Gabino Jacquez-Perez v. Eric Holder, Jr.

Filing

Per Curiam OPINION filed : we DENY Jacquez-Perez's petition to review the order of the Board of Immigration Appeals, decision not for publication. R. Guy Cole , Jr., Circuit Judge; Ronald Lee Gilman, Circuit Judge and Bernice Bouie Donald, Circuit Judge.

Case: 13-3568

Document: 006111934663

Filed: 01/13/2014

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0013n.06
Case No. 13-3568
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

FILED
GABINO ALONZO JACQUEZ-PEREZ,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.

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Jan 13, 2014
DEBORAH S. HUNT, Clerk

ON PETITION FOR REVIEW
FROM THE UNITED STATES
BOARD OF IMMIGRATION
APPEALS

OPINION

BEFORE: COLE, GILMAN, and DONALD, Circuit Judges.
PER CURIAM. Gabino Jacquez-Perez petitions us to review an administrative decision
by the Board of Immigration Appeals (the “Board”), which affirmed an immigration judge’s
decision that Jacquez-Perez is ineligible for voluntary departure because he was convicted of an
aggravated felony. We deny the petition.
Jacquez-Perez, a citizen of Mexico, entered the United States in 1986 without having
been admitted or paroled. He pleaded guilty in 1989, when he was nineteen years old, to felony
theft for driving a stolen car, for which he received a three-year suspended sentence. Over
twenty-one years later, Immigration and Customs Enforcement (“ICE”) sought to remove
Jacquez-Perez from this country. The agency claimed Jacquez-Perez should be removed under
8 U.S.C. § 1182(a)(6)(A)(i), which prohibits an alien from being admitted to the United States if

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he enters illegally, and 8 U.S.C. § 1182(a)(2)(A)(i)(I), which prohibits an alien from being
admitted if he is convicted of a crime involving moral turpitude. Jacquez-Perez agreed he was
removable under the first charge, and the immigration judge later sustained the second charge.
Jacquez-Perez sought relief from removal under 8 U.S.C. § 1229c, which allows an
eligible alien to leave the country voluntarily rather than be subject to removal proceedings. An
alien is ineligible for such voluntary departure, however, if he has been convicted of an
“aggravated felony.”

8 U.S.C. § 1229c(a)(1), (b)(1)(C) (referencing 8 U.S.C. §

1227(a)(2)(A)(iii)). At the time Jacquez-Perez was convicted, a theft offense resulting in at least
a five-year term of imprisonment was an “aggravated felony.” In 1996, however, Congress
expanded the definition of “aggravated felony” to include theft offenses resulting in at least a
one-year term of imprisonment. Illegal Immigration Reform and Immigrant Responsibility Act
of 1996 (“IIRIRA”), Pub. L. No. 104-208, § 321(a)(3), 110 Stat. 3009-627 (1996).

The

immigration judge found that Jacquez-Perez was ineligible for voluntary departure because his
three-year suspended sentence was an aggravated felony under the statute as revised, and it
ordered his removal to Mexico. Jacquez-Perez reserved right to appeal the aggravated-felony
determination, and he did so. The Board affirmed, and Jacquez-Perez now petitions this court.
The government contends that we lack jurisdiction to review the removal order because
Jacquez-Perez did not present the issue he argues before us to the Board, thereby failing to
exhaust his administrative remedies. See 8 U.S.C. § 1252(d)(1) (“A court may review a final
order of removal only if . . . the alien has exhausted all administrative remedies . . . .”); Bi Xia Qu
v. Holder, 618 F.3d 602, 609 (6th Cir. 2010) (“For an immigrant to exhaust her administrative
remedies, she must properly present her claim to the BIA.”). Though a close call, we find that
we have jurisdiction. In his petition to this court, Jacquez-Perez argues that he is eligible for

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voluntary departure because his theft conviction resulted in a three-year suspended sentence,
which was not considered an aggravated felony at the time of conviction. On appeal to the
Board, Jacquez-Perez noted that he “was given a suspended sentence of 3 years,” arguing that
“this should be not considered an aggravated felony.” Charitably interpreting these statements,
we find that Jacquez-Perez presented his argument to the Board and thus exhausted the
administrative remedies available to him.
Nevertheless, Jacquez-Perez’s petition must fail.

In expanding the definition of

“aggravated felony,” Congress explicitly stated that the expanded definition “applies regardless
of whether the conviction was entered before . . . the date of enactment [September 30, 1996],”
IIRIRA § 321(b) (codified at 8 U.S.C. § 1101(a)(43)), and that the new definition “shall apply to
actions taken on or after the date of the enactment of this Act, regardless of when the conviction
occurred,” id. § 321(c). See also I.N.S. v. St. Cyr, 533 U.S. 289, 318–19 & n.43 (2001) (using
these sections as an example of Congress’s unambiguous intent to apply the expanded definition
retroactively); Tran v. Gonzales, 447 F.3d 937, 941 (6th Cir. 2006) (holding that the expanded
definition of “aggravated felony” applies retroactively in “actions taken” on or after September
30, 1996). Here, the relevant “action taken” is ICE serving Jacquez-Perez with the Notice to
Appear. See Saqr v. Holder, 580 F.3d 414, 422 (6th Cir. 2009). That action occurred years after
1996, so the expanded definition of aggravated felony must apply. Furthermore, we find no
constitutional violation in such retroactivity. See, e.g., Hamama v. I.N.S., 78 F.3d 233, 235 (6th
Cir. 1996) (“The Supreme Court has repeatedly upheld the constitutionality of deportation
proceedings that apply new law to past criminal conduct.”) (citing Lehmann v. United States, 353
U.S. 685, 690 (1957); Marcello v. Bonds, 349 U.S. 302, 314 (1955)).

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Accordingly, we deny Jacquez-Perez’s petition to review the order of the Board of
Immigration Appeals.

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