Gеrardo Perez ALONZO, Petitioner v. Loretta E. LYNCH, Attorney General of United States, Respondent.
No. 15-2024.
United States Court of Appeals, Eighth Circuit.
Submitted: Nov. 17, 2015. Filed: April 22, 2016.
821 F.3d 951
III.
In addition to the ineffective-assistance-of-counsel claims raised by Shelton through counsel, Shelton raised other challenges through pro se filings. “[A]lthough generally we do not consider pro se briefs when a party is represented by counsel,” Wayne v. Benson, 89 F.3d 530, 535 (8th Cir.1996), we granted Shelton leave to proceed pro se in a consolidated case. We have considered Shelton‘s additional pro se arguments and have determined that they are either waived, moot, or without merit.
IV.
Accordingly, we affirm the district court‘s denial of Shelton‘s petition for a writ of habeas corpus.
Jessica Maffitt, argued, Des Moines, IA, for Petitioner.
William Clark Minick, argued, Washington, DC, for Respondent.
Before SMITH, BYE, and BENTON, Circuit Judges.
SMITH, Circuit Judge.
Gerardo Perez Alonzo (“Perez“) petitions for review of a decision of the Board of Immigration Appeals (BIA) dismissing his appeal from an immigration judge‘s (IJ) decision (1) finding him removable under
Perez, a native and citizen of Mexico, was admitted to the United States at El Paso, Texas, on September 15, 1998, as a lawful permanent resident. On November 19, 2013, the government initiated removal proceedings against Perez by filing a Notice to Appear (NTA). The NTA charged Perez with removability as an alien convicted of two separate CIMTs under
Perez denied the factual allegations related to the criminal convictions set forth in the NTA. The government introduced into evidence an I-213 Record of Deportable/Inadmissible Alien and 41 pages of supporting documents, including six pages of certified conviction records, which showed the following. In August 2004, Perez was convicted in the Iowa District Court “for the offense of Assault Domestic Abuse Causing Bodily Injury in violation of
GERARDO A. PEREZ [,] on or about the 12th day of November, 2010, in Black Hawk County, Iowa did:
... assault Lisa Ohlenkamp, a family or household member, a person he/she has resided with during the past year, parents of the same minor children, and did cause bodily injury[.] The defendant having been previously convicted for Assault Domestic Abuse Causing Bodily Injury ... on August 3, 2004, ... and Assault Domestic Abuse 2nd Offense on October 15, 2007, ... in violation of Section 708.2A(4) of the Iowa Criminal Code.
The “Trial Information” related to the second October 18, 2011 conviction provides that
GERARDO A. PEREZ [,] on or about the 27th day of September, 2011, in Black Hawk County, Iowa did:
... assault Lisa Ohlenkamp, a family or household member, a person he/she has resided with during the past year, parents of the same minor children[.] The defendant having been previously convicted for Assault Domestic Abuse Causing Bodily Injury ... on August 3, 2004, ... and Assault Domestic Abuse Causing Bodily Injury on October 15, 2007, ... in violation of Section 708.2A(4) of the Iowa Criminal Code.
Perez objected to introduction of these documents and moved to terminate proceedings, asserting that he was not removable as charged. The IJ received the documents into evidencе, denied Perez‘s motion to terminate, and found him removable as charged. In making this finding, the IJ applied “[t]he Silva-Trevino [I]1 framework[, which] retain[s] the basic categorical approach but sets forth a three-step process for determining whether a conviction [under a particular criminal statute] is a CIMT.” Villatoro v. Holder, 760 F.3d 872, 876 (8th Cir.2014) (fifth alteration in original) (footnote, quotation, and citation omitted). “Under this approach, the inquiry is terminated if the statute at issue categorically either requires or excludes conduct involving moral turpitude.” Id. at 877 (quotation and citation omitted). However, if “a realistic probability” exists “that the statute could be applied to encompаss conduct that does not involve moral turpitude, as well as conduct that does, the inquiry must continue to a second step of analysis.” Id. (quotations and citation omitted). “Under step two, if the categorical inquiry does not resolve the question, look to the alien‘s record of conviction, including documents such as the indictment, the judgment of conviction, jury instructions, a signed guilty plea, and the plea transcript.” Id. at 877 n. 3 (quotations and citations omitted). Finally, “if the record of conviction does not resolve the inquiry,” the adjudicator proceeds to step three and “consider[s] any additional evidence the adjudicator determines is necessary or appropriate to resolve accurately the moral turpitude question.” Id. (quotation and citation omitted).
Applying step one of the Silva-Trevino I framework, the IJ first concluded that Perez‘s convictions are not categorically CIMTs. The IJ reasoned that although
Perez appealed to the BIA, which dismissed his appeal. The BIA concluded that “even though a single domestic violence conviction, under the Iowa statute at issue, would not constitute a [CIMT], [Perez‘s] third and fourth recidivist convictions for domestic violence do constitute turpitudinous crimes.” As a threshold matter, the BIA recognized that for an assault offense to be a CIMT, it must “require the infliction of some ‘tangible harm’ to the victim.” (Quoting In re Sanudo, 23 I. & N. Dec. 968, 972 (BIA 2006).) Examining Iowa‘s assault statute,
Two cases informed the BIA‘s conclusion that aggravating factors may transform an otherwise non-CIMT offense into a CIMT: In re Lopez-Meza, 22 I. & N. Dec. 1188 (BIA 1999), and In re Torres-Varela, 23 I. & N. Dec. 78 (BIA 2001). The BIA observed that in Lopez-Meza, it had held that a “‘simple DUI’ offense” under Arizona law is not a CIMT because it lacks a culpable mental state requirement such as intent or knowledge. But the offense of DUI while driving on a suspended license under the statute at issue constitutes a CIMT because a convic-
The BIA then discussed Torres-Varela, in which it had concluded that the offense of DUI, third or subsequent offense, in violation of Arizona law, is “not elevated to that of a [CIMT] solely by virtue of the existence of multiple convictions.” (Citing Torres-Varela, 23 I. & N. Dec. at 85-86.) “[U]nlike the statutes in Matter of Lopez-Meza, the statutes in Matter of Torres-Varela, did not require any culpable mental state for conviction nor did they require the existence of knowledge.” (Citing Torres-Varela, 23 I. & N. Dec. at 85.) Torres-Varela held that “absent any aggravating elements, multiple convictions for the same offense by themselves do not elevate a conviction into one involving moral turpitude.” (Citing Torres-Varela, 23 I. & N. Dec. at 86.)
Applying these cases, the BIA concluded that a
Perez petitioned this court for review, and the government filed an unopposed motion to remand to the BIA for reconsideration of whether
During the pendency of the remand, the Attorney General (AG) vacated Silva-Trevino I in its entirety. See Silva-Trevino II, 26 I. & N. Dec. at 550. The AG explained that the vacatur “does not mean that I disapprove of every aspect of that opinion.” Id. at 553. Specifically, the AG stated that, “[n]othing in this order is intended to affect Board determinations that an offense entails or does not entail ‘reprehensible conduct and some form of scienter’ and is or is not a [CIMT] for that reason.” Id. at 553 n. 3 (quoting Silva-Trevino I, 24 I. & N. Dec. at 706 n. 5). “In light of this vacatur,” the AG left it for the BIA to address, “in this case and other cases as appropriate,” how “to determine whether a particular criminal offense is a [CIMT]” and when the modified categorical approach may be used tо determine whether an offense constitutes a CIMT. Id. at 553-54.
On remand, the BIA acknowledged that it had previously analyzed whether Perez‘s
[i]t is the building of additional aggravating factors that distinguishes [Perez‘s] offense from a single offense of domestic abuse assault, i.e., the repetitive nature of the offense in this case is another aggravating factor in addition to those already involved in the offense of domestic abuse assault such that the offense becomes elevated to one involving moral turpitude.
(Citation omitted.) The BIA dismissed Perez‘s appeal, and Perez now petitions for review.
II. Discussion
In his petition for review, Perez argues that his two convictions for domestic abuse assault, third or subsequent offense, in violation of
“Any alien who at any time after admission is convicted of two or more crimes involving moral turpitude, not aris-
Although “the immigration laws have directed the exclusion of persons convicted of ‘crimes involving moral turpitude’ since 1891, ‘Congress has never defined the term.‘” Bobadilla v. Holder, 679 F.3d 1052, 1054 (8th Cir.2012) (citations omitted). “In the absence of a statutory definition,” the BIA has provided the following definition for a CIMT:
Moral turpitude refers generally to conduct which is inherently base, vile, or depraved, and сontrary to the accepted rules of morality and the duties owed between persons or to society in general. Moral turpitude has been defined as an act which is per se morally reprehensible and intrinsically wrong or malum in se, so it is the nature of the act itself and not the statutory prohibition of it which renders a crime one of moral turpitude.
Gomez-Gutierrez, 811 F.3d at 1058 (quotations and citations omitted). Furthermore, to constitute a CIMT, the offense must have “a culpable mental state and reprehensible conduct.” Id. (quoting In re Medina, 26 I. & N. Dec. 79, 82 (BIA 2013)). As explained supra, “[n]othing in th[e] [AG‘s] order [vacating Silva-Trevino I] [was] intended to affect Board determinations that an offense entails or does not entail ‘reprehensible conduct and some form of scienter’ and is or is not a [CIMT] for that reason.” Silva-Trevino II, 26 I. & N. Dec. at 553 n. 3 (quoting Silva-Trevino I, 24 I. & N. Dec. at 706 n. 5). “Crimes committed intentionally or knowingly have historically been found to involve moral turpitude.” Solon, 24 I. & N. Dec. at 240 (citing Michel v. INS, 206 F.3d 253, 263 (2d Cir.2000)). Additionally, moral turpitude may exist “in criminally reckless conduct, i.e., conduct that reflects a conscious disregard for a substantial and unjustifiable risk.” Id. (citations omitted).
“Assault may or may not involve moral turpitude.” Id. at 241 (citing Matter of Danesh, 19 I. & N. Dec. 669, 670 (BIA 1988)). “[T]he BIA and various courts have declined to classify [simple assault] as a [CIMT]. Simple assault typically is a general intent crime, and it is thus different in character from those offenses that involve ‘a vicious motive, corrupt mind, or evil intent.‘” Chanmouny v. Ashcroft, 376 F.3d 810, 814-15 (8th Cir.2004) (emphasis added) (quoting Matter of O-, 3 I. & N. Dec. 193, 194-95 (BIA 1948)); see also Solon, 24 I. & N. Dec. at 241 (same).
Furthermore, “not all crimes involving the injurious touching of another person reflect moral depravity on the part of the offender.” Solon, 24 I. & N. Dec. at 241 (citing Sanudo, 23 I. & N. Dec. at 971). This is because “[m]any simple assault statutes prohibit a wide range of conduct or harm, including de minimis conduct or harm, such as offensive or provocative physical contact or insults.” Id. (citing, inter alia,
[I]ntentional conduct resulting in a meaningful level of harm, which must be more than mere offensive touching, may be considered morally turpitudinous. However, as the level of conscious behavior decreases, i.e., from intentional to reckless conduct, more serious resulting harm is required in order to find that the crime involves moral turpitude. Moreover, where no conscious behavior is required, there can be no finding of moral turpitude, regardless of the resulting harm. This body of law, then, deems intent to be a crucial element in determining whether a crime involves moral turpitude.
Id. (citation omitted).
Certainly, “assault and battery offenses that necessarily involve[] the intentional infliction of serious bodily injury on another have been held to involve moral turpitude because such intentionally injurious conduct reflects a level of immorality that is greater than that associated with a simple offensivе touching.” Sanudo, 23 I. & N. Dec. at 971 (citations omitted). Additionally, moral turpitude is often found in assault and battery offenses that are defined by reference to the infliction of bodily harm upon a person whom society views as deserving of special protection, such as a child, a domestic partner, or a peace officer, because the intentional or knowing infliction of injury on such persons reflects a degenerate willingness on the part of the offender to prey on the vulnerable or to disregard his social duty to those who are entitled to his care and protection. Id. at 971-72 (citations omitted).
While “the presence of an aggravating factor,” such as “seriоus physical injury or the use of a deadly weapon,” “can be important in determining whether a particular assault amounts to a [CIMT],” “the need for, and the nature of, any aggravating factor is affected by the mental state required for the conviction.” Solon, 24 I. & N. Dec. at 245 (citations omitted). “The presence or absence of an aggravating factor is not determinative.” Id. at 246. For example, in Solon, the BIA found that the offense of assault in the third degree under New York law constituted a CIMT even though it lacked an aggravating factor because it required both specific intent and physical injury. Id.
By contrast, in In re Sejas, 24 I. & N. Dec. 236 (BIA 2007), the BIA found “that, although the assault statute at issue contained an aggravating factor—assault against a member of one‘s family or household—the statute nevertheless was not categorically a [CIMT] because it ‘does not require the actual infliction of physical in-
Likewise, in Sanudo, the BIA found that an alien‘s domestic battery conviction under California law was not categorically a CIMT because “[t]he minimal conduct necessary to complete such an offense in California is simply an intentional ‘touching’ of another without consent. Thus, one may be convicted of battery in California without using violence and without injuring or even intending to injure the victim.” Sanudo, 23 I. & N. Dec. at 972 (emphasis added). “Moreover,” the BIA found that “in each of the ... cases that involved battery offenses committed against the members of a protected class, the crimes at issue were defined by statute to require proof of the actual infliction of some tangible harm on the victim.” Id. (citations omitted). “[B]y contrast, neither the statute of conviction [in Sanudo] nor the admissible portion of the [alien‘s] conviction record reflect[ed] that his battery was injurious to the victim or that it involved anything more than the minimal nonviolent ‘touching’ necessary to constitute the offense.” Id. at 972-73. As a result, the BIA found that “[i]n the absence of admissible evidence reflecting that the [alien‘s] offense occasioned actual or intended physical harm to the victim, the existence of a current or former ‘domestic’ relationship between the perpetrator and the victim is insufficiеnt to establish the morally turpitudinous nature of the crime.” Id. at 973 (emphasis added).
Where, as here, “the Government alleges that a state conviction qualifies as a [CIMT] under
“An alien‘s actual conduct is irrelevant to the inquiry, as the adjudicator must ‘presume that the conviction rested upon nothing more than the least of the acts criminalized’ under the state statute.” Mellouli v. Lynch, — U.S. —, 135 S.Ct. 1980, 1986, 192 L.Ed.2d 60 (2015) (quoting Moncrieffe, 133 S.Ct. at 1684). The Supreme Court has cautioned that “our focus on the minimum conduct criminalized by the state statute is not an invitation to apply ‘legal imagination’ to the state offense; there must be ‘a realistic probability, not a theoretical possibility, thаt the State would apply its statute to conduct that falls outside the generic definition of a
Here, Perez has four domestic-abuse assault convictions—one in violation of
The government alleged Perez‘s removability in the NTA based on his third and fourth convictions under
“Domestic abuse assault” under
A person commits an assault when, without justification, the person does any of the following:
a. Any act which is intended to cause pain or injury to, or which is intended to result in physical contact which will be insulting or offensive to another, coupled with the apparent ability to execute the act.
b. Any act which is intended to place another in fear of immediate physical contact which will be painful, injurious, insulting, or offensive, coupled with the apparent ability to execute the act.
c. Intentionally points any firearm toward another, or displays in a threatening manner any dangerous weapon toward another.
Section
Furthermore, other portions of
Second, and relatedly, these two subsections do require intentional сonduct. Pursuant to
Finally, both
In summary, all four of Perez‘s convictions under
III. Conclusion
For the foregoing reasons, we grant Perez‘s petition for review, vacate the BIA‘s decision, and remand for further proceedings consistent with this opiniоn.
Notes
Iowa Code Annotated § 236.2(2)(a)-(d) provides:
2. “Domestic abuse” means committing assault as defined in section 708.1 under any of the following circumstances:
a. The assault is between family or household members who resided together at the time of the assault.
b. The assault is between separated spouses or persons divorced from each other and not residing together at the time of the assault....
c. The assault is between persons who are parents of the same minor child, regardless of whether they have been married or have lived together at any time.
d. The assault is between persons who have been family or household members residing together within the past year and are not residing together at the time of the assault.