Petition for Writ of Certiorari — De la Rosa v. Holder

Suprems Cour, U.8.

JOSE ERASMO DE LA ROSA,

Petitioner,

v.

ERICJ. HOLDER, JR.,

UNITED STATES ATTORNEY GENERAL,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

SETH P. WAXMAN MARK C. FLEMING

PAUL R. Q. WOLFSON Counsel of Record

WILMER CUTLER PICKERING MEGAN BARBERO

HALE AND DORR LLP E,\LIZABETH KENT CULLEN

1875 Pennsylvania Ave. NW WILMER CUTLER PICKERING

Washington, DC 20006 HALE AND DORR LLP

(202) 663-6000 60 State Street

Boston, MA 02109

MARIAI. CASABLANCA (617) 526-6000

CASABLANCA LEGAL GROUP

444 Brickell Ave., Suite 416

Miami, FL 33131

(305) 577-4220

QUESTION PRESENTED

For more than 25 years, the Board of Immigration

Appeals (BIA) held that a legal permanent resident

(LPR) who is deportable due to a criminal conviction

could seek a discretionary waiver of removal under

Section 212(c) of the Immigration and Nationality Act,

8 U.S.C. § 1182(c), provided that the conviction also

would have constituted a waivable basis for exclusion.

In 2005, the BIA abruptly changed course, adding a re-

quirement that the LPR be deportable under a statu-

tory provision that used “similar language” to an exclu-

sion provision. Deportable LPRs who departed and re-

entered the United States after their conviction, how-

ever, may seek Section 212(c) relief under a longstand-

ing “nunc pro tunc” procedure that does not turn on

similar language between deportation and exclusion

provisions. Thus, under the BIA’s current view, an

LPR who pled guilty to an offense that renders him

both deportable and excludable, but under provisions

that use dissimilar phrasing, will be eligible for Section

212(c) relief from deportation if he departed and reen-

tered the United States after his conviction, but ineli-

gible if he did not depart. The circuits are split three

ways on the lawfulness of the BIA’s new interpretation.

The question presented is:

Whether a lawful permanent resident who was

convicted by guilty plea of an offense that renders him

deportable and excludable under differently phrased

statutory subsections, but who did not leave the United

States between his conviction and the commencement

of removal proceedings, is categorically foreclosed from

seeking discretionary relief from removal under former

Section 212(c) of the INA.

(i)

TABLE OF CONTENTS

Page

UT LIE FRI 0 weieritscesscccrescrercecetersasusvaenisionnes 1

py UA tty 8 4g y | >: ee es vl

Ce BE EY vnccenscsiccenectsbeskenddsdcassscteraeseecn 1

Fer a EE sntisnntsnnictsnttnaciadlnldicmeivaies dade 2

CONSTITUTIONAL, STATUTORY,

AND REGULATORY PROVISIONS

FG SE ED citakcnesststsiaxcessccrieccrieane 2

FEF Us FUE ccacecesoccissnssnavenesiguasantiedseck canteen 2

BOE Fe EIT Tr vikesdasisnctnscecennscecetesnecsnaansindadéaiediicamemaaamaees 5

Fi. FPOGARiE TACOS vsicesissinsnsceinessssiorvessstenscnreereees 5

B. Availability Of Discretionary Relief

RE Bic: cncnisuacnicnsbubarennasaiiedda etna sas cacaee 6

C. The BIA Changes Course In 2005................... 13

DD, “Fa I ticeecissititeusimennunamoninn 15

EB. PROCITE TI osiscseiccsscecscserssesnvnsssiesssniensisnnses 16

REASONS FOR GRANTING THE PETI-

AP IIE si cincsocsinciasiedibecucnnan ate aaa etna aaarae 17

I. THE THREE-WAY CIRCUIT SPLIT ON THE

APPLICATION OF SECTION 212(c) To DE-

PORTABLE LEGAL PERMANENT RESIDENTS

IS DEEPLY ENTRENCHED AND THE ISSUE

PEAS BLY Fa oincsd ccncavnsankentasteeoxectvacsntonans 18

Il. THE ELEVENTH CIRCUIT AND THE BIA

INCORRECTLY AND UNCONSTITUTIONALLY

RESTRICTED THE SCOPE OF SECTION

BY IO cnvasncenasecinvacreiteies daiicdesemaradaemuameanwals 21

iV

TABLE OF CONTENTS—Continued

III. THIS CASE PRESENTS AN ISSUE OF EX-

CEPTIONAL AND CONTINUING IMPORTANCE

TO NUMEROUS LEGAL PERMANENT RESI-

Ca I IOY seessishuiinicisainnediscincammangioiasavennianiiaiiase

APPENDIX A: Opinion of the United States

Court of Appeals for the Eleventh Circuit,

GREGG FI, TG, BIO vies rscsssnersencessosovscesseenseseens

APPENDIX B: Order of the Board of Immi-

gration Appeals, dated June 10, 2008................

APPENDIX C: Oral decision of the Immigra-

tion Judge, dated March 16, 2007.............0:c000

APPENDIX D: Bond memorandum, dated July

APPENDIX E: Order of the United States

Court of Appeals for the Eleventh Circuit

denying motion to stay deportation, dated

Wr eens iadamisaceonddenns

APPENDIX F: Excerpts of the administrative

record before the Board of Immigration

Appeals:

February 15, 2005 Hearing Before Immi-

gration Judge Victoria Ghartey (AR 46-52)...

March 16, 2007 Hearing Before Immigra-

tion Judge Victoria Ghartey (AR 57-62)..........

APPENDIX G: Representative cases address-

ing Section 212(c) eligibility in light of Mat-

RE Ne aicsavs cin tsehearadniendiietentienccuauanines

Page

Pasi 43a

Vv

TABLE OF CONTENTS—Continued

APPENDIX H: Statutory provisions:

Section 212(a) of the Immigration and Na-

tionality Act, codified at 8 U.S.C. § 1182

Former Section 212(c) of the Immigration

and Nationality Act, codified at 8 U.S.C.

§ 1182(c) (1996), repealed April 1, 1997

Section 231 (formerly Section 241) of the

Immigration and Nationality Act, codified

ee aie tntscitlaisastpitcsseenicadscnsiccennsonesesnane 54a

8 oe Be ee 55a

APPENDIX I: Regulatory provision:

8 C.F.R. § 1212.3(f)(5)

APPENDIX J: Decision of the Board of Immi-

gration Appeals in Matter of Munoz, dated

August 7, 2003

APPENDIX K: Decision of the Board of Im-

migration Appeals in Matter of Rangel-

Zuazo, dated May 25, 2005

APPENDIX L: Decision of the Board of Im-

migration Appeals in Matter of Rowe,

dated May 9, 2003

APPENDIX M: Decision of the Board of Im-

migration Appeals in Matter of S-Lei, dated

vl

TABLE OF AUTHORITIES

CASES

Page(s)

Abebe v. Gonzales, 493 F.3d 1092 (9th Cir. 2007)....19, 25

Abebe v. Holder, 577 F.3d 1113 (9th Cir. 2009) ............. 21

Abebe v. Mukasey, 514 F.3d 909 (9th Cir. 2008) .......... 19

Abebe v. Mukasey, 554 F.3d 1203 (9th Cir.

STII iad axcidbncinnatansiidsesabivsaaavenopceiesnssessestaesesonszeinies passim

Anwo v. INS, 607 F.2d 435 (D.C. Cir. 1979) ..............c0000 R

Blake v. Carbone, 489 F.3d 88 (2d Cir. 2007)....... passim

Boeing Co. v. United States, 537 U.S. 487 (2003).......... 23

Bowen v. Georgetown Univ. Hosp., 488 U.S. 204

Cabasug v. INS, 847 F.2d 1321 (9th Cir. 1988) ............... 9

Campos v. INS, 961 F.2d 309 (1st Cir. 1992).............00. 10

Caroleo v. Gonzales, 476 F.3d 158 (8d Cir. 2007)....15, 19

Carrasco-Favela v. INS, 563 F.2d 1220 (5th

el caneacenbcunnbbnogbnenienene 8

Cato v. INS, 84 F.3d 597 (2d Cir. 1996).........cceseeeseeeeee 10

Chiravacharadhikul v. INS, 645 F.2d 248 (4th

aes paaecntbennins 8

City of Cleburne v. Cleburne Living Center,

ss shuleubabatphssbbnaenunsienne 26

Dalombo Fontes v. Gonzales, 483 F.3d 115 (1st

8 ic ELE ae sD NNO 26

De Araujo v. Gonzales, 457 F.3d 146 (1st Cir.

eA os calidpavenuabieasnionne 12

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Drax v. Reno, 338 F.3d 98 (2d Cir. 1996) ..............000ss000 10

FDA v. Brown & Williamson Tobacco Corp.,

Be ay ee EE witsileprniinsinninactensetiininiainaesentneriansrceess 22

Falaniko v. Mukasey, 272 Fed. Appx. 742 (10th

Far, Bee) CIID ccc ccccceneceeszesscnciesstibsnsssenionsoons 15

Farquharson v. Attorney General, 246 F.3d

ee ee Ss thincdicaeinbiienininen 10

Francis v. INS, 582 F.2d 268 (2d Cir. 1976) ..8, 23, 25, 28

Gjona) v. INS, 47 F.3d 824 (6th Cir. 1995)........csesceeeees 10

Gonzalez-Mesias v. Holder, 129 S. Ct. 2042

Sl usiidensiseusccunicicibdbnntintbeacucainigesdiaiamaiaaiasmmassioes 32

Hem v. Maurer, 458 F.3d 1185 (10th Cir. 2006)............ 12

INS v. St. Cyr, 533 U.S. 289 (2001) ...........csceseseneeee passim

Katsis v. INS, 997 F.2d 1067 (3d Cir. 1998).................00. 8

Kim v. Gonzales, 468 F.3d 58 (1st Cir. 2006).....15, 19, 26

Koussan v. Holder, 556 F.3d 403 (6th Cir. 2009).......... 15

Leal-Rodriguez v. INS, 990 F.2d 939 (7th Cir.

Peeled incitiinsiisesinsabicedentadetbdeaeintis uctanin ee capeiiasbacessattibauaiiitidesiancn 10

Lorillard v. Pons, 434 U.S. 575 (1978)............csseccceseseees 22

Lovan v. Holder, 574 F.3d 990 (8th Cir. 2009)............... 20

Lozada v. INS, 857 F.2d 10 (1st Cir. 1988)................... 8

Mathews v. Diaz, 426 U.S. 67 (1976)............ceeceseeceeee 26, 27

Matter of A-A-, 20 1. & N. Dec. 492 (BIA 1992)............ 1]

Matter of Arias-Uribe, 13 I. & N. Dec. 966

GPE. SPE ED vaschccsctnincecntenencentisnscssbeniininilonnidnientiassneiion 8

Vill

TABLE OF AUTHORITIES—Continued

Matter of Ashley, 20083 WL 23521830 (BIA

Nov. 4, 20038)

Matter of Banuelos-Delena, 2006 WL 901335

(BIA Mar. 2, 2006)

Matter of Blake, 23 I. & N. Dec. 722 (BIA

3, 13, 14, 24, 29, 30

Matter of Brieva-Perez, 23 I. & N. Dec. 766

(BIA 2005)

Matter of Cardona, 2005 WL 3709244 (BIA

Dec. 27, 2005) c.cscccccccvecsuesssseccossssessecssseeesnece 8, 14, 24, 32

Matter of Caro-Lozano, 2004 WL 1398661 (BIA

Matter of Fuentes-Campos, 21 I. & N. Dec. 905

(BIA 1997)

Matter of G-A-, 7 I. & N. Dec. 274 (BIA

Matter of Hernandez-Casillas, 20 1. & N. Dec.

262 (Att’y Gen. 1991)

Matter of Hussein, 2004 WL 1059601 (BIA

ix

TABLE OF AUTHORITIES—Continued

Page(s)

Matter of Jimenez-Santillano, , 21 1. & N. Dee.

COT CER EA Tie cae aetrsetsrccsrcsecrccecccccvenece

Matter of L-, 11. & N. Dee. 1 (BIA 1940)...............000 7

Matter of Loney, 2004 WL 1167256 (BIA Feb.

ve ne i

TOTS) acvccerssconssssnaieeiaseisiniaanenManninbebnbscansesneoneveeceseotecese

Matter of Martinez, 2004 WL 1167082 (BIA

Fee. 3G, Bay cee eiaaiatesevcescesccencccvcceee

Matter of Meza, 20 I. & N. Dec. 257 (BIA 1991)...........

Matter of Montenegro, 20 I. & N. Dec. 603 (BIA

| 4 a

Matter of Moreno-Escobosa, 25 I. & N. Dec. 114

CELA, SOGG) scccsnsstsis aaa tnaetatsietnscsencsscescccsec0s0000.

Matter of Munoz, No. A35279774, 28 Immig.

Rptr. Bl-] (BIA Aug, 7, ZOGB) -cccccosccccvecccessvecrseveveeeee

Matter of Orrosquieta, 2003 WL 23508672 (BIA

EOC. 1D, Feces rica cccccccccscceccceereecee

Matter of Rangel-Zuazo, No. A90640428 (BIA

Day BE, Fcc etaantstenceccccesconcccccss0.

Matter of Reyes Manzueta, 2003 WL 23269892

CELA. Dee, 1, Biers caeeeiieeeiieateessnvassccceeccoosccevceccese0e

Matter of Rodriguez-Cortes, 20 1. & N. Dec. 587

CELA, SOG) sccscacsensscteeee ene neeatntantitatacsnnccescesccccccesceses

Matter of Rodriguez-Symonds, 2004 WL

880246 (BIA Mar. 9, 2004)......ccccssccsccsssssscssrssersecsesees

X

TABLE OF AUTHORITIES—Continued

Page(s)

Matter of Rowe, No. 37749964 (BIA May 9,

TEI \snnstincnescoehbishsnstdesadeuaaumaanmamniaaiatadiameanmane 12

Matter of S-,6 1. & N. Dee. 392 (BIA 1955)................... 22

Matter of S-Lei, No. A38139424 (BIA May 24,

TOUTED sncsatnesunssexnesounstiniesiabadueapamsssaaiianimmaaaaabiamaiuasemeas 11

Matter of Silva, 16 1. & N. Dec. 26 (BIA 1976)................ 8

Moore v. Ashcroft, 251 F.3d 919 (11th Cir. 2001).......... 16

Ramsey v. INS, 55 F.3d 580 (11th Cir. 1995)................ 27

Rodriguez-Reyes v. INS, 1993 WL 8150 (6th

Cir. Jan. 15, 1993) (unpublished) .................sccesseeseesees 8

Rosario v. INS, 962 F.2d 220 (2d Cir. 1992)................. 25

Spina v. DHS, 470 F.3d 116 (2d Cir. 2006) ..........ec0 16

St. Cyr v. INS, 229 F.3d 406 (2d Cir, 2000).................4. 24

Tapia-Acuna v. INS, 449 U.S. 945 (1980)..............ceccecee 0)

Tapia-Acuna v. INS, 640 F.2d 223 (9th Cir.

TUPITE AD vicciesucsitinneeteanciitnteceanabaannnnasenaalaaiadaiaaiedlimdaisabimsiieai 8

United States v. Ortega-Ascanio, 376 F.3d 879

a als eee ccscenneniiensninsighestntaisiicibialaniiiiciaiiaitasiuasinias 13

United States v. Ubaldo-Figueroa, 364 F.3d

Se Ce GA Se acieaeniestaistndationsinctcnsesnaisatinlabeiinimemesis 13

Valere v. Gonzales, 473 F.3d 757 (7th Cir. 2007) .......... 15

Varela-Blanco v. INS, 18 F.3d 584 (8th Cir.

SITIPTIET ‘sclicssscusshccectesiigceiienciucsanieieal niente senbiadadnateiaidaceaadaieil 8

Variamparambil v. INS, 831 F.2d 1362 (7th

Ce Weed ansiinnithcisicsscareesseiehteteiaeciaiitimiiasaegteaaaiinaiialaiasiinsial 8

x)

TABLE OF AUTHORITIES—Continued

Page(s)

Vissian v. INS, 548 F.2d 325 (10th Cir. 1977)................. le}

Vo v. Gonzales, 482 F.3d 363 (5th Cir. 2007)..............0. 15

Vue v. Gonzales, 496 F.3d 858 (8th Cir. 2007)......... 15,19

Wong Wing v. United States, 163 U.S. 228

SUTIN sscisisasamesiomideasedalbieiaaatsidanideiiieliahantcietiemianualannanioniocien 26

Yeung v. INS, 76 F.3d 337 (11th Cir. 1995) .......ceseeeesees 8

Yick Wo v. Hopkins, 118 U.S. 356 (1886)............sccceeeees 26

STATUTES

Sp RP ta UP TUT ntscntisitienintaeaeeeaieiesenanisacccniiadaisee 25

Immigration and Nationality Act, 8 U.S.C.

a ae 2

i a ities theese hndoedcedamnieebbaninanionaieedeaiia 2, 11, 12

it hl cia cicteasian ca tacit iaceeiiaensalnasidaebieanbieiabaidn 2, 3,6

I ie 2

a eeneesinieeiianias 2, 3, 5, 6, 11

ee eats Oe ETE cen cerns cacieesicinseciesamanitansebssnnsicaaiinainieieaadaiiabisianbaties 2

Immigration Act of 1990, Pub. L. No. 101-649,

ESE RT RO TE a TO 13

Illegal Immigration Reform and Immigrant

Responsibility Act, Pub. L. No. 104-208,

110 Stat. 3009-548 (1996) ...............cccecssscessesseeseed, 10

immigration Act of 1917, Pub. L. No. 64-301,

I ee emcees 7

Fs a: SF ee cnicctiniiceeseinaieesanintinnbennintinnnticubais ssscaianaiaats 5

Xi

TABLE OF AUTHORITIES—Continued

Page(s)

REGULATION

Tek FR! aan 2, 11, 29

LEGISLATIVE AND ADMINISTRATIVE MATERIALS

136 Cong. Rec. S6586 (daily ed. May 18, 1990)..............18

69 Fed. Reg. 57,826 (Sept. 28, 2004)... cseeeeeees 29, 30

OTHER AUTHORITIES

Aleinikoff, Martin, & Motomura, /mmigration:

Process & Policy (3d ed. 1995) ..........cccccceceeseeseeeee 10

6 Gordon, Mailman & Yale-Loehr, /mmigration

LAW EB PVOCEEUTE CHUIB) .cccecocecosecececescceveccocccsscevessceces 30

Judicial Business of the United States Courts:

2008 Annual Report of the Director (2009),

at http://www.uscourts.gov/judbus2008/

appendices/BO3Sep08. pdf...........ceseeseeeees 15, 17, 20, 21

IN THE

Supreme Court of the United States

No. 09-

JOSE ERASMO DE LA ROSA,

Petitioner,

Vv.

ERIC J. HOLDER, JR.,

UNITED STATES ATTORNEY GENERAL,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CiRCUIT

PETITION FOR A WRIT OF CERTIORARI

OPINIONS BELOW

The court of appeals issued its decision and entered

judgment on August 20, 2009. The decision of the court

of appeals is reported at 579 F.3d 1327 and reproduced

at App. la-28a.

The oral decision of the Immigration Judge order-

ing Petitioner deported to the Dominican Republic is

unreported. App. 33a-36a. The decision of the Board of

Immigration Appeals affirming the deportation order is

likewise unreported. App. 29a-31a.

2

JURISDICTION

This Court has jurisdiction under 28 U.S.C.

§ 1254(1).

CONSTITUTIONAL, STATUTORY, AND

REGULATORY PROVISIONS INVOLVED

1. The Fifth Amendment to the United States

Constitution provides in relevant part: “No person

shall be ... deprived of life, liberty, or property, without

due process of law[.]”

2. The following provisions of the Immigration

and Nationality Act, 8 U.S.C. §§ 1101 et seq., are set

forth in relevant part in the Appendix hereto:

a. 8U.S.C. § 1101(a)(43) (App. 55a-56a);

b. 8 U.S.C. § 1182(a) (App. 53a);

e. 8 U.S.C. § 1182(c) (1996) (repealed Apr. 1,

1997) (App. 54a); and

d. 8 U.S.C. § 1227(a) (App. 54a-55a).

38. 8 C.F.R. § 1212.3(f)(5) is reproduced at App.

57a.

INTRODUCTION

This case presents an important question of immi-

gration law on which the courts of appeals have split

three ways. Prior to 2005, the BIA had repeatedly held

that individuals in Petitioner De la Rosa’s position

could seek discretionary relief from removal under

former Section 212(c) of the Immigration and National-

ity Act (INA). In Petitioner’s own case, government

3

counsel conceded that Petitioner appeared to be “eligi-

ble” for relief under Section 212(c). App. 48a.'

In 2005, however, reacting to this Court’s reaffir-

mance of the availability of Section 212(c) relief to cer-

tain aliens (see INS v. St. Cyr, 533 U.S. 289, 294-298

(2001)), the BIA sought to curtail Section 212(c) relief

in a way that disqualified numerous previously eligible

individuals, including Petitioner. Purporting to inter-

pret a 2004 regulation promulgated to implement Sz.

Cyr, the BIA ruled that deportable lawful permanent

residents (LPRs) who had not traveled abroad after

their convictions could only seek discretionary relief if

the government charged them under a deportation

provision in the INA that used similar language to an

exclusion provision. Matter of Blake, 23 I. & N. Dec.

722 (BIA 2005). The BIA has acknowledged that Biake

was a “change in law.” E.g., Matter of Cardona, 2005

WL 3709244 (BIA Dec. 27, 2005), appeal docketed, No.

08-70736 (9th Cir. Feb. 22, 2008).

The practical result was suddenly to foreclose Sec-

tion 212(c) relief for large numbers of LPRs whose at-

' Before April 1, 1997, the INA distinguished between depor-

tation proceedings, applicable to individuals already present in the

United States, and exclusion proceedings, applicable to individuals

seeking to enter the United States. The Illegal Immigration Re-

form and Immigrant Responsibility Act, Pub. L. No. 104-208,

§ 304, 110 Stat. 3009-548, 3009-589 (1996) (IIRIRA), replaced both

with “removal” proceedings and also replaced the term “exclud-

able” with “inadmissible.” Nonetheless, the statutory distinction

between the two categories of individuals remains. Compare 8

U.S.C. § 1182(a) (defining class of inadmissible individuals) with 8

U.S.C. § 1227(a) (defining class of deportable individuals). The

terms “deportation” and “exclusion” and their variants are used

where necessary to the analysis under former Section 212(c).

4

tachment to the United States was so strong that they

had not left the country at all following their conviction.

Meanwhile, under an established BIA practice that

Congress has long accepted, Section 212(c) relief re-

mains available to similarly situated LPRs who did

leave the country following their conviction, reentered

the United States, and were subsequently placed in

removal proceedings. Such individuals have been able

to seek Section 212(c) relief “nunc pro tunc” for nearly

sixty years, as long as their conviction was for an of-

fense that would have rendered them inadmissible upon

reentry.

The Second Circuit has correctly rejected the

BIJA’s new position, because it creates an irrational dis-

tinction inconsistent with equal protection. The Ninth

Circuit, in a sharply divided en bance decision, held that

Section 212(c) does not apply to deportable LPRs at

all—a position that neither the BIA nor the govern-

ment has endorsed. The other circuits to address the

question, including the Eleventh Circuit in this case,

have affirmed the BIA’s new approach.

Although Section 212(c) was repealed in 1996, it

remains of critical importance to numerous longstand-

ing residents of this country, many of whom—like Peti-

tioner De la Rosa—are rehabilitated, have worked hard

for decades, are supported by US. citizen family mem-

bers, have U.S. citizen children, and have made valu-

able contributions to their communities. The BIA

would now deny them the right to apply for relief that

this Court reaffirmed in St. Cyr, based solely on the ar-

bitrary nature of their travel history. The fact that Mr.

De la Rosa did not leave the United States after 1995 is

no reason to deprive him of an opportunity to seek dis-

cretionary relief from removal—relief that he would in

all likelihood receive were he allowed to apply for it.

5

This Court should grant certiorari to review the

judgment of the Eleventh Circuit and bring much-

needed uniformity to this important question.

STATEMENT

A. Factual Background

Petitioner Jose Erasmo De la Rosa, a native of the

Dominican Republic, entered the United States

through New York as an LPR in 1989, when he was

sixteen years old. App. 2a-3a. He resided continuously

in the United States for nearly twenty years. See App.

39a. He is married and is the father of three U.S. citi-

zen children. Mr. De la Rosa owns a home in Orlando,

Florida and has had a consistent work history. See id.

His parents and siblings all live in the Orlando area; his

father and five of his six siblings are U.S. citizens, and

his mother and eldest brother are LPRs. See id.

In 1993, when Mr. De la Rosa was twenty years

old, he had a relationship with a girlfriend who was

fourteen years old. C.A. A.R. 69-70. According to the

charge sheet filled out by police, the two had sexual in-

tercourse twice during an approximately eight month

relationship. Jd. The charge sheet does not assert any

coercion or violence. In 1995, Mr. De la Rosa pleaded

nolo contendere to “committing a lewd act upon a

child.” App. 3a (citing Fla. Stat. § 800.04(3)). Mr. De la

Rosa was sentenced to three years of supervised pro-

bation and served no jail time. C.A. A.R. 67. In 1998,

Mr. De la Rosa applied for naturalization.

On May 17, 2004, the government placed Mr. De la

Rosa in removal proceedings, charging that his 1995

conviction qualified as: (1) an aggravated felony relat-

ing to “sexual abuse of a minor” under Section

237(a(2)(A)lil) of — the INA (8 US.C.

6

§ 1227(a)(2)(A)(iii)); and (2) a crime of domestic violence

or child abuse under Section 237(a)(2)(E\(i) (8 U.S.C.

§ 1227(a)(2)(E)()). App. 3a.

Mr. De la Rosa was released on bond while his re-

moval proceedings were pending. An immigration

judge (IJ) rejected the government’s appeal from the

bond order, finding that Mr. De la Rosa “has lived in

and established positive ties in the Orlando community

for many years ... has the support of his family in the

United States, a good work history, and it appears that

[he] has been rehabilitated.” App. 39a (emphasis

added).

At an initial hearing on February 15, 2005, Mr. De

la Rosa conceded his removability and applied for dis-

cretionary relief from removal under Section 212(c).

App. 43a. Government counsel stated that Mr. De la

Rosa “appears eligible” for Section 212(c) relief. Id.

The IJ scheduled a merits hearing for March 1, 2007.

During the intervening two years, the BIA radically

altered its approach to Section 212(c).

B. Availability Of Discretionary Relief Before

2005

Prior to its repeal in 1996, Section 212(c) provided:

“Aliens lawfully admitted for permanent residence who

temporarily proceeded abroad voluntarily and not un-

der an order of deportation, and who are returning to a

lawful unrelinquished domicile of seven consecutive

years, may be admitted in the discretion of the Attor-

ney General[.]” 8 U.S.C. § 1182(c).

Although the terms of Section 212(c) envision relief

only for excludable LPRs, it has long been applicable to

persons who, like Mr. De la Rosa, are deportable due to

convictions that would also render them excludable.

7

1. Section 212(c)’s predecessor was the Seventh

Proviso to Section 3 of the Immigration Act of 1917,

which permitted a discretionary waiver of exclusion for

“aliens returning after a temporary absence to an unre-

linquished United States domicile of seven consecutive

years.” Pub. L. No. 64-3801, 39 Stat. 874, 878. “Al-

though that provision applied literally only to exclusion

proceedings, and although the deportation provisions of

the statute did not contain a similar provision, the INS

relied on [the Seventh Proviso] to grant relief in depor-

tation proceedings involving aliens who had departed

and returned to this country after the ground for de-

portation arose.” St. Cyr, 533 U.S. at 294 (emphasis

added). The law treated the deportable LPR as if he

had been placed in exclusion proceedings upon reentry,

such that relief was available “nunc pro tunc.” Matter

of L-, 11. & N. Dee. 1, 5-6 (Att’y Gen, 1940).’

2. Section 212 of the Immigration and Nationality

Act of 1952 “replaced and roughly paralleled § 3 of the

1917 Act.” St. Cyr, 5383 U.S. at 294. Its discretionary

relief provision, Section 212(c), closely tracked the Sev-

enth Proviso. The BIA soon ruled that Section 212(c)

permitted relief for LPRs in deportation proceedings

who had traveled abroad after their conviction and be-

fore being placed in deportation proceedings. Matter of

G-A-, 71. & N. Dec. 274, 276 (BIA 1956). The BIA also

made clear that, if Section 212(c) “is exercised to waive

a ground of inadmissibility based upon a criminal con-

? The Attorney General determined that Congress did not in-

tend the Seventh Proviso to operate in a “capricious and whimsi-

cal” fashion to deny an eligible LPR relief merely because the gov-

ernment had failed to place the LPR in exclusion proceedings upon

reentry. L-, 11. & N. Dec. at 5.

8

viction, a deportation proceeding cannot thereafter be

properly instituted based upon the same criminal con-

viction.” Id. at 275.

The BIA initially refused to permit deportable

LPRs who had not traveled abroad after their convic-

tion to seek Section 212(c) relief. Matter of Arias-

Uribe, 13 I. & N. Dec. 696, 697-698 (BIA 1971). In 1976,

the Second Circuit rejected that approach, ruling that

LPRs who had traveled abroad and those who had not

were “in like circumstances, but for irrelevant and for-

tuitous factors,” and therefore equal protection re-

quired that they be “treated in a like manner.” Francis

v. INS, 532 F.2d 268, 273 (2d Cir. 1976). The Second

Circuit noted that the government had proffered no

reason to distinguish between LPRs based on a “failure

to travel abroad following ... conviction” and concluded

that “[rJeason and fairness would suggest that an alien

whose ties with this country are so strong that he has

never departed after his initial entry should receive at

least as much consideration as an individual who may

leave and return[.]” Jd. The BIA and all of the courts

of appeals followed Francis.’

* See St. Cyr, 583 U.S. at 295; Matter of Silva, 16 I. & N. Dec.

26, 30 (BIA 1976); see also Anwo v. INS, 607 F.2d 435, 436 n.3

(D.C. Cir. 1979) (per curiam); Lozada v. INS, 857 F.2d 10, 11 n.1

(Ist Cir. 1988); Katsis v. INS, 997 F.2d 1067, 1070 (8d Cir. 1993);

Chiravacharadhikul v. INS, 645 F.2d 248, 248 n.1 (4th Cir. 1981);

Carrasco-Favela vy. INS, 563 F.2d 1220, 1221 n.8 (5th Cir. 1977)

(per curiam); Rodriguez-Reyes v. INS, 1993 WL 8150, at *2 (6th

Cir. Jan. 15, 1993) (unpublished); Variamparambil v. INS, 831

F.2d 1862, 1864 n.1 (7th Cir. 1987); Varela-Blanco v. INS, 18 F.3d

584, 586 (8th Cir. 1994) (per curiam); Tapia-Acuna v. INS, 640

F 2d 223, 224-225 (9th Cir. 1981), overruled, Abebe v. Mukasey, 554

F.3d 1208 (9th Cir. 2009) (en banc) (per curiam); Vissian v. INS,

548 F.2d 325, 328 n.2 & n.3 (10th Cir. 1977); Yeung v. INS, 76 F.3d

9

Consequently, for nearly twenty years before Mr.

De la Rosa pled guilty, Section 212(c) relief was avail-

able to deportable LPRs who could have sought relief

nunc pro tunc had they left the United States and re-

turned, regardless of whether they had actually done

so. See, e.g., Cabasug v. INS, 847 F.2d 1321, 1327 (9th

Cir. 1988) (Wallace, J., concurring) (explaining that it

would violate equal protection “to distinguish between

aliens who had committed the same crime on the basis

of whether they traveled abroad recently” (emphasis

added)).

Although Francis made Section 212(c) relief avail-

able to many deportable LPRs, it did not apply to

LPRs who were deportable for convictions that did not

make them inadmissible. Persons in that situation

would not have been eligible for Section 212(c) relief

mune pro tune even if they had traveled abroad, and

there was accordingly no irrational distinction in deny-

ing relief in such cases. See, ¢.g., Matter of Jimenez-

Santillano, 21 1. & N. Dec. 567, 574-575 (BIA 1996)

(stating that Section 212(c) relief was not available “to

an alien in deportation proceedings when that same

alien would not have occasion to seek such relief were

he in exclusion proceedings instead”).

That limitation came to be known as the “statutory

counterpart” rule: Section 212(c) relief was available in

removal proceedings if the LPR was deportable for a

conviction that fell under a “counterpart” exclusion

337, 340 n.4 (11th Cir. 1995); accord Tapia-Acuna v. INS, 449 U.S.

945 (1980) (vacating and remanding in light of Solicitor General’s

change of position); Abebe, 554 F.3d at 1214-1215 (Thomas, J., dis-

senting) (noting government’s concession in Tapia-Acuna that

Francis was correct).

10

provision. Because most crimes that are grounds for

deportation are also grounds for exclusion, the statu-

tory counterpart rule was satisfied by all but a limited

group of LPRs—generally, only those deportable for

certain firearms convictions‘ and entry without inspec-

tion.” The Attorney General stated as much in 1991,

when he identified only “two grounds for deportation

[that] have no analogue in the grounds for exclusion,”

namely entry without inspection and firearms offenses.

Matter of Hernandez-Casillas, 20 1. & N. Dec. 262, 282

n.4 (Att’y Gen. 1991); see also Aleinikoff, Martin, & Mo-

tomura, Immigration: Process & Policy 703-704 (3d ed.

1995) (“The two most significant deportation grounds

without comparable exclusion grounds are entry with-

out inspection and firearms violations.”).

3. In 1996, Congress repealed Section 212(c). Ille-

gal Immigration Reform and Immigrant Responsibility

Act, Pub. L. No. 104-208, § 304(b), 110 Stat. 3009-548,

3009-597 (1996) (IIRIRA). In 2001, this Court held that

the repeal was prospective only and that LPRs who

were deportable on account of convictions obtained

through guilty pleas prior to April 1, 1997 (IIRIRA’s

* See, e.g., Drax v. Reno, 338 F.3d 98, 101, 108-109 (2d Cir.

2003); Cato v. INS, 84 F.3d 597, 600 (2d Cir. 1996); Gjonaj v. INS,

47 F.3d 824, 825, 827 (6th Cir. 1995); Campos v. INS, 961 F.2d 309,

311-314 (1st Cir. 1992); Matter of Esposito, 21 I. & N. Dec. 1, 9-10

(BIA 1995); Matter of Montenegro, 20 1. & N. Dec. 603, 605-606

(BIA 1992); Matter of Granados, 16 I. & N. Dec. 726, 728-729 (BIA

1979).

* See, ¢.g., Farquharson v. U.S. Attorney General, 246 F.3d

1317, 1825 (11th Cir. 2001); Leal-Rodriguez v. INS, 990 F.2d 939,

948, 952 (7th Cir, 1993); Matter of Hernandez-Casillas, 20 I. & N.

Dec. 262, 281, 286-287 (Att’y Gen. 1991).

1]

effective date) could still seek Section 212(c) relief. See

St. Cyr, 5383 U.S. at 326.

In 2004, the Department of Justice (DOJ) promul-

gated a regulation implementing St. Cyr and setting

out the criteria for Section 212(c) relief. The regulation

included a statutory counterpart requirement. 8 C.F.R.

§ 1212.3(f)(5) (“An application for relief under former

section 212(c) of the Act shall be denied if ... [t]he alien

is deportable ... on a ground which does not have a

statutory counterpart in section 212 of the Act.”).

4. Up to and including 2004, the BIA repeatedly

held that persons deportable for certain “aggravated

felonies” (see 8 U.S.C. § 1227(a)(2)(A)(iii)) satisfied the

“statutory counterpart” requirement, generally be-

cause the crime of conviction was also a “crime involv-

ing moral turpitude” that would render the LPR inad-

missible under Section 212(a)(2)(A)(i). Although the

provisions governing inadmissibility did not list aggra-

vated felonies as a basis for exclusion, the BIA held

that a Section 212(c) waiver was “not unavailable to an

alien convicted of an aggravated felony simply because

there is no ground of exclusion which recites the words,

‘convicted of an aggravated felony.’ ” Matter of Meza,

20 I. & N. Dec. 257, 259 (BIA 1991). The BIA accord-

ingly ruled that LPRs could seek waivers of deporta-

tion for aggravated felony convictions, including

“crimes of violence” under 8 U.S.C. § 1101(a)(43)(F)°

° See, e.g., Matter of Rodriguez-Cortes, 20 1. & N. Dec. 587,

590-591 (BIA 1992) (noting that an LPR convicted of attempted

murder “is not barred from applying for section 212(c) relief”);

Matter of A-A-, 20 1. & N. Dec. 492, 500-501 (BIA 1992) (concluding

that an LPR convicted of murder was not disqualified from seek-

ing Section 212(c) relief on that basis); Matter of S-Lei, No.

A38139424 (BIA May 27, 2004) (App. 79a-80a) (affirming grant of

12

and “sexual abuse of a minor” under § 1101(a)(48)(A).’

The courts of appeals likewise noted the availability of

Section 212(c) relief to persons convicted of such

crimes. See e.g., Hem v. Maurer, 458 F.3d 1185, 1187-

1189 (10th Cir. 2006) (crime of violence); De Araujo v.

Section 212(c) relief to an LPR convicted of attempted robbery, a

crime of violence); Matter of Reyes Manzueta, 2003 WL 23269892

(BIA Dec. 1, 2003) (affirming a Section 212(c) waiver of a convic-

tion for voluntary manslaughter, a crime of violence); see also Mat-

ter of Caro-Lozano, 2004 WI 1298661 (BIA Apr. 22, 2004) (reach

ing the merits of a Section 212(c) application in a crime of violence

case); Matter of Hussein, 2004 WL 1069601 (BIA Mar. 15, 2004)

(remanding for consideration of Section 212(c) relief where convic-

tion was a crime of violence); Matter of Martinez, 20048 WL

1167082 (BIA Feb. 18, 2004) (“(I]}t does appear that Section 212(c)

could waive the burglary offense[.)"); Matter of Loney, 2004 WL

1167256 (BIA Feb, 10, 2004) (an LPR convicted of a crime of vio-

lence was “not precluded” from seeking Section 212(c) relief where

the crime was also a crime involving moral] turpitude); Matter of

Orrosquieta, 2008 WL 23508672 (BIA Dec. 19, 2003) (recognizing

that a petitioner deportable for extortion, a crime of violence,

would be “entitled” to seek Section 212(c) relief); Matter of Munoz,

No. A35279774, 28 Immig. Rptr. Bl-1 (BIA Aug. 7, 2003) (App.

59a-69a) (remanding for consideration of Section 212(c) relief

where the crime of violence was also a crime involving mora] turpi

tude); Matter of Rowe, No. 37749964 (BIA May 9, 2008) (App. 75a-

78a) (rejecting government’s argument that a crime of violence

was not waivable).

” See, e.g., Hussein, 2004 WL 1059601 (an LPR convicted of

indecency with a child was eligible for Section 212(c) relief because

he could have been excluded due to a crime involving mora] turpi-

tude); Matter of Rodriguez-Symonds, 2004 WL 880246 (BIA Mar.

9, 2004) (remanding for consideration of whether an LPR con-

victed of a lewd act upon child was eligible for Section 212(c) relief

because the conviction was also a crime involving moral turpitude);

Matter of Ashley, 2003 WL 23521830 (BIA Nov. 4, 2003) (noting

apparent Section 212(c) eligibility for an LPR convicted of a sexual

offense against a child).

13

Gonzales, 457 F.3d 146, 154-155 (1st Cir. 2006) (crime of

violence); United States v. Ortega-Ascanio, 376 F.3d

879, 886-887 (9th Cir. 2004) (sexual battery); United

States v. Ubaldo-Figueroa, 364 F.3d 1042, 1051 (9th

Cir. 2004) (burglary). This Court also recognized the

importance of Section 212(c) in aggravated felony

“crime of violence” cases. St. Cyr, 533 U.S. at 295-296

& n.4.

C. The BIA Changes Course In 2005

On April 6, 2005—fewer than two months after the

government conceded that Mr. De la Rosa appeared

eligible for Section 212(c) relief—the BIA, purporting

to interpret the 2004 DOJ regulation, abruptly changed

the rules. In Blake, the BIA decided that an LPR who

was deportable for a “sexual abuse of a minor” aggra-

vated felony was categorically ineligible for Section

212(c) relief, regardless of whether the crime would

provide a basis for inadmissibility as a crime involving

moral turpitude. 23 I. & N. Dec. at 727-728. Without

addressing its numerous decisions upholding discre

tionary waivers in similar circumstances, the BIA held

that the “statutory counterpart” requirement could

only be satisfied if the LPR was deportable under a

* Although Congress imposed limits on Section 212(c) relief

prior to its 1996 repeal, Congress never sought to limit it to ex-

cludable LPRs only. See Immigration Act of 1990, Pub. L. No. 101-

649, § 511, 104 Stat. 4978, 5052 (providing that LPRs convicted of

aggravated felonies could seek Section 212(c) relief only if they did

not serve a term of imprisonment of five years or more); 136 Cong.

Rec. 56586, S6604 (daily ed. May 18, 1990) (statement of Sen. Dole)

(“Section 212(c) provides relief from exclusion, and by court deci-

sion from deportation[.} This discretionary relief is obtained by

numerous excludable and deportable aliens[.}’’).

14

subsection of INA § 237 that was phrased similarly to

an inadmissibility subsection in INA § 212(a). Jd. at

728. Purporting to rest its conclusion on decisions of

the Second Circuit, the BIA barred the LPR in Blake

from applying for relief because the words “sexual

abuse of a minor” do not appear in any inadmissibility

provision. Jd. at 728-729. The BIA did not consider

whether Blake’s conviction would render him exclud-

able and therefore eligible to seek Section 212(c) relief

nune pro tunc had he left the country and returned.

Shortly thereafter, the BIA applied the same reasoning

to “crime of violence” aggravated felonies. Matter of

Brieva-Perez, 23 1. & N. Dec. 766 (BLA 2005),

The BIA acknowledged that Blake was a retroac-

tive change in its Section 212(c) jurisprudence—a fact

that was confirmed by the BIA’s later reversal of deci-

sions to grant relief under the BIA’s prior (correct) ap-

proach to Section 212(c). In one case, the BIA itself had

affirmed an IJ’s decision granting relief to an LPR con-

victed of a “sexual abuse of a minor” crime, but then

vacated its decision on the government’s motion, refer-

ring to Blake as “a change in law that appears to pre-

clude a grant of 212(c) relief.” Cardona, 2005 WL

3709244; see also Matter of Gomez-Perez, 2006 WL

901334 (BIA Mar. 1, 2006) (vacating IJ’s decision to

grant Section 212(c) waiver because LPR is “no longer

eligible for relief’), appeal docketed, No. 07-72569 (9th

Cir. June 27, 2007); Matter of Rangel-Zuazo, No.

A90640428 (BIA May 25, 2005) (App. 71la-73a) (revers-

ing IJ’s decision to grant relief because “intervening

precedent renders the respondent statutorily ineligible

for section 212(c) relief’), appeal docketed, No. 07-72316

(9th Cir. June 11, 2007); Matter of Banuelos-Delena,

2006 WL 901335 (BIA Mar. 2, 2006) (reversing IJ’s de-

15

cision to grant Section 212(c) waiver based on “inter-

vening Board precedent”).

D. The Circuit Split

The courts of appeals have divided three ways in

response to Blake. Although the BIA claimed to base

Blake on Second Circuit precedent, that court reversed

the BIA in Blake itself. Blake v. Carbone, 489 F.3d 88,

103 (2d Cir. 2007). In 2008, the Second Circuit heard

28% of the total number of appeals from the BIA. See

Judicial Business of the United States Courts: 2008

Annual Report of the Director, Table B-3 (2009), at

http://www.uscourts.gov/judbus2008/appendices/B03Se

p08.pdf (2008 Annual Report). Eight other courts of

appeals, which together heard 25% of all appeals from

the BIA (id.), have affirmed the Blake rule.” And the

Ninth Circuit, which heard 45% of the appeals from the

BIA (id.), recently discarded Francis altogether, ruling

that Section 212(c) relief is unavailable to deportable

LPRs—a position neither the government nor the BIA

advocated. Abebe v. Mukasey, 554 F.3d 1203, 1207 (9th

Cir.) (en banc) (per curiam), reh’g and full court reh’g

en banc denied, 577 F.3d 1118 (9th Cir. 2009)."°

> Kim v. Gonzales, 468 F.3d 58, 63 (1st Cir. 2006); Caroleo v.

Gonzales, 476 F.3d 158, 167-168 (8d Cir. 2007); Vo v. Gonzales, 482

F.3d 363, 368-369 (5th Cir. 2007); Koussan v. Holder, 556 F.3d 403,

412-414 (6th Cir. 2009), reh’g and reh’g en banc denied (May 29,

2009); Valere v. Gonzales, 473 F.3d 757, 762 (7th Cir. 2007); Vue v.

Gonzales, 496 F.3d 858, 862-863 (8th Cir. 2007); Falaniko v. Mu-

kasey, 272 Fed. Appx. 742, 746-748 (10th Cir. 2008) (unpublished);

App. 25a-28a.

'° The Ninth Circuit in Abebe suggested that LPRs could still

seek relief under the 2004 regulation (see 554 F.3d at 1207), and

16

E. Proceedings Below

In 2007, at the merits hearing on Mr. De la Rosa’s

Section 212(c) application, the government argued that

Mr. De la Rosa was categorically ineligible for Section

212(c) relief based on the BIA’s Blake decision. App.

44a. The IJ agreed and ordered Petitioner removed.

App. 36a. The BIA affirmed. App. 31a.

Mr. De la Rosa sought review in the Eleventh Cir-

cuit and moved to stay his order of removal; the gov-

ernment cross-moved for summary affirmance. The

court of appeals found that no “binding precedent” di-

rectly resolved the case and denied the government’s

motion for summary affirmance, but it also refused to

stay Mr. De la Rosa’s removal order. App. 41la-42a.

The government removed Mr. De la Rosa to the Do-

minican Republic on or about October 16, 2008.”'

The court of appeals summarized Mr. De la Rosa’s

arguments on the merits as follows: (1) the BIA’s deci-

sion violated his due process right to equal protection of

the laws; and (2) the BIA’s decision in Blake departed

from prior agency and federal court precedent, which

permitted LPRs convicted of aggravated felonies that

are crimes involving moral turpitude to apply for Sec-

tion 212(c) relief. App. 19a-22a. The government did

not deny that Mr. De la Rosa’s conviction was for a

crime involving moral turpitude that would provide a

basis for inadmissibility. Resp. C.A. Br. 12.

the BIA has agreed (Matter of Moreno-Escobosa, 24 1. & N. Dee.

114, 116-117 (BIA 2009)).

'' Mr. De la Rosa’s removal does not moot his Section 212(c)

request. See, e.g., Spina v. DHS, 470 F.3d 116, 124-125 (2d Cir.

2006); Moore v. Ashcroft, 251 F.3d 919, 922 (11th Cir. 2001).

17

The Eleventh Circuit denied Mr. De la Rosa’s peti-

tion for review. The court recognized that Blake was a

“watershed moment in § 212(c) jurisprudence.” App.

12a. Nonetheless, the court stated that Blake “did not

represent a departure from prior BIA practice” (App.

19a) and concluded that “De la Rosa’s implicit equal

protection argument fails” (App. 28a). The panel ac-

knowledged the “three-way circuit split” on the issue.

App. 17a.

REASONS FOR GRANTING THE PETITION

Section 212(c) continues to be an important source

of relief for numerous legal permanent residents. See

St. Cyr, 583 U.S. at 296 n.6. In the four and one-half

years since Blake, the issue has arisen in over 120 cases

and produced published opinions in almost every cir-

cuit. App. 45a-52a (listing representative circuit and

BIA cases in which Blake or its progeny have been ad-

dressed). Ten circuits, which overall hear 98% of the

petitions for review from the BIA (see 2008 Annual Re-

port at Table B-3) are irreconcilably split three ways on

the proper application of Section 212(c) to LPRs de-

portable as a result of an aggravated felony conviction.

This Court’s guidance is urgently needed to restore a

uniform application of Section 212(c).

The BIA’s novel and unprecedented reinterpreta-

tion of the statutory counterpart test in Blake—

ostensibly based on a 2004 regulation designed to im-

plement this Court’s ruling in St. Cyr—was in fact an

evident effort to undermine St. Cyr and accomplish

through agency and judicial decision what Congress

had not done through legislation. The BIA’s new ap-

proach, ratified by the Eleventh Circuit, creates an ar-

bitrary and capricious distinction that is inconsistent

with the settled interpretation of Section 212(c) and

18

resurrects the unconstitutional practice of discriminat-

ing between similarly situated LPRs on the irrelevant

basis of travel history. It also improperly gives retro-

active effect to an (erroneous) interpretation of the

2004 regulation. The Court should grant certiorari and

reverse the judgment of the Eleventh Circuit.

I. THE THREE-WAY CIRCUIT SPLIT ON THE APPLICATION

OF SECTION 212(c) TO DEPORTABLE LEGAL PERMA.

NENT RESIDENTS IS DEEPLY ENTRENCHED AND THE

ISSUE HAS FULLY PERCOLATED

Since the BIA’s 2005 decision in Blake, ten courts

of appeals have considered whether and under what

circumstances an LPR who is deportable on the basis of

an “aggravated felony” conviction is eligible for Section

212(c) relief. In answering this question, the courts of

appeals have split three ways. App. 17a (acknowledg-

ing the “three-way circuit split”).

First, the Second Circuit has recognized that the

BIA’s decision in Blake revived the equal protection

problem—first identified in Francis—of giving worse

treatment to LPRs who had not departed the United

States. Blake v. Carbone, 489 F.3d at 102-104. To cure

the BIA’s constitutional violation, the Second Circuit

restored the law to its pre-2005 posture: Section 212(c)

relief is available if the “particular offense” that ren-

dered the LPR deportable “would render a similarly

situated [LPR] excludable.” Jd. at 103. As the Second

Circuit observed, “what makes one alien similarly situ-

ated to another is his or her act or offense, which is cap-

tured in the INA as either a ground of deportation or

exclusion.” Jd. at 104 (explaining that equal protection

principles “require[] [the court] to examine the circum-

stances of the deportable alien, rather than the lan-

guage Congress used to classify his or her status”).

19

The Second Circuit left to the BIA in the first instance

the task of determining whether a particular aggra-

vated felony would render an LPR excludable. /d.'?

Second, eight other courts of appeals, including the

Eleventh Circuit below, affirmed the BIA’s formulaic

approach in Blake. Instead of determining whether the

underlying offense would also make the deportable

LPR inadmissible, those circuits compare only the

words used in the particular deportation provision

charged by the government to the words used in the

inadmissibility provisions of Section 212(a). See, e.g.,

Caroleo v. Gonzales, 476 F.3d 158, 164-165 (3d Cir.

2007). Under this “rather mechanical reading of the

law” (Kim v. Gonzales, 468 F.3d 58, 63 (1st Cir. 2006)),

Section 212(c) relief is only available if one of the inad-

missibility provisions uses language that is substan-

tially identical to the deportation provision charged.

E.g., App. 24a. Because the inadmissibility provisions

do not use the words “sexual abuse of a minor” or

“erime of violence,” LPRs who are charged as deport-

able under those provisions are held categorically ineli-

gible for a waiver of removal, even if the underlying

criminal conviction would render them inadmissible for

having committed a “crime involving moral turpitude.”

See, e.g., Caroleo, 476 F.3d at 164-165.

However, if LPRs with such convictions leave the

country, they can seek Section 212(c) relief—either

“ Judges in other circuits have praised the Second Circuit’s

reasoning. See, e.g., Abebe, 554 F.3d at 1217-1219 (Thomas, J.,

joined by Pregerson, J., dissenting); Vwe, 496 F.3d at 863 (Bye, J.,

concurring); Abebe v. Gonzales, 493 F.3d 1092, 1168-1109 (9th Cir.

2007) (Berzon, J., concurring), vacated, Abebe v. Mukasey, 514

F.3d 909 (9th Cir. 2008).

20

upon return if they are charged as inadmissible or nunc

pro tune if they are charged as deportable—as long as

their conviction is for a crime that would make them

inadmissible, such as a crime involving moral turpitude.

See G-A-, 7 Il. & N. Dec. at 276; see also Lovan v.

Holder, 574 F.3d 990, 996 & n.5 (8th Cir. 2009) (noting

that under the nunc pro tunc analysis, “the focus is on

whether the [LPR] when he returned from a trip

abroad was in fact excludable for any reason, including

prior conviction of a crime involving moral turpi-

tude”).'"

Third, the Ninth Circuit (in a fractured en banc de-

cision) recently overruled decades of agency decisions

and its own precedent to hold that Section 212(c) does

not apply to deportable LPRs at all. Abebe, 554 F.3d at

1207. Under that view, Section 212(c) relief should not

even be available as a nunc pro tunc correction for de-

portable LPRs who traveled abroad between their con-

victions and the initiation of deportation proceedings.

As the concurring and dissenting opinions observed,

the Ninth Circuit majority failed to observe stare de-

cisis, ignored consistent agency practice applying Sec-

tion 212(c) relief to deportable LPRs, and disregarded

Congress’s acceptance of that settled construction of

the statute. See id. at 1209-1211 (Clifton, J., concur-

ring); id. at 1213-1217 (Thomas, J., dissenting). Seven

judges dissented from the Ninth Circuit’s denial of

- Although eight circuits have adopted Blake, their number

is misleading in terms of the significance of the present three-way

circuit split. In 2008, those circuits heard only 25% of the total

number of petitions for review from the BIA, whereas the Second

Circuit alone heard 28%. See 2008 Annual Report at Table B-3.

21

Abebe’s request for full court rehearing en banc. Abebe

v. Holder, 577 F.3d 1113 (9th Cir. 2009).'*

II. THE ELEVENTH CIRCUIT AND THE BIA INCORRECTLY

AND UNCONSTITUTIONALLY RESTRICTED THE SCOPE

OF SECTION 212(c) RELIEF

The Eleventh Circuit was correct in one respect:

the BIA’s Blake decision “proved to be a watershed

moment in [Section] 212(c) jurisprudence.” App. 12a.

Before 2005, the BIA consistently held that an LPR

deportable on the basis of an aggravated felony convic-

tion for “sexual abuse of a minor” or a “crime of vio-

lence” was eligible for Section 212(c) relief from re-

moval if the underlying conviction would have been a

basis for inadmissibility (e.g., as a “crime involving

moral turpitude” under INA § 212(a)(2)(A)(i)). See su-

pra nn.6-7.

In Blake, however, the BIA sought to change the

law retroactively by eliminating Section 212(c) relief for

LPRs who were charged under a deportation provision

that used language that was not similar to the language

of an inadmissibility provision. By doing so, the BIA

(and the Eleventh Circuit below) categorically fore-

closed large categories of previously eligible individuals

from seeking Section 212(c) relief, even though relief is

available nunc pro tunc to otherwise similarly situated

persons who have left the country and reentered before

'* The Fourth and D.C. Circuits have yet to address the ques-

tion presented, but those courts hear only a tiny fraction of the

total number of petitions for review from the BIA. Between Sep-

tember 30, 2005 and September 29, 2008, the Fourth Circuit heard

less than 2.7% of all BIA appeals, and the D.C. Circuit heard none

at all. See 2008 Annual Report at Table B-3.

22

the removal proceeding commenced. The decision be-

low should be reversed.

1. The BIA’s Blake decision creates an irrational

distinction between LPRs who have traveled abroad

and LPRs who have not, contrary to Section 212(c) as it

has consistently been interpreted and contrary to equal

protection.

Congress has long accepted the BIA’s application

of Section 212(c) to deportable LPRs who traveled

abroad after their convictions and before the initiation

of proceedings. When Congress enacted Section 212(c)

in 1952, the BIA had interpreted its predecessor—the

Seventh Proviso to Section 3 of the Immigration Act of

1917—to provide relief to an LPR in deportation pro-

ceedings who had previously traveled abroad, just as it

would have applied if he had been placed in exclusion

proceedings at the border. L-, 1 I. & N. Dec. at 5-6; see

also St. Cyr, 583 U.S. at 294 (noting that the INS “re-

lied on [the Seventh Proviso] to grant relief 1m deporta-

tion proceedings involving aliens who had departed and

returned to this country after the ground for deporta-

tion arose” (emphasis added)).

Congress is presumed to have been aware of the

BIA’s interpretation of the discretionary waiver as ap-

plicable to deportable LPRs. Lorillard v. Pons, 434

U.S. 575, 580-581 (1978). As the BIA explained shortly

after Section 212(c)’s enactment, Congress conducted a

“comprehensive study” of the Seventh Proviso before

enacting Section 212, “[yJet there is nothing to indicate

that Congress wished to cut off this unique relief in de-

portation proceedings.” Matter of S-, 6 I. & N. Dec.

392, 396 (BIA 1955). Congress thus “effectively rati-

fied” the BIA’s practice of granting discretionary relief

from deportation as well as from exclusion. F'DA v.

23

Brown & Williamson Tobacco Corp., 529 U.S. 120, 144

(2000); see also Boeing Co. v. United States, 537 U.S.

437, 456-457 (2003) (Congress’s failure to override a

seven-year-old regulation when amending relevant

statutory provisions “serves as persuasive evidence

that Congress regarded that regulation as a correct

implementation of its intent”).'°

Following the Second Circuit’s 1976 decision in

Francis, the BIA and all of the courts of appeals agreed

that deportable LPRs who had mot traveled abroad

were constitutionally entitled to the same treatment

under Section 212(c) as LPRs who had. Francis, 532

F.2d at 278 (ruling that LPRs who had not traveled

abroad were “in like circumstances, but for irrelevant

and fortuitous factors,” to LPRs who had and therefore

should be “treated in a like manner”); see supra n.3.

The BIA implemented Francis using the “statutory

counterpart” test, which meant that Section 212(c) re-

lief was available to LPRs who were deportable for a

conviction that fell under a “counterpart” exclusion

provision.

Section 212(c) relief was widely available to LPRs

charged with being deportable on the basis of aggra-

vated felony convictions, including convictions for

crimes involving “sexual abuse of a minor,” because

most such convictions are also grounds for exclusion—

'S The Ninth Circuit, which recently held Section 212(c) inap-

plicable to deportable LPRs (Abebe, 554 F.3d at 1207), ignored

congressional acquiescence in the BIA’s interpretation of Section

212(c) as applicable to deportable LPRs. Indeed, under the Ninth

Circuit’s rationale, Mr. St. Cyr would have been ineligible for Sec-

tion 212(c) relief because he was charged as deportable. 533 U.S.

at 293.

24

“crimes involving moral turpitude” under INA

§ 212(a)(2)(A)(i). The BIA and numerous court of ap-

peals decisions recognized the proper application of

Section 212(c) relief in such aggravated felony cases.

See supra pp. 11-18, nn.6-7. Although Congress

amended the INA after Francis, it has not cast doubt

on that consistent interpretation of Section 212(c). See

supra n.8.

After the 1996 repeal of Section 212(c), the BIA at-

tempted to apply the repeal retroactively to LPRs who

had pled guilty before the repeal was enacted. EF.g., St.

Cyr v. INS, 229 F.3d 406, 409 (2d Cir. 2000) (observing

that the BIA denied St. Cyr’s application for Section

212(c) relief “specifically” because IIRIRA repealed

that provision), affd, 5383 U.S. 289 (2001). After this

Court reversed that practice in St. Cyr, the BIA tried

another tack, claiming for the first time that eligibility

“turns on whether Congress has employed similar lan-

guage to describe substantially equivalent categories of

offenses.” Blake, 23 I. & N. Dec. at 728 (emphasis

added). While acknowledging that “there may be con-

siderable overlap” between deportation provisions like

“sexual abuse of a minor” offenses and inadmissibility

provisions like “crime[] involving moral turpitude,” the

BIA claimed that the “two categories of offenses [were]

not statutory counterparts.” Id.

The BIA has admitted that this was “a change in

law.” Cardona, 2005 WL 3709244. It was also contrary

to the settled interpretation of Section 212(c) acknow!-

edged in the BIA’s own decisions. The BIA never at-

tempted to explain why differences in the wording of

deportation and inadmissibility provisions—most of

which were independently amended at different

times—should control whether an LPR is eligible for

Section 212(c) relief. See Blake v. Carbone, 489 F.3d at

25

102 (“Congress did not employ similar terms when

writing the grounds of exclusion and grounds of depor-

tation because it had no need to, making it an exercise

in futility to search for similar language to gauge

whether equal protection is being afforded.”). Indeed,

the BIA held decades ago that a waiver of exclusion

based on a particular criminal conviction also waived

any basis for deportation based on “the same criminal

conviction,” without regard to the language of the

statutory subsections. G-A-, 71. & N. Dec. at 275; see

Abebe, 493 F.3d at 1109 (Berzon, J., concurring).

The BIA’s new approach, like that of the Eleventh

Circuit below, draws an arbitrary and irrational line

based on recent travel abroad. LPRs who pled guilty

to a pre-1997 offense that qualifies as both a “sexual

abuse of a minor” aggravated felony and a “crime in-

volving mora! turpitude” may still seek Section 212(c)

relief if they depart the country and return, by invok-

ing the nunc pro tunc procedure. But under Blake,

identically-situated LPRs who did not depart the coun-

try are categorically ineligible for relief. Making Sec-

tion 212(c) relief turn on whether a person has or has

not left the country, in the face of consistent and con-

trary judicial and agency decisions before 2005, is arbi-

trary and capricious. See 5 U.S.C. § 706(2)(A). That is

particularly the case given that Section 212(c) is de-

signed to favor those LPRs who have strong ties to the

United States. See Francis, 5382 F.2d at 278; see also

Rosario v. INS, 962 F.2d 220, 225 (2d Cir. 1992) (noting

the government’s position that Section 212(c)’s purpose

is to provide relief to “aliens who have developed such

strong ties to this country that exclusion or deportation

26

would be unjustly harsh” (internal quotation marks

omitted)).'°

The BIA’s new approach is also inconsistent with

the guarantee of equal protection in the Due Process

Clause of the Fifth Amendment, which protects LPRs

as well as citizens. Mathews v. Diaz, 426 U.S. 67, 77-78

(1976); Wong Wing v. United States, 163 U.S. 228, 238

(1896). The BIA may not make discretionary waivers

of deportation available only to a subcategory of simi-

larly situated deportable LPRs on the basis of an irra-

tional classification, such as recent travel abroad. See

City of Cleburne v. Cleburne Living Ctr., 473 U.S. 482,

440 (1985) (“The general rule is that legislation ... will

be sustained if the classification drawn by the statute is

rationally related to a legitimate state interest.”); Yick

Wo v. Hopkins, 118 U.S. 356, 373-374 (1886) (“Though

the law itself be fair on its face ... if it is applied and

administered by public authority ... so as practically to

make unjust and illegal discriminations between per-

sons in similar circumstances, material to their rights,

'© Blake is also arbitrary and capricious in that it gives the

government an exclusive right to determine whether Section

212(c) relief will be available in many cases. Because a criminal

conviction can often render an individual deportable under more

than one provision—e.g., assault may be both a “crime involving

mora) turpitude” (waivable under Blake) and a “crime of violence”

(not waivable under Blake and Brieva-Perez)—the B1A’s new rule

places Section 212(c) eligibility entirely under the government's

control. In applying Blake, courts of appeals have conceded that

certain LPRs would be eligible for a Section 212(c) waiver if the

government had chosen to assert a criminal conviction as a crime

involving moral turpitude rather than an aggravated felony. See

Dalombo Fontes v. Gonzales, 483 F.3d 115, 122 (1st Cir. 2007); see

also Kim, 468 F.3d at 62-63.

27

the denial of equal justice is still within the prohibition

of the constitution.”).

Mr. De la Rosa’s conviction is indisputably for a

crime involving moral turpitude (see Ramsey v. INS, 55

F.3d 580, 582 (11th Cir. 1995)), which is a ground of in-

admissibility that would have allowed him to seek Sec-

tion 212(c) relief nunc pro tunc had he left the country.

Neither the government nor the decision below sug-

gested otherwise. Yet the Eleventh Circuit offered no

rational] reason for affording worse treatment to an

LPR like Mr. De la Rosa who never left the country af-

ter his arrival than to LPRs who did. See Mathews, 426

U.S. at 83 (noting that it is “of greatest importance” in

the equal protection analysis that “those who qualify

under the test Congress has chosen miy reasonably be

presumed to have a greater affinity with the United

States than those who do not”).

The Second Circuit’s approach, by contrast, is faith-

ful to the BIA’s longstanding and accepted interpreta-

tion of Section 212(c), and it avoids the irrational dis-

tinction inherent in the Eleventh Circuit’s decision. As

the Second Circuit held, an LPR should be eligible to

apply for Section 212(c) relief “if his or her particular

aggravated felony offense could form the basis of exclu-

sion under § 212(a) as a crime of moral turpitude.”

Blake v. Carbone, 489 F.3d at 104.

That approach, which the BIA and the courts fol-

lowed for nearly thirty years under F'rancis, does not

create any distinction based on departure from the

United States. Rather, it simply continues the long-

accepted rule that an LPR who would be entitled to

seek relief nunc pro tunc from deportation, had he de-

parted, remains eligible if he did not depart. See, e.g.,

Matter of Fuentes-Campos, 21 I. & N. Dec. 905, 913

28

(BIA 1997) (“In Francis ... [the Second Circuit] con-

cluded that the Board violated the constitutional re-

quirement of equal protection when if. permitted one

alien in deportation proceedings to apply for a waiver

but denied permission to another alien in deportation

proceedings, based solely on the fact that one had de-

parted and returned prior to the deportation proceed-

ings while the other had not.”)."’

The Second Circuit accordingly directed the BIA to

determine whether the LPR’s conviction was a “crime

involving moral] turpitude” that would have been waiv-

able nunc pro tunc had he departed the United States

and returned, and, if it was, to consider the Section

212(c) application on the merits. 489 F.3d at 105. The

BIA’s failure to do likewise in Mr. De la Rosa’s case

was arbitrary and capricious, inconsistent with the set-

tled interpretation of Section 212(c), and unconstitu-

tional.’®

2. The BIA’s Blake decision was also an improper

retroactive application of an erroneous interpretation

of the 2004 DOJ regulation, which sought to implement

St. Cyr, not to confine it. The regulation provides that

Section 212(c) relief “shall be denied if ... [t]he alien is

deportable under former section 241 of the Act or re-

The Ninth Circuit performed the wrong comparison: it

compared deportable LPRs with inadmissible LPRs. Abebe, 554

F.3d at 1206. The correct comparison is between two groups of

deportable LPRs: one group that has left the country and reen-

tered, and one that has not. Blake v. Carbone, 489 F.3d at 95;

Francis, 532 ¥ 2d at 273.

'® On remand from the Second Circuit, an IJ found Mr. Blake

eligible for a Section 212(c) waiver and granted relief. The gov-

ernment did not appeal.

29

movable under [Slection 237 of the Act on a ground

which does not have a statutory counterpart in

[Slection 212 of the Act.” 8 C.F.R. § 1212.3(f)(5). On its

face, this regulation is consistent with the BIA’s prior

rulings that an LPR deportable for an aggravated fel-

ony conviction was eligible for Section 212(c) relief if

the conviction wouid also fall under a counterpart in-

admissibility provision.

In Blake, the BIA purported to interpret the regu-

lation differently, not based on anything in the regula-

tion itself, but on an anonymous commenter’s opinion,

cited in the preamble to the final regulation, that Sec-

tion 212(c) relief should be denied “ ‘if there is no com-

parable ground of inadmissibility for the specific cate-

gory of aggravated felony charged. ... [Flor example,

the rule should not apply to aggravated felons charged

with deportability under specific types or categories of

aggravated felonies such as “Murder, Rape, or Sexual

Abuse of a Minor” or “Crime of Violence” aggravated

felonies.’” 23 I. & N. Dec. at 726 (quoting 69 Fed. Reg.

57,826, 57,831 (Sept. 28, 2004)).

The commenter misinterpreted the statutory coun-

terpart test by focusing on the category of aggravated

felony charged rather than the underlying offense. The

commenter did not identify a single decision forbidding

an LPR with a conviction in any of the identified ag-

gravated felony categories from seeking Section 212(c)

relief. As noted above, the statutory counterpart rule

affected LPRs with convictions for firearms offenses or

entry without inspection. See supra p. 10, n.4 & n.5;

Hernandez-Casillas, 20 I. & N. Dec. at 282 n.4. And

contrary to the commenter’s assertion, Section 212(c)

can be used to waive deportation for crimes such as

murder and rape, although such serious offenses re-

quire a heightened showing in order to warrant a fa-

30

vorable exercise of discretion. See 6 Gordon, Mailman

& Yale-Loehr, Immigration Law & Procedure

§ 74.04[1][a], [2][g¢] (2007).””

But even if the commenter’s interpretation were

correct and constitutional (and it is neither), the BIA

cannot use an adjudicatory proceeding to apply a regu-

lation retroactively, when no statutory or regulatory

language envisions retroactive application. See Bowen

v. Georgetown Univ. Hosp., 488 U.S. 204, 208-209 (1988)

(“{[A]dministrative rules will not be construed to have

retroactive effect unless their language requires this

result. .... Even where some substantial justification

for retroactive rulemaking is presented, courts should

be reluctant to find such authority absent an express

statutory grant.”).

II. THIS CASE PRESENTS AN ISSUE OF EXCEPTIONAL

AND CONTINUING IMPORTANCE TO NUMEROUS LEGAL

PERMANENT RESIDENTS

The LPRs most affected by the BIA’s decision in

Blake include many who have strong claims for a dis-

cretionary waiver of removal. As this Court has ob-

served, Section 212(c) relief is granted based on criteria

including “the seriousness of the offense, evidence of

either rehabilitation or recidivism, the duration of the

alien’s residence, the impact of deportation on the fam-

‘The DOJ , in the “supplementary information” accompany-

ing the final regulation, agreed that “ ‘an alien who is deportable or

removable on a ground that does not have a corresponding ground

of exclusion or inadmissibility is ineligible for section 212(c) re-

lief’ ” Blake, 23 I. & N. Dec. at 726-727 (quoting 69 Fed. Reg.

57,831). It did not, however, take any position on the commenter’s

enumeration of the various offenses that the commenter believed

lacked a statutory counterpart.

31

ily, the number of citizens in the family, and the charac-

ter of any service in the Armed Forces.” St. Cyr, 533

US. at 296 n.5 (citing Matter of Marin, 16 1. & N. Dec.

581 (BIA 1978)). Mr. De la Rosa’s offense, which took

place when he was twenty (he is now 36), did not in-

volve coercion or violence. An IJ found him to be “re-

habilitated.” App. 39a. He lived in the United States

for nearly twenty years, has three U.S. citizen children

aged three, seven, and ten who depend on him, and has

a U.S. citizen father and several U.S. citizen siblings,

nieces, and nephews. The record is replete with sup-

porting statements and financial information attesting

to his strong work ethic and good standing in his com-

munity. C.A. A.R. 100-169.

Mr. De la Rosa is not alone. Because deportable

“aggravated felony” offenses have been defined broadly

and “without regard to how long ago they were com-

mitted[,] ... the class of aliens whose continued resi-

dence in this country has depended on their eligibility

for § 212(c) relief is extremely large, and not surpris-

ingly, a substantial percentage of their applications for

§ 212(c) relief have been granted.” St. Cyr, 533 U.S. at

295-296 (noting that from 1989 to 1995, Ҥ 212(c) relief

was granted to over 10,000 aliens”). Despite its repeal

in 1996, Section 212(c) continues to provide critical re-

lief to numerous LPRs who were convicted of a crime

long ago, but are otherwise deserving members of their

local United States communities. See id. at 296 n.6

(noting increased importance of Section 212(c) relief fol-

lowing 1996 expansion of “aggravated felony” definition

to include “more minor crimes which may have been

committed many years ago”).

Petitioner does not contend that he has a legal right

to relief; Section 212(c) remains and has always been a

discretionary provision. But he does have a right to

32

have the agency exercise that discretion following an

evidentiary hearing on the merits—a hearing that he

was entitled to as of February 2005 and was only de-

nied because of the BIA’s retroactive “change in law.”

Cardona, 2005 WL 3709244; see also App. 43a-44a.

Absent this Court’s intervention, numerous deserv-

ing legal immigrants will be unlawfully denied relief

from removal based only on an accident of geography—

the jurisdiction in which their immigration proceedings

happened to be held. See App. 45a-52a (non-exhaustive

list of cases affected by BIA’s decision in Blake). But

for Mr. De la Rosa’s and his wife’s decision to raise

their family in Florida rather than New York, this “re-

habilitated” individual would most likely still be work-

ing productively and supporting his U.S. citizen chil-

dren and family.”°

CONCLUSION

The petition for a writ of certiorari should be

granted.

20 ‘This Court denied certiorari in Gonzalez-Mesias v. Holder,

129 S. Ct. 2042 (2009), but at that time the Eleventh Circuit had

not addressed the issue (see App. la (noting that the question pre-

sented was “an issue of first impression”)), and the Ninth Circuit

was still considering the petition for full court rehearing in Abebe.

The views of those circuits are now known and have only deepened

the circuit split, and no further percolation among the circuits

should be expected. Moreover, the petition in Gonzalez-Mesias

may not have fully apprised the Court of the frequency with which

the issue arises. App. 45a-52a. We submit that this issue is now

fully ripe for this Court’s review.

oo

Respectfully submitted.

SETH P. WAXMAN MARK C, FLEMING

PAUL R. Q. WOLFSON Counsel of Record

WILMER CUTLER PICKERING MEGAN BARBERO

HALE AND DORR LLP ELIZABETH KENT CULLEN

1875 Pennsylvania Ave. NW WILMER CUTLER PICKERING

Washington, DC 20006 HALE AND DORR LLP

(202) 663-6000 60 State Street

Boston, MA 02109

MARIA I. CASABLANCA (617) 526-6000

CASABLANCA LEGAL GROUP

444 Brickell Ave., Suite 416

Miami, FL 33131

(305) 577-4220

NOVEMBER 2009

APPENDIX

la

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 08-13861

Agency No. A42-086-274

[579 F.3d 1327]

JOSE ERASMO DE LA ROSA,

Petitioner,

v.

U.S. ATTORNEY GENERAL,

Respondent.

Petition for Review of a Decision of the

Board of Immigration Appeals

[STAMP: FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

AUGUST 20, 2009

THOMAS K. KAHN

CLERK]

(August 20, 2009)

Before DUBINA, Chief Judge, and BIRCH and WIL-

SON, Circuit Judges.

PER CURIAM:

This case presents us with an issue of first impres-

sion in our circuit. Jose Erasmo De la Rosa (“De la

Rosa”) petitions for review of the Board of Immigration

Appeals’ (“BIA”) decision affirming the Immigration

2a

Judge’s (“IJ”) determination that he was statutorily in-

eligible for a waiver of his deportation charge. He con-

tends that his conviction of the aggravated felony of

sexual abuse of a minor qualifies him to apply for a

waiver of deportation pursuant to the former Immigra-

tion and Nationality Act (“INA”) § 212(c), 8 U.S.C.

§ 1182(c) (repealed 1996) (“S$ 212(c) waiver”). We dis-

agree and AFFIRM.

I. BACKGROUND!

In June 2004, De la Rosa was issued a Notice to

Appear (“NTA”). The NTA alleged that De la Rosa,

although having been legally admitted to the United

States, was deportable’ because (1) he was from the

' We conclude that we have jurisdiction to entertain De la

Rosa’s appeal because, although he is a convicted felon, his claims

“are constitutional and legal in nature.” Alexandre v. U.S. Att’y

Gen., 452 F.3d 1204, 1205 (per curiam) (citing 8 U.S.C.

§ 1252(a)(2)(C), (D)).

The respondent provides a useful tutorial on terminology,

which we recite in full:

Prior to the 1996 amendments to the INA, aliens

who were ineligible to be admitted to the United States

were referred to as “excludable” while aliens who had

gained admission but were no longer eligible to remain in

the United States were referred to as “deportable.” See

United States v. Lopez-Gonzalez, 183 F .3d 933, 934-35 n.4

(9th Cir. 1999). The INA also provided for separate

types of immigration proceedings, depending on whether

an alien was excludable or deportable. /d.

Under current nomenclature, aliens previously re-

ferred to as “excludabie” are now referred to as “inad-

missible.” Jd.; INA § 21%, 8 U.S.C. § 1182. Moreover, the

separate exclusion and deportation proceedings have

now been consolidated into “removal proceedings.” /d.;

3a

Dominican Republic and was not a citizen or a national

of the United States; (2) he was admitted to the United

States in March 1989 as an immigrant; and (3) in 1995,

he was convicted in a Florida court of committing a

lewd act upon a child under the age of sixteen in viola-

tion of Florida Statute § 800.04(3). The NTA charged

that De la Rosa was subject to deportation from the

United States pursuant to INA §§ 237(a)(2)(A)(iii)’ and

237(a\X(2)(E)(i) because he had been convicted both of an

aggravated felony as defined in INA § 101(a)(43)(A)—a

law relating to murder, rape, or sexual abuse of a mi-

nor—and a crime of domestic violence, 7.¢e., child abuse.

The record indicates that De la Rosa pled nolo conten-

dere to his aggravated felony charge.

De la Rosa admitted to the allegations in the NTA

and conceded that he was deportable but sought relief

in the form of a § 212(c) waiver. The government

moved to pretermit his application for a § 212(c) waiver

and maintained that De la Rosa’s aggravated felony

conviction rendered him ineligible for § 212(c) relief in

accordance with the BIA’s decision in In re Blake, 23 I.

& N. Dec. 722 (BIA 2005). The IJ agreed, pretermitted

INA § 240, 8 U.S.C. § 1229a.... [TJhere is no significant

difference between the terms “excludable” and “inadmis-

sible.” Nor is there any significant differen[ce] between

“removal” proceedings and “exclusion” or “deportation”

proceedings.

Respondent’s Brief at 9 n.7. We use these terms interchangeably

throughout our opinion.

> Under INA § 237(a)(2)(A)iii), 8 U.S.C. § 1227(a)(2)(A)(iii),

“{a)ny alien who is convicted of an aggravated felony at any time

after admission is deportable.”

4a

De la Rosa’s application for § 212(c) relief, and ordered

him removed from the United States.

De la Rosa appealed to the BIA and claimed, inter

alia, that his aggravated felony conviction constituted a

“erime involving moral turpitude” as contemplated by

INA § 212(a)(2), thus allowing him to apply for the

§ 212(c) waiver. Administrative Record (“AR”) at 11-

138. The BIA disagreed, dismissed the appeal, and

found that Blake precluded De la Rosa from obtaining a

§ 212(c) waiver. The BIA reasoned that “[a]s the ag-

gravated felony ground of removal applicable in this

case ... has no statutory counterpart in the grounds of

inadmissibility under section 212(a) of the Act, the ag-

gravated felony charge cannot be waived as a ground of

deportability under former section 212(c).” Jd. at 2.

Although the question presented in this case con-

cerns De la Rosa’s eligibility for a § 212(c) waiver, our

full consideration of that issue demands a close analysis

of both the history of INA § 212(c) and how that provi-

sion has been interpreted by our sister circuits. Ac-

cordingly, we indulge in a brief survey of the legal land-

scape in this area.

A. History of INA § 212(c), 8 U.S.C. § 1182(c)

INA § 212(c) concerns only persons in exclusion

proceedings. The statutory language in INA § 212(a)

lists classes of excludable aliens who are ineligible for

admission to the United States.* INA § 212(a); 8 U.S.C.

§ 1182(a). INA § 212(c), however, vests the Attorney

General with the discretion to waive exclusion for

* One of these excludable classes includes aliens convicted of

“a crime involving moral turpitude.” INA § 212(a)(2)A)i)(1);

8 U.S.C. § 1182(aX2)(A)i TD).

T_T — ©

5a

“{ajliens lawfully admitted for permanent residence

who temporarily proceeded abroad voluntarily and not

under an order of deportation, and who are returning to

a lawful unrelinquished domicile of seven consecutive

years.”” 8 U.S.C. § 1182(c) (repealed 1996). Even

though INA § 212(c) was repealed by the Illegal Immi-

gration Reform and Immigrant Responsibility Act of

1996 (“IIRIRA”),° relief remains available to aliens

“whose convictions were obtained through plea agree-

ments and who, notwithstanding those convictions,

would have been eligible for § 212(c) relief at the time

of their plea under the law then in effect.” JNS v. St.

Cyr, 533 U.S. 289, 326, 121 S. Ct. 2271, 2293, 150 L. Ed.

2d 347 (2001); see also Alexandre, 452 F.3d at 1207

(stating that those who had pled nolo contendere prior

to April 1997 could seek § 212(c) relief pursuant to 8

C.F.R. § 1008.44). Because De la Rosa pled nolo con-

tendere to the crime rendering him deportable in 1995,

he was eligible to apply for § 212(c) relief.

As we have noted, on its face § 212(c) applies only

to exclusion proceedings. That said, the Department of

> We note that the Attorney General is accorded similar dis-

cretion to suspend deportation of a person if that person meets a

ten-year residence requirement, possesses good moral character,

and would be subject to exceptional and extremely unusual hard-

ship if deported. INA § 244; 8 U.S.C. § 1254(a)(2) (repealed 1996).

: Congress cut back on the availability of § 212(c) relief prior

to its eventual repeal by the IIRIRA. In the Immigration Act of

1990, Pub. L. No. 101-649, 104 Stat. 4978, 5052, Congress limited

§ 212(c) relief to aliens who had served fewer than five years in

prison. The Anti-Terrorism and Effective Death Penalty Act

(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (1996), then made

§ 212(c) relief unavailable to aliens convicted of aggravated felo-

nies and other specified crimes. See AEDPA § 440(d).

6a

Homeland Security (formerly the Immigration and

Naturalization Service (“INS”)) has, for several dec-

ades, permitted aliens subject to deportation to seek

§ 212(c) relief nune pro tunc.’ The rationale for the ex-

pansion was that if the INS allowed a resident alien to

reenter the country even though he was excludable and

then tater sought to deport him, the alien should not be

put in a worse position than if he had been excluded in

the first instance. See Matter of G-A-, 71. & N. Dec.

274, 275-76 (BIA 1956). In a previous recitation of §

212(c)’s tortuous history, we explained how this exten-

sion produced inequities in its application. See Farqu-

harson v. U.S. Att'y Gen., 246 F.3d 1317, 1323 (11th Cir.

2001). “While one resident alien who became deport-

able and then voluntarily left the country became eligi-

ble for waiver upon reentry, another alien who was de-

portable for the same reason but never left the country

had no recourse.” /d.

In Francis v. INS, 532 F.2d 268, 272 (2d Cir. 1976),

the Second Circuit addressed this distinction and con-

cluded that it was “not rationally related to any legiti-

mate purpose of the statute.” Jd. Instead of striking

the statute, however, the Second Circuit elected to ex-

tend § 212(c) relief to deportable aliens regardless of

whether they had left the United States after commit-

ting the act rendering them deportable. See id. at 273.

The BIA quickly adopted the reasoning of Francis and

likewise extended § 212(c) relief to deportable aliens.

See Matter of Silva, 16 1. & N. Dec. 26, 30 (BIA 1976).

: “Having retroactive lega] effect through a court’s inherent

power.” Black’s Law Dictionary 1097 (7th ed. 1999).

7a

The BIA later qualified the extension in Matter of

Wadud, 19 I. & N. Dec. 182 (BIA 1984). In Wadud, the

BIA settled upon the comparable grounds test as a

means of determining whether a deportee and an ex-

cludee were similarly situated. Under the test, eligibil-

ity for § 212(c) relief turned on whether the “ground of

deportation charged is also a ground of inadmissibility.”

Id. at 184 (citations omitted). The BIA expressly “de-

cline[d] to expand the scope of section 212(c) relief in

cases where the ground of deportability charged is not

also a ground of inadmissibility.” /d. at 185.

In 1991, the BIA softened the comparable grounds

test somewhat in Matter of Meza, 20 I. & N. Dec. 257

(BIA 1991). In Meza, the BIA applied the statutory

framework to an alien deportable for an aggravated

felony conviction. Although no ground of exclusion ex-

pressly references “aggravated felonies,” the BIA

nonetheless concluded that “a waiver under section

212(c) is not unavailable to an alien convicted of an ag-

gravated felony simply because there is no ground of

exclusion [in § 212(a)] which recites the ““ords, ‘con-

victed of an aggravated felony.’” Jd. at 2). Instead,

the BIA looked to whether the “specific category of ag-

gravated felony at issue” had a comparable ground of

inadmissibility in § 212(a). Jd. The BIA ultimately de-

termined that an alien deportable for an aggravated

felony of “illicit trafficking in any controlled substance,”

as defined in INA § 101(a)(43)(B), 8 U.S.C.

§ 1101(a)(43)(B), was eligible for a § 212(c) waiver be-

cause the category of aggravated felony had a statutory

8a

counterpart of inadmissibility in INA § 212(a)(23), 8

U.S.C. § 1182(aX(23).* Id.

The comparable grounds test gathered ascendent

strength in Matter of Montenegro, 20 I. & N. Dec. 603

(BIA 1992), and Matter of Esposito, 21 I. & N. Dec. 1

(BIA 1995), both of which also effectively worked to

isolate Meza. In Montenegro, the respondent was

found deportable based on his conviction for assault

with a firearm. See Montenegro, 20 1. & N. Dec. at 605.

The respondent argued eligibility for § 212(c) relief un-

der Meza because his assault conviction constituted a

crime of moral turpitude—a comparable ground of ex-

clusion for purposes of § 212(c) eligibility. See id. The

BIA disagreed and distinguished Meza, limiting it to

“the unique situation created by the language and legis-

lative history of an amendment to section 212(c) by [the

Immigration Act of 1990], which indicated that some

aggravated felons are eligible for a section 212(c)

waiver in deportation proceedings even though there is

no single comparable ground of exclusion based on con-

viction of an aggravated felony.” Jd.

Likewise, in Esposito, the BIA again rejected the

respondent’s argument that his ineligibility for § 212(c)

relief due to a lack of a comparable exclusion ground

was cured because his offense supported some ground

of excludability. See Esposito, 21 I. & N. Dec. at 9. As

stated by the BIA, “[wJhile the respondent could be

deemed inadmissible within the meaning of section

212(a)(10) of the Act based in part on his firearms viola-

tion, this does not make him eligible for section 212(c)

* In 1990, INA § 212(aX23), 8 U.S.C. § 1182(a)(23) was revised

and redesignated at INA § 212(aX2A)iXID, 8 U.S.C.

§ 1182(aX2MAMi)IL). See Meza, 201. & N. Dec. at 260 n.5.

9a

relief. [His] firearms conviction standing alone sup-

ports a charge of deportation under section 241(a)(14),

[he] has in fact been found deportable based on this

charge, and section 212(c) cannot waive a charge of

deportability under section 241(a)(14) because there is

no counterpart among the grounds of inadmissibility in

section 212(a).” Jd. at 8 (citation and alterations omit-

ted). As in Montenegro, the BIA also stressed the lim-

ited reach of its decision in Meza. See id. at 9 (“Meza ...

is limited to the question of eligibility for section 212(c)

relief in the case of a conviction for a drug-trafficking

aggravated felony and is based on the specific amend-

ment to section 212(c) regarding aggravated felonies.”).

In the period between Montenegro and Esposito,

the Second Circuit decided Bedoya-Valencia v. INS, 6

F.3d 891 (2d Cir. 1998). In Bedoya-Valencia, the court

concluded that because entry without inspection—the

charged grounds of deportation at issue—logically can-

not have an analogue in the exclusion grounds, “coher-

ence and consistency” dictated providing § 212(c) relief

to aliens whose deportable offense was entry without

inspection. Jd. at 897. In extending the Francis rule,

the court unambiguously articulated its view of the ju-

dicial function in this area:

Absent any Congressional indication to the

contrary, we believe that coherence and consis-

tency are promoted by allowing the exercise of

§ 1182(c) [§ 212(c)] discretion with respect to

the deportation ground of entry without in-

spection. Francis effected a significant altera-

tion of the legal framework in this area, and in

the absence of any Congressional revisitation of

that framework in the aftermath of Francis,

courts must cope with the interstitial issue

posed by grounds of deportation that have no

10a

counterparts among the statutory grounds for

exclusion.

We recognize, of course, as we did in Fran-

cis, the paramount authority of the executive

and legislative branches of our national gov-

ernment with respect to immigration matters,

and the correspondingly limited role of the ju-

diciary. We also recognize, however, that fed-

eral courts can play an important role in inter-

stitial implementation of a legislative design,

especially when that design has already been

altered by a constitutionally based court deci-

sion.

Id. at 897-88 (citations omitted).

Bedoya-Valencia is particularly important because

we expressly rejected its reasoning four months later

in Rodriguez-Padron v. INS, 13 F.3d 1455, 1460 (11th

Cir. 1994). In Rodriguez-Padron, the petitioners were

subject to deportation based on their convictions for

firearms violations for which there was no analogous

ground for exclusion. See id. at 1458. The petitioners

argued that they should be allowed to seek the § 212(c)

waiver and relied, in part, on Bedoya-Valencia. See id.

at 1458-59. In rejecting this reliance on the Second Cir-

cuit’s rationale, we observed that in Bedoya-Valencia,

“(t]he Second Circuit (unlike the Attorney General in

Hernandez-Casillas’ and at least two other circuits)

” See Matter of Heriandez-Casillas, 20 1. & N. Dec. 262, 280-

93 (BIA 1990), affd mem., 983 F.2d 231 (5th Cir. 1993). In Her-

nandez-Casillas, the Attorney General reversed a BIA decision

making § 212(c) relief available to aliens deportable on the ground

of entry without inspection, concluding, inter alia, that “there

lla

was untroubled by the lack of a basis for this extension

[of the Francis rule] in the statutory text.” Id. at 1460.

We added that “{iJn this context, we believe that a

statute should be stretched only as far as necessary to

prevent unconstitutionality.” Jd. We also noted that

Congress could have specified firearms violations as

grounds for exclusion but had elected not to do so. Fi-

nally, and perhaps most significantly, we accorded

Chevron deference to the Attorney General’s holding in

Hernandez-Casillas—-namely, that the “Section 212(c)

waiver is available in the deportation context only to

the extent that the grounds of deportation are analo-

gous to one of the grounds for exclusion.” Jd. at 1460-

61; see also Chevron USA, Inc. v. Natural Res. Def.

Council, Inc., 467 U.S. 837, 848, 104 S. Ct. 2778, 2781-

82, 81 L. Ed. 2d 694 (1984).

We confirmed our determination to guard against

further judicial extension of § 212(c) relief in Farquhar-

son. See 246 F.3d at 1825. In that case, we upheld the

comparable grounds approach in response to an equal

protection challenge by a petitioner who was found de-

portable for entry without inspection. See id. at 1318.

We concluded, in part, that Ҥ 212(c) has already been

stretched beyond its language in response to equal pro-

tection concerns, and further judicial redrafting would

serve only to pull the statute further from its moorings

in the legislative will.” Jd. at 1825 (quotation marks

and citation omitted).

In 2004, 8 C.F.R. § 1212.3(f)(5) codified the case law

in the area and provided that an application for relief

under § 212(c) must be denied if “(t]he alien is deport-

[was] no constitutional justification for [such] a further departure

from the statutory text.” /d. at 293.

12a

able under section 241 of the Act or removable under

section 237 of the Act on a ground which does not have

a statutory counterpart in section 212 of the Act.” Jd.

And so the statutory counterpart test was born. The

BIA’s application of this framework in early 2005

proved to be a watershed moment in § 212(c) jurispru-

dence and is of particular significance in our considera-

tion of the case before us. See In re Blake, 23 1. & N.

Dec. 722 (BIA 2005).

In In re Blake, the BIA applied the statutory coun-

terpart framework and concluded that an alien deport-

able based on an aggravated felony conviction for sex-

ual abuse of a minor was ineligible for a § 212(c) waiver.

See id. at 726-29. The BIA found that the respondent

was ineligible for § 212(c) relief because “the aggra-

vated felony offense of sexual abuse of a minor has no

statutory counterpart in the section 212(a) grounds

of inadmissibility.” Jd. at 723. The BIA expressly

rejected the respondent’s contention _ that

§ 212(a)(2)(A)(i)(J), the provision rendering aliens in-

admissible who have been convicted of a crime of moral

turpitude, was comparable to his aggravated felony

charge. See id. at 727. The BIA distinguished its deci-

sion in Meza, which the respondent cited in support of

his argument, explaining that “(t]he instant case differs

from Matter of Meza in that the moral turpitude ground

of exclusion addresses a distinctly different and much

broader category of offenses than the aggravated fel-

ony sexual abuse of a minor charge.” Id. at 728. The

BIA further articulated its statutory counterpart ap-

proach as follows:

(W]hether a ground of deportation or removal

has a statutory counterpart in the provisions

for exclusion or inadmissibility turns on

whether Congress has employed similar lan-

13a

guage to describe substantially equivalent

categories of offenses. Although many fire-

arms offenses may also be crimes of moral tur-

pitude, the category of firearms offenses is not

a statutory counterpart to crimes of moral tur-

pitude. Similarly, although there may be con-

siderable overlap between offenses categorized

as sexual abuse of a minor and those considered

crimes of moral turpitude, these two categories

of offenses are not statutory counterparts.

The coverage of the offenses described

need not be a perfect match in order to be

statutory counterparts under the regulation so

long as the ground of inadmissibility addresses

essentially the same category of offenses under

which the removal charge is based. In Matter

of Meza, ... for example, the language used in

describing the drug-related aggravated felony

provision covered substantially the same cate-

gory of drug-related offenses addressed in the

exclusion ground. Under the regulation and

our precedent decisions, however, the test for

comparability is not met merely by showing

that some or many of the offenses included in

the charged category could also be crimes in-

volving moral turpitude.

Id. at 728-29 (quotation marks omitted).

B. Section 212(c) in the Wake of In re Blake

The BIA’s decision in In re Blake was not uni-

formly recognized as the last word on the issue. Al-

though it largely crystallized the grounds-based or

categorical approach of the statutory counterpart test

l4a

(“categorical approach”), the Second Circuit rejected its

reasoning on appeal in Blake v. Carbone, 489 F.3d 88,

101-04 (2d Cir. 2007), and fashioned an offense-based

approach as a counterpoint to the BIA’s approach. A

recent opinion by the Ninth Circuit has introduced yet

another formula for handling § 212(c) waivers. See

Abebe v. Mukasey, 554 F.3d 1203 (9th Cir. 2009) (en

banc). Having already considered the categorical ap-

proach in some detail, we now examine the alternative

views advanced by the Second and Ninth Circuits re-

spectively.

1. Blake v. Carbone—An Offense-Based Approach

In Blake, the Second Circuit declined to accord def-

erence to the BIA’s interpretation of the statutory

counterpart rule, rejected the categorical approach as

violative of Francis, and set out its own offense-based

approach for determining a deportee’s eligibility for

§ 212(c) relief. After reciting Chevron’s familiar man-

date, the court concluded that because the statutory

counterpart rule “is a creature of constitutional avoid-

ance, arising from the ramifications of a prior constitu-

tional decision of this court, rather than the original

statute concerning whose interpretation the Attorney

General has conceded expertise,” deferring to the

BIA’s “determination of equal protection” would con-

stitute, in part, an abdication of its “responsibilit[y] to

uphold the Constitution.” Blake, 489 F.3d at 100 (quo-

tation marks and citation omitted).

In rejecting the categorical approach, the Second

Circuit observed that the BIA’s emphasis on the need

for substantially similar language in grounds of depor-

tation and grounds of exclusion was “strange” because

Congress “never contemplated that its grounds of de-

portation would have any connection with the grounds

15a

of exclusion.” Jd. at 102. As asserted by the court, be-

cause

the history of § 212(c) relief for deportees be-

gan not with an expression of congressional in-

tent but rather with Francis[,] ... Congress did

not employ similar terms when writing the

grounds of exclusion and grounds of deporta-

tion because it had no need to, making it an ex-

ercise in futility to search for similar language

to gauge whether equal protection is being af-

forded.

Id. (citation omitted).

The court also took issue with the BIA’s “incidental

overlap” language'® and concluded that the BIA’s re-

quirement that “all or substantially all of the offenses

under a particular ground of deportation must also fall

under the counterpart ground of exclusion” was not

supported by Francis:

The touchstone in Francis was the “irrelevant

and fortuitous” circumstance of traveling

abroad recently; the decision did not consider

'° The BIA further clarified its categorical approach in /n re

Brieva-Perez, 23 1. & N. Dec. 766, 773 (BIA 2005), aff'd sub. nom.

Brieva-Perez v. Gonzales, 482 F.3d 356 (5th Cir. 2007). In Brieva,

the respondent was found deportable based on his conviction for

unauthorized use of a motor vehicle, an aggravated felony crime of

violence. See id. at 772. In applying the categorical approach, the

RIA determined that “[a]lthough there need not be perfect sym-

metry in order to find that a ground of removal has a statutory

counterpart in section 212(a), there must be a closer match than

that exhibited by the incidental overlap between section

101(a)(43)(F) (crime of violence) and section 212(aX2\A)i)(1)

(crime of moral turpitude).” Jd. at 773.

16a

whether equal protection requires that all or

even most offenses falling under a particular

ground of deportation must also fall under the

counterpart ground of exclusion. In short, eli-

gibility for relief in Francis turned on whether

the lawful permanent resident’s offense could

trigger § 212(c) were he in exclusion proceed-

ings, not how his offense was categorized as a

ground of deportation.

Id. (citation omitted).

The Second Circuit concluded its opinion in Blake

by staking out the contours of its offense-based ap-

proach to the statutory counterpart test:

“{PJetitioners’ eligibility for a § 212(c) waiver must turn

on their particular criminal offenses. If the offense that

renders a lawful permanent resident deportable would

render a similarly situated lawful permanent resident

excludable, the deportable lawful permanent resident is

eligible for a waiver of deportation.” /d. at 103.

2. Ninth Circuit’s Repudiation of the Francis Rule

The Ninth Circuit has taken a different tact alto-

gether. In Abebe, the court overruled its precedent

that both had adopted Francis and endorsed the statu-

tory counterpart test. See Abebe, 554 F.3d at 1207; see

also Tapia-Acuna v. INS, 640 F.2d 223, 225 (9th Cir.

1981). In so doing, the court reassessed the “complex

legislative scheme” concerning § 212(c) waivers and af-

forded fresh consideration to “whether [it could] con-

ceive of a rational reason Congress may have had in

adopting it.” Abebe, 554 F.3d at 1206. The Abebe court

found that it could and explained as follows:

Congress could have limited section 212(c) re-

lief to aliens seeking to enter the country from

17a

abroad in order to create an incentive for de-

portable aliens to leave the country. A deport-

able alien who wishes to obtain section 212(c)

relief will know that he can’t obtain such relief

so long as he remains in the United States; if he

departs the United States, however, he could

become eligible for such relief. By encouraging

such self-deportation, the government could

Save resources it would otherwise devote to ar-

resting and deporting these aliens. Saving

scarce resources that would otherwise be paid

for by taxpayers is certainly a legitimate con-

gressional objective.

Id. (quotation marks, citations and alterations omitted).

By repudiating Francis and eliminating the statutory

counterpart rule altogether, the Ninth Circuit has

forged its own path and neatly avoids any consideration

of the relative merits of the Second Circuit’s offense-

based approach versus the categorical approach fol-

lowed by the majority of the other circuits who have

entertained the issue.

As it stands, there exists a three-way circuit split

on the question of whether certain deportees who have

not temporarily left the country are eligible for § 212(c)

relief. The BIA and the majority of our sister circuits

have adopted the Francis rule and have applied the

categorical approach when dealing with the resulting

statutory counterpart test.'' Under the categorical ap-

'! See, e.g., Gonzalez-Mesias v. Mukasey, 529 F.3d 62, 64-65

(1st Cir. 2008); Caroleo v. Gonzales, 476 F.3d 158, 162-63 (3d Cir.

2007); Vo v. Gonzales, 482 F.3d 363, 372 (5th Cir. 2007); Koussan v.

Holder, 556 F.3d 403, 412-13 (6th Cir. 2009); Valere v. Gonzales,

473 F.3d 757, 762 (7th Cir. 2007); Soriano v. Gonzales, 489 F.3d 909

(8th Cir. 2006) (per curiam).

18a

proach, the central inquiry is whether a petitioner’s

ground of deportation has a comparable ground of ex-

clusion under § 212(a). This approach focuses on the

categorical similarity of the corresponding grounds and

avoids any examination of a petitioner’s underlying of

fense and whether it could render him excludable under

§ 212(a).

The Second Circuit also has adopted the Francis

rule but employs an offense-based approach when con-

sidering the resultant statutory counterpart test. Un-

der this approach, the inquiry focuses on a petitioner’s

underlying offense. If the underlying offense responsi-

ble for a petitioner’s deportation could render him ex-

cludable under § 212(a), then he is eligible for § 212(c)

relief.

Finally, the Ninth Circuit has abandoned the F'ran-

cis rule and its accompanying statutory counterpart

test altogether. In the wake of Abebe, deportable aliens

in the Ninth Circuit who have not left the country are

not eligible for § 212(c) relief. With this menu of op-

tions in mind, we now consider the ments of De la

Rosa’s petition for review.

Il. DISCUSSION

We review the BIA’s legal determinations de novo.

See Castillo-Arias v. U.S. Att’y Gen., 446 F.3d 1190,

1195 (11th Cir. 2006). However, our review of the

BIA’s interpretation of the statutes it administers “is

informed by the principle of deference articulated in

Chevron.”'? Id. (quotation marks and citation omitted).

'? We have held that Chevron deference is not appropriate in

cases in which a single member of the BIA issues a non-

19a

De la Rosa advances several arguments in support

of his central contention that the BIA erred in finding

him ineligible for § 212(c) relief. First, he argues that

the BIA’s decision in Jn re Blake contradicts BiA and

federal circuit precedent on the issue. De la Rosa claims

that such precedent provides that § 212(c) relief is

available to waive non-drug aggravated felony convic-

tions that are also crimes involving moral turpitude.

Our view of the applicable BIA precedent is at odds

with De la Rosa’s interpretation. As early as 1984, the

BIA rejected the argument that a respondent could ob-

tain a § 212(c) waiver if his underlying offense consti-

tuted a crime of moral turpitude even if his charged

ground of deportability lacked a statutory counterpart

in the grounds of inadmissibility. See Wadud, 19 I. &

N. Dec. at 185-86. When addressing the statutory

counterpart test, the BIA consistently has followed a

categorical approach that focuses on the charged

ground of deportability rather than the underlying of-

fense. See Esposito, 21 I. & N. Dec. at 9; Montenegro,

20 I. & N. Dec. at 605; Meza, 20 I. & N. Dec. at 259;

Wadud, 19 I. & N. Dec. at 185-86. Consequently, /n re

Blake’s focus on the charged grounds of deportation

instead of the underlying offense did not represent a

departure from prior BIA practice. See Jn re Blake, 23

I. & N. Dec. at 729. De la Rosa’s reliance on unpub-

lished BIA decisions is misplaced as the BIA accords no

precedential value to its unreported decisions. See

Matter of Zangwill, 18 I. & N. Dec. 22, 27 (BIA 1981),

precedential decision that does not rely on existing BIA or federal

court precedent. See Quinchia v. U.S. Att'y Gen., 552 F.3d 1255,

1258 (11th Cir. 2008). Whereas the case before us was decided by a

single member of the BIA, it is distinguishable from Quinchia be-

cause it relied on the BIA’s precedent in Blake, See id.

20a

overruled on other grounds, Matter of Ozkok, 191. & N.

Dec. 546 (BIA 1988),

De la Rosa also asserts that Jn re Blake is inconsis-

tent with the Attorney General’s decision in Hernan-

dez-Casillas. See Hernandez-Casillas, 20 1. & N. Dee.

at 280-93. Seizing on the Attorney General’s comments

in a footnote’’, De la Rosa disregards the body of the

opinion which unambiguously supports the categorical

approach and expressly states that equal protection

does not require that discretionary relief be made

available “where the ground for deportation could not

be waived if asserted in an exclusion case.” Jd. at 288.

De la Rosa again attempts to glean support for his

position with a curious construction of § 212(c)’s plain

language. He contends that § 212(c) provides that an

alien convicted of an aggravated felony with a term of

imprisonment of less than five years could qualify for

§ 212(c) relief as long as his conviction caused inadmis-

sibility. So far, so good. But De la Rosa then asserts

that this language somehow implies that any aggra-

vated felon with a term of imprisonment of less than

five years qualifies for § 212(c) relief. We disagree and

point out that the language at issue merely excludes a

class of aggravated felons from eligibility for § 212(c)

relief. See INA § 212(c); 8 U.S.C. § 1182(c) (providing

that “[t]he first sentence of this subsection shall not ap-

ply to an alien who has been convicted of one or more

aggravated felonies and has served for such felony or

felonies a term of imprisonment of at least 5 years”). In

any event, De la Rosa appears to agree that a de-

'> See id. at 282 n.4 (pointing out that two grounds of deporta-

tion—illegal entry and conviction of illegal possession of certain

firearms—-have no analogue in the grounds for exclusion).

2la

portee’s eligibility for § 212(c) relief is predicated on

whether, as he styles it, “the [deportee’s] conviction

caused inadmissibility.” Petitioner’s Brief at 4. In our

view, this admission marks De la Rosa’s argument as

superfluous and returns us to where we started.

As previously noted, De la Rosa maintains that

federal courts also have extended § 212(c) relief to de-

portees convicted of aggravated felonies unrelated to

drugs. He cites three cases from our circuit in support

of this argument—Adefemi v. Ashcroft, 358 F.3d 828

(llth Cir. 2004); Cunningham v. U.S. Att’y Gen., 335

F.3d 1262 (11th Cir. 2003) (per curiam); and Ramsey v.

INS, 55 F.3d 580 (11th Cir. 1995) (per curiam). We con-

clude that these cases are inapposite. We vacated the

Adefemi opinion cited by De la Rosa, reheard the case

en banc, and ultimately determined that the petitioner

was not eligible for § 212(c) relief. See Adefemi v.

Ashcroft, 386 F.3d 1022, 1031 (11th Cir. 2004) (en banc).

In Cunningham, the petitioner was denied the oppor-

tunity to apply for § 212(c) relief because the IJ applied

the wrong law. See Cunningham, 335 F.3d at 1264,

1268. We determined that the petitioner was entitled

to apply for relief and remanded the case so that the IJ

could apply the appropriate law. See id. at 1268. Fi-

nally, in Ramsey, we denied the petitioner’s application

for § 212(c) relief on the merits. See Ramsey, 55 F.3d at

582-83. De la Rosa transforms our lack of analysis re-

garding Ramsey’s statutory eligibility for § 212(c) relief

into a holding that deportees convicted of aggravated

felonies that are crimes of moral turpitude are statuto-

rily eligible for § 212(c) relief. We reject De la Rosa’s

expansive reading of our holding and conclude that

Ramsey lends no support to De la Rosa’s argument.

Although we have dispensed with the bulk of De la

Rosa’s explicit challenges, we now circle back and ad-

22a

dress the implicit argument underpinning his position.

De la Rosa’s petition for review expressly recites nei-

ther equal protection nor the Second Circuit’s decision

in Blake as a basis for appeal. That said, his argument

can be fairly read as a challenge to the BIA’s categori-

cal approach to the statutory counterpart test. He ar-

gues that he is eligible for § 212(c) relief because his

conviction of the aggravated felony of sexual abuse

could qualify as a crime of moral turpitude, a compara-

ble ground of inadmissibility under § 212(a). In urging

us to look to the conduct or offense underlying his con-

viction, De la Rosa effectively is asking us to adopt the

Second Circuit’s offense-based approach to the statu-

tory counterpart test. Because Blake’s holding rests on

a more expansive view of equal protection than we find

palatable, we must decline. Instead, we join the major-

ity of our sister circuits who have considered the issue

and adopt the categorical approach to the statutory

counterpart test.'*

Our decision is supported by the both our prece-

dent and the considered reasoning advanced by our sis-

ter circuits. We recognize that clarity in this area has

proven an elusive goal, given the complexity created by

overlapping administrative decisions, judicial opinions

and Congressional actions. We acknowledge that our

own reasoning on this issue has evolved over time, in

fits and starts, and has not lent itself to a bright-line

'* Our long-standing endorsement of Francis precludes us

from considering the route taken by the Ninth Circuit in Abebe.

See, e.g., Chuang v. U.S. Att'y Gen., 382 F.3d 1299, 1304 (11th Cir.

2004) (per curiam); Farquharson, 246 F.3d at 1324-25; Yeung v.

INS, 76 F.3d 337, 341 (11th Cir. 1995); see also Smith v. GT'E

Corp., 236 F.3d 1292, 1300 n.8 (11th Cir. 2001) (discussing our prior

panel precedent rule).

20a

rule. That, in part, is why we have labored to trace the

history of the law in this area, with all its attendant

twists and turns. Our study is directed at discerning

the trajectory of the law. In so doing, we must guard

against the temptation to cherry-pick those portions

along the continuum that we might find appealing or

convenient and remind ourselves that we are bound by

the canons of deference and judicial restraint to respect

the law’s contemporary terminus.

In our view, we parted ways with the Second Cir-

cuit in Rodriguez-Padron. See 13 F.3d at 1460. In that

case, we rejected any additional extension of the Fran-

cis rule—itself a judicially created extension on equal

protection grounds. We reiterated our aversion to

“stretch[ing] [§ 212(c)] beyond its language” again in

Farquharson, and observed that “further judicial re-

drafting would serve only to pull the statute further

from its moorings in the legislative will.” 246 F.3d at

1325 (quotation marks and citation omitted). Although

we consistently signaled our view that any additional

extension of § 212(c) beyond Francis is “not constitu-

tionally required,” we stress that we have in no way

abandoned our adoption of the equal protection ration-

ale of Francis itself. Jd. Indeed, we have affirmed our

commitment to the Francis rule on several occasions.

See, e.g., Chuang, 382 F.3d at 1304; Farquharson, 246

F.3d at 1324-25; Yeung, 76 F.3d at 340.

We read Francis as extending equal protection to

two classes of similarly situated deportable aliens—one

class in which an alien is convicted of a deportable of-

fense and is placed in deportation proceedings and an-

other class in which an alien is convicted of a deportable

offense, travels abroad, returns to the United States,

and then is placed in deportation proceedings. The Sec-

ond Circuit’s offense-based approach to the statutory

24a

counterpart test, however, departs from Francis in

several respects. Many of our sister circuits have con-

sidered this issue quite closely and we find much to

admire in their logic.

The Seventh Circuit’s observation that “not every

act that renders someone deportable makes him ex-

cludable, and vice versa” largely captures the thrust of

the first counter-argument to Blake’s rationale.

Zamora-Mallari v. Mukasey, 514 F.3d 679, 683 (7th

Cir. 2008). Simply put, a deportable alien usually is not

similarly situated to an excludable alien. This is be-

cause Congress delineated different grounds for depor-

tation and exclusion. If, however, an alien’s ground for

deportation has a statutory counterpart in a ground of

exclusion, then the two classes (deportable and exclud-

able aliens) are similarly situated and any distinction

between them would be arbitrary and violate equal

protection. This point is succinctly captured by the

Ninth Circuit in the following passage”:

Generally, when courts have found an equal

protection violation, the excludability and de-

portation provisions have been substantially

identical. That way, the only distinction be-

tween the two classes of persons the statute

created was that one class of individuals had

traveled abroad and returned, and the other

had not. It is this arbitrary distinction that vio-

lates equal protection. In the instant case, the

' We recognize that the Ninth Circuit has departed from its

holding in Komarenko. See Abebe v. Mukasey, 554 F.3d 1203 (9th

Cir. 2009). Komarenko’s reasoning, however, remains persuasive

for those circuits who continue to follow the BIA’s rationale in In

re Blake.

25a

provisions are entirely dissimilar, and the dis-

tinction between the two classes is not arbi-

trary or unreasonable. For this reason, the

linchpin of the equal protection analysis in this

context is that the two provisions be substan-

tially identical.

Komarenko v. INS, 35 F.3d 432, 435 (9th Cir. 1994)

(quotation marks and citation omitted), abrogated by

Abebe v. Mukasey, 554 F.3d 1203 (9th Cir. 2009).

Having established the statutory counterpart test

as the “linchpin” of the equal protection analysis in the

area, we next consider the merits of the categorical ap-

proach. We find the Third Circuit’s reasoning particu-

larly instructive. In Caroleo, 476 F.3d at 160-61, an

alien was found deportable for his conviction, among

other things, of an aggravated-felony crime of vio-

lence—attempted murder. The alien sought a § 212(c)

waiver and argued that attempted murder is a crime

involving moral turpitude, which is a ground of inad-

missibility under § 212(a). See id. at 164. The court re-

jected the argument and drew a distinction between

§ 237 of the INA, which lists the grounds upon which

the Attorney General may order an alien deported, and

the statutory counterpart test under § 212(c). See id.

“It is in this context [§ 237] that courts look to an alien’s

underlying criminal conviction to determine whether

if falls within one of § 237’s statutory grounds for re-

moval.” Id. The court explained the secondary analysis

under § 212(c) as follows:

The statutory counterpart requirement under

§ 212(c), on the other hand, presents an entirely

different question. In an application for

§ 212(c) relief—i.e. a discretionary waiver of

removal, the alien’s removability has already

26a

been established—i.e., it has already been de-

termined that the underlying crime for which

he has been convicted falls within one of INA

§ 237’s grounds for removal. The relevant

statutory counterpart inguiry then looks—not

to the underlying criminal conviction—but

rather to the statutory ground for removal con-

tained in INA § 237 and whether it has a coun-

terpoint in the statutory ground for exclusion

provisions of INA § 212(a). Under this cate-

gorical analysis, we compare the removal and

exclusion provisions of the INA to determine

whether they are substantially equivalent.

Id. (quotation marks omitted). The court concluded

that “the underlying crime for which [the petitioner]

was convicted plays no role in this inquiry. It is there-

fore irrelevant that [his] conviction ... could have sub-

jected him to removal as an alien convicted of a crime of

moral turpitude under INA § 237(a)(2)(A)(i).” Jd. at

168 (emphasis added). Comparing the underlying

criminal offense—instead of the statutory ground of

deportation—with the ground of inadmissibility haz-

ards the congruity between an alien in deportation pro-

ceedings and an alien in exclusion proceedings. This is

so because the underlying offense could be among a

wide array of inadmissible offenses, or not. With no

congruity established, the aliens in question are not

similarly situated, and equal protection is not impli-

cated.

We also are swayed by the Seventh Circuit’s ob-

servation that “if courts were to look beyond the

charged grounds of deportation to the underlying

criminal offense to determine whether the criminal of-

fense could have been treated as a crime of moral tur-

pitude, that would greatly expand the role Congress

27a

assigned the judiciary in immigration cases.” Zamora-

Mallan, 514 F.3d at 692 (referencing Komarenko).

This point is underscored in the following passage from

Abebe:

Congress has vested the executive branch

with discretion in whether, when, and how to

charge an alien with removal. How it exercises

that discretion will have a serious impact on the

life of a removable alien, whether it means

forcible removal from the country or the avail-

ability of section 212(c) relief. To hold that the

exercise of that discretion is unconstitutional

where it is not exercised in the most advanta-

geous way possible for a given alien under the

circumstances would open the door to a torrent

of claims. An alien is no more entitled to sec-

tion 212(c) relief when charged with a ground of

removal that has no statutory counterpart un-

der the INA’s inadmissibility provisions than a

defendant is entitled to a sentencing range con-

sistent with the least serious crime with which

he could have been charged.

Abebe, 554 F.3d at 1212 (Clifton, J., concurring).

Finally, we reiterate our aversion to the judicial

extension of a statute absent sufficient constitutional

justification. Extending it once does not empower a

court to extend it ad infinitum, without any foundation

in the statute or case law. When a rule, born of a series

of ad hoc judicial extensions to a statute, no longer

bears any passing resemblance to its parent legislation,

that rule is a creature of judicial legislation. We decline

to breathe further life into such a construct and hew to

the maxim that courts are charged with adjudication,

not legislation.

28a

De la Rosa was found deportable based upon his

conviction of the aggravated felony of sexual abuse of a

minor. Employing the categorical approach to the

statutory counterpart test, we look to whether the

grounds for his deportation have a statutory counter-

part to a crime involving moral turpitude under INA

§ 212(a). The BIA has determined that sexual abuse of

a minor does not have a statutory counterpart in the

crime of moral turpitude provision in § 212(a). See In re

Blake, 23 I. & N. Dee. at 729. Affording due deference

to the BIA’s interpretation of the INA, we conclude

that De la Rosa’s implicit equal protection argument

fails.

II. CONCLUSION

De la Rosa petitions for review of the BIA’s deci-

sion affirming the IJ’s determination that he was statu-

torily ineligible for a waiver of his deportation charge.

Applying the categorical approach to the statutory

counterpart test, we conclude that De la Rosa’s convic-

tion of the aggravated felony of sexual abuse of a minor

does not have a statutory counterpart in the grounds of

inadmissibility in § 212(a). Accordingly, he is ineligible

for § 212(c) relief.

AFFIRMED.

29a

APPENDIX B

U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: A42 086 274—Orlando, FLDate:[STAMP: JUN 10 2008]

In re: JOSE ERASMO DE LA ROSA a.k.a. Jose Delarosa

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Wilfred Calero,

Esquire

ON BEHALF OF DHS: Yon Alberdi

Assistant Chief Counsel

CHARGE:

Notice: Sec. 237(a)(2)(A)(iii), I&N Act [8 U.S.C.

§ 1227(a)(2)(A (iii) Convicted of ag-

gravated felony

Sec. 237(a)(2)(E)(i), I&N Act [8 U.S.C.

§ 1227(a)(2)(E)(i) Convicted of crime

of domestic violence, stalking, or child

abuse, neglect, or abandonment

APPLICATION: Section 212(c) waiver of inadmiss-

ability

ORDER:

PER CURIAM. The respondent, a native and citi-

zen of the Dominican Republic, conceded that he is re-

30a

movable from the United States under section

237(a)(2)(A (iii) of the Immigration and Nationality Act,

8 U.S.C. § 1227(a)(2)(A)(iii), for having been convicted

of an aggravated felony within the meaning of section

101(a)(48)(A) of the Act, 8 U.S.C. § 1101(a)(48)(A), spe-

cifically, for sexual abuse of a minor. The factual basis

for this charge was the respondent’s 1995 Florida con-

viction for the offense of lewd act upon a child (child

under 16 years old) in violation of section 800.04(8) of

the FLORIDA STATUTES ANNOTATED. The respondent

appeals from an Immigration Judge’s March 16, 2007

decision. In that decision the Immigration Judge con-

cluded, inter alia, that the respondent was statutorily

ineligible for a waiver of inadmissibility under former

section 212(c) of the Act, 8 U.S.C. § 1182(c) (repealed

1996). The appeal is dismissed.

This Board, in 2005, issued a precedent decision

holding that aliens removable on the basis of convic-

tions for sexual abuse of a minor are not eligible for sec-

tion 212(c) relief because the sexual abuse of a minor

aggravated felony category has no statutory counter-

part in the grounds of inadmissibility under section

212(a) of the Act, 8 U.S.C. § 1182(a). Matter of Blake,

23 I&N Dec. 722 (BIA 2005). Because the respondent

is removable as an alien convicted of sexual abuse of a

minor, Matter of Blake precludes him from obtaining a

section 212(c) waiver, without regard to discretionary

considerations. The Immigration Judge determined, in

accordance with the rationale set forth in the Board’s

decision in Matter of Blake, supra, that section 212(c)

relief was unavailable to the respondent. See also 8

C.F.R. § 1212.3(f)(5). We find no reversible error in

this determination. The reasoning was rejected by the

Second Circuit in Blake v. Carbone, 489 F.3d 88 (2d Cir.

2007), but has been accepted by three other circuits.

sla

Ramora-Mallari [sic] v. Mukasey, 514 F.3d 679 (7th

Cir. 2008); Vue v. Gonzales, 496 F.3d 858 (8th Cir. 2007);

Brieva-Perez v. Gonzales, 23 I&N Dec. 766 (BIA 2005),

aff'd, 482 F.3d 356 (5th Cir. 2007).

We note, moreover, that the rationale underlying

Matter of Blake, supra, has been expressly ratified in

precedent decisions of the Eleventh Circuit, in whose

jurisdiction this proceeding arises. Farquharson v.

U.S. Atty. Gen., 246 F.3d 1317, 1324-25 (11th Cir. 2001);

Rodriguez-Padron v. INS, 13 F.3d 1455, 1458-60 (11th

Cir. 1994). As the aggravated felony ground of removal

applicable in this case, sexual abuse of a minor under

section 101(a)(43)(A) of the Act, has no statutory coun-

terpart in the grounds of inadmissibility under section

212(a) of the Act, the aggravated felony charge cannot

be waived as a ground for deportability under former

section 212(c). We agree with the Immigration Judge

that the respondent is not eligible to apply for a section

212(c) waiver. Accordingly, we need not address the

remaining arguments presented on appeal; the appeal

is dismissed.

/s/__ [illegible]

FOR THE BOARD

33a

APPENDIX C

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

IMMIGRATION COURT

Orlando, Florida

File A 42 086 274

March 16, 2007

IN REMOVAL PROCEEDINGS

In the Matter of

DE LA ROSA, JOSE ERASMO

Respondent

CHARGES: Section 237(a)(2)(A)(iii) of the Immigra-

tion and Nationality Act in that at any

time after admission you have been con-

victed of an aggravated felony as defined

in Section 101(A)(43)(A) of the Immigra-

tion and Nationality Act relating to mur-

der, rape or sexual abuse of a minor.

Section 237(a)(2)(A)(i) of the Immigration

and Nationality Act in that you are an

alien who at any time after entry has been

convicted of a crime of domestic violence,

a crime of stalking, or a crime of child

abuse, child neglect or child abandonment.

APPLICATION: 212(c) waiver.

jAa

ON BEHALF OF THE

ON BEHALF OF THE DEPARTMENT OF

RESPONDENT: HOMELAND SECURITY:

Wilfred Calero, Esquire Yon K. Alberdi, Esquire

1802 N. Alafaya Trail Assistant Chief Counsel

Orlando, Florida 32826

ORAL DECISION OF THE IMMIGRATION JUDGE

The respondent was issued with his Notice to Ap-

pear dated May 17, 2004. The Notice to Appear states

that the respondent has been admitted to the United

States and it states further he was admitted to the

United States on or about March 5, 1989, as an immi-

grant. The allegation 4 of the Notice to Appear states

that the respondent was, on December 30, 1995, con-

victed in the Circuit Court for Orange County, Florida,

for the offense of lewd act upon a child under 16, in vio-

lation of Florida statute 800.04(3). The respondent has

admitted the allegations in the Notice to Appear and he

conceded the two charges of removability. Based upon

the respondent’s own admissions and the record, I con-

clude that the respondent’s removability has been es-

tablished, on both charges.

The respondent submitted an application for 2120

[sic] waiver. This has been marked as Exhibit 2 of the

Court’s record. The Government counsel submitted the

Immigrant Visa Alien Registration document showing

that the respondent was in fact admitted as an immi-

grant. This is marked as Exhibit 3. ‘Vhe copies of the

conviction records and Court documents from the re-

spondent’s convictions and arrests were marked as

Group Exhibit 4. All other documents in the file were

marked as Group Exhibit 5. All of these will be admit-

ted into evidence.

35a

The issue of removability having been resolved, the

sole issue before the Court is whether the respondent’s

application for relief from removal should be granted.

With respect to the respondent’s application for the

relief that he is seeking, being the 212(c) waiver, the

Government counsel has made a motion to pretermit

the respondent’s application for 212(c) waiver. The

Court will grant the Government counsel’s motion to

pretermit the 212(c) waiver. Government counsel’s

Motion is based upon the Board of Immigration Ap-

peals decision in the Matter of Blake, 23 I&N Dec. 722

(BIA 2005). In this decision, the Board stated that an

alien who is removable on the basis of his conviction for

sexual abuse of a minor is ineligible for a waiver under

former Section 212(c) of the Immigration and National-

ity Act because the aggravated felony ground of re-

moval with which he was convicted has no statutory

counterpart in the grounds of inadmissibility under

Section 212 (a) of the Act. As I stated, the respondent

was convicted of a lewd act upon a child which in the

Court papers is reflected as sexual abuse of a minor,

and the specific language is a minor under the age of 16

years. The record will reflect that the child was in this

case was 14 years old. Based upon that, the Court con-

cludes that the decision in the Matter of Blake applies

to the respondent’s case, therefore, making him ineligi-

ble to seek 212(c) waiver.

Since the respondent is not requesting any other

relief, the Court will pretermit the respondent’s appli-

cation since he is not eligible for 212 (c) waiver.

Since he is not seeking any other relief from re-

moval at this time and the Court has not found that he

is eligible for any other relief at this time, the following

order will be entered.

36a

ORDER

IT IS HEREBY ORDERED that the respondent’s

application for 212(c) waiver under former Section

212(c) of the Immigration and Nationality Act be pre-

termited.

IT IS HEREBY FURTHER ORDERED that the

respondent shall be removed from the United States to

the country of his citizenship, the Dominican Republic,

on the two charges in the Notice to Appear.

ls/

VICTORIA L. GHARTEY

Immigration Judge

March 16, 2007

37a

APPENDIX D

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

UNITED STATES IMMIGRATION COURT

BRADENTON, FLORIDA

File No. A 42 086 274

IN BOND PROCEEDINGS

Date: July 16, 2004

In the Matter of

DE LA ROSA, JOSE ERASMO

Respondent

ON BEHALF OF THE ON BEHALF OF SERVICE:

RESPONDENT:

Wilfred Calero Assistant Chief Counsel

5575 S. Semoran Blvd., Suite 1 Trial Attorney Unit-DHS'

Orlando, Florida 32822 515 11th Street West

Bradenton, Florida 34205-7727

BOND MEMORANDUM

The Respondent is a 31-year-old native and citizen

of the Dominican Republic. Although no Notice to Ap-

pear has been filed yet, the I-213 indicates that the Re-

‘The Homeland Security Act of 2002, as amended, trans-

ferred the enforcement, services, and administrative functions of

the Immigration and Naturalization Service (“Service”) to the De-

partment of Homeland Security (“Department”). 68 Fed. Reg.

9824 (2003).

38a

spondent entered the United States on March 5, 1989,

in New York City, New York as Lawful Permanent

Resident (“LPR”). On August 25, 1998, the Respon-

dent filed a form N-600, Application for Naturalization,

which is still pending. The I-213 also indicates that on

December 13, 1995, the Respondent was convicted in

the Circuit Court in and for Orange County, Florida for

the offense of Lewd Act upon a Child under 16 years of

age in violation of Florida Statute 800.04(8). For this

offense, the Respondent was sentenced to 3 years of

supervised probation. In April 1998, the Respondent

violated his probation and was sentenced to 2 more

years of supervised probation. On March 10, 1998, the

Respondent was arrested and placed in jail. After

pleading no contest to the offense of Resisting an Offi-

eer Without Violence, he was released from custody

and adjudication of guilt was withheld.

The Respondent appeared before the Immigration

Judge on July 14, 2004, and a bond hearing took place.

The Immigration Judge, hearing all the relevant evi-

dence reduced the bond from “No Bond” to $5,000. The

Department now appeals that decision.

The Respondent’s criminal conviction places him

under section 236(c) of the Act. Section 236(c)(1)(B) of

the Act provides for mandatory custody of any alien

convicted of an aggravated felony. However, aliens re-

leased from custody prior to the expiration of the Tran-

sition Period Custody Rules (“TPCR”) are not subject

to mandatory custody. Matter of Adeniji, 22 I&N Dec.

1102 (BIA 1999). The TPCR expired on October 8,

1998. See Id. The Respondent was last released from

custody in March 1998. Therefore, the Respondent is

not subject to mandatory custody under section 236(c)

of the Act.

39a

Because section 236(c) of the Act is inapplicable in

the Respondent’s case, section 236(a) of the Act gov-

erns. See Matter of Adeniji, 22 I&N Dec. 1102 (BIA

1999). Under section 236(a)(2)(A) of the Act, the Re-

spondent may be released on bond. See INA

§ 236(a)(2)(A). However, pursuant to 8 C.F.R.

§ 236.1(¢c)(8) (1999), a criminal alien in a custody deter-

mination under section 236(a) of the Act must establish

that he or she does not present a danger to property or

persons and that he or she is likely to appear for any

future proceeding. Jd.

The Respondent is a 31-year-old native and citizen

of the Dominican Republic. He came to the United

States as a LPR in 1989 and has resided in the United

States for fifteen years. He lives in Orlando with his

Mexican wife. The Respondent is the father of two

USC children. His LPR mother, United States Citizen

father, three brothers, and three sisters all live in the

United States. The Respondent owns two automobiles

and a home in Orlando. The Respondent is empioyed.

After hearing all the evidence, the Court concluded

that the Respondent is the father of two USC children

and has lived in and established positive ties in the Or-

lando community for many years. In addition, the Re-

spondert has the support of his family in the United

States, a good work history, and it appears that the Re-

spondent has been rehabilitated. The Respondent does

not present a risk of flight nor a danger to his commu-

nity.

The Immigration Judge considered the following

evidence when making the bond determination: the

judgment and conviction records, I-213, and the admis-

sions of the Respondent.

Dated this 16th day of June, 2004.

40a

/s/ R. Kevin McHugh

Honorable R. Kevin McHugh

UNITED STATES IMMIGRATION JUDGE

4la

APPENDIX E

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 08-13861-FF

Agency No. A42-086-274

JOSE ERASMO DE LA ROSA,

Petitioner,

v.

U.S. ATTORNEY GENERAL,

Respondent.

On Petition for Review ofa Final Order of the

Board of Immigration Appeals

[STAMP: FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

OCT 07 2008

THOMAS K. KAHN

CLERK]

BEFORE: BIRCH, DUBINA, and BLACK, Circuit

Judges.

BY THE COURT:

Because Petitioner has not and cannot demonstrate

that the Board’s June 10, 2008, order is based on a

clear-cut error of established law, Petitioner’s motion

to stay his removal is DENIED. See Weng v. Attorney

General, 287 F.3d 1335, 1340 (11th Cir. 2002) (per cu-

riam).

42a

In the absence of binding precedent which directly

addresses and resolves the issue Petitioner raises in his

motion, the Attorney General’s motion for summary

affirmance is DENIED.

43a

APPENDIX F

EXCERPTS OF THE

ADMINISTRATIVE RECORD BEFORE THE

BOARD OF IMMIGRATION APPEALS

February 15, 2006 Hearing Before

Immigration Judge Victoria Ghartey

(AR 46-52)

* * *

JUDGE TO MR. CALERO

So, he’s denying the second charge?

Yes, Your Honor.

And he’s seeking what relief?

212(c), Your Honor.

* * *

JUDGE TO MS. RAMIREZ

Q. Ms. Ramirez, any comments on the respon-

dent’s indication that he’s seeking 212(c) relief?

A. He appears eligible. * * *

>O>e

Q. Ms. Ramirez, speak up.

A. Okay. I said, Your Honor, that it appears that

he’s eligible * * *

* * *

JUDGE FOR THE RECORD

* * * Okay, so I have the application for 212(c)

here. I will mark that as Exhibit 2 of the Court’s re-

cord. * * * We'll schedule this for individual hearing.

* * *

44a

March 16, 2007 Hearing Before

Immigration Judge Victoria Ghartey

(AR 67-62)

JUDGE FOR THE RECORD

*** This is a continuation of removal hearing be-

fore Immigration Judge Victoria Ghartey[.] *** I re-

scheduled this for you to talk to the respondent the last

time that we met. The question of the respondent’s

statutory eligibility was discussed, for 212(c) was dis-

cussed, and the respondent attorney was informed that

because of the Board decision in the Matter of Blake,

the respondent would not be able to seek 212(c) waiver

at this time. * * *

JUDGE TO MR. ALBERDI

Q. Okay, is there any comment, motion from ei-

ther side, Government? Any motion from the Govern-

ment?

A. The Government would move to pretermit it all

pending relief at this time, pursuant to Matter of Blake,

issued by the BIA. The respondent is not eligible for

212(c) due to his conviction for sexual abuse of a minor.

The Government asks that all relief be pretermitted at

this time and that the respondent be ordered removed

from his country of citizenship, the Dominican Repub-

lic.

45a

APPENDIX G

REPRESENTATIVE CASES ADDRESSING

SECTION 212(C) ELIGIBILITY

IN LIGHT OF MATTER OF BLAKE

FIRST CIRCUIT

Gonzalez-Mesias v. Mukasey, 529 F.3d 62 (1st Cir.

2008)

Dalombo Fontes v. Gonzales, 483 F.3d 115 (1st Cir.

2008)

Kim v. Gonzales, 468 F.3d 58 (1st Cir. 2006)

Matter of Sanchez, 2008 WL 3919110 (BIA July 29,

2008)

Matter of Hercules, 2008 WL 3919079 (BIA July 23,

2008)

Matter of Jacques, 2007 WL 2463895 (BIA July 25,

2007)

Matter of Pimentel, 2006 WL 2803375 (BIA July 26,

2006)

SECOND CIRCUIT

Webster v. Mukasey, 259 Fed. Appx. 375 (2d Cir. 2008)

Blake v. Carbone, 489 F.3d 88 (2d Cir. 2007)

Matter of Mejicanos-Estrada, 2008 WL 2517578 (BIA

June 6, 2008)

Matter of Vargas-Gonzalez, 2008 WL 655900 (BIA Feb.

11, 2008)

Matter of Penalo- Almonte, 2007 WL 2463986 (BIA July

31, 2007)

Matter of Shakeri, 2006 WL 901562 (BIA Mar. 10, 2006)

46a

Matter of Bo Feng, 2006 WL 901498 (BIA Mar. 9, 2006)

Matter of Donaldson, 2005 WL 3802267 (BIA Nov. 28,

2005)

THIRD CIRCUIT

Francois v. Mukasey, 264 Fed. Appx. 211 (3d Cir. 2008)

Sudol v. Mukasey, 300 Fed. Appx. 157 (3d Cir. 2008)

Caroleo v. Gonzales, 476 F.3d 158 (8d Cir. 2007)

Birkett v. Mukasey, 252 Fed. Appx. 516 (3d Cir. 2007)

Calderon-Minchola v. Mukasey, 258 Fed. Appx. 425

(3d Cir. 2007)

Matter of Evelyn, 2007 WL 4711417 (BIA Dec. 21, 2007)

Matter of Colato, 2006 WL 448280 (BIA Jan. 25, 2006)

Matter of Singh, 2006 WL 448165 (BIA Jan. 18, 2006)

Matter of Martinez-Madrid, 2005 WL 1111829 (BIA

Apr. 20, 2005)

FIFTH CIRCUIT

Leon-Medina v. Holder, 2009 WL 3489616 (5th Cir. Oct.

29, 2009)

Popoca v. Holder, 320 Fed. Appx. 252 (5th Cir. 2009)

Cantu v. Mukasey, 267 Fed. Appx. 321 (5th Cir. 2008)

Ruiz v. Mukasey, 296 Fed. Appx. 429 (5th Cir. 2008)

Feliz v. Mukasey, 290 Fed. Appx. 764 (5th Cir. 2008)

Firoozfar v. Mukasey, 292 Fed. Appx. 371 (5th Cir.

2008)

Garza-Garcia v. Mukasey, 293 Fed. Appx. 282 (5th Cir.

2008)

47a

Melgar v. Mukasey, 294 Fed. Appx. 174 (5th Cir. 2008)

Pham v. Mukasey, 297 Fed. Appx. 335 (5th Cir. 2008)

Cruz-Marquina v. Mukasey, 303 Fed. Appx. 248 (5th

Cir. 2008)

Vo v. Gonzales, 482 F.3d 363 (5th Cir. 2007)

Avilez-Granados v. Gonzales, 481 F.3d 869 (5th Cir.

2007)

Brieva-Perez v. Gonzales, 482 F.3d 356 (5th Cir. 2007)

De la Paz Sanchez v. Gonzales, 473 F.3d 133 (5th Cir.

2006)

Matter of Villarreal-Perez, 2009 WL 1800073 (BIA

June 5, 2009)

Matter of Bright, 2008 WL 5537804 (BIA Dec. 23, 2008)

Matter of Lozano-Torres, 2008 WL 5181736 (BIA Nov.

21, 2008)

Matter of Trevino-Hernandez, 2008 WL 5181797 (BIA

Nov. 14, 2008)

Matter of Ramcharran, 2008 WL 4420107 (BIA Sept.

23, 2008)

Matter of Reyes-Huereca, 2008 WL 486877 (BIA Jan.

29, 2008)

Matter of Huynh, 2007 WL 4182297 (BIA Oct. 16, 2007)

Matter of Frawco, 2007 WL 2074494 (BIA June 11,

2007)

Matter of Gardea-Perez, 2007 WL 275815 (BIA Jan. 18,

2007)

Matter of Castillo-Salinas, 2006 WL 3485843 (BIA Oct.

12, 2006)

48a

Matter of Dominguez-Vega, 2006 WL 3088960 (BIA

Sept. 8, 2006)

SIXTH CIRCUIT

Koussan v. Holder, 556 F.3d 403 (6th Cir. 2009)

Thap v. Mukasey, 544 F.3d 674 (6th Cir. 2008)

United States v. Valencia-Perez, 2005 WL 2436453

(W.D. Mich. Oct. 3, 2005)

Matter of Erb, 2007 WL 4699927 (BIA Dee. 11, 2007)

Matter of Cisneros-Garcia, 2006 WL 3712434 (BIA

Nov. 28, 2006)

SEVENTH CIRCUIT

De Leon v. Holder, 2009 WL 1811219 (7th Cir. June 25,

2009)

Zamora-Mallari v. Mukasey, 514 F.3d 679 (7th Cir.

2008)

Valere v. Gonzales, 473 F.3d 757 (7th Cir. 2007)

Ryan v. Gonzales, 222 Fed. Appx. 528 (7th Cir. 2007)

Matter of Baptiste, 2007 WL 4707376 (BIA Dec. 14,

2007)

Matter of Ghonim, 2007 WL 1794209 (BIA May 30,

2007)

Matter of Dominguez-Arizmendi, 2007 WL 1724850

(BIA May 22, 2007)

Matter of Arellano-Vasquez, 2006 WL 2008248 (BIA

May 24, 2006)

EIGHTH CIRCUIT

Soriano v. Gonzales, 489 F.3d 909 (8th Cir. 2007)

49a

Vue v. Gonzales, 496 F.3d 858 (8th Cir. 2007)

Matter of Mancillas-Ruiz, 2009 WL 3250427 (BIA

Sept. 28, 2009)

Matter of Gonzales-Aguilar, 2007 WL 1676901 (BIA

May 17, 2007)

NINTH CIRCUIT

United States v. Moriel-Luna, __

3461925 (9th Cir. Oct. 29, 2009)

Abebe v. Holder, 554 F.3d 1203 (9th Cir. 2009)

Kwong v. Holder, 2009 WL 2981875 (9th Cir. Sept. 17,

2009)

Mendez-Hernandez v. Holder, 332 Fed. Appx. 443 (9th

Cir. 2009)

Eski v. Mukasey, 266 Fed. Appx. 669 (9th Cir. 2008)

Judulang v. Gonzales, 249 Fed. Appx. 499 (9th Cir.

2007)

Maaref v. Gonzales, 240 Fed. Appx. 202 (9th Cir. 2007)

Sosa v. Gonzales, 234 Fed. Appx. 777 (9th Cir. 2007)

Rodriguez-Mata v. Gonzales, 235 Fed. Appx. 557 (9th

Cir. 2007)

Matter of Obrique, 2008 WL 2401056 (BIA May 23,

2008)

Matter of Rodriguez-Rodriguez, 2008 WL 2401052 (BIA

May 23, 2008)

Matter of Kawamura, 2008 WL 1734661 (BIA Mar. 28,

2008)

Matter of Quoc Bui, 2008 WL 762666 (BIA Mar. 6,

2008)

F.3d _, 2009 WL

50a

Matter of Castillo, 2008 WL 486908 (BIA Jan. 30, 2008)

Matter of Arellano-De Fitzpatrick, 2007 WL 2463888

(BIA July 24, 2007)

Matter of Nungaray-Guardado, 2007 WL 1676940 (BIA

May 21, 2007)

Matter of Lopez-Loera, 2007 WL 1114110 (BIA Mar. 27,

2007)

Matter of Vergara-Ramirez, 2007 WL 1125658 (BIA

Feb. 23, 2007)

Matter of Aldaco-Zarate, 2007 WL 275735 (BIA Jan.

11, 2007)

Matter of Gonzalez, 2006 WL 3922219 (BIA Dec. 14,

2006)

Matter of Escobedo-Cortinez, 2006 WL 3712532 (BIA

Dec. 7, 2006)

Matter of Gonzalez-Uribe, 2006 WL 3712539 (BIA Dec.

6, 2006)

Matter of Cabarle, 2006 WL 3203691 (BIA Aug. 31,

2006)

Matter of Contreras-Vega, 2006 WL 3252538 (BIA Aug.

17, 2006)

Matter of Bueno, 2006 WL 3088798 (BIA Aug. 9, 2006)

Matter of Paredes-Osuna, 2006 WL 2803403 (BIA Aug.

1, 2006)

Matter of Knust De Meester, 2006 WL 2183533 (BIA

June 20, 2006)

Matter of Garcia-Garcia, 2006 WL 2183535 (BIA June

20, 2006)

5la

Matter of Rodriguez-Rocha, 2006 WL 2008216 (BIA

May 18, 2006)

Matter of Agbayani Agbayani, 2006 WL 1647443 (BIA

May 15, 2006)

Matter of Delos Reyes, 2006 WL 901514 (BIA Mar. 8,

2006)

Matter of Banwelos-Delena, 2006 WL 901335 (BIA Mar.

2, 2006)

Matter of Gomez-Perez, 2006 WL 901334 (BIA Mar. 1,

2006)

Matter of Mendez Camarillo, 2006 WL 448304 (BIA

Jan. 26, 2006)

Matter of Aigner, 2006 WL 448285 (BIA Jan. 25, 2006)

Matter of Carreon-Garcia, 2006 WL 448269 (BIA Jan.

24, 2006)

Matter of Martinez, 2006 WL 448175 (BIA Jan. 17,

2006)

Matter of Rodriguez-Contreras, 2006 WL 448178 (BIA

Jan. 17, 2006)

Matter of Cardona, 2005 WL 3709244 (BIA Dec. 27,

2005)

Matter of Cruz-Bravo, 2005 WL 3709363 (BIA Dec. 19,

2005)

Matter of Palomares-Quintero, 2005 WL 3952748 (BIA

Aug. 30, 2005)

Matter of Parada-Chicas, 2005 WL 1766768 (BIA May

4, 2005)

Matter of Hernandez-Vanegas, 2005 WL 1111836 (BIA

Apr. 21, 2005)

52a

TENTH CIRCUIT

Falaniko v. Mukasey, 272 Fed. Appx. 742 (10th Cir.

2008)

Alvarez v. Mukasey, 282 Fed. Appx. 718 (10th Cir.

2008)

Maiter of Arellano Garcia, 2009 WL 3250483 (BIA

Sept. 21, 2009)

Matter of Filo Lomu, 2005 WL 3802278 (BIA Nov. 25,

2005)

ELEVENTH CIRCUIT

Garcia v. Mukasey, 309 Fed. Appx. 306 (11th Cir. 2009)

Barton v. Att’y General, 2009 WL 1606823 (11th Cir.

June 10, 2009)

Sanchez-Becerra v. Mukasey, 289 Fed. Appx. 352 (11th

Cir. 2008)

Palomino-Abad v. Gonzales, 229 Fed. Appx. 891 (11th

Cir. 2007)

Rubio v. Gonzales, 182 Fed. Appx. 925 (11th Cir. 2006)

Matter of Romero-Garcia, 2008 WL 5244672 (BIA Nov.

25, 2008)

Matter of Hamdallah, 2008 WL 5181728 (BIA Nov. 21,

2008)

Matter of Tadesse Desta, 2006 WL 3485618 (BIA Oct.

17, 2006)

Matter of Rodriguez, 2006 WL 2803398 (BIA Aug. 3,

2006)

Matter of Dickson, 2006 WL 901555 (BIA Mar. 18,

2006)

58a

APPENDIX H

STATUTORY PROVISIONS

Section 212(a) of the Immigration and National-

ity Act, codified at 8 U.S.C. § 1182, provides in rele-

vant part:

(a) Classes of aliens ineligible for visas or admission

Except as otherwise provided in this chapter,

aliens who are inadmissible under the following para-

graphs are ineligible to receive visas and ineligible to

be admitted to the United States:

* * *

(2) Criminal and related grounds

(A) Conviction of certain crimes

(i) In general

Except as provided in clause (ii), any alien con-

victed of, or who admits having committed, or who ad-

mits committing acts which constitute the essential

elements of—

(I) a crime involving moral turpitude (other than a

purely political offense) or an attempt or conspiracy to

commit such a crime, or

(II) a violation of (or a conspiracy or attempt to vio-

late) any law or regulation of a State, the United

States, or a foreign country relating to a controlled

substance (as defined in section 802 of Title 21),

is inadmissible.

54a

Former Section 212(c) of the Immigration and

Nationality Act, codified at 8 U.S.C. § 1182(c) (1996),

repealed April 1, 1997, provides in relevant part:

Aliens lawfully admitted for permanent residence

who temporarily proceeded abroad voluntarily and not

under an order of deportation, and who are returning to

a lawful unrelinquished domicile of seven consecutive

years, may be admitted in the discretion of the Attor-

ney General without regard to the provisions of subsec-

tion (a) of this section ... . The first sentence of this sub-

section shall not apply to an alien who has been con-

victed of one or more aggravated felonies and has

served for such felony or felonies a term of imprison-

ment of at least 5 years.

Section 231 (formerly Section 241) of the Immi-

gration and Nationality Act, codified at 8 U.S.C. §

1227, provides in relevant part:

(a) Classes of deportable aliens

Any alien (including an alien crewman) in and ad-

mitted to the United States shall, upon the order of the

Attorney General, be removed if the alien is within one

or more of the following classes of deportable aliens:

* *& *

(2) Criminal offenses

(A) General crimes

(i) Crimes of moral turpitude

Any alien who—

(1) is convicted of a crime involving moral turpitude

committed within five years (or 10 years in the case of

an alien provided lawful permanent resident status un-

55a

der section 1255(j) of this title) after the date of admis-

sion, and

(11) is convicted of a crime for which a sentence of

one year or longer may be imposed,

is deportable.

(11) Multiple criminal convictions

Any alien who at any time after admission is con-

victed of two or more crimes involving moral turpitude,

not arising out of a single scheme of criminal miscon-

duct, regardless of whether confined therefor and re-

gardless of whether the convictions were in a single

trial, is deportable.

(iii) Aggravated felony

Any alien who is convicted of an aggravated felony

at any time after admission is deportable.

8 U.S.C. § 1101(a)(43) provides in relevant part:

The term “aggravated felony” means—

(A) murder, rape, or sexual abuse of a minor;

(B) illicit trafficking in a controlled substance (as

defined in section 802 of Title 21), including a drug traf-

ficking crime (as defined in section 924(c) of Title 18);

* ee

(F) a crime of violence (as defined in section 16 of

Title 18, but not including a purely political offense) for

which the term of imprisonment at least one year;

* * *

The term applies to an offense described in this

paragraph whether in violation of Federal or State law

56a

and applies to such an offense in violation of the law of a

foreign country for which the term of imprisonment

was completed within the previous 15 years. Notwith-

standing any other provision of law (including any ef-

fective date), the term applies regardless of whether

the conviction was entered before, on, or after Septem-

ber 30, 1996.

ova

APPENDIX I

REGULATORY PROVISIONS

8 C.F.R. § 1212.3(f)(5) provides in relevant part:

An application for relief under former section 212(c)

of the Act shall be denied if:

x * *

(5) The alien is deportable under former Section

241 of the Act or removable under section 237 of the

Act on a ground which does not have a statutory coun-

terpart in section 212 of the Act.

59a

APPENDIX J

Matter of JUAN REYNALD DAVILA MUNOZ

a.k.a. Juan Reynaldo Davila

File: A35 279 774 -- Houston

Board of Immigration Appeals

28 Immig. Rptr. B1-1

AUG 07 2003

HOLDING

The BIA sustained respondent’s appeal in part and

dismissed it in part, finding that respondent did not ob-

tain citizenship at birth but that he was eligible to ap-

ply for a waiver of inadmissibility under former § 212(c)

of the INA. With regard to respondent’s citizenship

claim, the BIA found insufficient evidence to support

the finding that respondent’s father had lived in the

U.S. for 5 years after he turned 16 but prior to the time

of respondent’s birth, elements necessary to prove citi-

zenship by birth. With regard to respondent’s eligibil-

ity for a waiver of inadmissibility, the BIA found that

respondent fell squarely within the class of persons

covered by INS v. St. Cyr, 533 U.S. 289 (2001) who are

entitled to seek a waiver under former § 212(c) of the

INA in removal proceedings. The BIA also found that

the absence of a specific aggravated felony ground in

§ 212(a) of the INA did not preclude respondent from

obtaining a § 212(c) waiver since there is a correspond-

ing ground of inadmissibility to the crime of aggravated

assault on a peace officer in § 212(a)(2)(A)(i)(I) of the

INA, conviction of a crime involving moral turpitude.

Although the BIA previously rejected this “corre-

60a

sponding ground” analysis, it found it appropriate in

this case, given the fact that Congress had allowed

those aggravated felons who served less than 5 years in

prison to be eligible for relief through former § 212(c)

relief. Based on these findings, the BIA remanded the

record to allow respondent to apply for a waiver of in-

admissibility.

SUMMARY OF ISSUES

CITIZENSHIP: The BIA found that respondent

did not automatically acquire citizenship at birth

through his father since he was unable to present

enough evidence to show that his father had lived in the

USS. for 5 years after he turned 16 but prior to the time

of respondent’s birth, elements necessary to prove citi-

zenship by birth.

WAIVER OF INADMISSIBILITY: The BIA

found that respondent, an aggravated felon who was

convicted of aggravated assault on a peace officer, was

eligible for a waiver of inadmissibility under former

§ 212(c) of the INA as a result of the Supreme Court’s

decision in INS v. St. Cyr, 533 U.S. 289 (2001) and the

fact that a corresponding ground of inadmissibility was

present in § 212(a)(2)(A)(i)(I) of the INA.

FACTS

Respondent, a native and citizen of Mexico, entered

the U.S. in 1976 as a lawful permanent resident. In

1991, he was convicted of aggravated assault on a peace

officer. In 1998, DHS (formerly INS) initiated removal

proceedings against him. Respondent denied the alle-

gations against him, contending that he acquired U.S.

citizenship at birth through his father. The IJ contin-

ued the case several times to allow DHS to consider re-

spondent’s Application for Certificate of Citizenship.

6la

DHS denied the application, finding that respondent

failed to present enough evidence to show that his fa-

ther met the 10 year residency requirement. The IJ

also found that respondent had not submitted enough

evidence to establish that he acquired U.S. citizenship

at birth. Last, the IJ found that respondent was ineli-

gible for a waiver of inadmissibility under former §

212(c) of the INA because there was no corresponding

ground of exclusion in § 212(a) for the aggravated fel-

ony ground with which he was charged. Respondent

appealed.

CROSS-REFERENCES

Immigration Law and Procedure chaps. 1, 2, 74, 91,

98.

COUNSEL: COUNSEL: ON BEHALF OF RE-

SPONDENT: Kaye Ellis Stone, Esquire

ON BEHALF OF DHS: Merilee Fong, Assistant

District Counsel

Before: Patricia A. Cole, Board Member

OPINION BY: Cole, Board Member.

OPINION: On March 20, 2003, an Immigration

Judge found that the respondent had failed to present

sufficient evidence to show that he was a United States

citizen and determined that the respondent was ineligi-

ble to apply for a waiver of inadmissibility under for-

mer section 212(c) of the Immigration and Nationality

Act, 8 U.S.C. § 1182(c). The respondent has appealed

from this decision. The appeal will be sustained in part

and dismissed in part, and the record will be remanded

to the Immigration Judge for further proceedings con-

sistent with this order.

62a

I. BACKGROUND

The respondent was born in Mexico on October 28,

1952 and was admitted to the United States as a lawful

permanent resident on March 2, 1976. On July 1, 1991,

he was convicted of aggravated assault on a peace offi-

cer. He was sentenced to 2 years in prison for this

crime. In addition, on December 15, 1998, the Depart-

ment of Homeland Security (the “DHS,” formerly the

Immigration and Naturalization Service) initiated re-

moval proceedings against him by filing a Notice to

Appear with the immigration court. The respondent

denied all of the allegations against him, including the

allegation that he was not a citizen of the United

States. The respondent claimed that his father was

born in the United States and that his father had re-

sided here for at least 10 years before the respondent’s

birth. The respondent therefore argued that he ac-

quired United States citizenship automatically at birth

through his father. See section 201 (g), Nationality Act

of 1940, 8 U.S.C. § 1151(g)(1940).'

The Immigration Judge continued the respondent’s

case to allow him to file an Application for Certificate of

Citizenship (N-600) with the DHS. The DHS, however,

denied the application on April 3, 2000. The DHS found

that the respondent had failed to present sufficient evi-

' Because the respondent was born before December 24, 1952,

he is subject to section 201(g) of the Nationality Act of 1940 rather

than section 301 (g) of the Immigration and Nationality Act, 8

U.S.C. § 1401(g), the more recent. provision. Section 201(g) states

that an alien’s parent must have resided in the United States for

10 years before the alien’s birth, 5 of which were after the alien's

parent turned 16 before the alien can become a citizen at birth.

See section 201(g) of the Nationality Act.

63a

dence to show that his father met the 10 year residency

requirement. See Exhibit 5. Nevertheless, the DHS

granted the respondent’s brother’s Application for Cer-

tificate of Citizenship on April 25, 2003. See Exhibit 7A

(documents obtained from DHS through Freedom of

Information Act request). The respondent therefore

attempted to have the DHS reconsider his application.

Both the Immigration Judge and the DHS attorney at

the respondent’s hearing agreed that reconsideration

was appropriate, and the Immigration Judge continued

the respondent’s case several times to allow the DHS to

conduct its review (Tr. at 11-14, 17-18, 21-23).

After assessing the evidence the respondent’s

brother had submitted in support of his application, the

DHS found no basis for reversing its original ruling in

the respondent’s case. See Exhibit 9 (Memorandum

from Debra K. Lewis to File). The Immigration Judge

also found that the respondent had not submitted

enough evidence to establish that he acquired United

States citizenship at birth (I.J. at 2-4). In addition, the

Immigration Judge found that the respondent was in-

eligible for a waiver of inadmissibility under former

section 212(c) of the Act because there was no corre-

sponding ground of exclusion in section 212(a) of the

Act for the aggravated felony ground in section 237(a)

of the Act under which he was charged (IJ. at 4-5).

The respondent has appealed from each of these find-

ings.

Il. CITIZENSHIP

In the case of an alien like the respondent who has

been admitted to the United States, the burden is on

the DHS to establish removability. See section

240(c)(3)(A) of the Act, 8 U.S.C. § 1229a(c)(3)(A). This

burden includes establishing alienage, and the DHS

64a

met that burden in the respondent’s case by establish-

ing his foreign birth. See Exhibit 4A (respondent’s

birth certificate); Matter of Leyva, 16 I&N Dec. 118, 119

(BIA 1977) (finding that evidence of foreign birth gives

rise to a rebuttable presumption of alienage and shifts

the burden to the respondent to produce some evidence

of citizenship); Matter of Tijerina-Villarreal, 13 1&N

Dec. 327 (BIA 1969). The respondent therefore must

present some evidence of citizenship to overcome the

DHS’s proof of alienage. See Matter of Leyva, supra;

Matter of Tijerina-Villarreal, supra.

The respondent claims on appeal that his evidence

is sufficient to show that his father met the residence

requirements of section 201(g) of the Nationality Act of

1940, but we disagree. Like the Immigration Judge, we

find insufficient evidence in the record to show that the

respondent’s father resided in the United States for 5

years after he reached age 16 and before the respon-

dent was born on October 28, 1952. The respondent’s

father testified during the respondent’s brother’s im-

migration proceeding and indicated that he left the

United States in 1932 and then returned to this country

to work in 1949 or 1950. See Exhibit 13, Transcript of

Respondent’s Brother’s Proceedings, at 30, 32-33. In an

affidavit, the respondent’s father stated that he came to

the United States for a few months each year between

1945 and 1951 to do seasonal agricultural work and then

returned to this country almost full-time starting in

1951 or 1952. See Exhibit 7A, at 20-22. Under either

of these scenarios, we cannot conclude that the respon-

dent’s father was in the United States for 5 years be-

tween 1943, the year he turned 16 years old, and Octo-

ber 28, 1952, the date the respondent was born. And

the other evidence of record does not alter this conclu-

65a

sion. See, e.g., Exhibits 6, 7, 10B, 13; see also Matter of

Tyerina-Villarreal, supra, at 330-31.

Moreover, the fact that the respondent’s brother

was able to obtain a certificate of citizenship does not

necessarily establish that the respondent is eligible.

The respondent’s brother was born in 1960 and there-

fore is subject to slightly different requirements. See

section 301(g) of the Act, 8 U.S.C. § 1401(g). In addi-

tion, he only had to show that his father was in this

country for 5 years between 1941 and his birth in 1960.

He therefore had an additional 8 years within which to

establish his father’s presence. In this case, it appears

that the extra 8 years was critical to his case.

In light of the above, we find that the Immigration

Judge was correct to conclude that the respondent’s

evidence is not sufficient to rebut the presumption of

alienage in his case. We therefore affirm the Immigra-

tion Judge’s ruling on this issue and find that the re-

spondent is subject to removal.

Ill. SECTION 212(c) WAIVER

On the other hand, we find that the Immigration

Judge erred in pretermitting the respondent’s applica-

tion for a waiver of inadmissibility under former section

212(c) of the Act. First, the respondent falls squarely

within the class of persons covered by the United

States Supreme Court’s ruling in JNS v. St. Cyr, 533

U.S. 289 (2001). The respondent is a lawful permanent

resident with well over 7 years’ lawful domicile in this

country and he pled guilty te his offense before Con-

gress enacted the Antiterrorism and Effective Death

Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214

(“AEDPA”) and the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996, Division C of

66a

Pub. L. No. 104-208, 110 Stat 3009-546 (““IIRIRA”). He

therefore is entitled to seek a waiver under former sec-

tion 212(c) of the Act in removal proceedings.

And the absence of a specific aggravated felony

ground in section 212(a) of the Act does not prevent the

respondent from obtaining a section 212(c) waiver.

Generally, a waiver under former section 212(c) of the

Act was only available to waive grounds of deportabil-

ity that had corresponding grounds of inadmissibility in

section 212(a) of the Act. See Matter of Hernandez-

Casillas, 20 I&N Dec. 262 (A.G. 1991). Nevertheless,

we have found that an alien convicted of an aggravated

felony may be eligible for a waiver under section 212(c)

of the Act when the conviction could also lead to inad-

missibility under section 212(a) of the Act See Matter of

Meza, 20 I&N Dec. 257, 259 (BIA 1991). In Meza, su-

pra, we rejected the principle that a section 212(c)

waiver is unavailable to an alien convicted of an aggra-

vated felony simply because no ground of exclusion ex-

pressly recites the words “convicted of an aggravated

felony.” Id. The alien in Meza, supra, had been con-

victed of a drug trafficking crime, an aggravated felony,

and would have been inadmissible under then-section

212(a)(23) of the Act as result of the conviction. We

found that, in light of the corresponding section

212(a

This text is long and has been trimmed here. Open the source document for the complete record.