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Dominguez-Herrera v. Sessions

United States Court of Appeals, Eighth Circuit

March 7, 2017

Ismael Dominguez-Herrera; Lidia Cristina Hernandez-Martinez Petitioners
v.
Jefferson B. Sessions, III, Attorney General of the United States[1] Respondent

          Submitted: November 17, 2016

         Petition for Review of an Order of the Board of Immigration Appeals

          Before RILEY, Chief Judge, WOLLMAN and KELLY, Circuit Judges.

          KELLY, Circuit Judge.

         Petitioners Lidia Cristina Hernandez-Martinez and Ismael Dominguez-Herrera, a married couple, appeal the denial of their consolidated applications for cancellation of removal under section 240A(b) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1229b(b)(1). Because the petitioners have failed to meet their burden under the REAL ID Act to establish their eligibility for cancellation of removal, we deny their petition. See 8 U.S.C. § 1229a(c)(4).

         I. Background

         Hernandez-Martinez and Dominguez-Herrera are non-permanent residents of the United States. On February 17, 2011, the Department of Homeland Security served Hernandez-Martinez with a Notice to Appear, charging her with deportability under section 237(a)(1)(B) of the INA, 8 U.S.C. § 1227(a)(1)(B), on the grounds that she was an alien who had remained in the country longer than permitted. On April 26, 2012, she submitted a written pleading admitting to the factual allegations of the Notice to Appear and conceding removability. On August 9, 2011, the Department of Homeland Security served Dominguez-Herrera with a Notice to Appear, charging him with inadmissibility under section 212(a)(6)(A)(i) of the INA, 8 U.S.C. § 1182(a)(6)(A), on the grounds that he was an alien present in the country without being admitted or paroled. He admitted the factual allegations of the Notice to Appear, and an immigration judge (IJ) found that he was subject to removal on September 8, 2011.

         Both petitioners applied for cancellation of removal under section 240A(b) of the INA, 8 U.S.C. § 1229b(b)(1), which provides, "The Attorney General may cancel removal of, and adjust to the status of an alien lawfully admitted for permanent residence, an alien who is inadmissible or deportable from the United States if the alien" meets certain conditions. One condition is that the alien has not been convicted of an offense under 8 U.S.C. § 1227(a)(2). The IJ concluded, and the BIA affirmed, that both petitioners had committed an offense described in 8 U.S.C. § 1227(a)(2)(A)(i): "a crime involving moral turpitude . . . for which a sentence of one year or longer may be imposed." Specifically, the IJ concluded that Hernandez-Martinez had been convicted of theft in the municipal court of Hutchinson, Kansas, and Dominguez-Herrera had been convicted of theft in the municipal court of Great Bend, Kansas. Both Hutchinson and Great Bend have adopted the Kansas Uniform Public Offense Code (UPOC). The IJ concluded that each petitioner was convicted of theft under UPOC § 6.1. The relevant version of UPOC § 6.1 provides, in part:

Theft is any of the following acts done with the intent to deprive the owner permanently of the possession, use or benefit of the owner's property:
(a) Obtaining or exerting unauthorized control over property;
(b) Obtaining by deception control over property;
(c) Obtaining by threat control over property; or
(d) Obtaining control over stolen property knowing the property to have been stolen by another.

         In determining that each petitioner was convicted of theft under UPOC § 6.1, the IJ relied on various municipal court documents. With respect to Hernandez-Martinez, the record includes: a complaint charging Hernandez-Martinez with violating UPOC § 6.1(a); a form titled Waiver of Right to Counsel and Trial, which states that Hernandez-Martinez was charged with theft under the UPOC; and a court docket sheet indicating that Hernandez-Martinez pleaded guilty to a violation of UPOC § 6.1(a). With respect to Dominguez-Herrera, the only document in the record is an Abstract of Conviction, which states Dominguez-Herrera was convicted of "theft" in violation of ...


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