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Keywords

statuteappealpleamotionmisdemeanormens reaactus reusguilty pleano contest plea
appealmotionmisdemeanorsustained

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Rivera-Mendoza, Matter of

Facts

Mr. Mariscal, a native and citizen of Mexico, unlawfully entered the United States and has been convicted of several crimes, including a 2007 guilty plea to simple assault and a 2016 no contest plea to class B misdemeanor child abuse under Utah law. The Department of Homeland Security charged him as inadmissible, and he applied for cancellation of removal, which was denied based on his criminal history.

Mr. Mariscal, a native and citizen of Mexico, unlawfully entered the United States, where he has been convicted of several crimes. Two are relevant here. In 2007, he pled guilty to simple assault under Utah Code Ann. 76-5-102 in a 'case involv[ing] domestic [*2] violence.' In 2016, he pled no contest to class B misdemeanor child abuse in violation of Utah Code Ann. 76-5-109(3)(b).

Issue

Whether the BIA erred in affirming the IJ's denial of a continuance and whether Mariscal's child abuse conviction disqualified him for cancellation of removal.

Whether the BIA erred by affirming the IJ's denial of a continuance and whether his child abuse conviction disqualified him for cancellation of removal.

Rule

To be eligible for cancellation of removal, the petitioner must establish that he has not been convicted of criminal offenses under 8 U.S.C. 1182(a)(2), 1227(a)(2), or 1227(a)(3). A conviction for child abuse under state law can qualify as a disqualifying crime under federal law if it meets the federal definition.

To be eligible for cancellation of removal, the petitioner must establish that he has not been convicted of criminal offenses under 8 U.S.C. 1182(a)(2), 1227(a)(2), or 1227(a)(3).

Analysis

The BIA affirmed the IJ's denial of Mr. Mariscal's motion for a continuance, reasoning that he did not contest the fact of his 2016 child abuse conviction and failed to explain how the denial of his motion affected the outcome of his case. The court found that the Utah statute under which he was convicted had elements that matched the federal definition of child abuse, including a mens rea of recklessness and an actus reus of physical injury to a child.

The BIA affirmed the IJ's denial of Mr. Mariscal's motion for a continuance. It reasoned that Mr. Mariscal 'd[id] not contest the fact that he sustained the 2016 [child abuse] conviction . . . and ha[d] not explained what documents or argument he was prevented from presenting or how they would have affected the result in this case.'

Conclusion

The court denied the petition for review, affirming the BIA's decision that Mr. Mariscal's child abuse conviction was categorically a crime of child abuse under federal law.

The court denied the petition for review, affirming the BIA's decision that Mr. Mariscal's child abuse conviction was categorically a crime of child abuse under federal law.

Who won?

The Board of Immigration Appeals prevailed because they correctly determined that Mariscal's conviction met the federal definition of child abuse, thus disqualifying him from cancellation of removal.

The Board of Immigration Appeals prevailed because they correctly determined that Mariscal's conviction met the federal definition of child abuse, thus disqualifying him from cancellation of removal.

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