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Jaquez v. Sessions

United States Court of Appeals, Fourth Circuit

June 8, 2017

ELEUTERIO PAYAN JAQUEZ, a/k/a Eleuterio Payan, Petitioner,
v.
JEFFERSON B. SESSIONS III, Attorney General, Respondent.

          Argued: March 21, 2017

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

         ARGUED:

          Alfred Lincoln Robertson, Jr., ROBERTSON LAW OFFICE, PLLC, Alexandria, Virginia, for Petitioner.

          Gregory Michael Kelch, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

         ON BRIEF:

          Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Linda S. Wernery, Assistant Director, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

          Before GREGORY, Chief Judge, and WYNN and HARRIS, Circuit Judges.

          GREGORY, Chief Judge:

         Eleuterio Payan Jaquez, a citizen and native of Mexico, petitions for review of a Board of Immigration Appeals ("BIA") order affirming an Immigration Judge's ("IJ") decision finding him ineligible for cancellation of removal pursuant to 8 U.S.C. § 1229b(b)(1)(C). Payan Jaquez contends that the BIA erred in determining that his 2005 criminal proceedings under Virginia Code § 18.2-251 for possession of cocaine constituted a "conviction" as defined in 8 U.S.C. § 1101(a)(48)(A). Because Payan Jaquez's 2005 proceedings fall squarely within the plain text of § 1101(a)(48)(A), we deny the petition for review.

         I.

         On June 6, 1989, Payan Jaquez was lawfully admitted to the United States as a conditional permanent resident based on his marriage to a United States citizen, Carol Trevino. Conditional permanent residents must petition to remove the conditions on their residency within ninety days of the second anniversary of their lawful admission, but Payan Jaquez failed to do so and his legal status terminated in 1991. 8 U.S.C. § 1186a. He filed a petition in 2006, but it was denied.

         Payan Jaquez separated from Ms. Trevino in 1989 and their divorce was finalized in 2004. He married another United States citizen, Sheila Johns, in 2005. They had two children together, born in 1993 and 1997, one of whom suffers from autism, ADHD, mental retardation, seizure disorder, and cerebral palsy. Payan Jaquez had a third United States citizen child with Elsa Monty Retina in 2009.

         Payan Jaquez was charged with possession of cocaine in December 2004, in violation of Virginia Code § 18.2-250. On May 23, 2005, he pled guilty in Charlottesville Circuit Court to the possession charge. The judge found that Payan Jaquez made the plea freely, voluntarily, and intelligently. He accepted Payan Jaquez's guilty plea and continued the case for sentencing.

         On November 3, 2005, the judge sentenced Payan Jaquez pursuant to Virginia Code § 18.2-251, which applies to first-time offenders. The judge vacated the finding of guilt and deferred adjudication, placing Payan Jaquez on probation for twelve months under conditions including good behavior, full-time employment, and abstention from alcohol and drugs. On December 18, 2007, upon Payan Jaquez's ...


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