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Salazar v. Barr

United States Court of Appeals, Eighth Circuit

August 1, 2019

Wilson Cardoza Salazar Petitioner
v.
William P. Barr, Attorney General of the United States Respondent

          Submitted: May 14, 2019

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

          Before BENTON, WOLLMAN, and GRASZ, Circuit Judges.

          GRASZ, CIRCUIT JUDGE.

         The United States Department of Homeland Security ("DHS") determined Petitioner Wilson Cardoza Salazar ("Cardoza") was removable under 8 U.S.C. § 1227(a)(2)(A)(iii) because it concluded he was convicted in Iowa of committing an aggravated felony. Cardoza petitions this court and argues his Iowa conviction did not constitute an aggravated felony and DHS violated his due process rights. We deny Cardoza's petitions.

         I. Background

         Cardoza is a native and citizen of El Salvador who illegally entered the United States in approximately 2004. Cardoza has made no claim to United States citizenship or lawful permanent status.

         In 2008, Cardoza pled guilty to committing forgery in violation of Iowa Code § 715A.2(2)(b). Cardoza admitted to having a false social security card in his possession. An Iowa court sentenced Cardoza to two years of imprisonment, but the sentence was suspended and Cardoza was placed on probation for two years.

         In May of 2018, officials with United States Immigration and Customs Enforcement ("ICE") encountered Cardoza during a vehicle stop. When Cardoza admitted being a citizen and national of El Salvador who was in the United States illegally, the ICE officials arrested Cardoza.

         DHS issued Cardoza a Form I-851, Notice of Intent to Issue a Final Administrative Order ("Notice of Intent"), which alleged Cardoza was deportable under 8 U.S.C. § 1227(a)(2)(A)(iii) because Cardoza's Iowa forgery conviction was an aggravated felony as defined by 8 U.S.C. § 1101(a)(43)(R). The Notice of Intent provided Cardoza a deadline to respond to the charges.

         Before Cardoza's deadline expired, DHS received a letter from Cardoza's attorney requesting to inspect DHS's evidence of removability, including documents establishing the existence of the conviction. The letter asserted that under 8 U.S.C. § 1228(b)(4)(C) and 8 C.F.R. § 238.1(c)(2)(ii), Cardoza had an additional ten days to respond after DHS provided the evidence.

          Several days later, DHS responded to Cardoza's attorney's letter and provided the requested documents of conviction. But on that same day, DHS issued a Final Administrative Removal Order ("FARO") pursuant to 8 U.S.C. § 1228(b). DHS concluded Cardoza's Iowa forgery conviction was an aggravated felony, and therefore, he was removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii).

         Cardoza filed a petition for review with this court in May 2018 under docket number 18-2146. Meanwhile, Cardoza's proceedings before DHS continued pursuant to 8 C.F.R. § 208.31[1] because Cardoza expressed a fear he would suffer persecution or torture if he returned to El Salvador. Cardoza met with an asylum officer for a reasonable fear determination. The DHS asylum officer determined Cardoza was not likely to experience persecution or torture if returned to El Salvador. Upon Cardoza's request, the determination was referred to an Immigration Judge ("IJ") for review. After reviewing the record, the IJ issued a decision concurring with the DHS asylum officer's determination. Cardoza then filed a petition for review of the IJ's final order[2] under docket number 18-2446. We consolidated the two cases.

         II. ...


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