Falek v. Gonzales

• Citation: 475 F.3d 285
• Decision Date: 08 January 2007
• Docket Number: No. 05-60624.,05-60624.
• Parties: John FALEK, Petitioner, v. Alberto R. GONZALES, U.S. Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

475 F.3d 285

John FALEK, Petitioner, v. Alberto R. GONZALES, U.S. Attorney General, Respondent.

No. 05-60624.

United States Court of Appeals, Fifth Circuit.

January 8, 2007.

Kenneth Martin Katz (argued), Hughes, Hubbard & Reed, New York City, for Falek.

Kristin Ann Cabral (argued), Civ. Div., Imm. Lit., Richard M. Evans, Asst. Dir., Thomas Ward Hussey, Dir., U.S. Dept. of Justice, OIL, Washington, DC, Caryl G. Thompson, U.S. INS, Attn: Joe A. Aguilar, New Orleans, LA, Margaret M. Kolbe, Brooklyn, NY, for Respondent.

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

Before JOLLY, BARKSDALE and DENNIS, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

In this petition for review, John Falek, who was denied admissibility upon reentry into this country, appeals the decision of the Board of Immigration Appeals ("BIA"), which vacated the Immigration Judge's ("IJ") grant of a § 212(c) waiver of inadmissibility and ordered him deported. Because the decision to grant or not to grant waiver of admissibility is discretionary with the BIA, the merits of that decision are nonappealable. Bravo v. Ashcroft, 341 F.3d 590, 593 (5th Cir.2003). Falek contends, however, that in deciding his case, the BIA violated his due process rights because (1) the BIA, not the Immigration Judge, entered an order of removal in the first instance, (2) the BIA failed to follow its own precedent, and (3) the BIA applied the law in an impermissibly retroactive fashion. Because we determine that the first challenge is foreclosed by our precedent and that we lack jurisdiction to consider the second and third challenges, we deny in part and dismiss in part the petition for review.

I

Falek arrived in the United States in 1973 at the age of fifteen, and has since lived in this country continuously as a lawful permanent resident. His mother and three siblings are United States citizens, all living in the United States. His father lives in the Philippines, but Falek has not spoken to him since 1969. Falek served for three years in the United States Navy, and was honorably discharged. He then worked as a clerk at Bellevue Hospital in New York.

Falek married a woman who had a daughter and they later had a biological daughter together. In 1989, Falek committed a sexual assault against his stepdaughter, who was about ten years old at the time. She approached Falek for comfort while her mother was in the hospital, and while sleeping close together, he hugged her and then touched her breasts and pudendum. In November 1992, Falek entered a guilty plea for the offense of sexual assault in the second degree. He was sentenced to seven years of imprisonment on May 28, 1993, and served four years of that sentence. He is a registered sex offender who must report once a year to New York's Board of Examiners for Sex Offenders ("New York Board"). The New York Board assigned him a risk level of one, meaning that he poses a low risk of being a repeat offender. Furthermore, Falek is only allowed supervised visits with his biological daughter, who lives with her mother.

Several years later, Falek worked as an aide for Albert Bildner, an elderly friend whom Falek assisted with daily activities and household tasks. In 2000, Falek began accompanying Bildner on short trips abroad. He traveled with Bildner twice, re-entering the United States without difficulty both times. On September 10, 2000, Falek accompanied Bildner on a nine-day trip to Brazil. Upon Falek's return to the United States at JFK Airport on September 19, 2000, he was arrested by the Immigration and Naturalization Service as an alien seeking admission into the United States under 8 U.S.C. § 1101(a)(13), and he was issued a Notice to Appear, which charged him with inadmissibility as an alien who has been convicted of a crime involving moral turpitude, under § 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act ("INA").

II

Falek's case has been before the IJ and the BIA twice, before the federal courts in New York and before us once before. The appeal we consider today arises from his second habeas petition, which was transferred to this court from the Southern District of New York. In January 2001 the first immigration hearing was held. The IJ later issued a written decision finding Falek removable and ordering him removed because his crime involved moral turpitude. The IJ further found that Falek's offense was an aggravated felony under the INA, which meant that Falek was both statutorily ineligible for cancellation of removal and ineligible for a § 212(c) waiver of inadmissibility under the Antiterrorism and Effective Death Penalty Act ("AEDPA") and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"). Falek's argument that the IJ should follow Second Circuit retroactivity precedent that would make him eligible for § 212(c) relief was rejected because the IJ found no analogous precedent of this court. In June, the Supreme Court rendered its decision in INS v. St Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), holding that it was an impermissibly retroactive application of IIRIRA to bar § 212(c) relief for aliens who, in reliance on the availability of that relief, had pleaded guilty to aggravated felonies. In July, Falek appealed the IJ's decision to the BIA based on St. Cyr, asking for a hearing on a § 212(c) waiver of inadmissibility. He did not, however, raise the question of retroactive application of § 1101(a)(13)(C), that is, whether the statute was impermissibly retroactive as to him, and thus whether, under the statute, he should have been considered "seeking admission" to the country when he returned from a brief trip abroad. The BIA affirmed in part and vacated in part, agreeing with the IJ that Falek's guilty plea subjected him to the amended statute but remanding to the IJ to allow Falek to apply for § 212(c) relief, as per St. Cyr.

On March 29, 2002, the IJ conducted a hearing on the issue of § 212(c) waiver, and ultimately granted the waiver. The IJ considered Falek's conviction to be a serious adverse factor that could only be overcome by a showing of outstanding equities. The IJ considered that most of Falek's family is in the United States, that he has essentially no relatives in the Philippines, that he moved to the United States at the age of fifteen, that he had lived in the United States for about thirty years, and that he had served in the United States Armed Forces. The IJ concluded that Falek would suffer extreme hardship if removed to the Philippines, as he had not lived there since the age of fifteen and had no family there to help him readjust. The IJ next considered the issue of rehabilitation, determining that Falek had demonstrated rehabilitation because of his low risk rating by the New York Board, and because Falek had been out of jail for several years and had not committed any other crimes. Ultimately concluding that "positive equities were sufficiently outstanding to outweigh [Falek's] criminal conviction," the IJ granted Falek's application for a § 212(c) waiver.

The Government appealed the IJ's decision to the BIA. On December 4, 2002, the BIA reversed the decision of the IJ, granted the Government relief and ordered Falek removed. The BIA reasoned that it "agree[d] with the [Government's] contention that the positive factors demonstrated by [Falek], i.e., long term residence in the United States, some military service and extensive family ties in the United States, cannot outweigh the seriousness of the circumstances surrounding his 1993 conviction for sexual assault." The BIA further noted that "when considering the important issue of rehabilitation, we agree with the [Government] that [Falek] has failed to provide any evidence of genuine rehabilitation." Again, the merits of this BIA decision are nonappealable. The posture of his case has required Falek to pursue different avenues of relief in other forums.

On December 26, 2002, Falek filed a petition for habeas corpus in the United States District Court for the Eastern District of New York, alleging for the first time since his initial January 2001 appearance before the IJ that he was not an "alien" under the relevant law. On January 30, 2004, because Falek has always been incarcerated in Oakdale, Louisiana, the petition was transferred to this Court. On December 6, 2004, Falek filed another habeas petition in the United States District Court for the Eastern District of New York, alleging that his due process rights had been violated. On February 15, 2005, this Court dismissed Falek's first petition for lack of jurisdiction and failure to raise a genuine issue of material fact as to whether he is an "alien." On June 27, 2005, the district court transferred the relevant portions of Falek's second habeas petition to this Court, pursuant to the REAL ID Act. See Pub.L. No. 109-13, 119 Stat. 231, 311, § 106(c). This second habeas petition, converted to a petition for review under the REAL ID Act, see id., is the subject of this appeal.

III

Falek now argues that his due process rights were violated by: (1) the BIA's entry of an order of removal in the first instance, that is, in the absence of such an earlier order by the IJ;¹ (2) the BIA's failure to follow its own precedent by refusing to consider evidence in the record on the relevant factors of rehabilitation and hardship;² and (3) the retroactive application of § 1101(a)(13). The Government, however, also raises the question of this court's jurisdiction to consider Falek's third claim of error, to which we now turn.

Falek argues that at the time he agreed to plead guilty, his guilty plea did not impose consequences on his immigration status based on departure from and reentry into this country; however, when Congress changed the law in IIRIRA, his departure and reentry resulted in his detainment and order of removal. Thus the law had an impermissibly retroactive effect when applied to...