In re Pineda-Castellanos
| Decision Date | 26 August 1997 |
| Docket Number | Interim Decision No. 3326.,File A40 417 311. |
| Citation | 21 I&N Dec. 1017 |
| Parties | In re Sergio Manolo PINEDA-Castellanos, Respondent. |
| Court | U.S. DOJ Board of Immigration Appeals |
The respondent appeals from the October 30, 1996, decision of an Immigration Judge, which denied his motion to reopen deportation proceedings. The respondent sought reopening of proceedings to apply for adjustment of status under section 245 of the Immigration and Nationality Act, 8 U.S.C. § 1255 (1994), in conjunction with a waiver of excludability under section 212(h) of the Act, 8 U.S.C. § 1182(h) (1994). The appeal will be dismissed.
The respondent is a 36 year-old native and citizen of Guatemala. He entered the United States as a lawful permanent resident in December 1987 based on his marriage to his present wife. On November 8, 1991, he was convicted in the Circuit Court of Fairfax County, Virginia, of two counts of robbery and two separate counts of use of a firearm in the commission of a felony. He was sentenced to confinement for a period of 22 years for these offenses.
Deportation proceedings were instituted against the respondent in November 1992. On July 26, 1993, the respondent was found deportable under section 241(a)(2)(A)(i) of the Act, 8 U.S.C. § 1251(a)(2)(A)(i) (1994), based on his conviction for crimes involving moral turpitude, and deportable under section 241(a)(2)(A)(iii) of the Act, based on his "aggravated felony" convictions. The respondent was ordered deported to Guatemala. No appeal was taken from the decision of the Immigration Judge. Thus, the respondent was subject to a final administrative order of deportation on July 26, 1993.
The respondent's wife became a naturalized citizen of the United States on December 17, 1993. Over 2 years later, she filed an immediate relative visa petition on his behalf. The petition was approved by the Immigration and Naturalization Service on June 6, 1996. On August 20, 1996, the respondent filed the motion to reopen deportation proceedings with the Immigration Judge, seeking the opportunity to apply for adjustment of status under section 245 of the Act in conjunction with a waiver of excludability under section 212(h).
On October 30, 1996, the Immigration Judge denied the respondent's motion to reopen. The Immigration Judge concluded that the respondent was not eligible for a waiver of excludability under section 212(h) of the Act, as amended by section 348 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-639 ("IIRIRA"), and that he therefore could not demonstrate prima facie eligibility for adjustment of status. The IIRIRA amendment to section 212(h) relied upon by the Immigration Judge added the following sentence to that section of law:
No waiver shall be granted under this subsection in the case of an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence if either since the date of such admission the alien has been convicted of an aggravated felony or the alien has not lawfully resided continuously in the United States for a period of not less than 7 years immediately preceding the date of initiation of proceedings to remove the alien from the United States.
Section 348(a) of the IIRIRA.
Section 348(b) of the IIRIRA in turn provided that this newly added sentence in section 212(h) of the Act "shall be effective on the date of enactment of [the IIRIRA] and shall apply in the case of any alien who is in exclusion or deportation proceedings as of such date unless a final administrative order in such proceedings has been entered as of such date." The date of enactment of the IIRIRA was September 30, 1996.
The respondent appeals from this decision of the Immigration Judge. He does not dispute that he was convicted of an aggravated felony after his admission as a lawful permanent resident. However, citing the language of section 348(b) of the IIRIRA, he argues that he would not be subject to the amendments to section 212(h) made by section 348(a) of the IIRIRA if his deportation proceedings were reopened because he was under an administratively final order as of the date of enactment of the IIRIRA. Because we disagree with the respondent's contention that he would not be subject to the new restrictions in section 212(h) of the Act if his deportation proceedings were reopened, his appeal will be dismissed.
It is clear that Congress intended the new restrictions on waivers of relief to aggravated felons, which was added to section 212(h) of the Act by section 348(a) of the IIRIRA, to have immediate effect. The new restrictions were made effective on the date of enactment of the IIRIRA. And, the restrictions were made applicable to all pending cases that had not already been concluded by an administratively final order as of that date. Section 348(b) also makes clear that the new restrictions would not apply to the case of any alien that had been brought to administrative finality as of the date of enactment of the IIRIRA; thus, precluding an administratively final grant of a section 212(h) waiver that predated the enactment of the IIRIRA from being called into question by the new restrictions in section 212(h).1 The question before us, however, is whether an alien who was under an administratively final order of deportation as of the date of enactment of the IIRIRA can have his proceedings reopened to seek a section 212(h) waiver, when that reopening would render the Immigration Judge's order nonfinal and turn the alien's case back into a pending proceeding, without also becoming subject to the new restrictions in section 212(h) of the Act that otherwise apply to those in deportation proceedings after September 30, 1996.
The language of section 348(b) of the IIRIRA is in the conjunctive. It clearly provides that the section 348(a) amendments are effective as of the date of enactment of the IIRIRA. It separately makes clear that these new restrictions apply to all then-pending cases unless they had been brought to an administratively final resolution as of that date, thus explicitly resolving the question of retroactivity such as arose in conjunction with earlier amendments to section 212(c) of the Act, 8 U.S.C. § 1182(c) (1994). See Matter of Soriano, 21 I&N Dec. 516 (BIA 1996; A.G. 1997). However, the language of section 348(b) of the IIRIRA does not provide that aliens can have their deportation or exclusion proceedings reopened after the effective date of the IIRIRA to seek waivers under section 212(h), and then not be subject to the new restrictions in section 212(h) that were otherwise effective immediately upon enactment of the IIRIRA. Such a reading of the language of section 348(b) of the IIRIRA is not required by its plain meaning and would lead to nonsensical results.2 The language of section 348(b) is most reasonably read as making immediately effective the amendments to section 212(h); as applying the amendments to all pending cases, except those already brought to final administrative resolution (thus, protecting any administratively final grants of waivers under 212(h) that predated the effective date of the IIRIRA); but not as permitting aliens under final orders of deportation or exclusion as of the date of enactment of the IIRIRA to have their proceedings thereafter reopened to seek relief under section 212(h) without being subject to the new restrictions on relief.
If the respondent's deportation proceedings were reopened, thus rendering his deportation order no longer administratively final, we would find him statutorily ineligible for a waiver under section 212(h) of the Act because of his aggravated felony convictions after his admission to this country as a lawful permanent resident. Therefore, we do not find that the Immigration Judge erred in denying the respondent's motion to reopen. Accordingly, the appeal will be dismissed.
This appeal involves plain statutory language and undisputed facts. The statute at issue provides an exception to the aggravated felony bar to relief under section 212(h) of the Immigration and Nationality Act in the event that a final administrative...
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