Caroleo v. Gonzales

• Decision Date: 07 February 2007
• Docket Number: No. 05-3762.,05-3762.
• Citation: 476 F.3d 158
• Parties: Salvatore CAROLEO, Petitioner, v. Alberto R. GONZALES, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

476 F.3d 158

Salvatore CAROLEO, Petitioner, v. Alberto R. GONZALES, Attorney General of the United States, Respondent.

No. 05-3762.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit L.A.R. 34.1(a) September 15, 2006.

Opinion Filed February 7, 2007.

Mario Apuzzo, Esq., Jamesburg, NJ, for Petitioner.

Peter D. Kiesler, Michael P. Lindemann, Ethan B. Kanter, U.S. Department of Justice Office of Immigration Litigation, Washington, DC, for Respondent.

Before: SLOVITER, WEIS and GARTH, Circuit Judges.

OPINION

GARTH, Circuit Judge.

Petitioner Salvatore Caroleo seeks our review of a decision of the Board of Immigration Appeals ("BIA") denying his motion for a discretionary waiver of removal pursuant to § 212(c) of the Immigration and Nationality Act ("INA"). Because we agree with the BIA's determination that an aggravated felony/crime of violence— for which Caroleo has been found removable on the basis of his state court conviction for attempted murder—has no statutory counterpart in § 212(a) of the INA, we will deny Caroleo's petition.

I.

Petitioner Salvatore Caroleo, a 35 year-old native and citizen of Italy, entered the United States as a lawful permanent resident on an Immigrant Visa on April 23, 1978. In December 1993, Caroleo was indicted in New Jersey Superior Court on a number of charges related to an attack he committed on a woman in Middlesex County. By letter dated March 14, 1996, New Jersey State Assistant Prosecutor Robert J. Brass offered Caroleo a plea agreement. The terms of the proposal required Caroleo to plead guilty to three counts: attempted murder, second-degree burglary, and possession of a weapon for unlawful purposes. Under the terms of the plea offer, Caroleo's maximum custodial sentence would be twelve years, with a four-year period of parole ineligibility.

On November 1, 1996, Caroleo appeared in court with his attorney, Louis C. Esposito, and formally accepted Brass's March 14, 1996 plea offer. On January 6, 1997, Caroleo was sentenced, in accordance with the plea agreement, to a total of twelve years imprisonment. The sentence provided that Caroleo would not be eligible for parole prior to serving four years.

II.

On June 12, 2000, while still incarcerated, Caroleo was served by the INS with a Notice to Appear, charging him with being removable under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien convicted of an "aggravated felony," as that term is defined in INA § 101(a)(43), 8 U.S.C. § 1101(a)(43). In particular, the Notice to Appear contained two charges relating to two separate aggravated felonies. The first charge alleged that Caroleo had been convicted of an aggravated felony consisting of "a crime of violence [attempted murder] ... for which the term of imprisonment [is] at least one year." INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F). The second charge alleged that Caroleo was convicted of the aggravated felony of "a theft offense ... or burglary offense for which the term of imprisonment [is] at least one year." INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G).

A hearing was held before an immigration judge ("IJ") on April 19, 2001. At the hearing, Caroleo, who was represented by counsel, conceded the removal charges, and sought to apply for a discretionary waiver of deportation under INA § 212(c). Counsel for Caroleo acknowledged that the Antiterrorism and Effective Death Penalty Act ("AEDPA"), which took effect in 1996, foreclosed § 212(c) relief to individuals such as Caroleo who had been convicted of aggravated felonies. He argued, however, that Caroleo might still be entitled to relief under the Second Circuit's decision in St. Cyr v. INS, 229 F.3d 406 (2d Cir.2000), which held that AEDPA's restriction on § 212(c) relief to aggravated felons could not be applied retroactively to aliens who pled guilty prior to AEDPA's effective date of April 24, 1996. Caroleo conceded that he had pled guilty after that date, but asserted that, because his crime had been committed in 1993—prior to the enactment of AEDPA—the principles of St. Cyr should be extended to render AEDPA inapplicable to him.

On April 19, 2001, the IJ issued an oral decision ordering that Caroleo be removed. The IJ rejected Caroleo's argument that the holding of St. Cyr should be extended to aliens like Caroleo whose crime had been committed prior to—but had pled guilty after—AEDPA's effective date. The IJ therefore held that St. Cyr was inapplicable to Caroleo because Caroleo "has conceded that he pled guilty on November 1, 1996," which was after the April 24, 1996 effective date of AEDPA.

Caroleo filed his appeal to the BIA shortly after the Supreme Court affirmed St. Cyr on June 25, 2001. On appeal, Caroleo again argued that he was not subject to AEDPA's limitations on § 212(c) relief because his offense was committed in 1993, prior to the enactment of AEDPA. On July 30, 2001, the BIA dismissed the appeal. In its order, the BIA stated that Caroleo "acknowledges that he pled guilty to attempted murder and burglary on or about November 1, 1996," a date after AEDPA had taken effect, and that St. Cyr only applies to aliens who pled guilty prior to AEDPA's effective date regardless of when their crimes were committed.

III.

On April 25, 2005, Caroleo filed a special motion with the BIA seeking § 212(c) relief. Caroleo specifically relied upon regulations then recently adopted by the Department of Justice to implement St. Cyr. Those regulations provide that an alien need only have agreed with the prosecutor informally to plead guilty prior to AEDPA's effective date to avoid the limitations imposed by AEDPA. In his motion, Caroleo asserted, for the first time, that although his guilty plea was not formally entered in court until November 1, 1996, he had in fact informally accepted the prosecution's March 14, 1996 plea offer prior to AEDPA's April 24, 1996 effective date, and that he was therefore eligible to be considered for § 212(c) relief under pre-AEDPA standards. To support this assertion, Caroleo submitted an affidavit from Louis C. Esposito, the attorney who had represented him in his criminal case. In the affidavit, Esposito stated:

3. Due to the quantity and quality of the evidence the State had against Mr. Caroleo, he and I never seriously considered a trial. We therefore immediately opened plea negotiations with Assistant Prosecutor Robert J. Brass.

4. On March 14, 1996, Mr. Brass made a plea offer. The offer was transmitted in a letter to me dated March 14, 1996 ... This offer was accepted by Mr. Caroleo and me shortly after I received the letter.

5. Due to my busy trial calendar and the mental health problems and several mental health hospitalizations experienced by Mr. Caroleo, the offer was not formally acted upon until November 1, 1996, the day Mr. Caroleo entered his guilty plea on the record in the Superior Court of New Jersey . . .

6. The initial offer which we received in writing in Mr. Brass's letter dated March 14, 1996 was never rejected and accepted as presented almost immediately. . . .

7. I have a clear recollection of the facts of the case, the plea negotiations with the State, the time that the State made the offer, the time that Mr. Caroleo and I accepted that offer, and would, if required, be willing to testify in open court to this knowledge. I can state with certainty that we accepted the State's plea offer dated March 14, 1996 before April 24, 1996.

Caroleo acknowledged that, under amendments to the INA that were in place since 1990, § 212(c) relief was unavailable to any alien who had served a term of imprisonment of at least five years for an aggravated felony. At the time his special motion seeking § 212(c) relief was filed in April 2005, Caroleo was still incarcerated, and had, to that point, served more than eight years in prison.

Caroleo presented two main arguments that he was nevertheless entitled to relief. First, as a matter of statutory interpretation, Caroleo argued that the time at which to evaluate whether an alien has "served a term of imprisonment of at least five years," thus rendering him ineligible for consideration under § 212(c), is when the alien first seeks to apply for such relief— or at the latest, upon entry of a final order of removal. In the present case, Caroleo had sought to apply for a § 212(c) waiver at the hearing before the IJ on April 19, 2001, at which time he had served fewer than five years. Moreover, Caroleo had still not served five years at the time when the BIA issued its July 30, 2001 order affirming the IJ's decision.

Second, Caroleo argued that, even if he was found to be statutorily barred from relief under § 212(c), the BIA should nevertheless consider his application on equitable grounds. Caroleo asserted that it would be unjust to deny him § 212(c) relief on the basis of his now having served more than five years' incarceration, when he had, in fact, sought such relief prior to having served five years, but had been wrongly denied the opportunity to do so. Caroleo therefore asked the BIA to employ the equitable remedy of nunc pro tunc to consider his § 212(c) application as though he had properly filed it before serving five years.

In an order dated July 7, 2005, the BIA denied Caroleo's motion. First, the BIA ruled that Caroleo was ineligible for a § 212(c) waiver because the aggravated felony convictions on the basis of which Caroleo was found removable—i.e., "crime of violence" and "theft or burglary offense," "do not have a statutory counterpart in section 212(a) of the Act." As a second ground for denying his motion, the order stated: "it appears that the respondent has served more than 5 years of incarceration for his aggravated felony convictions. If this is true, it would also render him ineligible for a section 212(c) waiver." Caroleo then filed this timely petition.

IV.

We have jurisdiction to review constitutional claims or questions of law raised upon a ...