PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MANUEL MONDRAGÓN, 

Petitioner,

v.  No. 11-2133

ERIC H. HOLDER, JR., Attorney

General,

Respondent. 

MANUEL MONDRAGÓN, 

Petitioner,

v.  No. 12-1070

ERIC H. HOLDER, JR., Attorney

General,

Respondent. 

On Petitions for Review of Orders

of the Board of Immigration Appeals.

Argued: October 23, 2012

Decided: January 31, 2013

Before NIEMEYER, KING, and AGEE, Circuit Judges.

Petitions denied by published opinion. Judge Niemeyer wrote

the opinion, in which Judge King and Judge Agee joined.
COUNSEL

ARGUED: Nancy Aileen Noonan, ARENT FOX, LLP,

Washington, D.C., for Petitioner. Woei-Tyng Daniel Shieh,

UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Ralph A. Taylor, Jr.,

Peter V. B. Unger, Jennifer S. Allen, Eli M. Sheets, ARENT

FOX, LLP, Washington, D.C., for Petitioner. Stuart F. Delery,

Acting Assistant Attorney General, Civil Division, Carl H.

McIntyre, Jr., Assistant Director, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE,

Washington, D.C., for Respondent.

OPINION

NIEMEYER, Circuit Judge:

Manuel Mondragón, a citizen of El Salvador, who entered

the United States illegally and is therefore removable, sought

discretionary relief from his removal under the Nicaraguan

Adjustment and Central American Relief Act ("NACARA").

Mondragón would be eligible for this discretionary relief only

if he could show that he had not been previously convicted of

an aggravated felony, defined in the Immigration and Nationality Act ("INA") as a crime of violence, for which the term

of imprisonment is at least one year. The Board of Immigration Appeals ("BIA" or "Board") found Mondragón ineligible

for relief because he was unable to demonstrate that his 1996

Virginia conviction for assault and battery was not a crime of

violence.

Although Mondragón could produce no conviction-related

documents describing the conduct of his conviction, he

offered his own affidavit in which he described in detail his

conduct in an effort to show that it was nonviolent. Applying

a modified categorical approach, the BIA rejected Mondra2 MONDRAGÓN v. HOLDER
gón’s affidavit and found that the evidence of record was

inconclusive as to whether Mondragón’s conviction was for

a crime of violence. Because Mondragón had the burden of

demonstrating his eligibility for discretionary relief, the BIA

found that Mondragón failed to carry his burden and ordered

him removed.

At their core, Mondragón’s arguments on appeal center on

the BIA’s refusal to permit him to present evidence that his

conduct of conviction was nonviolent. He claims that the use

of the modified categorical approach is too restrictive in the

circumstances where he had the burden of proof and that the

BIA should have allowed him to present his affidavit to demonstrate why he was eligible for relief from removal. He also

argues that he was improperly disqualified for discretionary

relief based on a definition of crime of violence that was

adopted after his conviction and made retroactively applicable

to him, in violation of his due process rights.

As appealing as Mondragón makes his case, we must ratify

the BIA’s application of the modified categorical approach.

The failure to do so would bring about dramatic—and constitutionally problematic—consequences. Earlier convictions

such as Mondragón’s would be retried in immigration proceedings, putting to question the finality of earlier adjudications, and unfairness would inevitably result, as one party or

the other would be unable to retrieve lost evidence, witnesses,

or memories. Moreover, eligibility for relief from removal

would no longer depend on the categorical fact that an alien

had been convicted of a crime of violence, as provided for in

NACARA, but rather on the retrial of the underlying facts for

determination of whether the conduct constituted a crime of

violence. As we explain more fully herein, both the law and

prudence require that we reject Mondragón’s arguments. We

also reject his argument that the statute was improperly made

retroactive. Accordingly, we deny his petitions for review.

MONDRAGÓN v. HOLDER 3
I

Mondragón entered the United States illegally in 1990 and,

shortly after arriving, applied for and was granted temporary

protected status based on an ongoing civil war in El Salvador.

He later married and now has three children who were born

in the United States.

In August 1995, Mondragón applied for asylum pursuant to

a settlement agreement reached in American Baptist Churches

v. Thornburgh, 760 F. Supp. 796 (N.D. Cal. 1991). While his

asylum petition was pending, Mondragón pleaded guilty in

early 1996 to a "misdemeanor" assault and battery charge in

Virginia General District Court and was sentenced to one

year’s imprisonment, suspended. The only record relating to

this conviction is a two-page document that served as a warrant for his arrest and recorded the disposition of the charge.

That document indicates that on January 10, 1996, Mondragón pleaded guilty to assaulting and battering Jamship

Kashani, in violation of Virginia Code § 18.2-57, and that he

was sentenced to one year’s imprisonment, suspended.

Because of this conviction, the Asylum Office in Arlington,

Virginia, denied Mondragón’s application for asylum on April

2, 2007, as the settlement agreement in American Baptist

Churches, on which he relied to make his application, provided that class members who had been convicted of an "aggravated felony" as defined in the INA (i.e., a crime of

violence for which the term of imprisonment is at least one

year) were not eligible for the benefits of the agreement. As

Mondragón had entered the country illegally and thus

remained removable, he was ordered to appear for removal

proceedings. See 8 U.S.C. § 1182(a)(6)(A)(i) (providing that

"[a]n alien present in the United States without being admitted

or paroled . . . is inadmissible").

Mondragón conceded removability, but he applied for relief

from removal, this time under § 203 of NACARA, Pub. L.

4 MONDRAGÓN v. HOLDER
No. 105-100, 111 Stat. 2160, 2198 (1997), which provides

that for NACARA-eligible aliens, "the Attorney General may

. . . cancel removal of, and adjust to the status of an alien lawfully admitted for permanent residence, an alien who is inadmissible or deportable from the United States." (Emphasis

added).* NACARA further provides, however, that an alien

who has committed an "aggravated felony," as defined in the

INA, is ineligible for its discretionary relief. Id.

On January 10, 1996, when Mondragón pleaded guilty to

assault and battery, his conviction did not constitute an "aggravated felony." At that time, the term "aggravated felony"

was defined in the INA to include a crime of violence for

which the term of imprisonment was at least five years,

whereas the maximum sentence for Virginia’s misdemeanor

assault and battery was one year. See 8 U.S.C.

§ 1101(a)(43)(F) (1995); Va. Code Ann. § 18.2-11. But the

Illegal Immigration Reform and Immigrant Responsibility Act

of 1996 ("IIRIRA"), which was enacted in 1996 after Mondragón had pleaded guilty, amended the definition of "aggravated felony" to be a crime of violence for which the term of

imprisonment was at least one year. See IIRIRA §§ 321(a)(3),

322(a), Pub. L. No. 104-208, 110 Stat. 3009, 3009-627, 3009-

629 (1996) (codified at 8 U.S.C. § 1101(a)(43)(F) (2006)).

Moreover, IIRIRA made this new definition of "aggravated

felony" retroactive, providing that the amendment was to

"apply to actions taken on or after the date of enactment of

[IIRIRA], regardless of when the conviction occurred."

IIRIRA § 321(c) (emphasis added); see also id. § 322(c).

At Mondragón’s removal hearing on December 22, 2008,

the government challenged Mondragón’s eligibility for

NACARA relief from removal, contending that Mondragón’s

1996 conviction was an "aggravated felony" which disqualified him from that relief. Mondragón maintained, however,

*NACARA, which is not codified in the U.S. Code, was signed into law

on November 19, 1997. 

MONDRAGÓN v. HOLDER 5
that at the time he pleaded guilty, his conviction did not meet

the definition of aggravated felony because the crime was not

punishable by imprisonment for at least five years.

An immigration judge ("IJ") denied Mondragón’s application for relief from removal in a decision rendered on August

16, 2010, noting that IIRIRA § 321’s aggravated-felony definition applied retroactively, so that Mondragón’s 1996 conviction qualified as an aggravated felony "notwithstanding the

fact that at the time he made the plea, he could not have been

aware of the immigration consequences." The IJ also applied

a modified categorical approach to assess whether Mondragón’s conviction was for a crime of violence and concluded

that the available record of Mondragón’s 1996 conviction,

while complete, was inconclusive on the issue. Because Mondragón bore the burden of proof in seeking relief from

removal, the IJ ruled that the inconclusive record was insufficient to show that Mondragón was eligible for cancellation of

removal under NACARA.

Mondragón appealed the IJ’s decision to the Board of

Immigration Appeals and requested that it remand the case to

permit him to present evidence demonstrating that he had not

committed a "crime of violence." He also argued that the

retroactive application of the statutory definition of "aggravated felony" was unconstitutional. The Board affirmed the

IJ, finding that Mondragón did not satisfy his burden of demonstrating eligibility for NACARA’s discretionary relief. It

also agreed with the IJ that "the most recent amendments to

the definition of ‘aggravated felony’ apply regardless of the

date of the conviction." Finally, the Board declined to remand

the case, finding that Mondragón’s request to present additional evidence about his 1996 conviction was "not supported

by any pertinent, persuasive legal authority or by any affidavit

from [Mondragón] or other evidence necessary to demonstrate that a remand is warranted." From this decision of the

Board, Mondragón filed his first petition for review in this

court.

6 MONDRAGÓN v. HOLDER
At the same time that he filed his first petition for review,

Mondragón also filed a motion with the Board to reopen and

reconsider its decision, now supported by his affidavit, in

which he stated that during the encounter leading to his 1996

conviction, he was not the aggressor and that any assault was

not violent. The affidavit described in detail the incident giving rise to the charge and stated that he was merely taking

"this man by one arm to move him away from my car, just

like you would take your child by the arm across the street."

He asserted that he "did not hurt him. I didn’t hit him, and

there were no injuries. I did not do anything violent at all."

The Board denied Mondragón’s motion and his request that

"his own personal account of what occurred should be considered along with the record of conviction." From the Board’s

ruling, Mondragón filed his second petition for review.

Both petitions for review are now before us.

II

Mondragón contends first that the retroactive application of

IIRIRA § 321(a)(3) (defining "aggravated felony" to be a

crime of violence for which the term of imprisonment is at

least one year) "violates bedrock constitutional principles of

fairness and due process." He emphasizes that at the time he

pleaded guilty to Virginia assault and battery, "his conviction

[was not an aggravated felony as defined by the INA and]

would not have precluded him from cancellation of removal."

Only by applying IIRIRA § 321 retroactively is he denied the

possibility of relief. Although he does not rest his retroactivity

argument on any specific violation of the Due Process Clause,

he argues, relying on INS v. St. Cyr, 533 U.S. 289 (2001), that

the application of amendments made to the INA after he

pleaded guilty violates "[e]lementary considerations of fairness," as individuals should "have an opportunity to know

what the law is and to conform their conduct accordingly."

(Quoting St. Cyr, 533 U.S. at 316 (internal quotation marks

MONDRAGÓN v. HOLDER 7
and citation omitted)). He thus attempts to build his due process claim on St. Cyr, reasoning:

Like the St. Cyr respondent, at the time Mr. Mondragón entered his guilty plea, it would not have rendered him ineligible for relief from deportation.

Thus, as the Court reasoned in St. Cyr, applying his

1996 guilty plea to retroactively strip Mr. Mondragón of eligibility for cancellation of removal would

contravene established principles of fair notice,

repose, informed decision-making, and reasonable

reliance on the law—principles that serve as a bedrock of the United States judicial system and foundational precepts of the rule of law.

Mondragón’s argument makes a strong claim to fairness

and, at the same time, implicitly provides sharp criticism of

Congress in making its choice to apply its 1996 amendment

to the definition of "aggravated felony" retroactively. But his

argument falls short of demonstrating a violation of the Due

Process Clause.

It is uncontroverted that Mondragón entered the United

States illegally and is therefore removable. See 8 U.S.C.

§ 1182(a)(6)(A)(i). But Mondragón sought to avoid removal

by invoking the relief of cancellation of removal under

NACARA § 203. Relief under NACARA is given to a qualifying alien in the discretion of the Attorney General, and no

matter how strong and appealing an alien is able to make his

case, relief is "not a matter of right under any circumstances,

but rather is in all cases a matter of grace." Jay v. Boyd, 351

U.S. 345, 354 (1956) (emphasis added). Mounting a successful due process challenge to the Executive Branch’s exercise

of discretion is a difficult undertaking. As Justice Scalia

observed in his dissent in St. Cyr:

The furthest our cases have gone in imposing due

process requirements upon analogous exercises of

8 MONDRAGÓN v. HOLDER
Executive discretion is the following. (1) We have

required "minimal procedural safeguards" for deathpenalty clemency proceedings, to prevent them from

becoming so capricious as to involve a "state official

flipp[ing] a coin to determine whether to grant clemency" . . . [and] (2) [w]e have recognized the existence of a due process liberty interest when a State’s

statutory parole procedures prescribe that a prisoner

"shall" be paroled if certain conditions are satisfied.

533 U.S. at 345-46 (Scalia, J., dissenting) (first alteration in

original); see also Mohammed v. Ashcroft, 261 F.3d 1244,

1251 (11th Cir. 2001) (holding that the alien has "no

constitutionally-protected right to discretionary relief from

removal, and therefore cannot—at least in these

circumstances—claim a substantive Due Process violation

based upon Congress’s decision in IIRIRA to make a broader

class of aliens ineligible for this relief"); Huicochea-Gomez v.

INS, 237 F.3d 696, 700 (6th Cir. 2001) (noting that, in the

context of a claim of ineffective assistance of counsel, there

is no constitutionally protected liberty interest infringed by

denying cancellation of removal). Indeed, the Constitution

would not prohibit Congress from eliminating all discretionary authority to give relief to illegal aliens who commit aggravated felonies. This is indicative of the well-established

proposition that "[a] constitutional entitlement [i.e., one protected by the Due Process Clause] cannot ‘be created—as if

by estoppel—merely because a wholly and expressly discretionary state privilege has been granted generously in the

past.’" Conn. Bd. of Pardons v. Dumschat, 452 U.S. 458, 465

(1981) (quoting Leis v. Flynt, 439 U.S. 438, 444 n.5 (1979)).

Even when the discretion of the Executive is not at issue,

Congress may, consistent with the Due Process Clause, alter

rights and responsibilities retroactively so long as it has a

rational basis for doing so. See, e.g., Gen. Motors Corp. v.

Romein, 503 U.S. 181, 191 (1992) (upholding the retroactive

effect of economic legislation that had a "legitimate legislaMONDRAGÓN v. HOLDER 9
tive purpose furthered by rational means") (citing Pension

Benefit Guaranty Corp. v. R.A. Gray & Co., 467 U.S. 717,

730 (1984)); see also United States v. Yacoubian, 24 F.3d 1,

7-8 (9th Cir. 1994) (applying rational basis test to decide

whether retroactive application of a provision of the INA violates an alien’s due process rights); Hamama v. INS, 78 F.3d

233, 235-36 (6th Cir. 1996) (same).

There is little question that in enacting a new definition of

"aggravated felony" and making it retroactive, Congress had

a rational basis for doing so. By imposing a stiffer requirement for discretionary relief and making it retroactive, Congress was implementing its policy of increasing the protection

of American society by reducing benefits to illegal aliens who

commit aggravated felonies. See Kuhali v. Reno, 266 F.3d 93,

111 (2d Cir. 2001) (rejecting a due process challenge to

IIRIRA § 321, finding that Congress had a "legitimate interest

in protecting society from the commission of aggravated felonies" and deporting those aliens "is a rational means of furthering that interest"); Cordes v. Gonzales, 421 F.3d 889, 895-

96 (9th Cir. 2005) (same), rev’d for lack of jurisdiction sub

nom. Cordes v. Mukasey, 517 F.3d 1094 (9th Cir. 2008); see

also Lovan v. Holder, 574 F.3d 990, 997 (8th Cir. 2009);

Ahdab v. Gonzales, 189 F. App’x 73, 78-79 (3d Cir. 2006);

Lopez-Elias v. Reno, 209 F.3d 788, 793 n.12 (5th Cir. 2000).

For these reasons, it is not surprising that we have found no

decision that has held that IIRIRA § 321(c)’s retroactive

application of the new definition of "aggravated felony" is

unconstitutional.

Despite—or perhaps because of—the minimal protections

afforded by the Due Process Clause in this area, Mondragón

urges us, based on St. Cyr, to evaluate independently the

injustice imposed by this retroactive statute. But St. Cyr does

not advance his case. Although the facts in St. Cyr were much

like those here, its holding was confined to a statutory interpretation of an ambiguous provision of the INA. By its own

10 MONDRAGÓN v. HOLDER
terms, St. Cyr limits its applicability to those situations where

Congress leaves the issue of retroactivity unresolved.

Enrico St. Cyr, a lawful permanent resident, pleaded guilty

in state court to a charge of selling a controlled substance, and

his conviction made him deportable. See St. Cyr, 533 U.S. at

293. The government maintained that St. Cyr was ineligible

for a waiver of deportation due to the retroactive application

of a provision adopted after his guilty plea. St. Cyr contended

that at the time he pleaded guilty, he would have been eligible

for a waiver of deportation at the discretion of the Attorney

General and that IIRIRA’s subsequent amendment of the INA

to withdraw that discretion was not retroactively applicable.

See id.

The Supreme Court agreed with St. Cyr, holding that the

government impermissibly construed the ambiguous statutory

provision to be retroactive. The Court’s analysis was

expressly predicated on the ambiguity of the provision at

issue. See id. at 314 ("The absence of a clearly expressed

statement of congressional intent also pervades our review of

the merits of St. Cyr’s claim"). Thus, the Court’s decision was

confined to an interpretation of the statute at issue. The Court

recognized that if Congress had been clear about its intent to

make the statute retroactive, such clearly expressed intent

would have prevailed and overcome the general presumption

against the retroactive application of statutes. See id. at 316

("Despite the dangers inherent in retroactive legislation, it is

beyond dispute that, within constitutional limits, Congress has

the power to enact laws with retrospective effect").

Here, we do not face the situation presented in St. Cyr.

Congress stated clearly that IIRIRA § 321 applies retroactively, see IIRIRA § 321(c) (providing that the new definition

of "aggravated felony" applies "to actions taken on or after the

date of enactment of this Act, regardless of when the conviction occurred" (emphasis added)), and Mondragón does not

contend otherwise. Thus, St. Cyr, because it addresses only

MONDRAGÓN v. HOLDER 11
how to construe an ambiguous provision, provides no service

in the face of this unambiguous provision.

Finally, Mondragón contends that the statute’s retroactivity

violates the Sixth Amendment. He argues that "the retroactive

application of IIRIRA § 321(a)(3) . . . effectively deprived

him of effective assistance of counsel during the pleabargaining process in his 1996 case." (Citing Lafler v. Cooper, 132 S. Ct. 1376, 1384 (2012)). It is not clear to us, however, that Mondragón’s trial counsel could have been

ineffective in the circumstances of this case. To be sure, in

Padilla v. Kentucky, 130 S. Ct. 1473, 1486 (2010), the

Supreme Court held that the Sixth Amendment requires a

criminal defendant’s counsel to "inform her client whether his

plea carries a risk of deportation." But this duty has not been

made retroactive. See United States v. Mathur, 685 F.3d 396

(4th Cir. 2012). Moreover, at the time Mondragón pleaded

guilty, his conviction did not carry any risk of deportation

since it was under the five-year threshold of the pre-IIRIRA

definition of "aggravated felony." 

But whatever argument that Mondragón could make to

challenge the performance of his counsel during his prior conviction, such argument is not one that we can consider years

after his prior conviction became final. See Custis v. United

States, 511 U.S. 485, 497 (1994) (rejecting a defendant’s

challenge during sentencing to the use of a prior conviction

based on a claimed ineffective assistance of counsel during

the course of that conviction).

In Custis, the Court advanced several grounds for refusing

to reopen prior convictions to determine whether the defendant there received ineffective assistance of counsel. It noted

that the Armed Career Criminal Act of 1984 ("ACCA"),

which provides for an enhanced sentence based on prior qualifying convictions, "focuses on the fact of the conviction and

nothing suggests that the prior final conviction may be subject

to collateral attack for potential constitutional errors before it

12 MONDRAGÓN v. HOLDER
may be counted." 511 U.S. at 491 (emphasis in original). In

addition, the Court highlighted jurisprudential and practical

reasons for precluding a defendant subject to ACCA’s

enhancement from using the federal sentencing forum to gain

review of state convictions. See id. at 497. Explaining the

Court’s recitation of the practical difficulties of reopening

prior proceedings to evaluate the performance of counsel, we

have said:

The [Custis] Court concluded that "Congress did not

prescribe and the Constitution does not require such

delay and protraction of federal sentencing process."

Such review would burden the district courts with

the task of "rummag[ing] through frequently nonexistent or difficult to obtain state court transcripts or

records that may date from another era, and may

come from any one of the 50 states." The Court also

acknowledged the "interest in promoting the finality

of judgments," which applies "with at least equal

force" in the sentencing context as it does in a

habeas corpus action.

United States v. Bacon, 94 F.3d 158, 162-63 (4th Cir. 1996)

(internal citations omitted).

The same reasoning that led Custis to limit collateral

attacks on prior convictions used for sentencing purposes has

led the Supreme Court, as well as lower courts, to apply a

similar limitation in habeas proceedings challenging a sentencing enhancement. See Daniels v. United States, 532 U.S.

374, 382-83 (2001) ("The presumption of validity that

attached to the prior conviction at the time of sentencing is

conclusive, and the defendant may not collaterally attack his

prior conviction through a motion under § 2255"); Lackawanna Cnty. Dist. Attorney v. Coss, 532 U.S. 394, 403-04

(2001) ("If that [state] conviction is later used to enhance a

criminal sentence, the defendant generally may not challenge

the enhanced sentence through a petition under § 2254 on the

MONDRAGÓN v. HOLDER 13
ground that the prior conviction was unconstitutionally

obtained"). Indeed, the same reasoning has also led courts to

apply Custis to the immigration context. See, e.g., Drakes v.

INS, 330 F.3d 600, 604 (3d Cir. 2003) ("There is no meaningful difference between a collateral attack on an expired state

conviction underlying removal proceedings and a collateral

attack on an expired state criminal conviction underlying an

enhanced sentence"); Taylor v. United States, 396 F.3d 1322,

1330 (11th Cir. 2005) (same).

The same theoretical and practical concerns that animate

this entire line of cases are present here. First, NACARA

focuses on the fact of conviction in precluding eligibility for

relief from removal, just as the ACCA was observed to do in

Custis. See 511 U.S. at 490-91. Second, there is a strong need

for the finality of convictions as they relate to immigration

consequences. See Daniels, 532 U.S. at 381. Finally, the same

practical concerns that favored precluding the reopening of a

prior conviction under the Custis line of cases applies here.

See id. at 379.

In short, whether Mondragón lodges his argument on his

claim that counsel was in fact ineffective at the plea hearing

or should be deemed ineffective by operation of a retroactive

statute, we reject his Sixth Amendment challenge.

At bottom, we conclude that IIRIRA § 321(c)’s retroactive

application of the revised definition of "aggravated felony"

survives Mondragón’s constitutional challenges.

III

Mondragón also contends that the Board erred in denying

him the right to present evidence of his conduct of conviction

to demonstrate that his prior conviction was not for a crime

of violence. More particularly, he challenges the BIA’s use of

a modified categorical approach, which limited its consideration to the record of conviction.

14 MONDRAGÓN v. HOLDER
Mondragón acknowledges that he carries the burden of

demonstrating his eligibility for relief from removal. He also

acknowledges that when the modified categorical approach is

used, he is unable to demonstrate that his conviction for

assault and battery was nonviolent. He argues that because the

burden of proof rests on him, the evidentiary limitations

inherent in the categorical and modified categorical

approaches should not apply. He reasons that the policies

underlying these approaches may be suited for the circumstances when the government bears the burden of proof, but

those policies do not support the use of these approaches in

a proceeding such as this, where the alien bears the burden of

proof:

[A]pplying the categorical approach to cases such as

Mr. Mondragón’s, necessarily means that any deficiencies in the record are resolved in favor of the

Government, making it legally impossible for applicants such as Mr. Mondragón with inconclusive

records of conviction to meet their burden of proof

through no fault of their own.

Moreover, he claims that the application of a modified categorical approach deprives him of the statutorily granted right

to present evidence on his own behalf. See 8 U.S.C.

§ 1229a(b)(4)(B).

We begin with an understanding of the statutory context.

The government bears the burden of showing removability by

clear and convincing evidence. 8 U.S.C. § 1229a(c)(3)(A); see

also Salem v. Holder, 647 F.3d 111, 114 (4th Cir. 2011). And

the burden to demonstrate eligibility for discretionary relief

from removal rests on the alien seeking the relief. 8 U.S.C.

§ 1229a(c)(4)(A).

In this case, Mondragón seeks discretionary relief from

removal under NACARA and therefore had to carry the burden of demonstrating his eligibility. Because he had a prior

MONDRAGÓN v. HOLDER 15
conviction for assault and battery that put in question his eligibility for relief, he had to show that the conviction was not

for an "aggravated felony" as defined in the INA. See

NACARA, Pub. L. No. 105-100, § 203(b), 111 Stat. 2160,

2198; see also 8 C.F.R. § 1240.66(a) ("To establish eligibility

for special rule cancellation of removal, the applicant . . .

must not have been convicted of an aggravated felony");

Salem, 647 F.3d at 114. An "aggravated felony" in the INA

includes a crime of violence that is punishable by a term of

imprisonment of at least one year. See 8 U.S.C.

§ 1101(a)(43)(F); 18 U.S.C. § 16. Inasmuch as a "crime of

violence" involves the use of "violent force, that is, force

capable of causing physical pain or injury to another person,"

United States v. White, 606 F.3d 144, 153 (4th Cir. 2010)

(quoting Johnson v. United States, 130 S. Ct. 1265, 1271

(2010)), Mondragón therefore had the burden of showing that

his prior conviction was not for a crime involving the use of

"force capable of causing physical pain or injury to another

person."

In January 1996, Mondragón pleaded guilty to "misdemeanor" assault and battery in the Virginia General District Court,

which was punishable by up to one year’s imprisonment. See

Va. Code Ann. §§ 18.2-57, 18.2-11. He was sentenced to one

year’s imprisonment, and the sentence was suspended. The

record of his conviction only reveals that Mondragón pleaded

guilty and that he assaulted and battered Jamship Kashani, in

violation of § 18.2-57, without giving further detail. Because

the crime of conviction could cover conduct that was violent

or nonviolent, it cannot be ascertained from this record of

conviction whether the conviction was for a crime of violence.

We have previously concluded that the presentation of an

inconclusive record of conviction, such as in this case, is

insufficient to meet an alien’s burden of demonstrating eligibility for cancellation of removal. See Salem, 647 F.3d at 116.

Thus, the government argues that because Mondragón has

16 MONDRAGÓN v. HOLDER
presented only an inconclusive record of conviction, his petition for discretionary relief should likewise fail.

But Mondragón points to other language in Salem—that the

Salem petitioner "made no attempt to offer additional evidence to the IJ beyond the record of conviction"—to justify

the admission of additional evidence in this case. 647 F.3d at

119. And in this case, Mondragón proffered his affidavit

describing the events that led to his arrest and conviction. In

the affidavit, he stated in some detail his encounter with Jamship Kashani:

I wasn’t going to get aggravated, because I had

always been taught to respect people older than me.

But I needed to leave, and this was getting ridiculous. I took this man by one arm to move him away

from my car, just like you would take your child by

the arm across the street, and he was resisting, but I

pulled him away from my car door so I could get in.

I walked him about ten feet away from my car. Then

I got in my car and I left. I also locked the doors

right away, to protect myself from this crazy, scary

man. . . . That was it. I did not hurt him. I didn’t hit

him, there were no injuries.

Even though Mondragón’s call for a more expansive evidentiary inquiry rings with the tone of fairness, it nonetheless

fails to address the many reasons that support the BIA’s use

of the modified categorical approach. Were we to agree with

Mondragón, we would have to require the IJ to consider not

only Mondragón’s evidence about his conduct leading to his

assault and battery conviction, but also evidence that the government might be able to retrieve about the incident. This

could well include testimony from the victim and witnesses to

the assault. The judge would then be put in the position of

retrying the assault and battery case, which had been disposed

of more than 10 years earlier. Aside from the overburdening

complications of retrying a prior case, expanding the current

MONDRAGÓN v. HOLDER 17
case to such a degree would inevitably prove to be unfair to

one party or the other because of the loss of evidence, witness

testimony, and memory.

Moreover, while Mondragón’s conviction was based on his

guilty plea, the accommodation that Mondragón seeks in this

case would also apply if he had been convicted by a jury. In

either case, the IJ would then be put in the position of redetermining the facts of conviction that had previously been determined by either a guilty plea or a jury, undermining the

finality of prior convictions.

In the face of these perils, it is significant that Congress, in

enacting provisions of the INA, did not rest disqualification

from discretionary relief on the facts of an alien’s conduct

underlying a prior qualifying crime. Rather, it disqualified an

alien who was convicted of a qualifying crime. The fact of

conviction is a more limited fact than are the facts of conduct

underlying the conviction, and in resting disqualification on

the conviction of a qualifying crime and not on the conduct

of conviction, Congress adopted a categorical approach that

turns on the fact of conviction and the elements of the crime.

These considerations led the Supreme Court to adopt the

categorical and modified categorical approaches in the context of criminal sentencing when determining whether to

enhance a sentence based on a prior conviction. See Taylor v.

United States, 495 U.S. 575 (1990); Shepard v. United States,

544 U.S. 13 (2005).

First, the Taylor Court found that the "language of [the

Armed Career Criminal Act] generally support[ed] the inference that Congress intended the sentencing court to look only

to the fact that the defendant had been convicted of crimes

falling within certain categories." 495 U.S. at 600. That is,

Congress sought to give effect to any conviction that fell

within certain categories—i.e., violent crimes—for purposes

of enhancing sentences. In the immigration context, Congress

18 MONDRAGÓN v. HOLDER
did something similar. It gave effect—ineligibility for discretionary relief—to convictions that fell within the same category, "violent crimes." See NACARA § 203; 8 C.F.R.

§ 1240.66(a); 8 U.S.C. § 1101(a)(43). The language in these

statutes gives effect not to the underlying conduct, but to the

fact of conviction and the elements of the crime.

Second, the Court in Taylor found that "the legislative history of the enhancement statute showed that Congress generally took a categorical approach to predicate offenses." 495

U.S. at 601. The plain language of the "aggravated felony"

class of immigrants, likewise, manifests Congress’ categorical

approach. In prohibiting aliens convicted of aggravated felonies (i.e., violent crimes for which punishment was at least

one year) from receiving discretionary relief, Congress necessarily targeted that category. Moreover, with respect to the

immigration laws, Congress has been particularly active by

altering the size of that category. See IIRIRA § 321(a)(3)

(reducing the sentence term from five years to one year in the

definition of "aggravated felony").

Finally, Taylor limited its review to the record of conviction given "the practical difficulties and potential unfairness

of a factual approach" that would go behind the conviction.

495 U.S. at 601. The Court noted that a categorical approach

would prohibit "an elaborate factfinding process regarding the

defendant’s prior offenses." See id. at 601. These concerns are

particularly acute in the immigration context, given the possibly lengthy periods of time since a conviction and the lack of

other evidence available to the immigration judge. Thus, limiting review to the record of conviction allows "sentencing

courts [to] avoid conducting ‘mini-trials’" that would create

unreliable and time-consuming wastes of judicial resources.

United States v. Spence, 661 F.3d 194, 198 (4th Cir. 2011).

It is thus apparent that the factors embraced by the Supreme

Court in Taylor are not relevant solely to criminal sentencing

statutes. Rather, the concerns expressed there are also relevant

MONDRAGÓN v. HOLDER 19
to the analysis of any statute that makes the fact of a conviction of a specified category of crime essential to application

of the statute. Indeed, for that very reason, we have applied

the modified categorical approach of Taylor and Shepard to

the INA. See Soliman v. Gonzales, 419 F.3d 276, 284 (4th

Cir. 2005); see also Gertsenshteyn v. U.S. Dep’t of Justice,

544 F.3d 137, 143 (2d Cir. 2008) ("We have adopted a ‘categorical approach’ to deciding whether a crime of conviction

fits within the definition of ‘aggravated felony’ in

§ 1101(a)(43), thereby rendering an alien removable under

§ 1227(a)(2)(A)(iii)"). And we conclude that the BIA was

correct in applying it here.

Mondragón also contends that a modified categorical

approach abridges his statutory right to present evidence on

his own behalf. See 8 U.S.C. § 1229a(b)(4)(B). But Mondragón reads this right too broadly. His right goes only to the

opportunity to present evidence relevant to an issue that is

properly before the immigration judge. Here, that issue is

whether Mondragón’s conviction renders him ineligible for

relief, not the conduct of conviction.

Mondragón was convicted of Virginia assault and battery,

the elements of which are broad and allow for the possibility

that Mondragón was convicted of either a crime of violence

or a crime of nonviolence. See United States v. White, 606

F.3d 144, 148-49 (4th Cir. 2010). And "when the fact of conviction and the statutory definition of the offenses are unduly

vague or ambiguous," as is the case with Virginia’s assault

and battery statute, a court can employ the modified categorical approach. Id. at 155 (quoting United States v. Harcum,

587 F.3d 219, 223 (4th Cir. 2009)).

Consequently, Mondragón was statutorily authorized to

present evidence resolving the ambiguity of his conviction in

accordance with the modified categorical approach, using

what are known as Shepard documents. See Shepard v.

United States, 544 U.S. 13, 20-21 (2005). But because Shep20 MONDRAGÓN v. HOLDER
ard documents did not exist or were not available, Mondragón

sought to introduce extrinsic evidence about his conduct. But

this evidence was not relevant to demonstrating whether his

prior conviction categorically denied his eligibility for relief

and therefore did not fall within the class of evidence protected by 8 U.S.C. § 1229a(b)(4).

To press his argument further, Mondragón relies on the

Supreme Court’s decision in Nijhawan v. Holder, 557 U.S.

29, 41-43 (2009), where the Court considered facts extraneous

to those generally considered under the categorical and modified categorical approaches. But Nijhawan is distinguishable

because its holding relied on statutory factors that focused not

only on the fact of conviction for the crime of fraud but also

on the fact that the fraud crime involved losses greater than

$10,000. But when looking at a statute which turns simply on

whether the defendant or applicant had a prior conviction for

a crime of violence, the focus remains on the fact of conviction and the elements of the crime.

At bottom, the government has demonstrated Mondragón’s

removability, and Mondragón has failed to demonstrate that

he is eligible for discretionary relief from removal, as

afforded by NACARA. The burden rests on him, and unfortunately, he was unable to meet it.

For the foregoing reasons, Mondragón’s petitions for

review are

DENIED.

MONDRAGÓN v. HOLDER 21