Jose Torres-Valdivias v. Loretta E. Lynch
2015 U.S. App. LEXIS 7671
| 9th Cir. | 2015Background
- Petitioner Jose Guadalupe Torres-Valdivias, a Mexican national, lived in the U.S. since 1989 and received conditional permanent resident status in 2003, later revoked due to a 2001 California sexual battery conviction (Cal. Penal Code § 243.4(a)).
- After revocation he was placed in removal proceedings and applied for adjustment of status under 8 U.S.C. § 1255(i); the IJ considered both conviction records and underlying facts (police reports and his testimony).
- The IJ concluded the sexual battery was "violent or dangerous," applied the heightened discretionary standard from Matter of Jean, and denied adjustment as a matter of discretion.
- The BIA agreed that Matter of Jean applied to adjustment applications when the alien has a violent or dangerous conviction, remanded for further fact analysis, then ultimately adopted the IJ’s decision denying adjustment and affirmed removal.
- Torres-Valdivias petitioned for review in the Ninth Circuit, challenging (1) the BIA’s refusal to use the categorical approach, (2) the BIA’s finding that his offense was violent/dangerous, and (3) the applicability of Matter of Jean to § 1255 adjustment cases.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the BIA must use the categorical approach to determine if a conviction is "violent or dangerous" for Matter of Jean purposes | Torres-Valdivias: BIA erred by not applying the categorical approach; must look only to statutory elements | Government/BIA: Adjustment is discretionary; BIA may consider underlying facts when exercising discretion | Held: BIA properly declined the categorical approach for discretionary determinations and may consider underlying facts |
| Whether the BIA erred as a matter of law in finding the sexual battery conviction was "violent or dangerous" | Torres-Valdivias: Sexual battery here is not equivalent to the violent conduct in Matter of Jean | BIA: Fact‑intensive equities support finding the offense violent/dangerous | Held: Court lacks jurisdiction to review this factual/discretionary determination under 8 U.S.C. § 1252(a)(2)(B) — dismissed for lack of jurisdiction |
| Whether Matter of Jean applies to adjustment of status under 8 U.S.C. § 1255(i) (vs. Matter of Arai standard) | Torres-Valdivias: Jean applies to waiver-of-inadmissibility contexts; Arai is the correct standard for § 1255 adjustments | BIA/Government: Jean’s heightened standard governs discretionary relief for violent/dangerous aliens beyond waiver contexts | Held: Jean’s standard applies to § 1255 adjustment applications involving aliens convicted of violent or dangerous crimes |
| Whether the court may review the BIA’s ultimate discretionary denial of adjustment | Torres-Valdivias: Challenges legal application and discretionary outcome | Government: Ultimate discretionary decisions are statutorily unreviewable | Held: The ultimate discretionary decision to deny adjustment is unreviewable; court retains review only for legal questions and constitutional claims |
Key Cases Cited
- Tokatly v. Ashcroft, 371 F.3d 613 (9th Cir. 2004) (BIA may consider facts outside record of conviction in discretionary relief inquiries)
- Annachamy v. Holder, 733 F.3d 254 (9th Cir. 2013) (standard of review: questions of law reviewed de novo)
- Mejia v. Gonzales, 499 F.3d 991 (9th Cir. 2007) (BIA discretionary determinations are not subject to judicial review under § 1252(a)(2)(B))
- Taylor v. United States, 495 U.S. 575 (1990) (articulation of the categorical approach)
- Castrijon-Garcia v. Holder, 704 F.3d 1205 (9th Cir. 2013) (use of categorical approach for removability and statutory-bar determinations)