Guevara v. Gonzales

• Decision Date: 08 January 2007
• Docket Number: No. 05-2696.,05-2696.
• Citation: 472 F.3d 972
• Parties: Eusebio GUEVARA, Petitioner v. Alberto R. GONZALES, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

472 F.3d 972

Eusebio GUEVARA, Petitioner v. Alberto R. GONZALES, Respondent.

No. 05-2696.

United States Court of Appeals, Seventh Circuit.

Argued March 31, 2006.

Decided January 8, 2007.

Charles Roth (argued), Midwest Immigrant and Human Rights Center Travelers and Immigrants Aid, Chicago, IL, for Petitioner.

Karen Lundgren, Department of Homeland Security Office of the Chief Counsel, Chicago, IL, James E. Grimes, Hillel R. Smith, Department of Justice Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before ROVNER, EVANS, and SYKES, Circuit Judges.

SYKES, Circuit Judge.

Eusebio Guevara, a citizen of Honduras, petitions for review of a decision of the Bureau of Immigration Appeals ("BIA") reversing an immigration judge's ("IJ") discretionary grant of a waiver of removal under 8 U.S.C. § 1182(c). Guevara argues that the BIA applied the wrong standard of review and exceeded its authority by ordering his removal from the United States. We deny the petition for review.

I. Background

Guevara is a Honduran who legally entered the United States in 1985 and became a lawful permanent resident in 1990. In 1991, while living in California, he was convicted of retail theft after he shoplifted a pair of pants. In 1996, while living in Wisconsin, he was convicted of two counts of fourth-degree sexual assault in violation of section 940.225(3m) of the Wisconsin Statutes and sentenced to 63 days' imprisonment and 18 months of probation. In June 2004 Guevara left the United States to visit family in Honduras. Upon his return a month later, he was placed in removal proceedings pursuant to 8 U.S.C. § 1182(a)(2)(A)(i)(I) as an alien removable for having been convicted of a crime involving moral turpitude.

An IJ found Guevara removable based upon his sexual assault convictions. Guevara sought a discretionary waiver of removal on the grounds of rehabilitation and economic hardship pursuant to the now-repealed 8 U.S.C. § 1182(c). This section, commonly referred to as § 212(c),¹ was repealed by the Immigration Reform and Immigrant Responsibility Act of 1996, but its repeal was subsequently held to be inapplicable to aliens, like Guevara, whose convictions were obtained by guilty plea prior to the Act's effective date of April 1, 1997. INS v. St. Cyr, 533 U.S. 289, 318-25, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (holding that the repeal of § 212(c) had an impermissibly retroactive effect on aliens who pleaded guilty prior to the Act's effective date). Section 212(c) permitted certain classes of permanent resident aliens, otherwise removable, to be admitted "in the discretion of the Attorney General" if they were returning from a temporary and voluntary journey abroad to a "lawful unrelinquished domicile of seven consecutive years." Guevara's eligibility to seek a § 212(c) waiver is not at issue here.²

After a hearing at which Guevara was the only witness, the IJ weighed the positive and negative equities presented by the case and elected to grant Guevara a discretionary § 212(c) waiver of removal. The government appealed to the BIA, which adopted the IJ's findings of fact but reversed his weighing of the factors pertaining to the discretionary waiver of removal. The BIA concluded that the negative equities outweighed the positive to the extent that Guevara should not receive a discretionary waiver. The BIA did not remand the matter to the IJ for further action; instead, the BIA's decision included an order removing Guevara from the country.

In his petition for review, Guevara argues that the BIA exceeded its legal authority in two ways. First, he contends the BIA applied the wrong standard of review when it reversed the IJ's discretionary grant of the § 212(c) waiver. Second, he contends the BIA was not authorized to order him removed from the country when such an order was not first entered by the IJ.

II. Discussion

A. Discretionary Grant of § 212(c) Waiver of Removal

Subject to certain exceptions not pertinent here, this court has no jurisdiction to review the merits of the BIA's exercise of discretion. 8 U.S.C. § 1252(a)(2)(B);³ see Jarad v. Gonzales, 461 F.3d 867, 869 (7th Cir.2006). Further, under 8 U.S.C. § 1252(a)(2)(C), "no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in section 1182(a)(2)," the section applicable to Guevara's case. Recognizing these jurisdictional limitations, Guevara characterizes his first argument as a challenge to an error of law on the part of the BIA, which is reviewable pursuant to 8 U.S.C. § 1252(a)(2)(D) notwithstanding the limitations just mentioned. Specifically, Guevara argues that the BIA applied an incorrect standard of review in reversing the IJ's decision granting the waiver of removal.

Pursuant to 8 C.F.R. § 1003.1(d)(3), an IJ's findings of fact are subject to a clearly erroneous standard of review by the BIA, but "the Board may review questions of law, discretion, and judgment and all other issues in appeals from decisions of immigration judges de novo." Guevara claims the BIA improperly rejected facts found by the IJ by failing to apply the clearly erroneous standard of review. This argument rests on a misreading of both the IJ's decision and the BIA's.

The IJ's decision lists what he identified as the positive and negative factors in Guevara's case that should be balanced in the exercise of discretion under § 212(c).⁴ The negative factors weighing against a waiver were Guevara's criminal convictions—especially the more serious sexual assault convictions—and his denial before the IJ that he actually committed the sexual assaults. On this latter point, Guevara acknowledged at his hearing that he pleaded guilty to the sexual assault charges but said he did so on the advice of his attorney; he denied that he actually committed the offenses. The IJ identified the following positive factors: the duration of Guevara's residence in the United States (over nineteen years at the time of decision), his steady employment during that time, the lack of any criminal convictions in the eight years following his sexual assault convictions, his credible expression of remorse for his crimes,⁵ and the economic difficulties that would accompany Guevara's return to Honduras. The IJ concluded that "the equities do outweigh the negative factors represented by his convictions." With respect to the passage of time since Guevara's last criminal conviction, the IJ held as follows:

The record indicates that he has not been convicted of any crime since 1996.

I think, therefore, that it can be said that the respondent has been reformed so that he has chosen a way of life where future criminal misconduct is unlikely because he has not been involved in criminal misconduct since his November of 1996 conviction.

On appeal, the BIA addressed both the IJ's factfinding and his balancing of the pertinent factors as follows:

In accordance with Matter of Marin, 16 I & N Dec. 581 (BIA 1978), the Immigration Judge sufficiently set forth the positive and negative factors presented in this case. We adopt those findings citation omitted. However, upon weighing those factors, we agree with the DHS that the respondent does not merit a discretionary grant of a section 212(c) waiver. See Matter of Buscemi, 19 I & N Dec. 628 (BIA 1988). We acknowledge the difficult conditions in Honduras, the respondent's long residence in the United States, his employment history, and the financial support he provides his family. In this case, we consider rehabilitation to be a neutral factor. On the one hand, 9 years have passed since the respondent's criminal conduct. On the other hand, he still has not fully acknowledged his wrongdoing. All in all, the seriousness of the respondent's sexual assault convictions, as well as the circumstances of those offenses, outweigh the favorable equities in this case.

(Emphasis added.)

The issue Guevara raises here centers on the sentence we have emphasized in the paragraph quoted above from the BIA's decision. Guevara argues that the IJ found as a matter of fact that he had "reformed" or "rehabilitated" himself in the years following his conviction and the BIA failed to apply the clearly erroneous standard of review to that finding. According to Guevara, the BIA simply disagreed with the IJ's finding of rehabilitation and rejected it out of hand, rather than finding it to be clearly erroneous under the more demanding standard of review applicable to an IJ's factfinding. The government responds that the BIA did not reject the IJ's factfinding but simply concluded that the IJ had given the matter of rehabilitation too much weight when balancing the equities.

We do not read the BIA's decision as a rejection of the IJ's factfinding on rehabilitation; to the contrary, the decision specifically adopted the IJ's findings on the positive and negative factors in Guevara's case. Rather, the BIA reweighed the positive and negative factors and concluded that rehabilitation was a neutral factor rather than a positive one. The BIA determined that the IJ had given undue weight to Guevara's rehabilitation vis-à-vis the negative factors in his case. The relative weight of Guevara's rehabilitation in the balancing process is not "factfinding" subject to the clearly erroneous standard of review; it is a matter of discretion and judgment and is subject to de novo review by the BIA. Accordingly, the BIA did not apply the incorrect standard of review in reversing the IJ's discretionary grant...