RENE GUEVARA-SOLORZANO v. JEFFERSON B. SESSIONS III, U.S. Attorney General
No. 16-2434, No. 17-1833
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
Decided: May 24, 2018
Argued: March 20, 2018
On Petitions for Review of Orders of the Board of Immigration Appeals.
No. 16-2434, petition dismissed in part and denied in part; No. 17-1833, petition dismissed by published opinion. Judge Brinkema wrote the opinion, in which Judge Niemeyer and Judge King joined.
ARGUED: Jeremy Layne McKinney, MCKINNEY IMMIGRATION LAW, Greensboro, North Carolina, for Petitioner. Andrew Nathan O‘Malley, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Chad A. Readler, Principal Deputy Assistant Attorney General, Cindy S. Ferrier, Assistant Director, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
In this immigration case, petitioner Rene Guevara-Solorzano (“Guevara-Solorzano” or “petitioner“) petitions for review of two final orders of the Board of Immigration Appeals (“BIA“) respectively issued on December 6, 2016 and July 6, 2017. In petition number 16-2434, Guevara-Solorzano challenges the BIA‘s determination that he is subject to removal pursuant to
For the reasons that follow, we hold that petitioner‘s 1995 conviction for unlawful possession of marijuana with intent to manufacture, deliver, or sell constitutes a conviction of both an aggravated felony and a CIMT. Therefore, we do not have jurisdiction to review petitioner‘s challenges to the BIA‘s decisions, except to the extent that they raise constitutional or legal issues. In addition, we hold that petitioner is ineligible for relief under former INA § 212(c) because his 2000 convictions for felony larceny and felony breaking and entering constitute convictions of CIMTs that are not
I
Guevara-Solorzano, who is a native and citizen of Mexico, first came to the United States in 1984, when his parents moved to this country to work as manual agricultural laborers. AR 45. In 1990, he adjusted his status to lawful permanent resident. AR 428. On March 13, 1995, Guevara-Solorzano pleaded guilty in Tennessee to the state crime of unlawful possession of marijuana with intent to manufacture, deliver, or sell, in violation of
The Department of Homeland Security initiated removal proceedings against petitioner on August 12, 2010 by filing a Notice to Appear, which charged Guevara-Solorzano with being subject to removal on three grounds. Specifically, he was charged under
At a hearing before an immigration judge (“IJ“), Guevara-Solorzano, through counsel, conceded that he was removable as charged for being an alien convicted of an aggravated felony and of a controlled substance offense; however, he denied that he was subject to removal as an alien convicted of two or more CIMTs not arising out of a single scheme of misconduct. AR 440. After conceding his removability, petitioner sought a waiver under former INA § 212(c),
On January 15, 2014, the IJ issued a written decision pretermitting and denying petitioner‘s § 212(c) application. AR 431-435. The IJ found that Guevara-Solorzano‘s convictions in 1995 and 2000 were for offenses qualifying as CIMTs that did not arise out of a single scheme of criminal misconduct. Because this ground for removability did not arise until 2000, four years after the statute had been repealed, § 212(c) relief was no longer available at the time Guevara-Solorzano became removable on the CIMT basis.
On December 6, 2016, the BIA dismissed Guevara-Solorzano‘s appeal, AR 355-358, observing that he had conceded that his 2000 convictions were for crimes qualifying as CIMTs and that the marijuana offense to which he pleaded guilty in 1995 constituted an aggravated felony as well as a controlled substance offense, which concessions subjected him to removal, AR 355-356. The BIA further held, relying on BIA precedent establishing that participation in illicit drug trafficking is a CIMT, that petitioner‘s 1995 conviction also constituted being convicted of a CIMT. AR 356. Although the BIA observed that there was no dispute that a § 212(c) waiver would waive the aggravated felony and controlled substance conviction grounds of removability, both of which relied solely on the 1995 conviction, it held, as had the IJ, that § 212(c) relief was not available to waive the CIMT ground for removability. AR 356-357. According to the BIA,
On January 5, 2017, petitioner filed with the BIA a motion requesting that the BIA reconsider its December 6, 2016 decision and reopen proceedings to permit him to apply for cancellation of removal pursuant to INA § 240A(a). AR 317-326. The basis of this motion was the combination of the Supreme Court‘s decision in Moncrieffe v. Holder, 569 U.S. 184 (2013), which Guevara-Solorzano contended rendered his 1995 conviction no longer to qualify as a conviction of an aggravated felony, and this Court‘s decision in Jaghoori v. Holder, 772 F.3d 764 (4th Cir. 2014), which petitioner contended rendered him eligible to seek cancellation of removal if his 1995 conviction was not for a crime qualifying as an aggravated felony. The BIA denied Guevara-Solorzano‘s motion, rejecting his argument that the Tennessee drug statute did not qualify as an aggravated felony and finding that, as an alien who has been convicted of an aggravated felony, he was ineligible for cancellation of removal under INA § 240A(a). AR 3-4. Petitioner filed
II
Although orders of removal are generally subject to judicial review,
III
A
To determine whether petitioner is removable as an alien who has been convicted of the aggravated felony of “illicit trafficking in a controlled substance,”
In 1995, the Tennessee statute that Guevara-Solorzano was convicted of violating,
39-17-417 Criminal offenses and penalties
(a) It is an offense for a defendant to knowingly:
(1) Manufacture a controlled substance;
(2) Deliver a controlled substance;
(3) Sell a controlled substance; or
(4) Possess a controlled substance with intent to manufacture, deliver or sell such controlled substance.
(g)
(1) A violation of subsection (a) with respect to a Schedule VI controlled substance classified as marijuana containing not less than one-half ounce (14.175 grams) nor more than ten pounds (10 lbs.) (4535 grams) of marijuana, or a Schedule VI controlled substance defined as a non-leafy, resinous material containing tetrahydrocannabinol (hashish), containing not more than two pounds (2 lbs.) (905 grams) of hashish is a Class E felony and, in addition thereto, may be fined not more than five thousand dollars ($5,000).
(2) A violation of subsection (a) with respect to a Schedule VI controlled substance classified as marijuana containing not less than ten pounds (10 lbs.), one (1) gram (4536 grams) nor more than seventy pounds (70 lbs.) (31,696 grams) of marijuana, or a Schedule VI controlled substance defined as a non-leafy, resinous material containing tetrahydrocannabinol (hashish) and containing not less than two pounds (2 lbs.), one (1) gram (906 grams) nor more than fifteen pounds (15 lbs.) (6,792 grams) of hashish is a Class D felony and, in addition thereto, may be fined not more than fifty thousand dollars ($50,000).
. . .
AR 505-507.
The government concedes, contra the BIA panel decision in this case, that a conviction under this undivided statute does not qualify as an aggravated felony. Resp. Mem. 20-22. As discussed in Moncrieffe, the CSA contains a misdemeanor exception for individuals who distribute a “small amount of marihuana for no remuneration.” See
Although a conviction under the undivided Tennessee statute does not categorically qualify as an aggravated felony conviction, we must next determine whether the statute is divisible with respect to the drug types and quantities listed after subsection (a)2 and, if so, whether the record indicates that petitioner was convicted under a divided subsection that itself categorically qualifies as illicit trafficking in a controlled substance.
As an initial matter, we find that the statute is divisible because each subsection provides for a different punishment depending on the quantity and type of drug involved. See Mathis, 136 S. Ct. at 2256 (“[T]he statute on its face may resolve the issue. If statutory alternatives carry different punishments, then under [Apprendi v. New Jersey, 530 U.S. 466 (2000),] they must be elements.“). Moreover, the Supreme Court has held that federal courts may “peek” at the “record of a prior conviction itself” to determine whether the statute lists alternative elements. Id. at 2256-57 (internal quotation marks omitted). For example, if an indictment “referenc[es] one alternative term to the exclusion of all others,” it indicates that “the statute contains a list of elements, each one of which goes toward a separate crime.” Id. at 2257. Although the indictment underlying petitioner‘s 1995 conviction does not cite statutory subsections (e.g., (a)(4) or (g)(2)) but
This conclusion is bolstered by Tennessee case law, which indicates that the type and quantity of drugs are elements of the offense that must be proven beyond a reasonable doubt. See, e.g., State v. Walker, 29 S.W.3d 885, 892-93 (Tenn. Crim. App. 1999) (“We conclude that the trial court erred by failing to instruct the jury that it must find beyond a reasonable doubt that the defendant sold one-half gram or more of cocaine. The amount of cocaine sold by the defendant is an essential element of the Class B felony of selling cocaine.“); State v. Hilliard, 906 S.W.2d 466, 469-70 (Tenn. Crim. App. 1995)
Although petitioner cites two cases for the proposition that the various enumerated drug types and quantities represent “alternative means of violating” the statute “rather than elements of the offense,” Pet. Reply 7-8 (citing Taylor v. State, No. W2011-27-CCA-43-PC, 2012 WL 432856 (Tenn. Crim. App. Feb. 7, 2012); and Justice v. State, No. M2012-183-CCA-R3-PC, 2013 WL 1965999 (Tenn. Crim. App. May 13, 2013)), neither case is helpful to petitioner. In both cases, the court held that the intents specified in subsection (a)(4), which criminalizes possession with the intent to manufacture, deliver, or sell the controlled substance, represent means rather than elements. Accordingly, an indictment need not specify, and a jury need not unanimously agree on, which of the three intents a criminal defendant possessed. Although both cases use the same broad language that could be read to indicate that drug type and quantity are not elements, see Taylor, 2012 WL 432856, at *5 (“The offense has three elements: (1) knowing possession, (2) of contraband, (3) with the intent to manufacture, deliver, or sell it.“); Justice, 2013 WL 1965999, at *10 (quoting Taylor), it is clear that the court in each case held only that the intents to manufacture, deliver, and sell are not distinct elements. These two cases do not overcome the conclusion compelled by the case law cited above, and by the varying punishments the statute provides for different drug types and quantities, as well as the record documents in this case, that the drug types and quantities are distinct
Based on the Moncrieffe analysis, such a crime is categorically an aggravated felony because it only involves conduct that would be criminalized as a felony under the CSA, specifically the knowing or intentional “possess[ion] with intent to manufacture, distribute, or dispense, a controlled substance.”
In response to the government‘s concession that the BIA incorrectly determined that the undivided
The question of whether petitioner‘s 1995 conviction constitutes a conviction of an aggravated felony is determined de novo by this Court. Regardless of the basis upon which the BIA reached its decision, our conclusion that petitioner‘s 1995 conviction does so qualify resolves the issue, and it would waste the resources of the parties and the BIA to remand the question. Moreover, with respect to the categorical approach, the agency has no particular expertise to bring to the matter, nor is there any need to develop or evaluate factual evidence beyond that already in the record. Accordingly, there is no principled reason to remand to the agency.
On this record, the BIA correctly determined, although for the wrong reason, that Guevara-Solorzano was convicted in 1995 of an aggravated felony, thereby rendering him removable pursuant to INA § 237(a)(2)(A)(iii). This conclusion means we are without jurisdiction to review Guevara-Solorzano‘s petition number 17-1833, which challenges the BIA‘s denial of his motion to reopen so that it might reconsider its determination that the 1995 conviction qualified as a conviction of an aggravated felony, and that as a result of having that conviction, petitioner is removable and ineligible for
B
To determine whether Guevara-Solorzano‘s 1995 marijuana conviction also constitutes a conviction of a CIMT, we must again apply the categorical approach, which involves comparing the elements of the statute of conviction against the elements recognized for a CIMT. A CIMT is a crime that is “inherently base, vile, or depraved,” meaning that it involves conduct “that not only violates a statute but also independently violates a moral norm.” Uribe v. Sessions, 855 F.3d 622, 625 (4th Cir. 2017) (internal quotation marks omitted). This Court has held that a CIMT “requires two essential elements: a culpable mental state and reprehensible conduct.” Sotnikau v. Lynch, 846 F.3d 731, 735-36 (4th Cir. 2017) (internal quotation marks omitted).4 Under our previous conclusion that the Tennessee statute is divisible, if the “least of the acts criminalized” by the two subsections (a)(4) and (g)(2), which were violated by petitioner, involves a culpable mental state and reprehensible conduct, then petitioner‘s conviction constitutes a conviction of a CIMT. See Moncrieffe, 569 U.S. at 190-91 (internal quotation marks and alterations omitted).
In addition, a violation of subsections (a)(4) and (g)(2) involves reprehensible conduct. The BIA has “long held that evil intent is inherent in the illegal distribution of drugs and that ‘participation in illicit drug trafficking is a crime involving moral turpitude.‘” In re Gonzalez Romo, 26 I. & N. Dec. 743, 746 (BIA 2016) (quoting In re Khourn, 21 I. & N. Dec. 1041, 1046-47 (BIA 1997)). The (g)(2) subsection under which petitioner was convicted reaches only trafficking in quantities of marijuana in excess of ten pounds. Such conduct falls well within the heartland of the illicit drug trafficking described in Gonzalez Romo and therefore qualifies as reprehensible. As such, the BIA properly determined that petitioner‘s 1995 conviction constitutes a conviction of a CIMT.
IV
In petition number 16-2434, Guevara-Solorzano also challenges the BIA‘s determination that he is ineligible for relief under former INA § 212(c) because one of the CIMTs that subjects him to removability occurred after that section was repealed in 1996. That conclusion involves a question of law, which we have jurisdiction to review notwithstanding the BIA‘s determination that Guevara-Solorzano‘s 1995 and 2000 convictions render him removable as a criminal alien.
At the time of petitioner‘s 1995 conviction, § 212(c) stated, in its entirety:
Aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General without regard to the provisions of subsection (a) of this section (other than
The effect of a § 212(c) waiver is to grant discretionary relief from removal for an alien who meets the residency requirement but who has been found deportable for any of a variety of reasons, including the grounds charged for petitioner‘s removal. The Supreme Court has held that the 1996 repeal of § 212(c) was not retroactive, such that “§ 212(c) relief remains available for aliens . . . [who] would have been eligible for § 212(c) relief at the time of their plea under the law then in effect.” St. Cyr, 533 U.S. at 326. Here, of the grounds that have been charged for petitioner‘s deportation, it is undisputed that he would have been eligible for § 212(c) relief with respect to both the aggravated felony and the controlled substance convictions, because both grounds rest entirely on the 1995 marijuana conviction, which pre-dates the repeal of § 212(c). Where the parties
The BIA‘s decision below,7 and respondent‘s argument, are based primarily on In re Balderas, 20 I. & N. Dec. 389, in which the BIA considered whether a CIMT that has been used as part of the basis for a “two or more CIMTs” charge of removability in an immigration proceeding that terminated with a § 212(c) waiver may later be used as part of the basis for a “two or more CIMTs” charge of removability if the alien in question commits another CIMT after the first immigration proceeding was terminated.8 The BIA held that such a previously found CIMT could be used with a new CIMT to support a charge of removability because a “grant of section 212(c) relief ‘waives’ the finding of excludability or deportability rather than the basis of the excludability itself.” Id. at 391. In other words, “the crimes alleged to be grounds for excludability or deportability do not disappear from the alien‘s record for immigration purposes.” Id. Because this
Based on this construction, respondent‘s position is correct. Because the crimes eligible for § 212(c) relief “do not disappear from the alien‘s record,” petitioner‘s 1995 marijuana conviction continued to count as a conviction of a CIMT. When he was convicted in 2000 in North Carolina of another CIMT, he became deportable, and by then § 212(c) relief no longer applied. See also Bakarian, 541 F.3d at 784 (holding that a 2003 conviction could be used in conjunction with a 1996 conviction to form a basis for removability but that § 212(c) relief would not be available). This construction is not inconsistent with the logic of St. Cyr, which held that the repeal of § 212(c) was not retroactive in part because aliens who pleaded guilty to crimes before § 212(c) was repealed “almost certainly relied upon th[e] likelihood [of § 212(c) relief] in deciding whether to forgo their right to a trial.” 533 U.S. at 325. By contrast, an alien who has pleaded guilty to an additional CIMT after the repeal of § 212(c) cannot be said to have relied on the possibility of § 212(c) relief in the same way, and it is reasonable to interpret the repeal of § 212(c) as foreclosing relief from a charge of removability based in part on post-1996 criminal conduct. Similarly, the concern expressed by the Supreme Court that retroactive application of the elimination of § 212(c) could improperly “impair[] vested rights acquired under existing law[],” id. at 321 (internal quotation marks omitted), is inapplicable to petitioner‘s situation. Because petitioner did not become deportable on the basis of having committed two or more CIMTs until after 1996, his right to § 212(c) relief with respect to that ground of deportability had not
Accordingly, the BIA correctly determined that petitioner is ineligible for relief under former INA § 212(c) because one of the CIMT convictions that renders him removable pursuant to INA § 237(a)(2)(A)(ii) occurred after the repeal of § 212(c) in 1996. Therefore, petition number 16-2434 is denied to the extent that it challenges this determination.
V
For the foregoing reasons, petition number 16-2434 is
DENIED IN PART AND DISMISSED IN PART,
and petition number 17-1833 is
DISMISSED.