Centurion v. Sessions

• Decision Date: 21 June 2017
• Docket Number: August Term, 2016,Docket No. 15-516
• Citation: 860 F.3d 69
• Parties: Charles William CENTURION, Petitioner, v. Jefferson B. SESSIONS III, United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

860 F.3d 69

Charles William CENTURION, Petitioner,

v.Jefferson B. SESSIONS III, United States Attorney General, Respondent.

Docket No. 15-516

August Term, 2016

United States Court of Appeals, Second Circuit.

Argued: February 28, 2017

Decided: June 21, 2017

Alina Charniauskaya (Theodore N. Cox, on the brief), Law Office of Theodore N. Cox., New York, NY for Petitioner.

Sabatino F. Leo , Trial Attorney (Benjamin C. Mizer, Principal Deputy Assistant Attorney General, and Anthony P. Nicastro, Assistant Director, Office of Immigration Litigation, on the brief), United States Department of Justice, Civil Division, Washington, DC for Respondent.

Before: Katzmann, Chief Judge, Pooler and Lynch, Circuit Judges.

Katzmann, Chief Judge:

In this case, we are called on to determine whether the presumption against retroactive legislation bars the application of an immigration statute. After Petitioner Charles William Centurion committed a drug crime but before Centurion's crime was adjudicated, Congress passed a statute with immigration consequences for any lawful permanent resident who "has committed" a drug crime. 8 U.S.C. § 1101(a)(13)(C)(v). The question is whether the statute can be given effect with respect to Centurion's crime, even though Centurion committed the crime before the statute's passage. We conclude that the presumption against retroactive legislation bars such an application because the plain text of the statute attaches legal consequences at the time a lawful permanent resident commits a crime, rather than at the time of conviction.

BACKGROUND

Petitioner Charles William Centurion is a native and citizen of Peru. On November 4, 1989, he became a lawful permanent resident of the United States. In 1990, Centurion was arrested and charged in the Criminal District Court for Dallas County, Texas with conspiracy to possess cocaine. Centurion posted bail and fled the state. His Texas criminal case remained unresolved for seventeen years.

During Centurion's years as a fugitive, Congress took two legislative actions material to his case. To fully describe the import of these actions on Centurion's case, it is necessary to explain some general principles of immigration law. First, the Attorney General formerly enjoyed the discretion, under certain circumstances, to waive the deportation of aliens under § 212(c) of the Immigration and Nationality Act ("INA"). An alien subject to deportation could apply for such a waiver, which was generally known as "212(c) relief." See INA § 212(c), 8 U.S.C. § 1182(c) (repealed 1996). The first Congressional action material to Centurion's case was the repeal of INA § 212(c): in 1996, through the passage of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104–132, § 440(d), 110 Stat. 1214, 1276–77, and then IIRIRA, Pub.L. No. 104–208, § 304(b), 110 Stat. 3009, 3009–597, Congress narrowed and ultimately eliminated § 212(c) relief and replaced it with cancellation of removal, 8 U.S.C. § 1229b(a).

The second Congressional action material to Centurion's case concerned the Fleuti doctrine. Under Rosenberg v. Fleuti , 374 U.S. 449, 83 S.Ct. 1804, 10 L.Ed.2d 1000 (1963), a lawful permanent resident of the United States was not subject to exclusion proceedings, the pre–IIRIRA analogue to removal proceedings for an alien seeking entry into the United States, if the lawful permanent resident's departure from the United States was "an innocent, casual, and brief excursion." Id. at 462, 83 S.Ct. 1804. In other words, lawful permanent residents could come and go from the United States on short trips without formally seeking admission. Through the passage of IIRIRA in 1996, Congress ended the Fleuti doctrine. See Vartelas v. Holder , 620 F.3d 108, 116–18 (2d Cir. 2010) (" Vartelas I "), rev'd on other grounds , 566 U.S. 257, 132 S.Ct. 1479, 182 L.Ed.2d 473 (2012).¹ Thus, "lawful permanent residents returning post-IIRIRA ... may be required to seek an admission into the United States, without regard to whether the alien's departure from the United States might previously have been ranked as brief, casual, and innocent under the Fleuti doctrine." Vartelas v. Holder , 566 U.S. 257, 262–63, 132 S.Ct. 1479, 182 L.Ed.2d 473 (2012) (" Vartelas II ") (internal quotation marks and brackets omitted). In other words, under 8 U.S.C. § 1101(a)(13)(C)(v), a lawful permanent resident must seek formal admission—even if returning from a brief trip abroad—if he has committed a drug offense or a crime of moral turpitude. In turn, a lawful permanent resident who has been convicted of or who admits committing a drug offense or a crime of moral turpitude is inadmissible. 8 U.S.C. § 1182(a)(2)(A)(i).

Because of these two changes—the elimination of § 212(c) relief and the end of the Fleuti doctrine—Centurion faced a significantly different immigration law landscape when, in 2005, he was arrested in Puerto Rico on an outstanding warrant from his 1990 Texas drug offense. After his release from custody, Centurion went to Texas to resolve his criminal case. On April 10, 2007, he pleaded nolo contendere to conspiracy to possess cocaine in violation of Texas Health and Safety Code § 481.115 and received six months of community supervision. After Centurion complied with the terms of his probation, the proceedings against him in Texas criminal court were dismissed.

On September 25, 2007, the Department of Homeland Security ("DHS") questioned Centurion as he attempted to enter the United States after a brief vacation in the Dominican Republic. During this questioning, Centurion admitted that he was an alien and informed DHS of his 1990 arrest in Texas and his 2005 arrest in Puerto Rico. On January 18, 2008, Centurion was served with a Notice to Appear stating he was subject to removal pursuant to INA § 212(a)(2)(A)(i)(II), 8 U.S.C. § 1182(a)(2)(A)(i)(II), because he was alien convicted of a controlled substance offense, namely conspiracy to possess cocaine.

On May 19, 2009, an Immigration Judge ("IJ") pretermitted Centurion's application for § 212(c) relief and ordered him removed. Specifically, the IJ relied on INS v. St. Cyr , 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), and Landgraf v. USI Film Prods. , 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), to conclude that § 212(c) relief was unavailable to Centurion because he pleaded nolo contendere to his drug offense on April 10, 2007, years after IIRIRA came into effect. On June 23, 2011, the BIA dismissed Centurion's appeal from the IJ's decision. This Court dismissed Centurion's petition for review of the BIA's decision, holding "that the legal regime in force at the time of an alien's conviction determines whether an alien is entitled to seek § 212(c) relief." Centurion v. Holder , 755 F.3d 115, 124 (2d Cir. 2014) (" Centurion I ").

On October 23, 2014, Centurion filed a motion before the BIA to reopen and terminate his removal proceedings and to stay his removal. Centurion argued that the untimeliness of his motion to reopen should be excused because of an intervening change in the law, namely the Supreme Court's decision in Vartelas II , 566 U.S. 257, 132 S.Ct. 1479, 182 L.Ed.2d 473 (2012). In Vartelas II , the Court held that, to the extent that IIRIRA eliminated the Fleuti doctrine, this elimination did not apply to a lawful permanent resident who had committed and been convicted of a crime of moral turpitude before IIRIRA's passage. Id. at 272, 132 S.Ct. 1479. In other words, the Court held that a lawful permanent resident with a pre–IIRIRA conviction could re–enter the United States after a brief trip abroad without seeking admission. The Vartelas II Court observed that "courts read laws as prospective in application unless Congress has unambiguously instructed retroactivity." Id. at 266, 132 S.Ct. 1479. Requiring a lawful permanent resident who had only briefly travelled abroad to seek formal admission to the United States and thereby be deemed inadmissible as a result of a crime fully adjudicated before IIRIRA's passage would give IIRIRA impermissibly retroactive effect. See id. at 267, 132 S.Ct. 1479. In his motion to reopen, Centurion argued that his criminal conduct, like that of the petitioner in Vartelas II , pre–dated IIRIRA and thus he should not have been forced to formally seek admission to the United States or been placed in removal proceedings after his brief 2007 vacation. In other words, he claimed that he was entitled to avail himself of the Fleuti doctrine, as the petitioner was able to do in Vartelas .

The BIA denied Centurion's motion to reopen and dismissed his motion to stay as moot. The BIA concluded that the anti–retroactivity holding of Vartelas II did not apply to Centurion's case because, although he committed his drug offense prior to IIRIRA's passage, the offense was not finally adjudicated until more than a decade after IIRIRA's passage. In reaching this conclusion, the BIA relied on a footnote in Vartelas II which states that § 1101(a)(13)(C)(v)"appears to advert to a lawful permanent resident who has been convicted of an offense under § 1182(a)(2) (or admits to one)." Id. at 275 n.11, 132 S.Ct. 1479. Centurion filed the present petition for review of the BIA's denial of his motion to reopen.

DISCUSSION

The question presented by Centurion's petition is whether the Supreme Court's holding in Vartelas II that a lawful permanent resident with a conviction pre–dating IIRIRA need not formally seek admission after a brief trip abroad applies when a lawful permanent resident's criminal conduct occurred prior to IIRIRA's passage but the offense was not finally adjudicated until after IIRIRA's passage. Before proceeding to this question, we note the limitations of our jurisdiction.

First, when reviewing a final order of removal against an alien who is inadmissible because of a drug offense, we have jurisdiction to review only constitutional claims and questions of law. 8 U.S.C. § 1252(a)(2)(C), (D).

Second,...