Ballesteros v. Ashcroft

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
March 29, 2007
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

ENRIQ UE COLIN BALLESTEROS,
Petitioner, No. 04-9528
v. (B.I.A. No. A90-622-008)
ALBERTO R. GONZA LES, 1
Respondent.

OR D ER ON PETITION FOR REHEARING

Before H E N RY, M cK AY, and TYM KOVICH, Circuit Judges.

Petitioner requests panel rehearing or rehearing en banc. W e previously

held, inter alia, that the Board of Immigration Appeals (“BIA”) properly applied

Tenth Circuit law to determine that Petitioner was removable as an aggravated

felon because of a state felony drug possession conviction. Ballesteros v.

Ashcroft, 452 F.3d 1153 (10th Cir. 2006). W e subsequently granted Petitioner’s

motion to stay the mandate pending the Supreme Court’s decision in Lopez v.

Gonzalez, 127 S. Ct. 625 (2006). In Lopez, the Court overturned our line of cases

holding that state felony drug offenses qualify as aggravated felonies even if not

1
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney
General Alberto R. Gonzales is automatically substituted for former Attorney
General John Ashcroft as the respondent in this case.
punishable as felonies under federal law. See Gonzalez-Gonzalez v. Weber, 472

F.3d 1198, 1202 (10th Cir. 2006).

W e agree with the parties that this case must be remanded to the BIA for

reconsideration and to allow Petitioner an opportunity to seek relief from

removal. W e accordingly R EM AND for further proceedings in light of Lopez,

G RA NTIN G the petition for rehearing in this respect. 2 However, our previous

disposition in this appeal remains fully effective except to the extent that it is

inconsistent with Lopez or this order.

Entered for the Court

M onroe G. M cKay
Circuit Judge

2
The suggestion for rehearing en banc w as circulated to the panel members
and the active judges of the court. No member of the panel nor judge in active
service on the court having requested a poll, the suggestion for rehearing en banc
is denied.

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 F I L E D
United States Court of Appeals
Tenth Circuit
PU BL ISH
June 14, 2006
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

ENRIQ UE COLIN BALLESTEROS,
Petitioner,
v. No. 04-9528
JOHN ASHCROFT,
Respondent.

Petition for Review of a Decision of
the Board of Im migration Appeals
(No. A90-622-008)

Jeff Joseph, Denver, Colorado, for Petitioner.

Blair T. O’Connor, Senior Litigation Counsel (Emily Anne Radford, Assistant
Director, with him on the brief), United States D epartment of Justice, Civil
Division, Office of Immigration Litigation, W ashington, D.C., for Respondent.

Before H E N RY, M cK AY, and TYM KOVICH, Circuit Judges.

M cK A Y, Circuit Judge.

In 1999, M r. Ballesteros, a lawful permanent resident of the United States,

pleaded guilty to one count of felony possession of a controlled substance. Under
the terms of the plea agreement, the Idaho court withheld judgment, and

M r. Ballesteros was placed on three years’ probation, which M r. Ballesteros

completed without incident.

Subsequent to M r. Ballesteros’ completion of his probation, the Department

of Homeland Security (“DHS”) reorganized its detention boundaries and

formalized its already-existing policy of detaining in Colorado aliens arrested in

M ontana and Idaho. In 2003, agents from the U.S. Immigration and Customs

Enforcement (“ICE”) arrested M r. Ballesteros in Idaho for immigration violations

and transferred him to an immigration detention facility in Aurora, Colorado.

To the immigration judge in Colorado M r. Ballesteros argued that his

previous drug conviction was neither a conviction of a controlled substance

offense nor an aggravated felony offense that would qualify him for removal

without relief. He argued that, under Ninth Circuit law, a first-time convicted

alien who qualified for drug treatment under the Federal First Offender Act

(“FFO A”) did not have a conviction for immigration purposes. M r. Ballesteros

also filed a motion for change of venue because, he argued, all the important

aspects of the case occurred in Idaho and it would be more convenient for

potential witnesses to travel to Seattle rather than Colorado.

The immigration judge rejected M r. Ballesteros’ arguments and held that

his conviction constituted a conviction of a controlled substance offense and an

aggravated felony offense under Tenth Circuit law. Such a conviction would

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make M r. Ballesteros ineligible for any relief from removal and render any

change in venue meaningless since there would be “no real point in having any

witnesses and so the convenience to w itnesses [w as] not [of] substantial concern

. . . .” The immigration judge treated M r. Ballesteros’ motion for change of

venue as an improper attempt to secure the benefit of Ninth Circuit law and

ordered that M r. Ballesteros be removed.

M r. Ballesteros timely filed an appeal to the Board of Immigration Appeals

(“BIA”) challenging the denial of his change of venue request and the application

of Tenth Circuit law to his case. He also argued that the immigration judge

improperly applied a previous BIA opinion that defined what constituted an

aggravated felony because the BIA opinion post-dated his plea and conviction.

The BIA upheld the immigration judge’s denial of the change of venue motion as

an appropriate exercise of discretion and held that Tenth Circuit law applied in

the case. The BIA noted that the Tenth Circuit has often applied its own law to

determine whether a conviction from another circuit constituted an aggravated

felony.

In response to the allegation that the immigration judge impermissibly

applied a BIA case retroactively, the BIA explained that its “prior interpretation

of [the aggravated felony statute] was not an administrative ‘rule’ in any

meaningful sense” and that moving to a policy of following circuit court authority

did not implicate retroactivity concerns. The BIA further held that, even if its

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previous interpretation were a rule, the Supreme Court has “acknowledged the

power of administrative agencies to announce ‘new rules’ through adjudication

rather than formal rulemaking and placed the burden of proving detrimental

reliance on the opponents of the new rule.” Because M r. Ballesteros did not

provide any evidence of detrimental reliance, the BIA held that he had not met his

burden, and BIA affirmed the immigration judge’s order of removal. M r.

Ballesteros now appeals the BIA’s order of removal to this court. 1

M r. Ballesteros argues to this court that (1) Ninth Circuit law should be

applied in this case; (2) the change in definition of conviction for immigration

purposes violated his settled expectations regarding his plea agreement; (3) the

DHS detention boundary reorganization violated his due process rights because

the change was not pursuant to the Administrative Procedure Act’s (“APA ”)

notice and comment requirements; (4) the BIA’s decision denying the motion to

change venue constituted an abuse of discretion; and (5) ICE arrested him without

a valid warrant, rendering the deportation proceedings unfair.

1
M r. Ballesteros has also petitioned the U.S. District Court for the District
of Colorado for a writ of habeas corpus. In his habeas petition, M r. Ballesteros
raised all the same arguments that he raises before this court. The Colorado
district court granted M r. Ballesteros’ subsequent motion for change of venue,
transferring the case to the U .S. District Court for the D istrict of Idaho, and also
ordered that the government transfer M r. Ballesteros to the jurisdiction of the
Idaho district court. ICE has since placed M r. Ballesteros in a supervised release
program. The Idaho district court is staying the habeas proceedings pending the
resolution of this appeal.

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 I. Jurisdiction

Our review of immigration decisions is limited by statute. Congress has

eliminated judicial review of both the BIA ’s discretionary decisions, 8 U.S.C. §

1252(a)(2)(B), and of any “final order of removal against an alien who is

removable by reason of having committed” certain offenses, among them

aggravated felonies and controlled substance offenses, 8 U.S.C. § 1252(a)(2)(C).

But these jurisdictional restrictions are subject to two exceptions. First, we retain

jurisdiction to examine certain aspects of an alien’s removal, even when removal

is for an aggravated felony or controlled substance offense. W e have explained

that, in reviewing final orders of removal for aggravated felonies, “[c]ourts of

appeals have jurisdiction . . . ‘to determine whether the jurisdictional bar applies.

[Courts] may therefore decide whether the petitioner is (i) an alien (ii) deportable

(iii) by reason of a criminal offense listed in the statute.’” Latu v. Ashcroft, 375

F.3d 1012, 1017 (10th Cir. 2004) (quoting Tapia Garcia v. INS, 237 F.3d 1216,

1220 (10th Cir. 2001)). W e therefore have jurisdiction to review any of M r.

Ballesteros’ claims that challenge the BIA’s order of removal by arguing that his

plea and conviction do not constitute an offense that warranted removal without

relief.

The second exception comes from the recently enacted R EAL ID Act. In

Calcano-M artinez v. INS, 533 U.S. 348, 350 n.2 (2001), the Supreme Court

recognized a narrow exception to § 1252(a)(2)(C)’s broad jurisdiction-stripping

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provision and noted that courts of appeals retained “jurisdiction to review

‘substantial constitutional challenges’ raised by aliens who come w ithin the

strictures of § 1252(a)(2)(C).” See also M orales Ventura v. Ashcroft, 348 F.3d

1259, 1262 (10th Cir. 2003). W ith the REAL ID Act, Congress expanded this

exception to § 1252’s jurisdiction-stripping provision. Pub. L. No. 109-13, 119

Stat. 231, 310 (2005). The new subparagraph of § 1252 states that “[n]othing in

[1252(a)(2)(B) or (C)], or in any other provision of this chapter (other than this

section) which limits or eliminates judicial review, shall be construed as

precluding review of constitutional claims or questions of law raised upon a

petition for review . . . .” 8 U.S.C. § 1252(a)(2)(D ); see Perales-Cumpean v.

Gonzales, 429 F.3d 977, 982 n.4 (10th Cir. 2005). Congress expressly intended

this new provision to apply retroactively to all final deportation orders. REAL ID

Act § 106(b) (noting that the law applies “to cases in which the final

administrative order of removal, deportation, or exclusion was issued before, on,

or after the date of enactment [M ay 11, 2005].”). Consequently, unless another

subparagraph of § 1252 precludes our review of M r. Ballesteros’ claims that raise

either constitutional or legal questions, we also have jurisdiction to review those

claims. 2

2
The parties in this case submitted their briefs before the REAL ID Act was
enacted. Because the government relied on jurisdictional arguments that the
REAL ID Act eliminated, it filed a motion to withdraw its blanket argument that
this court lacks the jurisdiction to hear M r. Ballesteros’ constitutional and non-
(continued...)

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 II. M r. Ballesteros’ Arguments that H e Does Not Q ualify for
Removal W ithout Relief

M r. Ballesteros presents two arguments that his past offenses should not

qualify for removal without relief. He admits both that he is an alien and that he

has a prior conviction, but he disputes the government’s position that his prior

conviction should subject him to removal without relief. First, he argues that

Ninth Circuit law should apply to this case. Second, he argues that a change in

the definition of conviction for immigration purposes violated his settled

expectations regarding his plea agreement. If M r. Ballesteros is correct that Ninth

Circuit law should apply, then he is entitled to relief from his removal order.

The BIA correctly dismissed M r. Ballesteros’ argument that the BIA should

apply Ninth Circuit law to his case. Before the BIA and in his brief to this court,

M r. Ballesteros did not dispute that under Tenth Circuit law his conviction for

drug possession constitutes an aggravated felony for immigration purposes.

Instead, he argued that Ninth Circuit law controlled the facts of his case. But the

choice of law in an immigration decision is not governed by the same kind of

choice of law analysis applied in a diversity action. As the BIA noted in its

opinion, “an immigration judge should analyze removability and relief issues

2
(...continued)
jurisdictional claims. W e grant the government’s motion. Accordingly, we do
not address that issue.

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using only the decisions of the circuit in which he or she sits . . . since it is to that

circuit that any appeal from a final order of removal must be taken.” Further, an

alien has “no legal right to have removal proceedings commenced against him in a

particular place,” Latu, 375 F.3d at 1019, and “no litigant has a right to have the

interpretation of one federal court rather than that of another determine his case,”

M enowitz v. Brown, 991 F.2d 36, 40 (2d Cir. 1993).

W e routinely apply Tenth Circuit law to determine whether a conviction

from another jurisdiction constitutes an aggravated felony or controlled substance

offense. See United States v. Castro-Rocha, 323 F.3d 846, 851-52 (10th Cir.

2003); Tapia-Garcia v. INS, 237 F.3d 1216, 1221-23 (10th Cir. 2001); United

States v. Cabrera-Sosa, 81 F.3d 998, 1000-01 (10th Cir. 1996). W e held in Elkins

v. Com fort, 392 F.3d 1159, 1163-64 (10th Cir. 2004), that a foreign drug

conviction, even if it would have qualified for FFO A, remained a conviction for

immigration purposes. Accord United States v. Zamudio, 314 F.3d 517, 521-22

(10th Cir. 2002) (“[A] plea in abeyance [in another jurisdiction] satisfies the

definition of conviction laid out in [the immigration statute].”). There is no

meaningful distinction between M r. Ballesteros’ conviction and the foreign

conviction in Com fort. As the BIA recognized in another case, “except in the

Ninth Circuit, a first-time simple drug possession offense expunged under a state

rehabilitative statute is a conviction under section 101(a)(48)(A) of the

[immigration act].” In re Salazar-Regino, 23 I. & N. Dec. 223, 235 (BIA 2002).

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The BIA properly applied Tenth Circuit law and held that M r. Ballesteros’ prior

conviction qualifies him for removal without relief.

M r. Ballesteros also argues that the BIA should apply Ninth Circuit law so

as not to retroactively disturb his settled expectation that his plea agreement

would not affect his immigration status. But to prevail on this claim, M r.

Ballesteros must show that he relied on Ninth Circuit law when entering into his

plea agreement. Hindering this argument is the fact that the Ninth Circuit

decision on which M r. Ballesteros claims to have relied was issued nearly eight

months after his plea agreement. Lujan-Armendariz v. INS, 222 F.3d 728 (9th

Cir. 2000). Reliance is particularly difficult for M r. Ballesteros to prove because,

at the time of his plea agreement, the controlling BIA decision on the issue of

drug possession held that first-time drug offenders remained convicted for

immigration purposes notwithstanding the operation of various state rehabilitative

statutes under the immigration law’s then-new definition of “conviction.” In re

Roldan, 22 I. & N. Dec. 512, 528 (BIA 1999). Even if M r. Ballesteros could

make out a legal argument for reliance on Ninth Circuit law, he has not provided

any record evidence to support this claim–for example, evidence that M r.

Ballesteros’ acceptance of the plea was conditioned on the plea’s inability to

affect his immigration status. The record contains only allegations by counsel of

such reliance, but these allegations are not evidence. See Carrillo-Gonzalez v.

INS, 353 F.3d 1077, 1079 (9th Cir. 2003).

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 III. M r. Ballesteros’ Claims and the REAL ID Act

Next, M r. Ballesteros raises an argument that falls within the REAL ID

Act’s expansion of this court’s jurisdiction to review constitutional claims or

questions of law. He argues that DHS violated the APA and, therefore, his due

process rights when it reorganized the detention boundaries without notice and

comm ent. Before the REAL ID Act, this claim would have been precluded by

either § 1252(a)(2)(B)–which precludes review of the BIA’s denial of

discretionary relief–or § 1252(a)(2)(C)–w hich precludes review of removal orders

for criminal aliens–but it now falls within our jurisdiction. 8 U.S.C. §

1252(a)(2)(D).

The DHS reorganization did not, however, require the notice and comm ent

process. If a challenged agency action creates a “legislative rule,” then full

compliance with the APA’s notice and comment processes is required. M ission

Group Kansas, Inc. v. Riley, 146 F.3d 775, 781 (10th Cir. 1998). Legislative

rules “affect[] individual rights and obligations.” M orton v. Ruiz, 415 U.S. 199,

232 (1974). But “interpretive rules, general statements of policy or rules of

agency organization, procedure or practice” can be implemented without notice

and comment. 5 U.S.C. § 553(b)(A). Interpretive rules must “‘be derivable from

the statute that it implements by a process fairly to be described as interpretive;

that is, there must be a path that runs from the statute to the rule, rather than

merely consistency between statute and rule.’” M ission, 146 F.3d at 783 n.8

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(quoting Richard A. Posner, The Rise and Fall of Administrative Law, 72 Chi.-

Kent L. Rev. 953, 962 (1997)).

M r. Ballesteros relies on the unpublished opinion of United States v.

Seward, Nos. 79-1711 et seq., 1981 U.S. App. LEXIS 21300 (10th Cir. Jan. 5,

1981), for support that the DHS reorganization was a substantive rule. In Seward,

the Department of Energy expanded the trespass buffer zone around a nuclear

facility without notice and comment. Id. at *8. Sixteen days later, Seward and

others protested on the property and were arrested for trespass. Id. The change in

the buffer zone “brought the area in question within the scope of the trespass

regulations for the first time, thereby creating a criminal offense where there had

been none.” Id. at *10 (emphasis added). In this case, however, the DHS

reorganization did not create a new offense or affect a legal obligation. As

discussed earlier, aliens have no legal right to have the removal proceedings in a

particular location. Latu, 375 F.3d at 1019. And there is no evidence that the

change upset any settled legal expectations. That the reorganization had a

substantive effect on the M r. Ballesteros’ removal proceedings does not mean that

the change was a legislative rule. See Air Transport Ass’n of Am. v. Dep’t of

Transp., 900 F.2d 369, 383 (D .C . Cir. 1990) (Silberman, J., dissenting) (“Of

course, procedure impacts on outcomes and thus can virtually always be described

as affecting substance, but to pursue that line of analysis results in the

obliteration of the distinction [between legislative and interpretive rules] that

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Congress demanded.”).

The DHS reorganization was an interpretation of the statute that gives the

DHS the authority to conduct removal proceedings. The implementing statute

gives DHS the authority to “arrange for appropriate places of detention for aliens

detained pending . . . a decision on removal.” 8 U.S.C. § 1231(g)(1). The DHS

reorganization merely interpreted the grant of statutory authority, and that

interpretation did not create or alter a legal obligation. In this case, the pertinent

right is M r. Ballesteros’ right to choose the location of removal hearing, and that

right was not affected by the DHS reorganization–he did not have the right

before, and he does not have the right after. Because the DHS reorganization was

an interpretive rule, it was exempt from the A PA’s notice and comment process

and is therefore valid.

Even after the REAL ID Act, M r. Ballesteros’ remaining arguments–that

the BIA abused its discretion in denying his motion to change venue and that he

was arrested without a warrant–still fall outside of our jurisdiction. The

regulation governing change of venue in removal proceedings states that “[t]he

[i]mmigration [j]udge, for good cause, may change venue only upon motion by

one of the parties [and] only after the other party has been given notice and an

opportunity to respond to the motion to change venue.” 8 C.F.R. § 1003.20(b)

(emphasis added). This regulation gives the immigration judge complete

discretion, even to the extent that the immigration judge may still deny the a

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change of venue motion when good cause is present. See, e.g., Chow v. INS, 12

F.3d 34, 39 (5th Cir. 1993) (“The decision of whether to grant a change of venue

is committed to the [agency’s] sound discretion . . . .”). Because the BIA’s

discretionary decisions are precluded from our review by 8 U.S.C. §

1252(a)(2)(B)(ii), the venue argument must raise either constitutional question or

raise a question of law .

M r. Ballesteros’ venue claim raises neither and is, therefore, beyond our

review. W hile in the criminal context at least, “venue is a right of constitutional

dimension,” United States v. M iller, 111 F.3d 747, 749 (10th Cir. 1997), an alien

has “no legal right to have removal proceedings commenced against him in a

particular place,” Latu, 375 F.3d at 1019, and M r. Ballesteros’ venue arguments

focus on matters of convenience and not constitutional violations. Neither does

his venue claim present a question of law. In civil cases, the question of whether

a litigant has brought an action in the proper court is a question of law, while the

question of whether to dismiss or transfer an action filed in an improper venue is

“within the district court’s sound discretion” and reviewed for abuse of discretion

only. First of M ichigan Corp. v. Bramlet, 141 F.3d 260, 262 (6th Cir. 1998)

(citing Pierce v. Shorty Small’s of Branson, Inc., 137 F.3d 1190 (10th Cir. 1998)).

M r. Ballesteros’ argument is not that venue was improper in Colorado but that

venue w as more convenient in the Ninth Circuit. His argument attacks the BIA’s

discretion to, “for good cause,” transfer a removal proceeding to another venue.

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This does not present a question of law. See Bautista-Contreras v. INS, No. 90-

9589, 1991 W L 164276, at *1 (10th Cir. Aug. 21, 1991) (applying an abuse of

discretion standard of review to the BIA’s denial of a motion for change of venue

before the statutory prohibition on our review of the BIA’s discretionary

decisions); accord Slingluff v. Occupational Safety & H ealth Review Comm’n,

425 F.3d 861, 866 (10th Cir. 2005) (“[W]e review an agency’s decision under the

arbitrary, capricious or abuse of discretion standard, [and] we must uphold the

agency’s action if it has articulated a rational basis for the decision and has

considered relevant factors. However, these limitations do not apply to questions

of law.”). Because M r. Ballesteros’ venue claim presents neither a question of

law nor a constitutional question, our review of it is precluded by 8 U.S.C. §

1252(a)(2)(B)(ii).

Last, we hold that M r. Ballesteros’ constitutional claims, chief among them

that he was arrested without warrant, are outside our jurisdiction. Our review of

this type of constitutional claim is precluded by a subsection of § 1252 for which

the REAL ID Act’s “constitutional claim” exception does not apply. In addition

to the already discussed specific limitations on review, § 1252 also contains a

general jurisdictional limitation–it limits our review to “final order[s] of

removal.” 8 U.S.C. § 1252(a)(1). M r. Ballesteros analogizes his situation to that

of a criminal defendant and seeks to use alleged constitutional violations to

overturn his removal, while he hopes that any future removal proceedings w ould

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be conducted in the Ninth Circuit. But removal is a civil, not criminal,

proceeding, and the “various protections that apply in the context of a criminal

trial do not apply in a deportation hearing.” INS v. Lopez-M endoza, 468 U.S.

1032, 1039 (1984). As the Supreme Court noted, “[t]he Court of Appeals have

held, for example[,] that the absence of M iranda warnings does not render an

otherwise voluntary statement by the respondent inadmissible in a deportation

case.” Id. at 1039. No remedy for the alleged constitutional violations w ould

affect the BIA’s final order of removal. Any remedy available to M r. Ballesteros

would lie in a Bivens action. He is not, therefore, in the same position as a

criminal defendant and is not, even if his allegations prove true, entitled to a

reversal of his removal based on a “fruit of the poisonous tree” theory. Because

the alleged constitutional deficiencies are beyond the scope of the BIA’s final

order of removal, they are also beyond our review.

W e A FFIR M the BIA’s final order of removal.

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