Esquivel, Hector R. v. Mukasey, Michael B.

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 07-2260

H ECTOR R. E SQUIVEL,

Petitioner,

v.

M ICHAEL B. M UKASEY, Attorney General

of the United States,

Respondent.

____________

Petition for Review of the Decision

of the Board of Immigration Appeals.

No. A14 484 902

____________

A RGUED JULY 8, 2008—D ECIDED S EPTEMBER 11, 2008

____________

Before B AUER, C OFFEY, and R OVNER, Circuit Judges.

C OFFEY, Circuit Judge. Hector Esquivel, a Mexican

citizen, was ordered removed after an Immigration

Judge found him inadmissible as a result of having com-

mitted crimes in this country involving moral turpitude.

In ordering Esquivel’s removal, the IJ determined that

Esquivel was ineligible for a waiver under former § 212(c)

of the Immigration and Naturalization Act because he

2 No. 07-2260

had previously served more than five years’ imprisonment

for an aggravated felony: attempted murder. Esquivel

appealed to the BIA, which dismissed his appeal and also

denied his motion to remand or administratively close

proceedings. Esquivel now challenges the basis for the

IJ’s finding that he was ineligible for a § 212(c) waiver. We

deny his petition for review.

Esquivel came to the United States in 1966 at the age of

six and has resided here since. He was convicted before

a jury of attempted murder 1 in Illinois in 1981 and served

seven years of a fifteen-year prison sentence. After his

release in 1988, he was placed in deportation proceedings.

Esquivel applied for a waiver under the now-repealed

§ 212(c) of the INA, which permitted permanent resident

aliens to request relief from deportation under certain

circumstances. After that, an IJ granted his application

for the waiver of deportation in 1989, and the BIA agreed

and affirmed in 1991. Esquivel was able to retain his

status as lawful permanent resident.

Esquivel later on two separate occasions pleaded guilty

to two separate counts of misdemeanor retail theft, in

February 1991 and February 1994. See 720 ILCS 5/16A-3.

He continued to reside in the United States, but in 2004

he traveled outside the country, and upon return

in June 2004, he was apprehended by the Immigration

Service and placed in removal proceedings for the

1

Esquivel’s brief states that he pleaded guilty to attempted

murder, but, as the government points out, the record indi-

cates that he was tried by a jury.

No. 07-2260 3

theft offenses referred to above. In September 2004 he was

charged with being inadmissible as a returning resident

because he had committed two crimes involving moral

turpitude, which referred to the theft offenses, not the

attem pted murder conviction. See 8 U.S.C.

§ 1182(a)(2)(A)(i)(I).

Esquivel next appeared before an IJ, who found that as a

result of his two theft offenses he no longer qualified for

a waiver of removal and that because he had multiple

theft offenses, he was unable to qualify for the petty

theft exception. As a result of this ruling Esquivel applied

for a second waiver of removal under § 212(c), but the IJ

denied the waiver and ordered him removed finding

that he had also served five years or more of a prison

sentence for an aggravated felony, namely, the attempted

murder. In reaching that conclusion, the IJ noted that

§ 212(c) of the INA was eliminated in 1997 with the passage

of the Illegal Immigration Reform and Immigrant Respon-

sibility Act (IIRIRA), and the IJ also discussed INS v.

St. Cyr, 533 U.S. 289, 326 (2001), which held that the

repeal of § 212(c) could not apply retroactively to aliens

whose convictions resulted from guilty pleas entered prior

to the IIRIRA’s effective date. The IJ concluded that

Esquivel was bound by the language of § 212 as drafted in

1990, and that version of the statute specified that an

alien who had served five years or more of a prison

sentence for an aggravated felony was ineligible for a

§ 212(c) waiver. See 8 U.S.C. § 1101(a)(43)(A)(U), (a)(43)(F).

According to the IJ, Esquivel’s offense of attempted

murder qualified as an aggravated felony, and his seven-

year term of imprisonment for that conviction precluded

him from receiving this type of waiver.

4 No. 07-2260

Esquivel appealed this decision to the BIA and joined

with a motion to remand or to administratively close

proceedings.2 Esquivel contended that the IJ erred in

relying on his 1981 attempted murder conviction and

resulting imprisonment to find him statutorily ineligible

for § 212(c) relief. In denying Esquivel’s requests for

relief, the BIA adopted and affirmed the IJ’s decision,

concluding that Esquivel was ineligible for a second

waiver under former § 212(c) of the INA. According to

the BIA, the IJ did not err in considering Esquivel’s 1981

conviction for attempted murder when ruling on his

current eligibility for § 212(c) relief. The BIA approved the

Immigration Judge’s decision that Esquivel’s attempted

murder conviction was an aggravated felony. Finally, the

BIA denied Esquivel’s motion to remand or terminate

proceedings on the ground that the government had not

attested to his prima facie eligibility for naturalization.

On appeal Esquivel does not dispute that he is inadmissi-

ble based on the theft convictions; instead, he argues only

that the IJ erred in finding him ineligible for a waiver of his

inadmissibility. Thus, the only issue before us is whether

the IJ properly concluded that the attempted murder

conviction precluded the § 212(c) relief. If the IJ’s finding

on that issue is correct, then the theft convictions provide

a sufficient basis for Esquivel’s removal. See Klementanovsky

v. Gonzales, 501 F.3d 788, 789 (7th Cir. 2007) (denying

2

Esquivel argued that the BIA should close the removal

proceedings or hold them in abeyance pending his applica-

tion for naturalization.

No. 07-2260 5

petition for review of alien who had been convicted of

multiple theft offenses, none of which resulted in any

prison time but which constituted crimes involving

moral turpitude).

Esquivel argues that the IJ should not have taken into

account his attempted murder conviction. In effect, he

contends that his initial waiver in 1989 amounted to an

expungement of his attempted murder conviction from

his criminal record for immigration purposes and that

therefore the IJ should not have considered it when

ruling on his second waiver application. Although he

concedes that the 1990 amendment has retroactive ap-

plication, he argues that his first waiver should bar that

amendment’s application only to his first conviction. He

also claims that the IJ erred by applying the term “aggra-

vated felony” to this offense, since that term was codified

after he was convicted of the crime. See 8 U.S.C.

§ 1101(a)(43)(A), (a)(43)(U). We also wish to make clear

that since these arguments involve questions of law, we

have jurisdiction to review them, Knutsen v. Gonzales, 429

F.3d 733, 736 (7th Cir. 2005); 8 U.S.C. § 1252(a)(2)(D), and

our review is de novo, Knutsen, 429 F.3d at 736; Hassan v.

INS, 110 F.3d 490, 493 (7th Cir. 1997).

Esquivel’s primary argument, that if a conviction’s

removal effect was waived in 1989 it should remain

waived today, is foreclosed by this circuit’s case law.

Prior to 1996, § 212(c) of the INA, codified at 8 U.S.C.

§ 1182(c), gave the Attorney General discretion to waive

deportation for aliens under certain circumstances. But

Congress amended § 212(c) in April 1996 and removed

6 No. 07-2260

its availability to aggravated felons, and one year later

Congress made its complete repeal effective. See

Antiterrorism and Effective Death Penalty Act, Pub. L. No.

104-132, § 440(d), 110 Stat. 1214, 1277 (1996); IIRIRA, Pub.

L. No. 104-208, § 304(b), 110 Stat. 3009 (1996). Under

the Supreme Court’s decision in St. Cyr, however,

§ 212(c) waivers remain available to aliens who pleaded

guilty to an aggravated felony prior to the effective date

of the repeal and who would have been eligible for

relief under the law then in effect. See generally Valere v.

Gonzales, 473 F.3d 757, 759-60 (7th Cir. 2007) (discussing the

current status of § 212(c) waivers in great detail). But we

have recognized certain qualifications. Velez-Lotero v.

Achim, 414 F.3d 776, 781 (7th Cir. 2005), held that St. Cyr

does not disturb the operation of the pre-IIRIRA statute

and does not alter the rule that the 1990 version of § 212(c)

applies to applications for relief submitted after its effec-

tive date. See In re Lettman, 22 I. & N. Dec. 365, 370-71 (BIA

1998) (holding that alien placed in removal proceedings

after March 1, 1991, who has been convicted of an aggra-

vated felony is subject to removal regardless of date of

conviction). In addition, an alien seeking such relief is

required to demonstrate “actual reliance.” See United

States v. De Horta Garcia, 519 F.3d 658, 661 (7th Cir. 2008);

Jideonwo v. INS, 224 F.3d 692, 700 (7th Cir. 2000); LaGuerre

v. Reno, 164 F.3d 1035, 1041 (7th Cir. 1998); Reyes-Hernandez

v. INS, 89 F.3d 490, 492-93 (7th Cir. 1996). Thus, the rule is

that “relief under § 212(c) is not available to any alien

whose removal proceeding began after repeal except to

those who affirmatively abandoned rights or admitted

guilt in reliance on § 212(c) relief.” De Horta Garcia, 519

No. 07-2260 7

F.3d at 661; Montenegro v. Ashcroft, 355 F.3d 1035, 1037 (7th

Cir. 2004). And furthermore we require a showing of

specific facts demonstrating actual reliance. Jideonwo, 224

F.3d at 700; Reyes-Hernandez, 89 F.3d at 492. Esquivel not

only failed to make a showing of reliance, he also failed to

enter a plea of guilty to attempted murder—he was

found guilty after a jury trial.

Moreover, Esquivel cannot escape the consequences of

having committed an aggravated felony on his admissibil-

ity into the country just because that term was defined to

include attempted murder after his offense was committed.

The statute itself states that the amended definition of

aggravated felony “applies regardless of whether the

conviction was entered before, on, or after” the date of the

amendment’s enactment, September 30, 1996. 8 U.S.C.

§ 1101(a)(43)(U); see also Zamora-Mallari v. Mukasey, 514

F.3d 679, 690 (7th Cir. 2008) (upholding denial of § 212(c)

waiver where crime of sexual abuse did not constitute

aggravated felony at time of guilty plea). Thus, this circuit

has held that “Congress clearly manifested an intent to

apply the amended definition of ‘aggravated felony’

retroactively.” Flores-Leon v. INS, 272 F.3d 433, 439 (7th

Cir. 2001). Therefore Esquivel is barred from relief via the

retroactive application of § 212(c).

We are not aware of nor has the petitioner has cited us

any precedent for Esquivel’s argument that a § 212(c)

waiver effectively expunges a conviction from an alien’s

criminal record for immigration purposes or bars subse-

quent consideration of that conviction. The BIA has

established that a § 212(c) waiver does not waive the basis

8 No. 07-2260

for excludability itself; it merely waives the finding of

excludability. See In re Balderas, 20 I. & N. Dec. 389, 391

(BIA 1991); see also Peralta-Taveras v. Att’y Gen., 488 F.3d

580, 585 (2d Cir. 2007); Becker v. Gonzales, 473 F.3d 1000,

1003-04 (9th Cir. 2007); Amouzadeh v. Winfrey, 467 F.3d 451,

458-59 (5th Cir. 2006); Munoz-Yepez v. Gonzales, 465 F.3d

347, 350 (8th Cir. 2006); Rodriguez-Munoz v. Gonzales, 419

F.3d 245, 248 (3d Cir. 2005). And we have recently held

that an alien previously granted a § 212(c) waiver from

an aggravated felony conviction would not be eligible

for cancellation of removal under § 240A(a), 8 U.S.C.

§ 1229b(a), because he would still remain an alien con-

victed of an aggravated felony. Negrete-Rodriguez v.

Mukasey, 518 F.3d 497, 504 (7th Cir. 2008).

Finally, Esquivel challenges the BIA’s denial of his

motion to remand or administratively close proceedings

based on his pending application for naturalization. But

as the government correctly notes, the merits of this

issue are beyond our jurisdiction. Thus, we retain only

limited jurisdiction to review Esquivel’s final order of

removal. See 8 U.S.C. § 1252(a)(2)(C) (providing that no

court shall have jurisdiction to review any final order of

removal against an alien who is removable for having

committed an aggravated felony). Specifically, we may

consider only properly raised constitutional claims and

questions of law, and Esquivel’s claim that the removal

proceedings should have been terminated based on his

pending application for naturalization does not qualify as

such. See 8 U.S.C. § 1252(a)(2)(D); Hernandez-Alvarez v.

Gonzales, 432 F.3d 763, 765 (7th Cir. 2005). Thus, we

lack jurisdiction to consider Esquivel’s challenges to the

No. 07-2260 9

BIA’s denial of his motions to remand and administra-

tively close proceedings because they do not involve

constitutional claims or questions of law. See Zamora-

Mallari, 514 F.3d at 696; 8 U.S.C. § 1252(a)(2)(C).

The petition for review is D ENIED.

9-11-08