Jose Torres-Valdivias v. Loretta E. Lynch

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSE GUADALUPE TORRES- No. 11-70532

VALDIVIAS, AKA Guadalupe Torres,

Petitioner, Agency No.

A079-643-573

v.

LORETTA E. LYNCH, Attorney ORDER AND

General, AMENDED

Respondent. OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

August 11, 2014—San Francisco, California

Filed September 5, 2014

Amended May 8, 2015

Before: Barry G. Silverman and Richard R. Clifton, Circuit

Judges, and Derrick Kahala Watson, District Judge.*

Order;

Opinion by Judge Clifton

*

The Honorable Derrick Kahala Watson, U.S. District Judge for the

District of Hawaii, sitting by designation.

2 TORRES-VALDIVIAS V. LYNCH

SUMMARY**

Immigration

The panel dismissed in part and denied in part Jose

Guadalupe Torres-Valdivias’s petition for review of the

Board of Immigration Appeals’ decision denying his

application for adjustment of status.

The panel amended the original opinion, and denied the

petition for panel rehearing and petition for rehearing en

banc. The panel upheld the Board of Immigration Appeals’

decision not to apply the categorical approach when making

a discretionary determination such as the one here regarding

whether petitioner’s sexual battery conviction triggered the

standard under Matter of Jean, 23 I. & N. Dec. 373 (Att’y

Gen. 2002) (establishing a heightened standard that aliens

convicted of violent or dangerous crimes must satisfy for

discretionary relief). The panel upheld the BIA’s application

of the Matter of Jean standard to adjustment of status

applications, and the BIA’s conclusion that Matter of Jean

applies to applications for adjustment of status in which the

alien was convicted of a violent or dangerous crime. The

panel further held that the ultimate determination of whether

a crime is violent or dangerous under Matter of Jean is

discretionary and therefore unreviewable under 8 U.S.C.

§ 1252(a)(2)(B).

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

TORRES-VALDIVIAS V. LYNCH 3

COUNSEL

Lamar Peckham, Santa Rosa, California, for Petitioner.

Stuart F. Delery, Acting Assistant Attorney General, Civil

Division, Mary Jane Candaux, Assistant Director, Kiley L.

Kane, Senior Litigation Counsel, and Gary J. Newkirk

(argued), Trial Attorney, Office of Immigration Litigation,

Civil Division, United States Department of Justice,

Washington, D.C., for Respondent.

Mary Kenney, Washington, D.C., for Amicus Curiae

American Immigration Council.

Zachary Nightingale, Avantika Shastri, and Genna Beier, Van

Der Hout, Brigagliano & Nightingale, LLP, San Francisco,

California, for Amicus Curiae Immigrant Legal Resource

Center.

ORDER

The opinion filed September 5, 2014, is AMENDED as

follows:

1. Section III.C.3, the four-paragraph section that appears on

pages 15 through 17 of the slip opinion, including footnotes

4 and 5, is deleted.

2. The third sentence of the first full paragraph on page 4 of

the slip opinion currently reads as follows:

4 TORRES-VALDIVIAS V. LYNCH

Finally, we uphold the BIA’s extension of the

Matter of Jean standard to adjustment of

status applications under 8 U.S.C. § 1255.

The sentence is amended to read as follows:

Finally, we uphold the BIA’s application of

the Matter of Jean standard to adjustment of

status applications under 8 U.S.C. § 1255.

3. The last sentence of the first paragraph of § III.C on page

11 of the slip opinion currently reads as follows:

We disagree, and we uphold the BIA’s

decision to apply Matter of Jean to cases that

would previously have been governed by

Matter of Arai, provided the alien has been

convicted of a violent or dangerous crime.

The sentence is amended to read as follows:

We disagree, and we uphold the BIA’s

conclusion that Matter of Jean applies to

applications for adjustment of status under

§ 245 in which the alien has been convicted of

a violent or dangerous crime.

4. The third sentence of the first paragraph of § IV on page

17 of the slip opinion currently reads as follows:

Finally, the BIA did not err in extending the

Matter of Jean standard to the context of

adjustment of status applications under

8 U.S.C. § 1255.

TORRES-VALDIVIAS V. LYNCH 5

The sentence is amended to read as follows:

Finally, the BIA did not err in holding that the

Matter of Jean standard applies to the context

of adjustment of status applications under

8 U.S.C. § 1255, a conclusion compelled by

the published decisions in Matter of Jean and

Matter of K–A–.

With these amendments, the panel has voted to deny the

petition for panel rehearing. Judges Silverman and Clifton

have voted to deny the petition for rehearing en banc, and

Judge Watson has so recommended.

The full court has been advised of the petition for

rehearing en banc and no judge has requested a vote on

whether to rehear the matter en banc. Fed. R. App. P. 35.

The Petition for Rehearing and Petition for Rehearing En

Banc, filed on December 19, 2014, is DENIED.

No further petitions for rehearing following this

amendment may be filed.

6 TORRES-VALDIVIAS V. LYNCH

OPINION

CLIFTON, Circuit Judge:

Petitioner Jose Guadalupe Torres-Valdivias petitions for

review of a Board of Immigration Appeals’ (“BIA”) decision

upholding a final order of removal against him. In deciding

this case, we consider the scope of the Attorney General’s

decision in Matter of Jean, 23 I. & N. Dec. 373 (Att’y Gen.

2002), which established a heightened standard that aliens

convicted of violent or dangerous crimes must satisfy to be

granted discretionary relief from removal.

Torres-Valdivias was placed in removal proceedings,

where he applied for and was denied adjustment of status

under 8 U.S.C. § 1255(i). The BIA held that Torres-

Valdivias’s sexual battery conviction was a violent or

dangerous crime and, on that basis, applied the Matter of Jean

standard to guide the exercise of its discretion. In making the

violent or dangerous crime determination, the BIA considered

the facts underlying Torres-Valdivias’s sexual battery offense

as testified to by Torres-Valdivias at his removal hearing and

as stated in police reports from the time of the offense.

Applying the Matter of Jean standard, the BIA denied Torres-

Valdivias’s adjustment of status application, as a matter of

discretion.

We uphold the BIA’s decision not to apply the categorical

approach in the context of its discretionary decisions, such as

the one at issue here. We also conclude that, where the

correct legal standard is applied, the ultimate determination

of whether a crime was violent or dangerous under Matter of

Jean is discretionary and therefore unreviewable under

8 U.S.C. § 1252(a)(2)(B). Finally, we uphold the BIA’s

TORRES-VALDIVIAS V. LYNCH 7

application of the Matter of Jean standard to adjustment of

status applications under 8 U.S.C. § 1255. Accordingly, we

dismiss in part and deny in part Torres-Valdivias’s petition

for review.

I. Background

Petitioner Jose Guadalupe Torres-Valdivias, a native and

citizen of Mexico, has resided in the United States since

coming in illegally in 1989. He married a U.S. citizen,

through whom he was granted conditional permanent resident

status in 2003. That status was revoked in 2006, however, as

a result of a 2001 conviction for sexual battery in violation of

California Penal Code § 243.4(a). Upon revocation of his

status, Torres-Valdivias was charged with being an alien

illegally present in the United States and therefore removable

under 8 U.S.C. § 1182(a)(6)(A)(i).

In removal proceedings in front of an Immigration Judge

(“IJ”), Torres-Valdivias applied for adjustment of status

under 8 U.S.C. § 1255(i). In adjudicating this application, the

IJ considered the facts underlying Torres-Valdivias’s sexual

battery conviction, including the facts as stated in his

testimony at the removal hearing and as described in the

police reports from the time of the offense. The facts found

by the IJ are not in dispute:

[Torres-Valdivias] first said that when he was

14 or 15, and the victim, his stepsister, was 10

or 11, he touched her on her breasts and

vagina over her clothing once. He repeated

this activity one more time, about a year later.

He insisted he did nothing else. Later, after

being confronted with the police reports in the

8 TORRES-VALDIVIAS V. LYNCH

case, he admitted that he touched her vagina

while the victim was not wearing clothes. He

subsequently admitted to forcing his finger

into her vagina, and also getting on top of her

and simulating sexual intercourse. [Torres-

Valdivias] denied putting his penis into his

stepsister’s vagina and denied engaging in

oral sex with her.

The IJ concluded that Torres-Valdivias’s crime of sexual

battery “was quite clearly violent or dangerous” and applied

the heightened standard for granting discretionary relief from

removal to violent or dangerous criminals established in

Matter of Jean. Under this heightened standard, the IJ

concluded, as a matter of discretion, that Torres-Valdivias’s

adjustment of status application should be denied and

therefore ordered him removed.

Torres-Valdivias appealed to the BIA. On appeal, a three-

member panel of the BIA agreed with the IJ’s application of

the heightened Matter of Jean standard to an adjustment of

status application but remanded for the IJ to further analyze

whether Torres-Valdivias’s offense was a violent or

dangerous crime warranting application of that standard.

On remand, the IJ incorporated his prior decision by

reference and provided more detailed facts and further legal

analysis.1 The IJ again concluded that Torres-Valdivias’s

1

The IJ’s full discussion of the facts on remand was as follows:

A review of the documents in the file reveals the

following about the circumstances of the crime. The

victim in this case is [Torres-Valdivias’s] stepsister.

TORRES-VALDIVIAS V. LYNCH 9

crime of sexual battery constituted a violent or dangerous

crime and denied, as a matter of discretion, his application for

adjustment of status. The IJ again ordered Torres-Valdivias

removed and certified the case back to the BIA. The BIA

adopted and affirmed the IJ’s decision under Matter of

Burbano, 20 I. & N. Dec. 872 (BIA 1994).

Torres-Valdivias timely petitioned this court for review

of the final order of removal entered against him.

She told the police that [Torres-Valdivias] had engaged

in non-consensual sexual intercourse with her at least

five times, beginning when she was about five years of

age and ending when she was fourteen. At the time of

the last assault [Torres-Valdivias] was about nineteen

years old. The victim told the police that [Torres-

Valdivias] “would take her clothes off, as well as his

own, and then sexually assault her. She said the suspect

would place his erect penis into her vagina, kiss her

mouth-to-mouth and place his mouth onto her vagina.”

[Torres-Valdivias] told the police that he had put

his finger in the victim’s vagina when she was nine and

again when she was 12. He said he felt and kissed her

breasts at least three or four times when the victim was

13 or 14 years old. He said he got on top of the victim

and simulated sexual intercourse several times when

she was about 9 years old. He denied having complete

sexual intercourse with the victim and denied forcing

any sexual acts on the victim. [Torres-Valdivias’s]

testimony at his removal hearing was in many respects

the same as his police statement. However, he did

acknowledge at the hearing that he had “force[d] his

finger into her vagina” “[a] little bit.”

10 TORRES-VALDIVIAS V. LYNCH

II. Jurisdiction and Standard of Review

The Immigration and Nationality Act (“INA”) bars this

court from exercising jurisdiction over various discretionary

decisions of the immigration authorities, including “any

judgment regarding the granting of relief under” 8 U.S.C.

§ 1255. 8 U.S.C. § 1252(a)(2)(B)(i). The BIA’s ultimate

discretionary decision to deny Torres-Valdivias adjustment of

status under 8 U.S.C. § 1255(i) is therefore unreviewable.

Pursuant to 8 U.S.C. § 1252(a)(2)(D), however, this court

retains jurisdiction over constitutional questions and

questions of law. We review questions of law de novo.

Annachamy v. Holder, 733 F.3d 254, 258 (9th Cir. 2013).

III. Discussion

Torres-Valdivias’s petition for review raises various

issues framed as questions of law, namely: (1) whether the

BIA erred in not applying the categorical approach in

determining whether Torres-Valdivias’s crime was violent or

dangerous for purposes of applying Matter of Jean;

(2) whether the BIA committed an error of law when it

determined that Torres-Valdivias’s crime was violent or

dangerous; and (3) whether Matter of Jean is applicable in the

context of an adjustment of status application under 8 U.S.C.

§ 1255(i).2 With respect to the first and third issues, we agree

with Torres-Valdivias that they present questions of law but

2

Torres-Valdivias also argues that he was denied due process when the

BIA assigned his appeal for decision by a single member. Contrary to this

argument, however, his appeal was in fact assigned to a three-member

panel of the BIA, composed of BIA members Edward R. Grant, Molly

Kendall-Clark, and Neil P. Miller. This argument is therefore without

merit.

TORRES-VALDIVIAS V. LYNCH 11

disagree with him on the merits. With respect to the second

issue, however, we conclude that it presents a challenge to a

discretionary decision of the BIA and that we therefore lack

jurisdiction to review it.

A. Applicability of the Categorical Approach

The heightened standard of Matter of Jean applies by its

own terms only to aliens convicted of violent or dangerous

crimes. 23 I. & N. Dec. at 383; see also Matter of K–A–, 23

I. & N. Dec. 661, 666 (BIA 2004). Torres-Valdivias argues

that the BIA erred by failing to apply the categorical approach

in determining whether his conviction for sexual battery

triggered the heightened Matter of Jean standard.

We disagree. Adjustment of status under 8 U.S.C. § 1255

is a discretionary form of relief. See, e.g., 8 U.S.C.

§ 1255(i)(2) (“[T]he Attorney General may adjust the status

of the alien to that of an alien lawfully admitted for

permanent residence . . . .” (emphasis added)). In the context

of the BIA’s discretionary decisions, we have noted that “it

is proper [for the BIA] to look to probative evidence outside

the record of conviction in inquiring as to the circumstances

surrounding the commission of [a] crime in order to

determine whether a favorable exercise of discretion is

warranted.” Tokatly v. Ashcroft, 371 F.3d 613, 621 (9th Cir.

2004) (second alteration in original) (quoting Matter of

Mendez-Moralez, 21 I. & N. Dec. 296, 303 n.1 (BIA 1996)).

Indeed, in Matter of Jean itself, the Attorney General looked

at the facts underlying Jean’s conviction, including those

found in a medical examiner’s report—and therefore outside

the records of conviction—to conclude that she was a violent

or dangerous individual who should not be granted the form

12 TORRES-VALDIVIAS V. LYNCH

of discretionary relief she had applied for. See 23 I. & N. Dec.

at 375, 383.

It is not surprising that both our precedent and the

Attorney General’s decision in Matter of Jean counsel against

the application of the categorical approach in this context.

The categorical approach, as laid out in Taylor v. United

States, 495 U.S. 575 (1990), requires a court to look only at

the statutory definition of a prior offense of conviction and

ignore any facts not found in judicially noticeable records of

conviction. This approach applies where “Congress intended

that [a certain statutory] provision be triggered by crimes

having certain specified elements . . . .” Id. at 588. In the

immigration context, this approach therefore generally

applies in determining whether an alien is removable in the

first instance or whether he is statutorily barred from various

forms of relief. See, e.g., Tokatly, 371 F.3d at 621 (noting that

the categorical approach applies “in order to determine

whether an alien’s prior conviction constitutes a basis for

removal under the INA”); Castrijon-Garcia v. Holder,

704 F.3d 1205, 1212 (9th Cir. 2013) (applying the categorical

approach to determine whether an offense constituted a crime

involving moral turpitude, which would render the alien

ineligible for cancellation of removal). Contrasted with

questions of statutory removability and eligibility for relief,

for which Congress intended specific crimes to trigger

removal or statutory bars to relief, the question here is very

different. In light of the discretionary language used in

8 U.S.C. § 1255(i), Congress plainly intended for the

Attorney General (and, by extension, his delegate the BIA) to

exercise his discretion in adjudicating applications for

adjustment of status under any standards that the Attorney

General (or the BIA itself) deems appropriate to establish.

TORRES-VALDIVIAS V. LYNCH 13

In sum, the BIA’s decision not to apply the categorical

approach to guide the exercise of its discretion is consistent

with our case law as well as with the Attorney General’s and

the BIA’s precedential decisions. Accordingly, we uphold the

BIA’s refusal to apply the categorical approach in this case.

B. Violent or Dangerous Crime Determination

Torres-Valdivias next contends that the BIA committed

an error of law in finding that his sexual battery offense

constituted a violent or dangerous crime triggering the

heightened standard of Matter of Jean. Although framed in an

attempt to present a question of law, we conclude that this

argument challenges the BIA’s discretionary decision to view

his crime as a violent or dangerous one. We therefore lack

jurisdiction to decide the merits of this argument.

At its core, this argument relies on distinguishing, on its

facts, Torres-Valdivias’s crime from the crime involved in

Matter of Jean. Whereas Torres-Valdivias accepts that

manslaughter, the crime involved in Matter of Jean,

constitutes a violent or dangerous crime, he denies that sexual

battery rises to the same level. A fact-intensive determination

in which the equities must be weighed in reaching a

conclusion is a prototypical example of a discretionary

decision. Torres-Valdivias’s claim therefore “fall[s] well

within the BIA’s discretionary authority and [is] not subject

to our review.” Mejia v. Gonzales, 499 F.3d 991, 999 (9th

Cir. 2007) (citing 8 U.S.C. § 1252 (a)(2)(B)(i)).

C. Scope of Matter of Jean

The most substantial question raised by Torres-Valdivias

is whether Matter of Jean applies in the context of an

14 TORRES-VALDIVIAS V. LYNCH

adjustment of status application under 8 U.S.C. § 1255(i).

Torres-Valdivias argues that it is not Matter of Jean that

applies in this context, but rather Matter of Arai, 13 I. & N.

Dec. 494 (BIA 1970). We disagree, and we uphold the BIA’s

conclusion that Matter of Jean applies to applications for

adjustment of status under § 245 in which the alien has been

convicted of a violent or dangerous crime.

1. Matter of Jean and Matter of Arai

Matter of Jean involved a refugee’s applications for

adjustment of status under 8 U.S.C. § 1159(a) and for asylum

under 8 U.S.C. § 1158. 23 I. & N. Dec. at 375–76. However,

Jean was statutorily ineligible for adjustment of status due to

a manslaughter conviction, which qualified as a crime

involving moral turpitude rendering Jean inadmissible under

8 U.S.C. § 1182(a)(2)(A)(i)(I). Id. As a predicate to her

adjustment of status application, she was therefore also

applying for a waiver of inadmissibility under 8 U.S.C.

§ 1159(c)—the so-called § 209(c) waiver, named for the

corresponding INA section. Id. at 376. The BIA, balancing

the equities in the exercise of its discretion, granted her the

waiver and adjustment of status. Id. at 378. The Attorney

General then stepped in to reverse the BIA. Id. at 389. In

doing so, the Attorney General articulated the applicable

standard for guiding the BIA’s exercise of discretion as

follows:

It would not be a prudent exercise of the

discretion afforded to me by [§ 1159(c)] to

grant favorable adjustments of status to

violent or dangerous individuals except in

extraordinary circumstances, such as those

involving national security or foreign policy

TORRES-VALDIVIAS V. LYNCH 15

considerations, or cases in which an alien

clearly demonstrates that the denial of status

adjustment would result in exceptional and

extremely unusual hardship.

Id. at 383. In addition, the Attorney General applied the same

standard in denying, as a matter of discretion, Jean’s

application for asylum under § 1158. Id. at 385 (“For the

same reasons articulated in the earlier discussion of the

respondent’s application for adjustment of status, I am highly

disinclined to exercise my discretion—except, again, in

extraordinary circumstances, such as those involving national

security or foreign policy considerations, or cases in which an

alien clearly demonstrates that the denial of relief would

result in exceptional and extremely unusual hardship—on

behalf of dangerous or violent felons seeking asylum.”).

This standard may differ from the Matter of Arai standard

that Torres-Valdivias argues the BIA should have applied.

Matter of Arai, unlike Matter of Jean, involved the same kind

of application involved in this case—namely, an application

for adjustment of status under 8 U.S.C. § 1255. In that

context, the BIA articulated the following standard:

Where adverse factors are present in a given

application, it may be necessary for the

applicant to offset these by a showing of

unusual or even outstanding equities.

Generally, favorable factors such as family

ties, hardship, length of residence in the

United States, etc., will be considered as

countervailing factors meriting favorable

exercise of administrative discretion. In the

absence of adverse factors, adjustment will

16 TORRES-VALDIVIAS V. LYNCH

ordinarily be granted, still as a matter of

discretion.

Matter of Arai, 13 I. & N. Dec. at 496. We proceed by

assuming arguendo that the standards articulated in these two

cases are sufficiently different so as to potentially make a

difference in Torres-Valdivias’s case.

2. Matter of Jean and Adjustment of Status

Applications

Torres-Valdivias argues that Matter of Jean does not

apply to him because, unlike Jean, Torres-Valdivias is not an

inadmissible alien and therefore remains statutorily eligible

for adjustment of status under 8 U.S.C. § 1255(i). As this case

comes to us, the parties agree that his conviction for sexual

battery receives the benefit of the petty offense exception to

inadmissibility, 8 U.S.C. § 1182(a)(2)(A)(ii)(II). As such,

Torres-Valdivias remained statutorily eligible for adjustment

of status without needing to apply for a waiver of

inadmissibility. Torres-Valdivias thus argues that Matter of

Jean, which established a standard in a case involving a

§ 209(c) waiver of inadmissibility, is inapplicable here.

We disagree. Torres-Valdivias fails to acknowledge that

Matter of Jean applied its standard not only in deciding the

§ 209(c) waiver question, but also in denying asylum under

§ 1158 as a matter of discretion. The scope of Matter of Jean

is therefore not as narrow as Torres-Valdivias argues, as it

plainly applies beyond the context of waivers of

inadmissibility. Of note, the Attorney General has

promulgated the Matter of Jean standard in the broader

context of § 212(h) waivers of inadmissibility—which, unlike

§ 209(c) waivers, are not limited to refugees. See Waiver of

TORRES-VALDIVIAS V. LYNCH 17

Criminal Grounds of Inadmissibility for Immigrants, 67 Fed.

Reg. 78,675 (Dec. 26, 2002) (codified at 8 C.F.R.

§ 1212.7(d)).3

Given the broad language employed by the Attorney

General in Matter of Jean and its focus on his discretion, we

uphold the BIA’s broad reading of Matter of Jean. In Matter

of Jean, the Attorney General effectively overruled the BIA’s

practice of granting discretionary forms of relief to aliens

having been convicted of violent or dangerous crimes.

Whether an alien applying for relief from removal has shaken

a baby to death as in Matter of Jean or has committed sexual

battery of a ten-year-old as in this case, the Attorney General

has determined that these are reprehensible aliens to whom

relief should be denied in all but the most extraordinary

circumstances. Matter of Jean by its own terms is not limited

to the waiver of inadmissibility context, as it also applied its

standard to denying Jean’s application for asylum as a matter

of discretion. This broad reading of Matter of Jean is further

supported by the BIA’s published decision in Matter of K–A–,

23 I. & N. Dec. 661 (BIA 2004), which noted that “[t]he

Attorney General has communicated in unequivocal terms

that he is not inclined to exercise his discretion favorably

with respect to aliens who have been convicted of dangerous

or violent crimes except in the most exceptional

circumstances.” Id. at 666 (citing Matter of Jean, 23 I. & N.

Dec. at 383).

3

Torres-Valdivias’s argument that the application of Matter of Jean

reads 8 C.F.R. § 1212.7(d) into the petty offenses exception to

inadmissibility, 8 U.S.C. § 1182(a)(2)(A)(ii)(II), is without merit. The BIA

did not apply Matter of Jean to find Torres-Valdivias inadmissible

notwithstanding the statutory petty offense exception; instead, it applied

Matter of Jean to guide the exercise of its ultimate discretion as to whether

to grant Torres-Valdivias adjustment of status under 8 U.S.C. § 1255(i).

18 TORRES-VALDIVIAS V. LYNCH

IV. Conclusion

We uphold the BIA’s decision not to apply the categorical

approach in guiding its discretion to determine whether a

crime is violent or dangerous for purposes of Matter of Jean.

The BIA’s ultimate decision that a crime is in fact violent or

dangerous is a discretionary decision, which this court lacks

jurisdiction to review. Finally, the BIA did not err in holding

that the Matter of Jean standard applies to the context of

adjustment of status applications under 8 U.S.C. § 1255, a

conclusion compelled by the published decisions in Matter of

Jean and Matter of K–A–.

In accordance with our holdings, we dismiss the petition

for review for lack of jurisdiction insofar as it challenges the

BIA’s discretionary determination that Torres-Valdivias’s

sexual battery offense is a violent or dangerous crime. We

further deny the petition for review insofar as it challenges

the BIA’s failure to apply the categorical approach and its

application of the heightened Matter of Jean standard.

PETITION FOR REVIEW DISMISSED in part and

DENIED in part.