Billeki-Tolosa v. Ashcroft

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Billeke-Tolosa v. Ashcroft No. 02-4395 ELECTRONIC CITATION: 2004 FED App. 0333P (6th Cir.) File Name: 04a0333p.06 _________________ COUNSEL UNITED STATES COURT OF APPEALS ON BRIEF: Barry L. Frager, FRAGER LAW FIRM, FOR THE SIXTH CIRCUIT Memphis, Tennessee, for Appellant. Deborah Misir, Mary _________________ Jane Candaux, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. SERGIO WALDMIR X - _________________ BILLEKE-TOLOSA , Petitioner-Appellant, - OPINION - No. 02-4395 _________________ - v. > , R. GUY COLE, JR., Circuit Judge. Petitioner-Appellant - Sergio Billeke-Tolosa contends that the Board of Immigration JOHN ASHCROFT , Attorney - Appeals (“BIA”), in affirming the decision of the Immigration General, - Judge (“IJ’), violated its own rules by peering behind Billeke- Respondent-Appellee. - Tolosa’s convictions for the lesser offenses of simple assault - and disorderly conduct to use the underlying allegations of N sexual impropriety as the basis for denying his petition for an On Appeal from the Board of Immigration Appeals. adjustment of status. The Government rejoins that we lack No. A29 971 713. jurisdiction to review the BIA’s decision, and that in any event, all procedural rules were followed. Because the Submitted: August 12, 2004 Government’s first contention is refuted by our own precedent, and its second by that of the BIA, the order of Decided and Filed: September 30, 2004 removal is VACATED and the case is REMANDED.

Before: MOORE and COLE, Circuit Judges; MARBLEY, I. BACKGROUND District Judge.* In early 1990, courtesy of a student visa, Billeke-Tolosa arrived in the United States from his native Chile. Although the visa required him to enroll at the University of Southern Mississippi, Billeke-Tolosa subsequently transferred to the University of Memphis, and eventually retired altogether from his studies. On June 14, 1995, the Immigration and Naturalization Service mailed a show cause notice to Billeke- Tolosa, alleging that his failure to pursue a higher education * The Honorable Algenon L. Marbley, United States District Judge for violated the terms of his visa. At a hearing before the IJ in the Southern District of Ohio, sitting by designation.

1 No. 02-4395 Billeke-Tolosa v. Ashcroft 3 4 Billeke-Tolosa v. Ashcroft No. 02-4395

March 1997, Billeke-Tolosa conceded his deportability, but diagnosis of pedophilia, opined to the IJ that Billeke-Tolosa asked for an adjustment of his status, such that he could was not a pedophile and presented no danger to children or lawfully remain in the United States with his wife, a native- society at large. However, the IJ decided against granting the born American citizen whom he married in 1995. adjustment of status. Although acknowledging that “the Court cannot go behind [Billeke-Tolosa]’s guilty plea[s]”—in A hearing on Billeke-Tolosa’s request for adjustment of which he did not admit to any sexual crime—the IJ focused status commenced in July 2000, and focused primarily on his on the “two convictions stemming from improper touching or criminal history. In addition to a few traffic offenses (one of improper exchanges of some type with young girls.” As to which stemmed from charges of driving while impaired by the fact that Billeke-Tolosa had not been convicted of any alcohol), Billeke-Tolosa had twice been accused of sexual charges involving sex abuse, the IJ noted “the difficulties in misconduct involving young girls. The first criminal proving [child-sex offenses] to the State. A child would have complaint alleged that, while at a Christmas party, he “pulled to testify about what had happened several years before.” down the garment of [a five year old girl], exposing her genital area, and then unlawfully and intentionally touched Similarly, the IJ rejected the possibility that Billeke- [her] genital area with his hand.” The second charged that he Tolosa’s landlady had, with the help of a police officer, exposed himself to the four-year old granddaughter of his concocted the allegations for mischievous ends, wondering landlady. “would it not have been easier for [the child’s] [grand]mother to say that [Billeke-Tolosa] exposed himself to her? Then, Billeke-Tolosa denied both charges. The first allegation, he instead of dragging her child into this, she herself would maintained, was motivated by a husband who was jealous that simply have gone to Court and testified.” Indeed, counseled his wife had been socializing with Billeke-Tolosa at the the IJ, “[i]f one is engaged in an act to frame a neighbor, and Christmas party. The second allegation, he contended, was if the person engaged in the framing is a police officer, the hatched by his landlady, who was on the losing end of a scheme should expose the actors to as little risk as possible.” dispute about the rent, and who had access to his criminal record—and therefore knew that he was vulnerable to charges The IJ ordered Billeke-Tolosa removed, and the BIA of child-sex abuse—because her daughter was dating a police affirmed without opinion. officer. Purportedly advised by his attorney in each case that a “he-said/she-said” confrontation with a young child was a II. ANALYSIS risky proposition, Billeke-Tolosa admitted to lesser charges in each instance. In the first, he pled guilty to misdemeanor Billeke-Tolosa argues that in denying his request for assault, for which he was sentenced to time served and fined adjustment of status, the IJ impermissibly considered $1,000. In the second, he pled guilty to disorderly conduct, unproven allegations that did not result in convictions, in and received a suspended sentence based on the court’s violation of BIA precedent. Because the BIA affirmed determination that “the Defendant is not likely again to without explanation, “we review the IJ’s decision to engage in a criminal course of conduct.” determine whether the BIA [erred].” Denko v. INS, 351 F.3d 717, 723 (6th Cir. 2003). Concerned that “where there’s smoke, there’s fire,” the IJ appointed Linda Shoun, a licensed clinical social worker, to evaluate Billeke-Tolosa. Shoun, who was trained in the No. 02-4395 Billeke-Tolosa v. Ashcroft 5 6 Billeke-Tolosa v. Ashcroft No. 02-4395

A. Appellate Jurisdiction save for the Seventh, which has considered the question. See Mickeviciute v. INS, 327 F.3d 1159, 1164 n.4 (10th Cir. The Government urges us to stop short of the merits, 2003); Okpa v. INS, 266 F.3d 313, 317 (4th Cir. 2001); Najjar maintaining that we lack jurisdiction to review the BIA’s v. Ashcroft, 257 F.3d 1262, 1297 (11th Cir. 2001); Bernal- discretionary denial of a request for status adjustment. The Vallejo v. INS, 195 F.3d 56, 62 (1st Cir. 1999); Kalaw v. INS, parties agree that the “transitional rules” of the Illegal 133 F.3d 1147, 1150 (9th Cir. 1997); but see Pilch v. Immigration Reform and Immigrant Responsibility Act of Ashcroft, 353 F.3d 585, 587 (7th Cir. 2003). 1996 (“IIRIRA”) govern our review. One such rule decrees that “there shall be no appeal of any discretionary decision [to In short, we lack jurisdiction over this appeal—which seeks grant or deny adjustment of status].” IIRIRA § 309(c)(4)(E). to redress the IJ and BIA’s failure to follow binding BIA From the Government’s vantage point, because Billeke- rules—only if the IJ was free to ignore the BIA’s binding Tolosa seeks review of the denial of such discretionary relief, rules. This appears unlikely, given that “[i]t is an elemental there is simply nothing for us to review. principal of administrative law that agencies are bound to follow their own regulations.” Wilson v. Comm’r of Social But Billeke-Tolosa does not challenge the IJ’s exercise of Security, 378 F.3d 541, 545 (6th Cir. 2004). Here, of course, discretion per se; rather, he argues that the IJ made a legal Billeke-Tolosa is claiming that the BIA ignored its error in the course of exercising his discretion. A prohibition precedential case law, rather than an agency regulation. But against the review of a discretionary decision need not extend the Government offers no reason why the BIA should be to non-discretionary decisions upon which the discretionary bound by its regulations yet free to ignore its own precedents. decision is predicated. See, e.g., Skutnik v. I.N.S., 128 F.3d See also Hernandez v. Ashcroft, 345 F.3d 824, 846 (9th Cir. 512, 514 (7th Cir. 1997) (Easterbrook, J.) (“[D]oes the 2003) (“A nonprecedential decision by the BIA in defiance of prohibition of judicial review apply when the [BIA]’s its own precedential case law simply cannot be classified as decision is said to violate the Constitution because (for discretionary.”). Nor would the BIA itself endorse such a example) it is based on religion or speech?”). Whether we view, as its own regulations provide that “[e]xcept as Board may consider Billeke-Tolosa’s challenge—which asserts that, decisions may be modified or overruled by the Board or the in the course of exercising its discretion, the BIA violated one Attorney General, decisions of the Board, and decisions of the of its nondiscretionary duties—“depend[s] on whether it is Attorney General, shall be binding on all officers and best to emphasize the word ‘decision’ (all decisions under employees of the Department of Homeland Security or § 244 could be based on an exercise of discretion) or the word immigration judges in the administration of the immigration ‘discretionary’ (only a subset of actions under § 244 reflect an laws of the United States.” 8 C.F.R. § 1003.1(g). exercise of discretion).” Id. The consistent application of an agency’s precedents, like We have chosen the latter course—holding that we may the consistent application of its regulations, serves a critical review the non-discretionary decisions that underlie purpose: the provision of fair notice to those subject to the determinations that are ultimately discretionary. See agency’s decisions. As its regulations provide, “the Board, Valenzuela-Alcantar v. INS, 309 F.3d 946, 949 (6th Cir. through precedent decisions, shall provide clear and uniform 2002) (prohibition on review applies when the specific guidance to the Service, the immigration judges, and the decision is “discretionary, demanding an exercise of general public on the proper interpretation and administration judgment”). Our approach is echoed by every other circuit, of the Act and its implementing regulations.” 8 C.F.R. No. 02-4395 Billeke-Tolosa v. Ashcroft 7 8 Billeke-Tolosa v. Ashcroft No. 02-4395

§ 1003.01(d)(1) (emphasis added). Because the BIA’s Id. The facts in our case are materially the same, suggesting precedential decisions are expressly prepared for the public’s that the IJ erred. Although the IJ was concerned that Billeke- consumption, the BIA’s ability to ignore its own precedents Tolosa had a history of sexually abusing young children, he at will would “tend[] to cause unjust discrimination and deny was not convicted of any such crime, denied committing such adequate notice’ and consequently may result in a violation of a crime, and was confronted with no independent evidence an individual’s constitutional right to due process.” Wilson, suggesting otherwise. 378 F.3d at 545 (internal quotations omitted). Arreguin de Rodriguez does not apply, asserts the All of this is a roundabout way of saying that the BIA had Government, for three reasons. First, the Government argues no discretion to ignore its own precedent. Billeke-Tolosa’s that “[i]n that case, the issue was whether or not to provide a appeal—which asserts that the BIA did so—falls within our discretionary waiver of criminal conduct under the former purview. Section 212(c) of the INA.” But the uncorroborated allegations relied upon by the IJ in that case had nothing to do B. Whether BIA Precedent was Followed with the conviction that prompted the petitioner’s initial exposure to deportation. Like the IJ in our case, the IJ had Billeke-Tolosa argues that the IJ’s consideration of the “concluded that this incident was a negative factor to be unproven allegations of sexual misconduct contravened the considered in exercising discretion.” Id. at 42. In short, that BIA’s resolution of In re Catalina Arreguin de Rodriguez, the trigger for the deportation proceedings was an unrelated 21 I. & N. Dec. 38 (1995). In that case, on the way to criminal conviction, rather than noncompliance with a student denying discretionary relief from deportation following a drug visa, is a distinction without a difference. conviction, the IJ had considered the “applicant’s arrest in 1980 on suspicion of smuggling aliens,” which the petitioner Second, the Government insists that “while the alien in denied and for which the petitioner was never convicted. Id. Arreguin de Rodriguez was not prosecuted for the conduct at 42. In reversing the IJ’s decision, the BIA noted that: alleged in the arrest report, petitioner, in contrast, was prosecuted and pled guilty.” This would certainly be relevant The Immigration Judge concluded that this incident was if Billeke-Tolosa had pled guilty to the sex crimes with which a negative factor to be considered in exercising he was initially charged. But Billeke-Tolosa pled to simple discretion. Just as we will not go behind a record of assault in one case and disorderly conduct in the other; the IJ conviction to determine the guilt or innocence of an denied relief due to his concern that Billeke-Tolosa was a alien, so we are hesitant to give substantial weight to an sexual deviant. That he was convicted of lesser crimes is arrest report, absent a conviction or corroborating beside the point. evidence of the allegations contained therein. Here, the applicant conceded that the arrest took place but admitted Third, the Government contends that the above-mentioned to no wrongdoing. Considering that prosecution was passage was dicta. Dicta, of course, is language that is only declined and that there is no corroboration, from the “incidental to th[e] holding.” United States v. De John, 368 applicant or otherwise, we give the apprehension report F.3d 533, 539 (6th Cir. 2004). The BIA’s prohibiting little weight. consideration of unproven allegations that lack any other corroboration, however, was necessary to its reversal of the IJ: in that case, the rule it announced undermined the key No. 02-4395 Billeke-Tolosa v. Ashcroft 9 10 Billeke-Tolosa v. Ashcroft No. 02-4395

basis upon which the IJ had denied the petitioner charges] in Germantown I would have adjusted three discretionary relief. hours ago, but I want to know more. Finally, because an agency’s failure to follow its own (emphasis added). Because the IJ suggested that Billeke- procedural rules will rarely constitute harmless error, see Tolosa would have received discretionary relief, but for Wilson, 378 F.3d at 547 (“We do not decide the question of factors that the IJ was not permitted to consider, the IJ’s whether a de minimis violation may qualify as harmless erroneous consideration of these factors was necessarily error.”), the BIA’s failure to follow its precedent subjected prejudicial. Billeke-Tolosa to substantial prejudice. There was no independent evidence of the allegations against him, and III. CONCLUSION Shoun, the court-retained social worker, concluded that Billeke-Tolosa probably had not committed either of the For the preceding reasons, the order of deportation is offenses and likely was not a pedophile. And as noted above, VACATED and the case is REMANDED for additional when Billeke-Tolosa pled guilty to disorderly conduct, his consideration, consistent with this opinion. sentence was suspended because the court determined that “Defendant is not likely again to engage in a criminal course of conduct.” Moreover, the record clearly reflects that the IJ’s concerns about Billeke-Tolosa’s sexual conduct were the driving force behind the denial of his petition for adjusted status. Even before Billeke-Tolosa was examined by Shoun, the IJ announced that: I’m satisfied at this time that [Billeke-Tolosa] and his wife are very hard-working. I’m satisfied that they have a very stable economic life in the United States. I’m satisfied that they have what appears to be a more marital relationship. Mrs. [Billeke-Tolosa] has stood by her husband through a number of run-ins with the police in a very stressful, difficult situation with a . . . landlady. I’m satisfied that they pay their taxes. I’m satisfied that he’s making financial contributions to the community through paying his taxes. I’m also satisfied that he has some community involvement. He testified about helping build this house through a local Presbyterian Church. If I don’t hear anything about indecent exposure charges in . . . Nasvhille and [sexual battery