Zimmer's Books

by William K. Zimmer, in Immigration Matters

 

The procedural history, facts of record, holding and rationale in Mirian Margarita Renferi Aviles-Tavera v. Merrick Garland, (5^th Cir. January 4, 2022) No. 20-60587 are as follows:

 

Case History

In March 2017, an Immigration Judge denied the Petitioner’s applications for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”).

In 2019 an Immigration Judge denied the Petitioner’s applications for asylum, withholding of removal, and protection under CAT and ordered Aviles removed.

The Petitioner appealed to the Board of Immigration Appeals ("BIA").

The BIA dismissed the Petitioner's appeal.

The Petitioner filed a Petition for Review.

 

Facts

The Petitioner is a native citizen of Mexico, who first entered the United States illegally in 1988.

In 1994, the Petitioner received notice that he was subject to deportation, and he was granted an extension of time to deport voluntarily.  The Petitioner, however, failed to leave by the required date.

The Petitioner was again served with notice that he was subject to deportation in October 1998.

An Immigration Judge ordered his removal in 2000.

In 2001, The Petitioner was convicted of Misdemeanor Assault with Injury in Texas state court and sentenced to 30 days in jail.

In 2004, the Petitioner was convicted of Felony Assault – Family Violence (relating to his sister) in Texas state court and was sentenced to 2.5 years of imprisonment.

The Petitioner was deported after release from prison.

In October 2013, the Petitioner reentered the United States.

In November 2013, the Petitioner was served with notice to appear (“NTA”).

In 2015, an Immigration Judge denied the Petitioner’s applications for asylum, withholding of removal, and protection under CAT.

In particular, the 2015 Immigration Judge concluded that the Petitioner’s felony assault conviction was not a “particularly serious crime.”  According to the 2015 Immigration Judge, the offense would ordinarily be classified as a misdemeanor and was only enhanced to a felony due to the Petitioner’s prior misdemeanor conviction.  Nevertheless, the 2015 Immigration Judge determined on the merits that the Petitioner was not entitled to withholding of removal or protection under CAT.

The Petitioner was again removed from the United States.

In March 2017, the Petitioner presented himself for inspection and requested entry into the United States.

In May 2018, the Department of Homeland Security (“DHS”) placed the Petitioner in removal proceedings.  The Petitioner again applied for asylum, withholding of removal, and protection under CAT.

During a hearing relating to his relief applications in 2019, the Petitioner described various attacks in Mexico by an individual, police, and the military due to his cognitive disabilities and mental health issues.

The Petitioner testified that he had been attacked and cut with a knife in Mexico.

He further stated that an “organized group and the military” repeatedly attacked and threatened him with a gun.

Finally, the Petitioner testified that rather than helping him, police officers harassed him, threatened him, tied him up, and sexually assaulted him.

According to the Petitioner, he will be tortured, institutionalized, or killed if he returns to Mexico.

A professional counselor testified that he had visited the Petitioner on three occasions and that the Petitioner had shown signs of schizophrenia, autism, delusions, and cognitive or intellectual disabilities. The counselor, however, could not provide an exact diagnosis. Nevertheless, he expressed an opinion that the Petitioner would be abused in Mexico due to these conditions.

Ultimately, the counselor opined that the Petitioner was not aggressive and posed no threat to the public.

The 2019 Immigration Judge denied the Petitioner’s application, concluding that she was not precluded from determining that the Petitioner’s felony assault conviction was a “particularly serious crime.”

The 2019 Immigration Judge also determined that the Petitioner was not entitled to protection under CAT because the Petitioner did not establish it was more likely than not that he would be tortured or institutionalized if he returned to Mexico, nor did he show that the Mexican government would acquiesce in the alleged torture.

The 2019 Immigration Judge ordered the Petitioner removed to Mexico.

The Petitioner appealed to the BIA.

The BIA dismissed the appeal.

In particular, the BIA held that the Petitioner was statutorily ineligible for both asylum and withholding of removal, and that the 2019 Immigration Judge had not committed error by reconsidering whether the Petitioner was statutorily ineligible for withholding of removal based on the revised classification of his felony assault as a particularly serious crime.

The BIA also held that the Petitioner did not meet his burden to show he was entitled to protection under CAT because he had failed to show that it is more likely than not that he would be tortured at the instigation of or with the acquiescence of the Mexican government.

The Petitioner timely filed a petition for review on his withholding of removal and CAT applications.

 

Held

Petition for Review Denied
 

Rationale

The Petitioner challenged the denial of his withholding of removal and CAT applications as follows:

1. The 2019 Immigration Judge was precluded from reconsidering whether his felony assault conviction was a “particularly serious crime” because the 2015 Immigration Judge had already determined it was not.
2. The United States Supreme Court in Borden v. United States, 141 S. Ct. 1817 (2021) reverts the case-by-case analysis for classifying an offense as a particularly serious crime to that in place prior to United States v. Gracia-Cantu, 920 F.3d 252 (5th Cir. 2019) (per curiam) which governed the 2019 Immigration Judge’s classification of the Petitioner’s felony assault offense.  Therefore, the 2019 Immigration Judge should have reached the same classification conclusion as the 2015 Immigration Judge.
3. Alternatively, the BIA erred in determining on the merits that he was statutorily ineligible for withholding of removal because his felony assault conviction was a particularly serious crime, for the following reasons:
   • the facts giving rise to his felony assault conviction are less severe than the those presented in the cases cited by the 2019 Immigration Judge;
   • the 2019 Immigration Judge erred by referring to the Affidavit for Warrant of Arrest as being the affidavit of the victim when it was in fact prepared by an officer; and
   • the 2019 Immigration Judge disregarded testimony offered by Petitioner’s other sister, stating that he was not a violent or aggressive person.

The Fifth Circuit Court of Appeal explained denial of the petition for review in the following manner:

1. “A final decision by an immigration judge has a preclusive effect on future litigation and agency decisions.”  Amrollah v. Napolitano, 710 F.3d 568, at 571 (5th Cir. 2013).  However, issue preclusion does not apply “unless the facts and the legal standard used to assess them are the same in both proceedings.”  See Amrollah v. Napolitano, at 571.  Even when the facts remain the same, if a demonstratable difference in the applicable legal standard exists, issue preclusion does not apply.  Talcott v. Allahabad Bank, Ltd., 444 F.2d 451, at 459 n.8 (5th Cir. 1971).
2. The Attorney General has discretion to determine on a case-by-case basis whether a conviction is a particularly serious crime by considering the following factors:

• the nature of the conviction,
• the type of sentence imposed, and
• the circumstances and underlying facts of the conviction.

Vetcher v. Barr, 953 F.3d 361, at 368–69 (5th Cir. 2020); In re N-A-M-, 24 I. & N. Dec. 336, at 342 (BIA 2007).

3. While the overarching factors of the case-by-case test remain unchanged, United States v. Gracia-Cantu, 920 F.3d 252 (5th Cir. 2019) (per curiam) changed how courts interpret the first factor.
4. Specifically, Gracia-Cantu, at 254, held that Assault – Family Violence was a “crime of violence” under 18 U.S.C. § 16(a), as opposed to18 U.S.C. § 16(b).
5. 18 U.S.C. § 16 provides two definitions for a crime of violence: “(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another” and “(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”
6. The 2015 Immigration Judge relied on the (now unconstitutional) 18 U.S.C. § 16(b) crime of violence definition to find that the Petitioner’s felony assault conviction was a crime of violence.  See Sessions v. Dimaya, 138 S. Ct. 1204, at 1223 (2018) (finding the 18 U.S.C. § 16(b) definition to be unconstitutionally vague in the immigration context).  Furthermore, the 2015 Immigration Judge did not consider whether the Petitioner’s felony assault conviction was a crime of violence under § 16(a).
7. In summary, Gracia-Cantu created a significant or demonstratable change to the analysis of the nature of the conviction or elements of the offense.  Therefore, issue preclusion does not apply.
8. The Petitioner forfeited the argument that Borden v. United States reverts the case-by-case analysis for classifying an offense as a particularly serious crime to that in place prior to Gracia-Cantu which governed the 2019 Immigration Judge’s classification of the Petitioner’s felony assault offense because he failed to raise this argument his opening brief.  Nevertheless, Borden v. United States, at 825, held that an offense requiring only a mens rea of recklessness could not qualify as a violent felony under 18 U.S.C. § 924.  The BIA did not err by holding that the 2019 Immigration Judge could reexamine whether the Petitioner’s felony assault conviction was a particularly serious crime.
9. With regard to the Petitioner’s alternative argument that the BIA erred in determining on the merits that he was statutorily ineligible for withholding of removal by agreeing with the 2019 Immigration Judge that his felony assault conviction was a particularly serious crime, the Petitioner fails to show how these errors compel reversal of the BIA.  See section 242(b)(4)(B) of the Act.
10. The BIA never reached the issue of whether the Petitioner would be subjected to persecution on account of his membership in a particular social group because it determined that the Petitioner was statutorily ineligible for withholding of removal based on his conviction for a particularly serious crime.  The Fifth Circuit Court Appeal declined to consider this argument because an appellate court is not permitted to consider reasons other than those given by the BIA for its decision.  See Kwon v. INS, 646 F.2d 909, at 916 (5th Cir. 1981).  The BIA had denied the Petitioner's withholding of removal claim based on classification of his felony assault offense as a particularly serious crime; not for failure to establish persecution based on membership in a particular social group.

Commentary

It is not unusual for multiple Immigration Judges to participate in creating a record of proceedings which is reviewed by the BIA, circuit court of appeal and potentially the United States Supreme Court.  The proverb that sometimes appears to apply to this phenomenon is:  “Too many cooks spoil the broth.”

Decision making by multiple Immigration Judges in a single removal proceeding is often a consequence of a relatively small body of Immigration Judges overwhelmed with an ocean of pending cases.

The participation of multiple Immigration Judges is more likely to occur when the respondent (i.e. the person who is the subject of removal proceedings) is detained.  The reason for this circumstance is the high priority that the Executive Office For Immigration Review ("EOIR") assigns to cases of detained individuals.  Immigration Judges are entitled to administrative leave (i.e. vacation time) and sick leave.  In addition, EOIR administrators send Immigration Judges on details to other cities and detention facilities from time to time to address emergent circumstances.  Immigration Judges also transfer, retire and sometimes pass away.

Since detention cases have priority over non-detention cases, Immigration Judges sometimes must reset a non-detained docket to sit in for an absent Immigration Judge's detained docket.  The disruption of one docket leads to the disruption of another docket and can mushroom exponentially throughout the entire mass of pending detention and non-detention cases.

Perhaps, in Renferi Aviles-Tavera v. Merrick Garland if the same Immigration Judge who had determined that the Petitioner's felony assault offense was not a particularly serious crime in 2015 had presided over his 2019 proceedings the particularly serious crime classification issue would not have been revisited (provided that the local DHS attorney did not raise the issue; a real possibility).

Comprehension of the Fifth Circuit Court of Appeal’s conditions for preclusion of issue reconsideration governed by whether facts or the legal standard or both have changed should inspire immigration law practitioners to contemplate how to use these conditions to a client’s advantage if the opportunity arises.

If, for example, an Immigration Judge makes an adverse ruling and a new legal standard arises while proceedings are pending, the immigration practitioner should seek a new ruling, regardless of whether or not a new Immigration Judge has assumed jurisdiction.

It is important to remember that, technically speaking, the motion that must be filed to obtain a new ruling is not a motion to reopen or reconsider.  Both motions to reopen and motions to reconsider are limited to final administrative orders of exclusion, deportation, or removal.  See 8 C.F.R. § 1003.23(b)(1).  Governing regulations do not provide for motions to reopen or reconsider interlocutory decisions.  An interlocutory decision is a decision in immigration proceedings that does not result in a final disposition of proceedings (e.g. a motion to change venue or a motion for adjournment, etc.).

To be technically correct and avoid confusion in the record of proceedings, the immigration practitioner should make a “motion for a new ruling” or “new decision” relating to the specific issue in controversy, such as classification of a specific offense as a particularly serious crime or aggravated felony, etc..  Then be prepared to apply the standard articulated in Renferi Aviles-Tavera v. Merrick Garland to assert that issue preclusion does not apply (e.g. that a demonstratable difference in the applicable legal standard now exists).

An interlocutory appeal is one avenue to pursue if a new ruling is adverse or the motion for a new ruling denied.  However, interlocutory appeals will not always be entertained by the BIA:

In order to avoid the piecemeal review of the many questions which may arise in a deportation proceeding, this Board does not ordinarily entertain interlocutory appeals. See Matter of Ruiz-Campuzano, 17 IN Dec. 108 (BIA 1979); Matter of Ku, 15 IN Dec. 712 (BIA 1976); Matter of Sacco, 15 IN Dec. 109 (BIA 1974). We have on occasion ruled on the merits of interlocutory appeals where we deemed it necessary to address important jurisdictional questions regarding the administration of the immigration laws, or to correct recurring problems in the handling of cases by immigration judges. See Matter of Guevara, 20 IN Dec. 238 (BIA 1990, 1991); Matter of Garcia-Reyes, 19 IN Dec. 830 (BIA 1988); Matter of Rosales, 19 IN Dec. 655 (BIA 1988); Matter of Amico, 19 IN Dec. 652 (BIA 1988); Matter of Correa, 19 IN Dec. 130 (BIA 1984); Matter of Victorino, 18 IN Dec. 259 (BIA 1982); Matter of Alphonse, 18 IN Dec. 178 (BIA 1981); Matter of Wadas, 17 IN Dec. 346 (BIA 1980); Matter of Seren, 15 IN Dec. 590 (BIA 1976); Matter of Fong, 14 IN Dec. 670 (BIA 1974).       

See In the Matter of K-, 20 I&N Dec. 418, at 419-20 (B.I.A. 1991).

Regardless of the outcome of a motion for a new ruling or an interlocutory appeal, the issue will be well preserved in the record for appellate court review.  A prudent immigration practitioner always anticipates appellate court review.

Some readers might benefit from some additional information about the criteria for classifying an offense as a “particularly serious crime” in the context of withholding of removal claims.

Congress provided a statutory bar to withholding of removal under section 241(b)(3)(A) of the Immigration and Nationality Act, as amended (“the Act”) as follows:

Subparagraph (A) does not apply to an alien . . . if the Attorney General decides that – . . . (ii) the alien, having been convicted by final judgement of a particularly serious crime, is a danger to the community of the United States.

For withholding of removal applications, a conviction for an aggravated felony is a particularly serious crime on its face only if a sentence of 5 years or more has been assessed as punishment.  If a withholding of removal applicant has been convicted of multiple aggravated felonies one or more of the aggravated felony convictions will be classified as a crime or crimes that are particularly serious on the face of the record only if all the sentences added together (i.e. aggregate sentences) amount to 5 years or more.  See section 241(b)(3)(B) of the Act; 8 C.F.R. § 1208.16(d)(2), (3). 

Regardless of the 5 year sentence requirement for automatic classification of aggravated felonies as particularly serious crimes, an aggravated felony can nevertheless be classified as a particularly serious crime on a case by case basis.   See section 241(b)(3)(B) of the Act; 8 C.F.R. § 1208.16(d)(2), (3).  The same criteria for case by case classification also applies to asylum applications.

Since the sentence assessed as punishment for an aggravated felony sometimes governs classification of the aggravated felony as a particularly serious crime in the context of a withholding of removal hearing, it is important to realize that actual incarceration is not required for the sentence to be used for the purpose of classifying the aggravated felony as a particularly serious crime: 

Any reference to a term of imprisonment with respect to an offense is deemed to include the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part.

See section 101(a)(48)(B) of the Act.

Section 101(a)(48)(B) of the Act applies to convictions and sentences entered before, on, or after September 30, 1996 (i.e. applicable retroactively).  See section 322(c) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.  Matter of S-S-, 21 I&N Dec. 900 (BIA 1997).

To determine whether an alien has been convicted for a particularly serious crime using a case by case analysis, it is necessary to consider:

1)        the nature of the conviction;

2)        the type of sentence imposed;

3)        the circumstances and underlying facts of the conviction; and

4)        whether the circumstances and underlying facts indicate a danger to the community.

Matter of Frentescu, 18 I&N Dec. 244 (BIA 1982); Matter of S-S-, 22 I&N Dec. 458 (BIA 1999); Matter of N-A-M-, 24 I&N Dec. 336 (BIA 2007).

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