Elias Alfonso Juarez-Gonzalez v. Atty Gen USA

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Elias Alfonso Juarez-Gonzalez v. Atty Gen USA

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Case: 09-1790

Document: 003110292634

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Date Filed: 09/23/2010

N O T PRECEDENTIAL U N IT E D STATES COURT OF APPEALS F O R THE THIRD CIRCUIT ___________ N o . 09-1790 ___________ E L IA S ALFONSO JUAREZ-GONZALEZ, P E T IT I O N E R v. A T T O R N E Y GENERAL UNITED STATES, R ESPO N D EN T ____________________________________ O n Petition for Review of an Order of the Board of Immigration Appeals Immigration Judge: Honorable Frederic Leeds (Agency No. A075-445-182) ____________________________________ S u b m itte d Pursuant to Third Circuit LAR 34.1(a) on April 7, 2009; R e su b m itte d Pursuant to Third Circuit LAR 34.1(a) on Panel Rehearing on May 24, 2010 B e f o re : SCIRICA, SMITH and WEIS, Circuit Judges (Opinion filed: August 2, 2010) ___________ O P IN IO N ___________ P E R CURIAM. E lia s Alfonso Juarez-Gonzalez, a citizen and native of Mexico, petitions th is Court for review of a final removal order entered by the Board of Immigration

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A p p e a ls ("BIA"). For the reasons that follow, we will deny the petition for review. I. J u a re z -G o n z a le z entered the United States without permission in 1993 at th e age of seventeen. In 1997, he became a lawful permanent resident. On January 3, 2 0 0 3 , the Superior Court of New Jersey, Hudson County, convicted Juarez-Gonzalez f o llo w in g his plea of guilty to one count of criminal restraint in the third degree in v io la tio n of N.J. Stat. Ann. § 2C:13-2, for which he was sentenced to three years of p ro b a tio n . In 2006, Juarez-Gonzalez departed the United States for a short time and, u p o n return, the Department of Homeland Security charged him as removable under 8 U .S .C . § 1182(a)(2)(A)(i)(I) for having been convicted of a crime involving moral tu rp itu d e . Before the Immigration Judge ("IJ") Juarez-Gonzalez conceded his re m o v a b ility on the ground charged and applied for a waiver of inadmissibility under IN A § 212(h), 8 U.S.C. § 1182(h).1 T h e IJ determined that Juarez-Gonzalez's conviction for criminal restraint c o n stitu te s a "violent or dangerous crime," a point that Juarez-Gonzalez's counsel did not

Under INA § 212(h), the Attorney General may, as a matter of discretion, waive the in a d m is s ib ility of, among others, an alien convicted of a crime involving moral turpitude if "it is established to the satisfaction of the Attorney General that the alien's denial of a d m iss io n would result in extreme hardship to the United States citizen or lawfully re s id e n t spouse, parent, son, or daughter of such alien[.]" 8 U.S.C. § 1182(h)(1)(B). Juarez-Gonzalez has two United States citizen minor children. He does not reside with th e children or their mothers, but he has established that he provides some financial s u p p o rt to each child. 2

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d is p u te . A.R. at 48-50, 154-55. As a result of this finding, the IJ held that JuarezG o n z a le z could not qualify for a § 212(h) waiver unless he made a heightened showing of a n "exceptional and extremely unusual hardship" to his citizen children, in accordance w ith 8 C.F.R. § 1212.7(d).2 The IJ held that Juarez-Gonzalez failed to show the requisite h a rd s h ip based on the evidence presented. J u a re z -G o n z a le z retained new counsel and appealed to the BIA. He listed three issues for review in his notice of appeal: (1) the IJ used an incorrect legal standard in determining whether Juarez-Gonzalez met the burden of proof for a waiver of inad m issib ility; (2) the IJ failed to consider material evidence that supported a waiver, a n d gave improper weight to immaterial evidence, and (3) the IJ considered facts not in e v id e n c e , erred in assuming facts, and denied "a full and fair hearing." A.R. at 34. In his b rie f to the BIA, Juarez-Gonzalez argued that the IJ erred (1) in finding that he committed a violent or dangerous crime without first examining New Jersey law regarding the

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8 C.F.R. § 1212.7(d) provides in relevant part: T h e Attorney General, in general, will not favorably exercise d isc re tio n ... to consent to an application ... for ... admission to th e United States ... with respect to immigrant aliens who are in a d m i s s ib le under [8 U.S.C. § 1182(a)(2)] in cases involving v io len t or dangerous crimes, except in extraordinary c irc u m sta n c e s, such as ... cases in which an alien clearly d e m o n s tra te s that the denial of the application for ... a d m i s s io n as an immigrant would result in exceptional and e x tre m e ly unusual hardship.

8 C.F.R. § 1212.7(d); see also 8 C.F.R. § 212.7(d) (setting forth same provision). 3

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e le m e n ts of the offense, (2) in choosing to apply the exceptional and extremely unusual h a rd sh ip standard rather than the lesser extreme hardship standard, and (3) in its d is c re tio n a ry analysis of the factors for a waiver set forth in Matter of Marin, 16 I & N D ec . 581 (BIA 1978). T h e BIA dismissed the appeal, agreeing with the IJ that Juarez-Gonzalez d o e s not merit a § 212(h) waiver. It observed that Juarez-Gonzalez's brief did not address h is claims that the IJ had failed to consider certain evidence and had denied a full and fair h e a rin g , which had been listed as issues for review in the notice of appeal. The BIA held th e se issues waived and, alternatively, summarily dismissed them. Turning to the merits o f the § 212(h) request, the BIA explained that, where an alien has been convicted of a v io le n t or dangerous crime, he or she must show an exceptional and extremely unusual h a rd s h ip under 8 C.F.R. § 1212.7(d) to qualify for a waiver. The BIA held that JuarezG o n za lez committed a violent or dangerous crime. It noted that Juarez-Gonzalez's c o u n se l had conceded that point before the IJ, which the BIA viewed as a binding judicial a d m is s io n and a waiver of the issue. Moreover, the BIA reviewed the statute of c o n v ic tio n and case law interpreting it, and it concluded on the merits that JuarezG o n za lez's crime, "at a minimum, qualifies as a dangerous crime." A.R. at 3. It o b s e rv e d that, even if non-violent, "criminal restraint must be imposed against the will of the victim and pose a danger to the victim." Id. at 4. Finally, the BIA affirmed the IJ's d e te rm in a tio n that Juarez-Gonzalez failed to show an exceptional and extremely unusual

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h a rd s h ip . Juarez-Gonzalez timely filed this petition for review. II. W e must first consider our jurisdiction over the petition for review. See B o n h o m e tre v. Gonzales, 414 F.3d 442, 447 (3d Cir. 2005) ("We begin, as we always m u s t when reviewing agency determinations, with a determination of whether we have s u b je c t matter jurisdiction to consider [petitioner]'s claims."). As the Government c o rre c tly notes, we lack jurisdiction to review the discretionary decision to deny a waiver o f inadmissibility under § 212(h). See 8 U.S.C. § 1252(a)(2)(B)(i); Mendez-Moranchel v. A s h c ro f t, 338 F.3d 176, 179 (3d Cir. 2003). However, we retain jurisdiction insofar as th e petitioner seeks review of constitutional claims or questions of law. See 8 U.S.C. § 1252(a)(2)(D); Jarbough v. Att'y Gen., 483 F.3d 184, 188 (3d Cir. 2007). J u a re z -G o n z a le z raises two arguments in this Court. First, he contends that th e BIA should have applied a categorical analysis to determine whether his conviction f o r criminal restraint is a crime involving moral turpitude, which Juarez-Gonzalez seems to view a predicate finding to a determination of whether the crime is violent or d a n g e ro u s under § 1212.7(d). As we understand this first argument, Juarez-Gonzalez is a s k in g this Court to review both the determination that his offense constitutes a crime in v o lv in g moral turpitude, and the determination that his offense is a violent or dangerous c rim e . Second, Juarez-Gonzalez contends that he was denied due process because his p rio r counsel allegedly provided ineffective assistance by conceding two critical issues

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b e f o re the IJ: (1) that the offense was a crime involving moral turpitude, thereby re n d e rin g Juarez-Gonzalez removable as charged, and (2) that the offense is a violent or d a n g e ro u s crime, thereby subjecting him to the heightened exceptional and extremely u n u su al hardship standard for obtaining a § 212(h) waiver.3 W e are satisfied that Juarez-Gonzalez raises legal and constitutional claims th a t fall within the scope of our jurisdiction. The Government, for its part, does not seem to dispute that there is jurisdiction under § 1252(a)(2)(D). It argues, however, that the p e t itio n for review should be dismissed because Juarez-Gonzalez failed to exhaust a d m in is tra tiv e remedies in accordance with 8 U.S.C. § 1252(d)(1), and/or because he w a iv e d review before the IJ. Respondent's Br. at 11-14. Juarez-Gonzalez responds that th e exhaustion requirement is satisfied because the BIA, sua sponte, raised the issue of c o u n se l's concession that the crime is violent or dangerous, and it reached the merits on th a t question by holding that the crime, at a minimum, is dangerous. B e c au s e "issue exhaustion as required by § 1252(d)(1) is a jurisdictional ru le ," Hoxha v. Holder, 559 F.3d 157, 159 n.3 (3d Cir. 2009), we address that question b e f o re proceeding further. Under § 1252(d)(1), "[a] court may review a final order of re m o v a l only if ... the alien has exhausted all administrative remedies available to the a lien as of right[.]" We have held that "a petitioner is deemed to have exhausted all

"A claim of ineffective assistance of counsel in removal proceedings is cognizable u n d e r the Fifth Amendment ­ i.e., as a violation of that amendment's guarantee of due p roc ess." Fadiga v. Att'y Gen., 488 F.3d 142, 155 (3d Cir. 2007). 6

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a d m in is tra tiv e remedies, and thereby preserves the right of judicial review, if he or she ra is e s all issues before the BIA." Lin v. Att'y Gen., 543 F.3d 114, 120-121 (3d Cir. 2008) (c ita tio n s and quotation marks omitted). "We do not, however, apply this principle in a d ra c o n ia n fashion," id. at 121, and "so long as ... petitioner makes some effort, however in s u f f ic ie n t, to place the Board on notice of a straightforward issue being raised on a p p e al, a petitioner is deemed to have exhausted her administrative remedies." Id. (q u o ta tio n marks omitted); see also Hoxha, 559 F.3d at 160 (noting that our case law " in s tru c t[ s] that our focus [in addressing exhaustion] must be on the nature of the notice p rov ided to the BIA by both the Notice of Appeal and any brief filed with the BIA"). In Lin, we held that "the BIA's consideration of an issue is sufficient to p ro v id e us with jurisdiction over that issue" even if the petitioner failed to raise the issue at any time before the BIA. 543 F.3d at 123 n.7. We noted that "it is within the [BIA]'s d is c re tio n to determine when to dismiss summarily an appeal for lack of specificity and w h e n the BIA is sufficiently apprised of the applicable issues to entertain the appeal." Id. a t 124. If the BIA should elect to address an issue on the merits sua sponte (as it did in L in ), we generally will deem the exhaustion requirement satisfied. Id. at 126. A p p lyin g these principles here, we conclude that Juarez-Gonzalez satisfied th e exhaustion requirement on the question whether his crime is violent or dangerous

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u n d e r § 1212.7(d).4 Juarez-Gonzalez argued in his brief to the BIA that the IJ had erred in holding that the offense is violent or dangerous because such a determination can be m a d e only after a review of the elements of the offense. While the legal theory behind th e argument presented to the BIA differs somewhat from the theory that he now p ro p o u n d s in this Court, Juarez-Gonzalez made clear that he wished to challenge the v io le n t or dangerous determination. The BIA, moreover, addressed that determination on th e merits and held that the crime, at a minimum, is dangerous. Although it noted that c o u n se l had conceded that finding before the IJ, the BIA chose to address the issue, and its discussion of the merits reflects that it was "sufficiently apprised of the applicable is s u e [ ] to entertain the appeal." Lin, 543 F.3d at 124. Exhaustion, therefore, having been

We reject, however, Juarez-Gonzalez's argument that he satisfied the exhaustion re q u ire m e n t with regard to the IJ's finding that his offense is a crime involving moral tu rp itu d e . Juarez-Gonzalez conceded that he is removable for having committed a crime in v o lv in g moral turpitude; the IJ held him removable on that basis; Juarez-Gonzalez did n o t challenge that determination in either his notice of appeal or his brief to the BIA; and th e BIA did not address the issue sua sponte. Consequently, the issue cannot be deemed e x h a u ste d given the absence of any notice to the BIA. While Juarez-Gonzalez argues that h e did, in fact, challenge the moral turpitude finding in his brief to the BIA, the record is c le a r that he did not. His argument in the brief was that the IJ's finding regarding the v io le n t or dangerous nature of the offense was "arbitrary, subjective, and contrary to" B IA decisions, and that his offense had to qualify as an aggravated felony under 8 U.S.C. § 1101(a)(43)(F) (which defines as an aggravated felony "a crime of violence ... for w h ic h the term of imprisonment [is] at least one year") in order to justify application of th e exceptional and extremely unusual hardship standard. See A.R. at 13-14. Even a m o s t generous reading of this argument does not suggest that it put the BIA on notice of a c h a lle n g e to the finding that Juarez-Gonzalez is inadmissible and removable because he c o m m itte d a crime involving moral turpitude under 8 U.S.C. § 1182(a)(2)(A)(i)(I). Thus, w e lack jurisdiction to review the moral turpitude determination, and we do not address that issue further. See Wu v. Att'y Gen., 571 F.3d 314, 317 (3d Cir. 2009). 8

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sa tisf ied , we turn to the merits of whether the BIA erred in holding that the offense is d a n g e r o u s .5 I I I. W h e re , as here, the BIA agrees with the IJ's analysis and adds analysis of its own, we review the decisions of both the BIA and the IJ. See Sandie v. Att'y Gen., 5 6 2 F.3d 246, 250 (3d Cir. 2009). We review factual determinations under the substantial e v id e n c e standard, accepting those determinations as conclusive unless "`any reasonable a d ju d ic a to r would be compelled to conclude to the contrary.'" Id. at 251 (quoting 8 U .S .C . § 1252(b)(4)(B)). Our review of legal determinations is de novo, "subject to e sta b lis h e d principles of deference." Wang v. Ashcroft, 368 F.3d 347, 349 (3d Cir. 2004) (citing Chevron v. Nat. Res. Def. Council, 467 U.S. 837, 844 (1984)). We afford d e f ere n c e to the agency's interpretation of its regulations, Zegrean v. Att'y Gen., 602 F .3 d 273, 275 (3d Cir. 2010), while "we owe no deference to [its] interpretation of a state crim inal statute." Partyka v. Att'y Gen., 417 F.3d 408, 411 (3d Cir. 2005).

Juarez-Gonzalez's second claim before this Court ­ that he was denied due process w h e n counsel, allegedly ineffectively, conceded that the crime was violent or dangerous ­ is unexhausted. Juarez-Gonzalez concedes that he did not raise that issue before the BIA, a n d the BIA did not address the issue sua sponte. In any event, the claim fails on the m e rits . As will be discussed in the text, the BIA did not err in holding that JuarezG o n z a le z 's crime is dangerous. Consequently, a due process challenge based on c o u n se l's failure to contest that issue is without merit, as Juarez-Gonzalez cannot show p re ju d ic e from counsel's action. See Fadiga, 488 F.3d at 155 (explaining that alien c laim in g denial of due process must show "(1) that he was prevented from reasonably p rese n tin g his case and (2) that substantial prejudice resulted") (quotation marks omitted). 9

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J u a re z -G o n z a le z challenges the BIA's analysis of the statute under which h e was convicted, suggesting that New Jersey law leaves open the possibility that his o f f e n s e is not a dangerous crime, and therefore not within the purview of § 1212.7(d). See Petitioner's Br. at 19. We discern no reversible error.6 T h e New Jersey statute outlawing criminal restraint provides in relevant p a rt that "[a] person commits a crime of the third degree if he knowingly ... [r]estrains a n o th e r unlawfully in circumstances exposing the other to risk of serious bodily injury[.]" N.J. Stat. Ann. § 2C:12-2(a). New Jersey courts recognize that "criminal restraint f u n c tio n s as a lesser included offense of kidnapping," State v. Savage, 799 A.2d 477, 492 (N .J. 2002), and the offense differs from, and is more serious than, false imprisonment in th a t criminal restraint in the third-degree "requires that the restraint be in circumstances ex p o sing the other to risk of serious bodily injury." Id. at 494 (quotation marks omitted). Ju a re z -G o n z a lez has not shown that it is inconsistent with § 1212.7(d) to

To the extent that Juarez-Gonzalez seeks to fault the BIA for failing to apply a " c ate g o ric a l approach," his argument is rejected. Juarez-Gonzalez cites no authority for the proposition that the BIA must apply a categorical approach when analyzing whether a c rim e is violent or dangerous within the meaning of 8 C.F.R. § 1212.7(d). In any event, th e BIA here looked to the language of the statute of conviction, and not to JuarezG o n z a lez 's conduct, in asking whether his crime is violent or dangerous, and its analysis e ss e n tia lly comported with the type of categorical approach that Juarez-Gonzalez a d v o c a tes . See Partyka, 417 F.3d at 411 (discussing categorical approach as applied to d e te rm in e whether crime involves moral turpitude). While Juarez-Gonzalez speculates th a t the BIA might have conducted "a more thorough categorical analysis" had it not been f o r his counsel's concession before the IJ that the crime is violent or dangerous, P etitio n er's Br. at 19, such speculation does not warrant a remand of this matter. 10

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d e f in e his offense as dangerous. Under § 2C:12-2(a), Juarez-Gonzalez pled guilty to a c rim e in which he acted against the will of his victim through restraint and exposed the v ictim to a risk of serious bodily injury. Even assuming, as the BIA did, that the crime is n o n -v io le n t, but cf. United States v. Parson, 955 F.2d 858, 873 (3d Cir. 1992) (holding th a t violation of Delaware's reckless endangerment statute constitutes "crime of violence" f o r purposes of U.S.S.G. § 4B1.1), the danger inherent in the offense, through the risk of se rio u s bodily injury to the victim, is apparent. Juarez-Gonzalez offers no plausible in te rp re ta tio n to the contrary. The Attorney General adopted § 1212.7(d) to aid in the consideration of w a iv e r applications, and in particular to guide the agency's exercise of discretion in d e c id in g whether to consent to an inadmissible alien's request for admission. See S a m u e ls v. Chertoff, 550 F.3d 252, 257 (2d Cir. 2008) (explaining that "in promulgating S e c tio n 1212.7(d), the Attorney General exercised the authority given to him by Congress to set the standards that will guide the exercise of discretion that follows after the alien s h o w s `extreme hardship'"); Mejia v. Gonzales, 499 F.3d 991, 996 (9th Cir. 2007) (noting th a t Attorney General "promulgated [the] regulation to guide IJs in the way they exercise their relatively unfettered grant of discretion after the statutory requirements are met").7 A s such, § 1212.7(d) distinguishes aliens who commit "violent or dangerous crimes" and

We note that Juarez-Gonzalez raises no challenge in this Court to the validity of § 1212.7(d), and thus we do not address any such issue. 11

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requires them to make a heightened showing of an exceptional and extremely unusual h a rd sh ip . As one court has observed, "[t]he heightened standard is rationally related to th e national immigration policy of not admitting aliens who could be a danger to society." Mejia, 499 F.3d at 996. We cannot conclude here that BIA contravened this policy, or e x c e e d its authority, in determining that Juarez-Gonzalez's crime is a dangerous one. Consequently, it did not err in requiring him to show an exceptional and extremely u n u su al hardship as a prerequisite to a § 212(h) waiver. IV . F o r the foregoing reasons, we will deny the petition for review. This C o u rt's Order provisionally staying Juarez-Gonzalez's removal is hereby vacated.

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