Miriam Gutierrez v. Jefferson B. Sessions, III

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 18a0073p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT MIRIAM GUTIERREZ, ┐ Petitioner, │ │ > No. 17-3749 v. │ │ │ JEFFERSON B. SESSIONS, III, Attorney General, │ Respondent. │ ┘ On Petition for Review from the Board of Immigration Appeals; No. A 035 381 061. Decided and Filed: April 16, 2018 Before: SILER, BATCHELDER and DONALD, Circuit Judges. _________________ COUNSEL ON BRIEF: Alicia J. Triche, TRICHE IMMIGRATION LAW, Memphis, Tennessee, for Petitioner. Sarah Byrd, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. _________________ OPINION _________________ BERNICE BOUIE DONALD, Circuit Judge. Petitioner Miriam Gutierrez (“Gutierrez”), a Lawful Permanent Resident (“LPR”), seeks judicial review of the Board of Immigration Appeals (“BIA”) affirmance of the Immigration Judge’s (“IJ”) denial of her application for cancellation of removal under 8 U.S.C. § 1229b(a), and granting the motion of the Department of Homeland Security (“DHS”) to pretermit the application on the grounds that Gutierrez failed to establish that her convictions were not aggravated felonies. An LPR who has been “convicted” No. 17-3749 Gutierrez v. Sessions Page 2 of an “aggravated felony” is disqualified from cancellation under § 240A(a)(3) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1229b(a)(3). In this appeal, we are called upon to decide, where an alien was convicted under a divisible criminal statute and the record is inconclusive as to whether the conviction was for an aggravated felony, whether such inconclusiveness defeats the alien’s eligibility for relief or, rather, should be construed in the alien’s favor, thereby establishing eligibility. For the reasons stated herein, we DENY the petition and AFFIRM the BIA’s order. I Gutierrez, a native and citizen of Bolivia, has been an LPR since her admission to the United States in 1980. Pertinent to the present appeal, she was convicted in 2012 for two counts of credit card theft in violation of Virginia Code § 18.2-192(1), after entering a guilty plea.1 Gutierrez also had prior convictions for petty larceny, Virginia Code § 18.2-96 (in January 2009), and for prescription fraud, Virginia Code § 18.2-258.1 (in March 2012). In March 2012, DHS initiated removal proceedings against Gutierrez by serving her with a Notice to Appear (“NTA”) in Immigration Court. The NTA charged her with removability pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii), based on her convictions for petty larceny and prescription fraud, considered as crimes involving moral turpitude. At an October 2014 hearing, Gutierrez admitted the NTA’s allegations and conceded her removability. Gutierrez applied for cancellation of removal pursuant to 8 U.S.C. § 1229b(a). DHS moved to pretermit Gutierrez’s application for relief, based on statutory ineligibility because she had been convicted of an aggravated felony. Specifically, DHS argued that Gutierrez’s 2012 credit card theft conviction2 was an aggravated felony theft offense under 8 U.S.C. 1 Gutierrez also pleaded guilty to Virginia credit card forgery. However, the BIA reached its decision based on the Virginia credit card theft convictions; we thus forgo as unnecessary any inquiry ...

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