Patel v. Gonzales

• Decision Date: 30 December 2005
• Docket Number: No. 04-3829.,04-3829.
• Citation: 432 F.3d 685
• Parties: Jagubhai Naranbhai PATEL, Vanitaben Thakorbhai Patel, Petitioners, v. Alberto GONZALES, United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

432 F.3d 685

Jagubhai Naranbhai PATEL, Vanitaben Thakorbhai Patel, Petitioners, v. Alberto GONZALES, United States Attorney General, Respondent.

No. 04-3829.

United States Court of Appeals, Sixth Circuit.

Submitted: December 1, 2005.

Decided and Filed: December 30, 2005.

COPYRIGHT MATERIAL OMITTED

ON BRIEF:

Margaret W. Wong, Margaret Wong & Associates, Cleveland, Ohio, for Petitioners. Emily Anne Radford, Keith I. Bernstein, United States Department of Justice, Washington, D.C., for Respondent.

Before: CLAY and COOK, Circuit Judges; OLIVER, District Judge.^*

OPINION

CLAY, Circuit Judge.

Petitioners, Jagubhai and Vanitaben Patel, appeal an order of the Board of Immigration Appeals ("BIA") entered on June 1, 2004 denying Petitioners' request for: (1) a discretionary waiver of deportation pursuant to § 212(i) of the Immigration and Nationality Act ("INA"), codified at 8 U.S.C. § 1182(i); (2) a discretionary waiver of deportation pursuant to § 237(a)(1)(H) of the INA, codified at 8 U.S.C. § 1227(a)(1)(H); and (3) a nunc pro tunc order legalizing Petitioners' 1993 entry into the United States. For the reasons set forth below, we DENY the petition for review.

I. BACKGROUND

A. Procedural History

On February 2, 2001, Sanjay Herat, a naturalized United States citizen, applied for immediate relative visas for his parents, Petitioners Jagubhai and Vanitaben Patel. The Immigration and Naturalization Service ("INS") approved Herat's application, and thereafter, Petitioners applied for an adjustment of their status to that of lawful permanent residents. At an interview to determine whether Petitioners were eligible for adjustment of status, an INS examiner learned that Petitioners gained entry into the United States through the use of fraudulent passports in 1993. Petitioners subsequently withdrew their applications for adjustment of status.

Based on the information the INS obtained in the interview, the INS initiated removal proceedings. On September 21, 2001, the INS issued Notices to Appear charging Petitioners with being subject to removal pursuant to § 212(a)(6)(A)(i) of the INA, codified at 8 U.S.C. § 1182(a)(6)(A)(i). Petitioners conceded removability and requested adjustment of status. Thereafter, Petitioners, through their attorney, filed an I-485 form requesting adjustment of status, an I-601 form requesting waiver of deportation, and an I-212 form requesting permission to reenter the United States.

After a hearing, the IJ issued a written opinion denying Petitioners' request for adjustment of status, and holding that Petitioners were ineligible for waiver under § 212(i) of the INA and nunc pro tunc relief. Petitioners appealed to the BIA, which adopted and affirmed the IJ's opinion. On June 24, 2004, Petitioners timely petitioned this Court for review of the BIA's decision.

B. Substantive Facts

Petitioners Jagubhai and Vanitaben Patel are natives and citizens of India. They first entered the United States in 1981 on a B-2 visa, and settled in Ohio where Petitioner Jagubhai owned and operated a motel. In 1986 and 1987, Petitioners brought their children Sanjay Herat, Jagruitben Patel, and Nimikaben Patel to join them. In 1992, Petitioners temporarily returned to India. One year later, in 1993, they returned to the United States. To gain entry, Petitioners used fraudulent passports.

In January 2001, Petitioners applied for permanent resident status on the basis of their son Sanjay's approved immediate relative visa. Sanjay Herat became a naturalized citizen of the United States in approximately 2000. Due to Petitioners' application for adjustment of status, however, the INS discovered that Petitioners entered the United States with fraudulent passports. Thereafter, Petitioners withdrew their applications for adjustment of status and the INS initiated removal proceedings.

In light of the Petitioners' 20 year residence in the United States, and family located in the United States, Petitioners sought a discretionary waiver of removal. In particular, they requested relief under § 212(i) of the INA, and a nunc pro tunc order retroactively admitting them to the United States. They also contend that their application requested relief under § 237(a)(1)(H) of the INA. The IJ denied discretionary waivers holding that Petitioners were not eligible for relief under the current version of § 212(i) of the INA and that it did not have the authority to issue a nunc pro tunc order retroactively admitting Petitioners into the United States. In a per curiam order, the BIA adopted and affirmed the IJ's decision. Petitioners now appeal the BIA's decision arguing that: (1) the IJ erred in applying the current version of INA § 212(i) to Petitioners' request for a discretionary waiver of removal as opposed to the 1993 version of INA § 212(i); (2) the IJ erred in failing to address and grant Petitioners' request for a discretionary waiver of removal pursuant to INA § 237(a)(1)(H); and (3) the IJ erred in denying a nunc pro tunc relief.

II. DISCUSSION

A. THE IJ PROPERLY APPLIED THE CURRENT VERSION OF INA § 212(i) TO PETITIONERS' REQUEST FOR A DISCRETIONARY WAIVER.

1. Jurisdiction

This Court does not have jurisdiction to review a decision of the BIA granting or denying a waiver of removal under INA § 212(i) because such a decision is within the discretion of the Attorney General. 8 U.S.C. 1182(i)(1)-(2) ("The Attorney General may, in the discretion of the Attorney General, waive...." and "No court shall have jurisdiction to review a decision or action of the Attorney General regarding a waiver under paragraph(1)"). In contrast, this Court does have jurisdiction to determine which version of § 212(i) applies to a particular alien. Cervantes-Gonzales v. INS, 244 F.3d 1001, 1005 (9th Cir.2001). The correct version of 212(i) to apply to an alien is a question of law not within the Department of Homeland Security's ("DHS") discretion. Id.; see also Gjonaj v. INS, 47 F.3d 824, 826 (6th Cir.1995).

2. Standard of Review

Neither the BIA nor the IJ addressed the question of which version of § 212(i) applies to Petitioners. Therefore, this Court has nothing to review and must determine which version of § 212(i) to apply de novo.

3. Analysis

Petitioners contend that the IJ erred in concluding that Petitioners are ineligible for a discretionary waiver of deportation under § 212(i) of the INA because the IJ improperly applied the current version of § 212(i) to Petitioners' request for relief. Petitioners argue that the 1993 version of § 212(i) applies to their request for relief because the conduct for which Petitioners are requesting a waiver occurred in 1993. Because courts must apply the law in effect at the time of decision unless such law has a retroactive effect, and because the application of § 212(i) to Petitioners does not have a retroactive effect, the IJ properly applied the current version of § 212(i). Therefore, this Court denies the petition for review to the extent it rests on the IJ's application of the current version of § 212(i) to Petitioner's case.

a. INA § 212(i)

The current version of § 212(i) of the INA grants the Attorney General the discretionary power to waive removal of an immigrant being deported on the basis of fraud. 8 U.S.C. § 1182(i) (2005). To qualify for a waiver under § 212(i), an immigrant must be the spouse or child of a United States citizen or of an immigrant lawfully admitted for permanent residence. Id. Prior to the Illegal Immigration Reform and Immigrant Responsibility Act's ("IIRIRA") amendments to the INA in 1996, however, parents of United States citizens or of immigrants lawfully admitted for permanent residence also qualified for § 212(i)'s discretionary waiver. 8 U.S.C. § 1182(i) (1993). Because Petitioners are parents of a United States citizen, as opposed to a spouse or child, Petitioners are only eligible for a waiver under the pre-IIRIRA version of § 212(i).

b. Retroactivity

Petitioners contend that the application of the current version of § 212(i) is improper because application of the current version of § 212(i) has a retroactive effect on Petitioners. Although Congress has the authority to enact retroactive statutes, courts ordinarily do not apply statutes retroactively unless a statute evidences congressional intent to apply retroactively. Landgraf v. USI Film Prods., 511 U.S. 244, 267, 270, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). Whether Congress intended a statute to apply retroactively is a question of statutory interpretation. Id. at 280, 114 S.Ct. 1483. In interpreting statutes, courts apply a presumption against retroactive application. Id. Thus, where a statute is silent as to the scope of its application, the statute should not be applied retroactively. Id.

Not all statutes, however, raise retroactivity concerns. "A statute does not operate retroactively merely because it is applied in a case arising from conduct antedating the statute's enactment." Id. at 269, 114 S.Ct. 1483; Campos v. INS, 16 F.3d 118, 122 (6th Cir.1994). Consequently, courts generally apply the law existing at the time of the decision as opposed to the law existing at the time that the conduct giving rise to the case occurred. Landgraf, 511 U.S. at 280, 114 S.Ct. 1483.

The application of law existing at the time of decision does not violate the presumption against retroactivity unless the statute in question has retroactive effects. Id. at 269-70, 114 S.Ct. 1483. A statute has retroactive effects if the statute:

attaches new legal consequences to events completed before its enactment. The conclusion that a particular rule operates "retroactively" comes at the end of a process of judgment concerning the nature and effect of the change in the law and the degree of connection between the operation of the new rule and a relevant past event.... [F]amiliar considerations of fair notice, reasonable reliance, and settled expectations offer sound guidance.

Id. Procedural rules generally do not...