Miriam Gutierrez v. Jefferson B. Sessions, III
887 F.3d 770
6th Cir.2018Background
- Petitioner Miriam Gutierrez, a Bolivian national and lawful permanent resident since 1980, pleaded guilty in Virginia (2012) to two counts of credit-card theft under Va. Code § 18.2-192(1) and conceded removability for separate convictions involving moral turpitude.
- Gutierrez applied for cancellation of removal under 8 U.S.C. § 1229b(a); DHS moved to pretermit the application arguing her § 18.2-192(1) conviction could be an "aggravated felony" theft offense under 8 U.S.C. § 1101(a)(43)(G).
- Virginia § 18.2-192(1) is overbroad relative to the federal generic theft offense and divisible into alternative subsections, at least one of which does not match the federal definition.
- The conviction record Gutierrez produced (plea agreement and sentencing order) was inconclusive as to which subdivision of § 18.2-192(1) formed the basis of her conviction and did not resolve whether the conviction matched the federal generic theft definition.
- The IJ and the BIA applied the categorical and modified categorical approaches, concluded Gutierrez failed to prove by a preponderance that she was not convicted of an aggravated felony, and pretermitted her cancellation application; Gutierrez appealed.
Issues
| Issue | Gutierrez's Argument | DHS / Government's Argument | Held |
|---|---|---|---|
| Effect of an inconclusive record under a divisible state statute on eligibility for cancellation of removal | An inconclusive record must be resolved in the alien's favor (invoking Moncrieffe and Sauceda); absence of proof of an aggravated felony means eligibility is satisfied | When statute is divisible and Shepard documents are inconclusive, the applicant—who bears the burden of proving eligibility—fails to meet the preponderance standard and is ineligible | Where statute is overbroad and divisible and the conviction record is inconclusive, the applicant fails to meet the burden and is ineligible for cancellation of removal |
| Applicability of Moncrieffe’s “least-of-the-acts” presumption to divisible statutes and to relief eligibility | Moncrieffe’s presumption that a conviction rests on the least criminalized conduct applies and favors the alien even for divisible statutes when Shepard documents do not clarify | Moncrieffe concerned removability and indivisible statutes; its presumption does not control where (1) the statute is divisible and (2) the applicant bears the burden to prove eligibility | Moncrieffe is inapposite to this context; it does not supplant the applicant’s burden where a divisible statute and an inconclusive record exist |
| Allocation of burden of proof for eligibility when aggravated-felony bar may apply | The aggravated-felony question is a purely legal issue and should not change the applicant’s burden allocation | Statute and regulation put the burden on the applicant to prove eligibility by a preponderance once mandatory denial grounds may apply | The regulatory and statutory scheme places the burden on the applicant to prove by a preponderance that mandatory-denial grounds (an aggravated felony) do not apply |
Key Cases Cited
- Moncrieffe v. Holder, 569 U.S. 184 (2013) (held when statute is indivisible, courts presume the conviction rested on the least of the acts criminalized for removability analysis)
- Descamps v. United States, 570 U.S. 254 (2013) (explained categorical vs. modified categorical approach and limits on using underlying facts)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (clarified divisible vs. indivisible statutes and when to apply modified categorical approach)
- Shepard v. United States, 544 U.S. 13 (2005) (limited the documents courts may consult under the modified categorical approach)
- Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007) (defined generic "theft offense" for immigration purposes)
- Salem v. Holder, 647 F.3d 111 (4th Cir. 2011) (held that an inconclusive record under a divisible statute can defeat an applicant’s burden for relief)