Frederick v. Holder

• Decision Date: 03 May 2011
• Docket Number: No. 09–2607.,09–2607.
• Citation: 644 F.3d 357
• Parties: Michael FREDERICK, Petitioner,v.Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

644 F.3d 357

Michael FREDERICK, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

No. 09–2607.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 23, 2010.Decided May 3, 2011.

Maria T. Baldini–Potermin (argued), Attorney, Chicago, IL, for Petitioner.OIL, Joanna L. Watson (argued), Attorneys, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.Before BAUER, POSNER, and SYKES, Circuit Judges.SYKES, Circuit Judge.

Michael Frederick was born in Germany in 1957 and came to the United States at age four with his mother and sister. They were admitted as lawful permanent residents, and Frederick has remained in the United States since his admission in 1961. In 1990 he pleaded guilty in Illinois state court to two counts of aggravated sexual abuse of a minor. The charges involved two victims and were issued in separate cases, and Frederick was sentenced to concurrent four-year prison terms in each case. He served these sentences and was discharged from parole in 1993. For a long time he suffered no immigration consequences as a result of his convictions.

Fourteen years later, the Department of Homeland Security issued a Notice to Appear charging that Frederick was removable from the United States as an alien convicted of an aggravated felony relating to sexual abuse of a minor. See 8 U.S.C. § 1101(a)(43)(A). Frederick applied for a statutory waiver of removal under § 212(c) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1182(c). An immigration judge found him ineligible for § 212(c) relief because the crime that made him removable—an aggravated felony involving sexual abuse of a minor—has no statutory counterpart or comparable ground for inadmissibility under § 212(a) of the INA. The Board of Immigration Appeals dismissed Frederick's appeal, and he petitioned this court for review.

We deny the petition. We have previously held that an aggravated felony involving sexual abuse of a minor has no statutory counterpart to a ground of inadmissibility under § 212(a) of the INA. See Zamora–Mallari v. Mukasey, 514 F.3d 679, 692–93 (7th Cir.2008). The BIA properly concluded that under Zamora–Mallari, Frederick is ineligible for § 212(c) relief. The “statutory counterpart” rule for § 212(c) eligibility is codified in 8 C.F.R. § 1212.3(f)(5) and well-established in BIA and circuit precedent. That Frederick was convicted of two crimes of sexual abuse of a minor does not change the application of the rule.

I. Background

In 1961 four-year-old Michael Frederick, a native and citizen of Germany, immigrated to the United States with his mother and sister and became a lawful permanent resident. In 1989 he was charged in Christian County, Illinois, with two counts of aggravated criminal sexual abuse of a minor. One of the two victims was his stepdaughter. In 1990 Frederick pleaded guilty to both counts and was sentenced to two four-year terms of imprisonment; the sentences were ordered to run concurrently. He served about a year in prison, was paroled, and successfully completed parole supervision in August 1993.

On October 15, 2007, DHS filed a Notice to Appear charging Frederick with removability pursuant to INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien convicted of an aggravated felony relating to the sexual abuse of a minor. See INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A) (defining “aggravated felony” to include sexual abuse of a minor). Frederick contested removability by denying that he had been convicted of sexual abuse of a minor; he also filed an application for relief under former § 212(c) of the INA—a provision that permitted the Attorney General, in his discretion, to “waive” inadmissibility.

An immigration judge found Frederick removable as charged, denied his application for § 212(c) relief, and ordered him removed to Germany. The judge first held that DHS had established Frederick's removability under 8 U.S.C. § 1227(a)(2)(A)(iii) by clear and convincing evidence—specifically, the two charging documents in the criminal cases against him, his jury waiver, and the state-court records of conviction for two counts of aggravated criminal sexual abuse. Then, relying on the BIA's decision in Matter of Blake, 23 I. & N. Dec. 722 (B.I.A.2005), and this court's decision in Valere v. Gonzales, 473 F.3d 757 (7th Cir.2007), the judge found Frederick ineligible for § 212(c) relief because sexual abuse of a minor has no comparable ground of inadmissibility under § 212(a) of the INA.

Frederick appealed the immigration judge's decision to the BIA. The BIA dismissed the appeal, agreeing that Frederick was ineligible for a § 212(c) waiver in light of Blake and Zamora–Mallari v. Mukasey, 514 F.3d 679, both of which held that an aggravated felony involving sexual abuse of a minor has no statutory counterpart in a ground of inadmissibility under § 212(a) of the INA. The BIA also cited Zamora–Mallari for the proposition that the regulation codifying the “statutory counterpart” test did not establish a new rule and therefore was not impermissibly retroactive. The BIA noted as well that the immigration judge had properly “rejected a number of other arguments presented [by Frederick], including those relating to equal protection and due process.” Finally, the BIA held that the statutory-counterpart rule articulated in Blake did not violate I.N.S. v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). Frederick petitioned this court for review challenging the BIA's determination that he is ineligible for § 212(c) relief.

II. Discussion

We have previously described the lengthy and complex history of former § 212(c) of the INA, see Zamora–Mallari, 514 F.3d at 683–89; Valere, 473 F.3d at 759–61, and repeat that history only as necessary to decide this case. Until 1996 the Attorney General had discretion to readmit resident aliens who traveled abroad and upon reentry were found to be inadmissible under one of the grounds of inadmissibility contained in INA § 212(a), 8 U.S.C. § 1182(a). This discretionary authority to waive inadmissibility was conferred by the former § 212(c) of the INA, 8 U.S.C. § 1182(c) (1994), which by its terms applied only to exclusion proceedings—that is, to cases in which resident aliens traveled abroad and were excludable upon reentry. However, § 212(c) has been interpreted to apply to removal proceedings as well—provided the removable alien is similarly situated to a returning, excludable alien. See Matter of Silva, 16 I. & N. Dec. 26, 30 (1976) (adopting the standard of Francis v. I.N.S., 532 F.2d 268 (2d Cir.1976)); Zamora–Mallari, 514 F.3d at 684–85; Valere, 473 F.3d at 759–60.¹ This expansion of § 212(c) eligibility flowed from the Second Circuit's holding in Francis that there is “no rational basis for making § 212(c) relief available only to inadmissible aliens seeking reentry and not to similarly situated deportable aliens who had not left the country.” Valere, 473 F.3d at 760 (summarizing the holding in Francis). After the Second Circuit's equal-protection ruling in Francis, a removable alien is eligible for a § 212(c) waiver if the ground for removability has a statutory counterpart or comparable ground of inadmissibility under § 212(a). Zamora–Mallari, 514 F.3d at 685–86; Valere, 473 F.3d at 760; Leal–Rodriguez v. I.N.S., 990 F.2d 939, 949 (7th Cir.1993). Conversely, aliens removable on a ground for which there is no comparable ground of inadmissibility are not similarly situated to inadmissible reentering aliens and therefore are not eligible for § 212(c) relief. This has come to be known as the “statutory counterpart” or the “comparable ground” rule.

In 1996 Congress repealed § 212(c) altogether, replacing it with the narrower 8 U.S.C. § 1229b, which permits the Attorney General to cancel removal for certain aliens, but excludes from consideration those who, like Frederick, have committed aggravated felonies. Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”), Pub.L. No. 104–208, 110 Stat. 3009–594.² The Supreme Court subsequently held in I.N.S. v. St. Cyr that the repeal of former § 212(c) could not be retroactively applied to aliens who pleaded guilty prior to IIRIRA's effective date. 533 U.S. at 326, 121 S.Ct. 2271 (holding that “§ 212(c) relief remains available for aliens ... whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for § 212(c) relief at the time of their plea under the law then in effect”).

In 2004 DHS implemented St. Cyr and codified the judicially created statutory-counterpart rule by promulgating 8 C.F.R. § 1212.3(f)(5). Section 1212.3(f)(5) provides that § 212(c) relief is available to lawful permanent-resident aliens who pleaded guilty before § 212(c) was repealed—but only if they satisfy the statutory-counterpart test. See 8 C.F.R. § 1212.3(f)(5) (application for § 212(c) relief “shall be denied” if the alien “is deportable under former section 241 of the Act or removable under section 237 of the Act on a ground which does not have a statutory counterpart in section 212 of the Act” (emphasis added)). In other words, the regulation returned the law regarding § 212(c) eligibility to the status quo ante.

In 2005 the BIA issued its decision in Blake, 23 I. & N. Dec. 722, which applied the statutory-counterpart test to an alien who, like Frederick, was ordered removed for having been convicted of an aggravated felony involving sexual abuse of a minor. The BIA held that “the ‘sexual abuse of a minor’ category in the aggravated felony definition does not have a ‘statutory counterpart’ in the grounds of inadmissibility” under § 212(a). Id. at 724. Particularly relevant here, the BIA specifically rejected the argument that an aggravated felony involving sexual abuse of a minor is sufficiently comparable to a crime of moral turpitude, a statutory...