Ismael Dominguez-Herrera v. Jefferson B. Sessions
850 F.3d 411
| 8th Cir. | 2017Background
- Hernandez-Martinez and Dominguez-Herrera are non-permanent U.S. residents who sought cancellation of removal under 8 U.S.C. § 1229b(b)(1).
- The IJ and BIA held both had committed offenses described in § 1227(a)(2)(A)(i): crimes involving moral turpitude with a sentence of one year or more.
- Hernandez-Martinez’s record included a Kansas UPOC § 6.1 theft conviction evidenced by a waiver, docket, and guilty plea; Dominguez-Herrera’s record included an Abstract of Conviction indicating theft under a nearly identical statute in another Kansas city.
- The BIA relied on UPOC § 6.1 to classify theft as a crime involving moral turpitude and as having a potentially onerous penalty.
- Hernandez-Martinez was charged with a Class A Misdemeanor (maximum up to 1 year) under UPOC § 6.1; Dominguez-Herrera’s record showed a Class A violation with a maximum of one year, not an infraction.
- The Board and court must determine whether these municipal judgments constitute criminal convictions, involve moral turpitude, and carry a sentence of at least one year to deny cancellation of removal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the municipal judgments are criminal convictions for immigration purposes | Hernandez-Martinez invoked Cuellar-Gomez; argues judgments are not criminal convictions | BIA held judgments are criminal convictions under Eslamizar and related Kansas law | Yes; the judgments are criminaI convictions under the governing test. |
| Whether the offenses involve moral turpitude | The theft offenses may not inherently involve moral turpitude under UPOC § 6.1 | UPOC § 6.1 embodies moral turpitude due to permanent deprivation intent; 6.2 evidence supports this | Yes; theft under UPOC § 6.1 involves moral turpitude. |
| Whether the maximum penalty for the offenses is at least one year | Defendants argue penalties were not necessarily one year | Statutory maximums under UPOC § 12.1(a)(1) permit up to one year; abstract lists do not defeat this | Yes; each offense is punishable by a year or more. |
Key Cases Cited
- Solis v. Holder, 647 F.3d 831 (8th Cir. 2011) (jurisdiction to review nondiscretionary removal decisions; constitutional questions preserved)
- Bernal-Rendon v. Gonzales, 419 F.3d 877 (8th Cir. 2005) (deference to BIA interpretations of immigration law)
- Chanmouny v. Ashcroft, 376 F.3d 810 (8th Cir. 2004) (definition of crime involving moral turpitude; Chevron deference discussed)
- In re Eslamizar, 23 I. & N. Dec. 684 (BIA 2004) (definition of conviction for immigration purposes)
- In re Cuellar-Gomez, 25 I. & N. Dec. 850 (BIA 2012) (application of Eslamizar test to municipal conviction for theft)
- In re Ajami, 22 I. & N. Dec. 949 (BIA 1999) (divisible statute; determine offense from record)
- In re Grazley, 14 I. & N. Dec. 330 (BIA 1973) (theft generally involves moral turpitude when permanent taking is intended)
- Franklin v. INS, 72 F.3d 571 (8th Cir. 1995) (deference to BIA interpretations of moral turpitude)
- GODinez-Arroyo v. Mukasey, 540 F.3d 848 (8th Cir. 2008) (deference discussion to BIA interpretations)
- Castillo v. Attorney General, 729 F.3d 296 (3d Cir. 2013) (Castillo distinguishes Cuellar-Gomez; note on deference)