Guaylupo-Moya v. Gonzales

• Decision Date: 12 September 2005
• Docket Number: Docket No. 04-5479 PR.
• Citation: 423 F.3d 121
• Parties: Arturo Rafael GUAYLUPO-MOYA, Petitioner-Appellant, v. Alberto R. GONZALES, Attorney General of the United States,<SMALL><SUP>*</SUP></SMALL> Edward McElroy, New York District Director for Immigration and Naturalization Service, Ins, Respondents-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

423 F.3d 121

Arturo Rafael GUAYLUPO-MOYA, Petitioner-Appellant, v. Alberto R. GONZALES, Attorney General

of the United States,^* Edward McElroy, New York District Director for Immigration and Naturalization Service, Ins, Respondents-Appellees.

Docket No. 04-5479 PR.

United States Court of Appeals, Second Circuit.

Argued: April 20, 2005.

Decided: September 12, 2005.

Jorge Guttlein, Aranda & Guttlein, New York, NY, for Petitioner-Appellant.

Patricia L. Buchanan, Assistant United States Attorney (David N. Kelley, United States Attorney for the Southern District of New York; Kathy S. Marks, Assistant United States Attorney, on the brief), for Respondents-Appellees.

Before: KEARSE, JACOBS, and STRAUB, Circuit Judges.

STRAUB, Circuit Judge.

Petitioner-appellant Arturo Rafael Guaylupo-Moya brought a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 challenging a final administrative order of removal by the Board of Immigration Appeals ("BIA"), and he now appeals from the judgment of the United States District Court for the Southern District of New York (Naomi Reice Buchwald, Judge) denying his petition in an unpublished memorandum and order. Guaylupo-Moya is a lawful permanent resident whose removal order was based on a February 3, 1997, conviction for attempted rape in the second degree in violation of New York state law. Before the District Court and on appeal, Guaylupo-Moya has argued that he is eligible for a discretionary waiver of deportation based on extreme family hardship under section 212(h) of the Immigration and Nationality Act of 1952 ("INA"), codified as amended at 8 U.S.C. § 1182(h).

It is uncontested that, under the law at the time of Guaylupo-Moya's conviction, he is ineligible for a section 212(h) waiver because of two provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. No. 104-208, Div. C., Title III, 110 Stat. 3009-546, enacted September 30, 1996: Section 348(a) of IIRIRA amended section 212(h) to preclude family hardship waivers for lawful permanent residents convicted of an "aggravated felony," and section 321(a) of IIRIRA simultaneously expanded the definition of "aggravated felony" in a way that encompasses Guaylupo-Moya's offense. Guaylupo-Moya, however, contends that these provisions should not apply to him because his crime was committed prior to IIRIRA's enactment. Under the law when the offense was committed, his conviction would not have been classified an aggravated felony, and section 212(h) relief would have been available.

In making this argument, Guaylupo-Moya relies primarily on Beharry v. Reno, 183 F.Supp.2d 584 (E.D.N.Y.2002) (Weinstein, J.), rev'd on jurisdictional grounds sub nom. Beharry v. Ashcroft, 329 F.3d 51 (2d Cir.2003), which held that it would violate United States treaty obligations and customary international law to apply IIRIRA's restrictions on section 212(h) relief to an alien whose disqualifying criminal conduct occurred prior to IIRIRA's enactment. To avoid the perceived violation of international law, Beharry¹ ruled that section 212(h) should be interpreted to allow waivers for otherwise-eligible aliens who "have been convicted of an `aggravated felony' as defined after they committed their crime, but which was not so categorized when they committed the crime." Beharry, 183 F.Supp.2d at 605. On appeal, we reversed Beharry for lack of subject matter jurisdiction due to a failure to exhaust administrative remedies. See Beharry v. Ashcroft, 329 F.3d at 62-63 (explaining that petitioner never sought relief under section 212(h) before the BIA). But we did not reach the merits of Beharry's international law rationale, see id. at 63, and we have not done so in any subsequent case.

The facts of Guaylupo-Moya's case fall squarely within the parameters of Beharry and require us to confront that decision directly. In doing so, we now find that the Beharry decision, while commendable for its efforts and concern for human interests, cannot support the remedy it attempted to provide. In its most doctrinally sound form, Beharry urges that where a statute is ambiguous, we should construe the statute to conform to the principles of international law. Congress, however, plainly provided that IIRIRA's restriction on 212(h) relief and expanded definition of an aggravated felony should apply retroactively. Because Congress's intent is clear, it displaces any inconsistent norms of customary international law or prior treaty obligations. For this reason, we need not reach a number of controversial issues underlying the Beharry decision, including: whether the international law sources cited by Beharry actually rise to the level of customary international law; the extent to which international law, in general, can influence the construction and application of even ambiguous statutes; and whether domestic law actually is in conflict with the cited principles of international law. Our holding is thus a limited one: Even if we were to accept several controversial premises in the Beharry decision as true, the result in this case is controlled by Congress's plainly stated intent that IIRIRA's restrictions on section 212(h) relief apply retroactively.

We thus find that Guaylupo-Moya is not eligible for section 212(h) relief, and we further find Guaylupo-Moya's additional argument — that it is an impermissible ex post facto application of the law to classify him as an aggravated felon — to be unavailing. The judgment of the District Court is thus affirmed.

I. BACKGROUND

A. Statutory Context

The benchmark for modern immigration law is the Immigration and Nationality Act of 1952, Pub.L. No. 82-414, 66 Stat. 163, codified as amended at 8 U.S.C. § 1101 et seq. In pertinent part, section 212(a) of the INA, codified as amended at 8 U.S.C. § 1182(a), lists grounds rendering an alien inadmissible to the United States, including prior criminal activity.² Section 212(h) of the INA provides that the "Attorney General may, in his discretion, waive the application" of certain crime-related grounds for inadmissibility

in the case of an immigrant who is the spouse, parent, son, or daughter of a citizen of the United States or an alien lawfully admitted for permanent residence if it is established to the satisfaction of the Attorney General that the alien's denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien . . . .

8 U.S.C. § 1182(h)(1)(B) (2000). Section 212(h) thus allows both lawful permanent residents and unlawful aliens to obtain discretionary waivers from exclusion or deportation based on such extreme family hardship.³

Prior to IIRIRA, such waivers were available where the exclusion or deportation was based on any of a broad range of criminal acts, but with IIRIRA's enactment on September 30, 1996, Congress substantially limited the availability of section 212(h) relief by providing:

No waiver shall be granted under this subsection in the case of an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence if either since the date of such admission the alien has been convicted of an aggravated felony or the alien has not lawfully resided continuously in the United States for a period of not less than 7 years immediately preceding the date of initiation of proceedings to remove the alien from the United States.

IIRIRA § 348(a), 110 Stat. at 3009-639 (amending 8 U.S.C. § 1182(h)).⁴ Section 348(a) of IIRIRA, as interpreted by the BIA and as applied by the Immigration and Naturalization Service ("INS"),⁵ thus precludes lawful permanent residents who commit aggravated felonies from obtaining section 212(h) relief, even though unlawful aliens who commit the same offenses are still eligible for such relief. See Jankowski-Burczyk v. INS, 291 F.3d 172 (2d Cir.2002) (upholding section 348(a) of IIRIRA against a challenge under the Equal Protection Clause).

IIRIRA heightened the impact of section 212(h)'s new aggravated felony limitation by simultaneously broadening the INA's definition of "aggravated felony." See IIRIRA § 321(a), 110 Stat. 3009-627 (amending 8 U.S.C. § 1101(a)(43)). The term "aggravated felony" had been introduced in 1988 as section 101(a)(43) of the INA and was initially defined to include only murder, drug trafficking, and illicit trafficking in a firearm or destructive device (as well as any attempt or conspiracy to commit such crimes). See Anti-Drug Abuse Act of 1988, Pub.L. No. 100-690 Title VII, Subtitle J, § 7342, 102 Stat. 4181, 4469-70 (codified at 8 U.S.C. § 1101(a)(43)). Congress had expanded the definition on multiple occasions thereafter,⁶ but, prior to IIRIRA, several crimes-such as crimes of violence or theft offenses-only qualified as aggravated felonies if the sentence imposed involved at least five years' imprisonment. See, e.g., 8 U.S.C. § 1101(a)(43)(F), (G) (1994). IIRIRA, however, provided that those crimes would constitute aggravated felonies if they resulted in imprisonment of as little as one year or more. See IIRIRA § 321(a)(3), (4), 110 Stat. at 3009-627 (amending 8 U.S.C. § 1101(a)(43)(F), (G)). IIRIRA also defined aggravated felonies to include "rape[] or sexual abuse of a minor" regardless of the term of imprisonment imposed. See IIRIRA § 321(a)(1), 110 Stat. at 3009-627 (amending 8 U.S.C. § 1101(a)(43)(A)).

B. Facts and Procedural History⁷

Guaylupo-Moya was born on March 29, 1931 and is a native and citizen of Ecuador. He was admitted to the United States on January 7, 1970, as a lawful permanent resident and has lived in the United States since that time. He is married to a United States citizen and has children who are also United States citizens. On December 24, 1996, Guaylupo-Moya pleaded guilty to one count of attempted rape in the second degree in violation of New York Penal Law § 130.30(1), which makes it illegal...