Renfro v. Holder et al

Filing 26

MEMORANDUM DECISION granting 19 Motion to Dismiss Petition. Signed by Judge Dee Benson on 3/17/16. (jlw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH CENTRAL DIVISION
TATIANA BELASHOVA RENFRO,
Plaintiff,

MEMORANDUM DECISION AND
ORDER GRANTING RESPONDENTS’
MOTION TO DISMISS PETITION FOR
DE NOVO REVIEW

v.
LORETTA E. LYNCH, United States
Attorney General; LAURA K. McNEER,
Field Office Director, Salt Lake City Field
Office, United States Citizenship and
Immigration Services,

Case No. 2:15-CV-224 TS
District Judge Ted Stewart

Respondents.

This matter is before the Court on Respondents’ Motion to Dismiss Petition for De Novo
Review. For the reasons discussed below, the Court will grant Respondents’ Motion.
I. BACKGROUND
Tatiana Belashova Renfro is a native and citizen of Russia. On April 30, 2004, she
became a lawful permanent resident (“LPR”) of the United States. On April 4, 2008, she
pleaded guilty to Retail Theft (Shoplifting), a Class A Misdemeanor, in violation of Utah Code
Ann. § 76-6-602. She was sentenced to 365 days with 363 days suspended, and was ordered to
complete 24 months of probation. She successfully completed probation early on December 5,
2008. On March 2, 2009, she moved the Utah District Court to reduce the degree of her offense
from a Class A to a Class B Misdemeanor, pursuant to Utah Code Ann. § 76-3-402. She sought
this reduction “for employment and eventual expungement purposes.” The court granted the
reduction because Renfro “completed probation successfully.” 1

1

Docket No. 19, at 4.
1

Renfro applied for naturalization on September 10, 2012. Her application was denied
because the U.S. Citizenship and Immigration Services (“USCIS”) found that Renfro was barred
from citizenship because her retail theft conviction qualified as an aggravated felony under 8
U.S.C. § 1101(a)(43)(G), and therefore she could not meet her required burden of proving good
moral character. Renfro requested a hearing, and on December 5, 2014, the USCIS reaffirmed
its denial of Renfro’s naturalization application. Renfro believes that the USCIS has committed
a legal error in determining that, even after the reduction in her charge, the conviction still meets
the definition of an aggravated felony. Renfro now seeks de novo review of the USCIS decision
by this Court under 8 U.S.C. § 1421(c).
II. DISCUSSION
In considering a motion to dismiss for failure to state a claim upon which relief can be
granted under Rule 12(b)(6), all well-pleaded factual allegations, as distinguished from
conclusory allegations, are accepted as true and viewed in the light most favorable to Plaintiff as
the nonmoving party. 2 Plaintiff must provide “enough facts to state a claim to relief that is
plausible on its face,” 3 which requires “more than an unadorned, the-defendant-unlawfully
harmed-me accusation.” 4 “A pleading that offers ‘labels and conclusions’ or ‘a formulaic
recitation of the elements of a cause of action will not do.’ Nor does a complaint suffice if it
tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” 5 “The court’s function on
a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial,

2

GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir.
1997).
3

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

4

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

5

Id. (quoting Twombly, 550 U.S. at 557) (alteration in original).
2

but to assess whether the plaintiff’s complaint alone is legally sufficient to state a claim for
which relief may be granted.” 6
Renfro cannot prevail on her claim as a matter of law. “[I]t has been universally accepted
that the burden is on the alien applicant to show [her] eligibility for citizenship in every
respect.” 7 Any questions about eligibility for citizenship “should be resolved in favor of the
United States and against the claimant.” 8 One of the requirements for naturalization is that the
applicant be of “good moral character.” 9 The applicant must establish that she has met this
requirement by a preponderance of the evidence. 10 However, “[i]n determining whether the
applicant has sustained the burden of establishing good moral character . . . the Attorney General
shall not be limited to the applicant’s conduct during the five years preceding the filing of the
application, but may take into consideration . . . the applicant’s conduct and acts at any time prior
to that period.” 11 Under 8 U.S.C. § 1101(f), certain acts disqualify an applicant from being
regarded as a person of good moral character for immigration purposes. One of these acts is if
the applicant has “at any time . . . been convicted of an aggravated felony (as defined in
subsection (a)(43) of this section).” Subsection (a)(43), explains that, among other things, “[t]he
term ‘aggravated felony’ means . . . (G) a theft offense (including receipt of stolen property) or
burglary offense for which the term of imprisonment [is] at least one year.” The USCIS found
that Renfro’s initial sentence for her theft offense was 365 days, and therefore qualified as an
aggravated felony, and a bar to her proving the good moral character necessary for citizenship.
6

Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991).

7

Berenyi v. Dist. Dir., INS, 385 U.S. 630, 637 (1967).

8

Id.

9

8 U.S.C. § 1427(d).

10

8 C.F.R. § 316.2(b).

11

8 U.S.C. § 1427(e).
3

Renfro argues that the reduction of her offense from a Class A to a Class B Misdemeanor in state
court through Section 76-3-402 of the Utah Code takes Renfro’s offense out of the category of
aggravated felony, thus removing the bar to proving good moral character.
The relevant portions of section 76-3-402 of the Utah Code 12 provide:
(1) If at the time of sentencing the court, having regard to the nature and
circumstances of the offense of which the defendant was found guilty and to the
history and character of the defendant, and after having given any victims present
at the sentencing and the prosecuting attorney an opportunity to be heard,
concludes it would be unduly harsh to record the conviction as being for that
degree of offense established by statute, the court may enter a judgment of
conviction for the next lower degree of offense and impose sentence accordingly.
(2) If the court suspends the execution of the sentence and places the defendant on
probation, whether or not the defendant is committed to jail as a condition of
probation, the court may enter a judgment of conviction for the next lower degree
of offense:
(a) after the defendant has been successfully discharged from probation;
(b) upon motion and notice to the prosecuting attorney;
(c) after reasonable effort has been made by the prosecuting attorney to provide
notice to any victims;
(d) after a hearing if requested by either party under Subsection (2)(c); and
(e) if the court finds entering a judgment of conviction for the next lower degree
of offense is in the interest of justice.
Subsection (1) and (2) give different substantive reasons for why an offense of conviction
may be reduced under the statute. Subsection (1) indicates that a court may reduce the degree of
offense at the time of sentencing when it considers it substantively unfair under the
circumstances. If, a court “concludes it would be unduly harsh to record the conviction as being
for that degree of offense established by statute,” then it can reduce the offense and “impose
sentence accordingly.” 13

12

The sections of the statute at issue here are the same as the 2008 version of the statute
in effect when Renfro’s offense was reduced.
13

Utah Code Ann. § 76-3-402(1).
4

Subsection (2) indicates that a court may reduce the degree of offense retroactively for
rehabilitative purposes such as upon successful completion of probation. In subsection (2) cases,
the reduction is not done at sentencing, but “the courts suspends the execution of the sentence
and places the defendant on probation,” and the court enters the reduced judgment of conviction,
“after the defendant has been successfully discharged from probation.” 14
The Tenth Circuit analyzed the effect of Utah Code Ann. § 76-3-402 on subsequent
immigration proceedings in Cruz-Garcia v. Ashcroft. 15 Cruz-Garcia involved an order of
removal for a conviction involving an aggravated felony. 16 The court held that offenses of
conviction reduced under § 76-3-402 for rehabilitative purposes remain “convictions” for the
purposes of removal under 8 U.S.C. § 1101(a)(48)(A), while those reduced for substantive or
procedural defects do not. 17 The “BIA partially changed its position on vacated or expunged
convictions to allow removal of the convicted alien ‘notwithstanding a subsequent state action
purporting to erase all evidence of the original determination of guilt through a rehabilitative
procedure.’” 18 In other words, a conviction for an aggravated felony vacated “‘on the legal
merits’ could not support removal,” but “expungement ‘through a rehabilitative procedure’”
could. 19 The court determined that subsection (1) of § 76-3-402 “clearly focus[ed] on matters
leading up to and encompassed within the judgment of conviction, not on post-conviction events

14

Id. § 76-3-402(2).

15

396 F.3d 1125 (10th Cir. 2005).

16

An alien is ineligible for cancellation of removal if he has been convicted of an
aggravated felony under the same definition that is used in the context of naturalization.
17

Cruz-Garcia, 396 F.3d at 1128.

18

Id. (quoting In re Roldan-Santoyo, 22 I & N. Dec. 512, 523, 1999 WL 126433 (BIA
1999)).
19

Id. (quoting In re Rodriguez-Ruiz, 22 I. & N. Dec. 1378, 1379–80, 2000 WL 1375514
(BIA 2000)).
5

relating to the subsequent success or failure of rehabilitation.” 20 Therefore, reductions under
subsection (1) erase a “conviction” for the purposes of immigration consequences, but reductions
under subsection (2) do not. Because Renfro’s reduction was entered upon successful
completion of probation, it must fall under subsection (2) and remains a conviction for purposes
of immigration consequences.
The government relies on Cruz-Garcia, but also cites to Esparza-Recendez v. Holder, 21
an unpublished Tenth Circuit case that analyzes the effect of Utah Code Ann. § 76-3-402(2)
upon a crime that would be defined as an aggravated felony for immigration purposes.
“Unpublished decisions are not precedential, but may be cited for their persuasive value.” 22 In
this case, the reasoning in Esparza-Recendez is persuasive. Citing the BIA’s Matter of
Pickering, 23 the Tenth Circuit explained that “[t]he BIA has recognized ‘a significant distinction
between convictions vacated on the basis of a procedural or substantive defect in the underlying
proceedings and those vacated because of post-conviction events, such as rehabilitation or
immigration hardships.’” 24 The court further cited Cruz-Garcia and explained that “any
reduction in offense level pursuant to subsections (1) or (3) [of Utah Code Ann. § 76-3-402]
could preserve [Esparza-Recendez’s] eligibility for cancellation of removal, but a reduction
pursuant to the rehabilitative procedures of subsection (2) would not.” 25 Thus, under both Cruz-

20

Id. at 1131.

21

526 F. App’x. 886 (10th Cir. 2013) (unpublished).

22

10th Cir. R. 32.1.

23

Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003), reversed on other grounds sub
nom., Pickering v. Gonzales, 465 F.3d 263 (6th Cir. 2006).
24

Esparza-Recendez, 526 F. App’x at 890–91 (quoting Matter of Pickering, 23 I. & N.
Dec. at 624).
25

Id. at 891.
6

Garcia and Esparza-Recendez, Renfro’s reduction under subsection (2) does not remove the bar
to proving good moral character under 8 U.S.C. § 1101(f).
Renfro argues that Cruz-Garcia is irrelevant to her case because she concedes that her
conviction is still a “conviction” for immigration purposes, but argues that because the statutory
maximum penalty for a Class B Misdemeanor is only 180 days, she was not convicted of “a theft
offense . . . for which the term of imprisonment [was] at least one year.” Renfro argues that
Cruz-Garcia only applies when sentences are vacated and that § 76-3-402 did not vacate her
conviction for a Class A Misdemeanor and replace it with a conviction for a Class B
Misdemeanor. She argues that, instead, § 76-3-402 functioned as an implicit retroactive sentence
modification reducing her original sentence from 365 days to 180 days.
Renfro cites no Tenth Circuit precedent to support this position but cites inapposite BIA
decisions and a decision of the Ninth Circuit. In Cruz-Garcia, the Tenth Circuit consistently
referred to § 76-3-402 as a statute that vacates a prior conviction in order to lower the offense. 26
Therefore, her reduction vacated the offense of her conviction, but did not modify her sentence.
She provides no independent evidence that the state court concurrently reduced her sentence
when it reduced her offense of conviction or that it did so in a separate action, and it is her
burden to do so. Since the vacatur of her conviction and sentence for rehabilitative purposes
does not erase them for immigration purposes, and she has provided no evidence that the state
court otherwise reduced her original sentence, the USCIS did not err in determining that she has
been convicted of a theft offense for which the term of imprisonment was at least one year. This
qualifies as an aggravated felony under § 1101(a)(43), and bars her from proving the good moral
character necessary for naturalization.

26

Cruz-Garcia, 396 F.3d at 1127–28.
7

III. CONCLUSION
It is therefore
ORDERED that Respondents’ Motion to Dismiss (Docket No. 19) is GRANTED.
The Clerk of the Court is directed to enter judgment in favor of Respondents and against
Petitioner, and close this case forthwith.
DATED March 17th, 2016.
BY THE COURT:

________________________________________
Ted Stewart
United States District Judge

8