Date: 05-28-2018

Case Style:

Case Number: 17-1902

Judge: Loken

Court: United States Court of Appeals for the Eighth Circuit (St. Louis County)

Plaintiff's Attorney: Andra Comfort

Defendant's Attorney: Imran Raza Zaidi, Carl H. McINtyre

Description: Pablo Rubio, a native and citizen of El Salvador, petitions for review of a
Board of Immigration Appeals (BIA) decision denying his application for Temporary
Protected Status (TPS) and ordering his removal. 1 The BIA determined that Rubio
is ineligible for TPS because he has been convicted of two or more misdemeanors.
See 8 U.S.C. § 1254a(c)(2)(B)(i). Rubio argues this eligibility determination was an
error of law because his convictions for violating Columbia, Missouri municipal
ordinances are not “convictions” under the Immigration and Nationality Act (INA).
Though the grant of TPS is discretionary, we have jurisdiction to review the threshold
legal issue of statutory eligibility. See 8 U.S.C. § 1252(a)(2)(D); Mejia Rodriguez v.
U.S. Dep’t of Homeland Sec., 562 F.3d 1137, 1144-45 (11th Cir. 2009). We deny the
petition for review.
I. Background
The TPS program allows nationals of designated foreign states to remain in the
United States temporarily if they meet statutory eligibility requirements. See 8 U.S.C.
§ 1254a(a)(1). In 2001, the Immigration and Naturalization Service (INS) designated
El Salvador a TPS-qualifying state after earthquakes prevented the country from
adequately handling its nationals’ return. See Designation of El Salvador Under
[TPS] Program, 66 Fed. Reg. 14,214 (Mar. 9, 2001). The designation was extended
multiple times. See Extension of the Designation of El Salvador for [TPS], 81 Fed.
Reg. 44,645 (Jul. 8, 2016). Earlier this year, United States Citizenship and
Immigration Services (USCIS, the INS successor) terminated El Salvador’s
designation, effective September 9, 2019. See Termination of the Designation of El
Salvador for [TPS], 83 Fed. Reg. 2654 (Jan. 18, 2018).
Rubio entered the United States in August 1999 without being admitted or
paroled and later secured TPS. He was judged guilty of the municipal ordinance
1The BIA’s order permitted Rubio to voluntarily depart the United States.
When he filed this petition for review, the BIA’s alternative final order of removal
became effective. See 8 C.F.R. § 1240.26(i).
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violations at issue in 2002, for leaving the scene of an accident, and in 2003, for
driving with excessive blood alcohol content. See Columbia, Mo., Code §§ 14-91,
14-613. In 2011, he pleaded guilty in a state circuit court to driving with a suspended
license, a misdemeanor offense. See Mo. Rev. Stat. § 302.321.
In July 2012, USCIS withdrew Rubio’s TPS after he did not adequately
respond to the agency’s request for additional information about two of his
convictions. See 8 U.S.C. § 1254a(c)(3)(C); 8 C.F.R. § 1244.14(a)(3). In early 2014,
the Department of Homeland Security (DHS) served a Notice to Appear that
commenced removal proceedings and alleged that Rubio was removable as an “alien
present in the United States without being admitted or paroled.” 8 U.S.C.
§ 1182(a)(6)(A)(i). Rubio conceded the charge and filed a TPS application in the
removal proceeding, which if granted would have avoided removal so long as he
remained TPS eligible.
An Immigration Judge (IJ) granted the application in October 2015,
interpreting Missouri law as establishing that municipal ordinance violations are civil
matters, not misdemeanor convictions under the TPS statute. The government moved
for reconsideration. The next day, a different IJ granted the motion and denied
Rubio’s application in a summary order. Rubio appealed. The BIA affirmed the
second IJ’s decision, rejecting the first IJ’s interpretation of Missouri law and
concluding that Rubio’s two municipal ordinance violations were TPS-disqualifying
misdemeanor convictions. The BIA did not address the impact of Rubio’s 2011
“conviction” for violating Mo. Rev. Stat. § 302.321 because the two misdemeanor
municipal convictions rendered him TPS ineligible. As we affirm the BIA’s decision,
we likewise need not consider the 2011 conviction.
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II. Discussion
Rubio bears the burden in removal proceedings to prove that he is eligible for
TPS. See 8 U.S.C. § 1229a(c)(4)(A); 8 C.F.R. § 1240.8(d). As relevant here, the TPS
statute provides that “[a]n alien shall not be eligible for temporary protected status
under this section if the Attorney General finds that—(i) the alien has been convicted
of any felony or 2 or more misdemeanors committed in the United States.” 8 U.S.C.
§ 1254a(c)(2)(B)(i); see 8 C.F.R. § 1244.4(a). The statute does not define
“misdemeanor,” but the term is defined in the Attorney General’s TPS regulations:
Misdemeanor means a crime committed in the United States,
either:
(1) Punishable by imprisonment for a term of one year or less,
regardless of the term such alien actually served, if any, or
(2) A crime treated as a misdemeanor under the term “felony” of
this section.
For purposes of this definition, any crime punishable by
imprisonment for a maximum term of five days or less shall not be
considered a felony or misdemeanor.
8 C.F.R. § 1244.1. In responding to public comments, the INS explained: “The
definitions cited in this rule are identical to those used in other parts of Service
regulations and have not been the source of confusion.” [TPS] Final Rule, 56 Fed.
Reg. 23,491 (May 22, 1991). We find it significant that the exclusion for crimes
punishable by imprisonment for five days or less corresponds to offenses classified
in Title 18 of the United States Code as an “infraction” rather than a “misdemeanor.”
See 18 U.S.C. § 3559(a)(6)-(9).
The INA defines “conviction” in 8 U.S.C. § 1101(a), which contains many
definitions that apply across the INA, not just to the TPS statute:
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(48)(A) The term “conviction” means, with respect to an alien, a
formal judgment of guilt of the alien entered by a court or, if
adjudication of guilt has been withheld, where—
(i) a judge or jury has found the alien guilty or the alien
has entered a plea of guilty or nolo contendere or has
admitted sufficient facts to warrant a finding of guilt, and
(ii) the judge has ordered some form of punishment,
penalty, or restraint on the alien’s liberty to be imposed.
8 U.S.C. § 1101(a)(48)(A). Congress added this definition in 1996 to broaden the
BIA’s prior definition of conviction and to clarify that a “formal judgment of guilt”
is a conviction for INA purposes even if adjudication of guilt is deferred or
imposition of a sentence is suspended. See Mejia Rodriguez v. U.S. Dep’t of
Homeland Sec., 629 F.3d 1223, 1226-27 (11th Cir. 2011).
In Matter of Eslamizar, 23 I. & N. Dec. 684, 687 (BIA 2004), the BIA
interpreted “judgment of guilt” to mean “a judgment in a criminal proceeding, that
is, a trial or other proceeding whose purpose is to determine whether the accused
committed a crime and which provides the constitutional safeguards normally
attendant upon a criminal adjudication.” The BIA held that a judgment of guilt for
a third-degree theft “violation” was not a conviction because the prosecution did not
need to prove the defendant’s guilt beyond a reasonable doubt. Id. at 685, 688.
In Matter of Cuellar-Gomez, 25 I. & N. Dec. 850, 852-53 (BIA 2012), the BIA
held that a Kansas municipal judgment for marijuana possession was a conviction
because it was “criminal in nature under the governing laws of the prosecuting
jurisdiction” (quotation omitted). The BIA observed that the municipal court judge
was authorized to impose criminal penalties, including fines and imprisonment, the
prosecution was required to prove guilt beyond a reasonable doubt, and convictions
could be used to assess the defendant’s criminal history. Id. at 853. In a subsequent
case, Dominguez-Herrera v. Sessions, 850 F.3d 411 (8th Cir. 2017), the issue was
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whether the BIA properly determined that Kansas municipal theft convictions were
“convictions” for crimes involving moral turpitude that made petitioners ineligible
for cancellation of removal under 8 U.S.C. § 1229b(b). We upheld the BIA’s
conclusion that the municipal judgments were “convictions” under 8 U.S.C.
§ 1101(a)(48)(A), rejecting petitioners’ contentions that the BIA had inadequately
interpreted Kansas law in Cuellar-Gomez. Id. at 415-18.
This case involves Missouri municipal ordinance violations. The agency
precedents are more diverse because, in Matter of Bajric, 2010 WL 5173974, at *2
(BIA Nov. 30, 2010), a single-member decision, the BIA held that Missouri
municipal ordinance violations are not “convictions” under the INA because they lack
double jeopardy preclusive effect and are not 2 admissible for impeachment purposes.
In this case, quoting Tupper v. City of St. Louis, 468 S.W.3d 360, 371-72 (Mo. banc
2015), the BIA panel explained that “prosecutions for municipal ordinance violations
[are] ‘civil proceedings with quasicriminal aspects’” in which the municipal
prosecutor must prove guilt beyond a reasonable doubt. “[O]rdinance violations
expose defendants to the possibility of incarceration,” the BIA noted, and “are
statutorily defined as ‘crimes.’” The BIA also identified a number of procedural
protections made applicable to municipal ordinance prosecutions by Supreme Court
of Missouri Rule 37. Ultimately, the BIA concluded, “whether a ‘judgment of guilt’
qualifies as a ‘criminal’ judgment for immigration purposes is a matter of substance,
not of form.” Based on its review of Missouri law, the BIA disagreed with and
declined to follow Bajric.
On appeal, Rubio argues that Missouri courts consider municipal ordinance
violations to be civil, not criminal; that municipal proceedings lack important
constitutional protections; and that the BIA’s contrary conclusion is entitled to no
2This conclusion was simply wrong. See, e.g., State v. Rotter, 958 S.W.2d 59,
63 (Mo. App. 1997).
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deference because its decisions in Eslamizar, Cuellar-Gomez, Bajric, and this case are
inconsistent. The decisions in these factually distinguishable cases need to be
reconciled, as the BIA has attempted to do. But we do not find the level of
“inconsistency” noted in Castillo v. Attorney General United States, 729 F.3d 296,
302-11 (3d Cir. 2013), and we decline to follow that decision.3
In applying the definition of “conviction” in § 1101(a)(48)(A) to the issue of
TPS eligibility, the meaning of key words in the applicable immigration statutes and
regulations -- conviction, judgment of guilt, misdemeanor, and crime -- is an issue of
federal law. See Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 111-12 (1983);
Mejia Rodriguez, 629 F.3d at 1228; United States v. Franklin, 250 F.3d 653, 665 (8th
Cir.), cert. denied, 534 U.S. 1009 (2001). Reference to state law is unavoidable, but
it would be wrong to “render the law of alien removal . . . dependent on varying state
criminal classifications [because] Congress has . . . pegged the immigration statutes
to the classifications Congress itself chose.” Lopez v. Gonzales, 549 U.S. 47, 58
(2006). As the BIA observed some years before the enactment of § 1101(a)(48)(A),
“[w]e find no rational or legal reason for according . . . two aliens different
immigration status based on the criminal procedures of the states where they
committed a crime.” Matter of Ozkok, 19 I. & N. Dec 546, 551 (BIA 1988).
An alien is ineligible for TPS if he “has been convicted of any felony or 2 or
more misdemeanors committed in the United States.” 8 U.S.C. § 1254a(c)(2)(B)(i).
Misdemeanor is defined as a crime punishable by the term of imprisonment
prescribed in 8 C.F.R. § 1244.1. To render the alien ineligible, his two prior
convictions must be for crimes punishable by more than five days imprisonment, and
their adjudication must qualify as “convictions” under § 1101(a)(48)(A), defined as
Recent unpublished BIA decisions have 3 also declined to follow Bajric and
concluded that Missouri “municipal ordinance prosecutions, as a whole, carry the
procedural safeguards discussed by the Board in Eslamizar.” Matter of H-H-H-B-,
2017 WL 6492053 at *3 (BIA Nov. 20, 2017).
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“a formal judgment of guilt of the alien entered by a court.” It is significant, but not
dispositive, that state law classifies the offenses as “crimes.” The substantive federal
issue is not classification under state law, but whether a judgment of guilt was entered
by a court at the end of a criminal proceeding. It is irrelevant whether state law
classifies the crimes as “infractions” or “violations,” rather than “misdemeanors,” so
long as the punishment that may be imposed under state law meets the federal
definition of misdemeanor in 8 C.F.R. § 1244.1.4
For these reasons, we conclude the BIA properly considered this federal law
issue to be “a matter of substance, not of form.” In determining whether a state law
adjudication resulted in a judgment that the alien was guilty of a crime, the most
fundamental aspect of a “criminal proceeding” in this country is whether “guilt” was
proved beyond a reasonable doubt. If that standard was met, and if the alien was
judged guilty of two misdemeanors as defined in the TPS regulation, then the alien
is ineligible for TPS, whether or not the “judgment of guilt” came at the end of
proceedings that state law classified as civil, quasi-criminal, or criminal. Accord
Batrez Gradiz v. Gonzales, 490 F.3d 1206, 1208 (10th Cir. 2007) (“Eslamizar does
nothing more than reaffirm our traditional standard that findings of guilt must be
beyond a reasonable doubt”).
Rubio’s appeal focuses on additional procedural issues, including one relied
on by the BIA in Bajric, whether a municipal ordinance conviction may subsequently
be used to impeach. Rubio also notes that municipal judges in Missouri lack
jurisdiction over some state criminal offenses, see Mo. Rev. Stat. § 479.170; that no
Rubio does not dispute that his 4 municipal ordinance violations were
misdemeanors; he argues only that they were not “convictions” under 8 U.S.C.
§ 1101(a)(48)(A).
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plea colloquy is required in Missouri municipal courts;5 that municipal ordinance
violations are subject to the civil statute of limitations; that the rules of evidence do
not apply in municipal proceedings; that an information charging a municipal
violation need not be reviewed as strictly as a criminal indictment; and that municipal
proceedings do not protect a criminal defendant’s rights to be tried by a jury and
appeal a guilty verdict. The government argues we lack jurisdiction to consider many
of these arguments because they were not raised to the BIA. See 8 U.S.C.
§ 1252(d)(1); Martinez Carcamo v. Holder, 713 F.3d 916, 925 (8th Cir. 2013). But
in any event, procedural variations in municipal court proceedings across the country
do not affect TPS eligibility. To ensure uniform administration of this national
immigration program, the question of substance, not form, is whether the municipal
proceeding resulted in a judgment of guilt by a court that the alien committed a crime
falling within the definition of “misdemeanor” in the TPS statute and regulation.
Applying these standards, we agree with the BIA that Rubio’s two convictions
for municipal ordinance violations were “convictions” under § 1101(a)(48)(A). As
the BIA more than adequately justified this ruling, it is an agency decision entitled
to deference. Dominguez-Herrera, 850 F.3d at 415.
Rubio further argues the second IJ violated his right to due process by not
providing sufficient time to respond to the government’s motion for reconsideration
and not stating reasons for denying his TPS application. To succeed on a due process
claim, Rubio must show fundamental procedural error and prejudice. Ismail v.
Ashcroft, 396 F.3d 970, 974 (8th Cir. 2005). Rubio does not argue prejudice -- that
the outcome of the proceedings may well have been different. The dispositive issue
was a question of law that was thoroughly briefed on appeal and reviewed by the BIA
5Supreme Court of Missouri Rule 37.57 governing municipal court proceedings
provides: “No defendant shall either be tried or permitted to enter a plea of guilty
unless the defendant is personally present or the judge, defendant, and prosecutor
consent to such trial or plea in the defendant’s absence.”
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de novo. We have reviewed and upheld the lengthy decision of the BIA; we do not
review the summary ruling of the second IJ. Rubio suffered no due process prejudice.

Outcome: The petition for review is denied.

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