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Ramirez-Barajas v. Sessions

United States Court of Appeals, Eighth Circuit

December 15, 2017

J. Cruz Ramirez-Barajas Petitioner
v.
Jefferson B. Sessions, III, Attorney General of the United States of America Respondent J. Cruz Ramirez-Barajas Petitioner
v.
Jefferson B. Sessions, III, Attorney General of the United States Respondent

          Submitted: October 20, 2017

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

          Before LOKEN, GRUENDER, and BENTON, Circuit Judges.

          BENTON, Circuit Judge.

         An Immigration Judge denied J. Cruz Ramirez-Barajas's application for cancellation of removal. The Board of Immigration Appeals dismissed his appeal and denied his motion to reconsider. He petitions for review of both decisions. Having jurisdiction under 8 U.S.C. § 1252, this court denies the consolidated petitions.

         I.

         Without inspection or admission, Ramirez-Barajas entered the United States in 1991. In 2001, he was convicted of misdemeanor domestic assault. See Minn. Stat. § 609.2242, subd. 1(1). The Department of Homeland Security began removal proceedings in 2012, charging him with removability as an alien present without admission or parole. See 8 U.S.C. § 1182(a)(6)(A)(i).

         Conceding removability, Ramirez-Barajas applied for cancellation of removal. See 8 U.S.C. § 1229b(b)(1). The Immigration Judge denied his application, finding him ineligible because his conviction was a "crime of domestic violence" under 8 U.S.C. § 1227(a)(2)(E). See § 1229b(b)(1)(C) (an alien is ineligible for cancellation of removal if "convicted of an offense under section . . . 1227(a)(2) . . . of this title . . . .").

         On appeal, the BIA affirmed the Immigration Judge's decision and later denied reconsideration. Ramirez-Barajas petitions for review, arguing that his conviction is not a crime of domestic violence because it is not a "crime of violence" under 18 U.S.C. § 16(a). This court consolidated the two petitions. See § 1252(b)(6).

         This court lacks jurisdiction to review the discretionary denial of cancellation of removal under § 1229b, but has jurisdiction to review questions of law raised in a petition for review. Pinos-Gonzalez v. Mukasey, 519 F.3d 436, 439 (8th Cir. 2008), citing §§ 1252(a)(2)(B)(i), 1252(a)(2)(D). This court reviews "the BIA's legal determinations de novo, according substantial deference to the BIA's interpretation of the statutes and regulations it administers." Roberts v. Holder, 745 F.3d 928, 930 (8th Cir. 2014). This court reviews for abuse of discretion the BIA's denial of a motion to reconsider. Esenwah v. Ashcroft, 378 F.3d 763, 765 (8th Cir. 2004).

         II.

         Section 1227(a)(2)(E)(i) defines a crime of domestic violence as "any crime of violence (as defined in section 16 of Title 18)" in a domestic relationship. Ramirez-Barajas concedes the domestic-relationship element. He argues only that the Minnesota statute-whoever "commits an act with intent to cause fear in [a family or household member] of immediate bodily harm or death"-is not a crime of violence, because it does not have "as an element the use, attempted use, or threatened use of physical force against the person or property of another." Compare Minn. Stat. § 609.2242, subd. 1(1), with § 16(a).

         United States v. Schaffer controls this issue. This court there held that a conviction under the same statute is a "violent felony" under the force clause of the Armed Career Criminal Act, because it has "as an element 'the threatened use of physical force against the person of another.'" United States v. Schaffer, 818 F.3d 796, 798 (8th Cir. 2016), quoting 18 U.S.C. § 924(e)(2)(B)(i). Although Schaffer addresses the ACCA, its language-threatened use of physical force against the person of another-mirrors that in § 16(a). See Roberts, 745 F.3d at 930 (recognizing "violent felony" under the ACCA as "virtually identical" to "crime of violence" under § 16).

         Misdemeanor domestic assault under the Minnesota statute is a crime of violence under § 16(a). The BIA did not err in finding Ramirez-Barajas ineligible for cancellation of removal, nor ...


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