Contreras-Bocanegra v. Holder, Jr. , 376 F. App'x 817 ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
April 26, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
JESUS CONTRERAS-BOCANEGRA,
Petitioner,
v. No. 09-9521
(Petition for Review)
ERIC H. HOLDER, JR.,
United States Attorney General,
Respondent.
ORDER AND JUDGMENT *
Before HARTZ, McKAY, and ANDERSON, Circuit Judges.
Petitioner Jesus Contreras-Bocanegra seeks judicial review of the denial of
his application for cancellation of removal under 8 U.S.C. § 1229b. In the
alternative, he asks us to hold this appeal in abeyance pending a decision on his
motion to reopen, which is currently before the Board of Immigration Appeals
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
(BIA). We see no reason to abate the appeal and deny that request. For the
reasons explained below, we also deny the petition for review.
I. BACKGROUND
Mr. Contreras 1 is a native and citizen of Mexico. Although he claims to
have lived in the United States since the early 1980s, he first gained formal status
in 1987 when he was admitted as a temporary resident. His status was adjusted to
that of a permanent resident alien in 1989. In 1991 Mr. Contreras pleaded guilty
in Utah state court to attempted possession of cocaine. He was fined and received
a 12-month suspended sentence.
In 2004 federal agents stopped Mr. Contreras at a Los Angeles airport as he
was attempting to reenter the United States after a brief trip abroad. He was later
served with a Notice to Appear charging him with being removable because of the
1991 conviction. See 8 U.S.C. § 1182(a)(2)(A)(i)(II) (rendering inadmissible any
alien convicted of a controlled-substance violation). Mr. Contreras conceded
removability, but filed an application for cancellation of removal under
§ 1229b(a).
[C]ancellation of removal is a discretionary form of relief that allows
the Attorney General to cancel the removal order of a removable
alien. To qualify for cancellation of removal, an alien must satisfy
three elements: (1) the alien must have been lawfully admitted for
permanent residence for not less than five years, 8 U.S.C.
§ 1229b(a)(1); (2) the alien must have resided in the United States
1
We follow the petitioner’s lead in referring to himself simply as
Mr. Contreras, rather than Mr. Contreras-Bocanegra.
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continuously for 7 years after having been admitted in any status, id.
§ 1229b(a)(2); and (3) the alien may not have been convicted of any
aggravated felony, id. § 1229b(a)(3).
Torres de la Cruz v. Maurer, 483 F.3d 1013, 1019–20 (10th Cir. 2007) (internal
quotation marks omitted). The immigration judge (IJ), however, ruled that
Mr. Contreras had failed to meet the residency requirement of § 1229b(a) and
ordered his removal.
The IJ’s conclusion was based on § 1229b(d)(1), the so-called “stop-time
rule.” The stop-time rule was enacted as part of the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 (IIRIRA), and provides “a
methodology to calculate an alien’s continuous physical presence or residence in
the United States and thus determines whether an alien has been here long enough
to be eligible for cancellation of removal.” Torres de la Cruz, 483 F.3d at 1020.
The rule provides in relevant part that “any period of continuous residence or
continuous physical presence in the United States shall be deemed to end (A) . . .
when the alien is served a notice to appear . . . or (B) when the alien has
committed [a controlled substance] offense.” § 1229b(d)(1). Because Mr.
Contreras committed such an offense in 1991, only four years after his admission
into the United States, the IJ concluded that the stop-time rule precluded him
from accruing the seven years of continuous residence required by § 1229b(a)(2).
Although it appears from the transcript of the proceedings that the denial of
cancellation was based solely on Mr. Contreras’s failure to meet the seven-year
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requirement, see Admin. R. at 72–83, the IJ’s oral decision also said that
Mr. Contreras had failed to meet the five-year requirement set forth in
§ 1229b(a)(1). Id. at 26 (“[R]espondent has not been lawfully admitted to the
United States as a permanent resident for not less than five years. . . .”). The
government therefore contends that Mr. Contreras was denied relief on both
grounds.
Mr. Contreras filed a timely notice of appeal with the BIA, challenging the
IJ’s retroactive application of the stop-time rule to his 1991 conviction. Although
he checked a box in the notice of appeal indicating that he would file a supporting
brief, he failed to do so. Consequently, his entire argument before the BIA was
contained in one short paragraph in the notice, which stated: “The immigration
judge did not apply the standard for cancellation of removal adequately. The
immigration judge applied laws of 1996 retroactively to a conviction of 1991
when it’s a violation of rights to apply them in such a manner.” Id. at 35. The
BIA rejected this argument and “agree[d] with the Immigration Judge’s finding
that the ‘stop-time’ rule preclude[d] [Mr. Contreras’s] eligibility for cancellation
of removal, notwithstanding the date of his criminal conviction.” Id. at 3. In so
ruling, the BIA noted that a decade earlier in In re Perez, 22 I. & N. Dec. 689
(BIA 1999), it had upheld application of the stop-time rule to a pre-IIRIRA
conviction and that it had recently reaffirmed that decision in In re Robles-Urrea,
24 I. & N. Dec. 22 (BIA 2006). It also cited cases from the Second, Fifth, and
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Ninth Circuits, along with our decision in Torres de la Cruz, as general support
for its decision to allow retroactive application of the stop-time rule.
Mr. Contreras’s petition for review seeks an order overruling the BIA and
holding that the stop-time rule cannot be applied retroactively to convictions
obtained before IIRIRA’s enactment. 2 The government opposes relief on two
grounds. The first is procedural. It asserts that the IJ concluded that
Mr. Contreras had failed to meet two independent requirements for eligibility for
cancellation of removal: (1) the requirement of lawful admission as a permanent
resident for five years and (2) the requirement of continuous residence in this
country for seven years. On appeal to the BIA, however, Mr. Contreras
challenged only the IJ’s finding as to the seven-year requirement, thereby failing
to exhaust his administrative remedies with respect to the five-year requirement.
Therefore, argues the government, we cannot grant relief because Mr. Contreras is
barred from challenging the permanent-residence ground for the denial of his
application for cancellation of removal. Alternatively, the government argues that
the BIA correctly applied the stop-time rule to Mr. Contreras’s 1991 conviction.
2
Mr. Contreras has apparently filed with the BIA a motion to reopen based
on ineffective assistance of counsel, arguing that his prior counsel should have
insisted upon a hearing to determine whether he could establish an earlier date of
entry into the United States. See Aplt. Br. at 1, 5–7. But because that motion is
currently pending, he concedes that he has not exhausted his ineffective-
assistance claim. Id. at 6 (citing Galvez Pineda v. Gonzales, 427 F.3d 833,
837–38 (10th Cir. 2005)). Accordingly, we will not address it.
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II. DISCUSSION
A. Five-Year-Permanent-Residence Requirement
First we address the government’s argument that we must deny relief
because Mr. Contreras failed to appeal to the BIA the IJ’s ruling that he had not
satisfied the five-year-permanent-residence requirement of § 1229b(a). We reject
the argument, because the government cannot rely on the IJ’s permanent-
residence ruling. The BIA dismissed Mr. Contreras’s appeal in a substantive,
albeit short, opinion in accordance with the procedure set forth in 8 C.F.R.
§ 1003.1(e)(5). See generally Uanreroro v. Gonzales, 443 F.3d 1197, 1203–04
(10th Cir. 2006) (outlining the differences between methods of BIA decision-
making and the implications for appellate review). Under these circumstances, it
would be improper for us to “affirm on grounds raised in the IJ decision unless
they [were] relied upon by the BIA in its affirmance.” Id. at 1204. Uanreroro
held that “[a]s long as the BIA decision contains a discernible substantive
discussion, . . . [this court’s] review extends no further, unless [the BIA decision]
explicitly incorporates or references an expanded version of the same reasoning
below.” Id. Here, the BIA did not acknowledge, much less rely on, the IJ’s
finding that Mr. Contreras had failed to meet the permanent-residence
requirement of § 1229b(a)(1). The BIA’s affirmance was based exclusively on
application of the stop-time rule to the seven-year requirement of § 1229b(a)(2).
See Admin. R. at 2–3 (referring to Mr. Contreras’s period of “continuous”
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residence). Under these circumstances Uanreroro precludes us from denying
relief on the permanent-residence ground.
B. Seven-Year-Continuous-Residence Requirement
1. Jurisdiction
Before addressing the merits of Mr. Contreras’s challenge to the IJ’s
decision regarding his seven-year continuous residence, we consider a potential
impediment to our jurisdiction, which we may raise sua sponte. See Conrad v.
Phone Directories Co., 585 F.3d 1376, 1380 (10th Cir. 2009). Our concern is
Mr. Contreras’s failure to file a brief in his appeal to the BIA. As a general
proposition, “neglecting to take an appeal to the BIA constitutes a failure to
exhaust administrative remedies as to any issue that could have been raised,
negating the jurisdiction necessary for subsequent judicial review.” Torres de la
Cruz, 483 F.3d at 1017 (internal quotation marks and alteration omitted).
Relevant here, we have held that “general statements in the notice of appeal to the
BIA are insufficient to constitute exhaustion of administrative remedies.” Id. at
1018. But fortunately for Mr. Contreras, although he failed to brief his argument
before the BIA, it nonetheless opted to resolve his appeal on the merits and
rendered a substantive discussion of the seven-year-continuous-residence issue.
We therefore conclude that he has exhausted his administrative remedies with
respect to that issue. See Sidabutar v. Gonzales, 503 F.3d 1116, 1120–1122
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(10th Cir. 2007) (exhaustion requirement is satisfied if the petitioner raised the
issue or if the BIA actually decided the issue).
We also note that “[a]lthough we generally lack jurisdiction to review
denials of discretionary relief, see 8 U.S.C. § 1252(a)(2)(B), . . . this court always
retains jurisdiction to review constitutional claims and questions of law.” Garcia
v. Holder, 584 F.3d 1288, 1289 n.2 (10th Cir. 2009). The denial of relief in this
case turned on the BIA’s purely legal determination that the stop-time rule must
be applied retroactively to a conviction obtained before the rule’s enactment. We
have jurisdiction to review this legal determination.
2. Merits
Mr. Contreras’s petition contends that applying the stop-time rule to bar
cancellation of removal is impermissibly retroactive in his case. This court has
previously rejected a constitutional attack when the stop-time rule was applied to
bar discretionary relief under § 1229b because of a prior conviction. See Torres
de la Cruz, 483 F.3d at 1021–22 (upholding the rule against equal-protection and
substantive-due-process challenges). The conviction in Torres de la Cruz did not
predate the enactment of IIRIRA, however, and therefore retroactive application
of the statute was not at issue. Nonetheless, Mr. Contreras apparently believes
that Torres de la Cruz mandates a denial of relief in his case. See Aplt. Br. at 5
(“This Court has supported the BIA in finding the stop-time rule was not
impermissibly retroactive.” (citing Torres de la Cruz)). But he urges us to
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“revisit” Torres de la Cruz, id. at 5, 7, and instead adopt the Ninth Circuit’s
reasoning in Sinotes-Cruz v. Gonzales, 468 F.3d 1190 (9th Cir. 2006), in which
the court held that it was impermissible to apply the stop-time rule retroactively
in the circumstances of that case.
As a general matter, we do not consider arguments that are inadequately
briefed, see Bronson v. Swensen, 500 F.3d 1099, 1104–05 (10th Cir. 2007), as
when a proposition stated in the table of contents or in a section heading is not
followed by any supporting analysis. See id. at 1105 (“[C]ursory statements,
without supporting analysis and case law, fail to constitute the kind of briefing
that is necessary to avoid application of the forfeiture doctrine”). We could
dispose of the retroactivity issue on that ground because Mr. Contreras’s brief on
appeal contains almost no discussion of the issue. His argument of less than one
page does little more than baldly state that we should overrule the BIA and
categorically bar application of the stop-time rule to convictions obtained before
IIRIRA’s passage. There is no supporting analysis, and his brief does not even
attempt to explain why applying the stop-time rule is fundamentally unfair in this
case. Nevertheless, the brief does cite Sinotes-Cruz, which thoughtfully presents
arguments concerning retroactivity. We will exercise our discretion to consider
whether we should follow that decision and grant relief to Mr. Contreras.
Before discussing Sinotes-Cruz, we note that at least one circuit has held
that § 1229b(d)(1)(B) unambiguously applies to convictions predating IIRIRA.
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See Heaven v. Gonzales, 473 F.3d 167 (5th Cir. 2006). Were we to follow that
circuit, we would reject the holding in Sinotes-Cruz. We need not go so far,
however, because, as we shall see, Sinotes-Cruz restricted its nonretroactivity
holding to a limited set of circumstances, and Mr. Contreras has made no effort to
show that his case comes within that set.
Sinotes-Cruz pleaded guilty to two nondeportable offenses in 1993, only
five years after being admitted into the United States. Upon IIRIRA’s effective
date, the offenses became deportable, and in 2000 Sinotes-Cruz was placed in
removal proceedings. The IJ denied his request for cancellation of removal,
concluding that he was ineligible for relief because his 1993 convictions stopped
him from accruing seven years of continuous residence, a finding affirmed by the
BIA. The Ninth Circuit reversed, concluding that application of the stop-time
rule to Mr. Sinotes-Cruz’s pre-IIRIRA conviction obtained through a guilty plea
would produce an impermissible retroactive effect. See Sinotes-Cruz, 468 F.3d at
1197–1203. Because Sinotes-Cruz had pleaded guilty to an offense that did not
render him deportable at the time, the court reasoned that he had entered the plea
“in the justifiable expectation that [it] would have no effect on [his] immigration
status.” Id. at 1202. It also observed that before IIRIRA’s effective date,
Sinotes-Cruz had become eligible for discretionary relief. See id. at 1202. The
petitioner’s detrimental reliance on the state of the law at the time he pleaded
guilty, combined with IIRIRA’s elimination of any avenue for discretionary
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relief, led the court to hold that it would be fundamentally unfair to apply the
stop-time rule retroactively in his case. See id. at 1202-03.
Even were we to agree with the reasoning of Sinotes-Cruz—a step we need
not take—we could not grant Mr. Contreras relief because he has not attempted to
show that he comes within its holding. Central to the Ninth Circuit’s decision
was that the petitioner had pleaded guilty to a nondeportable offense, and
therefore reasonably expected the conviction to have no effect on his immigration
status. Yet Mr. Contreras has not argued that his conviction was for a
nondeportable offense. Nor has he suggested that if it was a deportable offense,
he was nevertheless eligible for discretionary relief when he pleaded guilty.
Given Mr. Contreras’s failure to establish these critical facts, he has not shown
that he would be entitled to relief under the reasoning of Sinotes-Cruz. See
Martinez v. I.N.S., 523 F.3d 365, 373–74 (2d Cir. 2008) (applying the stop-time
rule to a conviction obtained before IIRIRA’s enactment “would not have an
impermissible retroactive effect” with respect to a petitioner who was not eligible
for discretionary relief when he committed the crime. (emphasis added)). As far
as we can tell, his right to stay in this country was no greater when he pleaded
guilty than it is now, so retroactive application of the stop-time rule is not unfair.
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III. CONCLUSION
We DENY Mr. Contreras’s petition for review. Mr. Contreras’s request to
abate the appeal is also DENIED.
Entered for the Court
Harris L Hartz
Circuit Judge
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