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Gutierrez v. Sessions

United States Court of Appeals, Sixth Circuit

April 16, 2018

Miriam Gutierrez, Petitioner,
Jefferson B. Sessions, III, Attorney General, Respondent.

          On Petition for Review from the Board of Immigration Appeals; No. A 035 381 061.

          Alicia J. Triche, TRICHE IMMIGRATION LAW, Memphis, Tennessee, for Petitioner.

          Sarah Byrd, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

          Before: SILER, BATCHELDER and DONALD, Circuit Judges.


          BERNICE BOUIE DONALD, Circuit Judge.

         Petitioner Miriam Gutierrez ("Gutierrez"), a Lawful Permanent Resident ("LPR"), seeks judicial review of the Board of Immigration Appeals ("BIA") affirmance of the Immigration Judge's ("IJ") denial of her application for cancellation of removal under 8 U.S.C. § 1229b(a), and granting the motion of the Department of Homeland Security ("DHS") to pretermit the application on the grounds that Gutierrez failed to establish that her convictions were not aggravated felonies. An LPR who has been "convicted" of an "aggravated felony" is disqualified from cancellation under § 240A(a)(3) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1229b(a)(3). In this appeal, we are called upon to decide, where an alien was convicted under a divisible criminal statute and the record is inconclusive as to whether the conviction was for an aggravated felony, whether such inconclusiveness defeats the alien's eligibility for relief or, rather, should be construed in the alien's favor, thereby establishing eligibility. For the reasons stated herein, we DENY the petition and AFFIRM the BIA's order.


         Gutierrez, a native and citizen of Bolivia, has been an LPR since her admission to the United States in 1980. Pertinent to the present appeal, she was convicted in 2012 for two counts of credit card theft in violation of Virginia Code § 18.2-192(1), after entering a guilty plea.[1]Gutierrez also had prior convictions for petty larceny, Virginia Code § 18.2-96 (in January 2009), and for prescription fraud, Virginia Code § 18.2-258.1 (in March 2012).

         In March 2012, DHS initiated removal proceedings against Gutierrez by serving her with a Notice to Appear ("NTA") in Immigration Court. The NTA charged her with removability pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii), based on her convictions for petty larceny and prescription fraud, considered as crimes involving moral turpitude. At an October 2014 hearing, Gutierrez admitted the NTA's allegations and conceded her removability.

         Gutierrez applied for cancellation of removal pursuant to 8 U.S.C. § 1229b(a). DHS moved to pretermit Gutierrez's application for relief, based on statutory ineligibility because she had been convicted of an aggravated felony. Specifically, DHS argued that Gutierrez's 2012 credit card theft conviction[2] was an aggravated felony theft offense under 8 U.S.C. § 1101(a)(43)(G). DHS noted that Gutierrez had not provided proof that her credit card convictions were not for an aggravated felony. Following a hearing in February 2015, the IJ found that Gutierrez had failed to carry her burden of proving the absence of a disqualifying theft aggravated felony conviction. Therefore, the IJ concluded that Gutierrez was ineligible for relief, and granted DHS' motion to pretermit.

         Gutierrez then appealed to the BIA. She did not contest removability; she argued that the Virginia credit card theft statute was overbroad and indivisible and thus "[could] []not serve as [a] predicate offense[]" under 8 U.S.C. § 1101(a)(43)(G).[3] In the alternative, Gutierrez argued that even if the statute were "subject to the modified categorical approach, " her inconclusive record of conviction should be construed in her favor.

         The BIA "employ[ed] the 'categorical approach'" to determine whether Gutierrez's state conviction qualified as a theft aggravated felony under 8 U.S.C. § 1101(a)(43)(G). At the first step, the BIA found Virginia Code § 18.2-192(1) "overbroad vis-à-vis the 'theft offense' concept" because the statute contained at least one subdivision, (1)(c), under which "a person can be convicted . . . absent proof of an 'intent to deprive' the rightful owner of the property." At the second step of the analysis, the BIA determined that the section was divisible because its subdivisions "criminalize[d] diverse acts, committed with different mental states." At the third step, given that the evidence showed that the 8 U.S.C. § 1229b(a)(3) "aggravated felony bar 'may apply'" to Gutierrez's application for relief, the BIA applied 8 C.F.R. § 1240.8(d) and required Gutierrez to "prove by a preponderance of the evidence that the bar [was] inapplicable." Gutierrez could meet this burden "by producing conviction records indicating that she was charged and pled guilty under section 18.2-192(1)(c)" rather than under another subdivision. However, the BIA noted that the only conviction-related records Gutierrez supplied were "silent as to the subdivision under which she was convicted, " and the resulting "inconclusiveness of the conviction record necessarily inure[d]to her detriment." The BIA concluded that Gutierrez was "removable as charged based on her concession, and [was] ineligible for cancellation of removal because she did not prove that she 'has not been convicted of any aggravated felony, ' as required by [8 U.S.C. § 1229b(a)(3)]." The BIA dismissed Gutierrez's appeal and granted the DHS motion to pretermit her application. This timely appeal followed.


         As a threshold matter we note that while 8 U.S.C. § 1252(a)(2)(C) bars our "jurisdiction to review any final order of removal against an alien who is removable by reason of having committed" a crime of moral turpitude, subparagraph (C) does not "preclud[e] review of constitutional claims or questions of law" in a petition for review. Id. § 1252(a)(2)(D). We review such claims de novo. See Trela v. Holder, 607 F. App'x 527, 531 (6th Cir. 2015). Where the BIA reviews the IJ's decision and issues a separate opinion, rather than summarily affirming the IJ's decision, we review the BIA's decision as the final agency determination. Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2009) (citing Morgan v. Keisler, 507 F.3d 1053, 1057 (6th Cir. 2007)). We review de novo an agency's determinations of questions of law. Khozhaynova v. Holder, 641 F.3d 187, 191 (6th Cir. 2011) (citing Zhao v. Holder, 569 F.3d 238, 246 (6th Cir. 2009)).



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