Jesus Ramirez-Medina v. Merrick Garland ( 2021 )


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  •                      FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    JESUS RAMIREZ-MEDINA, AKA                         No. 16-73325
    Javier Gonzalez,
    Petitioner,                 Agency No.
    A079-811-177
    v.
    MERRICK B. GARLAND, Attorney                        OPINION
    General,
    Respondent.
    On Petition for Review of an Order of the
    Board of Immigration Appeals
    Argued and Submitted November 18, 2021
    Pasadena, California
    Filed December 22, 2021
    Before: Kim McLane Wardlaw and Andrew D. Hurwitz,
    Circuit Judges, and Stephen R. Bough, * District Judge.
    Opinion by Judge Hurwitz
    *
    The Honorable Stephen R. Bough, United States District Judge for
    the Western District of Missouri, sitting by designation.
    2               RAMIREZ-MEDINA V. GARLAND
    SUMMARY **
    Immigration
    Denying Jesus Ramirez-Medina’s petition for review of
    a decision of the Board of Immigration Appeals, the panel
    held that the phrase “an offense” in the cancellation of
    removal statute at 8 U.S.C § 1229b(b)(1)(C) includes the
    “[m]ultiple    criminal    convictions”   described    in
    § 1182(a)(2)(B).
    Under 8 U.S.C § 1229b(b)(1)(C), an alien who has been
    “been convicted of an offense under [8 U.S.C.] section
    1182(a)(2), 1227(a)(2), or 1227(a)(3)” is ineligible for
    cancellation of removal. The BIA concluded that Ramirez
    was ineligible for cancellation because he was removable
    under § 1182(a)(2)(B), which covers aliens who have been
    “convicted of 2 or more offenses . . . for which the aggregate
    sentences to confinement were 5 years or more.”
    Ramirez contended that because the statutory
    disqualification in § 1229b(b)(1)(C) is phrased in the
    singular, his multiple offenses described in § 1182(a)(2)(B)
    did not trigger ineligibility for cancellation. The panel
    disagreed, relying on Gonzalez-Gonzalez v. Ashcroft, 
    390 F.3d 649
     (9th Cir. 2004), in which this court concluded that
    the most logical reading of § 1229b(b)(1)(C) was that the
    cancellation bar applies to each of the disqualifying events
    “described under” the cross-referenced provisions. The
    panel concluded that the same logic applied here and that
    § 1229b(b)(1)(C)’s use of the singular “offense” did not
    **
    This summary constitutes no part of the opinion of the court. It
    has been prepared by court staff for the convenience of the reader.
    RAMIREZ-MEDINA V. GARLAND                   3
    require a different conclusion. The panel explained that the
    Dictionary Act generally instructs that “words importing the
    singular include and apply to several persons, parties, or
    things.” 
    1 U.S.C. § 1
    . The panel also observed that its
    interpretation accorded with that of the Fifth Circuit.
    Ramirez also argued that the BIA erred in finding that
    his multiple convictions resulted in aggregated sentences of
    at least five years because the agency relied on a criminal
    record that he alleged did not relate to him. The panel
    rejected that argument, explaining that the agency
    reasonably concluded that Ramirez did not satisfy his burden
    of showing that he had not been convicted of an offense that
    made him ineligible for cancellation.
    COUNSEL
    Matthew Lorn Hoppock (argued), Hoppock Law Firm LLC,
    Shawnee, Kansas, for Petitioner.
    Timothy G. Hayes (argued), Trial Attorney; Andrew N.
    O’Malley, Senior Litigation Counsel; Office of Immigration
    Litigation, Civil Division, United States Department of
    Justice, Washington, D.C.; for Respondent.
    4             RAMIREZ-MEDINA V. GARLAND
    OPINION
    HURWITZ, Circuit Judge:
    The Immigration and Nationality Act allows an alien
    who has been in the United States for ten years to seek
    cancellation of removal upon a showing of good moral
    character and exceptional hardship to a family member that
    would result from removal. 8 U.S.C. § 1229b(b)(1). But the
    Act provides that an alien who has “been convicted of an
    offense under [8 U.S.C.] section 1182(a)(2), 1227(a)(2), or
    1227(a)(3)” is ineligible for cancellation of removal. Id.
    § 1229b(b)(1)(C). The issue for decision is whether the
    phrase “an offense” in § 1229b(b)(1)(C) includes the
    “[m]ultiple     criminal    convictions”    described    in
    § 1182(a)(2)(B) that render an alien inadmissible. We hold
    that it does.
    I.
    Jesus Ramirez-Medina, a native of Mexico, entered the
    United States without inspection in 1996. Between 2006 and
    2008, Ramirez was convicted five times for driving on a
    suspended license and driving under the influence. In 2009,
    the Department of Homeland Security (“DHS”) initiated
    removal proceedings. Ramirez conceded removability but
    sought cancellation of removal, claiming exceptional
    hardship to his two U.S. citizen children.
    DHS moved to pretermit Ramirez’s application for
    cancellation. Citing a conviction for driving under the
    influence and driving on a suspended license that had
    occurred after the initiation of removal proceedings, DHS
    contended that Ramirez was now ineligible for relief because
    he had been “convicted of 2 or more offenses . . . for which
    the aggregate sentences to confinement were 5 years or
    RAMIREZ-MEDINA V. GARLAND                     5
    more.” 
    8 U.S.C. § 1182
    (a)(2)(B). As evidence of the new
    offense, DHS submitted the charging document listing
    Ramirez as the defendant and a 2013 judgment with the same
    case number as the charging document, but which listed
    “Reynardo Sampson Manning” as the defendant. Ramirez’s
    counsel did not object to the introduction of the judgment
    and acknowledged that Ramirez had signed it, but told the
    Immigration Judge (“IJ”) that Ramirez’s criminal defense
    attorney was in the process of confirming whether the
    sentence shown on the document was accurate. The IJ
    instructed Ramirez to submit materials confirming that the
    document reflected the actual sentence “without delay.”
    Two months later, when no submission concerning the
    2013 judgment had been received, the IJ issued an order
    pretermitting Ramirez’s application for cancellation. The
    Board of Immigration Appeals (“BIA”) dismissed
    Ramirez’s appeal, holding that he had failed to establish that
    he had not been convicted of offenses with an aggregate
    sentence of at least 5 years. Acknowledging the incorrect
    name on the 2013 judgment, the BIA noted that Ramirez did
    not dispute the conviction itself and observed that the case
    number on the judgment matched that on the complaint
    naming Ramirez. The BIA rejected Ramirez’s argument that
    § 1182(a)(2)(B) is not a basis for ineligibility under
    § 1229b(b)(1)(C), relying on its decision in Matter of Pina-
    Galindo, 
    26 I&N Dec. 423
     (BIA 2014). This petition for
    review followed.
    II.
    An individual facing removal may ask the Attorney
    General to “cancel” his order of removal if he proves that:
    “(1) he has been present in the United States for at least
    10 years; (2) he has been a person of good moral character;
    (3) he has not been convicted of certain criminal offenses;
    6             RAMIREZ-MEDINA V. GARLAND
    and (4) his removal would impose an ‘exceptional and
    extremely unusual’ hardship on a close relative who is either
    a citizen or permanent resident of this country.” Pereida v.
    Wilkinson, 
    141 S. Ct. 754
    , 759 (2021); 8 U.S.C.
    § 1229b(b)(1).
    However, conviction of “an offense under section
    1182(a)(2), 1227(a)(2), or 1227(a)(3)” disqualifies an alien
    for eligibility for cancellation of removal. 8 U.S.C.
    § 1229b(b)(1)(C). The three referenced provisions are
    sections of the inadmissibility statute, 
    8 U.S.C. § 1182
    , and
    the deportability statute, 
    8 U.S.C. § 1227
    . Section 1182(a),
    relevant here, states that “aliens who are inadmissible under
    the following paragraphs are ineligible to receive visas and
    ineligible to be admitted to the United States.” Among the
    “following paragraphs” is § 1182(a)(2)(B), which provides:
    Any alien convicted of 2 or more offenses
    (other than purely political offenses),
    regardless of whether the conviction was in a
    single trial or whether the offenses arose from
    a single scheme of misconduct and regardless
    of whether the offenses involved moral
    turpitude, for which the aggregate sentences
    to confinement were 5 years or more is
    inadmissible.
    At issue is whether the provision in § 1229b(b)(1)(C)
    making an alien ineligible for cancellation of removal if
    convicted of “an offense under section 1182(a)(2)” includes
    the “offenses” described in § 1182(a)(2)(B). Ramirez
    contends that because the statutory disqualification is
    phrased in the singular, his multiple offenses do not trigger
    ineligibility. We disagree.
    RAMIREZ-MEDINA V. GARLAND                            7
    We addressed § 1229b(b)(1)(C) and its cross-reference
    to the inadmissibility and deportability statutes in Gonzalez-
    Gonzalez v. Ashcroft, 
    390 F.3d 649
     (9th Cir. 2004). The
    issue in that case was whether an inadmissible alien was
    barred from seeking cancellation based on a conviction for
    domestic violence, which is listed as one of several “general
    crimes” in § 1227(a)(2) as a ground for deportation. See 
    8 U.S.C. § 1227
    (a)(2)(E)(i). Gonzalez argued that because he
    was inadmissible, the listing of domestic violence in the
    deportation statute did not apply to him and did not
    disqualify him for eligibility for cancellation. Gonzalez-
    Gonzalez, 
    390 F.3d at 652
    . We rejected that argument,
    relying on the plain language and structure of
    § 1229b(b)(1)(C), which cross-references “a list of offenses
    in three statutes, rather than the statutes as a whole.” Id. We
    concluded that the “most logical reading” of
    § 1229b(b)(1)(C) is that the cancellation bar applies to each
    of the disqualifying events “described under” the cross-
    referenced provisions. Id. (cleaned up). Because “[e]ven an
    inadmissible alien can commit the offense of domestic
    violence as it is listed under § 1227,” we held that Gonzalez
    was ineligible for cancellation of removal. Id. at 652–53.
    The same logic applies here. Section 1229b(b)(1)(C)
    incorporates the whole of the cross-referenced provisions,
    including each of their subparts. Id. Indeed, the actual
    sections listed in the cancellation ineligibility statute,
    
    8 U.S.C. §§ 1182
    (a)(2), 1227(a)(2), and 1227(a)(3), each
    merely state that crimes described in following paragraphs
    make an alien either inadmissible or deportable; the cross-
    reference is thus necessarily not only to the introductory
    language, but also to the following paragraphs. 1 At bottom,
    1
    Section 1182(a) provides that “[e]xcept as otherwise provided in
    this chapter, aliens who are inadmissible under the following paragraphs
    8                 RAMIREZ-MEDINA V. GARLAND
    convictions for multiple offenses with aggregate sentences
    of at least five years are plainly within the category of
    offenses that bar cancellation.
    Section 1229b(b)(1)(C)’s use of the singular “offense”
    does not require a different conclusion. The Dictionary Act
    instructs that for “any Act of Congress, unless the context
    indicates otherwise—words importing the singular include
    and apply to several persons, parties, or things.” 
    1 U.S.C. § 1
    .      Section 1229b(b)(1)(C) explicitly refers to
    § 1182(a)(2), which itself states that an alien convicted of
    any offense in the succeeding paragraphs is inadmissible.
    See Gonzalez-Gonzalez, 
    390 F.3d at
    652–53. Subsection
    (a)(2)(B) is one of those succeeding paragraphs. This is
    precisely the context in which the Dictionary Act is intended
    to apply. See Niz-Chavez v. Garland, 
    141 S. Ct. 1474
    , 1482
    (2021) (imagining a statute making it illegal to vandalize “a”
    bank and explaining that “someone who vandalizes five
    banks could not avoid prosecution on the ground that he
    vandalized more than one”). 2
    are ineligible to receive visas and ineligible to be admitted to the United
    States.” Section 1182(a)(2) is entitled “Criminal and related grounds,”
    and is followed by a series of paragraphs listing disqualifying crimes,
    including § 1182(a)(2)(B) concerning convictions for multiple offenses
    with aggregate sentences of more than 5 years. Similarly, § 1227(a)(2),
    entitled “Criminal offenses,” is followed by a list of offenses that render
    an alien deportable, and § 1227(a)(3), entitled “Failure to register and
    falsification of documents,” is followed by a list of specific acts that give
    rise to deportability.
    2
    Ramirez’s reliance on a draft version of § 1229b from a
    Conference Committee Report, H.R. Rep. No. 104-828, at 213, 
    1996 WL 563320
     (1996) is unpersuasive because the statute, as enacted, differs
    from the draft. See Gonzalez-Gonzalez, 
    390 F.3d at 653
    .
    RAMIREZ-MEDINA V. GARLAND                      9
    Our interpretation of § 1229b(b)(1)(C) accords with the
    opinion of the Fifth Circuit affirming the BIA’s decision in
    Matter of Pina-Galindo. See Pina-Galindo v. Lynch,
    
    803 F.3d 193
     (5th Cir. 2015). Although the Fifth Circuit
    opinion rested in part on deference to the BIA, it also rested
    on the “plain language of § 1229b(b)(1)(C).” Id. at 195; see
    also Lopez-Montesino v. U.S. Att’y Gen., 828 F. App’x 123,
    125–26 (3d Cir. 2020) (applying § 1182(a)(2)(B) as a bar to
    cancellation under § 1229b(b)(1)(C)).
    III.
    Ramirez also argues that the BIA erred in finding that his
    multiple convictions resulted in aggregated sentences of at
    least five years because the agency relied on the 2013
    judgment, a record “not clearly related to Ramirez.” We
    reject this argument. We start with the premise that the
    burden was on Ramirez to show that he had not been
    convicted of the qualifying offenses. See 
    8 C.F.R. § 1240.8
    (d) (“If the evidence indicates that one or more of
    the grounds for mandatory denial of the application for relief
    may apply, the alien shall have the burden of proving by a
    preponderance of the evidence that such grounds do not
    apply.”); Pereida, 141 S. Ct. at 758 (“The INA expressly
    requires individuals seeking relief from lawful removal
    orders to prove all aspects of their eligibility. That includes
    proving they do not stand convicted of a disqualifying
    criminal offense.”). Substantial evidence supports the
    agency’s determination that Ramirez did not satisfy that
    burden.
    Although the 2013 judgment listed “Reynardo Sampson
    Manning” as the defendant, the document had the same case
    number as the complaint naming Ramirez. Significantly,
    Ramirez did not argue to the IJ that he was not convicted in
    2013 of the subject offense; his counsel acknowledged that
    10            RAMIREZ-MEDINA V. GARLAND
    Ramirez signed the judgment. Indeed, counsel simply asked
    for time to clarify the sentence Ramirez received. And,
    despite being given two months to submit additional
    evidence concerning the 2013 judgment, Ramirez failed to
    do so. Under these circumstances, the agency could
    reasonably conclude that he had not proved his eligibility for
    cancellation of removal.
    PETITION DENIED.
    

Document Info

Docket Number: 16-73325

Filed Date: 12/22/2021

Precedential Status: Precedential

Modified Date: 12/22/2021