Adrian Vargas Cervantes v. Eric Holder, Jr.
772 F.3d 583
9th Cir.2014Background
- Adrian Vargas Cervantes, a lawful permanent resident since 2002, was convicted (nolo contendere) in 2006 of California Penal Code § 273.5(a) (corporal injury) and § 422 (criminal threats) and served 60 days.
- DHS served a Notice to Appear in 2008 charging inadmissibility under 8 U.S.C. § 1182(a)(2)(A)(i)(I) as an alien convicted of crimes involving moral turpitude (CIMTs).
- IJ found both convictions were CIMTs (relying on Vargas’s admission that the § 273.5 victim was his wife), denied § 212(h) waiver based on not having seven years of continuous lawful residence per In re Rotimi, and concluded Vargas did not qualify for the petty-offense exception.
- The BIA affirmed, treating § 273.5(a) as divisible (spousal subset = CIMT), holding § 422 is categorically a CIMT, and applying Rotimi to deny the § 212(h) waiver.
- Ninth Circuit reviews de novo whether offenses are CIMTs and held: § 422 is a CIMT; the BIA erred by relying on evidence outside the record of conviction to treat Vargas’s § 273.5(a) conviction as spousal abuse; Rotimi is entitled to Chevron deference and bars counting pending adjustment-of-status time as "lawful residence." Remanded for further proceedings.
Issues
| Issue | Vargas's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether conviction under Cal. Penal Code § 273.5(a) is a CIMT | BIA erred; his conviction record does not show victim relationship | § 273.5 is divisible; if victim was spouse it is a CIMT and Vargas admitted spouse | BIA erred to rely on admissions outside record; IJ/BIA must limit inquiry to record of conviction; vacated CIMT finding as to § 273.5(a) conviction |
| Whether conviction under Cal. Penal Code § 422 (criminal threats) is a CIMT | Vargas argued it is not | Govt argued § 422 is categorically a CIMT because threats cause sustained fear | Court held § 422 is categorically a CIMT; conviction supports inadmissibility |
| Petty-offense exception to § 1182(a)(2)(A) | Vargas claimed qualifies because only one qualifying CIMT (if § 273.5 not a CIMT) | BIA concluded two CIMTs so exception inapplicable | Remanded: because § 273.5 CIMT finding vacated, BIA must reassess petty-offense eligibility on proper record |
| Eligibility for § 212(h) extreme-hardship waiver ("lawfully resided continuously" requirement) | Vargas urged Rotimi be rejected; time awaiting adjustment should count as lawful residence | BIA/US argued Rotimi correctly interprets statutory phrase; pending application does not confer lawful residence | Court deferred to Rotimi under Chevron; time before approval of LPR status does not count, so Vargas failed 7-year lawful-residence requirement |
Key Cases Cited
- Olivas-Motta v. Holder, 746 F.3d 907 (9th Cir. 2014) (IJ limited to record of conviction under modified categorical approach)
- Grageda v. INS, 12 F.3d 919 (9th Cir. 1993) (spousal abuse under § 273.5(a) is a CIMT)
- Morales-Garcia v. Holder, 567 F.3d 1058 (9th Cir. 2009) (corporal injury against a cohabitant under § 273.5(a) is not a CIMT)
- Sandoval-Lua v. Gonzales, 499 F.3d 1121 (9th Cir. 2007) (testimony about alien’s conduct is not admissible under the modified categorical approach)
- Latter-Singh v. Holder, 668 F.3d 1156 (9th Cir. 2012) (§ 422 is categorically a CIMT)
- Rotimi v. Holder, 577 F.3d 133 (2d Cir. 2009) (discussing and upholding BIA’s interpretation that pending adjustment application does not constitute "lawfully resided continuously")
- Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) (framework for deferring to reasonable administrative interpretations)
- Yepez-Razo v. Gonzales, 445 F.3d 1216 (9th Cir. 2006) (recognized ambiguity of "lawfully resided continuously")