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Avendano v. Holder

United States Court of Appeals, Eighth Circuit

October 27, 2014

Ribelino Alberto Avendano, also known as Ribelino Flores-Avendano, Petitioner,
v.
Eric H. Holder, Jr., Attorney General of the United States, Respondent

Submitted March 11, 2014

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

For Ribelino Alberto Avendano, also known as: Ribelino Flores-Avendano, Petitioner: Marcus Anton Jarvis, Jarvis Law Firm, Burnsville, MN; Magdalena Bozena Metelska, Marcus-Jarvis Law Limited, Brooklyn Park, MN.

For Eric H. Holder, Jr., Attorney General of the United States, Respondent: Scott Baniecke, U.S. Immigration & Naturalization Service, Bloomington, MN; Jesse Matthew Bless, Karen Yolanda Drummond, Richard M. Evans, Assistant Director, Kristofer Ryan McDonald, Trial Attorney, U.S. Department of Justice, Civil Division, Office of Immigration Litigation, Washington, DC.

Before COLLOTON, SHEPHERD, and KELLY, Circuit Judges. KELLY, Circuit Judge, concurring in part and dissenting in part.

OPINION

Page 732

COLLOTON, Circuit Judge.

Ribelino Avendano, a native and citizen of El Salvador, petitions for review of a decision of the Board of Immigration Appeals. After an immigration judge ordered Avendano removed to El Salvador, the Board on administrative appeal concluded that Avendano was ineligible for cancellation of removal because he had

Page 733

been convicted of a crime involving moral turpitude. The Board also rejected his request to remand the case for the immigration judge to consider claims for asylum, withholding of removal, and relief under the Convention Against Torture. We conclude that the Board permissibly categorized Avendano's offense of making terroristic threats in Minnesota as a crime involving moral turpitude, and that his remaining arguments are without merit. We therefore deny Avendano's petition.

I.

Avendano entered the United States from El Salvador illegally in 1998. He later received temporary protected status and protection from removal under 8 U.S.C. § 1254a based on the Attorney General's determination that El Salvador was " unable, temporarily, to handle adequately the return of its nationals," due to a series of severe earthquakes. Designation of El Salvador Under Temporary Protected Status Program, 66 Fed. Reg. 14,214 (Mar. 9, 2001) (internal quotation omitted). Avendano's attorney told the immigration judge that Avendano lost protected status following his conviction in 2007 for driving while impaired. Before the incident giving rise to removal proceedings, he resided for several years in Minnesota with his live-in girlfriend, whom he considered his wife, and their three United States citizen children.

In January 2012, during an argument with his girlfriend in the presence of their children, Avendano grabbed a knife and told his girlfriend to follow him into the bathroom. Avendano's girlfriend instructed one of the children to call the police; officers came and arrested Avendano. He pleaded guilty to making terroristic threats in violation of Minn. Stat. § 609.713 subd. 1. That statute, in relevant part, forbids " threaten[ing], directly or indirectly, to commit any crime of violence with purpose to terrorize another . . . or in a reckless disregard of the risk of causing such terror." A threat, as used in the statute, " is a declaration of an intention to injure another or [her] property by some unlawful act." State v. Schweppe, 306 Minn. 395, 237 N.W.2d 609, 613 (Minn. 1975). At his plea hearing, Avendano claimed he was threatening only to commit suicide, but it was an element of the crime that he threatened another, and he admitted that his girlfriend reasonably felt threatened by his actions.

The Department of Homeland Security initiated removal proceedings several months later. Through his first counsel, Avendano conceded that he was removable and that making terroristic threats was a crime involving moral turpitude that precludes cancellation of removal. The immigration judge determined that Avendano should be removed to El Salvador.

On administrative appeal, represented by new counsel, Avendano disputed that his Minnesota crime involved moral turpitude. He also sought a remand for the immigration judge to consider either temporary protected status or asylum and related benefits. A request for asylum is deemed also to constitute a request for withholding of removal. 8 C.F.R. § 1208.3(b).

The Board determined that Avendano had been convicted of a crime involving moral turpitude and was therefore ineligible for cancellation of removal. The Board also declined to remand for the immigration judge to consider asylum, explaining that Avendano failed to meet the rigorous standards for a motion to reopen. In addition, the Board cited the immigration judge's conclusion that Avendano's theory for asylum and withholding of removal based on fear of gang recruitment in El Salvador was foreclosed by decisions of the

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Board and this court. The Board explained that Avendano was ineligible for temporary protected status as a consequence of his felony conviction, 8 C.F.R. § 1244.4(a), and rejected any claim for relief under the Convention Against Torture as inadequately alleged.

Avendano petitions for review, challenging the Board's decision on cancellation of removal and its refusal to remand for further consideration of his claims for asylum, withholding of ...


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