UNITED STATES OF AMERICA, Plaintiff - Appellee, v. OSCAR ALMANZA-VIGIL, Defendant - Appellant.
No. 17-2007
United States Court of Appeals for the Tenth Circuit
January 7, 2019
PUBLISH. Appeal from the United States District Court for the District of New Mexico (D.C. No. 2:15-CR-02605-RB-1). Elisabeth A. Shumaker, Clerk of Court.
James N. Langell, Assistant Federal Public Defender (Stephen P. McCue, Federal Public Defender, with him on the briefs), Office of the Federal Public Defender, Las Cruces, New Mexico, for Appellant.
Marisa A. Ong, Assistant United States Attorney (James D. Tierney, Acting United States Attorney, with her on the brief), Office of the United States Attorney, Las Cruces, New Mexico, for Appellee.
Before PHILLIPS, KELLY, and MURPHY, Circuit Judges.
The Immigration and Naturalization Act (INA) defines “aggravated felony” to include
That helps explain the stakes for Oscar Almanza-Vigil. In 2007, he pleaded guilty in Colorado state court to “selling or distributing” methamphetamine in violation of
Now reviewing the district court‘s judgment convicting Almanza-Vigil for illegal reentry, we must return to 2009, when he left state prison, and ask how he could have avoided removal. To prevail here, Almanza-Vigil must show not only that his Colorado felony was not an aggravated felony, but that misclassifying it as one prejudiced him. To show the required prejudice, he must show that the misclassification rendered the entry of the 2009 removal order fundamentally unfair. Absent that, his appeal fails. See
For the reasons detailed below, we conclude that Almanza-Vigil‘s Colorado felony does not fit the INA‘s definition of an aggravated felony. But we also conclude that he failed to demonstrate a reasonable likelihood of avoiding removal but for the erroneous classification of his conviction. The INA therefore parries a collateral attack on Almanza-Vigil‘s previous removal order.
Born in Chihuahua in 1984, Almanza-Vigil is a Mexican citizen. In 1993, eight-year-old Almanza-Vigil and his family trekked across the Mexico–United States border, without documents and without government inspection, and settled in Colorado. Almanza-Vigil never acquired legal immigration status, but he grew up in this country, learning English, graduating from high school, finding work at a dairy farm, and eventually fathering a son.
In 2006, when Almanza-Vigil was twenty-one years old, the district attorney in Fort Morgan, Colorado, charged him with six violations of the state‘s controlled-substances act, all felonies. Counts 1, 2, and 3 of the criminal complaint charge three, identical crimes: that “[o]n or [a]bout” September 15, 20, and 27 of that year, Almanza-Vigil “unlawfully, feloniously, and knowingly sold or distributed METHAMPHETAMINE, a schedule II controlled substance, in violation of section 18-18-405(1),(2)(a)(I)(A), [Colorado Revised Statutes].” Suppl. R. vol. 2 at 3 (bolding removed). Likewise, counts 4, 5, and 6 charge him with possessing methamphetamine “[o]n or [a]bout” the same dates. Id. vol. 2 at 3–4.
At the time,
(1)(a) Except as authorized by [other provisions of state law], it is unlawful for any person knowingly to manufacture, dispense, sell, distribute, possess, or to possess with intent to manufacture, dispense, sell, or distribute a controlled substance; or induce, attempt to induce, or conspire with one or more other persons, to manufacture, dispense, sell, distribute, possess, or possess with intent to manufacture, dispense, sell, or distribute a controlled substance; or possess one or more chemicals or supplies or equipment with intent to manufacture a controlled substance.
. . . .
(2)(a) Except as is otherwise provided in subsection (2.3) of this section for possession offenses not including possession with the intent to distribute involving one gram or less of any material, compound, mixture, or preparation that contains any quantity of a schedule I through IV controlled substance, . . . any person who violates any of the provisions of subsection (1) of this section:
(I) In the case of a controlled substance listed in schedule I or II of part 2 of this article, commits:
(A) A class 3 felony; except that a person commits a class 4 felony if such violation is based on the possession of a controlled substance listed in schedule II unless otherwise provided in paragraph (a) of subsection (3) of this section[.]
. . . .
(2.3)(a) Any person who commits the offense of possession in violation of the provisions of subsection (1) of this section by possessing any material, compound, mixture, or preparation, weighing one gram or less that contains any quantity of a controlled substance listed in schedules I through IV of part 2 of this article commits:
(I) A class 6 felony[.]
Two years passed. Then, prison officials informed Almanza-Vigil (whose parole was approaching) that the federal government had issued an immigration hold. “[Y]ou‘re going to be going to Mexico,” he remembers being told. R. vol. 1 at 154:25. And from that point on, he claims, he “never thought” that he would be able to challenge his removal. R. vol. 1 at 155:1.
In April 2009, the state released Almanza-Vigil to ICE agents, who detained him pending his removal. The Department of Homeland Security had decided that Almanza-Vigil‘s Colorado conviction met
The record on appeal contains the two forms that the government claims to have given Almanza-Vigil during these proceedings: a two-page Notice of Intent (exhibit 4) and a one-page Certificate of Service (exhibit 5). These forms are, in the district court‘s words, “a mess.” R. vol. 1 at 354 ¶ 10.
Exhibit 4 is titled, “Notice of Intent to Issue a Final Administrative Removal Order.” Suppl. R. vol. 2 at 6. Below that title, the Notice is addressed to “Oscar ALAMANZA-VIGIL” (a misspelling repeated on the next page). Id. at 6, 7. The Notice then sets forth the “Charge“: “You are deportable under . . .
Responsibilities,” including (1) that “you may contact legal counsel from the list of available services provided to you” (a list that the government didn‘t provide) and (2) that if you want to exercise your rights to rebut the charge or to seek judicial review, the government must receive your written response within ten days. Id. But the Notice lacks a designated space for Almanza-Vigil‘s
Exhibit 5, the Certificate of Service, begins with an ICE agent‘s signed statement: “I served this Notice of Intent. I have determined that the person served with this document is the individual named on the other side of the form.” Id. at 8. (The contents of the “other side” remain a mystery: the district court deduced only that “the other side” was probably not the Certificate, based on the government‘s introduction of the Notice and the Certificate as separate exhibits.) Beneath two checked boxes—one admitting “the allegations and charge in this Notice of Intent,” another waiving “the right to remain in the United States . . . to apply for judicial review“—the Certificate has three lines: on the first is a hand-drawn “x” and Almanza-Vigil‘s signature; on the second, someone printed “Oscar Almanza“; and on the third is the date, April 6, 2009. Id.
In the government‘s view, Almanza-Vigil knowingly waived his right to contest his removal by signing the Certificate. So, on April 6 (the same day that he signed it), the Department of Homeland Security issued a final administrative removal order declaring (1) that Almanza-Vigil is not a U.S. citizen, (2) that he has never been lawfully admitted for permanent residence to the United States, and (3) that he has been convicted of an aggravated felony defined in
Six years later, in April 2015, a set of footprints in the New Mexico desert led border-patrol agents to Almanza-Vigil, who was hiding in a mesquite bush near the border fence. The agents arrested him, suspecting that he‘d entered illegally. After his processing revealed the 2009 removal order, prosecutors filed a criminal complaint in the U.S. District Court for the District of New Mexico, alleging that Almanza-Vigil had reentered the country in violation of an outstanding removal order that had followed an aggravated-felony conviction. Three months later, a grand jury returned an indictment charging him with illegal reentry in violation of
Almanza-Vigil moved to dismiss the indictment by attacking his 2009 removal order—the government‘s proof that he had reentered illegally (a felony under
On December 14, 2015, after denying Almanza-Vigil‘s first motion to reconsider, the court held a bench trial. “[B]ased upon the undisputed testimony” that he had returned to the United States without permission after being deported, the court found Almanza-Vigil guilty of violating
DISCUSSION
Almanza-Vigil challenges the district court‘s refusal to dismiss the illegal reentry indictment. On appeal, as in the district court, he disputes the validity of his 2009 removal order by arguing that it was entered without due process. When a noncitizen attacks the constitutionality of a previous removal proceeding in this way, he presents a mixed question of law and fact that we review de novo. United States v. Aguirre-Tello, 353 F.3d 1199, 1204 (10th Cir. 2004). But before addressing the merits of Almanza-Vigil‘s appeal, we must narrow the question. To do so, we weave together the appeal‘s statutory and procedural context.
A. How Can a Noncitizen Prosecuted for Illegal Reentry Collaterally Attack the Underlying Removal Order?
When the government prosecutes a noncitizen for illegal reentry, it typically must prove two things: (1) that the noncitizen left the United States with an outstanding order of removal against him and (2) that afterward, the noncitizen entered, tried to enter, or was found in the United States.
When the government offers a previous removal order as evidence of the first element, the Fifth Amendment protects the noncitizen‘s right to challenge that order, even years after the time for appeal has passed and the order has become final. United States v. Mendoza-Lopez, 481 U.S. 828, 837–39 (1987); accord United States v. Adame-Orozco, 607 F.3d 647, 651 (10th Cir. 2010). Congress codified this right in
Here, the district court concluded that, although Almanza-Vigil could satisfy the first two conditions (administrative exhaustion and denial of judicial review) he could not demonstrate the third condition, that the entry of the 2009 removal order was fundamentally unfair. That conclusion rested on two, alternate grounds: first, that the government had correctly classified Almanza-Vigil‘s conviction as an aggravated felony; and second, that the government‘s decision to classify his conviction as an aggravated felony had not prejudiced him. And because a collateral attack can‘t survive the failure to meet any of
So the appeal begins with one question: Does Almanza-Vigil‘s conviction fit the INA‘s definition of an aggravated felony? Because we answer no, the appeal presents a second question: Did misclassifying the conviction so prejudice Almanza-Vigil that the entry of his previous removal order was fundamentally unfair? Because we again answer no, our inquiry ends there—we can uphold the dismissal of his collateral attack without reaching
The parties dispute whether Almanza-Vigil‘s conviction for “selling or distributing” methamphetamine, see
1. The Categorical and Modified Categorical Approaches to Classifying Offenses
“When the government alleges that a state conviction qualifies as an ‘aggravated felony’ under the INA, we generally employ a ‘categorical approach’ to determine whether the state offense is comparable to an offense listed in the INA.” Moncrieffe v. Holder, 569 U.S. 184, 190 (2013) (citing Nijhawan v. Holder, 557 U.S. 29, 33–38 (2009); Gonzales v. Duenas-Alvarez, 549 U.S. 183, 185–87 (2007)). The categorical approach asks whether the state offense‘s definition matches “the ‘generic’ federal definition of a corresponding aggravated felony.” Id. (quoting Duenas-Alvarez, 549 U.S. at 186). The state offense fits the generic offense only if it “necessarily” includes the generic federal offense. Id. (quoting Shepard v. United States, 544 U.S. 13, 24 (2005) (plurality opinion)). We therefore presume that the state conviction rested on “‘the least of th[e] acts’ criminalized,” then determine whether the generic federal offense encompasses “even those acts.” Id. at 190–91 (alteration in original) (quoting Johnson v. United States, 559 U.S. 133, 137 (2010)).
“Whether the noncitizen‘s actual conduct involved such facts ‘is quite irrelevant.‘” Id. at 190 (quoting United States ex rel. Guarino v. Uhl, 107 F.2d 399, 400 (2d Cir. 1939)). The categorical approach focuses on an offense‘s elements—the “constituent parts” of its legal definition, “the things the ‘prosecution must prove to sustain a conviction.‘” Mathis v. United States, 136 S. Ct. 2243, 2248 (2016) (quoting Elements of a Crime, Black‘s Law Dictionary (10th ed. 2014)). If the defendant goes to trial, then the elements are “what the jury must find beyond a reasonable doubt.” Id. (citing Richardson, 526 U.S. at 817). And if the defendant pleads guilty, then the elements are what he “necessarily admits.” Id. (citing McCarthy v. United States, 394 U.S. 456, 466 (1969)). Elements are abstract, in contrast to “brute facts“—“mere real-world things[] extraneous to the crime‘s legal requirements,” which “need neither be found by a jury nor admitted by a defendant.” Id. (first quoting Richardson v. United States, 526 U.S. 813, 817 (1999); and then citing Fact, Black‘s Law Dictionary (10th ed. 2014)).
When a state statute defines a single crime with a single—that is, indivisible—set of elements, the categorical approach is (relatively) “straightforward“: just “line[] up that crime‘s elements alongside those of the generic offense and see[] if they match.” Id. But this comparison gets more complicated when a state statute is divisible—that is, when it creates multiple
When a statute lists alternative elements, the modified categorical approach allows us to glimpse “a limited class of documents” from the previous conviction—the indictment, the jury instructions, the plea agreement or colloquy—so that we can figure out which alternative “was integral to the defendant‘s conviction (that is, which was necessarily found or admitted).” Id. (citing Shepard, 544 U.S. at 26; Taylor, 495 U.S. at 602). Once we‘ve discerned which crime, comprising which elements, the noncitizen was convicted of, we can “compare that crime, as the categorical approach commands, with the relevant generic offense.” Id. But “the modified categorical approach serves—and serves solely—as a tool to identify the elements of a crime of conviction when a statute‘s disjunctive phrasing renders one (or more) of them opaque.” Id. at 2253 (citing Descamps v. United States, 570 U.S. 254, 263–64 (2013)). We can‘t “repurpose” it to explore whether a conviction, “even though for a too-broad crime, rested on facts (or otherwise said, involved means) that also could have satisfied the elements of a generic offense.” Id. at 2254.
So, when we encounter a statute that lists alternatives, we face a threshold question: does the list enumerate alternative elements, which would allow us to use the modified categorical approach, or alternative means, which would not?
In Mathis, a state-court decision “definitively answer[ed]” the question whether
In other cases, the statute itself might resolve the means-or-elements question. Id. at 2256. If each alternative carries a different penalty, then to comply with Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), the jury must unanimously agree on one of them, meaning that the alternatives must be elements. Mathis, 136 S. Ct. at 2256 (citing, among other state statutes,
In still other cases, though, state law might fail “to provide clear answers.” Id. Then, the modified categorical approach permits us to glimpse the record of the previous conviction to determine whether the listed items are elements of the offense. Id. at 2256–57 (quoting Rendon v. Holder, 782 F.3d 466, 473–74 (9th Cir. 2015) (Kozinski, J., dissenting from the denial of rehearing en banc)). If these documents reference one alternative “to the exclusion of all others,” that indicates the statute lists several, alternative elements, each defining a separate crime. Id. at 2257. Then—and only then—can we use the documents to identify the crime of conviction. Id. “Conversely,” though, if the indictment and jury instructions reiterate the statutory list (“building, structure, or vehicle“) or use “a single umbrella term” (like “premises“), that indicates the statute lists alternative means of fulfilling one element. Id. And if so, we have “no call to decide which of the statutory alternatives was at issue in the earlier prosecution.” Id. at 2256.
Next, we consider what this means for Almanza-Vigil.
2. Does Almanza-Vigil‘s Colorado Felony Categorically Match an Aggravated Felony Under the INA?
Almanza-Vigil argues that
The generic offense encompasses any offense (state or federal) that “proscribes conduct punishable as a felony” under the Controlled Substances Act (CSA),
But the government contends that the Colorado statute is divisible and that, under the modified categorical approach, Almanza-Vigil pleaded guilty to a crime the government terms “distribution of methamphetamine,” which it claims “clearly constitutes” the generic federal crime of illicit drug trafficking. Appellee‘s Answer Br. at 26. We disagree.
Last year, two Tenth Circuit cases considered the scope of a “controlled substance offense,” one of two categories of previous convictions that enhance the sentence of a “career offender” under the federal sentencing guidelines. United States v. McKibbon, 878 F.3d 967, 971–76 (10th Cir. 2017); United States v. Madkins, 866 F.3d 1136, 1144–48 (10th Cir. 2017); see also
Both decisions then compared that definition to the defendants’ previous convictions: Madkins‘s convictions for the Kansas crimes of “possession with intent to sell, deliver, or distribute” cocaine and marijuana, and McKibbon‘s conviction for the Colorado crime at issue here (albeit a newer iteration, which had dropped simple possession from its list of proscribed acts). Madkins, 866 F.3d at 1145 (quoting
That was so, Madkins and McKibbon concluded, even though a “controlled substance offense” includes an attempt to distribute the controlled substance. See
Madkins and (four months later) McKibbon thus both concluded that the
state statutes that proscribe “offers” to sell a controlled substance. McKibbon, 878 F.3d at 972; Madkins, 866 F.3d at 1145. The least of the acts criminalized under such a state statute is a fraudulent offer to sell a controlled substance, which does not constitute a “controlled substance offense” under the guidelines. Cf. Moncrieffe, 569 U.S. at 191 (quoting Johnson, 559 U.S. at 137). So, “the two are not a categorical match.” Madkins, 866 F.3d at 1147.
In reaching this conclusion, McKibbon addressed but rejected the government‘s contention (which it raises again here) that
In Abiodun, the Colorado Supreme Court held that
Nothing in the specific language of the statute or the history of its enactment suggests an intent to create a separate offense for each proscribed act. On the contrary, the scope and structure of the proscriptive provision, combined with sentencing provisions differentiating punishments on the basis of the quantum of drugs (rather than the act) involved, strongly points to the creation of a single crime, the gravamen of which is preventing the unauthorized delivery of a “particular quantity of a particular contraband substance.” . . . . Rather than completely separate offenses, the statute strongly suggests an intent to “criminalize successive stages of a single undertaking,” . . . “encompass[ing] every act and activity which could lead to the proliferation of drug traffic.”
111 P.3d at 466–67 (alteration in original) (citations omitted) (first quoting Lopez v. State, 108 S.W.3d 293, 299 (Tex. Crim. App. 2003); then quoting United States v. Mendoza, 902 F.2d 693, 697 (8th Cir. 1990); and then quoting United States v. Gomez, 593 F.3d 210, 213 (3d Cir. 1979)). In McKibbon‘s view, Abiodun squarely addressed divisibility by “holding that the state legislature intended to create a single unitary offense when it enacted the ‘alternatively-phrased’
Yet even if Abiodun‘s message on divisibility were uncertain, Mathis‘s final suggestion—“if
Madkins and McKibbon thus crafted a general rule: if state law criminalizes fraudulent offers to sell a controlled substance, then a conviction under that state law is a categorical mismatch for the guidelines’ generic “controlled substance offense.” Here, we take their logic another step, into the immigration context. Like the generic “controlled substance offense” under the guidelines, the generic offense of “illicit trafficking in a controlled substance” under the INA encompasses all state offenses that are felonies under the CSA. Compare Lopez, 549 U.S. at 60 (defining the scope of “illicit trafficking in a controlled substance” under
As for the state statute at issue here, McKibbon further tells us that
And like in McKibbon, even if we do use the modified categorical approach to “peek” at the record of Almanza-Vigil‘s previous conviction, we see that he was convicted of “selling or distributing” methamphetamine. Of the six counts in the complaint, he pleaded guilty to the first:
COUNT 1 - DISTRIBUTION OF A CONTROLLED SUBSTANCE - SCHEDULE II (F-3) On or About September 15, 2006, OSCAR ALMANZA-VIGIL unlawfully, feloniously, and knowingly sold or distributed METHAMPHETAMINE, a schedule II controlled substance; in violation of section 18-18-405(1),(2)(a)(I)(A), C.R.S.
Suppl. R. vol. 2 at 3 (bolding removed). And according to Mathis, when an indictment reiterates the statute‘s alternatives (here: “sold or distributed“), it‘s “as clear
Accordingly, it doesn‘t matter whether we apply the categorical approach or the modified categorical approach. Either way, Almanza-Vigil‘s crime of conviction is “selling or distributing” a controlled substance in violation of
That leaves a final question: Even though the government misclassified Almanza-Vigil‘s Colorado conviction as an aggravated felony, which resulted in expedited removal proceedings and the denial of any opportunity for discretionary relief, can he additionally show that the entry of his previous removal order was “fundamentally unfair“?
C. Did Misclassifying Almanza-Vigil‘s Colorado Conviction Render the Entry of his 2009 Removal Order Fundamentally Unfair?
Almanza-Vigil argues that the government‘s misclassification of his Colorado conviction as an aggravated felony prejudiced him because, outside expedited removal proceedings, he could have applied for and received relief from removal, such as voluntary departure or cancellation of removal.10
In Aguirre-Tello, we required a noncitizen alleging that the entry of a previous removal order was fundamentally unfair to meet a reasonable-likelihood standard. 353 F.3d at 1209; see also
An alien‘s actual chances of receiving such discretionary relief [suspension of
deportation]11 are too speculative, and too far beyond the capability of judicial review, to conclude that the alien has actually suffered prejudice from being ineligible for suspension of deportation . . . . Just as a court cannot review the inherently ‘subjective’ judgments made by the executive in deciding whether to commute a life sentence, this Court cannot predict the subjective and fact-intensive judgments that the Attorney General would make in deciding whether to grant extraordinary relief, such as the suspension of deportation . . . . The alien cannot demonstrate prejudice, much less substantial prejudice, arising from the ineligibility for such an ‘act of grace’ because no standards exist for a court to determine whether the executive would have granted the extraordinary relief anyway.
Id. (quoting Mejia-Rodriguez, 178 F.3d at 1148).
At the threshold, we disagree with the district court that Almanza-Vigil‘s odds of receiving “an ‘act of grace’ in the form of discretionary relief” present an inquiry “too speculative” for judicial examination. R. vol. 1 at 470 (quoting Aguirre-Tello, 353 F.3d at 1209 n.8). Aguirre-Tello itself did not consider the petitioning noncitizen‘s claim too speculative, despite hinting at the “inherent difficulty” of success. 353 F.3d at 1209 n.8. Instead, the court explored the likelihood that he could have received “a § 212(c) waiver12 from deportation.” See id.. Accordingly, we will, too.
We turn to whether, absent the government‘s misclassification of his Colorado conviction as an aggravated felony, Almanza-Vigil had a reasonable likelihood of receiving either cancellation of removal or voluntary departure.
1. Cancellation of Removal
The INA gives the Attorney General discretion to cancel the removal of an otherwise-removable, non-permanent-resident “alien” who:
- has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of [his] application [for cancellation of removal];
- has been a person of good moral character during such period;
- has not been convicted of an offense under [8 U.S.C. §§ ]1182(a)(2) [including “any law or regulation of a State . . . relating to a controlled substance (as defined in section 802 of Title 21)“], 1227(a)(2) [including an aggravated felony or “any law or regulation of a State . . . relating to a controlled substance“], or 1227(a)(3) [failure to register and falsification of documents] . . . ; and
- establishes that removal would result in exceptional and extremely
unusual hardship to the alien‘s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.
Almanza-Vigil claims that, “had the relevant officials realized his conviction was not an aggravated felony,” he would have had a reasonable likelihood of receiving cancellation of removal. Appellant‘s Brief-in-Chief at 37. He submits the testimony of his immigration-law expert, Mr. Olsi Vrapi, a “Criminal immigration” law professor at the University of New Mexico School of Law and a practicing attorney who has represented hundreds of noncitizens in immigration proceedings. R. vol. 1 at 186:20. At the motion-to-dismiss hearing, Vrapi said that Almanza-Vigil was “eligible for this form of relief” despite having pleaded guilty to “selling or distributing” methamphetamine. R. vol. 1 at 206:25–207:1.
We disagree. Though “selling or distributing” methamphetamine is not an aggravated felony under the INA, it does violate “a[] law or regulation of a State . . . relating to a controlled substance,” namely,
2. Voluntary Departure
Compared to cancellation of removal, voluntary departure is available to a broader class of noncitizens. The INA excludes only aggravated felons,
- . . . [have] been physically present in the United States for a period of at least one year immediately preceding the date the notice to appear was served . . . ;
- . . . [be, and have] been, a person of good moral character for at least 5 years immediately preceding the alien‘s application for voluntary departure;
- . . . not [be] deportable under section 1227(a)(2)(A)(iii) [aggravated-felony convictions] or section 1227(a)(4) [security related grounds, including terrorist activities] . . . ; and
- . . . establish[] by clear and convincing evidence that the alien has the means to depart the United States and intends to do so.
Almanza-Vigil‘s Colorado conviction was not an aggravated felony, and nothing in the record suggests that he poses a national-security risk. So, we agree with Almanza-Vigil that even with his criminal record, he was eligible to receive voluntary departure in 2009, at least before the completion of removal proceedings.13 But we
In exercising their discretion to grant or deny a voluntary-departure application, immigration judges balance the applicant‘s positive equities, like lengthy residence in the United States and close ties to family here, against negative factors, like an unfavorable immigration history or a criminal record, and then decide whether the applicant is worthy of an exercise of discretion. See Matter of Gamboa, 14 I & N. Dec. 244, 248 (BIA 1972); accord United States v. Valdez-Novoa, 780 F.3d 906, 917–21 (9th Cir. 2015) (applying Gamboa‘s balancing principle in the context of
Almanza-Vigil, bolstered by Vrapi‘s testimony, asserts that an immigration judge considering the equities of his case would have found him worthy of voluntary departure. He had grown up in the United States since age eight; he had learned English, graduated from high school, and worked a steady job; and he had many citizen and lawful-permanent-resident family members, including a son born here. His “only negative equity” was his conviction for “selling or distributing” methamphetamine. Appellant‘s Brief-in-Chief at 35. And Vrapi told the court that with the counterweight of his positive factors, Almanza-Vigil “had a reasonable likelihood of receiving” voluntary departure despite this conviction. R. vol. 1 at 212:17–18. Voluntary departure, Vrapi explained, was “fairly easy” to get and “fairly typical to be granted,” absent “some egregious circumstance” (like “[p]rior violations of other voluntary returns,” “disregard of border laws,” or “criminal acts“). Id. vol. 1 at 211:21, 211:25–212:1, 212:4–7. Though he couldn‘t give numbers, Vrapi said that his clients had “gotten voluntary departure, even with felonies.” Id. vol. 1 at 212:12–13.
In further support, Almanza-Vigil cites cases in which noncitizens with criminal records worse than his have won this form of relief. In his best example, In re: Luis Alonzo Gonzales-Figueroa, the Board of Immigration Appeals upheld an immigration judge‘s decision to grant voluntary departure to an applicant with “numerous arrests,” four assault convictions (the last of which sent him to prison for six months), and one resisting-arrest conviction. 2006 WL 729784, at *1 (BIA Feb. 10, 2006). Considering Gonzales-Figueroa‘s countervailing positive equities, like his lengthy residence in the country, his participation in Alcoholics Anonymous, and the testimony of his mother and sister, both U.S. citizens, that he had quit drinking and helped his mother pay the bills, the board ruled that the immigration judge had not abused his discretion. Id. at *1–2.
But as the Ninth Circuit observed in Valdez-Novoa, “a single case that is arguably on point means only that it is ‘possible’ or ‘conceivable’ that a similarly situated alien would be afforded voluntary departure.” 780 F.3d at 920. The same point dampens Vrapi‘s helpfulness here. Vrapi could not quantify Almanza-Vigil‘s chances, nor could he describe any case in which an immigration judge had allowed someone convicted of “selling or distributing” methamphetamine to depart voluntarily. Vrapi‘s conclusory assertions that voluntary-departure relief is “fairly”
Almanza-Vigil has close ties to this country, including a U.S.-citizen son, but in 2009, when the government issued his removal order, he had just been released from prison for “selling or distributing” methamphetamine—a serious crime in the colloquial sense, if not technically an aggravated felony under the INA. See
We agree with the district court that Almanza-Vigil failed to satisfy the fundamental-unfairness prong of
CONCLUSION
For these reasons, we affirm the district court‘s judgment.