Ochieng v. Mukasey (10th Cir. 3/19/08)

MCKAY Kelley Anderson

The 10th Cir upheld the IJ finding that offense was child abuse, finding earlier proceedings were not res judicata, deferring to the Board's definition of child abuse, and finding that state court minute orders clarified typographic error as to section of offense.

http://ca10.washburnlaw.edu/cases/2008/03/07-9530.pdf

Facts: Admitted as LPR in 2003, committed act of "injury to a child" in 2005.  BIA granted first appeal, remanded to IJ, then DHS produced additional state court info.

1. Where BIA issued single-member opinion, that is the basis for review.

   In both matters, the BIA issued its own brief single-member order. Thus, we review the BIA’s orders, and “will not affirm on grounds raised in the IJ decision unless they are relied upon by the BIA in its affirmance.” Uanreroro v. Gonzales, 443 F.3d 1197, 1204 (10th Cir. 2006). “However, when seeking to understand the grounds provided by the BIA, we are not precluded from consulting the IJ’s more complete explanation of those same grounds.” Id.

2.  Found that one state court record was clearly a typographical error, permitted use of subsequent minute order to clarify the issue.

   It was not error for the IJ to rely on the May 9 minute order because, in determining the existence of a conviction, an IJ may rely on “[a]n official record of plea, verdict, and sentence,” 8 U.S.C. § 1229a(c)(3)(B)(i), “[o]fficial minutes of a court proceeding or a transcript of a court hearing in which the court takes notice of existence of the conviction,” id. § 1229a(c)(3)(B)(iv), or “[a]ny document or record prepared by, or under the direction of, the court in which the conviction was entered that indicates the existence of a conviction,” 8 C.F.R. § 1003.41(a)(6).

3.  No res judicata as to earlier BIA remand, because no final administrative decision.

   As the BIA stated, the admission of the May 9, 2005, minute order was not barred by res judicata because there had not yet been a final adjudication in the removal proceeding. See MACTEC, Inc. v. Gorelick, 427 F.3d 821, 831 (10th Cir. 2005) (noting that the first element of res judicata is “a final judgment on the merits in an earlier action”). After the IJ’s first decision, the BIA remanded for further proceedings, so at the time of the second hearing there was no final judgment to which res judicata could attach. Further, the BIA specifically provided in its remand order that “[i]n the remanded proceedings, the parties shall be permitted an opportunity to present further evidence regarding the respondent’s removability and any removal relief for which he may be eligible.” Admin. R. at 83.

4.  Suggested that reliance on complaint and summons might be ok, but unnecessary to decide that point.

   As for the documents (a complaint, a summons, and police reports) that Mr. Ochieng argues were incorrectly admitted and examined, the IJ specifically noted that he had not considered the police reports in making his findings. Id. at 77. And there is no indication that the BIA relied upon the complaint or summons, but even if the BIA did rely on those documents, it is not clear that such reliance would be error. See Vargas v. Dep’t of Homeland Sec., 451 F.3d 1105, 1109 (10th Cir. 2006) (holding that, in some circumstances, courts may look to reliable judicial records, such as the charging document, to determine the factual basis for a plea). In any event, the BIA’s decision is supported by substantial evidence that is sufficient to prove a conviction, namely, the two minute orders discussed above.

5.  Deferred to BIA interpretation of "child abuse" in Matter of Rodriguez-Rodriguez.

   In a case determining whether an offense constituted an aggravated felony under 8 U.S.C. § 1101(a)(43)(A) because it qualified as “sexual abuse of a minor,” the BIA defined “child abuse” as “any form of cruelty to a child’s physical, moral or mental well-being.” In re Rodriguez-Rodriguez, 22 I. & N. Dec. 991, 996 (BIA 1999) (quotation and parentheses omitted). The BIA applied that definition in this case as well. Like the Eighth Circuit, “[w]e see no basis to conclude that the BIA acted unreasonably in employing this common legal definition of ‘child abuse’” in a case under § 1227(a)(2)(E)(i). Loeza-Dominguez, 428 F.3d at 1158. We also see no basis to conclude that the BIA erred in determining that the minimum behavior required for a conviction under Idaho Code Ann. § 18-1501(1) satisfies § 1227(a)(2)(E)(i). See Young, 64 P.3d at 299 (“A plain reading of section 18-1501(1) indicates that its purpose is to punish conduct or inaction that intentionally causes a child to suffer.”); id. (noting that § 18-1501(1) does not reach “good faith decisions that turn out poorly–innocent mistakes in judgment”).

6.  Lozada issues were irrelevant, because Petitioner was removable in any event.

Atty: Pro se

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