal proceedings. Saqr, 580
F.3d at 421-22. And, it makes section 321(c) analysis consistent
with the approach that other circuits have used to determine
eligibility for other discretionary relief provided by
immigration officers. Id. at 422; see also Tran v. Gonzales, 447
F.3d 937, 941 (6th Cir. 2006) (“We need not go through a lengthy
statutory analysis to conclude that § 321(c) is not retroactive
since the language of the section speaks for itself. Section
321(c) explicitly limits the expanded definition of ‘aggravated
felony’ to prospective deportation proceedings.”).
Further, this interpretation aligns with the basic notions
of fairness that are implicated when the rules concerning relief
are changed in the middle of an alien’s ongoing removal
proceedings. We have previously explained the importance of this
principle to preserving the intended function of NACARA itself,
and its attendant provisions for relief. Appiah v. U.S. I.N.S.,
10
202 F.3d 704, 710 (4th Cir. 2000) (“NACARA was intended to
correct a provision in the IIRIRA that would have had the effect
of ‘changing the rules in the middle of the game for thousands
of Central Americans and others who came to the United States
because their lives and families had been torn apart by war and
oppression.’”). 5 Those concerns are particularly pointed in this
case because it is unlikely that Tobar-Barrera knew his legal
rights had changed while his case sat dormant for more than
twenty years.
We are persuaded that the post-IIRIRA definition of
“aggravated felony” was improperly invoked in the unique
circumstances of this case. Tobar-Barrera’s deportation
proceedings commenced in 1990, upon proper service of an order
to show cause that was also filed with the Immigration Court.
See Toora v. Holder, 603 F.3d 282, 286 n.3 (5th Cir. 2010)
(“Pursuant to 8 U.S.C. § 1229(a)(1), immigration proceedings
initiate on the date the alien receives his [Notice to
Appear].”) (citations omitted). Since that time, the record
indicates that Tobar-Barrera has been subject to a single,
5
See also Saqr, 580 F.3d at 422 (quoting Alanis-Bustamante
v. Reno, 201 F.3d 1303, 1310 (11th Cir. 2000) (“Considerations
of fairness convince us that for purposes of deciding which law
applies, the removal proceedings in this case should be viewed
as commencing at least on that date . . . when the show cause
order had been served and the warrant of detainer lodged.”)).
11
ongoing, deportation proceeding. Tobar-Barrera’s case number has
remained the same; so has the underlying controversy regarding
his removability and the dispute regarding his eligibility for
special relief. Although the Immigration Court administratively
closed this proceeding in 1991, the closure carried no legal
effect. See Matter of Amico, 19 I&N Dec. 652, 654 n.1 (BIA 1988)
(“The administrative closure of a case does not result in a
final order. It is merely an administrative convenience that
allows the removal of cases from the calendar in appropriate
situations.”)). Thus, no triggering “action” was “taken” under
these circumstances after the statutory amendment. Instead, the
Attorney General’s motion to recalendar merely terminated a
hiatus in proceedings already underway. Because the relevant
“action taken” against Tobar-Barrera occurred in 1990, the pre-
IIRIRA definition must apply.
B.
Tobar-Barrera also contends that review “of his NACARA
application in the Immigration Court should have been conducted
under the same eligibility rules that were employed by USCIS.”
Pet. Br. at 20. To that end, Tobar-Barrera claims that the
“divergent NACARA eligibility rules in USCIS and the Immigration
Court” violate due process. Id. at 20-21.
Under 8 U.S.C. § 1252(d)(1), this Court may review a final
order of removal only if “the alien has exhausted all
12
administrative remedies available to the alien as of right.” Any
particular claim that is not properly exhausted is barred from
review by this Court. See Massis v. Mukasey, 549 F.3d 631, 638
(4th Cir. 2008). This prohibition against reviewing unexhausted
claims is jurisdictional. Id.The record clearly establishes that Tobar-Barrera did not
present this particular argument to the Board. 6 Although we have
recognized an exception to the exhaustion requirement for
certain constitutional claims, see Farrokhi v. U.S. I.N.S., 900
F.2d 697, 700-01 (4th Cir. 1990); Gallanosa v. United States,
785 F.2d 116, 120-21 (4th Cir. 1986), Tobar-Barrera’s due
process challenge to the allegedly disparate standards does not
fall within the narrow confines of this exception. Therefore,
the exception to the general exhaustion rule is inapplicable in
this instance. See Kurfees v. I.N.S., 275 F.3d 332, 337 (4th
Cir. 2001). Because the exhaustion requirement is not excused
and the issue has not been administratively exhausted, we lack
jurisdiction to consider this particular argument.
6
Tobar-Barrera, however, did raise a different due process
claim below. That claim related to the more than twenty-year
delay in prosecuting his removal. J.A. 33-35. Nonetheless,
Tobar-Barrera has declined to raise that issue before this Court
on appeal. See generally Pet. Br. at i, 18-21.
13
III.
For the foregoing reasons, we grant in part and deny in
part the petition for review. Specifically, we vacate the
Board’s order and instruct the Board to return this case to the
IJ for de novo NACARA proceedings that apply the pre-IIRIRA
definition of aggravated felony. We deny as moot the pending
motion to remand this case to the Board. 7
PETITION GRANTED IN PART
AND DENIED IN PART
7
While the petition for review was pending, the Attorney
General filed a motion to remand this case to the Board for
reconsideration in light of Salem v. Holder, 647 F.3d 111 (4th
Cir. 2011), cert. denied, 132 S. Ct. 1000 (2012), and to correct
a defect in the Certified Administrative Record. The Court
deferred action on the motion, which, in view of our decision on
the merits, is denied as moot.
14
BARBARA MILANO KEENAN, Circuit Judge, dissenting:
I disagree with the majority’s interpretation of IIRIRA
§ 321(c). Therefore, I respectfully dissent from Section II(A).
The provisions in IIRIRA § 321(b) make clear that the
revised definition of the term “aggravated felony” applies
“regardless of whether the conviction was entered before, on, or
after” IIRIRA’s enactment. See Mondragón v. Holder, 706 F.3d
535, 542-43 (4th Cir. 2013). In IIRIRA § 321(c), the statute
provides:
EFFECTIVE DATE. – The amendments made by this section
shall apply to actions taken on or after the date of
the enactment of this Act [September 30, 1996],
regardless of when the conviction occurred.
(emphasis added).
The majority acknowledges that the term “actions taken” is
not defined and is ambiguous. Yet, the majority “eschew[s]
critical analysis of the meaning of the phrase ‘actions taken,’
instead substituting in its place the phrase ‘proceedings
initiated.’” Biskupski v. Att’y Gen., 503 F.3d 274, 283 (3d
Cir. 2007) (discussing the analysis in Tran v. Gonzales, 447
F.3d 937 (6th Cir. 2006)).
In my view, the majority of circuit courts to consider the
meaning of “actions taken” have properly concluded that the term
refers to actions and decisions by the Attorney General acting
through an IJ or BIA. See generally, Garrido-Morato v.
15
Gonzales, 485 F.3d 319, 324 (5th Cir. 2007); Biskupski, 503 F.3d
at 283; Xiong v. I.N.S., 173 F.3d 601, 607 (7th Cir. 1999);
Choeum v. I.N.S., 129 F.3d 29, 36-37 (1st Cir. 1997);
Valderrama-Fonseca v. I.N.S., 116 F.3d 853, 856-57 (9th Cir.
1997).
I am persuaded by the analysis employed by the Fifth
Circuit in Garrido-Morato. See 485 F.3d at 324. There, the
court observed that because IIRIRA § 321(c) is “an effective
date provision for § 321,” the term “‘actions taken’ must refer”
to actions “taken under the statute, such as determining the
meaning of ‘aggravated felony’ and thus the availability of
discretionary hardship relief to such felons.” Id.
In the present case, the IJ and BIA applied the INA’s
definition for “aggravated felony” in the petitioner’s case in
2010 and 2011, after IIRIRA’s effective date. Therefore, I
would affirm the decision that the petitioner is ineligible for
relief under NACARA because he was convicted of a disqualifying
aggravated felony and would deny the petition for review in this
case.
16