Esteban Troncoso-Oviedo v. Merrick Garland

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ESTEBAN TRONCOSO-OVIEDO, No. 21-70547
Petitioner,
Agency No.
v. A216-377-085
MERRICK B. GARLAND, Attorney OPINION
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted July 5, 2022
Portland, Oregon
Filed August 5, 2022
Before: Paul J. Watford, Ryan D. Nelson, and
Kenneth K. Lee, Circuit Judges.
Opinion by Judge R. Nelson
2 TRONCOSO-OVIEDO V. GARLAND
SUMMARY *
Immigration
Granting in part and denying in part Esteban Troncoso-
Oviedo’s petition for review of a decision of the Board of
Immigration Appeals, and remanding, the panel held that:
1) pretrial detention that is not credited toward a defendant’s
sentence is not confinement “as a result of a conviction” for
purposes of determining good moral character under
8 U.S.C. § 1101(f)(7); and 2) the agency properly concluded
that petitioner waived his applications for alternative relief.
In 2018, an Arizona court convicted Troncoso-Oviedo of
aggravated DUI, sentencing him to “[a] term of 4 calendar
months . . . with a presentence credit for 183 day(s) (time
served).” Before sentencing, he spent 183 days in pretrial
detention. In later removal proceedings, the agency deemed
Troncoso-Oviedo ineligible for cancellation of removal
under 8 U.S.C. § 1101(f)(7), which bars a respondent from
establishing good moral character if he “has been confined,
as a result of conviction, to a penal institution for an
aggregate period of one hundred and eighty days or more.”
The parties agreed that Troncoso-Oviedo was confined for
183 days, but disagreed whether all 183 days were “as a
result of conviction.”
The government urged the panel to ignore the part of the
sentencing order providing for a “term of 4 calendar months”
and hold that the actual sentence was contained only in the
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
TRONCOSO-OVIEDO V. GARLAND 3
parenthetical: “(time served).” The panel declined to adopt
such a strained reading, explaining that the order
unambiguously imposed a four-month (122-day) sentence,
noted the time available for credit toward that sentence (or,
in the event of a parole violation, later incarceration), and
recognized that the credit allowed Troncoso-Oviedo to be
released on the day he was sentenced. The panel also
rejected the government’s contention that the panel should
defer to the BIA’s opinion in Matter of Valdovinos,
18 I. & N. Dec. 343 (BIA 1982), explaining that Chevron
deference was not warranted because Valdovinos failed to
address the question here.
Troncoso-Oviedo argued that the IJ violated due process
by failing to question him directly about waiving his
applications for asylum, withholding, and protection under
the Convention Against Torture. The panel concluded that
Troncoso-Oviedo failed to establish a due process violation,
explaining that he was represented by counsel, the IJ relied
on counsel’s statements to hold that the claims had been
withdrawn, and the BIA properly affirmed. Moreover, the
panel explained that Troncoso-Oviedo did not contend that
his counsel was ineffective or that the waiver was not
knowing and voluntary.
4 TRONCOSO-OVIEDO V. GARLAND
COUNSEL
Hillary Walsh (argued) and Katelyn Leese, New Frontier
Immigration Law, Phoenix, Arizona, for Petitioner.
A. Ashley Arthur (argued), Trial Attorney; Dawn S. Conrad,
Senior Litigation Counsel; Brian M. Boynton, Principal
Deputy Assistant Attorney General; Office of Immigration
Litigation, Civil Division, United States Department of
Justice, Washington D.C.; for Respondent.
OPINION
R. NELSON, Circuit Judge:
The question before us is whether pretrial detention that
is not credited toward a defendant’s sentence is confinement
“as a result of conviction.” See 8 U.S.C. § 1101(f)(7). We
hold that it is not. We also hold that the agency properly
relied on counsel’s representations that the petitioner waived
his applications for asylum, withholding, and protection
under the Convention Against Torture.
I
Since illegally entering the United States in 2000,
Esteban Troncoso-Oviedo has been convicted of four DUI
offenses. Only one is relevant here. In 2018, an Arizona
court convicted Troncoso-Oviedo of aggravated DUI.
Before sentencing, he spent 183 days in pretrial detention.
The state court sentenced Troncoso-Oviedo to “[a] term of 4
calendar months . . . with a presentence credit for 183 day(s)
(time served).”
TRONCOSO-OVIEDO V. GARLAND 5
The Department of Homeland Security (DHS) initiated
removal proceedings. Troncoso-Oviedo applied for
cancellation of removal but, through counsel, waived
applications for asylum, withholding of removal, and
protection under the Convention Against Torture (CAT)
because he believed he did not have “a viable claim under
current law.” The agency deemed Troncoso-Oviedo
ineligible for cancellation of removal under 8 U.S.C.
§ 1101(f)(7), which bars a respondent from establishing
good moral character if he “has been confined, as a result of
conviction, to a penal institution for an aggregate period of
one hundred and eighty days or more.” According to the
BIA, Troncoso-Oviedo’s “conviction and sentence . . . to
4 months of imprisonment with presentence credit for
183 days of time served precludes him from establishing
good moral character.” The agency also concluded that he
had waived his applications for alternative relief.
Troncoso-Oviedo now petitions this Court, arguing that
he is not barred from cancellation of removal because his
four-month (122-day) sentence does not meet the 180-day
statutory bar. He also contends that the Immigration Judge
(IJ) violated due process when she allowed counsel to waive
his claims for alternative relief without directly questioning
him.
II
We review de novo questions of law, “except to the
extent that deference is owed to the BIA’s determination of
[its] governing statutes and regulations.” Aragon-Salazar v.
Holder, 769 F.3d 699, 703 (9th Cir. 2014). We also review
de novo whether the agency violated due process. Chavez-
Reyes v. Holder, 741 F.3d 1, 3 (9th Cir. 2014).
6 TRONCOSO-OVIEDO V. GARLAND
III
We first decide Troncoso-Oviedo’s eligibility for
cancellation of removal. We then address whether the IJ
violated due process by accepting counsel’s statements
about Troncoso-Oviedo’s waiver of applications for
alternative relief.
A
To qualify for cancellation of removal under the
Immigration and Nationality Act (INA), Troncoso-Oviedo
must establish that he has been a person of good moral
character during the relevant period. 8 U.S.C.
§ 1229b(b)(1). He cannot do so if he “has been confined, as
a result of conviction, to a penal institution for an aggregate
period of one hundred and eighty days or more.” Id.
§ 1101(f)(7). His statutory eligibility therefore depends on
whether he was “confined, as a result of conviction” for 180
days or more. Id.
The parties agree that Troncoso-Oviedo was confined for
183 days. But they disagree whether all 183 days are “as a
result of conviction.” The government contends that they
are, for two reasons. First, it asserts that the Arizona court’s
sentence was equal to Troncoso-Oviedo’s full pretrial
detention. If the sentence was less than 180 days, the
government alternatively argues that we must defer to the
BIA’s opinion in Matter of Valdovinos, 18 I. & N. Dec. 343,
344 (BIA 1982), which states that “time [an alien] spent
incarcerated prior to his . . . conviction is considered time
served as a result of his subsequent conviction.”
TRONCOSO-OVIEDO V. GARLAND 7
1
The Arizona court’s sentencing order states that
Troncoso-Oviedo “is sentenced to a term of imprisonment
and is committed to the Department of Corrections/Arizona
State Prison as follows: . . . [a] term of 4 calendar months . . .
with a presentence credit for 183 day(s) (time served).” The
government urges us to ignore “term of 4 calendar months”
and instead hold that the actual sentence is contained only in
the ending parenthetical: “(time served).” We decline to
adopt such a strained reading. The sentencing order is not
ambiguous. It imposes a four-month (122-day) sentence,
notes the time available for credit toward that sentence (or,
in the event of a parole violation, later incarceration), and
recognizes that the credit allowed Troncoso-Oviedo to be
released on the day he was sentenced.
2
Even so, the government contends that all 183 days count
toward Troncoso-Oviedo’s eligibility because Chevron,
U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837 (1984), requires us to defer to the BIA’s
interpretation of the INA. In the government’s view, this
petition is controlled by Valdovinos, where the agency stated
that “time [an alien] spent incarcerated prior to his . . .
conviction is considered time served as a result of his
subsequent conviction.” 18 I. & N. Dec. at 344.
We defer to the BIA’s interpretation of the INA “when it
appears that Congress delegated authority to the agency
generally to make rules carrying the force of law, and that
the agency interpretation claiming deference was
promulgated in the exercise of that authority.” United States
v. Mead Corp., 533 U.S. 218, 226–27 (2001). The BIA’s
interpretation must directly address the relevant question in
8 TRONCOSO-OVIEDO V. GARLAND
“a published decision (or an unpublished decision directly
controlled by a published decision interpreting the same
statute).” Diaz-Quirazco v. Barr, 931 F.3d 830, 838 (9th Cir.
2019) (quoting Uppal v. Holder, 605 F.3d 712, 714 (9th Cir.
2010)).
The respondent in Valdovinos spent 191 days
incarcerated for two felony convictions. 18 I. & N. Dec. at
344. He argued that pretrial detention prior to his first
conviction (but credited toward his sentence) did not count
as confinement “as a result of conviction.” Id. (quoting
§ 1101(f)(7)). The BIA disagreed, noting that the state court
was required to give credit for pre-conviction confinement
when determining a defendant’s release from custody. Id.
The agency held that “the time the respondent spent
incarcerated prior to his . . . conviction is considered time
served as a result of his subsequent conviction.” Id. When
summarizing its holdings, the agency explained that “[p]re-
sentence confinement is credited in determining the date of
release from custody under [state law] and such pre-sentence
confinement is counted . . . under section [1]101(f)(7).” Id.
at 343.
Because the respondent in Valdovinos was sentenced to
more than 180 days’ incarceration, the agency never
addressed whether pretrial detention in excess of a
defendant’s sentence would be “as a result of conviction”
under § 1101(f)(7). Valdovinos therefore fails to address the
question here and Chevron deference is not warranted.
Nor have we directly addressed the question. In Gomez-
Lopez v. Ashcroft, 393 F.3d 882 (9th Cir. 2005), we stated in
dicta that § 1101(f)(7)’s “requirement that . . . confinement
be as a result of a conviction precludes counting any time a
person may have spent in pretrial detention.” Id. at 886. We
had no reason to consider whether pretrial detention later
TRONCOSO-OVIEDO V. GARLAND 9
credited toward a sentence would be counted. Three years
later, we held more specifically that pretrial detention
credited against a sentence is “confinement as a result of
conviction” and that “pretrial detention cannot be counted as
time served as a result of a conviction if not credited in the
judgment of conviction as time served.” Arreguin-Moreno
v. Mukasey, 511 F.3d 1229, 1232, 1233 (9th Cir. 2008). As
we explained, “when courts sentence defendants in pre-
conviction detention to ‘time served,’ it is generally
understood that the pre-conviction custody thereby becomes
the term of imprisonment imposed by the judgment.” Id. at
1232 (quotation marks omitted) (quoting Spina v. Dep’t of
Homeland Sec., 470 F.3d 116, 128 (2d Cir. 2006)).
Our holding today fills the gap between Gomez-Lopez
and Arreguin-Moreno: Pretrial detention not credited toward
a sentence is not “confinement, as a result of conviction”
under § 1101(f)(7).
The government also points us to Garcia-Mendoza v.
Holder, 753 F.3d 1165, 1169 (10th Cir. 2014). But Garcia-
Mendoza is distinguishable. Garcia-Mendoza was sentenced
to 270 days’ imprisonment with 104 days credited for time
served. Id. at 1167. He was released after serving 197 days
(104 days before conviction and 93 days after conviction).
Id. When the state court retroactively reduced his sentence
to 166 days, Garcia-Mendoza argued that his reduced
sentence meant that he had not been confined for 180 days
“as a result of conviction.” Id. at 1167–68. The Tenth
Circuit disagreed, noting that “it is the actual period of
confinement served that is determinative, not the ordered
term of imprisonment.” Id. at 1169. The court concluded
that the phrase “as a result of conviction” is ambiguous as to
whether it includes confinement “credited towards a later
term of imprisonment” that was retroactively reduced, and
10 TRONCOSO-OVIEDO V. GARLAND
thus deferred to the BIA’s decision in Valdovinos. Id. at
1170.
We need not opine on whether Garcia-Mendoza was
rightly decided because it does not address the situation
before us—Troncoso-Oviedo was never sentenced to more
than 180 days. Instead, Garcia-Mendoza contemplates
immigration consequences when a defendant has already
served a disqualifying sentence and that sentence is
retroactively reduced. 753 F.3d at 1167–68. Pretrial
detention that is not credited toward a defendant’s sentence
is not “confinement, as a result of conviction” under
§ 1101(f)(7).
B
Troncoso-Oviedo also argues that the IJ violated due
process by failing to question him directly about waiving his
applications for alternative relief. During the immigration
proceedings, Troncoso-Oviedo indicated that he would
apply for cancellation of removal, asylum, withholding, and
CAT protection. The IJ set a deadline for filing his
applications and warned that the applications would be
considered abandoned if not timely filed. When the deadline
passed and Troncoso-Oviedo applied only for cancellation
of removal, the IJ asked counsel whether he intended to
apply for the remaining forms of relief. Counsel responded,
“He’s waiving that . . . . We have reviewed that, and that’s
not a viable claim under current law.” Six months later, the
IJ again asked about other forms of relief and counsel
responded, “[W]e’re not going to pursue that . . . . We can
withdraw that with prejudice.”
Of course, in some situations an IJ must directly question
an applicant to confirm that he understands the legal
consequences of his decisions. But those circumstances
TRONCOSO-OVIEDO V. GARLAND 11
typically involve an applicant who is proceeding pro se. See,
e.g., Arrey v. Barr, 916 F.3d 1149, 1157 (9th Cir. 2019);
United States v. Lopez-Velasquez, 629 F.3d 894, 896–97 (9th
Cir. 2010) (en banc). On the other hand, we typically allow
IJs to rely on representations by counsel. See United States
v. Galicia-Gonzalez, 997 F.2d 602, 603–04 (9th Cir. 1993)
(per curiam). Troncoso-Oviedo was represented by counsel,
who confirmed that the two had reviewed alternative relief
and decided to waive those claims. The IJ relied on
counsel’s statements to hold that the claims had been
withdrawn and the BIA properly affirmed. See Lata v.
I.N.S., 204 F.3d 1241, 1246 (9th Cir. 2000) (petitioner must
show “error and substantial prejudice” to establish due
process violation). Moreover, Troncoso-Oviedo does not
contend that his counsel was ineffective or that the waiver
was not knowing and voluntary. He thus fails to establish a
due process violation.
IV
Troncoso-Oviedo’s petition is granted as to his eligibility
for cancellation of removal because the uncredited pretrial
detention was not “confinement, as a result of conviction”
under § 1101(f)(7). His petition is denied as to his due
process challenge because the IJ properly relied on counsel’s
representations. The temporary stay of removal remains in
place until issuance of the mandate. The motions for a stay
of removal are otherwise denied.
GRANTED IN PART AND DENIED IN PART;
REMANDED.