Jorge Jimenez-Vielma v. Matthew G. Whitaker ( 2018 )

United States Court of Appeals
For the Eighth Circuit
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No. 17-3344
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Jorge Jimenez-Vielma
lllllllllllllllllllllPetitioner
v.
Matthew G. Whitaker, Acting Attorney General of the United States
lllllllllllllllllllllRespondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: September 26, 2018
Filed: November 29, 2018
[Unpublished]
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Before WOLLMAN, KELLY, and ERICKSON, Circuit Judges.
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PER CURIAM.
An Immigration Judge (IJ) denied Jorge Jimenez-Vielma’s applications for
withholding of removal, asylum, and Convention Against Torture (CAT) protection.
The Board of Immigration Appeals (Board) dismissed Jimenez-Vielma’s appeal. We
deny his petition for review of that decision.
I. Background
Jimenez-Vielma was born in Piedras Negras, a Mexican town just south of the
Texas border, where he lived until the age of seventeen. In Piedras Negras, Jimenez-
Vielma experienced violence on several occasions because of his older brother’s gang
activity. In one incident, a member of a rival drug cartel assaulted Jimenez-Vielma
and threatened him with a sharp object. On another occasion, the police beat then-
fourteen-year-old Jimenez-Vielma after he failed to provide information about his
brother. At age sixteen, Jimenez-Vielma was arrested and incarcerated in an adult
prison for three months. After his release, the same rival gang member stabbed him
with a screwdriver. Jimenez-Vielma departed Piedras Negras two months later and
entered the United States without inspection in August 2001. He has lived in the
United States continuously since that time. In 2013, he married a United States
citizen with four children from a previous relationship.
Jimenez-Vielma’s brother was arrested in Mexico in 2013 and remains
incarcerated. His parents still live in Piedras Negras and have never been harmed by
gang members or law enforcement. Jimenez-Vielma’s sister currently lives outside
Piedras Negras. She has never been physically harmed by gang members, but her car
was attacked at some point by an unknown individual.
In 2012, the Department of Homeland Security (DHS) initiated removal
proceedings against Jimenez-Vielma, alleging that he was inadmissible for entering
the country without inspection. The immigration proceedings were stayed, however,
when Jimenez-Vielma was charged in St. Louis County, Missouri, with possession
of cocaine base in violation of Missouri Revised Statutes § 195.202. After Jimenez-
Vielma was convicted in 2015, DHS lodged an additional charge of inadmissability
against him and the proceedings resumed.
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At a series of hearings Jimenez-Vielma admitted entering the United States
without inspection and testified to the facts as set forth above. He also called Dr.
Thomas Boerman to testify as an expert witness about organized crime in Mexico.
Dr. Boerman opined that if removed to Mexico, Jimenez-Vielma would face a risk of
torture or murder based on his familial relationship with his brother, and his status as
a pocho, which Jimenez-Vielma defines as an Americanized Mexican.
The IJ found Jimenez-Vielma inadmissible and subject to removal under
§§ 212(a)(2)(A)(i)(II) and 212(a)(6)(A)(i) of the Immigration and Nationality Act, 8
U.S.C. §§ 1182(a)(2)(A)(i)(II) and 1182(a)(6)(A)(i), and, as recounted above, denied
his applications for asylum, withholding of removal, and CAT protection. Jimenez-
Vielma appealed to the Board, which initially dismissed his appeal in November
2016. We subsequently remanded the case to the Board for further consideration of
the withholding of removal claim, whereupon the Board again dismissed the appeal.
II. Discussion
Jimenez-Vielma challenges the determination that he is removable under
§ 1182(a)(2)(A)(i), which provides that “any alien convicted of . . . (II) a violation of
. . . any law or regulation of a State . . . relating to a controlled substance (as defined
in section 802 of Title 21), is inadmissible.” Jimenez-Vielma argues that his
conviction under Missouri Revised Statutes § 195.202 does not satisfy the federal
provision because Missouri’s controlled substance schedule is broader than the
equivalent federal schedule. Jimenez-Vielma’s argument is foreclosed by our prior
decisions determining that the identity of the controlled substance is an element of the
offense under Missouri law and that § 195.202 is therefore divisible based on the
drug involved. See Martinez v. Sessions, 893 F.3d 1067, 1073 (8th Cir. 2018)
(concluding § 195.211 is divisible under Missouri law); Bueno-Muela v. Sessions,
893 F.3d 1073, 1075 (8th Cir. 2018) (extending Martinez’s reasoning to § 195.202).
Because Jimenez-Vielma was convicted of possessing cocaine base, which is
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criminalized under both state and federal law, he is removable under
§ 1182(a)(2)(A)(i). See 21 C.F.R. § 1308.12.
Because Jimenez-Vielma is removable under § 1182(a)(2)(A)(i), the criminal
alien bar precludes our review of his petition, “save for questions of law or
constitutional claims.” Brikova v. Holder, 699 F.3d 1005, 1008 (8th Cir. 2012)
(recognizing that courts lack jurisdiction over “any final order of removal against an
alien who is removable by reason of having committed a criminal offense covered in
section 1182(a)(2)” (quoting 8 U.S.C. § 1252(a)(2)(C))). We therefore have
jurisdiction to consider only whether Jimenez-Vielma’s right to procedural due
process was violated and whether the Board applied the correct legal standard to his
claim for withholding of removal. See Gallimore v. Holder, 715 F.3d 687, 690 (8th
Cir. 2013) (applying the criminal alien bar to factual challenges to removal and CAT
determinations).
Jimenez-Vielma argues that his Fifth Amendment right to a fair hearing was
violated when the IJ relied on exhibits that were not admitted into evidence. We
review de novo the question whether a petitioner’s procedural due process rights were
violated. See Bracic v. Holder, 603 F.3d 1027, 1032 (8th Cir. 2010). To establish a
due process violation, Jimenez-Vielma must demonstrate “both a fundamental
procedural error and prejudice.” Ramirez v. Sessions, 902 F.3d 764, 772 (8th Cir.
2018). We find no error here, and if we did, we would find no prejudice.
Although Jimenez-Vielma’s objections to certain exhibits were never overruled
on the record, the record reflects that all exhibits on which the IJ relied were
admitted. The disputed exhibits related to Jimenez-Vielma’s controlled substance
conviction and his expert’s credentials. Accordingly, they were probative and their
admission into evidence was fundamentally fair. See Nyama v. Ashcroft, 357 F.3d
812, 816 (8th Cir. 2004) (“The sole test for admission of evidence [in immigration
proceedings] is whether the evidence is probative and its admission is fundamentally
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fair.” (quoting Espinoza v. INS, 45 F.3d 308, 310 (9th Cir. 1995))). For the same
reasons, we conclude that Jimenez-Vielma was not prejudiced by the exhibits’
admission. Jimenez-Vielma does not point to any prejudice other than that the
exhibits were admitted and that they were adverse to his case. See Ramirez, 902 F.3d
at 772 (“To establish prejudice, [petitioner] must show ‘the outcome of the
proceeding may well have been different had there not been any procedural
irregularities.’” (quoting Tun v. Gonzales, 485 F.3d 1014, 1026 (8th Cir. 2007))).
Because the IJ did not err in admitting the exhibits, Jimenez-Vielma suffered no
deprivation of due process.
Finally, Jimenez-Vielma’s petition asserts that the Board applied the wrong
legal standard when analyzing his claim for withholding of removal. He contends
that the Board and IJ erroneously applied the “one central reason” nexus requirement
used for asylum claims. See Garcia-Moctezuma v. Sessions, 879 F.3d 863, 867 (8th
Cir. 2018) (discussing the “one central reason” standard). We decline to consider
this newly raised argument. Jimenez-Vielma was represented by counsel and does
not explain why he failed to raise this argument before the Board, particularly in light
of our previous remand to the Board for further consideration of the nexus issue. His
failure to do so precludes our consideration of the argument. See id. at 867-68
(declining to consider petitioner’s “one central reason” argument in light of his failure
to raise the issue below).
The petition for review is denied.
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