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Media Alerts - Andrade-Zamora v. Lynch - Eighth Circuit
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March 31, 2016
  Andrade-Zamora v. Lynch - Eighth Circuit
Headline Eighth Circuit panel denies petition for review of immigration judge decision regarding application for cancellation of removal

Area of Law Immigration Law

Issue(s) Presented Whether an immigration judge properly pretermitted an application for cancellation of removal where underlying theft conviction was vacated.

Brief Summary Petitioner Andrade-Zamora petitioned the Eighth Circuit for review of a decision by an immigration judge pretermitting his application for cancellation of removal. The underlying removal decision was based on petitioner's conviction for theft in the fourth degree, a crime involving moral turpitude. Petitioner conceded that he was removable, but argued that he was eligible to apply for cancellation despite his conviction on two grounds. First, because a state court vacated his conviction for theft. Second, because his conviction for a crime involving moral turpitude would preclude him from applying for cancellation of removal only if he was admitted to the United States within five years of committing the offense, which he was not, since he was never lawfully admitted to the United States.

With respect to the first issue, along with his motion for cancellation of removal, Petitioner submitted an order from an Iowa state court. The order made the conviction for theft in the fourth degree a "nullity" because the parties had discovered "material evidence" that could not be discovered before Petitioner pled guilty. In such cases, the person seeking cancellation of removal has the burden to prove that the conviction was vacated on the merits. If the conviction was vacated for a reason unrelated to the merits, such as to avoid immigration consequences, the conviction will still stand for immigration purposes despite its vacatur.

In this case, the Eighth Circuit found that Petitioner did not meet his burden of proof. The timing and effect of the order, just two weeks after the government filed its notice alleging that Petitioner was removable, was suspicious and suggested that the vacatur was for immigration purposes. Moreover, the order itself did not prove that the conviction was vacated for a substantive or procedural reason, and Petitioner could also point to no "material evidence" supporting the vacatur, nor could he provide any explanation for why the sentence was vacated.

With respect to the second issue, Petitioner argued for an interpretation of the removal statute that would only prohibit aliens who had been lawfully admitted into the United States within five years of being convicted of a crime involving moral turpitude from applying for cancellation of removal. Petitioner argued that since he was never lawfully admitted into the United States, the statute did not apply to him. Petitioner's interpretation was contrary to the interpretation of the Board of Immigration Appeals (BIA). This interpretation question was an issue of first impression for the Eighth Circuit.

The Eighth Circuit determined that the BIA's interpretation of the statute is entitled to Chevron deference. In keeping with the rulings of sister circuits, the Eighth Circuit held that the BIA's interpretation is supported by the structure of the statute, and also avoids illogical results. The Court therefore rejected Petitioner's interpretation of the statute and denied the petition for review.

The full text of the opinion may be found at http://media.ca8.uscourts.gov/opndir/16/02/152004P.pdf

Panel Circuit Judges Bye, Loken, and Wollman

Date of Issued Opinion February 26, 2016

Decided Petition for review denied

Docket Number 15-2004

Counsel Gail E. Boliver for Petitioner and Aaron Nelson for Respondent

Author Circuit Judge Bye

Case Alert Circuit Supervisor Joelle Larson, University of Minnesota Law School

    Posted By: Joelle Larson @ 03/31/2016 10:58 AM     8th Circuit  

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