Gutierrez v. Holder

When an alien is “subject to an extant withholding of removal,” the Department of Homeland Security may file a Notice to Appear, and there does not need to be a separate hearing; the government must demonstrate the grounds for the termination of withholding of removal by a preponderance of evidence.

Armando Gutierrez entered the United States without permission. In July 2007, she was granted withholding of removal. Later, the Department of Homeland Security (“DHS”) discovered that Gutierrez had been convicted of controlled substance offenses in February and August 2007. DHS issued a Notice to Appear (“NTA”) charging Mrs. Gutierrez with “removal as an alien within the United States without being admitted or paroled, and as an alien convicted of a controlled substance offense.” Gutierrez moved to terminate the removal proceedings, but she was denied. She appealed to the Board of Immigration Appeals, which dismissed her appeal. On appeal to the Ninth Circuit, the panel noted that 8 C.F.R. § 1208.24(f) allows for the termination of withholding proceedings to be brought while an alien has a grant of withholding. The panel also found that the government must demonstrate the grounds for the termination of withholding of removal by a preponderance of evidence. The government had met this burden because by submitting the official state court records of Mrs. Gutierrez’s convictions and the criminal complaints filed against her. The panel reasoned that under 8 U.S.C. § 1182(a)(2)(A)(i)(II), Gutierrez’s “convictions rendered her ineligible for any visa.” Also, her failure to disclose her first “conviction in her application for withholding” of removal made her ineligible “for withholding of removal at the time it was granted.” Under 8 C.F.R. § 1208.24(b)(3), her second conviction “support[ed] termination of withholding of removal.” Thus, the panel held that DHS could file a NTA charging Gutierrez with removal. Gutierrez argued that she should have “a separate hearing on termination before considering her request for relief under [the Convention Against Torture].” The panel denied her claim because Gutierrez failed to demonstrate that “her proceedings were not fundamentally unfair” or that further proceedings would have changed the outcome. DENIED.