Kleynburg v. Holder

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT May 22, 2013

Elisabeth A. Shumaker
Clerk of Court
IRINA RUVINOVNA KLEYNBURG,
a/k/a Irena R. Davis, a/k/a Irina R. Davis,
a/k/a Irena Romnovna Davis,

Petitioner,

v. No. 12-9588
(Petition for Review)
ERIC H. HOLDER, JR., United States
Attorney General,

Respondent.

ORDER AND JUDGMENT*

Before KELLY, Circuit Judge, PORFILIO, Senior Circuit Judge, and HOLMES,
Circuit Judge.

Irina Ruvinovna Kleynburg petitions for review of a decision by the Board of

Immigration Appeals (BIA) affirming the Immigration Judge’s determination that she

is statutorily ineligible for cancellation of removal. Exercising jurisdiction pursuant

to 8 U.S.C. § 1252, we deny the petition for review.

*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
I. Background

Petitioner is 53 years old. She entered the United States in November 1992 as

a refugee from Moldova. In January 1993 and December 1993, she was arrested for

shoplifting. Petitioner pled guilty to the offenses in 1993 and 1994, respectively. In

2002, petitioner filed an application to adjust her status to that of a lawful permanent

resident. On the application form, she said she had never been arrested.

At her adjustment interview, the immigration officer confronted her with

evidence of her two 1993 arrests. Petitioner said they happened a long time ago, she

did not remember much about them, and she thought they were cleared from her

record. The officer noted that she had failed to disclose her arrests and determined

she appeared to be inadmissible (and therefore not eligible for an adjustment of

status) because she had committed a crime involving moral turpitude (CIMT) and had

misrepresented material facts during her application process. He told her she would

need to file for a waiver of these grounds of inadmissibility and directed her to

“submit certified copies of any and all arrests and/or convictions.” Admin. R. at 731.

Petitioner then filed an application for a waiver, but she did not include copies

of any arrests or convictions, nor did she specifically list the reasons for which she

sought the waiver on the form. Attached to the application, however, was a page

from her interview with the immigration officer describing the arrests at issue, her

explanation for failing to reveal them, and her description of the offenses. On

February 19, 2002, her application was approved and her status was adjusted to that

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of a lawful permanent resident (LPR). Because she was a refugee, the adjustment of

status dated back to her initial entry into the United States in November 1992. See

8 U.S.C. § 1159(a)(2).

Petitioner subsequently committed a host of shoplifting offenses, and in

February 2012, the Department of Homeland Security (DHS) commenced removal

proceedings against her based on two of her shoplifting convictions (in 2006 and

2010) and a conviction for attempted acquisition of a controlled substance by

prescription alteration. The Immigration Judge (IJ) found that the government

proved the grounds for removal by clear and convincing evidence, which petitioner

does not contest. Petitioner sought discretionary relief in the form of cancellation of

removal under 8 U.S.C. § 1229b(a).

To qualify for relief under § 1229b(a), petitioner had to meet three criteria,

only one of which is at issue here: she had to have “resided in the United States

continuously for 7 years after having been admitted in any status.” Id. § 1229b(a)(2).

Because she was granted LPR status retroactive to November 1992, that was the

entry date for purposes of calculating the seven years. The BIA determined,

however, that petitioner did not have seven years of continuous residence because of

the “stop-time rule” contained in § 1229b(d).

The stop-time rule was enacted as part of the amendments to the Immigration

and Nationality Act in 1996 through the Illegal Immigration Reform and Immigrant

Responsibility Act (IIRIRA). As pertinent here, the stop-time rule provides that any

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period of continuous residence will be deemed to have ended “when the alien has

committed an offense referred to in section 1182(a)(2) . . . that renders the alien

inadmissible . . . under section 1182(a)(2) . . . or removable . . . under section

1227(a)(2) or 1227(a)(4).” 8 U.S.C. § 1229b(d)(1).

The BIA determined that petitioner’s commission of the two theft offenses1 in

1993 ended the period of continuous residence under the stop-time rule. First, it

determined that petitioner’s 2002 application for a waiver “does not establish that it

was granted for her 1993 and 1994 retail theft convictions because these convictions

are not specifically listed on the waiver application.” Admin. R. at 4. Second, the

BIA determined that even if the 2002 waiver did cover petitioner’s two CIMT

convictions, it did not erase those convictions for purposes of the

continuous-residence calculation under the stop-time rule in § 1229b(d)(1). The BIA

also rejected petitioner’s argument that applying the stop-time rule to her pre-IIRIRA

convictions was impermissibly retroactive.

Finally, the BIA denied petitioner’s motion for remand in which she argued

that the government attorney had made misrepresentations of fact and law to the IJ

and the BIA and that the IJ may have participated in ex parte communications with

government counsel. The BIA concluded that petitioner was given a meaningful

1
Petitioner has not raised any challenge to the agency’s conclusion that her
1993 retail thefts were CIMTs that rendered her inadmissible under § 1182(a)(2) and
removable under § 1227(a)(2).

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opportunity to be heard, that there was no indication the IJ’s conduct amounted to a

due process violation, and, in any event, that petitioner had not shown any prejudice.

Petitioner now seeks review of the BIA’s decision.

II. Discussion

We first address our jurisdiction. Although we lack jurisdiction to review

discretionary aspects of a BIA decision concerning cancellation of removal, we retain

jurisdiction to review non-discretionary determinations such as the one in this case

involving § 1229b’s continuous-residence requirement. See Sabido Valdivia v.

Gonzales, 423 F.3d 1144, 1147-49 (10th Cir. 2005). The BIA’s decision in the

instant case was written by one board member and contains the BIA’s reasoning.

8 C.F.R. § 1003.1(e)(5). Under these circumstances, our review is limited to the

grounds articulated in the BIA’s decision. See Barrera-Quintero v. Holder, 699 F.3d

1239, 1244 (10th Cir. 2012). We review de novo the constitutional claims and

questions of law at issue in this case. Id. at 1243.

Petitioner spends much of her brief arguing that the agency erred in

determining that her two CIMT convictions were not waived because they were not

specifically listed on her waiver application when she adjusted her status in 2002.

We need not address that issue because petitioner must also show that, even if the

waiver covered her CIMT convictions, those convictions could not be used to

determine whether she met the continuous-residence requirement for cancellation of

removal. As the government explains, petitioner “erroneously conflates the waiver

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of grounds of inadmissibility she received in 2002 with a waiver of the immigration

consequences of the crimes underlying the grounds of admissibility.” Resp. Br.

at 14.

Petitioner argues that government counsel conceded at the hearing before the

IJ that if the waiver covered her CIMT convictions, then those convictions probably

could not be used for the stop-time rule. But the IJ and BIA both concluded

otherwise. She fails to offer a reasoned rebuttal to the BIA’s conclusion that, even if

the convictions were waived, it would “not erase the convictions for purposes of

continuous residence under [§ 1229b(d)(1)], and her commission of the theft offenses

in 1993 stopped the accrual of her period of continuous residence.” Admin. R. at 4.

In reaching this conclusion, the BIA relied on In re Balderas, 20 I. & N. Dec. 389

(BIA 1991).

Petitioner argues that the BIA incorrectly cited to Balderas because the BIA

should not apply the stop-time rule retroactively to her pre-IIRIRA convictions. But

retroactive application has nothing to do with the BIA’s reliance on Balderas. The

BIA cited Balderas for the proposition that “a waiver of inadmissibility or

deportability waives only the ground charged, but not the underlying basis for

removability.” Admin. R. at 4. Petitioner has not articulated how the BIA erred in

relying on the substantive holding in Balderas in determining that petitioner’s 1993

CIMTs, even if waived as grounds for inadmissibility for adjustment-of-status

purposes, could still be used for the purposes of determining whether she met the

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continuous-residence requirement for cancellation of removal. We see no basis to

disagree with the BIA’s determination on this issue.

We next consider petitioner’s argument that the BIA erred in applying the

stop-time rule retroactively. The BIA held that petitioner’s argument was foreclosed

by its precedential decisions in In re Robles-Urrea, 24 I. & N. Dec. 22, 28

(BIA 2006), and In re Perez, 22 I. & N. Dec. 689, 691 (BIA 1999), which rejected

the argument that the stop-time rule was impermissibly retroactive if applied to

convictions occurring before the effective date of IIRIRA. Petitioner argues,

however, that the Supreme Court’s recent decision in Vartelas v. Holder, 132 S. Ct.

1479 (2012), precludes the BIA from applying the stop-time rule to her 1993 and

1994 convictions. We disagree.

The Court in Vartelas was not concerned with the stop-time rule, but with

another provision of IIRIRA, 8 U.S.C. § 1101(a)(13), that effectively changed the

ability of an LPR who had been convicted of a CIMT before IIRIRA’s enactment to

travel outside the United States without risking placement in removal proceedings as

an inadmissible alien upon his return. The Court explained that “[t]he essential

inquiry . . . is whether the new provision attaches new legal consequences to events

completed before its enactment.” Vartelas, 132 S. Ct. at 1491 (internal quotation

marks omitted). Because the petitioner in Vartelas had been able to travel freely

before IIRIRA despite his 1994 CIMT conviction but could not do so after IIRIRA

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based solely on that conviction, the Court concluded that § 1101(a)(13) could not be

applied retroactively under the circumstances.

We see nothing in Vartelas that would prohibit applying the stop-time rule to

petitioner’s two pre-IIRIRA CIMT convictions. Petitioner entered the country in

1992 and committed two CIMTs in 1993. Those offenses made her immediately

removable under pre-IIRIRA law. She was not eligible for discretionary relief when

she pleaded guilty to those CIMTs and she did not become eligible for such relief

before IIRIRA’s enactment. Petitioner therefore had no greater right to stay in the

country before IIRIRA was enacted than she does now. Considering the essential

inquiry in Vartelas, applying the stop-time rule to petitioner’s 1993 CIMTs to

preclude eligibility for cancellation of removal is not impermissibly retroactive

because it does not attach a new legal consequence to those convictions. This is also

consistent with circuit cases considering the retroactivity of the stop-time rule. See

Martinez v. INS, 523 F.3d 365, 373-74 (2d Cir. 2008) (explaining that applying

stop-time rule did not impermissibly attach “a new disability” to pre-IIRIRA crime

because the crime at issue rendered the alien deportable both before and after

IIRIRA’s enactment); Sinotes-Cruz v. Gonzales, 468 F.3d 1190, 1202-03 (9th Cir.

2006) (holding that stop-time rule could not be applied retroactively to pre-IIRIRA

crime that did not render alien ineligible for discretionary relief before IIRIRA but

did render him so after IIRIRA’s reclassification of the crime). Accordingly, we see

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no error in the BIA’s decision to apply the stop-time rule to petitioner’s pre-IIRIRA

convictions.

Petitioner further argues that the BIA’s application of the stop-time rule

conflicts with the refugee roll-back provision in 8 U.S.C. § 1159(a)(2), which grants

the benefits of legal permanent residence retroactively to the time of the alien’s

initial admission as a refugee. Her argument is not a model of clarity but appears to

be that refugees must be exempt from application of the stop-time rule or else the

retroactive granting of legal permanent residence for refugees would be meaningless.

We see no merit to this argument. There is nothing in 8 U.S.C. § 1229b(d)(1)

indicating that Congress intended for LPRs who had previously been refugees to be

exempt from the stop-time rule if they end up in removal proceedings and are seeking

discretionary relief from removal. Moreover, Congress knows how to create such

exemptions as it did so for battered spouses and children. See 8 U.S.C.

§ 1229b(b)(2)(B) (exempting aliens who have been battered or subjected to extreme

cruelty by a spouse or parent from strict application of the stop-time rule).

Finally, petitioner complains that the BIA erred in denying her motion to

remand. She asserts that she “made a prima facie case of injurious, willful,

deliberate misrepresentation of facts and possibly the law by DHS counsel.”

Pet’r Br. at 31. But, as the BIA correctly held, petitioner has not identified any

prejudice to her from the alleged conduct of DHS counsel; without such prejudice,

she cannot prevail on a due process challenge, see Berrum-Garcia v. Comfort,

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390 F.3d 1158, 1165 (10th Cir. 2004). Petitioner had a full and fair opportunity to be

heard before the IJ, and she has not identified or explained how any additional

evidence would change the outcome of her case. The BIA correctly determined that

petitioner failed to establish a due process claim necessitating a remand.

III. Conclusion

For the foregoing reasons, we deny the petition for review.

Entered for the Court

John C. Porfilio
Senior Circuit Judge

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