Adrian Vargas Cervantes v. Eric Holder, Jr.

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ADRIAN VARGAS CERVANTES, No. 10-73384
Petitioner,
Agency No.
v. A078-464-072
ERIC H. HOLDER, JR., Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
June 13, 2014—San Francisco, California
Filed November 19, 2014
Before: Mary M. Schroeder, Susan P. Graber, and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Bybee
2 VARGAS CERVANTES V. HOLDER
SUMMARY*
Immigration
The panel granted Adrian Vargas Cervantes’s petition for
review from the Board of Immigration Appeals’ decision
finding him inadmissible based on his convictions for two
crimes involving moral turpitude, and ineligible for an
extreme hardship waiver or petty offense exception.
The panel held that the BIA correctly concluded that
Vargas’s California Penal Code § 422 conviction for
threatening to commit a crime resulting in death or great
bodily injury constituted a CIMT. The panel also concluded
that the BIA’s holding in In re Rotimi, 24 I. & N. Dec. 567(BIA 2008), that the time an alien spends in the United States
awaiting approval of an adjustment application does not count
toward INA § 212(h)’s lawful residency requirement, is
entitled to Chevron deference. The panel accordingly held
that the BIA correctly found Vargas ineligible for a § 212(h)
extreme hardship waiver.
The panel held, however, that the BIA erred by looking to
evidence outside the record of conviction to conclude that
Vargas was convicted of spousal abuse under CPC § 273.5(a).
The panel also held that the BIA erred in concluding that
Vargas did not qualify for the petty offense exception, and
thus remanded for the BIA to consider whether Vargas is
eligible for the exception.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
VARGAS CERVANTES V. HOLDER 3
COUNSEL
Judy Lorenzo (argued), Law Offices of Judy Lorenzo, San
Jose, California, for Petitioner.
Tony West, Assistant Attorney General, Civil Division;
Aimee J. Carmichael (argued), Gregory M. Kelch, Attorneys,
United States Department of Justice, Civil Division, Office of
Immigration Litigation, Washington, D.C., for Respondent.
OPINION
BYBEE, Circuit Judge:
Adrian Vargas Cervantes (“Vargas”) petitions for review
of a final order of removal. The Board of Immigration
Appeals (“BIA”) found Vargas inadmissible under 8 U.S.C.
§ 1182(a)(2)(A)(i)(I), and ineligible for an exception under
§ 1182(a)(2)(A)(ii), because it found that Vargas was
convicted of two crimes involving moral turpitude
(“CIMTs”)—spousal abuse under California Penal Code
§ 273.5(a) and threatening to commit a crime resulting in
death or great bodily injury under California Penal Code
§ 422. The BIA also determined that Vargas was ineligible
for an extreme hardship waiver, applying its decision in In re
Rotimi, 24 I. & N. Dec. 567 (BIA 2008). We hold that
although the BIA correctly concluded that Vargas’s
conviction under § 422 is a CIMT, the BIA erred in
concluding that Vargas was convicted of spousal abuse under
§ 273.5(a) by looking to evidence outside the record of
conviction. We also conclude that the BIA’s decision in
Rotimi is entitled to deference, and therefore hold that the
BIA correctly found Vargas ineligible for an extreme
4 VARGAS CERVANTES V. HOLDER
hardship waiver. We grant the petition and remand for
further proceedings.
I. PROCEEDINGS
Vargas is a native and citizen of Mexico who became a
lawful permanent resident on February 21, 2002. In 2006,
Vargas pleaded nolo contendere and was convicted of
violating California Penal Code §§ 273.5(a) (inflicting
corporal injury on a person in certain specified relationships)
and 422 (threatening to commit a crime resulting in death or
great bodily injury). He served sixty days’ imprisonment.
In 2008, the Department of Homeland Security served
Vargas with a Notice to Appear, charging that he was
inadmissible1 under 8 U.S.C. § 1182(a)(2)(A)(i)(I)2 because
both convictions were for CIMTs. Vargas denied the factual
1
Vargas sought reentry after spending two weeks with his mother in
Mexico.
2
Title 8 U.S.C. § 1182(a)(2)(A)(i) reads in relevant part:
Except as otherwise provided in this chapter, aliens
who are inadmissible under the following paragraphs
are . . . ineligible to be admitted to the United States:
(i) In general
Except as provided in clause (ii), any alien
convicted of, or who admits having
committed, or who admits committing acts
which constitute the essential elements of –
(I) a crime involving moral turpitude . . . .
.
VARGAS CERVANTES V. HOLDER 5
allegations relating to the criminal convictions and argued
that he qualified for either the petty offense exception set
forth in Immigration and Nationality Act (“INA”)
§ 212(a)(2)(A)(ii), or a waiver under INA § 212(h). Vargas
later admitted that he “ha[d] to concede regarding the 212(h)
issue.”
In an oral decision, the Immigration Judge (“IJ”) held that
Vargas was inadmissible because both of his convictions
were for CIMTs. Because Vargas “freely admit[ted] that the
victim of these crimes was in fact his spouse,” the IJ decided
that the conviction under § 273.5(a) was for a CIMT. The IJ
then decided that a violation of § 422 is a CIMT because the
threat of death or great bodily injury causes a victim
sustained fear. Finally, the IJ held that Vargas was not
eligible for a waiver under § 212(h) because he had not
“lawfully resided continuously” in the United States for seven
years before the government initiated removal proceedings.
See Rotimi, 24 I. & N. Dec. 567.
The BIA affirmed the IJ’s decision and dismissed
Vargas’s appeal. It recognized that although a violation of
§ 273.5(a) is not categorically a CIMT, a § 273.5(a)
conviction is a CIMT if the victim was the perpetrator’s
spouse. Because Vargas “admitted that the victim was his
wife,” the BIA concluded that Vargas’s § 273.5(a) conviction
was for a CIMT. The BIA also agreed with the IJ that § 422
is a CIMT because it previously had found that “threatening
behavior can be an element of a crime involving moral
turpitude.” In re Ajami, 22 I. & N. Dec. 949, 952 (BIA
1999). Because Vargas was convicted of more than one
CIMT, the BIA concluded that he did not qualify for the petty
offense exception described in 8 U.S.C. § 1182(a)(2)(A)(ii).
Finally, although the BIA held that Vargas waived his
6 VARGAS CERVANTES V. HOLDER
§ 212(h) argument before the IJ, the BIA decided that, in any
event, Vargas was not eligible for § 212(h) relief because he
had not resided lawfully in the United States for seven years
prior to his removal proceedings.
Vargas timely petitioned for this court’s review.
II. STANDARD OF REVIEW
Although 8 U.S.C. § 1252(a)(2)(C) generally precludes
judicial review of orders against aliens removable on criminal
grounds, we have jurisdiction to review questions of law
arising from removal orders. Id. § 1252(a)(2)(D). “Whether
a crime involves moral turpitude is such a question of law.”
Mendoza v. Holder, 623 F.3d 1299, 1302 (9th Cir. 2010). We
therefore have jurisdiction to review Vargas’s petition, and
we conduct our review de novo. Fernandez-Ruiz v. Gonzales,
468 F.3d 1159, 1163 (9th Cir. 2006).
III. INADMISSIBILITY
Vargas was charged under 8 U.S.C. § 1182(a)(2)(A)(i)(I),
which makes inadmissible “any alien convicted of, or who
admits having committed, or who admits committing acts
which constitute the essential elements of . . . a crime
involving moral turpitude.” That inadmissibility provision is
subject, however, to a petty offense exception. Under the
exception, § 1182(a)(2)(A)(i)(I) “shall not apply” if (1) the
alien “committed only one crime,” (2) “the maximum penalty
possible for the [predicate CIMT] . . . did not exceed
imprisonment for one year,” and (3) “if the alien was
convicted of such crime, the alien was not sentenced to a term
of imprisonment in excess of 6 months.” Id.
§ 1182(a)(2)(A)(ii)(II).
VARGAS CERVANTES V. HOLDER 7
Vargas argues that the BIA erred in deciding that his
convictions under California Penal Code §§ 273.5(a) and 422
were for CIMTs and that, even if his § 422 conviction was for
a CIMT, he qualifies for the petty offense exception.
A. California Penal Code § 273.5(a)
Vargas first argues that the BIA erred in determining that
his conviction under California Penal Code § 273.5(a) was for
a CIMT. Section 273.5(a) provides that “[a]ny person who
willfully inflicts corporal injury resulting in a traumatic
condition upon a victim described in subdivision (b) is guilty
of a felony.”3 In turn, subdivision (b) describes a victim as
(1) “[t]he offender’s spouse or former spouse,” (2) “[t]he
offender’s cohabitant or former cohabitant,” (3) “someone
with whom the offender has, or previously had, an
engagement or dating relationship,” or (4) “[t]he mother or
father of the offender’s child.”
Our precedents make clear that although § 273.5(a) is not
categorically a CIMT, it is a divisible statute for which a
conviction under one portion of the statute (corporal injury
against a spouse) will qualify as a CIMT, while conviction
under other subsections (for example, corporal injury against
a cohabitant) will not. Compare Grageda v. INS, 12 F.3d
919, 922 (9th Cir. 1993) (holding that “spousal abuse under
section 273.5(a) is a crime of moral turpitude” (emphasis
added)), with Morales-Garcia v. Holder, 567 F.3d 1058 (9th
Cir. 2009) (holding that corporal injury against a cohabitant
3
A traumatic condition is “a wound, or external or internal injury, . . .
whether of a minor or serious nature, caused by a physical force.” Cal.
Penal Code § 273.5(d).
8 VARGAS CERVANTES V. HOLDER
under § 273.5(a) is not a crime involving moral turpitude).4
It is thus necessary to apply the modified categorical
approach. Under that approach, we consider whether the
“judicially noticeable facts in the record indicate that [the
alien] was convicted of the elements of the generically
defined crime.” Huerta-Guevara v. Ashcroft, 321 F.3d 883,
887 (9th Cir. 2003).
In applying the modified categorical approach here, the
BIA agreed with the IJ that Vargas’s § 273.5(a) conviction
was for a CIMT because Vargas admitted before the IJ that
the victim of that crime was his wife. In so doing, the BIA
relied upon the Attorney General’s decision in In re Silva-
Trevino, 24 I. & N. Dec. 687 (A.G. 2005), which ruled that an
IJ may consult evidence outside the record of conviction in
determining whether an alien has been “convicted of” a
CIMT. See id. at 690.
Although Vargas’s in-court admission may have been
appropriate for consideration under the framework outlined
in Silva-Trevino, we have recently rejected Silva-Trevino.
See Olivas-Motta v. Holder, 746 F.3d 907, 911–12 (9th Cir.
2014) (holding that Silva-Trevino was not entitled to
deference because “[t]here is nothing in the substantive
definition of a CIMT” that allows courts to “look to conduct
that an alien ‘committed’ to determine the acts he has been
4
Vargas contends that we abandoned Grageda in Fernandez-Ruiz, 468
F.3d 1159, and Galeana-Mendoza v. Gonzales, 465 F.3d 1054 (9th Cir.
2006). We disagree. In both cases, we concluded that the statutes under
review lacked elements that were crucial to our decision in
Grageda—willfulness and an injury that causes a traumatic condition. See
Fernandez-Ruiz, 468 F.3d at 1165; Galeana-Mendoza, 465 F.3d at 1060.
Neither case calls into question Grageda’s holding that a conviction under
§ 273.5(a) for spousal abuse is a CIMT.
VARGAS CERVANTES V. HOLDER 9
‘convicted of’”). Thus, in this circuit, “an IJ is limited to the
record of conviction in determining whether an alien has been
‘convicted of’ a CIMT.” Id. at 916.
Here, the BIA permissibly employed the modified
categorical approach to the extent it considered the
“conviction document” in an effort to identify Vargas’s
victim. But its inquiry should have ended with the conviction
document, which did not specify Vargas’s relationship with
the victim. Although judicial admissions ordinarily bind a
party, an alien’s description of his crimes is not an acceptable
source of evidence under the modified categorical approach.
See Sandoval-Lua v. Gonzales, 499 F.3d 1121, 1129 n.7 (9th
Cir. 2007) (“[U]nder the modified categorical approach we
may not consider . . . testimony” about the alien’s criminal
conduct.), abrogated on other grounds by Young v. Holder,
697 F.3d 976, 979 (9th Cir. 2012) (en banc). We therefore
hold that the BIA erred in concluding that Vargas was
convicted of spousal abuse under § 273.5(a).5
B. California Penal Code § 422
Vargas also argues that the BIA erred in determining that
his conviction under § 422 was for a CIMT. He is mistaken.
“[Section] 422 is categorically a crime involving moral
turpitude.” Latter-Singh v. Holder, 668 F.3d 1156, 1163 (9th
Cir. 2012). The BIA thus correctly determined that Vargas is
5
Because the BIA did not address whether Vargas “admit[ted] having
committed” or “admit[ted] committing acts which constitute the essential
elements of” spousal abuse under § 273.5(a) for purposes of 8 U.S.C.
§ 1182(a)(2)(A)(i)(I), we do not address those questions in the first
instance.
10 VARGAS CERVANTES V. HOLDER
inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(I) based on
his § 422 conviction.
C. Petty Offense Exception
Vargas argues that, in any event, he is not inadmissible
under 8 U.S.C. § 1182(a)(2)(A)(i)(I) because he qualifies for
the petty offense exception, 8 U.S.C. § 1182(a)(2)(A)(ii). See
In re Salvail, 17 I. & N. Dec. 19, 21 (BIA 1979) (explaining
that the relief afforded by the petty offense exception is
mandatory). The BIA held that Vargas did not qualify for the
petty offense exception because it concluded that Vargas was
convicted of two CIMTs. In light of our holding that Vargas
was not convicted of spousal abuse under § 273.5(a),
however, the BIA’s conclusion was based on an erroneous
ground. We therefore remand for the BIA to consider
whether Vargas is eligible for the petty offense exception on
any other grounds.6
IV. EXTREME HARDSHIP WAIVER
Finally, Vargas contends that even if he is inadmissible
for having committed a CIMT, the IJ and the BIA erred in
ordering him removed because he is eligible for an extreme
hardship waiver under INA § 212(h) (codified at 8 U.S.C.
§ 1182(h)). Specifically, Vargas contends that the IJ and the
BIA erroneously relied on the BIA’s decision in Rotimi, 24 I.
& N. Dec. 567, in holding that he did not meet § 212(h)’s
6
The Government asks us to decide on alternative grounds, not yet
considered by the BIA, that Vargas does not qualify for the petty offense
exception. Because such questions fall within the BIA’s domain, we
decline to do so. See INS v. Orlando Ventura, 537 U.S. 12, 16 (2002) (per
curiam).
VARGAS CERVANTES V. HOLDER 11
lawful residency requirement. He then invites us to reject
Rotimi and to find that he lawfully resided in the United
States while he was waiting for the INS to process his
application for adjustment of status. Before we consider
Vargas’s suggestion to reject Rotimi, we must first decide
whether this issue is properly presented for our review.
A. Waiver of Argument
During a hearing before the IJ, counsel for Vargas stated,
“[w]e have to concede regarding the issue of 212(h).” The IJ
then asked, “[s]o you’re conceding that he’s not eligible,” and
counsel reiterated, “[t]hat is correct, Your Honor. They have
provided a case right on point.”7 Despite his concession,
Vargas later argued in his appeal to the BIA that “[t]he [IJ]
erred in denying [his] application for 212(h) waiver based on
[the IJ’s] reliability [sic] on Matter of Rotimi.” The BIA held
that Vargas had conceded the argument and could not
“challenge the factual findings or legal conclusions of the
Immigration Judge that arose from [his] admission.”
Nevertheless, the BIA considered the merits of Vargas’s
argument and concluded that Vargas did not adequately
explain why Rotimi does not apply to his case.
An applicant’s failure to properly raise an issue to the
BIA generally constitutes a failure to exhaust, thus depriving
us of jurisdiction to consider the issue. Barron v. Ashcroft,
358 F.3d 674, 677 (9th Cir. 2004). That said, we “may
review any issue addressed on the merits by the BIA,
regardless whether it was raised to the BIA by the petitioner.”
Rodriguez-Castellon v. Holder, 733 F.3d 847, 852 (9th Cir.
2013), cert. denied, --- S. Ct. ----, 2014 WL 1751502 (Oct.
7
The “case right on point” was Rotimi.
12 VARGAS CERVANTES V. HOLDER
14, 2014) (No. 13-9961); see also Sagermark v. INS, 767 F.2d
645, 648 (9th Cir. 1985) (holding that an issue that was not
technically before the BIA on the merits may be considered
exhausted if the BIA considered the merits of the IJ’s
decision). Because the BIA addressed Vargas’s claim—
despite his concession—we are satisfied that we have
jurisdiction to consider Vargas’s argument regarding Rotimi.
B. Eligibility for Extreme Hardship Waiver
An alien may receive a waiver under INA § 212(h) if,
among other reasons, removal would result in extreme
hardship to family members who are United States citizens or
lawful residents. 8 U.S.C. § 1182(h)(1)(B). “No waiver shall
be granted,” however, if the alien “has not lawfully resided
continuously in the United States for a period of not less than
7 years immediately preceding the date of initiation of
[removal] proceedings.” Id. § 1182(h) (emphasis added). In
Yepez-Razo v. Gonzales, we observed that the phrase
“lawfully resided continuously” was unclear. 445 F.3d 1216,
1218 (9th Cir. 2006). There, we chose not to define “lawfully
resided continuously” in the first instance because we are
prohibited from “‘intrud[ing] upon the domain which
Congress has exclusively entrusted to an administrative
agency.’” Id. at 1219 n.6 (alteration in original) (quoting
Orlando Ventura, 537 U.S. at 16).
A few months later, the BIA agreed that “lawfully resided
continuously” is an ambiguous phrase, and it addressed this
issue in a precedential opinion, Rotimi, 24 I. & N. Dec. at
571. There, Rotimi entered the United States in 1995 as a
nonimmigrant visitor with permission to remain for six
months. Id. at 568. Within the six-month time period, he
filed an application for asylum, which was denied. Id. He
VARGAS CERVANTES V. HOLDER 13
then married a United States citizen, received an immediate-
relative visa, and ultimately became a lawful permanent
resident in 1997. Id. In 2003, DHS served Rotimi with a
notice to appear based on his commission of a CIMT. Id. at
569. He claimed that he qualified for a waiver under § 212(h)
because he had lawfully resided in the United States for more
than seven years. Although he had been a lawful permanent
resident for only five years, he claimed that he began
“lawfully residing” in the United States when he entered the
country lawfully. The BIA rejected Rotimi’s argument,
holding that “‘lawfully resided’ connotes more than simple
presence or residence.” Id. at 572. It then explained that
residence is not “lawful” unless “authorized or in harmony
with the law.” Id. at 574. Because lawful residence is a
privilege “that an alien can[not] achieve through self-action
alone,” the BIA explained that “lawfully” entering the
country is not enough. Id. at 572. Furthermore, it held that
being an applicant for an adjustment of status, by itself, does
not qualify as continuous lawful residence for purposes of
§ 212(h). Id. at 577–78. Accordingly, the BIA concluded
that Rotimi did not qualify for a waiver under § 212(h) even
though he physically resided in the United States, because he
did not lawfully reside in the United States until he became a
lawful permanent resident. Id.
Here, we must consider whether Vargas “lawfully
resided” in the United States between June 12, 2001, when
his wife filed an application on his behalf for an adjustment
of status, and July 10, 2008, when DHS issued the Notice to
Appear. In considering this question, we are guided by the
two-step analysis set forth in Chevron, U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984).
Under Chevron, we first ask “whether Congress has directly
spoken to the precise question at issue.” Id. at 842. If the
14 VARGAS CERVANTES V. HOLDER
statute is silent or ambiguous, we then consider “whether the
agency’s answer is based on a permissible construction of the
statute.” Id. at 843. The agency’s interpretation need not be
the best construction of the ambiguous statute. Id. at 843 n.11.
The first step of the Chevron analysis is straightforward
here because we previously observed that “lawfully resided
continuously” is an unclear phrase. Yepez-Razo, 445 F.3d at
1218; see also Rotimi, 24 I. & N. Dec. at 571. Therefore,
under the second step of the Chevron analysis, the BIA’s
decision is entitled to deference so long as it is reasonable.
Chevron, 467 U.S. at 843–44; see also Delgado v. Holder,
648 F.3d 1095, 1102 (9th Cir. 2011) (en banc) (“The BIA’s
precedential decisions interpreting the Immigration and
Nationality Act are entitled to Chevron deference.”). The
BIA concluded that “actual approval, not simply the
submission, of the application [for lawful permanent resident
status] is required before the alien can claim to have been
accorded the privilege of residing permanently in this
country.” Rotimi, 24 I. & N. Dec. at 574. That conclusion is
reasonable. The BIA’s decision finds support in the text of
the statute, in the statute’s legislative history, in a comparison
of the statute with other sections of the INA that use similar
language, and in case law distinguishing between an alien
who has applied for a particular status and one who has been
granted such status. See id. at 573–77. Accordingly, we
defer to the BIA’s decision, and in doing so, we join the
Second and Eleventh Circuits. See Rotimi v. Holder, 577
F.3d 133, 139 (2d Cir. 2009) (per curiam); Quinchia v. U.S.
Attorney Gen., 552 F.3d 1255, 1259 (11th Cir. 2008).
Vargas’s situation is indistinguishable from Rotimi.
Although he applied for lawful permanent resident status in
2001, he did not begin lawfully residing in the United States
VARGAS CERVANTES V. HOLDER 15
until February 21, 2002—the day he became a lawful
permanent resident. As in Rotimi, the time Vargas resided in
the United States while his application for lawful permanent
residency was pending does not count as lawful residence
because his application did not confer upon him any status or
benefit. Since Vargas had not lawfully resided in the United
States for seven years when he was served with notice to
appear, the IJ and the BIA correctly decided that Vargas does
not qualify for a waiver under § 212(h).
V. CONCLUSION
We hold that although the BIA correctly determined that
Vargas’s conviction under California Penal Code § 422 was
for a CIMT and that Vargas is ineligible for an extreme
hardship waiver, the BIA erred in concluding that Vargas’s
conviction under California Penal Code § 273.5(a) was for a
CIMT by looking to evidence outside the record of
conviction. Accordingly, we grant the petition for review and
remand for further proceedings consistent with this opinion.
Petition GRANTED and REMANDED.