Marquez Garcia v.  Holder, No. 08-9579 (10^th Cir., October 27, 2009)

The focus of this case is on an ambiguous record and the burden on an alien to prove that he has not committed a crime of moral turpitude. In the instant case, the petitioner, a native of El Salvador who entered the U.S. illegally in 1997, had pled guilty to third-degree assault in Colorado in 2003.

An alien who commits a “crime of moral turpitude” is ineligible for discretionary relief such as cancellation of removal or temporary protected status. Marquez, as he was referred to in the opinion, entered his plea on a poorly translated Spanish form, and as a result, the record was unclear on whether he was pleading guilty to knowingly or recklessly causing bodily injury. This component is critical in determining whether a crime of moral turpitude has been committed.

Both the government and petitioner conceded that the record was inconclusive regarding intent, and both parties claimed that this ambiguity favored them. The court addressed the shifting burden in a removal case. Where a lawfully admitted alien is charged with removability as a result of a conviction, the government must prove, by clear and convincing evidence, that the alien is removable. In the instant case, though, removability is conceded by the petitioner, and the burden therefore shifts to him “to prove the absence of any impediment to discretionary relief.” The Court held that, despite the record’s ambiguity, Marquez-Garcia had not proven he was eligible for discretionary relief. Despite the fact that the record was ambiguous through no fault of his own, Marquez had failed to meet his burden, and the court denied his petition.

Read opinion here.

Hamilton v. Holder, No. 09-9505 (10^th Cir., October 27, 2009)

Shawn James Hamilton is a Canadian citizen who became a permanent lawful resident of the U.S. in 1993. In 2006, at a removal hearing, Hamilton admitted to a conviction for conspiracy to commit mail fraud, stemming from a scheme between Hamilton and a co-conspirator where the pair burned the co-conspirator’s car to collect insurance. Hamilton sought cancellation of removability, which under 8 USC 1229b(a)(3) required him to show that he had not been convicted of an aggravated felony. The statute criminal statute at issue, 8 U.S.C. 1101(a)(43)(M)(i), defined an aggravated felony as “an offense that… involves fraud or deceit in which the loss to the victim or victims exceeds $10,000.” Hamilton argued that the loss fell below this threshold, as the restitution order limited the victims’ loss to $9,900.

Feeling the record was lacking in regard to the amount of loss, the judge allowed both sides to submit additional evidence. Over Hamilton’s objection, the government submitted evidence which included a presentence investigation report, which reported that the insurance claim amounted to $22,240. Relying on this evidence, the Immigration Judge concluded that the amount of loss was over $10,000 and denied relief. The Board of Immigration Appeals affirmed, holding that the amount of loss may be proven through evidence outside the record, as the amount of loss is not an element of the crime.

The Court of Appeals framed the issue narrowly: whether the Immigration Judge properly used the information in the presentence investigation report to determine the amount of loss. The court agreed with the Board of Immigration Appeals that the compensation award was not determinative of the amount of loss, and that the information and judgment of conviction lacked the amount of loss. As a result, the report was properly received as it, in the Board of Immigration Appeals' words, "provided reliable evidence of the victim's loss."

Hamilton argued that a categorical approach should be applied, that the Immigration Judge and Board of Immigration Appeals were limited in the types of evidence that it could consider, and that the report fell outside of this type of evidence. The Court of Appeals found that petitioner's argument had been foreclosed by a recently decided case, Nijhawan v. Holder. Casting aside a categorical approach, the Supreme Court in Nijhawan found that 8 U.S.C. 1101(a)(43)(M)(i) required a circumstance-specific approach to determining loss, as the statutory language regarding the amount of loss was not an element of the crime, but rather to “particular circumstances in which an offender committed a (more broadly defined) fraud or deceit crime on a particular occasion.” The circumstance-specific approach allows what normally is sentencing-related evidence to prove amount of loss. As Hamilton failed present evidence to rebut the report, he failed to show he had not been convicted of an aggravated felony. The Court of Appeals denied his petition for review.

Read opinion here.

Zorig, et. al. v. Holder, No. 08-9576 (10^th Cir. Oct. 15, 2009)

Petition was filed by a family of four, Mongolian citizens, who filed for asylum based on a fear of persecution based on political opinion.

Despite transitioning to a democratic society in 1990, corruption is rampant in Mongolia, according to a State Department Report published in 2007 and cited by the 10^th Circuit. Petitioner Khatanbaatar Zorig was an active member of a component of the Democratic Coalition Party since 1992, serving as a volunteer board member for his district. When the opposition party took control in 2000, many members of the Democratic Coalition Party, including Zorig, lost land rights acquired between 1996 and 2000.

Zorig was a aeronautical and land engineer employed by MIAT, the government-controlled airline. He also ran a restaurant on property that his grandfather had lived on and that Zorig was leasing, with an eye towards ownership. After the opposition party took power, he found his work hours reduced. In 2003, he was scheduled to go on a 2-month training session, but his boss cancelled his training. Zorig still went, paying his own way; when he returned, he was fired. A few months after being fired, the police began questioning him about the restaurant land and, after, referring to his political membership, accused him of obtaining the land illegally. In July 2003, at police headquarters, Zorig was asked to sign a document giving up his right to the land; when he refused, he was beaten, and ended up in the hospital for two weeks. Zorig abandoned his claim to the land and fled to the U.S. along with his family in September 2003, applying for asylum.

The Immigration Judge denied the petition, characterizing Zorig’s claim of harm inflicted as being based property rights, which is not a protected grounds. The Judge attributed the harm not to the political affiliation, but simply to the fact that people wanted his land and attributed his firing to downsizing by the company. On appeal, the Board of Immigration Appeals affirmed.

The Court of Appeals decision addressed the contention that an incorrect standard was applied to the evidence. Zorig presented a “mixed motive” case, where “the applicant need not show persecution solely on account of a protected ground, but must demonstrate that at least one of the persecutor’s motives falls within a statutorily protected ground.” The burden is on the petitioner to provide sufficient evidence to show a connection between the harm and the protected ground. The Court found that the Board of Immigration Appeals applied the proper standard; it never required Zorig to show mistreatment was for political reasons only. Rather, Zorig failed to demonstrate that his mistreatment was even partially motivated by political opinion.

The Court found that substantial evidence supported the Board of Immigration Appeals’ finding that absent his land claim, Zorig would not have suffered his mistreatment.

Read the full opinion here.

Herrera-Castillo v. Holder, No. 08-9538 (10th Cir. July 27, 2009)

Lucero, TYMKOVICH, and Holmes

Herrera, a native of Mexico who entered without inspection, claimed eligibility for adjustment of status under INA § 245(i) based on his April 2001 marriage to a U.S. citizen.  The IJ found Herrera inadmissible for 10 years under INA § 212(a)(9)(B)(i)(II) as an alien unlawfully present for more than one year. Even though the court concluded that Herrera was ineligible for adjustment of status under § 245(i), it granted a waiver of inadmissibility due to extreme hardship to Herrera’s wife and child.  The government appealed, and the BIA affirmed the IJ’s determination that Herrera was inadmissible and therefore ineligible for AOS. In addition, the BIA also reversed the IJ’s determination that Herrera qualified for an inadmissibility waiver. 

The interplay between § 245(i) and inadmissibility caused by more than one year of unlawful presence was a matter of first impression before the Court. The Court of Appeals deferred to the BIA’s interpretation that aliens inadmissible due to unlawful presence do not qualify for § 245(i) AOS, absent a waiver, as articulated in Lemus-Losa, 24 I. & N. Dec. 373 (BIA 2007).  Noting the ambiguity inherent in § 245(i)—it allows EWIs to apply for AOS, yet permits the AG to adjust the status only of those deemed admissible—the Court found reasonable the BIA’s interpretation that the statute grants an implicit waiver of inadmissibility, but only for those encompassed by the § 212(a) “savings clause.”  The clause states that “[e]xcept as otherwise provided in this chapter, aliens who are inadmissible . . . are ineligible . . . to be admitted to the United States.”  The BIA held that § 245(i) falls within the scope of the savings clause.  However, the BIA concluded that for the more specific sections of § 212(a), including the penalty for accruing more than one year of unlawful presence, § 245(i) does not ordinarily permit AOS.  The BIA justified its disparate treatment of the § 212(a) provisions by noting that the purpose of the unlawful presence provision was to punish those who were more than simply present in the U.S. without being admitted.  The Court found that the BIA’s interpretation was not arbitrary, capricious, or manifestly contrary to the statute. 

Finally, the Court dismissed Herrera’s equal protection claim as waived for failing to comply with FRAP 28(a) and declined to address, for lack of jurisdiction to review, the BIA’s decision to deny Herrera’s request for an extreme hardship waiver.

Read opinion here.