Jose Refugio Gomez-Gutierrez v. Loretta E. Lynch
811 F.3d 1053
| 8th Cir. | 2016Background
- Gomez-Gutierrez, a Mexican national who became a lawful permanent resident as a child, was placed in removal proceedings based on two prior convictions: a 1983 California marijuana conviction and a 2006 Minnesota solicitation of prostitution conviction; he challenged only the solicitation conviction.
- In 2006 he pled guilty to solicitation under Minn. Stat. § 609.324, subd. 2, completed a diversion program, and the court dismissed the charge in 2008.
- DHS charged removability under 8 U.S.C. § 1227(a)(2)(A)(ii) (two crimes involving moral turpitude). The IJ found Gomez-Gutierrez removable, concluding the stayed/dismissed plea qualified as a conviction under 8 U.S.C. § 1101(a)(48)(A) and that Minnesota solicitation was categorically a crime involving moral turpitude.
- The BIA affirmed the IJ, agreeing solicitation implied the necessary mens rea and was categorically morally turpitudinous; DHS removed Gomez-Gutierrez to Mexico in 2014.
- Gomez-Gutierrez filed a petition for review and a motion to reconsider/reopen, submitting state cases and news articles to show the Minnesota statute could be applied to non-turpitudinous conduct; the BIA denied the motion as repeating prior arguments and raising improper new arguments.
- The Eighth Circuit granted review of legal questions, considered the categorical approach and realistic-probability test, and denied the consolidated petitions for review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Minnesota solicitation conviction is a "crime involving moral turpitude" for removal under § 1227(a)(2)(A)(ii) | Gomez-Gutierrez: the statute’s least culpable conduct (as applied in some Minnesota cases) lacks the requisite scienter or reprehensible conduct, so it is not categorically a crime of moral turpitude | Government/BIA: "solicit" implies intent and prostitution-related offenses have long been treated as morally turpitudinous; no realistic probability statute reaches non-turpiduous conduct | Held: BIA reasonably concluded solicitation is categorically a crime involving moral turpitude; conviction qualifies for removal |
| Whether the stayed/diverted plea and later dismissal is a conviction under § 1101(a)(48)(A) (alternative IJ ruling) | Gomez-Gutierrez challenged the conviction status (procedural attack) | Government maintained the plea record established a conviction for immigration purposes | Not reached by the court (parties agreed issue not before the court; BIA had relied on conviction finding) |
| Whether the BIA abused its discretion in denying motion to reconsider/reopen based on new evidence/arguments | Gomez-Gutierrez: BIA failed to address new evidence (state cases, news articles, Safe Harbor Act timing) showing categorical overbreadth and thus should reopen | BIA: motion repeated prior arguments, improperly raised new claims, and did not demonstrate that the outcome would change | Held: No abuse of discretion; BIA provided sufficient reasoned explanation and did not ignore the record |
| Standard of review for categorical-morality determination | Gomez-Gutierrez: legal question subject to de novo review; urged narrow interpretation | Government: deference to BIA’s reasonable statutory interpretation | Held: Review is de novo for the legal question, but BIA’s reasonable interpretation is afforded substantial deference; BIA’s determination upheld |
Key Cases Cited
- Shepard v. United States, 544 U.S. 13 (2005) (categorical approach requires conviction to necessarily involve the generic offense)
- Lateef v. DHS, 592 F.3d 926 (8th Cir. 2010) (legal-question review and deference to BIA interpretations)
- Chanmouny v. Ashcroft, 376 F.3d 810 (8th Cir. 2004) (discussing BIA’s definition of moral turpitude)
- Mshihiri v. Holder, 753 F.3d 785 (8th Cir. 2014) (standards for motions to reconsider)
- Guled v. Mukasey, 515 F.3d 872 (8th Cir. 2008) (motions to reopen are disfavored; standards for denial)
- Omondi v. Holder, 674 F.3d 793 (8th Cir. 2012) (BIA must give reasons sufficient for meaningful appellate review)