Rene Guevara-Solorzano v. Jefferson B. Sessions III
891 F.3d 125
| 4th Cir. | 2018Background
- Petitioner Rene Guevara-Solorzano, a lawful permanent resident from Mexico, pleaded guilty in 1995 in Tennessee to unlawful possession of marijuana with intent to manufacture/deliver/sell and pleaded guilty in 2000 in North Carolina to felony breaking-and-entering and felony larceny.
- DHS charged removal on three bases: (1) two crimes involving moral turpitude (CIMTs) not arising from a single scheme (1995 + 2000 convictions); (2) aggravated felony for illicit trafficking in a controlled substance (1995 conviction); and (3) controlled substance offense (1995 conviction).
- Guevara-Solorzano conceded removability on the aggravated-felony and controlled-substance grounds, sought a §212(c) waiver for the 1995 conviction, and later moved to reopen relying on Moncrieffe and circuit precedent to argue the 1995 conviction was not an aggravated felony.
- The IJ denied §212(c) relief because one CIMT (2000 convictions) occurred after §212(c)’s 1996 repeal; the BIA affirmed, finding the 1995 Tennessee statute both a CIMT and an aggravated felony (the latter conclusion the government later conceded as to the undivided statutory text).
- The district court (sitting by designation) held the 1995 conviction (as reflected by the record) falls within a divisible subsection that categorically matches the federal aggravated-felony offense and also constitutes a CIMT; therefore §1252 jurisdiction is limited and most challenges are unreviewable except for legal/constitutional questions.
Issues
| Issue | Plaintiff's Argument (Guevara-Solorzano) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Whether the 1995 Tennessee marijuana conviction is an aggravated felony (illicit trafficking) under the categorical approach | The Tennessee statute is undivided or otherwise criminalizes misdemeanor-level conduct under the CSA, so it is not categorically an aggravated felony; Moncrieffe supports relief | The record shows petitioner was convicted under a divisible subsection (large-quantity marijuana) that matches the federal illicit-trafficking offense | Held: The statute is divisible; record shows conviction under a subsection covering 10–70 lbs, which categorically matches the federal aggravated-felony illicit-trafficking offense; aggravated-felony ground removes jurisdiction over related review (petition 17-1833 dismissed) |
| Whether the 1995 conviction is also a crime involving moral turpitude (CIMT) | The drug offense lacks the requisite moral turpitude because intent may be inferred or elements treated as means not elements | Illegal distribution/trafficking of drugs involves culpable mental state and reprehensible conduct; BIA precedent treats trafficking as a CIMT | Held: The 1995 conviction (possession with intent to sell large quantities) satisfies the mens rea and reprehensible-conduct prongs and is a CIMT; combined with 2000 CIMTs renders petitioner removable and limits review (part of petition 16-2434 dismissed) |
| Whether petitioner is eligible for former INA §212(c) relief despite the 2000 convictions occurring after repeal | §212(c) should bar removal as to pre-repeal convictions; petitioner would be eligible for waiver of the 1995-based grounds | Relying on In re Balderas, §212(c) waives findings of deportability but does not erase convictions from an alien’s record; a post-1996 CIMT can be combined with a pre-1996 CIMT to create removability, so §212(c) relief is unavailable | Held: Court defers to BIA’s Balderas construction under Chevron; because one CIMT (2000 convictions) occurred after repeal, §212(c) cannot waive the two-CIMT ground; denial of §212(c) affirmed (petition 16-2434 denied in part) |
| Whether this court has jurisdiction to review the BIA’s denial of motion to reopen and related orders | Jurisdiction exists for constitutional or legal questions; §1252(a)(2)(C) strips review where removal is for aggravated felony or controlled-substance offense or certain CIMTs | Government asserts §1252 bars review because aggravated-felony/controlled-substance/CIMT bases apply | Held: Because the 1995 conviction is an aggravated felony and the CIMT bases apply, the court lacks jurisdiction to review most merits of removal challenges; petition 17-1833 dismissed and large parts of 16-2434 dismissed, except legal questions (e.g., §212(c) applicability) |
Key Cases Cited
- Moncrieffe v. Holder, 569 U.S. 184 (2013) (defines aggravated-felony illicit-trafficking analysis and CSA misdemeanor exception)
- Descamps v. United States, 570 U.S. 254 (2013) (categorical approach for comparing statute elements to generic offense)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (divisibility and when statutory alternatives are elements)
- INS v. St. Cyr, 533 U.S. 289 (2001) (§212(c) repeal not retroactive; reliance interests in plea bargaining)
- Argaw v. Ashcroft, 395 F.3d 521 (4th Cir. 2005) (court must determine its jurisdiction where aggravated-felony removability is alleged)
- Crespin-Valladares v. Holder, 632 F.3d 117 (4th Cir. 2011) (declines remand where appellate resolution obviates wasteful remand)
- Sotnikau v. Lynch, 846 F.3d 731 (4th Cir. 2017) (defines CIMT as requiring culpable mental state and reprehensible conduct)