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Sauceda v. Lynch

United States Court of Appeals, First Circuit

April 22, 2016

JOSE RICARDO PERALTA SAUCEDA, Petitioner,
v.
LORETTA E. LYNCH, [*] Attorney General of the United States, Respondent

          Brian P. Goldman, with whom Robert M. Loeb, Thomas M. Bondy, Orrick, Herrington & Sutcliffe LLP, Carlos E. Estrada, and Estrada Law Office were on brief, for petitioner.

         Leon Fresco, Deputy Assistant Attorney General, with whom Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Donald E. Keener, Deputy Director, and Patrick J. Glen, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, were on brief, for respondent.

         Jayashri Srikantiah, Lisa Weissman-Ward, Immigrants' Rights Clinic, Mills Legal Clinic, Stanford Law School, Manuel Vargas, Andrew Wachtenheim, and Immigrant Defense Project, on brief for Immigrant Defense Project, National Immigration Project of the National Lawyers Guild, American Immigration Lawyers Association, Detention Watch Network, Committee for Public Counsel Services, New Hampshire Association of Criminal Defense Lawyers, Maine Association of Criminal Defense Lawyers, Political Asylum/Immigration Representation Project, Harvard Immigration and Refugee Clinical Program, Boston University Immigrants' Rights Clinic, Suffolk University Law School Immigration Clinic, Post-Deportation Human Rights Project, Ninth Circuit Appellate Project at Boston College School of Law, and Professors Mary Holper, Irene Scharf, and Anna Welch, amici curiae in support of petitioner.

         Before Torruella, Lynch, and Kayatta, Circuit Judges.

          OPINION

         PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

         LYNCH, Circuit Judge.

         Jose Ricardo Peralta Sauceda, who entered the United States illegally in 1993 from Honduras, conceded in 2007 that he was removable but requested cancellation of removal. He now petitions for review of the Board of Immigration Appeals' (" BIA" ) affirmance of an immigration judge's (" IJ" ) decision that he was not eligible for cancellation of removal, based on extreme hardship to his wife and son, because he had failed to meet his burden of proving by a preponderance of the evidence that he had not previously been " convicted of" a " crime of domestic violence" in 2006. See 8 U.S.C. § § 1227(a)(2)(E)(i), 1229b(b)(1)(C).

         Peralta Sauceda and the government agree that the competent evidence that exists regarding his 2006 Maine conviction for assault cannot definitively show whether Peralta Sauceda was in fact convicted of a " crime of domestic violence," as defined by federal law. In an initial opinion, now withdrawn, we had denied his petition for review, based on the arguments then before us. See Peralta Sauceda v. Lynch, 804 F.3d 101 (1st Cir. 2015), reh'g granted, opinion withdrawn by Sauceda v. Lynch, No. 14-2042, 2016 WL 760293 (1st Cir. Feb. 3, 2016).

         Peralta Sauceda petitioned for rehearing and for the first time presented a developed argument based on the Supreme Court's decision in Moncrieffe v. Holder, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013).[1] We granted rehearing and took additional briefing from the parties. See Sauceda, 2016 WL 760293, at *1. We also acknowledge the helpful briefs amici curiae filed.

         We are now convinced, despite strong arguments to the contrary by the respondent, that the issue before us is one of law and that Moncrieffe requires us to reach a different outcome than before. So we grant the petition and remand to the agency.

         I.

         Peralta Sauceda, a native and citizen of Honduras, entered the United States illegally on December 23, 1993, when he was 29 years old. He is now 52 years old, has lived in the United States for over 22 years, and is married to Hattie, a U.S. citizen who is disabled and relies on her husband for care. He has a teenage son, also a U.S. citizen, from a prior relationship. His son suffers from a variety of medical and emotional problems.

         On December 11, 2006, Peralta Sauceda pleaded guilty to Count One of a criminal complaint that charged him with assaulting his wife in violation of Me. Rev. Stat. Ann. tit. 17-A, § 207(1)(A). That section states that " [a] person is guilty of assault if: A. The person intentionally, knowingly or recklessly causes bodily injury or offensive physical contact to another person." He was sentenced to 180 days of imprisonment, which was suspended in full, served no time in prison, and served one year of probation.

         On August 29, 2007, Peralta Sauceda was served by the Department of Homeland Security with a Notice to Appear that charged him with being an alien present in the United States without being admitted or paroled. See 8 U.S.C. § 1182(a)(6)(A)(i). At a preliminary hearing, he conceded removability and requested cancellation of removal, which was based on a claim that his removal would cause extreme hardship to Hattie and his son. See id. § 1229b(b)(1).[2] At the July 29, 2009, merits hearing before the IJ, the question was raised whether his Maine assault conviction qualified as a " crime of domestic violence" under 8 U.S.C. § 1227(a)(2)(E)(i). If so, the conviction disqualified him from eligibility for cancellation of removal. See id. § 1229b(b)(1)(C). The IJ was sympathetic to his extreme hardship claim, finding that he had shown his removal would cause extreme hardship to Hattie and his son.[3] See id. § 1229b(b)(1)(D). She also found that Peralta Sauceda had taken responsibility for assaulting Hattie, had sought help for his drinking, and that there had been no prior or further attacks on Hattie.

         The effect of Peralta Sauceda's 2006 conviction on his eligibility for cancellation of removal remained an open question, and a series of appeals to and remands from the BIA followed. The BIA concluded that the modified categorical approach[4] must be applied to the Maine assault statute. On September 19, 2013, the IJ issued her final order, pretermitting Peralta Sauceda's application for cancellation of removal because he was not eligible. In performing the modified categorical approach analysis, the IJ found that the record as presented showed that Peralta Sauceda had pleaded guilty to committing a domestic violence crime, but that " the record of conviction documents d[id] not clarify" whether he was convicted under the " bodily injury" prong or the " offensive physical contact" prong of the Maine statute.[5] The BIA had held in a prior order that only a conviction under the " bodily injury" prong would qualify as a federal " crime of domestic violence" and render him ineligible for cancellation of removal. The IJ held that because Peralta Sauceda had failed to produce Shepard[6] documents showing that his 2006 assault conviction was not a " crime of domestic violence," he had failed to meet his burden of proving eligibility for cancellation of removal. See ...


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