Cyrus v. Keisler

• Decision Date: 19 October 2007
• Docket Number: Docket No. 05-4194-ag.
• Parties: George Desmond CYRUS, Petitioner, v. Peter D. KEISLER,<SMALL><SUP>1</SUP></SMALL> Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

505 F.3d 197

George Desmond CYRUS, Petitioner, v. Peter D. KEISLER,¹ Attorney General of the United States, Respondent.

Docket No. 05-4194-ag.

United States Court of Appeals, Second Circuit.

Argued: May 22, 2007.

Decided: October 19, 2007.

Matthew L. Guadagno (Kerry W. Bretz and Jules E. Coven, on the brief), Bretz & Coven, LLP, New York, NY, for Petitioner.

Dione M. Enea, Special Assistant United States Attorney (Roslynn R. Mauskopf, United States Attorney, and Scott Dunn, Assistant United States Attorney, on the brief), United States Attorney's Office for the Eastern District of New York, Brooklyn, NY, for Respondent.

Before: WALKER and CABRANES, Circuit Judges, and PAULEY,² District Judge.

PER CURIAM:

Petitioner George Desmond Cyrus, a native and citizen of Trinidad & Tobago, seeks review of an order of the Board of Immigration Appeals ("BIA" or "Board") denying his motion to reopen removal proceedings. In re George Desmond Cyrus, No. A 34 341 763 (B.I.A. July 7, 2005). Cyrus lawfully entered the United States in 1975 and became a lawful permanent resident. On November 4, 1991, Cyrus was convicted in the Supreme Court of the State of New York for criminal possession of a firearm.³ On September 29, 1998, the then-Immigration and Naturalization Service charged Cyrus with deportability under section 237(a)(2)(C) of the INA, 8 U.S.C. § 1227(a)(2)(C),⁴ on the basis of his 1991 conviction for criminal firearm possession, and began removal proceedings. During the removal proceedings before the IJ, Cyrus conceded deportability on the basis of his firearm conviction, but Cyrus sought cancellation of removal under section 240A(a) of the INA, 8 U.S.C. § 1229b(a).⁵ In these so-called "removal" proceedings, the IJ found on April 22, 1999 that Cyrus was deportable on the basis of the firearms conviction. Cyrus had been convicted of other crimes, but only his firearm conviction resulted in a finding of inadmissability. The IJ further found that Cyrus was ineligible for cancellation of removal pursuant to section 240A(a) on the basis of his prior conviction for the criminal sale of marijuana, which would be classified as an aggravated felony under the INA.

Cyrus filed a timely appeal from the IJ's decision on April 28, 1999, in which he did not challenge the IJ's finding of inadmissibility but argued that he should be permitted to file for a waiver of inadmissibility under former section 212(c) of the INA, 8 U.S.C. § 1182(c) (repealed 1996) ("section 212(c)").⁶ On September 10, 1999, the BIA concluded that it lacked jurisdiction to hear Cyrus's arguments because "relief under section 212(c) [was] not available in removal proceedings." In re George Desmond Cyrus, No. A 34 341 763 (B.I.A. July 7, 2005). He filed a motion to reopen removal proceedings on May 18, 2000⁷ and, on May 27, 2000, filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of New York. On September 5, 2000, the BIA denied his motion to reopen as untimely. On March 8, 2002, the District Court denied his petition for a writ of habeas corpus on the ground that he was ineligible for relief from removal under section 212(c). Cyrus v. Ashcroft, No. 00-CV-3621, 2002 WL 377050, *2 (E.D.N.Y. Mar.8, 2002). The District Court concluded that Cyrus's conviction for possession of a firearm rendered section 212(c) relief unavailable to him. Id. Cyrus did not appeal the District Court's decision.

On April 26, 2005, almost six years after the BIA's initial adverse ruling, Cyrus filed a second motion to reopen the removal proceedings pursuant to 8 C.F.R. § 1003.44,⁸ which permits reopening in order to apply for section 212(c) relief, and 8 C.F.R. § 1003.2(a),⁹ which authorizes sua sponte reopening by the BIA. His motion described his intent to seek adjustment of status under section 245(a) of the INA, 8 U.S.C. § 1255(a),¹⁰ in conjunction with a waiver of inadmissibility under section 212(c), see note 6, ante. The BIA denied Cyrus's motion to reopen the removal proceedings in a decision of July 7, 2005. In order to reopen the removal proceedings pursuant to 8 C.F.R. § 1003.44, the BIA concluded, Cyrus must establish that he was eligible for waiver of inadmissibility under section 212(c). Section 212(c) relief, in turn, depends on Cyrus's showing that section 212(a) contains a comparable ground of inadmissibility to that ground for which he is removable, namely his 1993 firearms conviction.¹¹ Because Cyrus conceded that his firearms conviction does not have a statutory counterpart under section 212(a), the BIA concluded that he is ineligible for 212(c) relief. The BIA observed that 8 C.F.R. § 1003.44 provides for reopening "solely for the purpose of adjudicating the application for section 212(c) relief" and accordingly denied the motion. Id. (referencing former INA § 212(c), 8 U.S.C. § 1182(c) (repealed 1996)). The BIA decision did not address Cyrus's request for a sua sponte reopening pursuant to 8 C.F.R. § 1003.2(a).

On appeal, Cyrus argues that the BIA erred in concluding that he was not entitled to reopening based on the BIA's purported misinterpretation of the "spirit" of 8 C.F.R. § 1003.44. In the alternative, he asks for a remand in order for the BIA to determine whether to reopen the proceedings sua sponte. The Government asserts that the BIA's decision not to reopen removal proceedings pursuant to 8 C.F.R. § 1003.44 was correct. The Government further contends that Cyrus could not move to reopen under 8 C.F.R. § 1003.44 for any other purpose and that the BIA properly declined to reopen proceedings sua sponte.

DISCUSSION

We write briefly to clarify two points. First, we hold that, as a matter of law, reopening on the basis of 8 C.F.R. § 1003.44 is not available to a petitioner who is not eligible for section 212(c) relief. Second, we reaffirm that we lack jurisdiction to review the BIA's decision not to reopen removal proceedings sua sponte.

A. The BIA's Denial of the Motion to Reopen pursuant to 8 C.F.R. § 1003.44

We review the denial of a motion to reopen for abuse of discretion. See Jie Chen v. Gonzales, 436 F.3d 76, 77 (2d Cir.2006); Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.2005).

As an initial matter, we note that Cyrus does not contest that the ground on which he was ordered removed, his 1991 weapons possession conviction, is not subject to waiver under section 212(c).¹² Therefore, as the BIA properly concluded, he is ineligible for section 212(c) relief pursuant to 8 C.F.R. § 1212.3(f)(5). While that should end the matter, we write to underscore what should be an obvious proposition—namely, that reopening removal proceedings on the basis of 8 C.F.R. § 1003.44 is not available to a petitioner ineligible for section 212(c) relief because 8 C.F.R. § 1003.44 by its terms allows reopening "solely for the purpose of adjudicating the application for section 212(c) relief." 8 C.F.R. § 1003.44(e). In addition, section 1003.44(b) states clearly that a motion for reopening "to seek section 212(c) relief must establish that the alien . . . [i]s otherwise eligible to apply for section 212(c) relief under the standards that were in effect at the time the alien's plea was made, regardless of when the plea was entered by the court." 8 C.F.R. § 1003.44(b). Thus, by its own terms, the text of the regulation clearly limits motions for reopening to those petitioners who, upon reopening, could or would be eligible to pursue section 212(c) relief.

This commonsense reading comports with the purpose of the regulation, which was designed to permit certain lawful permanent residents to apply for section 212(c) relief in response to the Supreme Court's decision in INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). St. Cyr held that certain provisions of AEDPA and IIRIRA, which narrowed and then eliminated section 212(c) discretionary relief, did not apply retroactively. Id. The Court held that "section 212(c) relief remains available for [those] . . . who . . . would have been eligible for § 212(c) relief at the time of their plea under the law then in effect." Id. at 326. In response, 8 C.F.R. § 1003.44(e) was proposed in order to "codify the Supreme Court's holding" and permit aliens to reopen proceedings where they had been eligible for section 212(c) relief "at the time of their pleas[.]" Section 212(c) Relief for Aliens With Certain Criminal Convictions Before April 1, 1997, 67 Fed.Reg. 52627, 52628 (proposed Aug. 13, 2002) (later codified at 8 C.F.R. pts. 2, 212, and 240) (citation omitted). When proposed, the agency's comments on the rule restricted eligibility for relief thereunder to those who "at a minimum, meet [certain] criteria to be considered for a waiver under section 212(c)." Id. Those criteria include that "[t]he alien is deportable or removable on a ground that has a corresponding ground of exclusion or inadmissibility." Id. at 52628-29 (referencing the eligibility requirements of section 212(c)). Having conceded that his firearm conviction, the sole basis for the finding of inadmissibility, has no statutory counterpart, Cyrus is not only ineligible for section 212(c) relief but also ineligible, by definition, for reopening his removal proceedings on the basis of 8 C.F.R. § 1003.44.

Permitting a petitioner who would be ineligible for section 212(c) relief to reopen the proceedings pursuant to 8 C.F.R. § 1003.44 is inconsistent with the text and purpose of the regulation. Accordingly, the BIA did not err, or "abuse its discretion," in concluding that Cyrus was not entitled to reopen removal proceedings for the purpose of seeking section 212(c) relief under 8 C.F.R. § 1003.44. Cf. Zervos v. Verizon N.Y., Inc., 252 F.3d 163, 169 (2d Cir.2001) ("error of law" constitutes "abuse of discretion").

B. The BIA's Decision Not to Reopen Removal Proceedings Sua Sponte

Cyrus also seeks review of the BIA's decision declining to reopen his removal proceedings sua sponte pursuant to 8 C.F.R....