Ochieng v. Mukasey

FILED
United States Court of Appeals
Tenth Circuit

March 18, 2008
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT

COLLINS OCHIENG,

Petitioner,

v. Nos. 07-9530 & 07-9554

MICHAEL B. MUKASEY, *
Attorney General,

Respondent.

ORDER

Before KELLY, McKAY, and ANDERSON, Circuit Judges.

The respondent has filed a motion to publish the order and judgment

previously issued on February 6, 2008. The motion is GRANTED. The published

opinion is filed nunc pro tunc to that date, and a copy is attached.

Entered for the Court

ELISABETH A. SHUMAKER, Clerk

*
On November 9, 2007, Michael B. Mukasey became the United States
Attorney General. In accordance with Rule 43(c)(2) of the Federal Rules of
Appellate Procedure, Mr. Mukasey is substituted for Alberto R. Gonzales as the
respondent in these matters.
 FILED
United States Court of Appeals
Tenth Circuit

February 6, 2008
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

COLLINS OCHIENG,

Petitioner,

v. Nos. 07-9530 & 07-9554

MICHAEL B. MUKASEY, *
Attorney General,

Respondent.

ON PETITIONS FOR REVIEW FROM
THE BOARD OF IMMIGRATION APPEALS

Submitted on the briefs: **

Collins Ochieng, Pro Se.

Mark C. Walters, Assistant Director, Peter H. Matson, Trial Attorney, Office of
Immigration Litigation, Civil Division, U.S. Department of Justice, Washington,
D.C., for Respondent.

*
On November 9, 2007, Michael B. Mukasey became the United States
Attorney General. In accordance with Rule 43(c)(2) of the Federal Rules of
Appellate Procedure, Mr. Mukasey is substituted for Alberto R. Gonzales as the
respondent in these matters.
**
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Before KELLY, McKAY, and ANDERSON, Circuit Judges.

McKAY, Circuit Judge.

Mr. Collins Ochieng, a native and citizen of Kenya proceeding pro se

before this court, petitions for review of the Board of Immigration Appeals’

(BIA) dismissal of his appeal of an order of removal (appeal No. 07-9530) and its

denial of his motion to reopen (appeal No. 07-9554). We have jurisdiction under

8 U.S.C. § 1252(a), and we deny the petitions for review.

I

Mr. Ochieng was admitted as a legal permanent resident in December 2003.

In September 2005, he was convicted of an Idaho offense entitled “injury to

children” and sentenced to three years fixed and seven years indeterminate

imprisonment, all suspended. An immigration judge (IJ) found that the offense

constituted a crime of violence and child abuse and determined that Mr. Ochieng

should be removed. The BIA remanded the case because the record was not clear

what evidence the IJ evaluated and it could not determine whether the IJ’s

decision was supported by sufficient evidence. On remand, the IJ accepted new

evidence from the government over Mr. Ochieng’s objection. He determined that

the offense was not a crime of violence, but that it was a crime of “child abuse,

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child neglect, or child abandonment” rendering Mr. Ochieng removable under

8 U.S.C. § 1227(a)(2)(E)(i). The BIA dismissed Mr. Ochieng’s appeal.

Mr. Ochieng then filed a motion to reopen, arguing that his counsel was

ineffective for failing to argue that the admission of the government’s new

evidence was barred by res judicata and for failing to move for relief from

removal. The BIA denied the motion to reopen on the ground that Mr. Ochieng

had not complied with the procedural requirements of Matter of Lozada,

19 I. & N. Dec. 637 (BIA 1988), and had not shown prejudice from counsel’s

allegedly deficient performance. Mr. Ochieng filed timely petitions for review

from each of the BIA’s decisions. Upon Mr. Ochieng’s request, this court

consolidated the petitions for review for procedural purposes.

II

In both matters, the BIA issued its own brief single-member order. Thus,

we review the BIA’s orders, and “will not affirm on grounds raised in the IJ

decision unless they are relied upon by the BIA in its affirmance.” Uanreroro v.

Gonzales, 443 F.3d 1197, 1204 (10th Cir. 2006). “However, when seeking to

understand the grounds provided by the BIA, we are not precluded from

consulting the IJ’s more complete explanation of those same grounds.” Id.

We review legal questions de novo and factual findings for substantial evidence.

Tulengkey v. Gonzales, 425 F.3d 1277, 1280 (10th Cir. 2005).

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 No. 07-9530

Mr. Ochieng raises numerous challenges to the BIA’s dismissal of his

appeal. For the following reasons, we find each argument meritless.

He first argues that the agency “mixed up two Idaho state statutes to

produce [a Notice to Appear] charging the appellant with a felony.” Pet’r Br. at

12. The agency did not err in determining that Mr. Ochieng’s state conviction

was under Idaho Code Ann. § 18-1501(1). While a September 6, 2005, minute

order recited that the conviction was for “injury to children” under Idaho Code

Ann. § 18-1505(1), that section involves abuse of vulnerable adults. A May 9,

2005, minute order documenting Mr. Ochieng’s plea identified the crime as a

violation of Idaho Code Ann. § 18-1501(1), which is entitled “[i]njury to

children.” The September 6 reference to § 1505 was obviously a typographical

error, as the BIA found.

It was not error for the IJ to rely on the May 9 minute order because, in

determining the existence of a conviction, an IJ may rely on “[a]n official record

of plea, verdict, and sentence,” 8 U.S.C. § 1229a(c)(3)(B)(i), “[o]fficial minutes

of a court proceeding or a transcript of a court hearing in which the court takes

notice of existence of the conviction,” id. § 1229a(c)(3)(B)(iv), or “[a]ny

document or record prepared by, or under the direction of, the court in which the

conviction was entered that indicates the existence of a conviction,” 8 C.F.R.

§ 1003.41(a)(6). Further, contrary to Mr. Ochieng’s argument, a violation of

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Idaho Code Ann. § 18-1501(1) is, or at least can be, a felony. See State v. Young,

64 P.3d 296, 299 (Idaho 2002) (characterizing § 18-1501(1) conviction as “felony

injury to a child”).

The agency also did not err in regard to the evidence. As the BIA stated,

the admission of the May 9, 2005, minute order was not barred by res judicata

because there had not yet been a final adjudication in the removal proceeding.

See MACTEC, Inc. v. Gorelick, 427 F.3d 821, 831 (10th Cir. 2005) (noting that

the first element of res judicata is “a final judgment on the merits in an earlier

action”). After the IJ’s first decision, the BIA remanded for further proceedings,

so at the time of the second hearing there was no final judgment to which

res judicata could attach. Further, the BIA specifically provided in its remand

order that “[i]n the remanded proceedings, the parties shall be permitted an

opportunity to present further evidence regarding the respondent’s removability

and any removal relief for which he may be eligible.” Admin. R. at 83. As for

the documents (a complaint, a summons, and police reports) that Mr. Ochieng

argues were incorrectly admitted and examined, the IJ specifically noted that he

had not considered the police reports in making his findings. Id. at 77. And there

is no indication that the BIA relied upon the complaint or summons, but even if

the BIA did rely on those documents, it is not clear that such reliance would be

error. See Vargas v. Dep’t of Homeland Sec., 451 F.3d 1105, 1109 (10th Cir.

2006) (holding that, in some circumstances, courts may look to reliable judicial

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records, such as the charging document, to determine the factual basis for a plea).

In any event, the BIA’s decision is supported by substantial evidence that is

sufficient to prove a conviction, namely, the two minute orders discussed above.

Mr. Ochieng also challenges the agency’s determination that his conviction

qualified as a crime of “child abuse, child neglect, or child abandonment” under

§ 1227(a)(2)(E)(i). Because the BIA is construing a statute that it administers,

our review is deferential under the principles set forth in Chevron U.S.A. Inc. v.

Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984). See INS

v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999); Loeza-Dominguez v. Gonzales,

428 F.3d 1156, 1158 (8th Cir. 2005), cert. denied, 127 S. Ct. 67 (2006). Thus,

we must decide “whether Congress has directly spoken to the precise question at

issue”; if so, our inquiry is at an end. Chevron, 467 U.S. at 842. “[I]f the statute

is silent or ambiguous with respect to the specific issue, the question for the court

is whether the agency’s answer is based on a permissible construction of the

statute.” Id. at 843.

Congress did not define the terms “child abuse” or “child neglect” in the

Immigration & Nationality Act. In a case determining whether an offense

constituted an aggravated felony under 8 U.S.C. § 1101(a)(43)(A) because it

qualified as “sexual abuse of a minor,” the BIA defined “child abuse” as “any

form of cruelty to a child’s physical, moral or mental well-being.” In re

Rodriguez-Rodriguez, 22 I. & N. Dec. 991, 996 (BIA 1999) (quotation and

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parentheses omitted). The BIA applied that definition in this case as well. Like

the Eighth Circuit, “[w]e see no basis to conclude that the BIA acted

unreasonably in employing this common legal definition of ‘child abuse’” in

a case under § 1227(a)(2)(E)(i). Loeza-Dominguez, 428 F.3d at 1158. We also

see no basis to conclude that the BIA erred in determining that the minimum

behavior required for a conviction under Idaho Code Ann. § 18-1501(1) satisfies

§ 1227(a)(2)(E)(i). See Young, 64 P.3d at 299 (“A plain reading of section

18-1501(1) indicates that its purpose is to punish conduct or inaction that

intentionally causes a child to suffer.”); id. (noting that § 18-1501(1) does not

reach “good faith decisions that turn out poorly–innocent mistakes in judgment”).

Mr. Ochieng’s other issues do not require extensive discussion. He

contends that his offense was not a “crime of domestic violence.” This question

is irrelevant. Section 1227(a)(2)(E)(i) specifies several different bases for

removal: (1) crimes of domestic violence, (2) crimes of stalking, or (3) crimes of

“child abuse, child neglect, or child abandonment.” The IJ determined, and the

BIA agreed, that Mr. Ochieng’s offense was a crime of “child abuse, child

neglect, or child abandonment.” The offense need not also qualify as a crime of

domestic violence to render Mr. Ochieng removable. He also complains that the

IJ erroneously found him removable as an aggravated felon. This contention

simply is incorrect; the IJ specifically found that the conviction was not an

aggravated felony, see Admin. R. at 78, 79, and the BIA did not indicate to the

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contrary. He also complains that the agency relied on factually distinguishable

authority in citing United States v. Bonilla-Montenegro, 331 F.3d 1047, 1049

(9th Cir. 2003), and Matter of Rodriguez-Rodriguez. We do not find, however,

that the BIA’s reliance on these cases was improper.

Finally, Mr. Ochieng challenges his mandatory detention under 8 U.S.C.

§ 1226(c). This court is not the appropriate forum to raise such a challenge in the

first instance. The Supreme Court has held that an alien may challenge detention

under § 1226(c) through a habeas corpus proceeding under 28 U.S.C. § 2241.

Demore v. Kim, 538 U.S. 510, 517 (2003). It appears that subsequently-enacted

provisions of the REAL ID Act limiting habeas relief, codified at 8 U.S.C.

§§ 1252(a)(5) and 1252(b)(9), do not apply in these circumstances, as

Mr. Ochieng would not be seeking review of an order of removal, but review of

his detention. See Singh v. Gonzales, 499 F.3d 969, 978 (9th Cir. 2007)

(concluding that “both §§ 1252(a)(5) and 1252(b)(9) apply only to those claims

seeking judicial review of orders of removal” and noting that the legislative

history stated that the REAL ID Act “would not preclude habeas review over

challenges to detention that are independent of challenges to removal orders”

(quotation and added emphasis omitted)). We express no opinion on the merits of

any § 2241 petition Mr. Ochieng may file.

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 No. 07-9554

Mr. Ochieng also challenges the BIA’s denial of his motion to reopen. We

have jurisdiction to review the denial of the motion to reopen. Infanzon v.

Ashcroft, 386 F.3d 1359, 1362 (10th Cir. 2004). Our review is for abuse of

discretion. Id.

The BIA did not abuse its discretion in denying the motion to reopen. Even

if Mr. Ochieng met the Lozada requirements, he did not suffer prejudice from

counsel’s allegedly ineffective assistance. Particularly, as discussed above, there

was no ground for counsel to argue that admission of the Idaho court’s May 9,

2005, minute order was barred by res judicata. As for the other assignment of

error Mr. Ochieng raises before this court (counsel’s erroneous advice that he

should petition the Ninth Circuit for review of the BIA’s orders), it does not

appear that this argument was presented to the BIA. In any event, he was not

prejudiced by this incorrect advice because he has been able to pursue his

petitions for review in this court.

III

Mr. Ochieng’s “Motion for Review” is construed as a supplemental petition

for review. His motion to proceed in forma pauperis is GRANTED. His motion

for reconsideration of this court’s denial of his motion for a stay of removal is

DENIED. His motion to supplement his motion to abate these appeals pending

his state-court proceedings attacking his conviction is GRANTED, and his motion

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to abate is DENIED. Even if the state court were to vacate or otherwise alter

Mr. Ochieng’s conviction, he could not seek relief from this court in the first

instance; he would initially have to seek relief at the agency level. The petitions

for review are DENIED.

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