Rodolfo Lopez-Montesino v. Attorney General United States ( 2020 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 19-3660
_____________
RODOLFO LOPEZ-MONTESINO,
Petitioner
v.
ATTORNEY GENERAL OF THE
UNITED STATES OF AMERICA
_______________
On Petition for Review of an Order of the
United States Department of Justice
Board of Immigration Appeals
(BIA 1:A078-498-602)
Immigration Judge: Charles M. Honeyman
_______________
Submitted Under Third Circuit LAR 34.1(a)
August 10, 2020
Before: JORDAN, MATEY, and ROTH, Circuit Judges
(Filed: October 1, 2020)
_______________
OPINION *
_______________
*
This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
JORDAN, Circuit Judge.
Rodolfo Lopez-Montesino petitions for review of a decision by the Board of
Immigration Appeals (“BIA”) affirming the determination of an Immigration Judge (“IJ”)
that he is ineligible for adjustment of status under 8 U.S.C. § 1255 and cancellation of
removal under 8 U.S.C. § 1229b(b). Because Lopez-Montesino’s arguments are contrary
to controlling precedent and the plain language of the relevant statute, we will deny the
petition for review.
I. BACKGROUND
Lopez-Montesino is a citizen and national of El Salvador. He entered the United
States in or around January of 1991, without being formally inspected or admitted. In
2001, he was granted Temporary Protected Status (“TPS”).
Between March 2002 and January 2005, Lopez-Montesino was twice convicted in
Pennsylvania of driving under the influence. His first conviction resulted in a sentence
with a minimum of 90 days’ confinement and a maximum of 18 months’ confinement. His
second resulted in a sentence with a minimum of 90 days’ confinement and a maximum of
five years’ confinement. In April 2013, the Department of Homeland Security revoked
Lopez-Montesino’s TPS because of his criminal convictions.
Thereafter, Lopez-Montesino appeared before an IJ and sought adjustment of status
under 8 U.S.C. § 1255, based on an approved visa petition filed by his United States citizen
spouse. He also sought cancellation of removal under 8 U.S.C. § 1229b(b). The IJ
pretermitted and denied both applications. As to Lopez-Montesino’s application for
adjustment of status, the IJ found that he was in “unlawful immigration status” at the time
2
of his application, and thus was ineligible for adjustment of status under 8 U.S.C.
§ 1255(c). 1 (App. 13.) Regarding cancellation of removal, the IJ determined that Lopez-
Montesino was ineligible for relief because “the sum of [his] sentences to confinement
totaled six years and six months, which exceeds the five-year period set forth” in 8 U.S.C.
§ 1182(a)(2)(B). 2 (App. 15.)
Lopez-Montesino appealed the IJ’s decision to the BIA, which dismissed the
appeal. The BIA agreed with Lopez-Montesino that the IJ was wrong to conclude that he
was ineligible for adjustment of status under 8 U.S.C. § 1255(c), but held that any error in
that regard was harmless because he nevertheless was ineligible for adjustment of status
under 8 U.S.C. § 1255(a).3 Specifically, the BIA reasoned that Lopez-Montesino had never
been “inspected and admitted or paroled into the United States,” as required by § 1255(a),
and that his being the beneficiary of TPS did not substitute for, or otherwise satisfy, that
1
8 U.S.C. § 1255(c) renders ineligible for adjustment of status “an alien (other than
an immediate relative as defined in section 1151(b) of this title or a special immigrant
described in section 1101(a)(27)(H), (I), (J), or (K) of this title) … who is in unlawful
immigration status on the date of filing the application for adjustment of status or who has
failed (other than through no fault of his own or for technical reasons) to maintain
continuously a lawful status since entry into the United States[.]”
2
8 U.S.C. § 1182(a)(2)(B) provides that “[a]ny 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.”
3
8 U.S.C. § 1255(a) states in relevant part that “[t]he status of an alien who was
inspected and admitted or paroled into the United States or the status of any other alien
having an approved petition for classification as a VAWA self-petitioner may be adjusted
by the Attorney General[.]”
3
statutory prerequisite. (App. 5) The BIA also agreed with the IJ that Lopez-Montesino
was ineligible for cancellation of removal because he had been sentenced, in the aggregate,
to more than five years of confinement.
Lopez-Montesino has timely petitioned for review.
II. DISCUSSION4
Lopez-Montesino first asserts that the BIA erred in not remanding his case once it
determined that the IJ’s stated basis for pretermitting his adjustment of status application
was legally incorrect. He also asserts that the BIA further erred in concluding that his grant
of TPS was insufficient to satisfy the requirement that he be inspected and admitted or
paroled into the United States. Our precedent, however, forecloses both of those
arguments.
Dealing with the second argument first, the sole basis for saying that Lopez-
Montesino was “inspected and admitted” is that he was granted TPS. But we recently
issued a precedential decision holding that TPS does not constitute “admission” into the
United States for adjustment of status purposes. Sanchez v. Sec’y United States Dep’t of
Homeland Sec., --- F.3d ---, No. 19-1311, 2020 WL 4197523, at *1 (3d Cir. July 22, 2020).
Because “[w]e are … generally obligated to follow our precedent absent en banc
reconsideration[,]” Karns v. Shanahan, 879 F.3d 504, 514 (3d Cir. 2018); see also 3d Cir.
4
The BIA had jurisdiction under 8 C.F.R. §§ 1003.1(b)(3) and 1240.15. We have
jurisdiction under 8 U.S.C. § 1252. “When, as here, the BIA affirms an IJ’s decision and
adds analysis of its own, we review both the IJ’s and the BIA’s decisions. We review
questions of law de novo.” Lupera-Espinoza v. Attorney Gen. of U.S., 716 F.3d 781, 785
(3d Cir. 2013) (internal quotation marks and citations omitted).
4
I.O.P. 9.1, Lopez-Montesino’s argument to the contrary fails. Consequently, even
assuming that the BIA incorrectly refused to remand his case to the IJ to address the TPS-
admission question in the first instance, Lopez-Montesino still is not entitled to relief
because any such remand would now be futile in light of Sanchez. See Ricketts v. Attorney
Gen. United States of Am., 955 F.3d 348, 352 (3d Cir. 2020) (“[W]hen remand would be
futile – meaning the BIA on remand would be unable as a matter of law to grant the relief
sought – we may deny a petition for review, without regard to the various issues that might
otherwise be in play in the case.”).
Lopez-Montesino also argues that both the IJ and the BIA erred in concluding that
he was disqualified from applying for cancellation of removal due to his two prior
convictions in Pennsylvania for driving under the influence. On appeal, he does not dispute
that either the number or nature of his prior convictions are potentially disqualifying. 8
U.S.C. §§ 1229b(b)(1)(C); 1182(a)(2)(B). Nor does he dispute that the aggregate sentences
imposed on him for those two convictions was six years and six months, which exceeds
the five-year statutory threshold for disqualification. 8 U.S.C. § 1182(a)(2)(B). Rather,
his only argument is that his eligibility for cancellation of removal depends on the actual
period of his confinement, which he claims only totaled 120 days, and not the length of the
sentences imposed on him. Yet both the relevant statutory language and our precedent
refute Lopez-Montesino’s assertion.
Lopez-Montesino’s “actual confinement” argument is based entirely on the change
to 8 U.S.C. § 1182(a)(2)(B) effectuated by the Illegal Immigration Reform and Immigrant
Responsibility Act (“IIRIRA”), which went into effect on April 1, 1997. Before IIRIRA,
5
§ 1182(a)(2)(B) specifically referred to aggregate sentences that were “actually imposed,”
but IIRIRA deleted that language. According to Lopez-Montesino, that change “[a]rguably
… should direct the calculation to the served period of confinement and not the imposed
period of confinement.” (Opening Br. at 21.)
But, as Lopez-Montesino acknowledges, IIRIRA did not remove the “actually
imposed” language from § 1182(a)(2)(B) in a vacuum. That statute simultaneously added
new definitional language specifying that “[a]ny reference to a term of imprisonment or a
sentence with respect to an offense is deemed to include the period of incarceration or
confinement ordered by a court of law regardless of any suspension of the imposition or
execution of that imprisonment or sentence in whole or in part.” 8 U.S.C. § 1101(a)(48)(B)
(emphasis added). Thus, IIRIRA did not eliminate the “actually imposed” concept from
§ 1182(a)(2)(B), but instead centralized that concept and made it broadly applicable,
including to § 1182(a)(2)(B). We have recognized as much in an analogous context. See
United States v. Graham, 169 F.3d 787, 790 (3d Cir. 1999) (rejecting argument that the
deletion of the phrase “imposed (regardless of any suspension of imprisonment)” from
definition of “aggravated felony” pursuant to IIRIRA meant Congress intended to begin
relying on something “other than the sentence actually imposed for a conviction,” and
noting that IIRIRA’s addition of § 1101(a)(48)(B) “suggests that the actual term imposed
is ordinarily the definitional touchstone”). The logic of Graham is directly applicable here,
and Lopez-Montesino advances no argument nor identifies any authority suggesting a
contrary conclusion. Indeed, although IIRIRA has been in effect for over 23 years, Lopez-
6
Montesino does not cite a single case or administrative decision supporting his construction
of § 1182(a)(2)(B).
Accordingly, we reject the argument that § 1182(a)(2)(B) refers to the served period
of confinement rather than the actual sentence imposed. Because the aggregate sentences
actually imposed on him for his two prior convictions exceeded five years, 5 Lopez-
Montesino is statutorily barred from seeking cancellation of removal, and neither the IJ nor
the BIA erred in so holding.
III. CONCLUSION
For the foregoing reasons, we will deny Lopez-Montesino’s petition for review.
5
Under Pennsylvania law, Lopez-Montesino’s sentences contained a minimum and
maximum term of confinement. To the extent he argues that only the minimum period of
confinement is relevant, we have long-since rejected that line of reasoning. See Bovkun v.
Ashcroft, 283 F.3d 166, 171 (3d Cir. 2002) (holding petitioner’s sentence of 11 to 23
months under Pennsylvania law should be treated “as if it were a simple sentence of 23
months” because the “sentence was functionally the same as a sentence of 23 months, with
parole eligibility beginning after 11 months[,]” and, thus “was not at all comparable to a
simple sentence of 11 months”).
7