Arellano-Garcia v. Gonzales

• Decision Date: 07 December 2005
• Docket Number: No. 04-2583.,04-2583.
• Citation: 429 F.3d 1183
• Parties: Guadalupe ARELLANO-GARCIA, Petitioner, v. Alberto GONZALES, Attorney General of the United States,<SMALL><SUP>1</SUP></SMALL> Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

429 F.3d 1183

Guadalupe ARELLANO-GARCIA, Petitioner, v. Alberto GONZALES, Attorney General of the United States,¹ Respondent.

No. 04-2583.

United States Court of Appeals, Eighth Circuit.

Submitted: March 15, 2005.

Filed: December 7, 2005.

Edmundo D. Lijo, argued, Minneapolis, MN, for appellant.

U.S. Dept. of Justice, Papu Sandhu, argued, Washington, DC, for appellee.

Before WOLLMAN, LAY, and HANSEN, Circuit Judges.

HANSEN, Circuit Judge.

Guadalupe Arellano-Garcia, a native and citizen of Mexico, seeks review of a decision of the Board of Immigration Appeals (BIA) affirming the order of an Immigration Judge (IJ), finding that he is ineligible for discretionary relief from deportation and ordering his removal to Mexico. We deny the petition for review.

Arellano-Garcia entered the United States in September 1977. In August 1987, he became a temporary permanent resident. On October 12, 1988, Arellano-Garcia pleaded guilty to possession for sale of cocaine in a California state court, and he served nine months in prison on a two-year sentence. There is no dispute that this drug trafficking offense is considered an aggravated felony under the Immigration and Nationality Act (INA) § 101(a)(43)(B). 8 U.S.C. § 1101(a)(43)(B) (2000). Because of his conviction, the former Immigration and Naturalization Service (now part of the Department of Homeland Security) deported Arellano-Garcia on June 2, 1989. Three days later, on June 5, 1989, Arellano-Garcia re-entered the United States using his temporary permanent resident card, which had not been taken from him when he was deported. Despite his conviction and prior deportation, the agency mistakenly approved Arellano-Garcia's application for permanent residency in February 1990, and Arellano-Garcia thereafter submitted an application for naturalization in April 1999.

When the agency realized that Arellano-Garcia had been convicted of a drug trafficking offense in 1988 and deported in 1989, it placed Arellano-Garcia in removal proceedings. Arellano-Garcia conceded removability (Petitioner's Br. at 8), but sought relief from removal under INA § 212(c) (repealed in 1996), under which some "[a]liens lawfully admitted for permanent residence" were eligible for a waiver of removal at the discretion of the Attorney General. See 8 U.S.C. § 1182(c) (1994), repealed by Pub.L. No. 104-208, § 304(b), 110 Stat. 3009-597 (Supp. II 1996); I.N.S. v. St. Cyr, 533 U.S. 289, 295 & 326, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (holding, inter alia, that § 212(c) relief remains available for aliens who pleaded guilty prior to the repeal of the statute and who would have been eligible for § 212(c) relief at the time of their plea). The Immigration Judge held that Arellano-Garcia was not statutorily eligible to apply for a waiver of removal pursuant to § 212(c) because, as a result of his 1988 drug trafficking conviction, he was not "lawfully" granted permanent resident status in 1990. The BIA affirmed. In his petition for judicial review, Arellano-Garcia challenges the legal conclusion that he is not eligible to apply for § 212(c) relief.

We first consider whether we have jurisdiction to address the substance of Arellano-Garcia's claim. Generally, we lack "jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in section 1182(a)(2) or 1227(a)(2)(A)(iii) [or] (B)," 8 U.S.C. § 1252(a)(2)(C) (2000), which includes a drug trafficking offense like Arellano-Garcia's 1988 conviction. The Attorney General concedes, however, and we agree, that in § 106(a)(1)(A)(iii) of the REAL ID Act of 2005, Pub.L. No. 109-13, 119 Stat. 231, 310 (May 11, 2005), to be codified at 8 U.S.C. § 1252(a)(2)(D), Congress amended the INA by restoring jurisdiction in the circuit courts to review "questions of law" and "constitutional claims" in a petition for review challenging a removal order. See Salkeld v. Gonzales, 420 F.3d 804, 809 (8th Cir.2005) ("Pursuant to the REAL ID Act of 2005, however, we retain jurisdiction to review constitutional claims and questions of law.") Because Arellano-Garcia presents questions of law and constitutional claims, we have jurisdiction to address the merits of his petition for review.

"We review questions of law de novo and accord substantial deference to the BIA's interpretation of immigration law and agency regulations." Bernal-Rendon v. Gonzales, 419 F.3d 877, 880 (8th Cir.2005). Arellano-Garcia asserts that the BIA erred in concluding as a matter of law that he was not a "lawfully admitted permanent resident" within the meaning of the now repealed § 212(c). Arellano-Garcia attempts to sidestep the issue of whether he was "lawfully" admitted, however, by urging that he should be "deemed" a lawfully admitted permanent resident because the Attorney General's authority to rescind permanent residence status on the ground that the alien was not eligible for the adjustment is limited to five years, which has long since passed. See INA § 246(a); 8 U.S.C. § 1256(a) (imposing a five-year limitation on the Attorney General's ability to initiate rescission of an adjustment of status on the ground that the alien was not eligible for the adjustment). He reasons that deportation is not permitted where the misconduct in obtaining the adjustment, which the Attorney General did not act upon within the five-year limit, is the sole ground for deportation, citing Bamidele v. I.N.S., 99 F.3d 557, 565 (3d Cir.1996) (holding that § 1256(a) prohibits the initiation of deportation proceedings based exclusively on fraud in obtaining the adjustment of status). The Attorney General asserts that the five-year limit on initiating rescission proceedings in § 1256 does not bar the initiation of deportation proceedings even when the alleged grounds for deportation are acts committed in procuring the adjustment of status, citing Matter of Belenzo, 17 I & N Dec. 374, 384 (1981) (holding that the five-year limitation period for correcting mistakes in granting permanent resident status does not bar deportation proceedings, even when deportation is sought for acts committed in procuring the adjustment), and Asika v. Ashcroft, 362 F.3d 264, 270-71 (4th Cir.2004) (per curiam) (deferring to the Attorney General's interpretation of the statute as permissible and reasonable), cert. denied, ___ U.S. ___, 125 S.Ct. 861, 160 L.Ed.2d 769 (2005).

Arellano-Garcia's reliance on the five-year limitation on rescission proceedings is misplaced, and we need not comment on the cases cited above. This case does not require us to construe the five-year limitation period on rescission proceedings. The current proceedings are based on Arellano-Garcia's prior conviction, not on the erroneous grant of permanent residency status. Arellano-Garcia concedes that he is deportable on the basis of his prior conviction, and he does not challenge the decision to initiate enforcement proceedings on that basis. See 8 U.S.C. § 1227(a)(2)(B)(i) (stating that an alien convicted of a controlled substance offense is deportable).² Additionally, the Attorney General conceded at oral argument that he cannot prove that Arellano-Garcia made any fraudulent misrepresentations in his adjustment proceedings, so this is not a case where the deportation proceedings are based solely upon fraud in the procurement of the permanent residency status, but a case where that favorable status was obtained by a negligent mistake made by the government.

Thus, we are asked to decide whether an alien who received an adjustment to permanent residency status by a mistake can be considered an alien "lawfully admitted for permanent residence" within the meaning of the now repealed INA § 212(c); 8 U.S.C. § 1182(c) (1994). We conclude that he cannot.

The INA defines the term "lawfully admitted for permanent residence" as meaning "the status of having been lawfully accorded the privilege of residing permanently in the United States." 8 U.S.C. § 1101(a)(20). This definition is somewhat circuitous, and where there is ambiguity, we must give deference to the agency's interpretation, if it is reasonable. See Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) (requiring courts to consider first whether Congress has directly spoken to the precise question at issue, and if not, whether the agency's interpretation is reasonable; "the court does not simply impose its own construction on the statute").

The Attorney General has adopted the interpretation articulated by the Fifth and Ninth Circuits, stating that the term ""`lawfully" denotes compliance with substantive legal requirements, not mere procedural regularity.'" In re Koloamatangi, 23 I & N Dec. 548, 550 (2003) (quoting Matter of Longstaff, 716 F.2d 1439, 1441 (5th Cir.1983), cert. denied, 467 U.S. 1219, 104 S.Ct. 2668, 81 L.Ed.2d 373 (1984), and citing Monet v. INS, 791 F.2d 752, 753 (9th Cir.1986)). These cases state without ambiguity that lawful status is required, not simply lawful procedure. Monet, 791 F.2d at 754; Longstaff, 716 F.2d at 1441. While the BIA's opinion in Koloamatangi dealt with an alien who had obtained his status adjustment fraudulently, the reasoning articulated is not limited to cases of fraud. The opinion notes with approval that "the Fifth and Ninth Circuits each decided that the term `lawfully admitted for permanent residence' did not apply to aliens...