Cabral v. Holder

• Decision Date: 02 February 2011
• Docket Number: No. 09–60386.,09–60386.
• Citation: 632 F.3d 886
• Parties: Arnel CABRAL, Petitioner,v.Eric H. HOLDER, Jr., U.S. Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

632 F.3d 886

Arnel CABRAL, Petitioner,

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

No. 09–60386.

United States Court of Appeals, Fifth Circuit.

Feb. 2, 2011.

Marlene A. Dougherty, Brownsville, TX, for Cabral.Gladys Marta Steffens Guzman, Tangerlia Cox, Ernesto Horacio Molina, Jr., U.S. Dept. of Justice, OIL, Washington, DC, for Respondent.Petitions for Review of an Order of the Board of Immigration Appeals.Before JONES, Chief Judge, and DENNIS and CLEMENT, Circuit Judges.EDITH BROWN CLEMENT, Circuit Judge:

Arnel Cabral, a native and citizen of the Philippines and a lawful permanent resident of the United States, petitions for review of a Board of Immigration Appeals (“BIA”) decision dismissing his appeal of an Immigration Judge's (“IJ”) decision ordering his removal pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii) because he had been convicted of two crimes involving moral turpitude and finding him ineligible for a waiver of inadmissibility under 8 U.S.C. § 1182(h) (commonly referred to as a “§ 212(h) waiver”). Cabral argues that the BIA abused its discretion by refusing to hold his appeal in abeyance while he pursued a motion to vacate the convictions for crimes of moral turpitude in the New York state courts. He further argues that the BIA erred in affirming the IJ's determination that he was ineligible for a § 212(h) waiver. We DENY Cabral's petition for review.

FACTS AND PROCEEDINGS

Cabral was admitted as a lawful permanent resident in October 1992. In 1999, Cabral was convicted in New York of two counts of sexual abuse in the third degree. The Department of Homeland Security (“DHS”) denied Cabral's application for naturalization in 2004 because the sexual abuse convictions rendered him unable to meet the “good moral character” requirement contained in 8 U.S.C. § 1427. DHS later charged Cabral with removability pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii). Before the IJ, Cabral sought cancellation of removal under 8 U.S.C. § 1229b(a), argued that his two sexual abuse convictions formed part of a single scheme of conduct,¹ sought a § 212(h) waiver, and sought an exercise of discretion by the Attorney General to terminate the removal proceedings. The IJ found that the two offenses did not arise out of a single scheme of conduct and that Cabral was therefore deportable. The IJ also denied Cabral's requests to terminate the proceedings and cancel removal. Finally, the IJ found Cabral ineligible for a § 212(h) waiver and pretermitted consideration of Cabral's request for such waiver. Cabral appealed to the BIA. He requested that the BIA hold the proceedings in abeyance while he collaterally attacked his sexual abuse convictions in the New York state courts. The BIA rejected his request and dismissed his appeal. Cabral then timely appealed to this court and simultaneously sought reconsideration by the BIA. The BIA denied Cabral's motion for reconsideration. Cabral also appealed the BIA's second denial and this court consolidated the two petitions. See Stone v. INS, 514 U.S. 386, 405–06, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995).

STANDARD OF REVIEW

We review the BIA's findings of fact for substantial evidence and its legal determinations de novo. Zhu v. Gonzales, 493 F.3d 588, 594 (5th Cir.2007). “The grant of [an abeyance] lies within the sound discretion of the [BIA, which] may grant [an abeyance] for good cause shown. Accordingly, we review a decision to grant or deny [an abeyance] for an abuse of discretion.”² Masih v. Mukasey, 536 F.3d 370, 373 (5th Cir.2008) (citations omitted). “Even though we have authority to review only the BIA's decision, we may consider the IJ's decision to the extent that it influenced the BIA.” Id.

Although we are without jurisdiction “to review a decision of the Attorney General to grant or deny a [§ 212(h)] waiver,” 8 U.S.C. § 1182(h), our court has jurisdiction “to review the question of law presented by [Cabral's] challenge to the BIA's construction of § 212(h).” Martinez v. Mukasey, 519 F.3d 532, 541 (5th Cir.2008) (citing 8 U.S.C. § 1252(a)(2)(D)).

DISCUSSIONI. Abeyance

Cabral sought to hold his appeal before the BIA in abeyance so that he could pursue a motion to vacate the New York state convictions upon which the IJ's removability finding was based. He argues that the BIA abused its discretion in rejecting his request. The grant of an abeyance of immigration proceedings lies within the sound discretion of the BIA, which may grant an abeyance upon a showing of good cause. See Witter v. INS, 113 F.3d 549, 555 (5th Cir.1997). We find no abuse of that discretion here.

“[T]he BIA [does not] abuse[ ] its discretion so long as it is not capricious, racially invidious, utterly without foundation in the evidence, or otherwise so aberrational that it is arbitrary rather than the result of any perceptible rational approach. The BIA acts arbitrarily when it disregards its own precedents and policies without giving a reasonable explanation for doing so.” Galvez–Vergara v. Gonzales, 484 F.3d 798, 801 (5th Cir.2007) (quotations omitted). Cabral, who bears the burden of showing good cause, see Bright v. INS, 837 F.2d 1330, 1332 (5th Cir.1988), has not shown that the BIA disregarded its own precedents and policies. The BIA determined that, under its precedent, a pending collateral attack on a conviction does not disturb the finality of the conviction for immigration purposes. See Matter of Abreu, 24 I. & N. Dec. 795, 802 n. 8 (B.I.A.2009) ( “A pending collateral attack also does not disturb the finality of a conviction and therefore would not justify reopening of removal proceedings.”); Matter of Adetiba, 20 I. & N. Dec. 506, 508 (B.I.A.1992) (“the possibility of a decision on any post-conviction motion that has been filed does not affect our finding that the respondent is deportable.”); see also Okabe v. INS, 671 F.2d 863, 865 (5th Cir.1982) (adopting the position that “post-conviction motions do not operate to negate the finality of a conviction for deportation purposes, unless and until the conviction is overturned pursuant to such motions.”). The BIA properly concluded that Cabral's “conviction remains in effect and it is speculative to conclude that the court will vacate it for reasons that remove it for immigration purposes.” We hold that the BIA did not abuse its discretion in rejecting Cabral's request to hold his appeal in abeyance.

II. Section 212(h) Waiver

Section 212 of the Immigration and Nationality Act (“INA”) allows the Attorney General, to, in his discretion, grant hardship waivers to certain classes of inadmissible aliens, including, relevant here, those like Cabral convicted of multiple crimes involving moral turpitude. 8 U.S.C. § 1182. The Attorney General may waive inadmissibility if:

(1) (A) in the case of any immigrant it is established to the satisfaction of the Attorney General that—

...

(B) in the case of an immigrant who is the spouse, parent, son, or daughter of a citizen of the United States or an alien lawfully admitted for permanent residence if it is established to the satisfaction of the Attorney General that the alien's denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien;

... and

(2) the Attorney General, in his discretion, and pursuant to such terms, conditions and procedures as he may by regulations prescribe, has consented to the alien's applying or reapplying for a visa, for admission to the United States, or adjustment of status.

8 U.S.C. § 1182(h).

Cabral is deportable because any alien who “at any time after admission is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor and regardless of whether the convictions were in a single trial, is deportable.” 8 U.S.C. § 1227(a)(2)(A)(ii). “Although on its face the hardship waiver found in INA § 212(h)(1)(B) is only applicable to inadmissible aliens, in practice the waiver is also available to deportable aliens.” Flores–Ledezma v. Gonzales, 415 F.3d 375, 379 n. 5 (5th Cir.2005). However, aliens who are already in the United States must “apply for an adjustment of status under 8 U.S.C. § 1255; upon application, the ‘applicant is assimilated to the position of an alien outside the United States seeking entry as an immigrant.’ ” Jankowski–Burczyk v. INS, 291 F.3d 172, 175 n. 2 (2d Cir.2002) (citing Charles Gordon et al., Immigration Law and Procedure § 51.03[3] (rev. ed.2001)). The adjustment of status application “shall be the sole method of requesting the exercise of discretion under sections 212(g), (h), (i), and (k) of the Act, as they relate to the inadmissibility of an alien in the United States.” 8 C.F.R. § 1245.1(f) (2010) (emphasis added); see also Matter of Abosi, 24 I. & N. Dec. 204, 205 n. 2 (B.I.A.2007) (discussing regulation and distinguishing aliens seeking to return to the United States, who need not apply apply for an adjustment of status in conjunction with a § 212(h) waiver request). The BIA properly determined that because Cabral was an alien inside the United States who had not filed a concurrent application for adjustment of status under § 1255, he was ineligible to apply for a § 212(h) waiver.³

Cabral first argues that a § 212(h) waiver may stand alone and that an alien present in the United States need not concurrently apply for an adjustment of status. He contends that 8 U.S.C. § 1101(a)(13) defines an alien seeking admission for purposes of the INA, including a § 212(h) waiver, and that that statute makes no distinction between aliens inside and outside the United States. Section 1101(a)(13) provides:

(A) The terms “admission” and “admitted” mean, with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.

(B) An alien who is paroled under section 1182(d)(5) of this title or...