                                                                            FILED
                                                                United States Court of Appeals
                                        PUBLISH                         Tenth Circuit

                        UNITED STATES COURT OF APPEALS                  June 2, 2014

                                                                   Elisabeth A. Shumaker
                                FOR THE TENTH CIRCUIT                  Clerk of Court


ENRIQUE GARCIA-MENDOZA,

               Petitioner,

v.                                                        No. 13-9531

ERIC H. HOLDER, JR.,
United States Attorney General,

               Respondent.

-------------------------------------

AMERICAN IMMIGRATION
LAWYERS ASSOCIATION,

               Amicus Curiae.


                     PETITION FOR REVIEW OF DECISION OF
                     THE BOARD OF IMMIGRATION APPEALS


Submitted on the briefs:*

Sandra Saltrese-Miller, Saltrese, Faville & DeSeguin, LLC, Denver, Colorado, Ingrid
J. DeFranco, Law Office of Ingrid J. DeFranco, Brighton, Colorado, and Ben
Winograd, Immigrant & Refugee Appellate Center, LLC, Alexandria, Virginia, for
Petitioner.

*
      After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
Stuart F. Delery, Assistant Attorney General, Civil Division, Douglas E. Ginsburg,
Assistant Director, Office of Immigration Litigation, and Julie S. Saltman, Trial
Attorney, U.S. Department of Justice, Civil Division, Office of Immigration
Litigation, Washington, D.C., for Respondent.

Maris J. Liss, Farmington Hills, Michigan, Aaron C. Hall, Aurora, Colorado, and
Mark R. Barr, Denver, Colorado, filed an amicus brief on behalf of American
Immigration Lawyers Association.


Before BRISCOE, Chief Judge, PORFILIO and O’BRIEN, Circuit Judges.


BRISCOE, Chief Judge.


      Enrique Garcia-Mendoza petitions for review of the Board of Immigration

Appeals’ (BIA) decision upholding the Immigration Judge’s (IJ) denial of his request

for cancellation of removal. The agency determined that he was ineligible for such

relief because he could not establish that he “ha[d] been a person of good moral

character,” 8 U.S.C. § 1229b(b)(1)(B), due to his confinement in a penal institution

for more than 180 days, see 8 U.S.C. § 1101(f)(7). We have jurisdiction pursuant to

8 U.S.C. § 1252, and we deny the petition.

                                   I. Background

      Petitioner is a native and citizen of Mexico. He was admitted in January 1996

as a temporary visitor for six months, but he remained in the United States beyond

that time without authorization.

      In 2010, he was arrested and charged with driving under the influence and

leaving the scene of an accident. He could not afford bond and remained confined

                                         -2-
during his pretrial criminal proceedings for a total of 104 days. He then entered a

guilty plea and was sentenced to a term of 270 days with credit for time served. He

was released in 2011, after he had been confined for a total of 197 days (104 served

before his conviction and credited towards his term of imprisonment and 93 served

after his conviction).

      After he was released, the Department of Homeland Security (DHS) took him

into custody and initiated removal proceedings. Petitioner conceded that he was

removable for remaining in the United States beyond his authorized period of stay

and applied for cancellation of removal. The IJ denied his request because petitioner

had been confined for more than 180 days for his 2010 conviction and therefore he

could not establish the requisite good moral character.

      While petitioner’s appeal of that decision was pending with the BIA, he filed a

motion with the state trial court seeking to amend his sentence. In the motion, he

alleged that his counsel failed to advise him of the immigration consequences of his

sentence before he entered his guilty plea. He asked the court to resentence him to

166 days with no credit for time served, because this sentence “would satisfy the

court’s desire and the District Attorney’s request to have Mr. Garcia-Mendoza

actually serve a total of 270 days (a 9 month sentence), but the mittimus would be

such that he would be able to avail himself to a defense before the United States

Department of Justice.” Admin. R. at 318 (emphasis in original). The state court

granted the motion and issued a modified mittimus nunc pro tunc to the original


                                         -3-
sentencing date. We note the state trial court did not issue any substantive order

addressing the allegations petitioner asserted in his motion regarding his counsel’s

advisements.

      Petitioner then filed a motion for remand with the BIA based on the new

evidence that his sentence was modified to 166 days. The BIA granted the motion

and remanded to the IJ for further proceedings. On remand, the IJ again denied

cancellation of removal, noting that the nunc pro tunc order modifying the sentence

did not change the fact that petitioner had already been confined for more than

180 days as a result of his conviction. The BIA upheld the IJ’s decision. Petitioner

now seeks review of the BIA’s decision.

                                     II. Analysis

      Under the Immigration and Nationality Act, nonpermanent residents, like

petitioner, who apply for cancellation of removal must demonstrate that they have

been persons of “good moral character” during the ten years immediately preceding

the date of their application. See 8 U.S.C. § 1229b(b)(1). An applicant cannot

establish “good moral character” if he has “been confined, as a result of conviction,

to a penal institution for an aggregate period of one hundred and eighty days or

more.” 8 U.S.C. § 1101(f)(7).

      The issue presented for review is whether the BIA correctly determined that

petitioner is statutorily barred under § 1101(f)(7) from establishing good moral

character and is therefore ineligible for cancellation of removal under § 1229b(b)(1).


                                          -4-
Petitioner contends the BIA erred by failing to give full faith and credit to the state

court’s nunc pro tunc sentence modification. Petitioner also asserts that the BIA

erred in counting his period of pretrial confinement in determining that he had been

confined for 180 days or more as a result of his conviction.

      We review legal questions de novo. Ritonga v. Holder, 633 F.3d 971, 974

(10th Cir. 2011). When reviewing the BIA’s interpretation of immigration statutes,

we follow the two-step test from Chevron, U.S.A., Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837, 842-43 (1984). Tapia Garcia v. I.N.S., 237 F.3d 1216,

1220 (10th Cir. 2001). At the first step, we consider whether Congress has spoken to

the question at issue. Chevron, 467 U.S. at 842. “If the intent of Congress is clear,

that is the end of the matter; for the court, as well as the agency, must give effect to

the unambiguously expressed intent of Congress.” Id. at 842-43. If the statute is

ambiguous, we move to the second step to decide “whether the agency’s answer is

based on a permissible construction of the statute.” Id. at 843.

                                           A.

      The BIA concluded that the state court’s nunc pro tunc sentence modification

had no impact on calculating the 180-day period of confinement for the

good-moral-character provision in § 1101(f)(7) because petitioner “had actually

already served a period of confinement in excess of 180 days as a result of a lawful

conviction, prior to the Colorado sentencing judge’s amendment of his sentence.”

Admin. R. at 5. In support of its conclusion, the BIA noted that the state court order


                                           -5-
“did not vacate the actual conviction, or find that the conviction was unlawfully

obtained or the sentence imposed in violation of the Constitution of the United States

or the State of Colorado.” Id. The BIA further found that “in light of the clear

express language of section [1101(f)(7)], Congress intended to apply the actual

period of confinement served by an alien pursuant to a then existing lawful sentence

. . . rather than any nunc pro tunc modification of that sentence, in determining

whether an alien meets the aggregate period of 180 days.” Admin. R. at 5.

      We agree with the BIA that the statutory language is clear on this issue, and

therefore we need not proceed to the second Chevron step. See Chevron, 467 U.S.

at 842-43. In § 1101(f)(7), Congress intended to bar aliens from establishing good

moral character when an alien was “confined, as a result of [a] conviction,” for

180 days or more. This language focuses on the actual period of confinement, and

does not reference the ordered term of imprisonment. The inquiry under § 1101(f)(7)

is fact-based, dependent on the actual period of confinement, and not dependent on

the formal language of the court’s sentencing order.

      Section 1101(f)(7)’s use of the word “confined” distinguishes it from the cases

petitioner relies on to support his position. Those cases involved the question of

whether certain convictions for theft offenses qualified as aggravated felonies under

8 U.S.C. § 1101(a)(43)(G) after the state court issued a nunc pro tunc order reducing

the aliens’ sentences. See In re Cota-Vargas, 23 I. & N. Dec. 849, 851 (BIA 2005);

In re Song, 23 I. & N. Dec. 173, 173-74 (BIA 2001). Section 1101(a)(43)(G) defines


                                         -6-
aggravated felony to include a theft offense “for which the term of imprisonment [is]

at least one year.” Id. Because § 1101(a)(43)(G) looks to the ordered term of

imprisonment, as opposed to the actual period of confinement served, the nunc pro

tunc orders in those cases, which reduced the sentences for the relevant theft offenses

to less than one year, caused the aliens’ convictions to no longer fall within the

statutory definition of an aggravated felony. See Cota-Vargas, 23 I. & N. Dec.

at 852; Song, 23 I. & N. Dec. at 174.

      Not surprisingly, in any statutory analysis we start with the language of the

statute and if the key terms at issue vary, so will our analysis. That is the case here.

The analysis therefore is different when applying a statute such as 8 U.S.C.

§ 1101(a)(43)(G) because there is no consideration of whether or for how long the

alien was actually confined as a result of the sentence. For the purposes of that

statute, the focus is solely on whether “the term of imprisonment” that has been

ordered is for “at least one year.” See id.; see also 8 U.S.C. § 1101(a)(48)(B)

(defining “term of imprisonment” “to include the period of incarceration ordered by

a court of law regardless of any suspension of the imposition or execution of that

imprisonment” (emphasis added)); Cota-Vargas, 23 I. & N. Dec. at 852 (following

§ 1101(a)(48)(B)’s directive to consider only the ordered term of imprisonment in

determining that nunc pro tunc sentence modification caused petitioner’s theft

offense to no longer qualify as an aggravated felony).




                                          -7-
      When considering § 1101(f)(7), however, it is the actual period of confinement

served that is determinative, not the ordered term of imprisonment. See id. (barring

applicant from establishing “good moral character” if he has “been confined, as a

result of conviction, to a penal institution for an aggregate period of one hundred and

eighty days or more”). As a result, the BIA’s treatment of the nunc pro tunc order

here did not run afoul of the full faith and credit clause because giving the order

effect does not alter the fact that petitioner actually spent more than 180 days in jail

as a result of his lawful conviction.1

                                            B.

      The BIA next considered petitioner’s argument that he does not fall within the

purview of § 1101(f)(7) because his period of pretrial confinement does not

constitute confinement as a result of a conviction. In rejecting this argument, the

BIA relied on its earlier decision in In re Valdovinos, 18 I. & N. Dec. 343, 344-45

(BIA 1982), explaining that “the Board has found that the period of confinement

prior to conviction should be included in computing the period of time for purposes

of section [1101(f)(7)].” Admin. R. at 6.

      The BIA also noted that, although the Tenth Circuit had not addressed the

issue, the Ninth Circuit had “‘concluded that pre-trial detention that is later credited


1
       We note that petitioner’s reliance on In re Matter of H-, 7 I. & N. Dec. 249,
250 (BIA 1956), is also misplaced because unlike in that case, petitioner has not been
granted a pardon for his crime, nor has his conviction been expunged or vacated by
the state court.

                                          -8-
as time served as part of the sentence imposed counts as confinement as a result of a

conviction within the meaning of [8 U.S.C.] § 1101(f)(7).’” Admin. R. at 6 (quoting

Arreguin-Moreno v. Mukasey, 511 F.3d 1229, 1232 (9th Cir. 2008)). The BIA

further cited to the Second Circuit’s decision in Spina v. Department of Homeland

Security, 470 F.3d 116, 127-28 (2d Cir. 2006), in which that court acknowledged the

uniform practice of crediting the time spent by a defendant in pretrial detention as

against the term of imprisonment imposed by the court upon conviction. As the

Spina court explained, “[t]his unanimity is strong evidence of a common

understanding that, after judgment, any credited pre-conviction detention effectively

becomes time served on the imposed term of imprisonment.” 470 F.3d at 127-28.

      Petitioner contends that the statutory text is unambiguous and that no

deference is owed to the BIA’s interpretation. We disagree. We conclude that the

phrase “as a result of conviction” is ambiguous, and we defer to the BIA’s reasonable

interpretation of the statute, which “relies on prior BIA precedent addressing the

same question,” Efagene v. Holder, 642 F.3d 918, 920 (10th Cir. 2011).

      The statute’s language “as a result of conviction,” is ambiguous because it is

subject to more than one interpretation. Petitioner interprets the statute to mean that

the period of confinement can only count towards the 180 days if it is served after the

judgment of conviction is entered. But the statute does not say, “confined, after a

conviction.” The BIA interprets “confined, as a result of conviction” to include an

alien’s pretrial confinement that is credited towards a later term of imprisonment


                                          -9-
because it is “considered time served as a result of [an alien’s] subsequent

conviction.” Valdovinos, 18 I. & N. Dec. at 344.

      The BIA’s interpretation is consistent with the uniform practice of crediting

time served in pretrial confinement towards the ultimate sentence imposed after the

conviction2; the time served in pretrial confinement thereby becomes part of the time

served “as a result of conviction.” Conversely, if the alien is not ultimately

convicted, then the pretrial period of confinement would not count towards the

180-day period because it would not have occurred “as a result of conviction.”

Because the BIA’s interpretation of the statute is reasonable, we defer to it.

See Tapia Garcia, 237 F.3d at 1220.

                                    III. Conclusion

      The BIA concluded that petitioner could not establish the requisite good moral

character for cancellation of removal because he “had actually already served a

lawful period of confinement in excess of 180 days as a result of a conviction,” and

the sentencing court’s entry of a nunc pro tunc order at petitioner’s request

shortening the ordered sentence did not impact the calculation of petitioner’s 180-day


2
        See Spina, 470 F.3d at 127 (“[W]e note that the federal government, fifty
states, and the District of Columbia provide by statute, rule, or court decision that
time spent by a defendant in pre-conviction detention is to be treated as a day-for-day
credit or reduction of the term of imprisonment imposed upon conviction.”); see also
Colo. Rev. Stat. § 18-1.3-405 (providing that pretrial confinement must be credited
towards the sentence imposed after conviction); Colo. Rev. Stat. § 18-1.3-502
(providing that a person sentenced for a misdemeanor is entitled to the same time
credits as a person sentenced for a felony).


                                         - 10 -
confinement period. Admin. R. at 7. Because we see no reversible error in the BIA’s

decision, we deny the petition for review. We grant petitioner’s motion for leave to

proceed on appeal without prepayment of costs or fees, however waiver of prepayment

does not relieve petitioner from liability for all filing and docketing fees, which he is

obligated to pay.




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