Ribelino Avendano v. Eric H. Holder, Jr.

that was not contained consider evidence below).

in record

Accordingly, appeal is dismissed. Jensen-Carter, 711

See Alexander v. F.3d (8th Cir.2013) (dismissing 908-09

bankruptcy litigant’s appeal for lack of

standing). Appellant’s supple motions to denied; appellee’s

ment the record are granted.

motion to strike is AVENDANO,

Ribelino Alberto also

known as Ribelino Flores-

Avendano, Petitioner, HOLDER, Jr., Attorney

Eric H. States, United

Respondent.

No. 13-2171. Appeals,

United States Court of

Eighth Circuit.

Submitted: March

Filed: Oct. Metelska, argued,

Magdalena Bozena (Marcus Park, Jarvis, Esq., Brooklyn MN MN, brief), Burnsville, for Petition- on the er. Bless, argued, Washing- Matthew

Jesse DC, ton, Respondent. COLLOTON, SHEPHERD, and

Before KELLY, Judges. Circuit COLLOTON, Judge. Circuit Avendano, a native and citizen Ribelino Salvador, for review of a petitions of El Immigration Ap- Board of decision immigration judge or- peals. After Salvador, El removed to dered Avendano appeal con- the Board on administrative ineligible that Avendano was cluded he had of removal because cancellation ly, to commit convicted of a crime crime of violence with been rejected purpose to terrorize The Board also ... or in a immi- of the risk of causing to remand the case for the request threat, such terror.” A asy- as used in judge to consider claims for gration “is a lum, declaration of an intention to withholding of and relief un- injure another or property by [her] some Against der the Torture. We Convention unlawful act.” State v. Schweppe, 306 permissibly conclude that the Board cate- (1975). Minn. 237 N.W.2d At making ter- gorized Avendano’s plea his hearing, Avendano claimed he was in roristic threats Minnesota as threatening only suicide, to commit but it and that his re- was an element of the crime that he maining arguments are without merit. We another, threatened and he admitted that deny petition. therefore Avendano’s girlfriend his reasonably by felt threatened his actions. I. Department The Security of Homeland

Avendano entered the United States proceedings initiated removal several El in illegally from Salvador 1998. He counsel, Through months later. his first temporary protected later received status Avendano conceded he was removable protection and from removal under 8 making and that terroristic threats was a § 1254a on the U.S.C. based turpitude pre- that El General’s determination Salvador cludes cancellation of removal. The immi- “unable, temporarily, was to handle ade- gration judge determined that Avendano nationals,” quately the return of its to due should be removed El Salvador. earthquakes. Designa- a series of severe Temporary of El Salvador Pro- Under appeal, represented On administrative tion 14,214 Program, Fed.Reg. tected counsel, Status by disputed new Avendano (Mar. 2001) (internal quotation his Minnesota crime involved moral attorney immigration told the sought tude. He also a remand for the judge protected that Avendano lost status immigration judge to consider either tem- following in driving his conviction 2007 for porary protected asylum status or and re- impaired. while Before the giving incident A request asylum lated benefits. for rise to removal he proceedings, resided for request deemed also to constitute a for years several in with Minnesota his live-in withholding removal. 8 C.F.R. wife, girlfriend, 1208.3(b). whom he considered his § and their three citizen chil- United States The Board determined that Avendano dren. had been convicted of a crime

In January during argument ineligi- and was therefore girlfriend witluhis in presence of their ble for cancellation of removal. The Board children, Avendano grabbed immigra- knife and also declined to remand for the girlfriend told his him judge asylum, explaining follow into the tion to. consider girlfriend bathroom. Avendano’s instruct- that Avendano the rigorous failed meet ed one of the call police; reopen. children to standards for a motion to In addi- tion, officers came and arrested Avendano. He the Board cited the pleaded guilty judge’s theory terroristic conclusion that Avendano’s § in asylum withholding violation of Minn.Stat. 609.713 for and of removal gang 1. That on in El part, subd. relevant based fear recruitment “threatening], directly forbids or indirect- Salvador was foreclosed decisions of the ute that out one or more elements of Board ex- “sets this court. The Board and in the alternative.” was offense ineligible plained that Minnesota statute divisible status a conse- temporary protected sense, provides because it conviction, Descamps felony 8 C.F.R. quence his states: culpable “pur- re- alternative mental 1244.4(a), rejected § claim for “reckless pose Torture terrorize” and Against lief under the Convention ... terror.” Minn. alleged. as inadequately 1. The alien in Stat. 609.713 subd. review, challeng- petitions acting mouny convicted of with the on cancellation the Board’s decision 376 F.3d at “purpose to terrorize.” 813- for fur- refusal remand removal and its asylum, claims for ther consideration Chanmouny opinion explained Our under withholding of relief the approved that this court had Board’s Against Torture. the Convention general definition” of a “longstanding in- involving crime moral which II. by cluded ‘a vicious mo- accompanied “acts A. ” mind.’ tive or a Id. at 814 corrupt (quot- 950). Dec. Nationality Ajami, and Act In re 22 I. & N. Immigration The definition, a held provides Applying an alien who.is convicted of we that the turpitude ineligi- “threatening crime involving moral is Minnesota offense of a crime against person of the of another with the cancellation where violence ble for by purpose causing of one of extreme fear” fell punishable sentence offense 1229b, §§ year longer. category requiring 8 “within the of offenses U.S.C. 1182(a)(2)(A)(i)(I). Thus, Congress did not de- vicious motive or evil intent.” Id. moral alien of involving turpitude,” and had been convicted a crime fine “crime It was meaning phrase involving turpitude. of the was left “to moral unnec- judicial essary to interpre- and decide “whether recklessness future administrative INS, 571, of prong implicates Franklin v. 72 F.3d 572 the Minnesota statute tation.” (8th Cir.1995) omitted). crime (quotation turpitude.” of moral at 813. case, Ashcroft, In this Avendano was convicted Chanmouny

In v. 376 F.3d 810 (8th Cir.2004), of upheld prong deci- under the recklessness the same we guilty alien’s offense ter- statute: He was of sion that an of commit violence in Minnesota a crime a crime of reckless roristic threats case, disregard causing risk of terror in involving moral In that assessing analysis girlfriend. the sake of In whether that we assumed for offense moral statute on terroristic is a crime the Minnesota tude, the Board observed that since was “divisible” the sense mouny, on the “jurisprudence used id. at recklessness term has been is, issue has General Mu- a statute that “contains some evolved.” 813—that kasey opinion in comprehensive issued a turpitude offenses which involve Silvar-Trevino, 24 I. & not.” Id. Matter N. Dec. (quoting others which do at 812 of (BIA (A.G.2008), “clarifying concept 22 Dec. 687 of Ajami, I. & N. 950 re 1999)). articulating a method-. Supreme Descamps turpitude The Court in — States, particular U.S.-, ology determining 133 S.Ct. United (2013), offense L.Ed.2d 438 used 186 Louissaint, 24 differently tude.” I. & N. to mean a stat- Matter term “divisible” 2009). “According (emphasis added), to N. Dec. at 706 a basic General, a definition that generated “has little if reprehensible disagreement by reviewing circuit courts.” degree Holder, with some conduct committed Bobadilla v. 679 F.3d intent, scienter, (8th Cir.2012). either deliberate- subsequently Board ness, willfulness, or recklessness.” degree ruled that “some of scienter” in- Silvo-Trevino, 24 I. & N. (citing 756-57 intent, “specific deliberateness, cludes will- 5). Dec. at 706 & n. fulness, Louissaint, or recklessness.” 24 I. added). & N. Dec. at (emphasis This in light The Board ruled that court presence likewise has said that “the Louissaint, Silvar-Trevino and corrupt of absence of a or vicious mind is uttering terroristic threats in controlling.” Hemandez-Perez disregard Cir.2009) terror “involves the (internal quotation terrorizing with a culpa state, Franklin, turpitudinous mental and is a As this court ble observed “the Therefore, years offense.” Avendano was ineli BIA decided ago that when criminal- gible ly for cancellation of removal. requires reckless conduct a conscious unjustifiable of a substantial and enough Avendano asserts that it was not safety others, risk to the life or al- “reprehensi- for the Board to find that his intended, though no harm was the crime ble conduct” was committed with “reckless turpitude, involves moral for disregard.” argues qualify He that to aas 572; see, purposes.” 72 e.g., F.3d at Mat- involving turpitude, crime moral the men- Leal, ter 26 I. & N. Dec. accompanied by tal state “must be a vi- 2012). disregard” The “reckless required mind,” cious motive or corrupt which to violate the Minnesota terroristic threats Avendano prong” describes as “the second corresponds statute with the Board’s con- governing definition. He draws on templation of recklessness: “Recklessness Ajami, the Board’s 1999 statement requires disregard deliberate action in of a quoted by this court in Chanmouny, that “ known, Bjer- substantial risk.” State v. ‘[a]mong the tests to determine if a crime gum, 771 N.W.2d 57 (Minn.Ct.App. involves moral is whether the act 2009). accompanied by is a a vicious motive or ” corrupt (quoting mind.’ 376 F.3d at 812 This court has concluded that the Board 950). Ajami, 22 I. & N. reasonably involving defined “crime moral turpitude” encompass commit- Board, however, offenses require does not ted with a mental state of recklessness. presence the of “a vicious motive or a Franklin, 72 F.3d at 573. The Board was corrupt mind” as an essential element of a required thus not to find in addition that involving Ajami crime moral turpitude. a only itself that Avendano acted with “vicious motive” or accompaniment said of a “corrupt permissible a a mind.” It was corrupt vicious motive or mind was Silvar-Trevino, “among the tests” a the consistent with categorize used crime, implying that there were other tests to conclude that Avendano’s admission that recently, Attorney disregard as well. More Gen- he acted with reckless opined finding eral that a that risk he would cause terror “requires perpetrator girlfriend satisfy tude that a have was sufficient requirement turpitudinous committed the act with some scienter of- scienter,” Silvar-Trevino, 24 I. & fenses. form of factors,” a in challenge “aggravating not is reasonable does that terpretation conclusion of the statute. with the risk of terroriz- of violence not raise in Avendano did this court “reprehensible con- argument along an the lines advanced meaning of duct” within the Silvar-Trevi- dissent, partial and it is therefore a crime no’s definition Ashcroft, waived. Chay-Velasquez See an alien In situations where turpitude. (8th Cir.2004); Fed. recklessness, some offender’s scienter 28(a)(8)(A). RApp. urged P. have of the Board this court decisions categorical application ap of a modified also

inquired whether alien’s offense proach only in service of his contention “aggravating quali- factor” that that an committed in offense reckless dis as a crime fies the offense by a Silvctr-Trevino,however, regard accompanied vicious must be corrupt government motive or mind. The did not embrace Instead, responded seeking argument, to “rearti- to this and we have formulation. clarity” greater with the Board’s concluded that Avendano’s contention is culate[] definition, General made without If an alien in a case merit. future clear that making wishes to assert bomb “reprehensible must involve tude threat a threat to kill school N. degree and some of scienter.” I. & out of “transitory anger” —with Dec. at 689 n. terror —is conduct, necessarily reprehensible Silva-Trevino, the Board has ex Since 739-40, post, at and that the Minnesota we plained that “when have held that statute therefore reaches conduct required ‘recklessness’ mens rea either turpitude, does not involve moral then it is injury or bodily aggra some other serious open urge position to the alien to vating factor to establish moral parties it before the Board. The have not was in the context of assault joined Ruiz-Lopez, appeal. offenses.” Matter 25 I. & that issue this of see, 2011); e.g., N. Dee. 554 Godinez-Arroyo Mukasey, v. 848 540 F.3d B. (8th Cir.2008). In a after non-assault case also seeks review of the Silva-Trevino, unpersua the Board found request Board’s denial of his for remand contention that sive an alien’s an to the to immigration judge consider police to elude a attempting vehicle—com asylum eligible he is for and with the lives mitted with for holding of on his removal based fear of coupled of property others —must be gang gang violence and recruitment in El bodily injury with the infliction of serious jurisdiction Salvador. This court has no to factor. 25 aggravating Ruiz-Lopez, an I, review removal against final orders of event, In any & N. Dec. at 554. aliens crimes who have committed involv Silva-Trevino ing turpitude, 8 U.S.C. previous not bound to follow Board’s 1252(a)(2)(C), § except to review constitu Nat’l construction see Cable Servs., questions tional or other issues law. Id. & Tel. Ass’n v. Brand X Internet 1252(a)(2)(D); § 967, 981, Mukasey, see Hanan 125 162 545 U.S. S.Ct. Cir.2008). (8th (2005), 519 F.3d and the Because L.Ed.2d 820 Gen of a‘crime involv “reprehensible decision to focus on was convicted eral’s conduct,” separate jurisdiction into have inquiry without we ground. grounds These challenge political raises a constitutional include only if his opinion membership in a particular law. Purwantono v. question or a issue (8th Cir.2007). Gonzales, group. social Id. This court held in Con- Holder, stanza v. 647 F.3d 749 Cir. request for a denying curiam), however, (per “persons remand, that a motion explained the Board to gang resistant violence are too diffuse to pendency of an during to remand filed recognized particular as a group.” be social satisfy appeal “must administrative (internal at quotation Id. a motion to rigorous same standards as Similarly, Marroquin-Ochoma v. Ige, Matter 20 I. & N. reopen.” See (8th Cir.2009), op- 574 F.3d 574 held that (BIA 1994). One of those position gang to a was not necessarily pur- for the reopening standards forbids political, petitioner so the had not estab- pose allowing apply the alien to gang’s lished that a threats to her were relief, “if discretionary appears it form of political opinion based on her so as to right apply to for such the alien’s persecution. constitute 578-79. him ... and fully explained relief was Gonzales, in Menjivar And 416 F.3d 918 af- apply therefore was opportunity (8th Cir.2005), we held substantial unless the hearing, forded at the former supported evidence the Board’s denial of a circum- sought relief is on the basis of claim on persecution gang based due to subsequent that have arisen to the stances violence, the petitioner because had not 1003.2(c)(1). § hearing.” 8 C.F.R. government established that the of El Sal- discretionary Asylum is a form of relief. unwilling vador inflicted or was unable or 1158(b)(1). 8 U.S.C. The Board ruled gangs. the harm from control asy- opportunity that Avendano’s to seek immigration judge 921-22. The and the lum-related relief was addressed at the Board concluded that Avendano’s claim not meet hearing, former and that he did precedents. would fail under these reopening the standard for based on new challenge Avendano does not Any challenge fac- circumstances. to this legal conclusion claims present tual determination does withholding of removal based on fear of law, jurisdiction lack question of so we “gang “gang recruitment” and violence” relating asy- consider Avendano’s claim rejected by have been this court. He con- lum. tends, rather, that the Board should have Withholding con opportunity testify afforded him an trast, mandatory is a form a relief. 8 fear, of his that the about the details so 1231(b)(3)(A). U.S.C. The Board con determine whether his case is Board could cluded that Avendano failed to demon by governed precedents. The Board’s “prima eligible” that facie strate he was present- determination whether Avendano withholding of removal. The Board grounds reopen hearing ed sufficient a immigration judge’s state recounted however, purpose, pres- for that does not sought if had with ment question ent a of law or a constitutional gang based on fear of holding of removal jurisdiction. claim over which we have gang recruitment in El Salva violence Hanan, 519 F.3d at 763. Avendano like- dor, have failed un then the claim would question concerning wise raises no of law court. precedent der of the Board and this the Board’s denial of relief under the Con- Against Torture. vention An re seeking withholding alien moval must show that his life or freedom for review is denied. protected petition

would be threatened based on a scienter, intent, deliberate- KELLY, concurring in either Judge, Circuit willfulness, ness, 24 I. & in or recklessness.” dissenting part. part and (citing 756-57 N. Dec. in Part II.B. of the court’s I concur Silva-Trevino, 24 I. Matter & N. court’s con- respect to the opinion. With (A.G.2008)). The Board 706 & n. 5 cate- permissibly “the Board clusion that result, concluded, as a that because making ter- gorized threat crime of a terroristic in Minnesota as a crime roristic causing disregard addressed involving turpitude,” moral as reprehensible “involves the conduct terror U.A., respectfully I dissent. Part culpa- terrorizing another with one pleaded guilty Ribelino state,” involving ble mental it is a crime making terroristic threats viola- count of turpitude. moral . § 609.713 subd. 1. This of Minn.Stat. tion by methodology adopted Under mental states provides two statute determining General for whether may be violated: “Who- which the statute involving turpi- moral threatens, directly indirectly, an offense is ever tude, required immigra- from the purpose of violence more is commit crime with the nec- ... or in a reckless tion court than a determination of to terrorize essary immigration such ter- rea. The court the risk mens (emphasis ...” violated the statute if ror has also must determine the crime added). Ashcroft, Chanmouny In 376 “reprehensible conduct.” See Silvar-Trevi- Cir.2004), no, court this n. In F.3d 24 I. & N. Dec. at 689 Silvar- Trevino, that a conviction under the Minnesota held adopted statute, committed terroristic-threats when methodology determining three-step terrorize,” qualifies purpose “with whether crime involves crime and, therefore, may qualify as a mouny specifically did not decide “whether turpitude.1 prong of the Minnesota the recklessness “First, in evaluating 689-90. whether a crime of moral implicates statute prior categorical- offense is one that alien’s Because Avendano tude.” Id. ly turpitude, immigration involves moral the recklessness pleaded guilty under is a judges must determine whether there issue is now prong of the probability, pos- ‘realistic not a theoretical us. before criminal that the State or Federal sibility,’ pursuant statute to which the alien was determining prior that Avendano’s applied would be to reach con- convicted qualifies conviction as a crime duct does involve the Board focused on (citing v. Duenas- tude.” Gonzales the mens rea of recklessness is Alvarez, 183, 193, 549 U.S. S.Ct. “jurispru- sufficient. It noted (2007)). case, In this 166 L.Ed.2d 683 the recklessness issue has dence on court, step first for the court decided’ Chan- evolved” since this subsequently the determine mouny. The Board cited Matter ofLouis- probability is a realistic that saint, whether there held that “a crime which apply would the recklessness Minnesota statute to degree some element of its terroristic-threats conduct committed with reviewing recognized given court.” Bo- expressly has the Sil- deference 1. This court Holder, 1052, methodology in- badilla v. 679 F.3d 1056 as "a reasonable va-Trevino Cir.2012). terpretation that "must be of the statute”

739 Silvar-Trevino, that not involve moral statute. 24 I. conduct does & N. Dec. at 697; Bobadilla, see court nor 679 F.3d at 1055-56. tude.2 Neither the Supreme Court of Minnesota has ex- analysis. this the Board conducted pressed poten- concern about the statute’s has not says The court that Avendano scope: tial caution concerning “We the conclusion that his challenged the Board’s potential sweep of Minn. St. 609.713 subd. under Minn.Stat. 609.713 conviction 1, which, language, because its broad subd. 1 of a crime of violence danger carries with it the of prosecutorial terrorizing with the risk of abuse in that innocent or idle threats could “reprehensible conduct” under Silva- easily be too construed constitute a Thus, three-step analysis. Trevino’s terroristic threat.” Schweppe, State v. 306 concludes, court he has waived that issue. 395, (1975). 609, Minn. 237 N.W.2d 617 n. 4 But on appeal specifically as- A review of Minnesota case law shows serts that “the Board failed to examine there is reason for example, concern. For Mr. Avendano’s record of conviction under joke even “a or a flippant may remark” categorical approach,” the modified which MJS, violate the statute. See re No. analysis is the conducted at 2 step C3-00-76, (Minn. 1015886, *2 WL methodology, Silvar-Trevino and so this 2000) (“Whether 25, Ct.App. July or not court must “determine whether his convic- appellant wrote the words on Mon- [‘Bomb tion CIMT [crime day’ a gym joke on locker at aas school] turpitude] step. under” second More- remark, or a flippant recklessly he disre- over, government expressly addresses garded the likelihood that his statement argument Avendano’s and concludes school.”) would terrorize others at high his record of conviction—which is not re- Also, though a remark made aas result of viewed until step of the Silvar-Trevino “transitory anger” would not be sufficient methodology supports the conclusion that — support a conviction for a terroristic crime involves moral terrorize,” threat made “with purpose to Thus, tude. I believe Avendano has support such remark could a conviction preserved challenge, this and we should under the prong. recklessness See State review de novo the Board’s decision and Bolster, A06-1742, No. 2008 WL legal analysis applied in reaching its deci- 2008) (Minn.Ct.App. (reject- at *4 Jan. sion. See Olmsted 588 F.3d ing request “transitory anger” instruc- (8th Cir.2009). because, though may tion negate defense To determine whether the Minnesota intent, mens rea of it not does statute under which Avendano was convict- necessarily negate mens rea of reckless applied ed has been does Sailee, disregard); see also State v. No. involve and thus (Minn.Ct. C3-98-1744, 1999 WL whether that reprehen- conviction involves App. July (affirming conviction of conduct, sible the Board should have re- making terroristic threat because defen- history adjudication” viewed “the dant’s gesture words and hand “had a yes, immigration judge If the answer is inquiry 679 F.3d at 1056. If the cannot be proceed step methodology, step immigration judge may must 2 of the resolved at categorical inquiry proceed step which is modified into 3 to "consider additional conviction, including adjudicator "the alien’s record of evidence the determines is neces- indictment, judg- sary appropriate accurately documents such as the resolve conviction, instructions, Silva-Trevino, jury signed turpitude question.” ment of 704; Bobadilla, guilty plea, plea transcript.” or the Silva- I. & N. Dec. at see Trevino, 699; Bobadilla, 24 I. & N. Dec. at see at 1056. as turpitude fear of Moral has been defined an tendency to cause reasonable per morally reprehensi- act which is se violence”; act of dissent would re- future malum intrinsically wrong ble and or in ges- and meaning verse because of words Among to determine if se.... the tests combination, ture, separately both and turpitude ambiguous speculative); State v. and accompanied the act is All-617, 2012 WL 987282 Graf, No. motive or mind. corrupt vicious 26, (Minn.Ct.App. (reversing Mar. Bobadilla, (quoting 679 F.3d at 1054 conviction for terroristic threats 811-12). mouny, F.3d at Given this statements “amounted because defendant’s definition, and after a review Minnesota immature of frustration expression addressing case law I believe humor, than an actu- misplaced and rather probability there is a realistic that Minne- kill,” not plan al and thus were apply sota would recklessness element statute). under the of its statute to conduct terroristic-threats Moreover, per- law a under Minnesota i.e., that does not involve moral acting in may son be convicted of base, “inherently vile, that is terror in disregard of risk of depraved, contrary accepted or to the person actually if no one even morality rule of and the duties owed be- Bjergum, v. experienced terror. See State persons society general.” tween or to result, court, (Minn.Ct.App.2009).- As a and the 771 N.W.2d proceeded step should have According to Minnesota’s reckless-disre- methodology. the Silvar-Trevino There- instruction, proven be gard need not “[i]t fore, grant I petition would and re- actually experienced that another extreme further proceedings mand for to determine Instead, need only fear.” whether, step 2 of the Silvar-Trevino “recklessly danger risk[] 3, if procedural step framework —or neces- would taken as threats by statements be sary repre- crime involves —Avendano’s they another and that cause ex- would hensible conduct qualifies and thus added). Id. (emphasis treme fear.” And recklessly making because a terroristic crime, general-intent threat is a a defen- may voluntary

dant not assert intoxication subject and may

as a defense thus be

prosecution made even statements (af- America, UNITED without reckless intent. See id. STATES Plaintiff-Appellee firming disgruntled conviction for man who, being up after showing fired for in- work,

toxicated later made HUNTER, Michelle Eric Defendant- bar). drinking statements while in a Appellant. Congress has not defined “crimes involv- No. 13-2452. turpitude.” Villatoro Appeals, United States Court (8th Cir.2014) (quotation Eighth Circuit. have, however, recognized We Submitted: June 2014. general the definition: Filed: Oct. Moral generally refers con- base, vile, inherently duct which is Banc Rehearing Rehearing En Denied depraved, accepted and contrary to the rules of morality and the duties owed persons society general.

between or to

Case Details

Case Name: Ribelino Avendano v. Eric H. Holder, Jr.

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Oct 27, 2014

Citation: 770 F.3d 731

Docket Number: 13-2171

Court Abbreviation: 8th Cir.