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Torres-Valdivias v. Holder

United States Court of Appeals, Ninth Circuit

September 5, 2014

JOSE GUADALUPE TORRES-VALDIVIAS, AKA Guadalupe Torres, Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General, Respondent

Argued and Submitted, San Francisco, California August 11, 2014

Page 1107

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A079-643-573.

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 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 held that the 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). The panel upheld the BIA's extension of the Matter of Jean standard to applications for adjustment under 8 U.S.C. § 1255(i). The panel also held that Matter of Jean applies to cases previously governed by Matter of Arai, 13 I. & N. Dec. 494 (BIA 1970) (the BIA's precedent decision addressing the proper standard in § 1255 adjustment cases), provided that the alien was convicted of a violent or dangerous crime.

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.

Before: Barry G. Silverman and Richard R. Clifton, Circuit Judges, and Derrick Kahala Watson, District Judge.[*] Opinion by Judge Clifton.

OPINION

Page 1108

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 extension 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

Page 1109

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 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 ...

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