Rogelio Morin Velaquez v. Jefferson Sessions, III
713 F. App'x 282
| 5th Cir. | 2017Background
- Rogelio Morin Velaquez, a Mexican national, became a lawful permanent resident in 2007 and pleaded guilty to Texas manslaughter (related to a 2010 car accident) in 2012; he received eight years probation.
- DHS issued a Notice to Appear in 2014 charging removability under INA § 237(a)(2)(A)(i); Morin conceded removability and applied to adjust status under INA § 245 with a § 212(h) waiver request based on his wife’s petition.
- The IJ and then the BIA concluded Morin’s manslaughter conviction qualified as a "violent or dangerous crime," triggering the heightened regulatory standard in 8 C.F.R. § 1212.7(d) requiring demonstration of "exceptional and extremely unusual hardship."
- The IJ and BIA found Morin failed to meet that heightened hardship standard and denied the waiver and adjustment of status; Morin appealed to the Fifth Circuit.
- Morin raised three principal challenges: (1) the BIA exceeded statutory authority by applying § 1212.7(d) categorically (ultra vires); (2) the BIA erred by treating his manslaughter conviction as "violent or dangerous" without proof of intent to harm; and (3) the BIA failed to treat his positive equities as potential "extraordinary circumstances."
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether applying 8 C.F.R. § 1212.7(d) in Morin's case was ultra vires | Morin: BIA treated the regulation as a categorical bar and exceeded Congress's grant of authority under INA § 212(h) | Government: Regulation governs the Attorney General's discretion under § 212(h)(2); application here was permissibly fact-based and within authority | Denied — court held § 1212.7(d) is a permissible exercise of discretion and BIA/IJ did not act ultra vires |
| Whether manslaughter conviction must involve intent to harm to be a "violent or dangerous crime" under § 1212.7(d) | Morin: "Violent or dangerous" should require intent; his underlying conduct lacked intent to harm | Government: Regulation uses plain meaning of "violent/dangerous" and may be applied based on statute elements; intent is not required | Denied — court held § 1212.7(d) does not require proof of intent and recklessness suffices |
| Whether the BIA failed to consider positive equities as independent "extraordinary circumstances" | Morin: Rehabilitation and positive equities could independently constitute "extraordinary circumstances" warranting a favorable exercise of discretion | Government: BIA considered hardships and discretion; Morin did not raise this specific argument before the BIA | Dismissed for lack of jurisdiction — issue was not exhausted before the BIA |
| Standard of review and scope of appellate review | Morin: (implicit) seeks de novo review of legal application | Government: review limited to legal questions and BIA decision; factual discretionary determinations largely unreviewable | Court: exercised jurisdiction over legal questions, applied Skidmore deference to nonprecedential BIA reasoning and affirmed denial where appropriate |
Key Cases Cited
- Perez Pimentel v. Mukasey, 530 F.3d 321 (5th Cir. 2008) (upheld facial validity of 8 C.F.R. § 1212.7(d) and applied Chevron to § 212(h)(2) discretion)
- Jean v. Gonzales, 452 F.3d 392 (5th Cir. 2006) (approved fact-based consideration of violent criminal conduct rather than a purely categorical bar)
- Skidmore v. Swift & Co., 323 U.S. 134 (1944) (agency interpretations of nonprecedential decisions receive weight under Skidmore factors)
- Cisneros v. Lynch, 834 F.3d 857 (7th Cir. 2016) (agency may choose methodology—statutory-elements or conduct-based—so long as interpretation is permissible)
- Waldron v. Holder, 688 F.3d 354 (8th Cir. 2012) (approved considering both statutory elements and actual conduct when assessing "violent or dangerous")
- Omari v. Holder, 562 F.3d 314 (5th Cir. 2009) (exhaustion requirement: issues not raised before the BIA cannot be reviewed on petition for review)