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Andre Martello BARTON, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.

United States Court of Appeals for the Eleventh Circuit2018-09-25No. No. 17-13055
904 F.3d 1294

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Opinion

majority opinion

NEWSOM, Circuit Judge:

The federal immigration laws give the Attorney General the discretion to cancel the removal of an otherwise removable lawful permanent resident who (among other conditions) has resided in the United States continuously for 7 years after having been admitted in any status. 8 U.S.C. § 1229b(a)(2). Importantly for present purposes, though, the continuous-residence requirement is subject to the so-called stop-time rule. The provision that embodies that rule-at issue here-states that any period of continuous residence terminates when the alien commit[s] an offense referred to in section 1182(a)(2) of this title that renders the alien inadmissible to the United States under section 1182(a)(2) of this title or removable from the United States under section 1227(a)(2) or 1227(a)(4) of this title, whichever is earliest. Id . § 1229b(d)(1) (emphasis added).

The question before us is whether a lawful-permanent-resident alien who has already been admitted to the United States-and who isnt currently seeking admission or readmission-can, for stop-time purposes, be render[ed] ... inadmissible by virtue of a qualifying criminal conviction. Other circuits have divided over the answer. For slightly different reasons, the Second and Fifth Circuits have both held that a lawful permanent resident neednt apply for admission to be render[ed] ... inadmissible under the stop-time rule (as has the Third Circuit, albeit in an unpublished opinion). See Heredia v. Sessions , 865 F.3d 60, 67 (2d Cir. 2017) ; Calix v. Lynch , 784 F.3d 1000, 1008-09 (5th Cir. 2015) ; Ardon v. Atty Gen. of U.S. , 449 Fed. Appx 116, 118 (3d Cir. 2011). More recently, the Ninth Circuit disagreed, concluding that a lawful permanent resident cannot be rendered inadmissible unless he is seeking admission. Nguyen v. Sessions , 901 F.3d 1093, 1100, 2018 WL 4016761, at *5 (9th Cir. Aug. 23, 2018).

For the reasons that follow, we agree with the Second, Third, and Fifth Circuits, and disagree with the Ninth.

I

A

Andre Martello Barton is a native and citizen of Jamaica. Barton was initially admitted to the United States on May 27, 1989 as a B-2 visitor for pleasure; approximately three years later, he successfully adjusted his status to lawful permanent resident. Since his admission, Barton has run afoul of the law on several occasions. Initially, on January 23, 1996-for reasons that will become clear, the dates matter-Barton was arrested and charged with three counts of aggravated assault and one count each of first-degree criminal damage to property and possession of a firearm during the commission of a felony. He was convicted of all three offenses in July 1996. Then, a little more than a decade later-first in 2007 and then again in 2008-Barton was charged with and convicted of violating the Georgia Controlled Substances Act. (For present purposes, only Bartons 1996 crimes are relevant to determining whether he is eligible for cancellation of removal. Bartons 2007 and 2008 offenses occurred more than seven years after his admission to the United States-which, as we will explain, is the pertinent timeframe for establishing continuous residence under the cancellation statute.)

The Department of Homeland Security subsequently served Barton with a notice to appear, charging him as removable on several grounds: (1) under 8 U.S.C. § 1227(a)(2)(A)(iii), for being convicted of an aggravated felony related to drug trafficking; (2) under 8 U.S.C. § 1227(a)(2)(B)(i), for violating controlled-substance laws; (3) under 8 U.S.C. § 1227(a)(2)(C), for being convicted of illegally possessing a firearm; and (4) under 8 U.S.C. § 1227(a)(2)(A)(ii), for being convicted of two crimes involving moral turpitude not arising out of a single scheme. Barton admitted the factual allegations in the notice and conceded removability based on the controlled-substance and gun-possession offenses, but denied that he had been convicted of a trafficking-related aggravated felony or of two crimes involving moral turpitude not arising out of a single scheme. Barton also indicated that he intended to seek cancellation of removal as a lawful permanent resident. The immigration judge sustained the two conceded charges of removability, and the government later withdrew the other two charges.

B

As promised, Barton subsequently filed an application for cancellation of removal under 8 U.S.C. § 1229b(a), which, as already explained, allows the Attorney General to cancel the removal of an otherwise removable lawful-permanent-resident alien if-in addition to other requirements not relevant here-the alien has resided in the United States continuously for 7 years after having been admitted in any status. 8 U.S.C. § 1229b(a)(2). Importantly, though-as also explained-the continuous-residence requirement is subject to the stop-time rule, which terminates the accrual of continuous residence when the alien commits a crime that (1) is listed in 8 U.S.C. § 1182(a)(2) and (2) that renders the alien either inadmissible under § 1182(a)(2) or removable under 8 U.S.C. § 1227(a)(2) or (a)(4). Id . § 1229b(d)(1)(B).

In his cancellation application, Barton acknowledged his prior criminal convictions and included as exhibits records that, as relevant here, showed that he had committed the crimes that resulted in his convictions for aggravated assault, criminal damage to property, and unlawful gun possession on January 23, 1996. The government moved to pretermit Bartons application, arguing that Barton hadnt accrued the required seven years of continuous residence after his May 27, 1989 admission because, under the stop-time rule, his continuous-residence period ended on January 23, 1996.

In response, Barton contended that his 1996 crimes didnt trigger the stop-time rule. As to § 1229b(d)(1) s removable prong, Barton said that his 1996 offenses didnt qualify because they arose from a single scheme of misconduct constituting one crime involving moral turpitude committed outside his first five years in the United States, whereas the cross-referenced § 1227(a)(2) establishes removability, as relevant here, only for (i) a single crime involving moral turpitude committed within five years of an aliens admission or (ii) multiple crimes involving moral turpitude not arising out of a single scheme. The government didnt press-and has since abandoned-the argument that Bartons 1996 crimes rendered him removable for stop-time purposes. Instead, it insisted that Bartons 1996 offenses-even if considered as a single crime involving moral turpitude occurring outside the five-year timeframe-rendered Barton inadmissible under § 1182(a)(2), which unlike removability under § 1227(a)(2) isnt limited by a single-scheme requirement. Barton replied-thus teeing up the issue before us-that as an already-admitted lawful permanent resident not seeking admission (or readmission) to the United States, he could not as a matter of law be render[ed] ... inadmissible within the meaning of § 1229b(d).

The immigration judge ruled in the governments favor, concluding that Bartons 1996 offenses render[ed] him inadmissible under § 1182(a)(2), thereby triggering § 1229b(d)(1) s stop-time rule, thereby prematurely ending his period of continuous residence in the United States, thereby disqualifying him for cancellation of removal.

C

Barton sought review of the IJs order in the Board of Immigration Appeals, reiterating his argument that a lawful-permanent-resident alien not seeking admission to the United States cant be render[ed] inadmissible under § 1182(a)(2) for stop-time purposes. In a non-precedential single-member decision, the Board agreed with the IJ, concluding that Bartons 1996 offenses triggered the stop-time rule and thus forestalled his accrual of the requisite seven years of continuous residence. Citing its earlier decision in Matter of Jurado-Delgado , 24 I. & N. Dec. 29 (B.I.A. 2006), the Board (per the lone member) held that Bartons convictions barred him from seeking cancellation of removal because-so far as we can tell from a very summary order-the phrase renders the alien inadmissible in § 1229b(d)(1) s stop-time rule requires only that the applicant be potentially inadmissible, not that he be actively seeking admission.

Barton now petitions for review of the Boards decision. He asserts, as he has all along, that as a lawful permanent resident he plainly cannot be inadmissible as a result of any offense, as he is not seeking admission to the United States. Br. of Petitioner at 8.

II

Under the principle announced in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), [a]s a general rule, an agencys interpretation of a statute which it administers is entitled to deference if the statute is silent or ambiguous and the interpretation is based on a reasonable construction of the statute. Fajardo v. U.S. Atty Gen. , 659 F.3d 1303, 1307 (11th Cir. 2011). And to be clear, the Supreme Court has held that Chevron deference applies with full force when the Board of Immigration Appeals interprets ambiguous statutory terms in the course of ordinary case-by-case adjudication. See I.N.S. v. Aguirre-Aguirre , 526 U.S. 415, 424-25, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999). But so do Chevron s limitations. Accordingly, here as elsewhere, if we determine-employing traditional tools of statutory construction-that Congress has spoken clearly, we do not defer to [the] agencys interpretation of the statute, because we must give effect to the unambiguously expressed intent of Congress. Fajardo , 659 F.3d at 1307 (quoting Chevron , 467 U.S. at 842-44, 104 S.Ct. 2778 ).

The threshold question before us, therefore-at Chevron step one, so to speak-is whether the usual rules of statutory interpretation provide a clear answer to the following question: Can a lawful-permanent-resident alien who is not presently seeking admission to the United States nonetheless be render[ed] ... inadmissible within the meaning of 8 U.S.C. § 1229b(d)(1) ? Although it is undoubtedly true that the concept of inadmissibility is generally married to situations in which an alien is actually seeking admission to the United States, Calix v. Lynch , 784 F.3d 1000, 1004 (5th Cir. 2015), for the reasons that follow, we hold that an already-admitted lawful permanent resident-who doesnt need and isnt seeking admission-can be render[ed] ... inadmissible for stop-time purposes.

A

Any application of the traditional tools of statutory construction, of course, must begin with the statutory text, and proceed from the understanding that unless otherwise defined, statutory terms are generally interpreted in accordance with their ordinary meaning. Sebelius v. Cloer , 569 U.S. 369, 376, 133 S.Ct. 1886, 185 L.Ed.2d 1003 (2013) (internal quotation marks omitted). At issue here (again) is the stop-time rule, which (again) terminates the seven years of continuous residence that a lawful permanent resident must accrue in order to qualify for cancellation of removal. In relevant part, the stop-time rule provides as follows:

[A]ny period of continuous residence ... in the United States shall be deemed to end ... when the alien has committed an offense referred to in section 1182(a)(2) of this title that renders the alien inadmissible to the United States under section 1182(a)(2) of this title or removable from the United States under section 1227(a)(2) or 1227(a)(4) of this title, whichever is earliest.

8 U.S.C. § 1229b(d)(1).

Because the parties here agree that Barton is not ineligible for cancellation of removal on account of having committed an offense that rendered him removable under § 1227(a)(2) or § 1227(a)(4), the sole question before us is whether his 1996 convictions rendered him inadmissible under § 1182(a)(2). Bartons position is simply stated: He says that he plainly cannot be inadmissible as a result of any offense, as he is not seeking admission to the United States. Br. of Petitioner at 8 (emphasis added). Although Bartons argument has a certain intuitive appeal, we conclude that § 1229b(d)(1) s plain language forecloses it.

We begin our textual analysis where Barton does-with the word inadmissible. Standard English-language dictionaries all seem to define inadmissible in pretty much the same way: Not admissible; not proper to be allowed or received. Websters Second New International Dictionary 1254 (1944); see also, e.g. , Websters Third New International Dictionary 1139 (2002) (same); Oxford English Dictionary (3d ed. 2011) ([n]ot admissible; not to be admitted, entertained, or allowed). Unsurprisingly, those same dictionaries similarly define the root word admissible: Capable of being or having the right to be admitted to a place. Oxford English ; see also, e.g. , Websters Second at 34 ([e]ntitled or worthy to be admitted); Websters Third at 28 (same). So, in short, an alien like Barton is inadmissible if he isnt proper[ly]-or doesnt hav[e] the right to be-present in the United States.

On, then, to the word renders, which precedes inadmissible. Barton asserts that Congresss use of that term-such that the alien must commit an offense that renders him inadmissible-requires certain factual circumstances to be in existence to be operative, and thus that it makes most sense for Congress to have used renders inadmissible to apply to those seeking admission .... Br. of Petitioner at 12-13. We disagree that the term renders necessitates (or even properly suggests) so narrow a reading. Turning again to the dictionaries, we find that they almost uniformly define render to mean to cause to be or to become. E.g. , Websters Second New International Dictionary 2109 (1944); Websters Third New International Dictionary 1922 (2002) (same); Oxford English Dictionary (3d ed. 2011) (same). Some, interestingly-and we think tellingly-go on to explain that the word render can indicate the conferral of a particular condition, or state. Websters Second at 2109; Websters Third at 1922.

A state-based understanding makes particularly good sense here, where the word that follows renders is inadmissible. Cf. Robinson v. Shell Oil Co. , 519 U.S. 337, 341, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997) (emphasizing that a statutory terms meaning should be determined by reference to the specific context in which [it] is used). By their very nature, able and ible words connote a persons or things character, quality, or status-which, importantly for present purposes, exists independent of any particular facts on the ground, so to speak. Consider, for instance, the following example, taken from one dictionarys definition of the word render: Sewage effluent leaked into a well, grossly contaminating the water and rendering it undrinkable for 24 hours. Oxford English (emphasis added). The described water isnt properly drunk for a full day-whether or not anyone is actually trying to drink it. It is, by its very nature, not drinkable. Heres another, again from a dictionary definition of render: [T]he rains rendered his escape impossible . Oxford Dictionary of English 1503 (3d ed. 2010) (emphasis added). Because of the rains, the unidentified captives escape couldnt be made-whether or not he was actually trying to make it. Similar illustrations abound: A terminal illness renders its victim untreatable regardless of whether she is actively seeking treatment; rot renders a piece of fish inedible regardless of whether someone is trying to eat it; sheer weight renders a car immovable regardless of whether someone is trying to move it. You get the point. So too here-an alien can be rendered inadmissible regardless of whether he is actually seeking admission.

We simply cannot discern in § 1229b(d)(1) s text any indication that in order to be render[ed] ... inadmissible within the meaning of the stop-time rule, an alien must presently be seeking admission. Rather, an alien is render[ed] ... inadmissible when he is cause[d] to be or to become not proper[ly] or right[ly] admitted. In other words, inadmissib[ility] is a status that an alien assumes by virtue of his having been convicted of a qualifying offense under § 1182(a)(2). True, for an alien like Barton, who has already been admitted-and isnt currently seeking admission-that status might not immediately produce real-world admission-related consequences. But it isnt categorically irrelevant to admission either; rather, it may just be that the otherwise-latent status manifests somewhere down the road. Barton is of course correct that, as a general rule, an already-admitted lawful permanent resident neednt seek readmission to the United States. There are exceptions, however. For instance, a once-admitted alien may need readmission if he has abandoned or relinquished [lawful-permanent-resident] status, has been absent from the United States for a continuous period in excess of 180 days, or has engaged in illegal activity after having departed the United States. 8 U.S.C. § 1101(a)(13)(C). (Importantly, the term of inadmissib[ility] imposed by § 1182(a)(2) has no sunset; once an alien is render[ed] ... inadmissible under the statute, he retains that status indefinitely.)

So as a matter of both linguistics and logic, at least for stop-time purposes, a lawful permanent resident can-contrary to Bartons contention-be render[ed] ... inadmissible even if he isnt currently seeking (and for that matter may never again seek) admission to the United States.

B

In resisting this plain-language interpretation, Barton relies principally on the rule against surplusage-which cautions against needlessly reading a statute in a way that renders (pun fully intended) certain language superfluous. See, e.g. , Duncan v. Walker , 533 U.S. 167, 174, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001). In particular, Barton asserts-

If an offense referred to in 8 U.S.C. § 1182(a)(2), to wit, a [crime involving moral turpitude], categorically render[s] an alien inadmissible and trigger[s] the stop-time rule, without respect to whether that individual is actually seeking admission, then there would be no need to consider whether, in the alternative, the offense render[s] the alien removable under 8 U.S.C. § 1227(a)(2) or (a)(4).

Br. of Petitioner at 11.

Although we find Bartons surplusage-based argument a little hard to follow, he seems to be saying something like the following. At the outset, he correctly recognizes that in order to trigger § 1229b(d)(1) s stop-time rule, two conditions must be met: first, the alien must have committed an offense referred to in section 1182(a)(2); second, and separately, that offense must render[ ] the alien either inadmissible ... under section 1182(a)(2) or removable ... under section 1227(a)(2) or 1227(a)(4).... See Heredia v. Sessions , 865 F.3d 60, 66-67 (2d Cir. 2017) (explaining the stop-time rule as having two requirements); Calix , 784 F.3d at 1006 (same). From that starting point, and presumably fastening on the fact that both § 1229b(d)(1) s prefatory referred to clause and the inadmissible prong of the statutes operative clause cross-reference § 1182(a)(2), Barton appears to contend that an aliens commission of any § 1182(a)(2) -based crime that meets the threshold referred to condition will also ipso facto render[ ] the alien inadmissible under section 1182(a)(2). Thus, he says, there will never be a need to proceed to determine whether a crime qualifies under the operative clauses separate § 1227(a) -based removable prong-hence, the argument goes, the surplusage. Bartons solution: Courts should read the stop-time rule so that the inadmissibility part applies to permanent residents seeking admission, and the [removability] part applies to those permanent residents in the United States already, not seeking admission .... Br. of Petitioner at 11.

We reject Bartons argument for two reasons. As an initial matter, the Supreme Court has repeatedly explained that the usual preference for avoiding surplusage constructions is not absolute and that applying the rule against surplusage is, absent other indications, inappropriate when it would make an otherwise unambiguous statute ambiguous. Lamie v. U.S. Trustee , 540 U.S. 526, 536, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004) (citing Chickasaw Nation v. United States , 534 U.S. 84, 94, 122 S.Ct. 528, 151 L.Ed.2d 474 (2001) ). Rather, faced with a choice between a plain-text reading that renders a word or clause superfluous and an interpretation that gives every word independent meaning but, in the doing, muddies up the statute-courts should prefer the plain meaning since that approach respects the words of Congress. Id . Because, as we have explained, the statutory language here is clear, it is unnecessary-and in the Supreme Courts words, would be inappropriate-to apply the anti-surplusage canon here.

Moreover, and in any event, Bartons surplusage-based argument misunderstands the stop-time rules operation. Contrary to Bartons assumption, answering yes to the first question-whether the alien has committed an offense referred to in section 1182(a)(2)-does not necessarily require a yes to the second question-whether that offense renders the alien inadmissible ... under section 1182(a)(2). The reason is that while the mere commi[ssion] of a qualifying offense satisfies the prefatory clause, actually render[ing] the alien inadmissible demands more. Under § 1182(a)(2), an alien is inadmissible-here, as a result of a crime involving moral turpitude-only if he is convicted of, or ... admits having committed, or ... admits committing acts which constitute the essential elements of the listed offense. 8 U.S.C. § 1182(a)(2)(A)(i)(I). In short, while only commission is required at step one, conviction (or admission) is required at step two. See Calix , 784 F.3d at 1006 (If an alien has committed an offense listed [in § 1182(a)(2) ], does inadmissibility automatically result? It does not.); see also Heredia , 865 F.3d at 66-67 (recognizing commission-conviction distinction).

So contrary to Bartons contention, there is no surplusage. The statutory language that he assails as superfluous is in fact the second of two independent requirements, both of which are necessary to trigger the stop-time rule.

III

For the foregoing reasons, we hold, per the stop-time provisions plain language, that a lawful-permanent-resident alien need not be seeking admission to the United States in order to be render[ed] ... inadmissible. Accordingly, the Board correctly concluded that Barton is ineligible for cancellation of removal because the stop-time rule-triggered when he committed a crime involving moral turpitude in January 1996-ended his continuous residence a few months shy of the required seven-year period.

PETITION DENIED.

For an explanation of the differences-why sometimes able and sometimes ible?-see Catherine Soanes, Do you know your -ibles from your -ables? , Oxford Dictionaries: OxfordWords (Oct. 23, 2013), https://blog.oxforddictionaries.com/2012/10/23/ibles-and-ables/ (last visited Sept. 15, 2018).

In Nguyen , the Ninth Circuit acknowledged that § 1101(a)(13)(C) specifies circumstances in which a lawful permanent resident might have to seek readmission, but answered that none of them applied in the case before it. 901 F.3d at 1097-98, 2018 WL 4016761, at *3. With respect, we think that misses the point-which isnt whether the particular alien before the court himself needs readmission right now, but rather whether a once-admitted alien might someday need readmission, such that his inadmissible status would matter. Clearly he might, such that it would.

There is one clarification worth making here. Although it is an aliens conviction of a qualifying offense that renders [him] inadmissible for stop-time purposes, his period of continuous residence is deemed to terminate on the date he initially committed that offense. So, in effect, his conviction-based inadmissibility relates back (our term) to the date of the crimes commission. See, e.g. , Heredia , 865 F.3d at 70-71 ([W]hen a non-citizen is rendered inadmissible-by a conviction, admission of the criminal conduct, or through some other means-the stop-time rule may make him ineligible for cancellation of removal, if, as of the date of his commission of the underlying offense, he had not yet resided in the United States continuously for seven years. To state it another way: as long as a qualifying offense later does render the non-citizen inadmissible under 8 U.S.C. § 1182(a)(2), the date of the commission of the offense governs the computation of a lawful permanent residents continuous residency in the United States.).

Although the Ninth Circuit embraced a version of this surplusage-based argument in Nguyen , see 901 F.3d at 1097-98, 2018 WL 4016761, at *3, it failed to account for the fact that while commission of a crime alone satisfies § 1229b(d)(1) s prefatory clause, the operative render[ing] clause requires more-either a conviction of or a formal admission to the underlying offense.

Because we conclude that the stop-time provisions statutory language is unambiguous, we neednt definitively determine whether, as the government contends, the Boards decision here-which the parties agree is a non-precedential single-member order-is entitled to Chevron deference. See Chevron , 467 U.S. at 842, 104 S.Ct. 2778 (If the intent of Congress is clear, that is the end of the matter.). We note, though, that in Quinchia v. U.S. Attorney General , this Court held that Chevron deference is not appropriate[ly] afforded to a non-precedential decision issued by a single member of the [Board] that does not rely on existing [Board] or federal court precedent. 552 F.3d 1255, 1258 (11th Cir. 2008) (emphasis added). Quinchia further indicates that a single-member Board decision should be deemed to have rel[ied] on existing precedent for Chevron purposes only where it is actually dictated-or compelled-by an earlier decision. See id. at 1258 (citing Garcia-Quintero v. Gonzales, 455 F.3d 1006, 1011-14 (9th Cir. 2006), for the proposition that Chevron deference may apply where the non-precedential [Board] decision relied on, and was compelled by an earlier precedential decision); cf . Silva v. United States Atty Gen., 448 F.3d 1229, 1243 (11th Cir. 2006) (holding that it is permissible under 8 C.F.R. § 1003.1(e)(4)(i)(A) for the Board to summarily affirm the decision of the immigration judge without opinion when, among other conditions, the issues are governed by existing precedent).

It is true, as the government says, that the single-member opinion here cited (parenthetically) the Boards earlier decision in Matter of Jurado-Delgado for the proposition that the phrase renders the alien admissible ... or removable in section [1229b(d)(1) ] requires only that an alien be or become inadmissible or removable, i.e., be potentially removable if so charged, 24 I. & N. Dec. 29, 31 (B.I.A. 2006). But as the Fifth Circuit has correctly explained, [t]he [Board] in Jurado-Delgado clearly answered one narrow question, which is similar, but not identical, to the one presented here: It held that an alien could be charged with removal on one ground and be ineligible for cancellation of removal because of another ground. The opinion does not explicitly answer whether a lawful permanent resident who does not need to be admitted nonetheless has his period of continuous residence stopped by an offense rendering him inadmissible. Calix , 784 F.3d at 1009. Because the single-member decision here required an extension (or at least a refinement) of Jurado-Delgado , we doubt that it qualifies under Quinchia as one that rel[ies] on existing Board precedent.

One of the principal justifications for granting deference to administrative agencies is that they operate pursuant to regular procedures that ensure thorough consideration and vetting of interpretive issues. See Chevron , 467 U.S. at 865, 104 S.Ct. 2778 (basing policy of deference, in part, on the conclusion that the agency considered the matter in a detailed and reasoned fashion). When, as here, those procedures are short-circuited, that justification evaporates. Cf. Rotimi v. Gonzales , 473 F.3d 55, 57-58 (2d Cir. 2007) (refusing to give Chevron deference to a single-member Board decision because (1) the Board itself affords such decisions no precedential weight and (2) the Boards governing regulations provide that it has a duty to provide clear and uniform guidance [...] on the proper interpretation and administration of the immigration laws, which it shall do through precedential decisions) (cited in Quinchia , 552 F.3d at 1258 ).