Donjuan-Laredo v. Sessions
689 F. App'x 600
| 10th Cir. | 2017Background
- Donjuan-Laredo, a Mexican national, pleaded guilty in Sept. 2011 to using false immigration documents in violation of 18 U.S.C. § 1546(b)(1) and was sentenced to time served plus 10 days.
- After his criminal sentence, DHS placed him in removal proceedings, charging unlawful presence under 8 U.S.C. § 1182(a)(6)(A)(i).
- He conceded removability but applied for cancellation of removal under 8 U.S.C. § 1229b(b)(1).
- The IJ found him statutorily ineligible for cancellation because his § 1546 conviction is a deportable offense under 8 U.S.C. § 1227(a)(3)(B)(iii); the BIA affirmed via an (e)(5) brief order.
- Donjuan-Laredo argued his conviction was invalid (including ineffective assistance of counsel) and challenged DHS prosecutorial discretion and denial as violating due process/equal protection.
- The BIA and the Tenth Circuit declined to consider collateral attacks on the conviction in immigration proceedings and held prosecutorial-discretion decisions are not reviewable by the IJ/BIA.
Issues
| Issue | Donjuan-Laredo's Argument | Government's Argument | Held |
|---|---|---|---|
| Jurisdiction to review statutory eligibility for cancellation under § 1229b | Court should review BIA’s determination that conviction disqualifies him | Agency’s determination that conviction disqualifies is non-discretionary and reviewable | Court has jurisdiction and reviews de novo |
| Whether § 1546 conviction renders him ineligible for cancellation | Conviction is invalid/illegal and thus cannot bar relief; counsel ineffective | Conviction is valid on its face and is a disqualifying offense under § 1227(a)(3)(B)(iii) | Conviction under § 1546 makes him statutorily ineligible; BIA properly relied on the judicial record |
| Permissibility of collateral attack on the criminal conviction in immigration proceedings | Immigration authorities should evaluate validity of conviction; ineffective assistance claim invalidates conviction for immigration purposes | Collateral attacks are barred; immigration proceedings must rely on final judicial record | Collateral attack disallowed; conviction stands unless overturned in post-conviction relief |
| Review of DHS prosecutorial discretion by IJ/BIA | DHS abused discretion by pursuing removal; IJ should review refusal to exercise discretion | DHS prosecutorial-discretion decisions are not reviewable by IJ/BIA | DHS discretion decisions not reviewable; IJ/BIA lacked authority to review |
Key Cases Cited
- Arambula-Medina v. Holder, 572 F.3d 824 (10th Cir.) (distinguishing discretionary vs. non-discretionary aspects of cancellation decisions)
- Sabido Valdivia v. Gonzales, 423 F.3d 1144 (10th Cir.) (agency determinations that are non-discretionary are reviewable)
- Uanreroro v. Gonzales, 443 F.3d 1197 (10th Cir.) (single-member BIA (e)(5) orders constitute independent final orders of removal)
- Herrera-Castillo v. Holder, 573 F.3d 1004 (10th Cir.) (standard of review for legal determinations by the BIA)
- Vasiliu v. Holder, 651 F.3d 1185 (10th Cir.) (immigration authorities must rely on the judicial record and cannot entertain collateral challenges to convictions)
- Veloz-Luvevano v. Lynch, 799 F.3d 1308 (10th Cir.) (IJ and BIA lack authority to review government prosecutorial-discretion decisions)