Enriquez-gutierrez v. Holder

• Decision Date: 16 July 2010
• Docket Number: No. 08-60769.,08-60769.
• Citation: 612 F.3d 400
• Parties: Raul ENRIQUEZ-GUTIERREZ, Petitioner,v.Eric H. HOLDER, Jr., U.S. Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

612 F.3d 400

Raul ENRIQUEZ-GUTIERREZ, Petitioner,v.Eric H. HOLDER, Jr., U.S. Attorney General, Respondent.

No. 08-60769.

United States Court of Appeals, Fifth Circuit.

July 16, 2010.

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Elisabeth S. Brodyaga (argued), San Benito, TX, for Petitioner.

John Clifford Cunningham, I, Sr. Lit. Counsel, Tangerelia Cox, Thomas Ward Hussey, Dir., Blair O'Connor, Asst. Dir. (argued), U.S. Dept. of Justice, OIL, Washington, DC, E.M. Trominski, Dist. Dir., U.S. Imm. & Naturalization Serv., Harlingen, TX, for Respondent.

Petition for Review of an Order of the Board of Immigration Appeals.

Before JONES, Chief Judge, and BENAVIDES and PRADO, Circuit Judges.

BENAVIDES, Circuit Judge:

Raul Enriquez-Gutierrez petitions for review of a decision of the Board of Immigration Appeals (“BIA” or “Board”) ordering him removed from this country. The BIA found that Enriquez is removable on the basis of a 2001 conviction for cocaine possession, but Enriquez protests that in an earlier deportation proceeding, he received a waiver of deportation covering that conviction under former § 212(c) of the Immigration and Nationality Act (“INA”). The BIA concluded, however, that Enriquez had stipulated that his 2001 cocaine conviction would be excluded from coverage under that waiver. At oral argument before this Court, the government conceded that Enriquez had not stipulated that his 2001 cocaine conviction would be excluded from the waiver. We find that the transcript of Enriquez's deportation hearing reveals that the BIA's conclusion regarding the stipulation is incorrect. We also conclude that the BIA's opinion does not otherwise state a valid rationale for removing Enriquez from this country. Consequently, we vacate the decision of the BIA and remand this case for further proceedings.

I.

Enriquez is a citizen of Mexico, but became a lawful permanent resident of this country in 1976. In 1980, he was convicted of an offense relating to alien smuggling, and subsequently was convicted in 1990 for felony delivery of marijuana. After his marijuana conviction, the Immigration and Naturalization Service (“INS”) commenced deportation proceedings against Enriquez in 1991. Enriquez conceded that his marijuana conviction rendered him eligible for deportation, but he sought a waiver of deportation under former § 212(c) of the INA. Under former § 212(c), the Attorney General had discretion to allow aliens subject to deportation to remain in this country, so long as they had maintained “a lawful unrelinquished domicile of seven consecutive years” in the United States, had not been convicted of “one or more aggravated felonies,” and had not “served for such felony or felonies a term of imprisonment of at least 5 years.” See 8 U.S.C. § 1182(c) (1994).¹

The immigration judge (“IJ”) refused to grant Enriquez a waiver in May 1991, and the BIA dismissed Enriquez's appeal of the IJ's decision in July 1994. Several months after this dismissal, Enriquez filed a motion seeking reconsideration and reopening of his case, but the motion remained pending before the BIA for more than seven years. Finally, in February 2002, the BIA declined to reconsider its 1994 decision, but agreed to reopen Enriquez's deportation proceedings. The BIA remanded Enriquez's case to an IJ, to allow Enriquez an opportunity to demonstrate that he now merited § 212(c) relief given the decade that had passed since his deportation proceedings began.

In the interim, however, several important developments had occurred. Enriquez had been convicted of two additional crimes in 2001, possession of a firearm in violation of state law and possession of less than a gram of cocaine. Additionally, in 1996, Congress had considerably rewritten the nation's immigration laws, restricting grants of § 212(c) relief and then repealing the provision altogether. First, the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) placed new restrictions on the eligibility of certain aliens for waivers of deportation under § 212(c). Pub.L. No. 104-132, § 440(d), 110 Stat. 1214, 1277. Second, shortly after the passage of AEDPA, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub.L. No. 104-208, 110 Stat. 3009-546. IIRIRA repealed § 212(c) and replaced it with INA § 240A, a more restrictive provision that only allows the Attorney General to “cancel” the removal of aliens if they have not been convicted of an aggravated felony. See 8 U.S.C. § 1182(c) (2006) (former INA § 212(c)); § 1229b (new INA § 240A); IIRIRA § 304(a)-(b), 110 Stat. at 3009-594-97. Although Congress repealed § 212(c) in 1996, it has continued to be applied in certain deportation and removal proceedings. Notably, in INS v. St. Cyr, the Supreme Court ruled that IIRIRA's repeal of § 212(c) could not be applied retroactively to aliens who had pleaded guilty before the passage of IIRIRA and whose guilty pleas to deportable offenses may have been entered with the expectation that they would be eligible for discretionary waiver of deportation. 533 U.S. 289, 326, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001).

On remand before a new IJ, the government chose not to bring new deportation charges against Enriquez for his 2001 convictions, but Enriquez filed an updated application requesting § 212(c) relief. Since 8 C.F.R. § 1212.3(d) provides that the approval of an application for § 212(c) relief only covers “those specific grounds of excludability, deportability, or removability that [are] described in [an alien's] application,” Enriquez disclosed that he might be deportable due to “convictions for controlled substance offenses, 1990 & 1999.” His disclosure of a 1999 controlled substance offense was actually a reference to his 2001 conviction for cocaine possession, for which he had been arrested in 1999. However, whatever ambiguity was created by Enriquez's reference to a “1999” conviction was cured by his attachment to his application of a record of his cocaine conviction, showing that the underlying offense occurred in 1999 but that he was convicted in 2001. Notably, Enriquez did not seek a waiver for his 2001 firearm conviction, as such relief had historically been unavailable under the former § 212(c). See Chow v. INS, 12 F.3d 34, 38 (5th Cir.1993).

What next occurred at Enriquez's deportation hearing in April 2004 is the primary subject of this appeal. At the hearing, the government announced that it was willing to stipulate to a grant of § 212(c) relief for Enriquez's 1980 alien smuggling conviction and his 1990 marijuana conviction. Enriquez's counsel and the IJ agreed to a stipulation of relief for these offenses, but at the close of the hearing, the following exchange occurred between Enriquez's counsel and the IJ:

JUDGE FOR THE RECORD

Submitted. 04/29, today. There's no other issue or fact of law and the parties have stipulated to the grant of the 212(c) relief for the offenses that occurred 1990 and before, then nothing else to resolve. That doesn't resolve, of course, any future issues concerning the 2001 [conviction].

MS. BRODYAGA TO JUDGE

Well, we will, we would agree that it does, by law, Judge. The Government is ... not stipulating to that, but we are also not stipulating that it doesn't-we will argue ... that by law it does.

JUDGE TO MS. BRODYAGA

Sure.

MS. BRODYAGA TO JUDGE

But we have no problem with their position and are happy to accept the grant.

The IJ then proceeded to grant Enriquez's application for a § 212(c) waiver and stated in an oral decision that “the Court finds that the parties have stipulated to the grant of the 212(c) relief on the issues that were remanded by the Board for consideration, and that is the [1990] conviction and any other crime that occurred prior to 1990 that brought the respondent into deportation proceedings.” Thus, although the IJ orally limited his grant of § 212(c) relief to Enriquez's 1980 and 1990 convictions, Enriquez's counsel clearly reserved the right to argue that the waiver also by law covered his disclosed 2001 cocaine conviction.

Soon after, in October 2004, the government served a new notice to appear on Enriquez, alleging that he was eligible for removal from the United States on the basis of his 2001 cocaine and firearm convictions. The government asserted removal on the basis of three statutory provisions. It claimed that Enriquez was removable because he had been convicted of breaking a law “relating to a controlled substance,” see 8 U.S.C. § 1227(a)(2)(B)(i), and had been convicted of “possessing, or carrying ... a firearm ... in violation of ... law.” See § 1227(a)(2)(C). It also claimed that Enriquez had been convicted of an “aggravated felony,” see § 1227(a)(2)(A)(iii), as defined at 8 U.S.C. § 1101(a)(43)(B) to include “a drug trafficking crime,” which in turn is defined at 18 U.S.C. § 924(c)(2) to include “any felony punishable under the Controlled Substances Act (21 U.S.C. § 801 et seq.).” As described above, the significance of the aggravated felony charge is that permanent resident aliens like Enriquez are statutorily ineligible for discretionary cancellation of removal under § 240A if they have been convicted of an aggravated felony. See 8 U.S.C. § 1229b(a)(3).

The government's new removal charges against Enriquez were eventually heard before the same IJ who had initially granted § 212(c) relief in Enriquez's earlier deportation proceedings. As expected, Enriquez argued that his § 212(c) waiver blocked removal on the basis of his 2001 cocaine conviction. He also argued that although he could be removed due to his firearms conviction, he was eligible for adjustment of status, which would allow him to remain in the United States.² In November 2005, the IJ rejected these arguments and ordered Enriquez removed to Mexico. The IJ found that, as a matter of law, his previous grant of § 212(c) relief could not have covered Enriquez's 2001 cocaine conviction, since § 212(c) had already been repealed for five years by 20...