Avendano v. Holder, Jr., No. 13-2171 (8th Cir. 2014)
Annotate this CasePetitioner, a native and citizen of El Salvador, sought review of the BIA's decision concluding that petitioner was ineligible for cancellation of removal because he had been convicted of a crime involving moral turpitude - making terroristic threats under Minnesota law. The BIA ruled that petitioner's offense of uttering terroristic threats in reckless disregard of the risk of causing terror involves the reprehensible conduct of terrorizing another person with a culpable mental state, and is a turpitudinous offense. Consequently, petitioner was ineligible for cancellation of removal. The court denied his petition for review on this issue. The court also denied the petition for review based on the BIA's denial of his request for a remand to the immigration judge to consider whether he is eligible for asylum and withholding of removal based on his fear of gang violence and gang recruitment in El Salvador. The BIA's determination does not present a question of law or a constitutional claim over which the court has jurisdiction.
Court Description: Petition for Review - Immigration. The BIA permissibly categorized petitioner's offense of making terroristic threats in violation of Minn. Stat. Section 609.713 subd. 1 as a crime of moral turpitude and did not err in concluding he was ineligible for cancellation of removal; the BIA's determination whether petitioner presented sufficient grounds to reopen a hearing for the purpose of determining whether he is eligible for asylum and withholding of removal based on his fear of gang violence and recruitment in El Salvador does not present a question of law or a constitutional claim over which this court has jurisdiction. Judge Kelly, concurring in part and dissenting in part.
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