Nunez-Robles v. Sessions
16-9538
| 10th Cir. | Dec 18, 2017Background
- Immigrant challenged BIA and IJ denials of cancellation of removal based on inconclusive criminal records.
- IJ found failure to prove not convicted of a CIMT due to missing dispositions and lack of statute identifications.
- Nunez-Robles submitted a RAP sheet (FBI/NCIC) arguing it cured the record; argued BIA could take administrative notice.
- BIA dismissed the appeal, relied on Garcia v. Holder that inconclusive records fail to prove absence of CIMT, and did not expressly consider the RAP sheet.
- Nunez-Robles moved to reopen with RAP sheet; BIA invoked Silva-Trevino and Garcia, denying relief and ruling RAP sheet insufficient.
- Court held jurisdiction limits; unexhausted due-process claim dismissed; otherwise petitions denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court has jurisdiction over unexhausted due-process claim | Nunez-Robles argues procedural due process violation warrant review. | BIA did not consider exhaustion; claim not properly exhausted. | Jurisdiction dismissed for the unexhausted due-process claim. |
| Whether Garcia controls evaluation of inconclusive conviction records for CIMT | Garcia is superseded by Moncrieffe and Silva-Trevino; ambiguous records should be resolved in the alien's favor. | Garcia remains good law; inconclusive records fail to prove absence of CIMT. | Garcia remains controlling; no error in BIA's reliance on Garcia. |
| Whether RAP sheet evidence could be admitted/suffice to prove eligibility for relief | RAP sheet should resolve ambiguities; BIA could take administrative notice. | Evidence must be admitted in IJ proceedings; RAP sheet not properly before BIA. | RAP sheet not properly admitted; record remains inconclusive. |
| Whether the motion to reopen was properly denied based on new evidence | RAP sheet would resolve remaining ambiguities and prove not CIMT. | New information did not change result; no remand to IJ. | BIA did not abuse discretion; even with RAP sheet, record remained inconclusive. |
Key Cases Cited
- Garcia v. Holder, 584 F.3d 1288 (10th Cir. 2009) (inconclusive record fails to prove absence of CIMT)
- Moncrieffe v. Holder, 569 U.S. 184 (U.S. 2013) (ambiguity in state-law offense classification component of relief analysis)
- Lucio-Rayos v. Sessions, 875 F.3d 573 (10th Cir. 2017) (distinguishes relief-burden scenarios from Moncrieffe; Garcia remains good law)
- Matter of Silva-Trevino, 26 I. & N. Dec. 826 (BIA 2016) (framework for CIMT analysis; discussed by BIA in later decision)
- Uanreroro v. Gonzales, 443 F.3d 1197 (10th Cir. 2006) (jurisdiction to review final order of removal; treatment of BIA decisions)
- Vicente-Elias v. Mukasey, 532 F.3d 1086 (10th Cir. 2008) (exhaustion requirements for constitutional claims in BIA review)