Garcia-Padron v. Holder

• Decision Date: 26 February 2009
• Docket Number: Docket No. 08-1862-ag.
• Citation: 558 F.3d 196
• Parties: Emigdo Looesky GARCIA-PADRON, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General,<SMALL><SUP>1</SUP></SMALL> Respondent.
• Court: U.S. Court of Appeals — Second Circuit

558 F.3d 196

Emigdo Looesky GARCIA-PADRON, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General,¹ Respondent.

Docket No. 08-1862-ag.

United States Court of Appeals, Second Circuit.

Argued: December 8, 2008.

Decided: February 26, 2009.

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

Jesse M. Bless, Trial Attorney, Office of Immigration Litigation (Gregory G. Katsas, Assistant Attorney General, Civil Division, Jennifer Paisner Williams, Senior Litigation Counsel, on the brief), Civil Division, U.S. Department of Justice, Washington, D.C., for respondent.

Before: KEARSE, RAGGI, and LIVINGSTON, Circuit Judges.

REENA RAGGI, Circuit Judge:

Emigdo Looesky Garcia-Padron petitions for review of the March 20, 2008 order of the Board of Immigration Appeals ("BIA"), which dismissed Garcia-Padron's appeal from the April 13, 2006 written decision of Immigration Judge ("IJ") Margaret McManus, in which the IJ denied petitioner's request for waiver of inadmissibility under former section 212(c) of the Immigration and Naturalization Act ("INA"), 8 U.S.C. § 1182(c) (repealed 1996). See In re Garcia-Padron, No. A30 868 457 (B.I.A. Mar. 20, 2008), aff'g No. A30 868 457 (Immig. Ct. New York City Apr. 13, 2006). Because we identify legal error in the BIA's failure to apply the law as it existed before the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. No. 104-208, § 304(b), 110 Stat. 3009-546, 3009-597, to petitioner's request for section 212(c) relief, we grant the petition, vacate the BIA judgment, and remand this case to the agency for further proceedings consistent with this opinion.

I. Background

Petitioner Garcia-Padron is a citizen of the Dominican Republic who has been a lawful permanent resident of the United States since August 21, 1972. He has been convicted of numerous crimes in New York, and it is the timing of his most recent convictions that give rise to the legal issue presented by his petition. For purposes of addressing Garcia-Padron's claim, we observe that on October 14, 1992, petitioner was convicted upon a guilty plea of two counts of second-degree attempted robbery in violation of New York Penal Law § 160.10 and was sentenced to one-to-three years in prison. While incarcerated, Garcia-Padron was served with an Order to Show Cause charging him with deportability under former section 241(a)(2)(A)(ii) of the INA for having been convicted of multiple crimes of moral turpitude not arising out of a single course of conduct. Garcia-Padron was paroled on August 24, 1993, and released into the custody of the Immigration and Naturalization Service ("INS"), from which he was released after posting an $8,000 bond.

Garcia-Padron thereafter violated his state parole by striking and grabbing the driver of an ambulance, which caused the ambulance to crash into a parked car, ejecting the driver from the ambulance. Following this parole violation, Garcia-Padron was returned to prison to serve the remainder of his three-year sentence for attempted robbery. Meanwhile, the INS requested that Garcia-Padron's deportation proceedings be administratively closed during his incarceration, and on February 22, 1994, the IJ granted the unopposed request.

On March 3, 1994, Garcia-Padron pleaded guilty to reckless endangerment in the second degree in violation of New York Penal Law § 120.20 and was sentenced to time served. He was subsequently released from prison on September 7, 1995, having completed the remainder of the three-year sentence on his 1992 attempted robbery convictions.

Garcia-Padron's absence from the New York state penal system was short-lived. On December 15, 1998, he was convicted following a bench trial of petit larceny in violation of New York Penal Law § 155.25 and third-degree menacing in violation of New York Penal Law § 120.15. He was sentenced to time served and three years' probation.

Approximately three years later, on December 19, 2001, the INS reopened Garcia-Padron's deportation proceeding and, on August 7, 2002, the agency amended the charges of deportability to include Garcia-Padron's 1998 conviction for petit larceny. Garcia-Padron appeared before the IJ on January 29, 2003, and conceded deportability under INA section 237(a)(2)(A)(ii) in light of his convictions for "two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct," 8 U.S.C. § 1227(a)(2)(A)(ii),² specifically, his 1992 attempted robbery convictions and his 1998 petit larceny conviction. He applied for a waiver of inadmissibility under former section 212(c) of the INA, which the IJ denied on the ground that petitioner's 1998 petit larceny conviction rendered him ineligible for such relief. The BIA dismissed the appeal, concluding that the repeal of section 212(c) of the Act prior to Garcia-Padron's 1998 conviction precluded him from such relief with respect to that conviction. See In re Garcia-Padron, No. A30 868 457 (B.I.A. Mar. 20, 2008). This petition followed.

III. Discussion

A. Jurisdiction

Garcia-Padron concedes that he is deportable under 8 U.S.C. § 1227(a)(2)(A)(ii) because his two 1992 convictions for attempted robbery qualify as "two or more crimes involving moral turpitude." We lack jurisdiction to review a final order of removal against an alien who, like Garcia-Padron, is removable under § 1227(a)(2)(A)(ii), where, as here, both predicate offenses are subject to a sentence of one year or more.³ See 8 U.S.C. § 1252(a)(2)(C). We may, however, review "constitutional claims or questions of law" raised by a petitioner in such circumstances. See id. § 1252(a)(2)(D); Ali v. Mukasey, 529 F.3d 478, 488-89 (2d Cir. 2008). Because Garcia-Padron's petition calls upon us to determine his statutory eligibility for discretionary relief under former INA section 212(c), we proceed to address that claim. See Channer v. Dep't of Homeland Sec., 527 F.3d 275, 279 (2d Cir.2008) (noting that scope of review under § 1252(a)(2)(D) includes petitions "based on errors of law, including the erroneous application or interpretation of statutes ... and determinations regarding an alien's statutory eligibility for discretionary relief" (internal quotation marks and emphasis omitted)); Phong Thanh Nguyen v. Chertoff, 501 F.3d 107, 111 (2d Cir.2007) ("The phrase `questions of law' encompasses, inter alia, ... an alien's statutory eligibility for removal and relief from removal." (internal citations omitted)).

B. Standard of Review

"When the BIA issues an opinion, `the opinion becomes the basis for judicial review of the decision of which the alien is complaining.'" Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005) (quoting Niam v. Ashcroft, 354 F.3d 652, 655 (7th Cir.2004)). Where, as here, the BIA does not adopt the decision of the IJ to any extent, we review the decision of the BIA. See id.

"We review underlying questions of law and the application of law to fact de novo." Roman v. Mukasey, 553 F.3d 184, 186 (2d Cir.2009). "[W]hen our jurisdiction depends on the definition of a phrase used in the INA, a statute that the BIA administers, and when the intent of Congress is unclear and the agency's interpretation is reasonable," we defer to the BIA in accordance with Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). James v. Mukasey, 522 F.3d 250, 253-54 (2d Cir.2008) (internal quotation marks omitted). However, "no such deference is warranted where, as in this case, the challenged BIA decision is unpublished, and, in any event, the text of the statute is clear." Phong Thanh Nguyen v. Chertoff, 501 F.3d at 111 (citations omitted).

C. Garcia-Padron's Eligibility for Section 212 (c) Relief

The question of law presented by this appeal is whether Garcia-Padron was statutorily eligible for waiver of inadmissibility under former section 212(c), despite the fact that this statutory section was repealed by IIRIRA in 1996, well before petitioner's 1998 conviction for petit larceny. We hold that Garcia-Padron was eligible and that the BIA erred in concluding otherwise.

1. Repeal of Section 212 (c)

Under former 212(c), "legal permanent residents who were subject to deportation, but who had resided in the United States for seven consecutive years, were eligible to apply for a discretionary waiver of deportation." Martinez v. INS. 523 F.3d 365, 368 (2d Cir. 2008). As we have explained, "[t]he decision of whether to award section 212(c) relief involved only a balancing of the `adverse factors evidencing an alien's undesirability as a permanent resident with the social and humane considerations presented in his behalf to determine whether the granting of [a section 212(c) waiver] appear[ed] in the best interests of this country.'" Kai Tung Chan v. Gantner, 464 F.3d 289, 295 (2d Cir.2006) (second alteration in original) (quoting In re Marin, 16 I. & N. Dec. 581, 584 (B.I.A.1978)); accord Martinez v. INS, 523 F.3d at 368.

In 1996, section 212(c) relief was first restricted and then eliminated. Section 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, § 440(d), 110 Stat. 1214, 1277, which took effect on April 24, 1996, eliminated eligibility for section 212(c) relief for aliens convicted of specified crimes. See Domond v. INS, 244 F.3d 81, 84 (2d Cir.2001). Shortly thereafter, IIRIRA, enacted on September 30, 1996, and effective on April 1, 1997, repealed section 212(c) altogether. See IIRIRA § 304(b), 110 Stat. at 3009-597. IIRIRA replaced section 212(c) relief with the more restrictive procedure for cancellation of removal under INA section 240A, codified at 8 U.S.C. § 1229b(a).⁴ See Blake v. Carbone, 489 F.3d 88, 96 & n. 6 (2d Cir.2007).

2. IIRIRA Section 309(c) and INA Section 212(c) Relief

The IJ and BIA concluded that, because Garcia-Padron's 1998...