An Na Peng v. Holder

• Decision Date: 22 March 2012
• Docket Number: No. 06–75841.,06–75841.
• Citation: 673 F.3d 1248,12 Cal. Daily Op. Serv. 3360,2012 Daily Journal D.A.R. 3793
• Parties: AN NA PENG, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

12 Cal. Daily Op. Serv. 3360

2012 Daily Journal D.A.R. 3793

673 F.3d 1248

AN NA PENG, Petitioner,

v.Eric H. HOLDER Jr., Attorney General, Respondent.

No. 06–75841.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 13, 2011.Filed March 22, 2012.

Maile M. Hirota (argued) and Ann C. Kemp (briefed), Lynch Ichida Thompson Kim & Hirota, Honolulu, HI, for the petitioner An Na Peng.

William C. Minick, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, D.C., for respondent Attorney General Holder.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A042–725–947.Before: ARTHUR L. ALARCÓN, KIM McLANE WARDLAW, and N. RANDY SMITH, Circuit Judges.

OPINION

N.R. SMITH, Circuit Judge:

The enactment of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which repealed the waiver of deportation under Immigration and Naturalization Act (INA) § 212(c), 8 U.S.C. § 1182(c), does not affect the right of aliens to use the § 212(c) waiver, when such aliens proceeded to trial and were convicted of a crime involving moral turpitude prior to the enactment of IIRIRA. Aliens charged with and convicted of a crime involving moral turpitude prior to the enactment of IIRIRA remain eligible for § 212(c) relief, regardless of whether they pleaded guilty or proceeded to trial. Such aliens can demonstrate reasonable reliance on § 212(c) prior to its repeal, because they may have acted differently had § 212 relief not been possible at such time.

However, the seven year residency requirement for a waiver of inadmissibility under INA § 212(h), which became effective on September 30, 1996, is not impermissibly retroactive when removal proceedings were commenced after that date. Further, requiring Legal Permanent Residents (LPRs) (who have been convicted of crimes involving moral turpitude) to acquire seven years of continuous presence in the United States, but not imposing the same seven year requirement on non-LPRs who have been convicted of the same crimes, does not violate equal protection. We therefore grant the petition in part, deny it in part, and remand for further proceedings consistent with this opinion.¹

BACKGROUND

An Na Peng is a native and citizen of China. She legally entered the United States on May 3, 1991 as an LPR based upon her marriage to Huan Zhang Wang, an LPR. She and her husband have two United States citizen children.

In the mid–1990s, the Immigration and Naturalization Service (INS) ² had authorized the Naturalization Assistance Service and its affiliates to administer naturalization examinations. During those years, Peng worked for a short time at an affiliate's testing facility. Employees of that testing facility, including Peng, were caught providing answers to examinees and changing incorrect answers on completed exams. In January 1996, a grand jury indicted Peng on one count of a conspiracy to defraud the INS, in violation of 18 U.S.C. § 371 (1995).³ Peng pleaded not guilty to the indictment.

Upon indictment, this criminal prosecution presented potential immigration consequences to Peng. First, if convicted, Peng would be guilty of a crime involving moral turpitude. Second, at the time of Peng's indictment, a conviction would have rendered Peng deportable if she ultimately received a sentence of one or more years of imprisonment. INA § 241(a)(2)(A)(i), 8 U.S.C. § 1251(a)(2)(A)(i) (emphasis added); ⁴ see also 18 U.S.C. § 371 (providing for a sentence of up to five years). Lastly, at the time of her indictment, INA § 212(c) allowed for a discretionary waiver of removal, unless an alien “ha[d] been convicted of one or more aggravated felonies and ha[d] served for such felony or felonies a term of imprisonment of at least 5 years.” 8 U.S.C. § 1182(c) (1995). However, it is important to note that Peng was charged with a crime involving moral turpitude, not an aggravated felony. Further, a conviction could not have resulted in a term of imprisonment of over five years. Thus, although a conviction could have rendered her deportable, it would not have disqualified her from eligibility to apply for relief under § 212(c).

These potential consequences changed just prior to Peng's trial, because the law changed. Effective April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which amended the INA to make crimes of moral turpitude deportable offenses as to any alien “convicted of a crime for which a sentence of one year or longer may be imposed.” 8 U.S.C. § 1251(a)(2)(A)(i) (effective April 24, 1996) (emphasis added), codified at INA § 237(a)(2)(A)(i), 8 U.S.C. § 1227(a)(2)(A)(i) (2008). Therefore, because Peng was charged under a statute allowing for at most a five-year sentence, she faced a trial on a charge that would automatically render her deportable if convicted. Additionally, by enacting AEDPA, “Congress further restricted the scope of § 212(c) relief by denying it to any alien who had been convicted of an aggravated felony or [two or more] crimes of moral turpitude.” Luna v. Holder, 659 F.3d 753, 756 (9th Cir.2011). Thus, although (just prior to trial) a conviction would have rendered Peng deportable, it would not have disqualified her from eligibility to apply for relief under § 212(c), because (1) Peng was not charged with an aggravated felony and (2) she stood charged with only a single crime involving moral turpitude.

Peng did not change her plea before trial. Her jury trial commenced on May 8, 1996. On May 9, the jury returned a guilty verdict. On December 2, 1996, Peng received a non-custodial sentence of two years of probation.

While Peng awaited sentencing, Congress enacted the IIRIRA on September 30, 1996. IIRIRA § 304(b) repealed INA § 212(c), replacing it with a narrower form of relief called cancellation of removal. See 8 U.S.C. § 1229b. In addition, IIRIRA § 304(b) added a seven-year continuous presence requirement to INA § 212(h), 8 U.S.C. § 1182(h), under which an LPR may apply for a waiver of inadmissibility.

The INS commenced removal proceedings against Peng on September 10, 1997. Peng conceded removability and applied for asylum and voluntary departure. The Immigration Judge (IJ) denied her applications, and the Board of Immigration Appeals (BIA) dismissed her appeal in 2002.

Peng then filed a motion to remand to apply for adjustment of status. The BIA denied the motion, because (1) Peng's conviction rendered her inadmissible and (2) Peng had not submitted an application for a waiver of inadmissibility under § 212(h). Peng appealed. In 2005, our court granted Peng's petition for review to allow her to submit the requisite application. Peng v. Ashcroft, 121 Fed.Appx. 776 (9th Cir.2005). The BIA then remanded Peng's case to the immigration court.

On remand from the BIA, the IJ denied Peng's request for a waiver of inadmissibility under § 212(h), because Peng had not maintained a continuous presence in the United States for seven years before the commencement of her removal proceedings. Because Peng was statutorily ineligible for the § 212(h) waiver, she remained inadmissible and could not qualify for an adjustment of status. See INA § 245(a). Additionally, the IJ denied Peng's request for a continuance to apply for a waiver of removal under former § 212(c), on the ground that Peng's immigration proceedings had been ongoing since 1997. The IJ also cited 8 C.F.R. § 1003.44(b) noting that, due to the repeal of § 212(c), the waiver was not available to aliens who had pleaded not guilty at their criminal proceedings. Peng appealed.

The BIA dismissed Peng's appeal in 2006. It concluded that Peng was ineligible for a § 212(c) waiver of removal, because the repeal of § 212(c) was impermissibly retroactive only as applied to aliens who had pleaded guilty to their criminal charge(s). Because Peng had pleaded not guilty and proceeded to a jury trial, the BIA concluded she was ineligible to apply for former § 212(c) relief. The BIA also noted that 8 C.F.R. § 1003.44(b) limited relief to aliens who entered a plea agreement. It further held that § 212(h) was not impermissibly retroactive as applied to Peng. Because Peng did not establish that she had lived in the United States for seven years prior to the commencement of her removal proceedings, the BIA held her ineligible to apply for a § 212(h) waiver of inadmissibility. Peng thus remained ineligible for an adjustment of status. She now petitions this court for review.

STANDARD OF REVIEW

Where, as here, the BIA conducts its own independent review, “our review is limited to the BIA's decision, except to the extent the IJ's opinion is expressly adopted.” Cordon–Garcia v. INS, 204 F.3d 985, 990 (9th Cir.2000).

DISCUSSION

I. The BIA abused its discretion when it denied Peng a continuance, because she was eligible to apply for a waiver of deportation under INA § 212(c)

Peng contests the BIA's decision affirming the denial of a continuance in order to apply for the § 212(c) waiver of removal. We review the denial of a continuance for an abuse of discretion. Baires v. INS, 856 F.2d 89, 91 (9th Cir.1988). The BIA abuses its discretion “when it fails to state its reasons and show proper consideration of all factors when weighing equities and denying relief.” Ahmed v. Holder, 569 F.3d 1009, 1014 (9th Cir.2009) (internal quotation marks omitted). An IJ may grant a motion for a continuance for “good cause shown.” 8 C.F.R. § 1003.29; Ahmed, 569 F.3d at 1012. The regulations do not define “good cause,” but the IJ—and, on appeal, the BIA—should consider factors including “(1) the nature of the evidence excluded as a result of the denial of the continuance, (2) the reasonableness of the immigrant's conduct, (3) the inconvenience to the court, and (4) the number of continuances previously granted.” Id.

In reviewing the IJ's decision, the BIA did not review these relevant factors. Instead, the BIA affirmed the...