Paulo v. Holder

Decision Date04 May 2011
Docket NumberNo. 07–71198.,07–71198.
PartiesAntonio Reyes PAULO, III, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent.
CourtU.S. Court of Appeals — Ninth Circuit

OPINION TEXT STARTS HERE

Robert B. Jobe, Law Offices of Robert B. Jobe, San Francisco, CA, for the petitioner.

Daniel E. Goldman, James A. Hunolt, U.S. Department of Justice, Civil Division/Oil, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A039–825–666.Before: PROCTER HUG, JR., WILLIAM A. FLETCHER, and MILAN D. SMITH, JR., Circuit Judges.

OPINION

W. FLETCHER, Circuit Judge:

Petitioner Antonio Reyes Paulo, III (Paulo) petitions for review of an order of the Board of Immigration Appeals (“BIA”) pretermitting his application for a waiver of inadmissibility pursuant to the now-repealed § 212(c) of the Immigration and Nationality Act (“INA”). We hold that res judicata binds the BIA to the final decision of the District Court for the Northern District of California, which held that Paulo is eligible for discretionary relief under § 212(c) based on INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001).

We grant Paulo's petition and remand for further proceedings consistent with this opinion.

I. Background

Paulo is a native and citizen of the Philippines. He was admitted to the United States as an immigrant on August 8, 1985. At that time he was fourteen years old. He is the son of a lawful permanent resident mother and a U.S. citizen father. He has a U.S. citizen daughter, born on October 28, 1997.

On September 5, 1991, Paulo was convicted in California state court of assault with a firearm in violation of California Penal Code § 245(a)(2). He served two years and nine months' imprisonment. For reasons not clear from the record, on October 26, 1994, a California Superior Court vacated this conviction, and Paulo pled guilty to assault with a deadly weapon other than a firearm in violation of California Penal Code § 245(a)(1). The new conviction was entered nunc pro tunc as of the date of the original conviction, and the sentence was unchanged. On March 30, 1998, Paulo pled guilty to receiving known stolen property in violation of California Penal Code § 496(a), and was sentenced to sixteen months' imprisonment.

On September 28, 1998, Paulo was served with a Notice to Appear based on these criminal convictions. The Notice charged him as removable under both INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), for conviction of an aggravated felony, and INA § 237(a)(2)(A)(ii), 8 U.S.C. § 1227(a)(2)(A)(ii), for conviction of two crimes involving moral turpitude not arising out of a single scheme. The aggravated felony charge was based on his conviction for assault with a deadly weapon, and the moral turpitude charge was based on both criminal convictions.

Paulo conceded removability and sought relief through withholding of removal, asylum, and the Convention Against Torture (“CAT”). For reasons not relevant to this appeal, the Immigration Judge (“IJ”) concluded that Paulo was not eligible for either asylum or withholding of removal, and rejected Paulo's CAT claim. The IJ issued an order of removal to the Philippines on October 18, 2000. The BIA affirmed on February 22, 2001. This court dismissed the subsequent petition for review for lack of jurisdiction on May 23, 2001.

On June 25, 2001, the Supreme Court decided INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), a challenge to the retroactive application of the provision of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) that repealed INA § 212(c), formerly codified at 8 U.S.C. § 1182(c). Section 212(c) gave the Attorney General the discretionary power to grant relief from deportation to certain aliens convicted of criminal offenses. The Supreme Court held in St. Cyr that the repeal of § 212(c) cannot be applied retroactively to aliens who had, before the passage of IIRIRA, reasonably relied on the availability of § 212(c) relief in pleading guilty to offenses making them deportable. St. Cyr, 533 U.S. at 325–26, 121 S.Ct. 2271. Under St. Cyr, Paulo was potentially eligible for § 212(c) relief.

Approximately one year later, on November 8, 2002, a California Superior Court vacated Paulo's conviction for receiving known stolen property on the ground that his plea had been unconstitutionally obtained. Paulo then pled guilty to false personation under California Penal Code § 529(3). False personation is not a crime of moral turpitude. Thus, Paulo was no longer removable under INA § 237(a)(2)(A)(ii).

Because the time in which Paulo was entitled to file a motion to reopen with the BIA had expired, see 8 C.F.R. § 3.2(c)(2) (2003), he petitioned for a writ of habeas corpus in the District Court for the Northern District of California on May 23, 2003. The two grounds for his petition were (1) that he was entitled to a new removal hearing because one of the grounds for his removal, his conviction of two crimes of moral turpitude, was no longer valid; and (2) that he was eligible for § 212(c) relief under St. Cyr.

The government objected to both grounds. As to the first ground, the government argued that Paulo was still convicted of an aggravated felony—assault with a deadly weapon other than a firearm—and thus his removal order should still stand under INA § 237(a)(2)(A)(iii). As to the second ground, the government argued that Paulo was not covered by St. Cyr because at the time Paulo pled guilty to assault with a firearm in 1991, a lawful permanent resident convicted of a firearm offense was not eligible for § 212(c) relief. The government argued that Paulo therefore could not have relied on the availability of § 212(c) relief when he pled guilty to assault with a firearm. The government argued that the fact that the conviction was changed to a non-firearm offense in 1994 was irrelevant. Furthermore, the government noted that § 212(c) relief was unavailable to an aggravated felon who had served a term of imprisonment of at least five years. The government argued (incorrectly) that Paulo had served a five-year sentence. The government made no other argument against Paulo's eligibility for § 212(c) relief.

The district court agreed with the government that because the removal order was based on two independent grounds, one of which remained valid, Paulo was not entitled to a new removal hearing. However, the district court agreed with Paulo that he was eligible for § 212(c) relief based on St. Cyr. It agreed with the government that in 1991 a lawful permanent resident convicted of a firearm offense was ineligible for § 212(c) relief. It concluded, however, that the 1994 plea for assault with a deadly weapon other than a firearm was the relevant plea for the purposes of St. Cyr's reliance analysis. When Paulo pled guilty to assault with a deadly weapon other than a firearm, he was eligible for § 212(c) relief. The district court observed (correctly) that Paulo had only served a two-year and nine-month sentence, which was less than the five-year sentence necessary to bar an aggravated felon from § 212(c) relief. The district court granted Paulo's habeas petition on June 21, 2004. It ordered: Respondents shall allow Petitioner to apply to the Attorney General for a discretionary waiver of deportation under former § 212(c) of the Immigration and Nationality Act.” The government did not appeal and has not moved under Rule 60 for a modification of the district court's order.

In compliance with the district court's order, the BIA remanded the case to the IJ on December 22, 2004 to allow Paulo to apply for § 212(c) relief. The IJ held preliminary hearings in early 2005.

On April 6, 2005, the BIA decided In re Blake, 23 I. & N. Dec. 722 (BIA 2005), and on June 7, 2005, the BIA decided In re Brieva–Perez, 23 I. & N. Dec. 766 (BIA 2005). Blake and Brieva concern the “statutory counterpart rule” of § 212(c). By its plain language, § 212(c) applies only to aliens in exclusion proceedings, not removal (the post-IIRIRA term for deportation) proceedings. See INA § 212(c) (repealed 1996) (providing eligibility for relief to [a]liens 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”). In Francis v. INS, 532 F.2d 268 (2d Cir.1976), however, the Second Circuit concluded that there was no rational basis for treating aliens who had traveled abroad and were attempting to return to the United States differently from aliens who had never left the United States. Based on constitutional avoidance, the Second Circuit extended § 212(c) to cover removable as well as excludable aliens. Id. at 273. The BIA acquiesced to Francis in Matter of Silva, 16 I. & N. Dec. 26, 30 (BIA 1976). We agreed with Francis in Tapia–Acuna v. INS, 640 F.2d 223, 225 (9th Cir.1981).

Because the application of § 212(c) to removable as well as excludable aliens is dependent on the equal protection argument underpinning Francis, courts, including this court and the BIA, have repeatedly held that in order for removable aliens to be eligible for § 212(c) relief, the statutory basis for their removability must have a statutory counterpart in the statutory bases for excludability. See, e.g., Komarenko v. INS, 35 F.3d 432, 434 (9th Cir.1994) (to prevent equal protection violation, § 212(c) need only cover deportable aliens when “a subsection of the exclusion statute is substantially identical to a subsection of the deportation statute); Matter of Esposito, 21 I. & N. Dec. 1, 5–9 (BIA 1995); Matter of Montenegro, 20 I. & N. Dec. 603, 604–06 (BIA 1992); Matter of Meza, 20 I. & N. Dec. 257, 258–59 (BIA 1991). This requirement was codified in a post- St. Cyr...

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