Rafael Tiscareno-Garcia v. Eric Holder, Jr. , 780 F.3d 205 ( 2015 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-2459
RAFAEL TISCARENO-GARCIA,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Argued: October 30, 2014 Decided: March 3, 2015
Amended: March 6, 2015
Before TRAXLER, Chief Judge, and KING and THACKER, Circuit
Judges.
Petition for review denied in part and dismissed in part by
published opinion. Chief Judge Traxler wrote the opinion, in
which Judge King and Judge Thacker joined.
ARGUED: Martin M. Rosenbluth, LAW OFFICES OF MARTIN ROSENBLUTH,
Burlington, North Carolina; Derrick J. Hensley, LAW OFFICE OF
DERRICK J. HENSLEY, Durham, North Carolina, for Petitioner.
John William Blakeley, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent. ON BRIEF: Stuart F. Delery,
Assistant Attorney General, Civil Division, Erica Miles, Senior
Litigation Counsel, Office of Immigration Litigation, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
TRAXLER, Chief Judge:
Rafael Tiscareno-Garcia petitions for review of an order of
removal of the Board of Immigration Appeals (“BIA”) which
determined that Tiscareno-Garcia cannot establish the good moral
character required to apply for cancellation of removal, see 8
U.S.C. § 1229b(b)(1)(B), as a result of his serving 181 days in
jail for an illegal-entry conviction, see 8 U.S.C. § 1101(f)(7).
We deny the petition in part and dismiss it in part.
I.
Tiscareno-Garcia is a Mexican national. Between March 8,
1999, and November 3, 2000, border patrol agents apprehended
Tiscareno-Garcia three times for being present in the United
States illegally; each time he was permitted to return
voluntarily to Mexico. Not long after his last arrest,
Tiscareno-Garcia illegally entered the United States again
without inspection. This time, however, he was able to make his
way up to Raleigh, North Carolina, where he avoided apprehension
for 10 years.
On November 15, 2010, agents from the Immigration and
Customs Enforcement (“ICE”) division of the Department of
Homeland Security (“DHS”) arrested Tiscareno-Garcia during a
workplace raid and charged him with illegal entry in violation
of 8 U.S.C. § 1325(a), a misdemeanor offense that carries a
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sentence of “not more than 6 months” imprisonment. In March
2011, Tiscareno-Garcia pled guilty and served 181 days.
DHS served Tiscareno-Garcia with a Notice to Appear (“NTA”)
before he went to jail, charging that he was subject to removal
as a result of entering “without being admitted or paroled.” 8
U.S.C. § 1182(a)(6)(A)(i); see 8 U.S.C. § 1227(a)(1). After
Tiscareno-Garcia had served his sentence and was released, DHS
commenced removal proceedings against him.
Tiscareno-Garcia conceded removability and applied for
cancellation of removal. He argued that his removal would cause
“exceptional and extremely unusual hardship” to his three
citizen children, especially his 10-year-old autistic son. And,
except for the fact that he entered the United States illegally
a decade before, Tiscareno-Garcia appears to have been a law-
abiding member of society and a devoted father and provider for
his children.
The government, however, moved to “pretermit” Tiscareno-
Garcia’s application, arguing that his 181 days of confinement
barred him from establishing “good moral character” under §
1101(f)(7). In response, Tiscareno-Garcia argued that the crime
he was incarcerated for—illegal entry under § 1325(a)—is a
misdemeanor offense that does not constitute a crime of moral
turpitude, and therefore should not be used to defeat a showing
of “good moral character.” Moreover, he argued that in making
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cancellation of removal available to aliens who are present
illegally (either because they entered illegally or because they
violated the terms of their stay after being legally admitted),
Congress assumed that those applying for relief would be guilty
of illegal entry and therefore could not have meant to bar
aliens from applying for relief based on a § 1325(a) conviction.
The IJ agreed with the government that Tiscareno-Garcia was
statutorily ineligible for cancellation of removal and dismissed
Tiscareno-Garcia’s application. The IJ found that § 1101(f)(7)
plainly and unambiguously precludes an alien from establishing
good moral character based on the length of incarceration, not
the type of offense. The IJ also found that the statutory
scheme, according to the plain language, was coherent and not
absurd. The IJ noted that the statute enumerates certain types
of offenses (regardless of the resulting time served) that
categorically bar a finding of good moral character but that
illegal entry is not included in this list. The IJ observed
that § 1101(f)(7) is a catch-all for any other offense,
regardless of type, that resulted in 180 days or more of
confinement. The IJ concluded that illegal entry under §
1325(a) would fall under this provision only if the alien served
enough time and noted that illegal entry is not a crime that
would render an alien per se ineligible for cancellation of
removal.
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The BIA affirmed, concluding that the Agency is bound by
the plain language of the text. Relying on the plain language
of the statute, the BIA agreed with the IJ that the
applicability of § 1101(f)(7) does not depend upon the type of
offense, and that Tiscareno-Garcia was precluded from
establishing good moral character and, as a result, that he was
ineligible for cancellation of removal.
II.
In interpreting statutes, we must first determine
legislative intent. See Chevron U.S.A. Inc. v. Natural Res.
Def. Council, Inc., 467 U.S. 837, 842 (1984). “If the intent of
Congress is clear, that is the end of the matter; for the court,
as well as the agency, must give effect to the unambiguously
expressed intent of Congress.” Id. at 842-43. Tiscareno-Garcia
concedes that § 1101(f)(7) is clear and unambiguous, and he does
not disagree that a literal application of the statute precludes
him from being “regarded as, or found to be, a person of good
moral character,” which, in turn, renders him ineligible to
apply for cancellation of removal under § 1229b(b). But he
thinks that it is an absurd result where aliens are barred from
applying for cancellation of removal based on an illegal entry
conviction-the same illegal entry that rendered the alien
removable and necessitated applying for cancellation of removal
in the first place. Tiscareno-Garcia asserts that Congress
5
could not have intended to offer the hope of relief with one
hand and pull it back with the other, and he argues that we are
therefore not bound by the clear and unambiguous language of the
statute.
It is true that in “exceptionally rare” instances where
“a literal reading of a statute produces an outcome that is
demonstrably at odds with clearly expressed congressional intent
to the contrary, or results in an outcome that can truly be
characterized as absurd, i.e., that is so gross as to shock the
general moral or common sense,” Sigmon Coal Co. v. Apfel, 226
F.3d 291, 304 (4th Cir. 2000) (citations and internal quotation
marks omitted), aff’d sub nom. Barnhart v. Sigmon Coal Co., 534
U.S. 438, 442 (2002), we can look past the statute’s plain and
ordinary meaning, see Crooks v. Harrelson, 282 U.S. 55, 60
(1930) (explaining that a court will “override the literal terms
of a statute only under rare and exceptional circumstances” when
application of the literal terms produces an “absurdity . . . so
gross as to shock the general moral or common sense”). As this
court has noted previously, however, “we are more than a little
hesitant to abandon the presumption that Congress meant what it
said, or did not say, when the words of a statute are plain,”
Sigmon Coal, 226 F.3d at 305, in view of the fact that “the sole
function of the courts is to enforce [the relevant statute]
6
according to its terms,” Caminetti v. United States, 242 U.S.
470, 485 (1917).
Tiscareno-Garcia urges us to conclude that this is one of
those “exceptionally rare” instances in which the literal
application of a Congressional enactment produces truly absurd
results. His absurdity argument distills to this: Because
Congress clearly intended to make relief available under §
1229b(b) to persons who entered the United States illegally in
violation of § 1325(a), precluding an alien from applying for
relief based solely on an illegal entry conviction under §
1325(a) “directly contradicts” Congressional intent. Tiscareno-
Garcia submits that “virtually all” nonpermanent resident
applicants for cancellation of removal could be charged with and
convicted of illegal entry under federal law, which would make
any relief from removal offered under § 1229b(b) illusory.
Tiscareno-Garcia contends that to avoid such an absurd result,
the court must read an exception into sections 1229b(b)(1)(B)
and § 1101(f)(7) for any person who was confined as a result of
a conviction under § 1325(a).
Tiscareno-Garcia has fallen far short of demonstrating a
truly absurd result here—one so preposterous that it “shock[s]
the general moral or common sense.” Crooks, 282 U.S. at 60.
The result compelled by the plain language is clearly not
absurd. Read together, sections 1229b(b) and 1101(f) present a
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coherent scheme that reasonably affords the discretionary
immigration benefit of cancellation of removal to some
nonpermanent residents but not to others. Under § 1101(f),
Congress delineated a number of categories that, if applicable,
bar an alien from establishing his “good moral character”
including some based on conduct that is antithetical to “good
moral character,” see, e.g., 8 U.S.C. § 1101(f)(1) (“habitual
drunkard[s]”); 8 U.S.C. § 1101(f)(4) (“one whose income is
derived principally from illegal gambling activities”), and
others based on the fact of a conviction for a serious offense
or a crime involving moral turpitude, regardless of time
actually served, see 8 U.S.C. §§ 1101(f)(3) & (8). Another
category—the one into which Tiscareno-Garcia falls—uses the
amount of time confined in jail rather than the nature of the
offense to establish conclusively a lack of good moral
character. See id. § 1101(f)(7). It is entirely sensible for
Congress to have concluded that persons who have been convicted
of crimes serious enough to warrant at least 180 days or longer
in jail lack the good moral character required for discretionary
relief from removal. See Romero-Ochoa v. Holder, 712 F.3d 1328,
1331 (9th Cir. 2013). In using the length of incarceration “as
a proxy for seriousness,” Congress reasonably incorporated “the
adjudicating forum’s judgment concerning the seriousness of an
8
offense.” Id. at 1332 (internal quotation marks and alteration
omitted).
Tiscareno-Garcia’s absurdity argument largely ignores this
scheme and proceeds as if aliens convicted of illegal entry are
categorically barred from seeking cancellation of removal.
Obviously, this is not the case. Not every non-permanent alien
who is removable entered illegally; many were lawfully admitted
but later found themselves in unlawful status after violating
the terms of a visa. Not every alien who enters the United
States without inspection faces prosecution under § 1325(a);
indeed, the vast majority do not. And, not every illegal alien
who is convicted under § 1325(a) receives the maximum sentence
of 180 days.
We conclude that there are plausible reasons for Congress
to have excluded from discretionary relief aliens who served 6
months for violating § 1325(a). Plausibility is all that is
required for us to reject the argument that the perfectly clear
and unambiguous statutory language produces an absurd result.
See Sigmon Coal, 226 F.3d at 308; In re: Sunterra Corp., 361
F.3d 257, 268 (4th Cir. 2004) (“[I]f it is plausible that
Congress intended the result compelled by the Plain Meaning
Rule, we must reject an assertion that such an application is
absurd.”). Because this is not an exceptionally rare case, we
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cannot say that adherence to the statute’s plain text would be
absurd.
III.
In order to establish eligibility for cancellation of
removal, an applicant must show that he “has been physically
present in the United States for a continuous period of not less
than 10 years,” 8 U.S.C. § 1229b(b)(1)(A), and that he “has been
a person of good moral character during such [10-year] period,”
8 U.S.C. § 1229b(b)(1)(B). Tiscareno-Garcia argues that the 10-
year period for establishing good moral character ends “when the
alien is served a notice to appear.” 8 U.S.C. § 1229b(d)(1)(A).
Because he began and completed his period of confinement after
DHS served the notice to appear, Tiscareno-Garcia urges the
court to conclude that he did not serve his imprisonment during
the 10-year period and therefore is not precluded from
establishing good moral character. See 8 U.S.C. § 1101(f)(7)
(“No person shall be regarded as, or found to be, a person of
good moral character who, during the period for which good moral
character is required to be established, is, or was . . .
confined, as a result of conviction, to a penal institution for
an aggregate period of one hundred and eighty days or more . . .
.” (emphasis added)). We note that Tiscareno-Garcia’s position
appears to conflict with the BIA’s position on this issue. See
Matter of Ortega–Cabrera, 23 I. & N. Dec. 793, 798 (BIA 2005)
10
(concluding that “the 10–year period during which good moral
character must be established ends with the entry of a final
administrative decision”). As explained below, however, this
court lacks jurisdiction to address the merits of this issue
because Tiscareno-Garcia failed to raise it before the BIA and
therefore failed to exhaust his administrative remedies.
Federal appellate courts are vested with jurisdiction to
review “final order[s] of removal,” 8 U.S.C. § 1252(a)(1), which
“are entered only after all administrative remedies have been
exhausted,” Huaman-Cornelio v. BIA, 979 F.2d 995, 999 (4th Cir.
1992); 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 available to the alien as of right . .
.”). And, as the government suggests, an alien who does not
raise a particular claim before the BIA fails to exhaust his
administrative remedies as to that claim. When that occurs, the
federal courts lack jurisdiction to consider it. See Cordova v.
Holder, 759 F.3d 332, 336 n.2 (4th Cir. 2014); Massis v.
Mukasey, 549 F.3d 631, 638 (4th Cir. 2008).
Whether Tiscareno-Garcia ever made this particular argument
to the agency is not a matter of dispute—he clearly did not.
Instead, Tiscareno-Garcia claims that he was unable to raise
this issue because, despite repeated requests, the government
did not provide his attorney with a copy of the NTA until after
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the BIA had entered a final order of removal. According to
Tiscareno-Garcia, the NTA was the only document showing that the
NTA was served before he went to jail. Therefore, he contends
that he did not have the ability to present this challenge to
the BIA.
We do not find Tiscareno-Garcia’s argument to be
convincing. At the initial removal hearing before an IJ on
September 28, 2011, counsel for Tiscareno-Garcia noted that he
had not seen the NTA. The IJ explained that the NTA charged
Tiscareno-Garcia as removable because he had entered without
inspection in violation of § 1182(a)(6)(A)(i), and the IJ
subsequently marked the NTA as Exhibit 1. Tiscareno-Garcia then
conceded removability but indicated he intended to seek
cancellation of removal. When the government pointed out that
his 181-day stint in jail rendered him ineligible for
cancellation of removal, the IJ directed counsel for Tiscareno-
Garcia to file a memorandum showing why Tiscareno-Garcia was not
ineligible under the “good moral character” provision set forth
in § 1101(f).
As directed, Tiscareno-Garcia filed a memorandum on
December 21, 2011, setting forth reasons why his jail term did
not make him ineligible to apply for cancellation of removal,
but he did not argue that the 10-year good moral character
period ended with the issuance of the NTA and therefore did not
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include the 181 days of confinement. At the very latest,
Tiscareno-Garcia and his lawyer received a copy of the NTA on
September 28, 2011, when it was entered as an exhibit during the
initial hearing. Clearly, Tiscareno-Garcia could have raised
this claim before both the IJ and the BIA; the government’s
failure to provide a copy of the NTA prior to that time
presented no impediment to his ability to exhaust his claim
administratively. Accordingly, we lack jurisdiction over this
claim and, technically speaking, must dismiss it.
IV.
Finally, Tiscareno-Garcia includes on appeal a claim that
the combined effect of the statutory provisions at issue here—
sections 1229b(b)(1), 1101(f)(7) and 1325(a)—deprived him of due
process. This challenge is without merit, and we reject it.
“To succeed on a due process claim in an asylum or
deportation proceeding, the alien must establish two closely
linked elements: (1) that a defect in the proceeding rendered it
fundamentally unfair and (2) that the defect prejudiced the
outcome of the case.” Anim v. Mukasey, 535 F.3d 243, 256 (4th
Cir. 2008). Tiscareno-Garcia posits that the federal district
court which accepted his guilty plea and imposed the 180-day
sentence actually exercised “de jure jurisdiction” over his
eligibility for cancellation of removal that is reserved for the
immigration courts. He reasons that he therefore did not
13
receive a meaningful opportunity during removal proceedings to
establish his eligibility for discretionary relief. The die was
cast, in other words, by the time his case reached the IJ.
Tiscareno-Garcia does not actually claim any procedural
defect occurring in the removal proceeding itself. Actually,
this is simply another way to challenge the statute’s
eligibility bar for those who are confined for 180 days as a
result of an illegal-entry conviction. The district court
obviously did not exercise any sort of “jurisdictional”
authority over the administrative removal process. What happens
in criminal proceedings, whether federal or state, commonly
echoes in immigration proceedings. *
V.
For the foregoing reasons, we deny in part and dismiss in
part Tiscareno-Garcia’s petition for review.
PETITION FOR REVIEW DENIED IN PART
AND DISMISSED IN PART
*
Likewise, to the extent that Tiscareno-Garcia raises a due
process challenge based on the DHS’s discretion to both charge
him with illegal entry under § 1325(a) and then place him in
removal proceedings, we reject his claim as wholly without
merit.
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