Andres Moreno-Sanchez v. Jefferson Sessions
686 F. App'x 450
| 9th Cir. | 2017Background
- Moreno, a Mexican national, petitioned for review after the BIA affirmed an IJ's denial of asylum, withholding of removal, CAT protection, and cancellation of removal.
- Moreno had been convicted under California Health & Safety Code § 11357(b) (2011) for possession of not more than 28.5 grams of marijuana, an offense classified as an "infraction" under the statute as then written.
- The BIA treated Moreno’s conviction as a disqualifying "conviction" under INA § 101(a)(48)(A) and therefore concluded he was ineligible for cancellation of removal under INA § 212(a)(2).
- The Ninth Circuit found the BIA failed to consider its precedential decision in Matter of Cuellar-Gomez regarding when a formal judgment in a criminal proceeding qualifies as a conviction for immigration purposes.
- The panel remanded to the BIA to decide in the first instance whether Moreno’s infraction qualifies as a conviction under INA § 101(a)(48)(A), and therefore whether it disqualifies him from cancellation.
- The court dismissed Moreno’s challenges to denial of administrative closure and to a requested continuance for lack of jurisdiction or exhaustion, and declined to reach merits of asylum, withholding, CAT, and voluntary departure claims.
Issues
| Issue | Moreno's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether CHSC § 11357(b) infraction is a "conviction" under INA § 101(a)(48)(A) | The infraction should not be treated as a disqualifying conviction for cancellation | The infraction is a conviction that bars cancellation under INA § 212(a)(2) | Remanded to BIA to apply Cuellar-Gomez and determine whether the infraction is a "conviction" |
| Whether BIA’s denial of administrative closure is reviewable | Not reviewable? (Moreno sought relief) | Agency discretion to deny; not reviewable | Court lacks jurisdiction to review denial of administrative closure; claim dismissed |
| Whether failure to exhaust continuance claim bars review | Merits argued to Ninth Circuit | Government argues failure to exhaust before IJ/BIA; procedural bar | Petition dismissed for that claim due to failure to exhaust |
| Whether to decide asylum/withholding/CAT/voluntary departure claims on appeal | Argued on merits below | Government opposed | Court declined to reach these claims given remand disposition |
Key Cases Cited
- INS v. Ventura, 537 U.S. 12 (per curiam) (remand appropriate when agency has not reached an issue)
- Delgado v. Holder, 648 F.3d 1095 (9th Cir.) (agency must explain basis of decision for meaningful judicial review)
- Diaz-Covarrubias v. Mukasey, 551 F.3d 1114 (9th Cir.) (administrative-closure denials are committed to agency discretion and not judicially reviewable)
- Barron v. Ashcroft, 358 F.3d 674 (9th Cir.) (review barred when petitioner failed to exhaust claims before IJ and BIA)