Valle-Santana v. Garland

• Court: Court of Appeals for the Tenth Circuit
• Decided: February 7, 2024
• Docket: 23-9555
• Status: Unpublished

Opinion

Appellate Case: 23-9555 Document: 010110996279 Date Filed: 02/07/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT February 7, 2024 _________________________________ Christopher M. Wolpert Clerk of Court DANIEL VALLE-SANTANA,

Petitioner,

v. No. 23-9555 (Petition for Review) MERRICK B. GARLAND, United States Attorney General,

Respondent. _________________________________

ORDER AND JUDGMENT * _________________________________

Before MATHESON, BRISCOE, and EID, Circuit Judges. _________________________________

Petitioner Daniel Valle-Santana petitions for review of a decision by the Board of

Immigration Appeals (BIA) dismissing his appeal of the Immigration Judge’s (IJ) denial

of his applications for withholding of removal and Convention Against Torture (CAT)

protection. Exercising jurisdiction under 8 U.S.C. § 1252(a), we deny his petition for

review.

* After examining the briefs and appellate record, this panel has determined unanimously to honor 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 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 23-9555 Document: 010110996279 Date Filed: 02/07/2024 Page: 2

I

1. Factual Background

Petitioner is a native of Mexico and fears he will be harmed there on account

of his family membership. In 2019, Petitioner’s brother fell victim to a fatal assault

by a trio of siblings in Mexico. Subsequently, in 2021, one of these siblings

threatened Petitioner’s sister, indicating that the group intended to inflict harm upon

Petitioner’s family. Petitioner’s family has lived in Mexico without additional harm

or threat since 2021, and he could internally relocate within Mexico to avoid

potential harm.

2. Procedural History

Petitioner entered the United States without inspection in 2004, left the United

States under a grant of voluntary departure in 2009, and reentered the country

without inspection in 2009. In 2021, Petitioner pled guilty to reckless vehicular

assault and driving under the influence in Colorado state court. In immigration

proceedings, Petitioner applied for withholding of removal, but the IJ determined that

the reckless vehicular assault conviction was for a particularly serious crime and that,

as such, Petitioner was not eligible for withholding of removal. The IJ reasoned that

“[c]rimes against persons are more likely to be categorized as serious.” ROA, Vol. 1

at 57 (citing Matter of L-S-, 22 I. & N. Dec. 645, 649 (BIA 1999)). The IJ also

determined that Petitioner had not shown he merited deferral under CAT and ordered

Petitioner removed to Mexico. The BIA affirmed the IJ’s conclusions, and Petitioner

was removed from the United States.

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Subsequent to the BIA’s decision, Petitioner filed an unopposed petition to

withdraw his guilty plea to reckless vehicular assault. The district court for the

County of Jefferson, Colorado, vacated Petitioner’s guilty plea to reckless vehicular

assault because the conviction was obtained in violation of the constitutions and laws

of the United States and Colorado. The same day, the district court entered

Petitioner’s guilty plea to strict liability vehicular assault. Petitioner reentered the

United States without inspection on August 30, 2023, and border patrol reinstated

Petitioner’s prior removal order.

II

When considering a petition for review of a BIA decision, we review legal

questions de novo. Ritonga v. Holder, 633 F.3d 971, 974 (10th Cir. 2011). Factual

findings are reviewed under a substantial evidence standard. Id. The “findings of

fact are conclusive unless any reasonable adjudicator would be compelled to

conclude to the contrary.” Id. (quoting 8 U.S.C. § 1252(b)(4)(B)). Nonetheless, the

factual findings must be “supported by reasonable, substantial and probative evidence

considering the record as a whole.” Sidabutar v. Gonzales, 503 F.3d 1116, 1122

(10th Cir. 2007) (quoting Uanreroro v. Gonzales, 443 F.3d 1197, 1204 (10th Cir.

2006)), abrogated on other grounds by Santos-Zacaria v. Garland, 598 U.S. 411,

424–25 (2023).

We may not “independently search the record for alternative bases to affirm”;

our “review is confined to the reasoning given” by the agency. Elzour v. Ashcroft,

378 F.3d 1143, 1150 (10th Cir. 2004). Our review is of the BIA’s decision, with the

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exception of “consult[ing] the IJ’s opinion to the extent that the BIA relied upon or

incorporated it.” Karki v. Holder, 715 F.3d 792, 800 (10th Cir. 2013) (quoting Sarr

v. Gonzales, 474 F.3d 783, 790 (10th Cir. 2007)).

III

The issues on appeal are (1) whether reckless vehicular assault qualifies as a

particularly serious crime and therefore forecloses Petitioner’s application for

withholding of removal, (2) whether the vacatur of Petitioner’s guilty plea requires us

to remand this matter for reconsideration of Petitioner’s application for withholding

of removal, and (3) whether Petitioner should receive CAT protection.

1. Reckless Vehicular Assault

Whether a conviction is for a “particularly serious crime,” 8 U.S.C.

§ 1231(b)(3)(B)(ii), “will depend upon the specific facts in each case and, in judging

the seriousness of a crime, the Board of Immigration Appeals will consider such

factors as the nature of the conviction, the circumstances and underlying facts of the

conviction, the type of sentence imposed, and, most importantly, whether the type

and circumstances of the crime indicate that the alien will be a danger to the

community.” Matter of Frentescu, 18 I. & N. Dec. 244, 244 (BIA 1982), superseded

in part on other grounds by amendment to 8 U.S.C. § 1253(h)(2) (1991). Since

Frentescu, the BIA’s approach to particularly serious crime determinations has

evolved such that “once [a non-citizen] is found to have committed a particularly

serious crime, [the BIA] no longer engage[s] in a separate determination to address

whether the [non-citizen] is a danger to the community.” In Re N-A-M-, 24 I. & N.

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Dec. 336, 342 (BIA 2007). The “proper focus . . . is on the nature of the crime and

not the likelihood of future serious misconduct.” Id. “Once a finding is made that an

alien has been finally convicted of a particularly serious crime, it necessarily follows

that the alien is a danger to the community of the United States.” Matter of Carballe,

19 I. & N. Dec. 357, 357 (BIA 1986).

We cannot reweigh the evidence “to determine if the crime was indeed

particularly serious,” but “we can determine [under 8 U.S.C. § 1252(a)(2)] whether

the BIA applied the correct legal standard in making its determination.” N-A-M- v.

Holder, 587 F.3d 1052, 1055 n.2 (10th Cir. 2009) (quoting Brue v. Gonzales, 464

F.3d 1227, 1232 (10th Cir. 2006)); see also 8 U.S.C. § 1252(a)(2)(D) (“Nothing in

subparagraph (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

filed with an appropriate court of appeals in accordance with this section.”).

Petitioner argues that the BIA did not properly consider the factors from

Frentescu. Petitioner was convicted of reckless vehicular assault under a Colorado

statute that provides as follows: “If a person operates or drives a motor vehicle in a

reckless manner, and this conduct is the proximate cause of serious bodily injury to

another, such person commits vehicular assault.” See Colo. Rev. Stat.

§ 18-3-205(1)(a). The BIA considered the nature of the conviction, i.e., that it was

for a crime that involves injury to others or the potential to cause serious injury to

others. The BIA also considered the circumstances and facts underlying the

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conviction, namely, that Petitioner was driving under the influence of alcohol, that

there was a car accident, and that the driver and a passenger of the other vehicle

respectively suffered a broken foot and a head injury that required eleven staples.

The BIA, therefore, applied the correct standards from Frentescu and N-A-M-. See

Brue, 464 F.3d at 1234–35 (concluding that the BIA considered the appropriate

factors because it recited two of the Frentescu factors and discussed that the victim

of a sexual assault was twelve years old and that Petitioner was a danger to the

community).

Petitioner argues that the IJ did not discuss all reliable information in the

record before determining Petitioner’s conviction was for a particularly serious

crime. Specifically, Petitioner argues that the IJ did not discuss evidence that (1) the

driver with the broken foot walked away from the scene and refused medical

assistance, and (2) Petitioner was not able to speak in complete sentences at the scene

because he was not fluent in English. Petitioner also submits that the IJ and the BIA

did not discuss that Petitioner’s accident was two days after his brother’s death, and

the IJ and the BIA should have considered this fact under Matter of B-Z-R-, a

decision in which the Attorney General held that “immigration adjudicators may

consider a respondent’s mental health in determining whether a respondent, ‘having

been convicted by a final judgment of a particularly serious crime, constitutes a

danger to the community of the United States.’” 28 I. & N. Dec. 563, 567 (AG 2022)

(quoting 8 U.S.C. § 1158(b)(2)).

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As an initial matter, we remind Petitioner that our review is of the BIA’s

opinion, not the IJ’s decision. Karki, 715 F.3d at 800 (quoting Sarr, 474 F.3d at

790). In addition, Petitioner’s arguments cannot succeed because we “cannot

reweigh evidence to determine if the crime was indeed particularly serious.”

N-A-M-, 587 F.3d at 1055 n.2. Moreover, the evidence underlying Petitioner’s

argument hardly rises to the level of compelling any reasonable adjudicator to

conclude Petitioner was not under the influence or did not injure another person.

Ritonga, 633 F.3d at 974.

Petitioner also argues that a crime with the mental state of recklessness cannot

be considered a crime against a person. Petitioner’s cited authority for this argument,

however, Borden v. United States, 593 U.S. 420, 424 (2021), relies on the categorical

approach of comparing the elements of federal crimes to the elements of state crimes,

which the BIA stated has never been determined to apply to the “inherently

discretionary determination of whether a conviction is for a particularly serious

crime.” N-A-M-, 24 I. & N. Dec. at 344. The BIA has also held that an individual’s

lack of intent to hurt anyone is insufficient to show that the individual is not subject

to the particularly serious crime bar. Matter of D-L-S-, 28 I. & N. Dec. 568, 578

(BIA 2022).

2. Vacatur of Petitioner’s Plea

Petitioner argues that the vacatur of his guilty plea to reckless vehicular assault

means that this matter should be remanded for a determination of whether his

substituted conviction is for a particularly serious crime and whether this bars

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consideration for withholding of removal. Petitioner’s argument that this issue was

properly presented to the agency is dubious. The BIA issued its decision on June 7,

2023, and on July 10, 2023, the district court for the County of Jefferson, Colorado,

vacated Petitioner’s guilty plea for reckless vehicular assault and entered Petitioner’s

guilty plea to strict liability vehicular assault. In addition, Petitioner made no

argument regarding the new conviction in his brief before the BIA, and the BIA did

not discuss the new conviction in its decision. Petitioner simply stated in his brief

that “he is in ongoing negotiations with the Jefferson County Conviction Integrity

Office regarding Respondent’s Vehicular Assault conviction, as that plea was

obtained without Respondent’s full knowledge of the consequences of his plea, and a

joint motion for post-conviction relief is anticipated. At such time as a motion is

filed and granted, Respondent will update the Board and submit a Motion to Remand

on the basis of changed circumstances.” ROA, Vol. 1 at 23. There is no indication

Petitioner filed such a motion with the BIA.

We “shall decide the petition only on the administrative record on which the

order of removal is based.” 8 U.S.C. § 1252(b)(4)(A). As such, we are “statutorily

precluded from consideration” of the change in Petitioner’s conviction. See N-A-M-,

587 F.3d at 1056 n.3 (declining to consider a petitioner’s re-sentencing that was not

in the administrative record). Even if we could consider information from outside the

administrative record, Petitioner’s most recent reentry without inspection into the

United States means that “the prior order of removal is reinstated from its original

date and is not subject to being reopened or reviewed, the [noncitizen] is not eligible

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and may not apply for any relief under this chapter, and the [noncitizen] shall be

removed under the prior order at any time after the reentry.” See Tarango-Delgado

v. Garland, 19 F.4th 1233, 1238 (10th Cir. 2021) (quoting 8 U.S.C. § 1231(a)(5)).

3. Eligibility for CAT Protection

Petitioner argues that the BIA’s determination that he failed to establish it was

more likely than not he would be tortured was not supported by substantial evidence.

Accepting Petitioner’s argument on this issue would require us to re-weigh the

evidence, which we cannot do. See Sidabutar, 503 F.3d at 1122. Petitioner submits

that the individuals who killed his brother were connected with a cartel and held

influence over the police, that the police refused to investigate whether Petitioner’s

brother’s death was a murder, and that the threat to Petitioner’s family continues.

These arguments, however, are Petitioner’s own interpretation of the evidence, and

Petitioner points to no evidence that would “compel” any reasonable adjudicator to

find facts contrary to those found by the agency. Id. at 1122 (quoting Sarr, 474 F.3d

at 788–89) (emphasis added). The agency’s findings of fact—that Petitioner’s family

has lived in Mexico without harm or threat since early 2021 and that Petitioner could

relocate within Mexico to avoid harm—are conclusive. See id.

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IV

For the foregoing reasons, we deny Petitioner’s petition for review.

Entered for the Court

Mary Beck Briscoe Circuit Judge