Julio Sosa Uvalle v. Merrick Garland

• Court: Court of Appeals for the Fourth Circuit
• Decided: March 10, 2023
• Docket: 21-2418
• Status: Unpublished

Opinion

USCA4 Appeal: 21-2418 Doc: 48 Filed: 03/10/2023 Pg: 1 of 10

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-2418

JULIO ABRAHAM SOSA UVALLE,

Petitioner,

v.

MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals.

Argued: December 7, 2022 Decided: March 10, 2023

Before WILKINSON and RUSHING, Circuit Judges, and FLOYD, Senior Circuit Judge

Dismissed in part, granted in part, and remanded by unpublished opinion. Senior Judge Floyd wrote the opinion in which Judge Wilkinson and Judge Rushing joined.

ARGUED: Jay S. Marks, LAW OFFICES OF JAY S. MARKS, LLC, Silver Spring, Maryland, for Petitioner. Amber Ashley Arthur, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Nicole Littell Diop, LAW OFFICES OF JAY S. MARKS, LLC, Silver Spring, Maryland, for Petitioner. Brian Boynton, Principal Deputy Assistant Attorney General, Nancy E. Friedman, Senior Litigation Counsel, Brooke M. Maurer, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 21-2418 Doc: 48 Filed: 03/10/2023 Pg: 2 of 10

FLOYD, Senior Circuit Judge:

Petitioner Julio Abraham Sosa Uvalle—a citizen of Mexico—asks this Court to

review a decision of the Board of Immigration Appeals (BIA) dismissing his appeal of an

immigration judge’s (IJ) order of removal. As relevant here, Uvalle contends that the IJ

and the BIA erred (1) by denying his application for cancellation of removal as a

discretionary matter, and (2) by concluding that his conviction for identity theft under

Maryland Criminal Code § 8-301(c) constituted a categorical crime of moral turpitude such

that he required a waiver of inadmissibility to pursue adjustment of status. For the reasons

that follow, we dismiss the petition in part and grant the petition in part, remanding for the

BIA to consider whether identity theft under Maryland Criminal Code § 8-301(c)

categorically constitutes a crime of moral turpitude for purposes of adjustment-of-status

eligibility.

I.

Julio Abraham Sosa Uvalle is a native and citizen of Mexico. In 1987, he entered

the United States with his mother and sister. Since that time, he has not left the country,

he married an American citizen, and the two had a son. In August 2019, the Department

of Homeland Security (DHS) detained Uvalle, charging him with being present in the

United States without inspection and admission, or parole, in violation of Immigration and

Nationality Act (INA) § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i). Uvalle contended

that he was properly admitted with a border-crossing card, and he applied for cancellation

of removal under INA § 240A(b), 8 U.S.C. § 1229b(b)(1). An IJ pretermitted his 2 USCA4 Appeal: 21-2418 Doc: 48 Filed: 03/10/2023 Pg: 3 of 10

application for cancellation, holding that he was convicted of a crime involving moral

turpitude (CIMT) based on a 2009 conviction for identity fraud to avoid prosecution, in

violation of Maryland Criminal Code § 8-301(c)(1). Uvalle filed an application to adjust

status under INA § 245(a), 8 U.S.C. § 1255(a), also seeking a waiver of grounds of

inadmissibility under § 212(h), 8 U.S.C. § 1182(h). The IJ denied him relief.

Uvalle appealed the IJ’s decision to the BIA, and the DHS filed an additional charge

of inadmissibility, amending the charge of removability to INA § 237(a)(1)(B), 8 U.S.C.

§ 1227(a)(1)(B), which provides for removal when a noncitizen is present in violation of a

law of the United States. The BIA remanded for the IJ to consider the new charge. The

BIA’s remand order provided that “[f]urther consideration of [Uvalle’s] claims to relief is

not warranted upon remand unless he establishes that such claims should be ‘reopened.’”

Administrative Record (“A.R.”) 755.

Uvalle moved to reopen, seeking relief based on an intervening CIMT-related

decision of this Court, Nunez-Vasquez v. Barr, 965 F.3d 272 (4th Cir. 2020). Nunez-

Vasquez held than an identity theft conviction under Virginia Code § 18.2–186.3(B1) “does

not [categorically] require morally reprehensible conduct,” and thus “is not a CIMT.”

Nunez-Vasquez, 965 F.3d at 286. According to Uvalle, his Maryland statute of conviction

likewise does not categorically punish CIMTs, and thus does not render him ineligible for

cancellation or inadmissible such that a waiver would be needed to adjust his status. He

also sought reopening based on new and ongoing familial hardships. The IJ denied his

motion, concluding in relevant part that the Virginia statute at issue in Nunez-Vasquez was

distinguishable from the Maryland statute of conviction here. The IJ further declined to 3 USCA4 Appeal: 21-2418 Doc: 48 Filed: 03/10/2023 Pg: 4 of 10

waive his inadmissibility as a discretionary matter. Finally, the IJ noted that Uvalle failed

to offer any new evidence of familial hardship.

Uvalle appealed to the BIA. The BIA found the IJ’s decision to be insufficient for

appellate review and remanded for the IJ to issue a new decision incorporating past legal

conclusions and factual findings. Accordingly, the IJ issued a new decision in July 2021

incorporating prior analysis. The decision was returned to the BIA and it affirmed,

dismissing Uvalle’s appeal. The BIA concluded that Uvalle was removeable, did not merit

a waiver of inadmissibility for the purpose of adjustment of status, and did not merit

discretionary cancellation of removal. Notably, it did not reach the CIMT issue because

(1) with respect to adjustment of status, it concluded that Uvalle did not merit a

discretionary waiver, and (2) with respect to cancellation, “even if [Uvalle] had not been

convicted of a CIMT, he has not met his burden of proof to show he would merit a favorable

exercise of discretion for cancellation of removal.” A.R. 7.

Uvalle now petitions this Court to review the decision not to adjust his status or

cancel his removal. He argues that the IJ erred as a matter of law by concluding that his

conviction for identity fraud was a CIMT, and, assuming that it was not a CIMT, by failing

to fully address his eligibility to adjust status in that novel context. He further argues that

the BIA erred by declining to reach the CIMT issue in affirming the IJ’s order. As relevant

here, the U.S. Attorney General (the “government”) responds that we should remand to the

BIA so that it may address whether Uvalle’s conviction is categorically a CIMT for

purposes of adjustment of status.

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This panel requested supplemental briefing on two questions: (1) whether identity

theft under Maryland Criminal Code § 8-301(c) is categorically a crime involving moral

turpitude; and (2) whether this Court may review the BIA’s denial of cancellation of

removal independent of the CIMT issue.

In supplemental briefing, Uvalle argues that the conviction is not categorically a

CIMT, and that this Court may review the BIA’s denial of cancellation of removal

independent of the CIMT issue. The government argues that remand is still the most

appropriate path forward on the CIMT issue to provide the BIA with an adequate

opportunity to consider it in the first instance. The government further argues that the

conviction at issue here is a CIMT, and that this Court cannot review the purely

discretionary denial of cancellation of removal affirmed by the BIA.

II.

A.

We first address cancellation of removal. Under the INA, a noncitizen “who is

present in the United States in violation of this chapter or any other law of the United States

. . . is deportable.” 8 U.S.C. § 1227(a)(1)(B). The government may cancel removal when

an applicant meets four statutory criteria:

1) that the applicant has been physically present in the United States for at least ten continuous years, 2) that the applicant had been a person of “good moral character” during that ten-year period, 3) that the applicant had not committed certain enumerated offenses, and 4) that the applicant “establishes that removal would result in exceptional and extremely unusual hardship to the applicant’s citizen or lawful permanent resident spouse, parent, or children.” 5 USCA4 Appeal: 21-2418 Doc: 48 Filed: 03/10/2023 Pg: 6 of 10

Gonzalez Galvan v. Garland, 6 F.4th 552, 557 (4th Cir. 2021) (simplified); see also 8

U.S.C. § 1229b(b)(1)(A)–(D). Notably, under the third statutory criterion, an applicant

convicted of a CIMT is ineligible for cancellation. See 8 U.S.C. § 1229b(b)(1)(C); 8 U.S.C.

§ 1182(a)(2)(A). Even if an applicant satisfies the four statutory requirements, the

government “still retains the discretion to deny an application for cancellation of removal.”

Gonzalez Galvan, 6 F.4th at 557 (citations omitted).

Under 8 U.S.C. § 1252(a)(2)(B), federal courts lack jurisdiction to review the

government’s denial of discretionary relief. “The statute specifically strips federal courts

of jurisdiction to review the denial of cancellation of removal under 8 U.S.C. § 1229b.”

Gonzalez Galvan, 6 F.4th at 558. However, § 1252(a)(2)(D) “provides that this limitation

on judicial review shall not ‘be construed as precluding review of constitutional claims or

questions of law.’” Id. (simplified). The Supreme Court recently held that “questions of

law” include those concerning “the application of a legal standard to undisputed or

established facts.” Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1067 (2020).

This Court recently applied the Supreme Court’s holding in Guerrero-Lasprilla in

the context of cancellation of removal under § 1229b(b)(1)(D). See Gonzalez Galvan, 6

F.4th at 557–60. There, we held that “an IJ’s determination [of] whether an applicant has

satisfied the statutory requirement of ‘exceptional and extremely unusual hardship’ to

establish eligibility for cancellation of removal presents a mixed question of law and fact

subject to judicial review,” but we cannot review an IJ’s “ultimate discretionary

determination [of] whether to grant or deny an application . . . after an applicant meets the

6 USCA4 Appeal: 21-2418 Doc: 48 Filed: 03/10/2023 Pg: 7 of 10

four statutory eligibility requirements.” Id. at 560, 562. The Supreme Court has since

clarified that any review under § 1252(a)(2)(B) must defer to factual determinations made

by the IJ and the BIA. Patel v. Garland, 142 S. Ct. 1614, 1627 (2022).

Here, Uvalle conceded his removability under 8 U.S.C. § 1227(a)(1)(B). A.R. 4.

The IJ then pretermitted Uvalle’s application for cancellation of removal, concluding that

he did not merit relief. The IJ first reasoned that Uvalle’s Maryland conviction constituted

a CIMT, rendering him ineligible for cancellation. A.R. 185–88. It then proceeded to

conclude in the alternative that, even if it erred in its CIMT analysis, Uvalle failed to prove

the statutory requirement of exceptional and extremely unusual hardship, particularly given

its conclusion that he failed to prove the less demanding requirement of “extreme hardship”

in the course of his tangential pursuit of an adjustment-of-status waiver. A.R. 188. Finally,

the IJ explained that Uvalle was not entitled to discretionary relief—also noting that Uvalle

failed to argue why discretionary relief was warranted, as was his burden. Id. The BIA

affirmed, declining to reach the CIMT issue given the IJ’s alternative grounds for denial of

cancellation—the statutory hardship element and its own discretionary determination.

Uvalle now seeks our review of the denial of cancellation of removal on the sole

ground that his Maryland conviction is not a CIMT. But, critically, he fails to address the

alternative bases on which the IJ and BIA declined to cancel his removal. Absent any

argument regarding his burden to demonstrate exceptional and extremely unusual

circumstances, we decline to consider this mixed question of law and fact under Guerrero-

Lasprilla and Gonzalez Galvan. Even if Uvalle challenged the remaining discretionary

basis for denial of cancellation, we are without jurisdiction to review such a challenge. 8 7 USCA4 Appeal: 21-2418 Doc: 48 Filed: 03/10/2023 Pg: 8 of 10

U.S.C. § 1252(a)(2)(B). Consequently, we dismiss Uvalle’s petition for lack of jurisdiction

to the extent that it challenges the BIA’s discretionary determination that he is not entitled

to cancellation of removal.

B.

We next turn to adjustment of status. Under the INA, the government may adjust

the status of a noncitizen if “(1) the [noncitizen] makes an application for such adjustment,

(2) the [noncitizen] is eligible to receive an immigrant visa and is admissible to the United

States for permanent residence, and (3) an immigrant visa is immediately available to him

at the time his application is filed.” 8 U.S.C. § 1255(a). Adjustment of status is a

discretionary form of relief. Id. Notably, a noncitizen convicted of a CIMT is inadmissible,

and therefore ineligible to apply for adjustment of status. 8 U.S.C. § 1182(a)(2)(A).

However, an ineligible noncitizen may seek a waiver of inadmissibility. 8 U.S.C.

§ 1182(h). Such a waiver is discretionarily granted. Id. As relevant here, a waiver may

be warranted if an applicant demonstrates that their denial of admission would inflict

extreme hardship on a United States citizen spouse, parent, son, or daughter. Id.

§ 1182(h)(1)(B).

Here, the IJ determined that Uvalle was ineligible for adjustment of status given its

finding that his Maryland conviction was a CIMT. A.R. 1037. Consequently, it concluded

that he required a waiver of inadmissibility before it could consider adjusting his status.

Id. The IJ then denied him a waiver under 8 U.S.C. § 1182(h) as a discretionary matter

and because he failed to demonstrate extreme hardship to an immediate family member. 8 USCA4 Appeal: 21-2418 Doc: 48 Filed: 03/10/2023 Pg: 9 of 10

A.R. 1043. The BIA “affirm[ed] the [IJ’s] determination that [Uvalle] does not merit

discretionary relief for a waiver of inadmissibility under [8 U.S.C. § 1182(h)].” A.R. 5.

Uvalle now seeks our review of the IJ’s determination that a waiver of

inadmissibility was necessary. 1 Both the IJ and the BIA couched their denials of

adjustment exclusively in terms of waiver eligibility under 8 U.S.C. § 1182(h)—and not in

terms of broader adjustment eligibility under 8 U.S.C. § 1255(a)—given the IJ’s position

that the Maryland conviction was a CIMT. Perplexingly, the BIA affirmed the IJ’s denial

of a waiver while simultaneously declining to reach the CIMT question—a question that,

in this context, presupposes whether a waiver is even necessary for adjustment eligibility.

The government now argues that, even if the Maryland conviction is not a CIMT,

the BIA’s eligibility conclusion would be the same under § 1255(a) as it was under

§ 1182(h)’s waiver provision—particularly given the discretionary nature of relief under

both provisions. But “when a BIA order does not demonstrate that the agency has

considered an issue, the proper course, except in rare circumstances, is to remand to the

agency for additional investigation or explanation.” Oliva v. Lynch, 807 F.3d 53, 61 (4th

Cir. 2015) (simplified); see also Negusie v. Holder, 555 U.S. 511, 517 (2009) (“When the

BIA has not spoken on ‘a matter that statutes place primarily in agency hands,’ our ordinary

rule is to remand to ‘give the BIA the opportunity to address the matter in the first instance

in light of its own expertise.” (simplified)); Li Fang Lin v. Mukasey, 517 F.3d 685, 693–94

1 Whether Uvalle’s Maryland conviction categorically constitutes a CIMT such that it triggers the 8 U.S.C. § 1182(h) waiver requirement is a question of law that soundly fits within this Court’s appellate jurisdiction under 8 U.S.C. § 1252(a)(2)(D). 9 USCA4 Appeal: 21-2418 Doc: 48 Filed: 03/10/2023 Pg: 10 of 10

(4th Cir. 2008) (explaining that, when the BIA has not spoken on an issue, “[w]e would

run the risk of violating fundamental separation-of-powers principles if we attempted to

divine the BIA’s thoughts on [the] matter and tried to build a legal conclusion in a veritable

vacuum where BIA interpretation should always first exist”). Consequently, we decline to

determine whether Uvalle’s conviction was a CIMT given that the BIA has not considered

the issue in the first instance. We likewise decline to engage in what would effectively be

a harmless-error analysis—concluding that the BIA’s discretionary conclusion under

§ 1255(a) would mirror its analysis under § 1182(h)—when the agency has likewise not

considered this question in the first instance. 2

Thus, we grant Uvalle’s petition in part, remanding for the BIA to decide in the first

instance whether a violation of Maryland Criminal Code § 8-301(c) categorically

constitutes a CIMT. If the BIA concludes that such a violation is not a CIMT, it must

reevaluate Uvalle’s eligibility for adjustment of status under 8 U.S.C. § 1255(a).

DISMISSED IN PART, GRANTED IN PART, AND REMANDED

2 Notably, the government has maintained throughout the pendency of this appeal that remand on the CIMT issue and derivative relief eligibility would be appropriate. 10