Jaghoori v. Holder

Citation772 F.3d 764
Decision Date18 November 2014
Docket NumberNo. 13–1801.,13–1801.
PartiesAbdul Azim JAGHOORI, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

ARGUED:Tamara L. Jezic, Law Office of Ivan Yacub, Woodbridge, Virginia, for Petitioner. Lindsay M. Murphy, United States Department of Justice, Washington, D.C., for Respondent. ON BRIEF:Ivan Yacub, Law Office Of Ivan Yacub, Falls Church, Virginia, for Petitioner. Stuart F. Delery, Assistant Attorney General, Civil Division, Song Park, Senior Litigation Counsel, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.

Before NIEMEYER, DUNCAN, and THACKER, Circuit Judges.

Opinion

Petition for review granted and case remanded by published opinion. Judge THACKER wrote the majority opinion, in which Judge DUNCAN joined. Judge NIEMEYER wrote a dissenting opinion.

THACKER, Circuit Judge:

An alien who wishes to apply for cancellation of removal must show, among other things, that he has continuously resided in the United States for seven years after admission to this country. See 8 U.S.C. § 1229b(a)(2). However, a statutory provision known as the stop-time rule provides that the commission of a criminal offense can cut short the alien's period of continuous residence. See id. § 1229b(d)(1)(B). In the case before us, the Board of Immigration Appeals (“BIA”) has deemed Petitioner Abdul Azim Jaghoori (Petitioner) ineligible for cancellation of removal because of a crime he committed within his first seven years of residence in the United States. Petitioner argues the BIA should not have applied the stop-time rule in his case because the offense and guilty plea occurred before Congress promulgated the stop-time rule.

The inquiry into a statute's retroactive effect is “informed and guided by ‘familiar considerations of fair notice, reasonable reliance, and settled expectations.’ INS v. St. Cyr, 533 U.S. 289, 321, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (quoting Martin v. Hadix, 527 U.S. 343, 358, 119 S.Ct. 1998, 144 L.Ed.2d 347 (1999) ) (internal quotation marks omitted). These considerations militate against retroactivity here. Accordingly, we apply our ‘traditional presumption’ against retroactivity,” Olatunji v. Ashcroft, 387 F.3d 383, 393 (4th Cir.2004) (citation omitted) (quoting Republic of Austria v. Altmann, 541 U.S. 677, 694, 124 S.Ct. 2240, 159 L.Ed.2d 1 (2004) ), and grant the petition for review.

I.

The prospect of discretionary relief from removal has long been a fixture of immigration jurisprudence. Prior to the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), potential avenues for relief included a waiver of deportation pursuant to section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (1994) (repealed 1996), and suspension of deportation pursuant to 8 U.S.C. § 1254(a)(1) (1994) (repealed 1996). To qualify for relief under either statute, an alien had to meet certain criteria.

Section 212(c) provided:

Aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General without regard to the provisions of subsection (a) of this section (other than paragraphs (3) and (9)(C)).... The first sentence of this subsection shall not apply to an alien who has been convicted of one or more aggravated felonies and has served for such felony or felonies a term of imprisonment of at least 5 years.

8 U.S.C. § 1182(c). Although, by its terms, the provision referred only to aliens seeking readmission after a temporary departure, courts and the BIA came to apply the waiver in deportation proceedings “regardless of an alien's travel history.” Judulang v. Holder, ––– U.S. ––––, 132 S.Ct. 476, 480, 181 L.Ed.2d 449 (2011). The class of aliens qualifying for this form of relief was “extremely large,” and a “substantial percentage” of these aliens succeeded in obtaining a waiver. INS v. St. Cyr, 533 U.S. 289, 295–96, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001).

Suspension of deportation was harder to obtain. To qualify, an alien had to show that he was a “person of good moral character,” and that his deportation would cause “extreme hardship” to him or his family. 8 U.S.C. § 1254(a)(1). The statute further limited relief to aliens who, at a minimum,1 had been “physically present in the United States for a continuous period of not less than seven years immediately preceding” the application for relief. Id. Satisfying this continuous presence requirement was a simple matter, demanding nothing more than the passage of time; the clock continued to run even after deportation proceedings were under way. See Appiah v. U.S. INS, 202 F.3d 704, 707 (4th Cir.2000).

The 1996 enactment of IIRIRA eliminated both the section 212(c) waiver and suspension of deportation and replaced them with a new form of discretionary relief, dubbed “cancellation of removal.” IIRIRA, Pub.L. No. 104–208, 110 Stat. 3009 –546 (1996). The new provision, which governs here, authorizes the Attorney General to:

cancel removal in the case of an alien who is inadmissible or deportable from the United States if the alien—
(1) has been an alien lawfully admitted for permanent residence for not less than 5 years,
(2) has resided in the United States continuously for 7 years after having been admitted in any status, and
(3) has not been convicted of any aggravated felony.

8 U.S.C. § 1229b(a). While the second of these requirements has analogs in the prior statutes, it does not operate the same way. Under a provision that has come to be known as the stop-time rule, the period of continuous residence is “deemed to end” upon the earlier of two events, which are spelled out in subsections (A) and (B) of the rule. Id. § 1229b(d)(1). Under subsection (A), the clock stops when the government serves a notice to appear for removal proceedings. Under subsection (B), it stops when the alien has committed an offense rendering him inadmissible under § 1182(a)(2) or removable under § 1227(a)(2) or § 1227(a)(4).

Congress enacted IIRIRA on September 30, 1996. The bulk of its provisions, though, including the stop-time rule, did not take effect until April 1, 1997.2 See § 309, 110 Stat. at 3009–625.

II.

Petitioner is an Afghan citizen but has lived in the United States for most of his life. He was born in the Ghazni province in eastern Afghanistan. The family's Shia Muslim faith and Hazara ethnicity placed them within a small minority of the Afghan population. In the early 1980s, a time of war in that country, the family fled to Pakistan. Subsequently, at age 12, Petitioner entered the United States as a refugee. He acquired lawful permanent resident status on April 25, 1989.

During his stay in the United States, Petitioner has had several run-ins with law enforcement. The first—and, for present purposes, most relevant—of these was a credit card theft committed in Virginia on February 27, 1995. Petitioner pled guilty to this offense on July 14, 1995, and received a 90–day suspended jail sentence. Importantly, this conviction did not render him deportable. See 8 U.S.C. § 1251(a)(2)(A)(i) (1994) (authorizing deportation of an alien convicted of a crime involving moral turpitude (“CIMT”), but only if (1) the crime occurred within five years after the alien's date of entry, and (2) the alien was sentenced to confinement for one year or longer).

Petitioner's status as a lawful permanent resident remained secure even after Congress enacted IIRIRA in 1996. Though his criminal record grew to include one conviction for misdemeanor obstruction of justice and three convictions for driving under the influence, none of these offenses rendered him removable.

In September 2009, Petitioner traveled back to Afghanistan to do some work for his brother, who was in the construction business. He stayed for about a month. Upon his return, the Department of Homeland Security (“DHS”) placed him into removal proceedings on the basis of the 1995 credit card theft conviction, alleging that this offense was a CIMT rendering him removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(i). DHS later withdrew this charge.3 Subsequently, in August 2010, a Virginia grand jury indicted Petitioner for attempting to pass a fraudulent prescription for OxyContin in violation of section 18.2–258.1 of the Virginia Code. Petitioner pled guilty to this charge and received a two-year suspended jail sentence.

The 2010 prescription fraud conviction prompted DHS to bring two new charges of removability. The first charge alleged that Petitioner's 1995 credit card theft and 2010 prescription fraud convictions were CIMTs “not arising out of a single scheme of criminal misconduct,” thereby rendering him removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii). The second charge alleged that the prescription fraud conviction, by itself, was grounds for removal pursuant to § 1227(a)(2)(B)(i).4

Petitioner, through counsel, conceded removability pursuant to § 1227(a)(2)(A) and proceeded to file an application for asylum, withholding of removal, and cancellation of removal. The immigration judge (“IJ”) ordered his removal to Afghanistan. However, in view of Petitioner's ethnicity and religion and his many years in the United States, the IJ granted his application for withholding of removal. This decision allows Petitioner to remain in the United States for the time being, but it does not accord an opportunity to pursue citizenship, nor does it prevent immigration authorities from removing him to a country other than Afghanistan. See 8 C.F.R. § 1208.16(f) (2014) ; In re Lam, 18 I. & N. Dec. 15, 18 (BIA 1981).

Cancellation of removal would preserve Petitioner's opportunity to seek permanent residence, but the IJ denied Petitioner's application for this form of relief on...

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