Strover Mutsvene v. Loretta Lynch

Case: 14-60841 Document: 00513485098 Page: 1 Date Filed: 04/28/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 14-60841 FILED
April 28, 2016
STROVER MUTSVENE, Lyle W. Cayce
Clerk
Petitioner
v.
LORETTA LYNCH, U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A094-951-841
Before STEWART, Chief Judge, and JONES and DENNIS, Circuit Judges.
PER CURIAM:*
Strover Mutsvene, a native and citizen of Zimbabwe, petitions for review
of a decision of the Board of Immigration Appeals (“BIA”) that affirmed an
Immigration Judge’s (“IJ”) termination of his grant of withholding of removal.
Because Mutsvene’s petition does not present a “question of law” that enables
him to overcome the jurisdictional bar established by the provisions of the
REAL ID Act, we DISMISS his petition for lack of jurisdiction.
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 14-60841
BACKGROUND
In 2006, the Department of Homeland Security (“DHS”) initiated
removal proceedings against Mutsvene, who was in the United States on an
expired student visa. On Mutsvene’s application, an IJ granted him
withholding of removal under 8 U.S.C. § 1231(b)(3)(A) based upon threats to
his life or freedom in Zimbabwe due to his political opinions concerning the
government of Zimbabwean President Robert Mugabe.
Approximately three years later, Mutsvene pled guilty to aggravated
assault under Texas Penal Code § 22.02(a)(2) because he threatened another
person with a knife. He initially received a deferred adjudication sentence of
three years of community supervision, along with a fine and court costs, but
his sentence was later increased to five years of community supervision after
he violated the terms of release. Mutsvene again violated the conditions of
community supervision by failing to pay the fine and court costs, failing to
perform community service, and failing to participate in substance abuse
testing and treatment. Consequently, in 2012 a Texas court revoked
community supervision and sentenced him to two years in prison.
In 2013, an IJ re-opened Mutsvene’s removal proceedings upon DHS’s
request to pursue termination of his withholding of removal. DHS re-opened
these proceedings pursuant to 8 C.F.R. § 1208.24 (b)(3), which permits an IJ to
terminate a grant of withholding of removal if the Government establishes by
a preponderance of evidence that the alien has committed an “act that would
have been grounds for denial of withholding of removal under [8 U.S.C.
§ 1231(b)(3)(B)] had it occurred before withholding of removal.” DHS argued
that Mutsvene’s aggravated assault conviction would have made him
removable had it occurred before withholding of removal because it was a
“particularly serious crime” under 8 U.S.C § 1231(b)(3)(B)(ii).
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Though both parties agreed that Mutsvene’s aggravated assault
conviction constituted an aggravated felony, the IJ’s decision began by utilizing
the modified categorical approach to independently confirm this. She held that
Mutsvene’s conviction was an “aggravated felony” within the meaning of
8 U.S.C. § 1101(a)(43) because it was a “crime of violence.” See id.
§ 1101(a)(43)(F) (defining an aggravated felony as “a crime of violence (as
defined in section 16 of Title 18, but not including a purely political offense) for
which the term of imprisonment [is] at least one year”).
Next, the IJ addressed DHS’s contention that Mutsvene’s offense was a
“particularly serious crime.” The IJ did not accept DHS’s argument that
Mutsvene’s aggravated assault offense was per se 1 a “particularly serious
crime,” but she held that Mutsvene’s offense so qualified after applying the
factors set out in Matter of Frentescu, 18 I. & N. Dec. 244, 247 (B.I.A. 1982),
superseded in part by statute as recognized in In re N-A-M-, 24 I. & N. Dec. 336,
339–40 (B.I.A. 2007). As a result, the IJ ordered the termination of Mutsvene’s
grant of withholding of removal. 2 On appeal, the BIA adopted and affirmed
the IJ’s decision, holding that the IJ correctly applied the modified categorical
approach to determine that Mutsvene’s offense was an aggravated felony crime
of violence. The BIA also held that the IJ performed the proper “individualized
1 Under 8 U.S.C. § 1231(b)(3)(B), “an alien who has been convicted of an aggravated
felony (or felonies) for which the alien has been sentenced to an aggregate term of
imprisonment of at least 5 years shall be considered to have committed a particularly serious
crime.” DHS contended that Mutsvene’s aggravated assault conviction was per se a
“particularly serious crime” because at one time he received a five year prison sentence
(which was subsequently suspended), but the IJ rejected this argument. DHS does not press
this argument on appeal and we therefore do not address it.
2 The IJ also denied Mutsvene’s request for deferral of removal pursuant to the
Convention Against Torture (“CAT”) in a separate order. The BIA affirmed this decision and
Mutsvene does not address the denial of relief under the CAT on appeal.
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examination” of Mutsvene’s crime under Frentescu. Mutsvene now seeks
judicial review of the BIA’s decision.
DISCUSSION
In this court, Mutsvene contends that the IJ did not perform the “case-
specific” analysis required by Frentescu because she only considered the record
of conviction, which allegedly did not include “case-specific facts.” This
“generalized analysis,” Mutsvene contends, in effect created “a category of per
se ‘particularly serious crimes’ for all aggravated assault felonies,” thereby
contravening the text of 8 U.S.C. § 1231(b)(3)(B). The statute creates a per se
class of particularly serious crimes only for aggravated felonies that result in
a term of imprisonment of at least five years.
DHS raises the threshold issue of jurisdiction, arguing that this court
lacks jurisdiction to hear this appeal under two provisions of the REAL ID Act
of 2005 (as codified): 8 U.S.C. § 1252(a)(2)(B)(ii), which strips courts of
jurisdiction to review orders of removal that are discretionary decisions of the
Attorney General or Secretary of Homeland Security, and § 1252(a)(2)(C),
which strips courts of jurisdiction to review orders of removal against aliens
that have committed certain criminal offenses, including aggravated felonies.
In response, Mutsvene argues that his appeal presents a “question of law” over
which we retain jurisdiction. 3 See 8 U.S.C. § 1252(a)(2)(D).
3 As discussed more fully below, Mutsvene does not appear to challenge the IJ and
BIA’s holding that his conviction is an aggravated felony crime of violence. Additionally,
Mutsvene does not address DHS’s argument that this court lacks jurisdiction to hear his
appeal under § 1252(a)(2)(B)(ii) and § 1252(a)(2)(C); instead his briefing principally focuses
on §1252(a)(2)(D)’s “question of law” exception to the jurisdictional bar. As a result, we first
consider the exception to the jurisdictional bar and then discuss the application of the
jurisdictional bar itself.
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I. Exception to the Jurisdictional Bar
The decisive question in this appeal is whether Mutsvene has presented
a question of law that permits the court to review the merits of his argument.
We review de novo whether the court has subject matter jurisdiction. Garcia-
Melendez v. Ashcroft, 351 F.3d 657, 660 (5th Cir. 2003). Although the court
generally “review[s] only the decision of the BIA, not that of the immigration
judge[,]” we consider the IJ’s decision “to the extent that it affects the BIA’s
decision.” Beltran-Resendez v. I.N.S., 207 F.3d 284, 286 (5th Cir. 2000). Here
we review the IJ’s decision because it was adopted by the BIA. Wang v. Holder,
569 F.3d 531, 536 (5th Cir. 2009).
In distinguishing between those petitions for review that present a legal
question and those that do not, we have noted that an appeal contending that
the BIA applied the wrong legal standard is a legal question that we have
jurisdiction to review. Hakim v. Holder, 628 F.3d 151, 155 n.1 (5th Cir. 2010);
see also Samba v. Lynch, No. 15-60088, 2016 WL 861180, at *3 (5th Cir. Mar. 4,
2016) (unpublished) (“To the extent that the first issue challenges whether the
immigration judge applied the proper legal standard when determining that
Samba committed a particularly serious offense, we have jurisdiction to review
such a claim.”). In contrast, petitions that effectively argue that the
immigration judge “‘abused [her] discretion in weighing the multiple
desiderata made relevant by the [BIA’s] definition of a particularly serious
crime,’ do not present questions of law and therefore are not reviewable under
section 1252(a)(2)(D).” Solorzano-Moreno v. Mukasey, 296 F. App’x 391, 394
(5th Cir. 2008) (internal quotation marks and citation omitted). 4 We were
4 Although Solorzano-Moreno is not “controlling precedent,” it may be cited as
“persuasive authority.” Ballard v. Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006) (citing 5th
Cir. R. 47.5.4).
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presented with the latter type of petition in Solorzano-Moreno, where the
petitioner argued that the IJ placed “too much focus” on the likelihood of future
serious misconduct in weighing the Frentescu factors. Id.
Mutsvene contends that he has presented a question of law because the
IJ did not apply the correct legal standard. He argues that the IJ did not
provide case-specific analysis and instead conducted a generalized analysis
using only the record of conviction; this generalized analysis, Mutsvene argues,
in effect created another category of per se particularly dangerous crimes.
After a careful review of the briefs, the record, and the IJ’s decision, we
disagree with Mutsvene’s characterization of his argument. Mutsvene’s brief
principally questions the manner in which the IJ applied the Frentescu factors,
not the application of the Frentescu test.
Mutsvene’s complaint is more akin to the petitioner’s complaint in
Solorzano-Moreno, which took issue with the IJ’s weighing of the Frentescu
factors. In this case, the IJ specifically listed each of the Frentescu factors and
applied them to Mutsvene’s conviction. The IJ’s analysis focused on the fact
that Mutsvene threatened another individual with a knife and that Mutsvene
received a substantial punishment of three years of community supervision
and then two years of imprisonment for his conduct. Mutsvene simply
complains that the IJ should have used more facts in her analysis; such a
complaint does not present a legal question reviewable by this court under
8 U.S.C. § 1252(a)(2)(D). 5
5 We also reject Mutsvene’s argument that the IJ’s analysis violated a federal statute
by effectively “creat[ing] a new category of per se ‘particularly serious crimes’ for all
aggravated assault crimes.” The IJ’s individual consideration of each of the Frentescu factors
and her attention to certain details of Mutsvene’s case belie this assertion.
We likewise reject Mutsvene’s related argument that the IJ erred in utilizing the
categorical approach to determine whether his aggravated assault conviction was a
“particularly serious crime”; this assertion is based upon a misreading of the IJ’s decision, as
6
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II. Application of the Jurisdictional Bar
Given that Mutsvene’s petition does not present a question of law, we
are precluded from reviewing his petition if he seeks review of a discretionary
decision of the Attorney General or Secretary of Homeland Security, see id.
§ 1252(a)(2)(B)(ii), or if he is an aggravated felon, see id. § 1252(a)(2)(C).
Whether the Secretary’s decision that a crime constitutes a “particularly
serious crime” is a non-reviewable discretionary decision is a question that has
divided the circuits. See Hakim, 628 F.3d at 155 n.1. We need not resolve this
question today, however, because review of Mutsvene’s petition is alternatively
precluded under § 1252(a)(2)(C) due to his commission of an aggravated felony.
Through counsel, Mutsvene conceded 6 before the IJ that he was
convicted of an aggravated felony, and the IJ confirmed the concession with an
independent analysis. Mutsvene acknowledges this concession on appeal, yet
he briefly contends, without analysis, that “it is arguable that the crime was
not a crime of violence and therefore not an aggravated felony.” To the extent
that this sentence can be construed as a challenge to the IJ’s decision that his
offense constitutes an aggravated felony, that argument is waived for
insufficient briefing, see N.W. Enters., Inc. v. City of Hous., 352 F.3d 162, 183
n.24 (5th Cir. 2003), in addition to being forfeited in the administrative
proceeding. Accordingly, because Mutsvene is an aggravated felon, we are
the IJ used the modified categorical approach to determine only whether Mutsvene’s offense
was a crime of violence.
6 “Absent egregious circumstances, a distinct and formal admission made before,
during, or even after a proceeding by an attorney acting in his professional capacity binds his
client as a judicial admission.” Matter of Velasquez, 19 I. & N. Dec. 377, 382 (B.I.A. 1986).
Mutsvene does not argue that “egregious circumstances” are present that would justify
relieving him from being bound by his attorney’s concessions. See generally Zhong Qin Yang
v. Holder, 570 F. App’x 381, 382–84 (5th Cir. 2014) (discussing the effects of counsel’s
concessions before an immigration judge).
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without jurisdiction to consider the merits of his appeal under 8 U.S.C.
§ 1252(a)(2)(C).
For the reasons set forth above, we DISMISS Mutsvene’s petition for
lack of jurisdiction.
8