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Heredia v. Sessions

United States Court of Appeals, Second Circuit

July 27, 2017

Hoxquelin Gomez Heredia, a/k/a Oquelin Gomezheredia, a/k/a Sokelin Heredia, Petitioner,
v.
Jefferson B. Sessions III, United States Attorney General, Respondent. [*]

          Argued: May 5, 2017

         Hoxquelin Gomez Heredia seeks review of two decisions of the Board of Immigration Appeals denying him relief. In the first challenged decision, the BIA dismissed the petitioner's appeal, affirming the Immigration Judge's conclusion that he was a non-citizen convicted of drug offenses that made him inadmissible to the United States. In the second, the BIA denied the petitioner's motion to reopen the proceedings, concluding that he was not eligible for cancellation of removal, a discretionary form of relief from removal that is available to lawful permanent residents who meet certain requirements. On appeal, the petitioner contends that the BIA erred in two ways. First, he argues that he should not have been treated as seeking admission to the United States when he returned from a short trip abroad in 2015. Second, he argues that he is eligible for cancellation of removal because his 1999 drug offense did not prevent him from accruing seven years of residency in the United States, which is a requirement for cancellation of removal. We disagree. Accordingly, the consolidated petitions for review are DENIED. Since we have completed our review, the pending motion for stay of removal is DENIED as moot.

          William C. Menard, Baurkot & Baurkot, Easton, PA (Raymond G. Lahoud, Norris, McLauglin & Marcus, P.A., Allentown, PA, on the brief) for Petitioner Hoxquelin Gomez Heredia.

          Victoria Braga, Trial Attorney (Surell Brady, Trial Attorney, Chad A. Readler, Acting Assistant Attorney General, and Cindy S. Ferrier, Assistant Director, on the brief), United States Department of Justice, Civil Division, Office of Immigration Litigation, Washington, D.C., for Respondent Jefferson B. Sessions, III.

          Before: Walker, Livingston, and Lynch, Circuit Judges.

          Gerard E. Lynch, Circuit Judge

         Hoxquelin Gomez Heredia ("Gomez") seeks review of two decisions of the Board of Immigration Appeals ("BIA") denying him relief. In the first challenged decision, the BIA dismissed Gomez's appeal, affirming the Immigration Judge's ("IJ") conclusion that he was a non-citizen convicted of drug offenses that made him inadmissible to the United States. In the second, the BIA denied Gomez's motion to reopen the proceedings, concluding that he was not eligible for cancellation of removal, a discretionary form of relief from removal that is available to lawful permanent residents who meet certain requirements. On appeal, Gomez contends that the BIA erred in two ways. First, he argues that he should not have been treated as seeking admission to the United States when he returned from a short trip abroad in 2015. Second, he argues that he is eligible for cancellation of removal because his 1999 drug offense did not prevent him from accruing seven years of residency in the United States, which is a requirement for cancellation of removal.

         We disagree. Accordingly, the consolidated petitions for review are DENIED. Since we have completed our review, the pending motion for stay of removal is DENIED as moot.

         BACKGROUND

         Gomez, a native and citizen of the Dominican Republic, entered the United States as a lawful permanent resident in August 1997. In 1999, he was convicted of criminal possession of marijuana in the fifth degree under New York Penal Law ("NYPL") § 221.10. In 2010, he was convicted of criminal possession of a narcotic (cocaine) with intent to sell under NYPL § 220.16(1), which is an aggravated felony under the Immigration and Nationality Act ("INA") because it is a drug trafficking offense. See 8 U.S.C. § 1101(a)(43)(B); Harbin v. Sessions, 860 F.3d 58, 63 (2d Cir. 2017). In June 2015, Gomez took a short trip to the Dominican Republic. Upon his return, he was treated as a lawful permanent resident "seeking an admission into the United States" because he had been convicted of an enumerated drug offense. 8 U.S.C. § 1101(a)(13)(C)(v); see id.§ 1182(a)(2)(A)(i)(II). That same day, he was charged as inadmissible and subject to removal because of his two drug convictions.

         On January 12, 2016, after granting several continuances, an IJ ordered Gomez removed. The IJ noted that Gomez had not applied for cancellation of removal, a discretionary form of relief available to lawful permanent residents who meet three requirements. Those requirements, generally speaking, are: (1) five years of lawful admission for permanent residence; (2) seven years of continuous residence in the United States "after having been admitted in any status"; and (3) no aggravated felony convictions. Id. § 1229b(a). Although the IJ did not reach the issue, Gomez was apparently not eligible for cancellation of removal at the time of its decision because his 2010 conviction was for an aggravated felony.[1]

         In May 2016, the BIA affirmed. The BIA noted that "[r]elief from removal is not an issue on appeal, " Certified Administrative Record ("CAR") 79 n.1, meaning that Gomez did not raise any issues regarding his eligibility for cancellation of removal. Instead, Gomez argued that he should not have been classified as seeking admission in 2015 when he arrived home after his short trip to the Dominican Republic. The BIA rejected that argument, relying on its prior decision, In re Collado-Munoz, 21 I. & N. Dec. 1061, 1063-66 (B.I.A. 1998), which held that the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. 104-208, 110 Stat. 3009-546 ("IIRIRA"), overruled the equitable doctrine ("Fleuti doctrine") that had allowed lawful permanent residents to take innocent, casual, and brief trips abroad without applying for admission upon their return. See Rosenberg v. Fleuti, 374 U.S. 449, 461-62 (1963). Thus, according to the BIA, Gomez was properly subjected to readmission procedures when he arrived in the United States in 2015 under the relevant provision of the INA as amended by IIRIRA, 8 U.S.C. § 1101(a)(13)(C)(v). The BIA also noted Gomez's continued efforts to vacate his 2010 aggravated felony conviction, and wrote that, if Gomez succeeded in having any of his convictions vacated, he was free to ask the BIA to reopen his case to consider the changed circumstances. In No. 16-1465, Gomez petitions for review of the BIA's initial dismissal of his appeal, arguing that the BIA erred in concluding that he was properly treated as seeking admission when he returned to New York in 2015.

         Shortly after the BIA issued its first decision, a New York court vacated Gomez's 2010 aggravated felony conviction and Gomez pled guilty to possession of a narcotic substance of one half ounce or more, NYPL § 220.16(12). The new conviction was not for a drug trafficking offense; thus, it is not an aggravated felony under 8 U.S.C. § 1101(a)(43)(B). Gomez then timely moved to reopen his removal proceeding and applied for cancellation of removal. He argued that, absent the aggravated felony conviction, he was eligible for cancellation of removal, implicitly claiming that he satisfied its other two requirements: that he was a lawful permanent resident for more than five years and that he had resided continuously in the United States for more than seven. See 8 U.S.C. § 1229b(a)(1)-(2).

         In September 2016, the BIA denied reopening. Although the BIA acknowledged that Gomez no longer had an aggravated felony conviction, it determined that he had not demonstrated prima facie eligibility for cancellation of removal because his 1999 marijuana offense triggered the "stop-time rule, " which prevented him from accruing the required seven years of continuous residency in the United States. The intricacies of the stop-time rule will be discussed in detail below. In No. 16-3346, Gomez seeks review of the BIA's denial of his motion to reopen. He argues that the stop-time rule was not triggered until he applied for admission in 2015 when he returned from the Dominican Republic, and therefore that he accrued more than seven years of continuous residency in the United States. His petitions for review have been consolidated.

         DISCUSSION

         The consolidated petitions for review raise two issues. First, Gomez contends that the BIA erred in dismissing his initial appeal because it mistakenly concluded that IIRIRA overruled the Fleuti doctrine. See Fleuti, 374 U.S. at 461-62. Second, he argues that the BIA abused its discretion in denying his motion to reopen because it incorrectly held that he was ineligible for cancellation ...


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