Libby Bianco v. Eric Holder, Jr.

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PUBLISHED OPINION FILED. [09-60597 Affirmed] Judge: EBC , Judge: LHS , Judge: CH. Mandate pull date is 12/10/2010 [09-60597]

Libby Bianco v. Eric Holder, Jr.

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
October 19, 2010 N o . 09-60597 Lyle W. Cayce Clerk

L IB B Y ROMERO BIANCO, P e titio n e r v. E R I C H. HOLDER, JR., U.S. ATTORNEY GENERAL, R espon dent

P e t itio n for Review of an Order of the Board of Immigration Appeals

B e fo r e CLEMENT, SOUTHWICK, and HAYNES, Circuit Judges. L e s lie H. Southwick, Circuit Judge: L ib b y Bianco petitions for review of the Board of Immigration Appeals' (" B I A " ) affirmance of a final order of removal. Bianco contends the BIA

im p r o p e r ly searched outside the records of her prior state court conviction to d e t e r m in e she had committed a "crime of domestic violence" under 8 U.S.C. § 1 2 2 7 (a )(2 )(E )(i). The petition is DENIED. I . STATEMENT OF FACTS B ia n c o is a citizen of Venezuela who was first admitted to the United S t a te s as a nonimmigrant in 2001. She became a lawful permanent resident on J a n u a r y 10, 2005.

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No. 09-60597 O n November 21, 2007, the Department of Homeland Security (" D e p a r t m e n t ") filed a Notice to Appear for Bianco. It alleged that her

" a d m is s io n " ­ a term we will explain ­ to the United States occurred in 2005 w h e n she became, conditionally, a lawful permanent resident. It also alleged t h a t on October 27, 2006, she was convicted in Pennsylvania of aggravated a s s a u lt and possessing an instrument of crime, i.e., something made or adapted fo r criminal use, with intent to employ it criminally. See 18 PA. CONS. STAT. §§ 9 0 7 & 2702(a)(4). Bianco was charged with removability as an alien convicted o f a crime involving moral turpitude. See 8 U.S.C. § 1227(a)(2)(A)(i)(I). I n a hearing before an Immigration Judge ("IJ"), Bianco admitted her n a t io n a lit y and citizenship but denied the other factual allegations in the Notice t o Appear. She also denied the charge of removability. The Department

s u b m it t e d evidence that she had been convicted in Pennsylvania state court of a g g r a v a t e d assault for stabbing Mark Bianco in April 2006. Libby Bianco would b e removable if she committed a crime of moral turpitude within five years "after t h e date of admission." Id. The IJ determined that because the aggravated a s s a u lt was committed within five years of the date of Bianco's adjustment of s t a t u s in 2005, she was removable as charged. On appeal, the BIA applied a decision of this court that an adjustment of s t a t u s by an alien who was previously admitted as a nonimmigrant is not an "admission" under the immigration laws. Martinez v. Mukasey, 519 F.3d 532, 5 4 2 -4 6 (5th Cir. 2008). Because there was no evidence in the record concerning t h e date of Bianco's admission for purposes of the five-year statutory period, the B I A remanded for the IJ to determine the date of Bianco's admission. P e r h a p s aware that the five-year requirement for removal based on a c r im e of moral turpitude could not be met, on remand the Department filed a s e c o n d charge of removability. Newly alleged was that Bianco was removable a s an alien convicted of a crime of domestic violence after admission, which does 2

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No. 09-60597 n o t have the five-year limitation. See 8 U.S.C. § 1227(a)(2)(E)(i). Evidence that t h e victim of Bianco's assault was her husband derived from records of the P e n n s y lv a n ia proceedings, and included the police criminal complaint and an a ffid a v it of probable cause. T h e IJ found on remand that Bianco had been admitted on February 10, 2 0 0 1 . The aggravated assault was committed in April 2006, more than five y e a r s after her admission. Therefore, the crime of moral turpitude was too dated t o use as a basis for removal. T h e IJ then rejected Bianco's argument that the Department could not file s u p p le m e n t a l charges after a remand from the BIA. The IJ also held that the D e p a r t m e n t met its burden to prove Bianco was convicted of aggravated assault, a crime that satisfied the definition of a "crime of violence" under 18 U.S.C. § 1 6 (a ). The record was found to contain sufficient evidence that Bianco's crime w a s committed against her spouse, even though the victim being her husband w a s not an element of the offense. The IJ held that evidence from outside the r e c o r d of the criminal proceeding could be used to determine the relationship b e tw e e n Bianco and her victim. Consequently, the IJ ordered Bianco removed fo r having committed a crime of domestic violence. T h e BIA affirmed. Bianco now seeks reversal. I I . DISCUSSION T h e only issues on appeal are legal ones. We review the BIA's conclusions o f law de novo. Zhu v. Gonzales, 493 F.3d 588, 594 (5th Cir. 2007). B ia n c o alleges two points of error in the BIA's dismissal of her appeal. First, she contends the BIA erred in concluding that her conviction for a g g r a v a t e d assault constituted a crime of domestic violence pursuant to Section 1 2 2 7 (a )(2 )(E )(i). She complains the BIA either should have limited its review to t h e statutory elements of her prior conviction or, at most, to a small category of e v id e n c e that would not include the affidavit of probable cause and the criminal 3

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No. 09-60597 c o m p la in t . To be clear, Bianco does not deny that her husband was the victim o f the assault. The issue is whether proof of the domestic relationship must a p p e a r in certain limited records of the conviction. In her second point of error, Bianco insists that the Department ought not h a v e been permitted to lodge an additional charge after the case was remanded b y the BIA. We now consider the arguments in that order. A. Evidence used to determine the domestic nature of her crime Bianco argues that the evidence used to prove her marriage to the victim o f her assault was inadmissible. She urges us to apply to this fact issue the p r in c ip le that evidence supporting the details of a prior conviction must in some c ir c u m s t a n c e s come solely from the statute of conviction or, if the statute c o n t a in s multiple offenses, from certain other documents contained in the record o f the conviction. See Larin-Ulloa v. Gonzales, 462 F.3d 456, 463-64 (5th Cir. 2 0 0 6 ). The "categorical approach" of examining only the statute of conviction, a n d the "modified categorical approach" of looking at a limited set of documents a p a r t from the conviction itself, apply in several contexts when a prior conviction h a s relevance to a current order against the individual. Id. W e have applied the modified categorical approach to determine whether a prior offense committed by an alien was a crime involving moral turpitude. Amouzadeh v. Winfrey, 467 F.3d 451, 455 (5th Cir. 2006). We wrote that our s e a r c h is for the "inherent nature of the crime, as defined in the statute . . . r a t h e r than the circumstances surrounding the particular transgression." Id. (q u o tin g Okabe v. INS, 671 F.2d 863, 865 (5th Cir. 1982)). When the statute of c o n v ic t io n has discrete subsections, some involving crimes of moral turpitude a n d others not, we look at the record of conviction to determine which subsection a p p lie d . Id. Appropriate documents to examine include the charging document s u c h as an indictment, a written plea agreement, a plea colloquy transcript, and a n y factual finding explicitly made by the trial judge and assented to by the 4

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No. 09-60597 d e fe n d a n t . Nolos v. Holder, 611 F.3d 279, 285 (5th Cir. 2010). These limitations a r e drawn from Supreme Court authority that applied the Armed Career C r im in a l Act. Shepard v. United States, 544 U.S. 13, 15-16 (2005) (applying 18 U .S .C . § 924(e)). To prove the nature of a prior relevant conviction under that A c t , the Court permitted introduction only of the "records of the convicting court a p p r o a c h in g the certainty of the record of conviction," as such documents avoid m in i-t r ia ls on the issues and satisfy concerns that the relevant facts have been fo u n d by a jury or were confirmed by the defendant. Id. at 23-26.1 B ia n c o argues the same limited evidence must be the source of any proof t h a t her conviction was for domestic violence. The immigration statute in q u e s t io n provides that an "alien who at any time after admission is convicted of a crime of domestic violence . . . is deportable." 8 U.S.C. § 1227(a)(2)(E)(i). The s t a t u t e also defines "crime of domestic violence" to be: a n y crime of violence (as defined in section 16 of Title 18) against a p e r s o n committed by a current or former spouse of the person, by an i n d iv id u a l with whom the person shares a child in common, by an i n d i v id u a l who is cohabitating with or has cohabitated with the p e r s o n as a spouse, by an individual similarly situated to a spouse o f the person under the domestic or family violence laws of the ju r is d ic t io n where the offense occurs . . . . Id . Bianco does not challenge that her aggravated assault conviction is a c r im e of violence. She does argue, though, that because nothing in the record of c o n v ic t io n identifies the victim as her husband, the offense cannot qualify for t h e s e purposes as one of domestic violence.

The Supreme Court recently considered whether prior multiple misdemeanor drug offenses were collectively an "aggravated felony" that would prevent a lawful permanent resident from applying for discretionary cancellation of removal. Carachuri-Rosendo v. Holder, 130 S. Ct. 2577, 2580 (2010). The Court found the operative factual question to be whether the person had been convicted of a misdemeanor drug possession offense that had as an element the fact of a prior misdemeanor possession offense. Id. at 2589.

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No. 09-60597 T h e Pennsylvania statute under which Bianco was convicted provided s e v e n alternative methods by which the offense could be committed. 18 PA. C ONS. STAT. § 2702(a)(1) - (7). Bianco was charged under subsection (4), which p r o v id e s that a person who "attempts to cause or intentionally or knowingly c a u s e s bodily injury to another with a deadly weapon" is guilty of aggravated a s s a u lt. Id. at § 2702(a)(4). This subsection was cited in the charging

in s t r u m e n t , and the charge itself tracked the statutory language. Focusing on t h e specific relevant elements of this Pennsylvania statute does not bring into v ie w any required domestic relationship between perpetrator and victim. Thus, n e ith e r the categorical nor the modified categorical approach give the answer to w h e t h e r Bianco committed a crime of domestic violence. Our answer is not found in any precedent in this circuit. The Ninth C ir c u i t has dealt with the same issue of categorizing a prior state criminal c o n v ic t io n under the Section 1227(a)(2)(E) definition of a crime of domestic v io le n c e . See Tokatly v. Ashcroft, 371 F.3d 613 (9th Cir. 2004). It determined t h a t a categorical or modified categorical approach must be applied strictly to t h e entire definition of a crime of domestic violence. Id. at 620-21. The court h e ld that where the domestic relationship is not apparent from the statutory d e fin it io n itself or from a limited record of conviction, the court is "compelled to h o ld that the government has not met its burden of proving that the conduct of w h ic h the defendant was convicted constitutes a predicate offense, and the c o n v ic t io n may not be used as a basis for removal." Id. T h e Ninth Circuit's resolution of this issue is entitled to respectful c o n s id e r a t i o n . We must, though, view that court's analysis in light of two

s u b s e q u e n t Supreme Court decisions that arguably opened the door to a new " c ir c u m s t a n c e - s p e c ific " approach. See United States v. Hayes, 129 S. Ct. 1079 (2 0 0 9 ); Nijhawan v. Holder, 129 S. Ct. 2294 (2009). In Nijhawan, the Supreme C o u r t examined a statute declaring that an "alien who is convicted of an 6

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No. 09-60597 a g g r a v a t e d felony at any time after admission is deportable." 8 U.S.C. § 1 2 2 7 (a )(2 )(A )(iii). The relevant definition of "aggravated felony" was "an offense t h a t . . . involves fraud or deceit in which the loss to the victim or victims exceeds $ 1 0 ,0 0 0 ." Nijhawan, 129 S. Ct. at 2297 (quoting 8 U.S.C. § 1101(a)(43)(M)(i)). At issue was whether the amount-of-loss language referred to an element that c o u ld be proved by information extrinsic to the statute of conviction. Id. at 2298. The Court concluded that it referred not to a necessary element but to the p a r tic u la r circumstances in which the offense occurred on a particular occasion. Id. Thus, instead of confining itself only to the statute to determine whether the p r io r conviction qualified as a predicate offense, the Court "look[ed] to the facts a n d circumstances underlying an offender's conviction." Id. at 2299. T h e Court's embrace of a "circumstance-specific" approach was motivated b y a recognition that the immigration statute differed from the Armed Career C r i m i n a l Act, the statute at issue in the cases that announced both the c a t e g o r ic a l and the modified categorical approach. Id. at 2300; see Taylor v. U n ite d States, 495 U.S. 575 (1990); Shepard, 544 U.S. at 16. The Armed Career C r im in a l Act referred to generic crimes, such as "burglary, arson, or extortion"; t h e "aggravated felony" statute referred to circumstances-specific offenses, such a s a particular act "committed for commercial advantage." Nijhawan, 129 S. Ct. a t 2300-01 (emphasis omitted). T h e Nijhawan Court concluded that applying a strict categorical approach w o u ld leave the statute little meaningful application, as there were few widely a p p lic a b le fraud statutes specifying a threshold amount for conviction. Id. at 2 3 0 1 . Additionally, a majority of states had no major fraud or deceit statute w it h a monetary threshold when Congress passed the law. Id. at 2302. In determining whether the conviction involved the requisite amount of lo s s , the Court emphasized the importance of "fundamentally fair procedures." Id. at 2303. The Court explained its conclusion in several ways. Because the 7

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No. 09-60597 p r o o f of an amount of loss was not generally necessary in the relevant prior c o n v ic t io n s but was necessary for the immigration statute, the respondent must b e given an opportunity to contest evidence of the amount. Id. The Court noted t h a t the categorical approach was developed to determine which of potentially n u m e r o u s statutory elements applied to the prior conviction. Id. Conversely, C o n g r e s s had determined that the amount of loss in a fraud conviction would be r e le v a n t for purposes of removal even though the relevant amounts would rarely b e an element in the statute of conviction. Id. at 2301-03. The Court also d is t in g u is h e d the Armed Career Criminal Act cases on the fact that the removal p r o c e e d in g s were civil in nature, and proof beyond a reasonable doubt was not r e q u ir e d . Id. at 2303. B a s e d on these considerations, the Court allowed the use of "earlier s e n te n c in g -r e la t e d material" such as "defendant's own stipulation" and "[t]he c o u r t's restitution order." Id. The other recent Supreme Court decision relevant here examined a statute t h a t prohibited those convicted of a misdemeanor crime of domestic violence fr o m possessing firearms or ammunition. Hayes, 129 S. Ct. at 1082 (analyzing 1 8 U.S.C. § 922(g)(9)). The Court held that the criminal statute under which the d e fe n d a n t was earlier convicted need not have as a specific element that the a c c u s e d and victim be in a domestic relationship. Id. at 1087. The Court reached this conclusion by first engaging in statutory analysis. Id. at 1084-87. It examined closely the definition of "misdemeanor crime of d o m e s t ic violence," which is "an offense that . . . has, as an element, the use or a t t e m p t e d use of physical force, or the threatened use of a deadly weapon, c o m m it t e d by a current or former spouse . . . ." Id.; 18 U.S.C. § 921(a)(33)(A)(ii). Significantly, the Court explained that use of "the word `element' in the singular . . . suggests that Congress intended to describe only one required element." Hayes, 129 S. Ct. at 1084. The offender's action and the offender's relationship 8

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No. 09-60597 a r e "conceptually distinct attributes[,]" and if Congress intended to make both a n element, it "likely would have used the plural `elements' . . . ." Id. (citations o m itte d ). T h e Court also examined application of the "rule of the last antecedent," w h e r e b y "a limiting clause or phrase . . . should ordinarily be read as modifying o n ly the noun or phrase that it immediately follows." Id. at 1086 (quotation m a r k s and citation omitted). Application of this rule would lead to "two unlikely p r e m is e s : that Congress employed the singular `element' to encompass two d is t in c t concepts, and that it adopted the awkward construction `commi[t]' a `u s e .'" Id. (citation omitted). T h e Court next analyzed the practical considerations underlying C o n g r e s s 's choice to extend the gun possession ban to persons convicted of m is d e m e a n o r crimes of domestic violence. Id. at 1087-88. Congress found that fir e a r m s were not being kept out of the hands of domestic abusers because such p e r s o n s were frequently not convicted of felonies. Id. at 1087. In passing the b a n , Congress sought "to close this dangerous loophole" in its firearm p r o h ib it io n s . Id. (quotation marks and citation omitted). T h is analysis led the Court to conclude that interpreting the statute "to e x c lu d e the domestic abuser convicted under a generic use-of-force statute (one t h a t does not designate a domestic relationship as an element of the offense) w o u ld frustrate Congress' manifest purpose." Id. Further, the Court observed that "[a]s of 1996, only about one-third of the S t a te s had criminal statutes that specifically proscribed domestic violence." Id. Domestic abusers were "routinely prosecuted under generally applicable assault o r battery laws." Id. Given the relative dearth of state and federal statutes s p e c ific a lly targeting domestic violence, the Court found it highly unlikely that C o n g r e s s intended to limit its gun prohibition only to persons convicted under

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No. 09-60597 la w s making the domestic relationship an element of the predicate offense. Id. a t 1087-88. W e now examine the statute relevant to this appeal. It begins by allowing t h e Attorney General to order the removal of an alien who "is within one or more o f the following classes" of individuals. 8 U.S.C. § 1227(a). The first subpart lis t s classes of aliens who were inadmissible at the time of their initial entry or w h o fit certain other categories. Id. at (a)(1). The second statutory subpart is e n tit le d "Criminal offenses." Id. at (a)(2). Along with such sections as "General c r im e s ," and "Controlled substances" crimes is a section on "Crimes of domestic v io le n c e . . . ." Id. at (a)(2)(E). We elide and combine the statutory language to provide the following la n g u a g e to interpret: "Any alien . . . in and admitted to the United States shall, u p o n the order of the Attorney General, be removed if the alien . . . at any time a ft e r admission is convicted of a crime of domestic violence . . . ." Id. Applying Hayes, we seek an understanding of whether the relevant crime m u s t have as an "element" that the victim have been in a domestic relation with t h e defendant. 129 S. Ct. at 1087. From the statutory language quoted, we k n o w the alien must have been "convicted" of a crime of domestic violence. A " `c r im e of domestic violence' means any crime of violence (as defined in section 1 6 of Title 18) against a person committed by a current or former spouse of the p e r s o n . . . ." 8 U.S.C. § 1227(a)(2)(E)(i). The parenthetically-cited statute p r o v id e s that a "crime of violence" includes "an offense that has as an element t h e use, attempted use, or threatened use of physical force against the person or p r o p e r t y of another . . . ." 18 U.S.C. § 16(a). The only use of the word "element" in the entire statutory array is in r e q u ir in g an element of violence. Bianco makes no argument that the

P e n n s y lv a n ia crime failed to include an appropriate element of violence. The

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No. 09-60597 d e fin it io n of a "crime of domestic violence" speaks of a crime of violence c o m m itte d by someone in a domestic relationship. A plain reading of the statute reveals a requirement that the offense of c o n v ic t io n have elements of the use, attempted use, or threat of force, which m u s t be proved, as appropriate, by the categorical or modified categorical a p p r o a c h . The crime also must have been committed by a person in the correct d o m e s t ic status, though the prior crime need not have the domestic relationship a s an element. Besides statutory interpretation, the Court in Hayes articulated certain p r a c t ic a l considerations. Hayes, 129 S. Ct. at 1087-88. Congress was identifying a factor in a crime ­ domestic violence ­ that may not often be an element in s t a t e criminal statutes. Applying the categorical or modified categorical

a p p r o a c h would frustrate Congress's purpose. Id. at 1087. That reasoning a p p lie s here, too. Of particular importance to us is that statutes specifically describing c r im e s of domestic violence are relatively scarce. Id. Most perpetrators are p r o s e c u t e d in state court under general assault and battery laws. Id. A

c a t e g o r ic a l approach would render the crime of domestic violence as a basis for r e m o v a l under Section 1227(a)(2)(E)(i) inapplicable in about one-half of the S t a te s . Id. n.8. By making the operation of the provision "so limited and so h a p h a za rd " as to undermine its purpose, such an interpretation is unreasonable. Nijhawan, 129 S. Ct. at 2302. B a s e d on these precedents, we conclude that under Section 1227(a), a c r im e of domestic violence need not have as an element the domestic relation of t h e victim to the defendant. We also conclude that the government has the b u r d e n to prove the domestic relationship by clear and convincing evidence, u s in g the kind of evidence generally admissible before an immigration judge. Id. a t 2303. The alien may present contrary evidence. 11

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No. 09-60597 A d m it t e d ly , there are variables that can make the considerations id e n tifie d in Hayes and Nijhawan not always a clean fit to the facts of a p a r tic u la r removal. For example, a state may adopt statutes that have explicit e le m e n t s of domestic violence. If the alien could have been convicted under a s p e c ific domestic violence crime but was instead convicted under a general one, p e r h a p s due to a plea bargain, would that affect the result? Additionally, Bianco a r g u e s that the Section 1227 definition of the domestic relationship is not lim it e d to marriage. See 8 U.S.C. § 1227(a)(2)(E)(i). At times, proof of the d o m e s t ic relationship may be neither clear nor unchallenged.2 H o w these and other considerations should be weighed is for future cases t h a t properly present them. They do not affect our result. T o be clear, the categorical and modified categorical approaches remain t h e analysis in the areas of their traditional application, including a court's a p p lic a t io n of those approaches to identifying the elements of offenses for which a lie n s may be removed under Section 1227(a)(2). We have determined that the domestic relationship that must exist for a p p lic a t io n of Section 1227(a)(2)(E)(i) can be proven by evidence generally a d m is s ib le for proof of facts in administrative proceedings. Bianco specifically c o m p la in s about the use of the affidavit of probable cause and criminal com p la in t to establish the domestic relationship. Those documents identified the v ic t im as Bianco's husband. Both the probable cause affidavit and the criminal c o m p la in t credibly established the spousal relationship. Importantly, Bianco admitted repeatedly in her pleadings that the victim o f her aggravated assault was her husband. The sentencing sheet shows that s h e was sentenced to make restitution to her husband and was ordered to
At the hearing before the IJ, an I-751 form was introduced indicating that Libby Bianco's marriage to Mark Bianco was the basis for her conditional residence in the United States. The record indeed is replete with references to the marriage. There may at times be factual doubt about a domestic relationship, but there is none here.
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No. 09-60597 p a r tic ip a t e in a domestic violence program. There was sufficient, admissible

p r o o f that Bianco had been convicted of a crime of domestic violence. B. F ilin g a new charge of removability after remand from the BIA B ia n c o argues that the BIA erred in permitting an additional charge to be file d with the IJ after the remand. The new charge is the one we have been d is c u s s in g ; namely, that Bianco was guilty of a crime of domestic violence. Applicable regulations authorized this new charge to be filed. "At any time d u r in g the [deportation or removal] proceeding, additional or substituted c h a r g e s of inadmissibility and/or deportability and/or factual allegations may be lo d g e d by the Service in writing." 8 C.F.R. § 1240.10(e). Bianco seems to c o n c e d e as much but argues the IJ is free to consider all new matters unless the B I A qualifies or limits the remand for a specific purpose. See Matter of Patel, 16 I . & N. Dec. 600 (BIA 1978). She asserts that the BIA limited the remand in her c a s e for the specific purpose of considering evidence demonstrating her date of a d m is s io n to the United States. W e look at the remand order to decide if this is correct. The BIA

r e m a n d e d not only for determining the date of Bianco's admission, but also "for t h e entry of such further orders as may be necessary and appropriate under the c ir c u m s t a n c e s ." The BIA's guidance to IJs is that "unless the Board qualifies or lim it s the remand for a specific purpose, the remand is effective for the stated p u r p o s e and for consideration of any and all matters which the Service officer d e e m s appropriate in the exercise of his administrative discretion . . . ." Id. at 6 0 1 . Here, the BIA did not limit the purpose of the remand. There was no error in permitting the additional charge. T h e petition for review is DENIED.

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