          Case: 19-12114   Date Filed: 04/13/2020   Page: 1 of 11



                                                     [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 19-12114
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 1:18-cv-21038-JJO



ERNESTO ALONSO MEJIA RODRIGUEZ,

                                                          Plaintiff-Appellant,

                                 versus

UNITED STATES DEPARTMENT OF HOMELAND SECURITY,
UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES,

                                                       Defendants-Appellees.

                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     ________________________

                             (April 13, 2020)



Before MARTIN, ROSENBAUM, and EDMONDSON, Circuit Judges.
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PER CURIAM:



      In this declaratory judgment action, Plaintiff Ernesto Mejia Rodriguez

appeals the district court’s grant of summary judgment in favor of the United

States Citizenship and Immigration Service (“USCIS”) and the Department of

Homeland Security (“DHS”) (collectively, “the government”). No reversible error

has been shown; we affirm.



I.    Background



      Plaintiff is a native and citizen of Honduras. In 1999, Plaintiff applied for

Temporary Protected Status (“TPS”), pursuant to 8 U.S.C. § 1254a. Briefly stated,

TPS is a form of temporary relief available to citizens of countries designated by

DHS due to unsuitable living conditions, such as those caused by a natural disaster.

See 8 U.S.C. § 1254a; Mejia Rodriguez v. U.S. Dep’t of Homeland Sec., 562 F.3d

1137, 1140 (11th Cir. 2009). At all times pertinent to this appeal, Honduras was

designated for inclusion in the TPS program.

      An alien is ineligible for TPS, however, if he “has been convicted of . . . 2 or

more misdemeanors committed in the United States.” 8 U.S.C. §

1254a(c)(2)(B)(ii). For purposes of the TPS program, the term “misdemeanor” is


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defined as “a crime committed in the United States” that is “[p]unishable by

imprisonment for a term of one year or less, regardless of the term such alien

actually served, if any . . ..” 8 C.F.R. § 244.1.

       In his 1999 TPS application, Plaintiff disclosed his criminal history,

including these convictions: (1) a 1985 conviction for refusal to pay transit fare at a

Miami MetroRail station and (2) 1986 conviction for possession of marijuana and

for driving with a suspended license.

       Despite Plaintiff’s criminal history, Plaintiff’s TPS application was granted.

In accordance with the TPS program, Plaintiff submitted periodic re-registration

applications to retain his TPS. In 2006, however, the USCIS denied Plaintiff’s re-

registration application on grounds that Plaintiff was ineligible for TPS: he had two

or more disqualifying misdemeanor convictions.

       Plaintiff has since raised several challenges to the USCIS’s determination

about his eligibility for TPS, resulting in a twisting and lengthy procedural history.

We set forth only those facts pertinent to this appeal.1

       In 2011, this Court determined that Plaintiff’s 1986 charges -- to which

Plaintiff pleaded guilty and was sentenced to time served -- qualified as a




1
  The procedural history of this case is described more fully in the district court’s 22 May 2019
order and also in our earlier decisions in Mejia Rodriguez v. U.S. Dep’t of Homeland Sec., 562
F.3d 1137 (11th Cir. 2009), and in Mejia Rodriguez v. U.S. Dep’t of Homeland Sec., 629 F.3d
1223 (11th Cir. 2011).
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“conviction” under 8 U.S.C. § 1101(a)(48). Mejia Rodriguez v. U.S. Dep’t of

Homeland Sec., 629 F.3d 1223, 1228 (11th Cir. 2011). Plaintiff conceded that his

1985 refusal-to-pay charge constituted a “conviction” for immigration purposes.

Id. at 1225. Because Plaintiff thus had at least two misdemeanor convictions, we

affirmed the district court’s denial of declaratory relief. Id. at 1228.

      After this Court’s 2011 decision, Plaintiff reapplied for TPS. Plaintiff

argued -- based on two new policy memoranda issued by the USCIS -- that his

1985 and 1986 convictions no longer constituted disqualifying misdemeanor

convictions for purposes of TPS. The first policy memorandum (the “New York

Memo”) provided that certain “violations” under New York law were excluded

from consideration in determining eligibility for TPS. The second policy

memorandum (the “Florida Memo”) provided that certain Florida misdemeanor

convictions failed to meet the definition of “misdemeanor” under the TPS

program.

      The USCIS denied Plaintiff’s TPS application; Plaintiff then appealed that

decision to the Administrative Appeals Office (“AAO”). The AAO dismissed

Plaintiff’s appeal on 18 September 2017. In a detailed, 14-page non-precedential

decision, the AAO concluded that the policies announced in the New York Memo

and in the Florida Memo were inapplicable to Plaintiff’s 1985 and 1986




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convictions. Because Plaintiff had at least two disqualifying misdemeanor

convictions, the AAO determined that Plaintiff was ineligible for TPS.2

       Plaintiff then filed in the district court the complaint for declaratory relief at

issue in this appeal. The district court concluded that the AAO’s 18 September

decision was not arbitrary and capricious. The district court thus entered summary

judgment in favor of the government.



II.    Standard of Review



       We review the district court’s grant of summary judgment de novo, applying

the same legal standards that bound the district court. Shuford v. Fid. Nat’l Prop.

& Cas. Ins. Co., 508 F.3d 1337, 1341 (11th Cir. 2007).

       Under the Administrative Procedure Act (“APA”), a reviewing court may set

aside agency actions, findings, and conclusions if they are “arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law” or “unsupported by

substantial evidence.” 5 U.S.C. § 706(2)(A), (E). “To determine whether an

agency decision was arbitrary and capricious, the reviewing court ‘must consider


2
  The AAO also determined that Plaintiff’s 1986 charges for possession of marijuana and for
driving with a suspended licensed resulted in two separate convictions for purposes of TPS. The
AAO also discussed Plaintiff’s drug-related conviction as an additional alternative ground for
TPS ineligibility. Because we conclude that Plaintiff is ineligible for TPS based on his 1985 and
1986 convictions (regardless of whether his 1986 charges resulted in one or two convictions), we
need not address these issues in this appeal.
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whether the decision was based on a consideration of the relevant factors and

whether there has been a clear error of judgment.’” N. Buckhead Civic Ass’n v.

Skinner, 903 F.2d 1533, 1538 (11th Cir. 1990).

       “[T]he arbitrary and capricious standard gives an appellate court the least

latitude in finding grounds for reversal; administrative decisions should be set

aside in this context only for substantial procedural or substantive reasons as

mandated by statute, not simply because the court is unhappy with the result

reached.” Id. at 1538-39 (quotations and alterations omitted). This standard of

review is “exceedingly deferential.” Fund for Animals, Inc. v. Rice, 85 F.3d 535,

541 (11th Cir. 1996).



III.   Discussion



       A.    New York Memo & 1985 Conviction



       The New York Memo provides that certain “violations” of New York local

laws, rules, and ordinances shall not be considered disqualifying misdemeanors for

purposes of the TPS program. The “violations” addressed by the New York Memo

are those that “are not considered ‘crimes’ under state law, do not constitute

misdemeanors or felonies, and may not be punished by more than 15 days of


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imprisonment.” The New York Memo explained that -- although these

“violations” would qualify technically as “misdemeanors” under 8 C.F.R. § 244.1 -

- “deeming such New York violations as disqualifying an individual for TPS

would be in tension with the humanitarian purpose of the TPS program and would

lead to incongruous results.”

      Plaintiff seeks to apply the policy established in the New York Memo to his

1985 Florida conviction for refusal to pay transit fare. Because his 1985

conviction was for a violation of a county ordinance, Plaintiff contends that the

conviction should be excluded from consideration in determining his eligibility for

TPS. The AAO rejected Plaintiff’s argument.

      Plaintiff’s convictions have no contact with New York or New York law.

The AAO provided a reasoned explanation for concluding that the New York

Memo was inapplicable to Plaintiff’s 1985 conviction. The AAO first explained

that the policy established in the New York Memo was based both on New York’s

statutory classification of offenses and also on the prescribed maximum

punishments for those offenses. The AAO’s interpretation of the New York Memo

is consistent with the Memo’s plain language.

      The AAO also determined reasonably that Plaintiff’s 1985 Florida

conviction is distinguishable from the kinds of violations addressed by the New

York Memo. The AAO determined that Florida law -- the misconduct happened in


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Florida -- provided identical maximum punishments for both ordinance violations

and for second degree misdemeanors. Florida law also provided that violations of

county ordinances would be prosecuted in a manner identical to the prosecution of

misdemeanors. The AAO thus concluded that Florida -- unlike New York --

“neither classifies nor considers ordinance violations as less severe than those

offenses it has designated as misdemeanors . . ..” As a result, the AAO determined

that Plaintiff’s 1985 conviction was not subject to an exemption “under the rubric

of the New York memorandum.”

       In support of his arguments on appeal, Plaintiff seems to place greater stress

on the single-sentence policy statement in the New York Memo (noting the

“humanitarian purpose of the TPS program” and the need to avoid “incongruous

results”) than on the defining characteristics of the New York “violations”

exempted by the Memo. That Plaintiff’s interpretation (even if a reasonable one)

about the scope of the New York Memo differs from the AAO’s interpretation is

no evidence (or is insufficient evidence) that the AAO’s interpretation is arbitrary

or capricious.



       B.      Florida Memo & 1986 Conviction3



3
  In the district court and on appeal, Plaintiff has raised no challenge to the AAO’s determination
that the Florida Memo was inapplicable to Plaintiff’s 1985 conviction.
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      The Florida Memo addressed whether a Florida conviction for an offense

that was certified by the state or local court as a “no jail” or “no incarceration”

offense -- pursuant to Fla. R. Crim. P. 3.994 -- constitutes a disqualifying

misdemeanor for purposes of TPS. The Florida Memo noted that a “no jail” or “no

incarceration” certification “fundamentally changes the maximum possible

sentence for an offense by removing the possibility of incarceration for that

offense.” Because such offenses are not punishable by imprisonment, they fall

outside the definition of a “misdemeanor” under 8 C.F.R. § 244.1.

      Plaintiff contends that -- under the Florida Memo -- his 1986 conviction

constitutes no “misdemeanor” because Plaintiff was sentenced only to “time

served” and received no additional term of imprisonment. The AAO rejected

Plaintiff’s position.

      The AAO noted that the purpose of Florida’s no-jail certification procedure

is to allow the trial court to conduct criminal proceedings without a constitutional

obligation to appoint counsel for indigent defendants. The AAO explained that

“[t]he significance of the certification is its effect of removing imprisonment as a

possible sentence prior to a finding of guilt, or a plea of guilty or nolo contendre.”

(emphasis in original). The Florida Memo thus applies only to offenses where no

possibility of imprisonment existed at the time of the original criminal proceedings


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-- not “to offenses where imprisonment was not actually imposed, but could have

been.”

       The AAO determined that the record contained no evidence that a no-jail

certificate (or other similar certification)4 was issued for Plaintiff’s 1986

convictions. Nor did the record contain information about whether Plaintiff was

appointed a lawyer, retained his own lawyer, or waived his right to a lawyer. In

short, nothing evidenced that Plaintiff -- before he entered his plea -- faced no

possible sentence of imprisonment. That Plaintiff was sentenced to “time served” -

- by itself -- was no proof that the trial court lacked authority to impose an

additional term of imprisonment. The AAO thus concluded reasonably that

Plaintiff’s 1986 convictions failed to satisfy the criteria for the exception set forth

in the Florida Memo.

       On this record and under the deferential standard of review applicable in this

appeal, we cannot conclude that the AAO’s decision was arbitrary and capricious.

The district court thought the AAO provided reasoned explanations for its

determination that neither the New York Memo nor the Florida Memo applied to

exempt Plaintiff’s 1985 and 1986 convictions. The AAO’s articulated reasons are




4
  The AAO acknowledged that Rule 3.994 first took effect in 2003. To the extent no similar
procedure was available in 1986, the AAO said that the Florida Memo would have no application
to Plaintiff’s conviction. In considering Plaintiff’s argument, however, the AAO assumed that
some similar process was available to Plaintiff.
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rational and supported by the record. Accordingly, we affirm the district court’s

grant of summary judgment in favor of the government.

      AFFIRMED.




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