JOSE MAURICIO ALANNIZ v. WILLIAM P. BARR, Attorney General
No. 15-72792
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Filed May 20, 2019
Before: Dorothy W. Nelson and Consuelo M. Callahan, Circuit Judges, and Edward R. Korman, District Judge. Opinion by Judge Callahan
FOR PUBLICATION. Agency No. A073-815-349. Submitted February 12, 2019, Pasadena, California.
FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
OPINION
* **SUMMARY***
Immigration
On petition for review of a decision of the Board of Immigration Appeals, the panel denied Jose Alanniz‘s challenge to the pretermission of his application for cancellation of removal, holding that parole into the United States under
To be eligible for cancellation of removal for certain permanent residents, an applicant must establish, as relevant here, that he or she has “resided in the United States continuously for 7 years after having been admitted in any status.” Because Alanniz‘s period of residency was deemed to end when he was convicted of a drug offense in 2006, he had to show that he had been “admitted in any status” by at least 1999. Although Alanniz did not adjust to lawful permanent resident status until 2000, he contended that he met the residency requirement because his 1997 grant of parole constituted being “admitted in any status.” The BIA rejected that contention and found him ineligible for cancellation.
The panel held that Alanniz‘s parole was not an admission and, therefore, he was not “admitted in any status” until his later adjustment to lawful permanent resident status.
The panel explained that it was bound by Medina-Nunez v. Lynch, 788 F.3d 1103 (9th Cir. 2015), in which this court deferred to the BIA‘s reading of “admitted in any status” as meaning that a person has been “admitted,” as defined in
The panel also rejected Alanniz‘s contention that his case should be remanded on the ground that his 1997 parole document was not part of the administrative record, and held that Alanniz‘s brief to the BIA did not challenge the denial of relief under the Convention Against Torture.
Finally, the panel acceded to the parties’ request to remand Alanniz‘s asylum claim to the agency to allow an Immigration Judge to undertake the initial fact-finding necessary to determine the viability of Alanniz‘s proposed group, as defined by Alanniz.
COUNSEL
Mackenzie W. Mackins, Mackins & Mackins LLP, Sherman Oaks, California, for Petitioner.
M. Jocelyn Lopez Wright, Senior Litigation Counsel; Leslie McKay, Assistant Director; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.
OPINION
CALLAHAN,
Jose Alanniz, a native and citizen of Mexico, entered the United States without inspection in 1986, received parole in 1997, and adjusted to lawful permanent resident (“LPR“) status in 2000. He was convicted of a crime involving cocaine in 2006. He admitted to being removable, but asserted that he was eligible for cancellation of removal based on continuous residency in the United States for more than seven years. The Board of Immigration Appeals (“BIA“) affirmed the Immigration Judge‘s (IJ) pretermission of his application for cancellation of removal holding that Alanniz‘s continuous residency did not commence with the 1997 parole, but with his 2000 adjustment to LPR status. We agree and affirm the pretermission of his application for cancellation of removal. However, at the parties’ mutual request, we remand Alanniz‘s asylum application for the fact-finding necessary to determine the viability of Alanniz‘s proposed social group.
I
Alanniz, a native and citizen of Mexico, was born on March 19, 1982. He claims that his parents brought him into the United States without inspection in 1986. He adjusted his status to LPR in August 2000. At the time of his removal hearing, he was unmarried and had four United States citizen children (born in 2000, 2003, 2005, and 2009). His parents and siblings are either citizens or LPRs.
A parole document dated October 10, 1997, paroled Alanniz “into the country for adjustment of status purposes, . . . until October 9, 1998.”1 Although this document was not placed in the certified record of this petition for review, Alanniz‘s primary contention before us is that the document constitutes an “admission” into the United States for the purpose of beginning the seven years of continuous residence necessary to qualify for discretionary cancellation of removal pursuant to
In 2002, Alanniz was convicted of possession of a controlled substance, cocaine, in violation of California law and sentenced to three years probation. Then in 2006, Alanniz was convicted of violating a California criminal statute by being under the influence of cocaine and sentenced to 140 days in jail. Removal proceedings were initiated against Alanniz in 2012 based on his 2002 conviction. At the conclusion of a June 12, 2012 hearing before an IJ, the IJ issued an oral decision sustaining the charge of removability and ordering Alanniz removed to Mexico. Alanniz appealed to the BIA which dismissed his appeal, and he then filed a petition for review with the Ninth Circuit.
While his petition was pending before the Ninth Circuit, Alanniz filed a motion to reopen with the BIA asserting that, in October 2012, a California Superior Court had amended the 2002 criminal complaint against Alanniz so that it no longer identified the controlled substance. The BIA granted reopening, vacated its previous order,
In the reopened proceedings, DHS amended the Notice to Appear substituting Alanniz‘s 2006 drug conviction for the 2002 conviction. In a January 22, 2014 order, the IJ denied Alanniz‘s requests for relief. Alanniz admitted that he was removable but sought cancellation of removal, asylum, and relief under the Convention Against Torture (“CAT“).
The IJ granted DHS‘s motion to pretermit Alanniz‘s application for cancellation of removal. The IJ was not persuaded by Alanniz‘s argument that his 2002 conviction no longer disqualified him from cancellation of removal, but found that it was “undisputed” that Alanniz had been convicted of a controlled substance related offense in 2006, and that the substance had been cocaine.2 Accordingly, to be eligible for cancellation, Alanniz had to show “that he was ‘admitted’ and resid[ed] in the U.S. since at least 1999.” However, the IJ found that his initial entry was without inspection, and his “first ‘admission’ was when he adjusted his status to a lawful permanent resident on August 3, 2000.”
The IJ proceeded to deny Alanniz‘s request for asylum noting that, even accepting that he provided credible testimony, Alanniz‘s concern that “he will be targeted for harm by the drug cartels and other criminals in the country” was a generalized fear of harm by criminals and not harm on account of a protected ground. The IJ also denied relief under the CAT noting that there was “no claim or evidence that the respondent was harmed, much less tortured in the past.”
Alanniz‘s appeal to the BIA was dismissed on August 11, 2015. The BIA agreed with the IJ that Alanniz was statutorily ineligible for cancellation of removal because his 2006 conviction came before he had achieved seven years of continuous presence in the United States. The BIA stated: “A grant of parole pursuant to section 212(d)(5)(A) of the Act ‘shall not be regarded as an admission of the alien.‘”3
The BIA also denied Alanniz‘s application for asylum noting that he had “defined his particular social group based upon his assertion that members of the group are subject to kidnappings and extortion upon arrival in Mexico.” It held that it is “well established” that asylum cannot be based
II
We review only the BIA‘s decision except to the extent the decision adopts or relies on the IJ‘s reasoning, in which case we review both the IJ‘s and the BIA‘s decisions. Agyeman v. INS, 296 F.3d 871, 876 (9th Cir. 2002); Saldivar v. Sessions, 877 F.3d 812, 814 (9th Cir. 2017). We review the BIA‘s determination of questions of law de novo, subject to established principles of deference. See Hernandez de Anderson v. Gonzales, 497 F.3d 927, 932, 934 (9th Cir. 2007) (we “review de novo claims of due process violations in immigration proceedings” and “defer to an agency‘s interpretation of its own regulation when that interpretation is neither clearly erroneous nor inconsistent with the regulation.“) (quotation marks omitted).
A. Alanniz has not shown that his 1997 parole constitutes an “admission in any status” as that term is used in 8 U.S.C. § 1229b(a)(2) .
Title
Alanniz contends that he meets the residency requirement because his 1997 parole constitutes “admitted in any status” as that term is used in § 1229b. He recognizes that
It is true that in Garcia-Quintero, “we concluded that Garcia-Quintero‘s acceptance into the Family Unity Program (“FUP“) rendered him ‘admitted in any status’ for purposes of eligibility for cancellation of removal,” Garcia, 659 F.3d at 1269. But we explained in Guevara v. Holder, 649 F.3d 1086 (9th Cir. 2011), that this was because “the FUP was enacted by Congress to assist a very narrow group of aliens,” and we declined to extend “admitted in any status” to all “aliens who receive employment authorization.” Id. at 1092-93.
In Garcia, we held that Garcia‘s parole as a Special Immigrant Juvenile (“SIJ“), like Garcia-Quintero‘s enrollment in FUP, constituted “admitted in any status” and thus Garcia was eligible for cancellation of removal under § 1229b(a)(2). 659 F.3d at 1272. However, we emphasized that Congress had extended certain protections to the “narrow groups” of FUP participants and SIJ parolees, and that our holding did not extend to broader groups. Id. at 1271. Thus, because our judicial expansion of “admitted in any status” was based on unique features of the FUP and SIJ programs, it is doubtful that they support Alanniz‘s contention that his 1997 parole constituted an admission.
But that question is only of academic interest because Garcia and Garcia-Quintero have been repudiated by the BIA and we have accepted the BIA‘s narrower reading of “admitted in any status” as reasonable.
In re Reza-Murillo, 25 I. & N. Dec. 296 (BIA 2010), presented a similar situation to that faced by Garcia-Quintero. Reza-Murillo was granted LPR status in August 2001, and committed a crime involving moral turpitude in November 2001. Id. at 296–97. He argued that he nonetheless was eligible for cancellation of removal because his continued residence in the United States started when he was granted benefits under the FUP in 1994. Id. The BIA rejected this argument and rejected the Ninth Circuit‘s analysis in Garcia-Quintero. Id. at 298. The BIA cited
In Medina-Nunez v. Lynch, 788 F.3d 1103 (9th Cir. 2015), we acknowledged that Reza-Murillo was contrary to Garcia-Quintero and accepted the BIA‘s ruling as controlling. We explained:
We also have no trouble concluding that the BIA‘s decision in In re Reza-Murillo is “otherwise entitled to Chevron deference.” [National Cable & Telecommunications Ass‘n v. Brand X Internet Servs., 545 U.S. 967, 982 (2005) (“Brand X“)]. It is reasonable for the BIA to apply the statutory definition of the term “admitted.” Nothing in the statutory text, the BIA‘s cases, or our own cases precludes the BIA from relying on that definition.
Pursuant to Brand X, we must afford Chevron deference to the BIA‘s decision in In re Reza-Murillo holding that acceptance into the Family Unity Program does not constitute an admission for purposes of § 1229b(a)(2). The BIA therefore correctly denied Petitioner‘s application for cancellation of removal.
Medina-Nunez, 788 F.3d at 1105–06; see also Lopez v. Lynch, 610 F. App‘x 668, 668-69 (9th Cir. 2015) (unpublished) (acknowledging abrogation of Garcia-Quintero).
We are bound by Medina-Nunez. Miller v. Gammie, 335 F.3d 889, 899–900 (9th Cir. 2003) (en banc); Olivas-Motta v. Whitaker, 910 F.3d 1271, 1275 (9th Cir. 2018) (holding that a three-judge panel “has no power
Moreover, this holding is consistent with case law upholding
B. Alanniz is not entitled to any relief because the administrative record does not include his 1997 parole document.
Alanniz asserts that his case should be remanded because it is unclear what manner of parole he was granted on October 12, 1997. He argues that
First, Respondent makes a sound argument that Alanniz has forfeited any objection concerning the status of the administrative record because he did not object to the absence of the 1997 parole document from the record either before the IJ or the BIA. See
Second, Alanniz overstates Respondent‘s responsibility for producing information. We have held that “[i]n the removal context, the government bears the burden of establishing deportability,” but that the “REAL ID Act places the burden of demonstrating eligibility for cancellation of removal squarely on the noncitizen.”5 Young v. Holder, 697 F.3d 976, 988–89 (9th Cir. 2012) (en banc), abrogated in part on other grounds by Moncrieffe v. Holder, 569 U.S. 184 (2013); see also Gutierrez v. Sessions, 887 F.3d 770, 779 (6th Cir. 2018) (holding that “[o]nce her removability has been demonstrated, for which the government bears the burden of proof, . . . it is the applicant for relief who must ‘prov[e] by a preponderance of the evidence that potential grounds for mandatory denial of . . . relief’ in fact ‘do not apply’ in her case.“). The record contains the evidence on which the government sought Alanniz‘s removal. Alanniz does not allege that the record is incomplete.6 Thus, because it was Alanniz‘s burden to establish his eligibility for cancellation of removal, he cannot complain that the government failed to produce the 1997 parole document, which he never requested.
Third, Alanniz has not shown that the absence of the 1997 parole document from the record was in any way prejudicial. See Zolotukhin v. Gonzales, 417 F.3d 1073, 1076 (9th Cir. 2005) (“For us to grant the petition for review on due process grounds, Petitioner must show prejudice, which means that the outcome of the proceeding may have been affected by the alleged violation.“) (quotation marks and emphasis omitted). Alanniz does not contest the evidence in the record that at his 2012 hearing his attorney reviewed the parole document and demurred to Respondent‘s statement that it was a Form I-131 application to allow travel. Moreover, Alanniz offers no suggestion as to how the particular language in the 1997 document would have any impact on his case. Indeed, under our controlling precedent of Medina-Nunez, it does not matter what type of parole issued in 1997, because whatever its nature it does not constitute an admission.
In sum, even if Alanniz has not forfeited his right to challenge the absence of the 1997 parole document from the record, he is not entitled to relief because (a) it was his responsibility to request the document, which he failed to do, and (b) the absence of the document was not prejudicial to Alanniz.
III
Alanniz asserts that the BIA erred in holding that he did not challenge the IJ‘s determination that he was not eligible for protection under the CAT. He cites
The BIA properly found that Alanniz did not challenge the IJ‘s determination that he was ineligible for protection under the CAT.7 We have held that where
IV
Alanniz also argues that the IJ mischaracterized his proposed social group as “returning Mexicans from the U.S.,” and that he alleged a narrower group consisting of Mexican long-term residents of the United States, not Mexicans from the United States generally. The BIA redefined the group as “long term residents of the U.S. who have been deported to Mexico and will be subject to kidnappings and extortion upon arrival in Mexico.” Alanniz objects that this amounted to improper fact-finding, which the BIA is not entitled to do, and contends that this issue should be remanded so that the IJ can address the social group proposed by Alanniz.
Respondent concedes that the IJ mischaracterized Alanniz‘s proposed social group as “returning Mexicans from the United States,” when Alanniz had defined his proposed group as “long term residents of the U.S. who have been deported to Mexico and will be subject to kidnappings and extortion upon arrival in Mexico.” Respondent asserts that whether a proposed social group constitutes a particular social group is a question of law, but the cognizability of a putative social group also contains factual issues, citing Pirir-Boc v. Holder, 750 F.3d 1077, 1081 (9th Cir. 2014). Respondent requests a remand of Alanniz‘s request for asylum “so that the agency may conduct a case-specific analysis of the documentary evidence Mr. Alanniz submitted to the immigration judge.”
Because the proposed group as understood by the IJ is somewhat different from the group proffered by Alanniz, we accede to the parties’ request and remand this issue to the agency. Alanniz is entitled to have the IJ first consider the facts that define his proposed group, and neither the BIA nor the Ninth Circuit is authorized to undertake the initial fact-finding necessary to determine the viability of the group. See INS v. Orlando Ventura, 537 U.S. 12, 16 (2002) (stating the general rule that “a court of appeals should remand a case to an agency for decision of a matter that statutes place primarily in agency hands“);
V
We hold that our acceptance in Medina-Nunez, 788 F.3d 1105, of the BIA‘s definition of “admitted in any status” in Reza-Murillo, 25 I. & N. Dec. at 298–99, compels the conclusion that Alanniz‘s 1997 parole did not constitute an “admission.” It follows that, because Alanniz was not “admitted in any status” until his adjustment
To the extent that Alanniz‘s failure to object before the IJ or the BIA to the absence of the 1997 parole document from the record does not constitute a forfeiture of his right to raise the issue, his objection is not meritorious. Requesting the production of the document was part of his burden to demonstrate eligibility for cancellation of removal. Moreover, Alanniz has failed to show any prejudice from the absence of the parole document because the 1997 parole did not constitute an “admission” regardless of the nature of the parole. We also hold that the BIA properly determined that Alanniz‘s brief to the BIA did not challenge the IJ‘s denial of relief under the CAT. See Abebe, 554 F.3d at 1208.
Finally, we accede to the parties’ request to remand Alanniz‘s asylum claim to the agency to allow an IJ to undertake the initial fact-finding necessary to determine the viability of Alanniz‘s proposed group, as defined by Alanniz.
Alanniz‘s challenge to the pretermission of his application for cancellation of removal is DENIED and his asylum application is REMANDED for further fact-finding. Each side shall bear its own costs.
Notes
In fact, off the record we went through the whole file to see if there was any other lawful entry and this is the only one. This is the earlier of the two. There was, so this one was issued on October 10, 1997. And he actually used the October 12, 1997 and it was a parole document paroling him into the country for adjustment of status purposes, paroled until October 9, 1998. And then I did see another application for travel on the Form I-131 and that was approved March 16, 1999. So that‘s after. So this is the, and there is no evidence that, that one was used. So, the October 10, 1997 is the earliest document that I found.
(emphasis added).The Attorney General may, except as provided in subparagraph (B) or in section 1184(f) of this title, in his discretion parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States, but such parole of such alien shall not be regarded as an admission of the alien and when the purposes of such parole shall, in the opinion of the Attorney General, have been served the alien shall forthwith return or be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States.
Reza-Murillo, 25 I. & N. Dec. at 299.[t]he Act‘s favorable treatment of aliens granted lawful permanent resident status does not suggest that aliens granted any lesser immigration status should be deemed to have been “admitted” by virtue of obtaining that lesser status while present in the United States. Such a conclusion would effectively redact the words “entry of the alien into the United States after” from the definition of “admission” in section 101(a)(13)(A) of the Act.