Aristy-Rosa v. Attorney Gen. U.S.

• Decision Date: 16 March 2021
• Docket Number: No. 20-2105,20-2105
• Parties: Jose Arcenio ARISTY-ROSA, Petitioner v. ATTORNEY GENERAL UNITED STATES of America
• Court: U.S. Court of Appeals — Third Circuit

994 F.3d 112

Jose Arcenio ARISTY-ROSA, Petitioner

v.ATTORNEY GENERAL UNITED STATES of America

No. 20-2105

United States Court of Appeals, Third Circuit.

Submitted under Third Circuit L.A.R. 34.1a March 15, 2021

Filed: March 16, 2021

David Kaplan, Esq., Philadelphia, PA, for Petitioner

William P. Barr, Esq., Rebekah Nahas, Esq., Craig A. Newell, Jr., Esq., United States Department of Justice, Office of Immigration Litigation, Washington, DC, for Respondent

Before: SHWARTZ, PORTER, and MATEY, Circuit Judges.

OPINION

SHWARTZ, Circuit Judge.

Jose Arcenio Aristy-Rosa petitions for review of a decision of the Board of Immigration Appeals ("BIA") affirming the decision of the Immigration Judge ("IJ") denying his motion to sua sponte reopen and terminate removal proceedings. Aristy-Rosa received a full and unconditional gubernatorial pardon, and he asserts that it extinguished the basis for his removal. He is incorrect and we will therefore deny the petition.

I

Aristy-Rosa, a native and citizen of the Dominican Republic, was admitted to the United States in January 1993 as a lawful permanent resident. Several years later, he was convicted of attempted criminal sale of a controlled substance, cocaine, in violation of New York state law. He was sentenced to five years’ probation and a six-month suspension of his driver's license.

Thereafter, Aristy-Rosa received a Notice to Appear ("NTA") in the Immigration Court. The NTA charged Aristy-Rosa with being subject to removal under Section 237 of the Immigration and Nationality Act ("INA") for three reasons: (1) he had committed a crime relating to a controlled substance, in violation of 8 U.S.C. § 1227(a)(2)(B)(i) ; (2) his controlled substances conviction constituted an aggravated felony, in violation of 8 U.S.C. § 1227(a)(2)(A)(iii) ; and (3) he was an alien who was inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(II) at the time of his application for adjustment of status, in violation of 8 U.S.C. § 1227(a)(1)(A).

Aristy-Rosa conceded removability under 8 U.S.C. §§ 1227(a)(2)(A)(iii) and (a)(2)(B)(i) and sought no relief from removal. An IJ ordered Aristy-Rosa removed on these grounds, and Aristy-Rosa did not appeal that order. Aristy-Rosa later filed two motions to reopen his removal proceedings to apply for adjustment of status and other relief, both of which were denied.

In December 2017, New York Governor Andrew Cuomo fully and unconditionally pardoned Aristy-Rosa for his controlled substance conviction. Aristy-Rosa then moved to sua sponte reopen his removal proceedings,¹ arguing that the pardon eliminated the basis for his removal. The IJ denied the motion, reasoning that it was time- and number-barred and that, under the plain text of the INA, a pardon fails to extinguish the basis for removal where the underlying conviction was for a controlled substance offense. Aristy-Rosa appealed this decision to the BIA.

The BIA dismissed the appeal. It concluded that Aristy-Rosa's argument was foreclosed by In re Suh, 23 I. & N. Dec. 626 (B.I.A. 2003), which held that certain "removable offenses, such as controlled substance violations under section 237(a)(2)(B) [of the INA] ... are ... not covered by the [INA's] pardon waiver" provision. Id. at 627. The BIA also determined that a Department of Justice Office of Legal Counsel ("OLC") memorandum, which opined that Congress could not restrict the scope of a presidential pardon, was not inconsistent with Suh because the memorandum "detail[ed] the extent of a presidential pardon, rather than a gubernatorial pardon as is at issue here." A.R. 4.

Aristy-Rosa petitions for review.

II²

To resolve this petition, we must interpret the INA provision governing pardons. Our "starting point lies in a careful examination of the ordinary meaning and structure of the law itself." Food Mktg. Inst. v. Argus Leader Media, ––– U.S. ––––, 139 S. Ct. 2356, 2364, 204 L.Ed.2d 742 (2019). "[W]hen the statute's language is plain, the sole function of the courts ... is to enforce it according to its terms." Lamie v. U.S. Trustee, 540 U.S. 526, 534, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004) (quoting Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6, 120 S.Ct. 1942, 147 L.Ed.2d 1 (2000) ).

Section 1227 provides the grounds upon which an alien may be removed from the United States, and § 1227(a)(2) specifically enumerates the various crimes that may constitute a basis for removal. As relevant here, § 1227(a)(2)(A) and § 1227(a)(2)(B) include "[g]eneral crimes" and "[c]ontrolled substances" offenses, respectively. General crimes include "crime[s] involving moral turpitude," "aggravated felon[ies]," "high speed flight from an immigration checkpoint," and "[f]ailure to register as a sex offender." 8 U.S.C. § 1227(a)(2)(A)(i)-(v). The general crimes provision also contains a pardon waiver, which explains that convictions for crimes of moral turpitude, aggravated felonies, and high speed flight cannot serve as the basis for removal "if the alien subsequent to the criminal conviction has been granted a full and unconditional pardon by the President of the United States or by the Governor of any of the several States." 8 U.S.C. § 1227(a)(2)(A)(vi). Section 1227(a)(2)(B), which provides for removal of an alien "convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State ... relating to a controlled substance," contains no pardon waiver. That is, Congress did not explicitly provide that a full pardon for a controlled substance conviction extinguishes the immigration consequences of that offense. Thus, under the plain text of § 1227, Aristy-Rosa's pardon eliminated the aggravated felony ground for his removal but not the controlled substance ground. See Suh, 23 I. & N. Dec. at 628 (explaining that "[t]he plain language of the statute clearly states which grounds of removal are waived if a pardon is granted," and controlled substances offenses "are not among those enumerated"); see also Aguilera-Montero v. Mukasey, 548 F.3d 1248, 1252 (9th Cir. 2008) (reviewing whether § 1227(a)(2)(A)(vi) ’s pardon waiver provision extends to 8 U.S.C. § 1182(a)³ and concluding that "basic tenets of statutory construction preclude us from inferring a [pardon] waiver under the provisions of 8 U.S.C. § 1182(a)"); Balogun v. Att'y Gen., 425 F.3d 1356, 1362 (11th Cir. 2005) (" Section 1182 does not have a pardon provision like [§] 1227[(a)(2)(A)] does, and we believe that if Congress had intended to extend the pardon waiver to inadmissible aliens, it would have done so [explicitly].").

Aristy-Rosa's argument that Congress implied a pardon waiver for a controlled substance offense fails. First, because "it is generally presumed that Congress acts intentionally and purposely when it includes particular language in one section of a statute but omits it in another," we will not imply a pardon waiver in § 1227(a)(2)(B) where none exists in the text. BFP v. Resolution Tr. Corp., 511 U.S. 531, 537, 114 S.Ct. 1757, 128 L.Ed.2d 556 (1994) (quotation marks omitted); see also United States v. Johnson, 529 U.S. 53, 58, 120 S.Ct. 1114, 146 L.Ed.2d 39 (2000) ("When Congress provides exceptions in a statute, it does not follow that courts have authority to create others. The proper inference ... is that Congress considered the issue of exceptions and, in the end, limited the statute to the ones set forth."); Zumel v. Lynch, 803 F.3d 463, 473 (9th Cir. 2015) ("Since Congress knows how to eliminate the immigration consequences of unlawful conduct when it wants to, we should not interpret congressional silence as accomplishing the same end.").⁴

Second, this plain-text interpretation of the INA does not produce absurd results. See Hanif v. Att'y Gen., 694 F.3d 479, 483 (3d Cir. 2012) (noting that we follow the plain text unless "the literal meaning of a statute [could] lead to a patently absurd result that no rational legislature could have intended") (alteration in original) (quoting Barrios v. Att'y Gen., 399 F.3d 272, 277 n.11 (3d Cir. 2005) ). Some controlled substance offenses are also aggravated felonies, as is the case here, but not all aggravated felonies involve controlled substances. Congress could have rationally decided that controlled substance offenses warrant removal because of the impact such crimes have on the entire community. See Suh, 23 I. & N. Dec. at 627-28.

Finally, the OLC memorandum, Effects of a Presidential Pardon, 19 Op. O.L.C. 160 (1995), does not alter our analysis. There, the OLC considered, among other things, whether "a full and unconditional presidential pardon precludes the exercise of the authority to deport a convicted alien." Id. It noted that the INA waives removal for certain crimes under § 1227(a)(2)(A),⁵ but that "[t]he statute is silent ... as to the effect of such a pardon on ... offenses involving controlled substances, firearms, and miscellaneous crimes." Id. The OLC nevertheless concluded that a full presidential pardon would extinguish the immigration effects of any federal crime, including those involving controlled substances, "because congressional legislation cannot define or limit the effect of a presidential pardon" due to the scope of the President's pardon power in Article II of the Constitution. Id. at 161. These separation of powers concerns are absent here, however, because Aristy-Rosa's case concerns only a state pardon, and a state "does not have the authority to make immigration-law determinations." In re Thomas, 27 I. & N. Dec. 674, 680 (A.G. 2019) ; see also Aguilera-Montero, 548 F.3d at 1255 n.9 (noting the OLC's analysis was not relevant where "[petitioner's] case involve[d] a state pardon"); cf. Arizona v. United States, 567 U.S. 387, 409-10, 132 S.Ct. 2492, 183 L.Ed.2d 351 (2012) (collecting cases and noting that "the removal process is entrusted to the [sole] discretion of the Federal Government"); Galvan v. Press, 347 U.S. 522, 531, 74 S.Ct. 737, 98 L.Ed. 911 (1954) ("Policies...