Khodja v. Holder
| Decision Date | 12 December 2011 |
| Docket Number | No. 11–2346.,11–2346. |
| Citation | 666 F.3d 415 |
| Parties | Nourredine KHODJA, Petitioner, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
OPINION TEXT STARTS HERE
Maria T. Baldini–Potermin (argued), Attorney, Maria Baldini–Potermin & Associates, Chicago, IL, for Petitioner.
Sarah Maloney (argued), OIL, Attorneys, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.
Charles Roth, Attorney, National Immigrant Justice Center, Chicago, IL, for Amicus Curiae.
Before FLAUM, KANNE, and WOOD, Circuit Judges.
Petitioner Nourredine Khodja became a lawful permanent resident of the United States on February 11, 1984. In 1990, Khodja was convicted of aggravated battery and armed violence and sentenced to four years' imprisonment. After his sentencing hearing, Khodja moved for a judicial recommendation against deportation (“JRAD”). An assistant attorney for the Immigration and Naturalization Service (“INS”) stated that the motion should be denied because Khodja could seek a § 212(c) waiver in a subsequent immigration proceeding. On this basis, the trial judge denied the motion. Congress repealed § 212(c) in 1996. In 2003, following a vacation to the Dominican Republic, the INS charged Khodja as being inadmissible for having been convicted of a crime involving moral turpitude. Khodja sought a waiver under § 212(c) and (h). The immigration judge denied both waivers, and the Board of Immigration Appeals affirmed. Because we find that the repeal of § 212(c) does not apply retroactively to Khodja's case, the petition will be granted.
Nourredine Khodja is a sixty-one-year-old Tunisian native and dual citizen of Tunisia and Canada. In 1969, Khodja met his wife, a United States citizen, while she was a summer exchange student in Canada. They married in 1977 and have two children, ages thirty-two and twenty-four. Khodja became a lawful permanent resident of the United States on February 11, 1984.
On October 14, 1988, Khodja was charged in Illinois state court with aggravated battery, armed violence, and attempted murder after he repeatedly stabbed James W. Bevan in the back and side. During the bench trial, expert testimony established that Khodja suffered from major depression with psychotic features at the time he committed the crime. On March 14, 1990, the trial judge found Khodja “guilty but mentally ill” on the aggravated battery and armed violence counts. Khodja was found not guilty of attempted murder. On May 18, 1990, Khodja was sentenced to four years' imprisonment for his armed violence conviction. He did not receive a sentence on the aggravated battery conviction.1
Following his sentencing hearing, Khodja moved for a judicial recommendation against deportation, or JRAD. At the time of Khodja's hearing, a sentencing judge could issue a JRAD, which provided that the defendant's conviction could not be used as a basis for deportation by immigration authorities. See 8 U.S.C. § 1251(b)(2) (repealed 1990). “Although called a ‘recommendation,’ the command of a JRAD was mandatory.” Solis–Chavez v. Holder, 662 F.3d 462, 464 (7th Cir.2011). At Khodja's hearing, Seth Fitter, an assistant attorney for the former INS, urged the court to deny the JRAD motion because Khodja could seek a waiver before an immigration judge. He stated as follows:
Basically, Judge, this is a highly unusual type of relief for the Defendant here.
There is an Immigration Judge who handles immigration cases. He is apart from the Immigration Service.
He would make a ruling on a case like this to determine whether the Defendant is deportable. And then after that, if that's correct, then there is a separate portion in which the Defendant would testify, bring in his wife, and the Judge has—could grant a waiver of this conviction.
But if the Court grants this motion, it's as if you are usurping the role of the Immigration Judge in making that ruling.
And I don't believe in this type of case the Immigration Judge should be taken out of the picture, so to speak.
(R. at 534–35.) The Illinois state trial judge then denied the JRAD motion, stating “it's more appropriate to be heard in the proper tribunal” and “[t]his is a matter which has to be handled by the immigration authorities.” (R. at 536.) Khodja's counsel moved to withdraw the JRAD motion, which the trial judge granted.2
Khodja appealed his conviction to the Illinois Appellate Court. On September 13, 1991, the Illinois Appellate Court denied Khodja's appeal. Khodja served eighteen months of his four-year sentence. He was released from custody in July of 1993 and discharged from parole on September 8, 1994.
On December 22, 2002, Khodja and his wife returned to the United States from a vacation to the Dominican Republic. Khodja presented himself to officials at the airport and applied for admission. Rather than admit Khodja, immigration officials deferred his inspection and ordered him to appear before the Chicago immigration office. On April 24, 2003, immigration officials served Khodja with a Notice to Appear. The government alleged that Khodja was subject to removal under 8 U.S.C. § 1182(a)(2)(A)(i)(I) as an alien convicted of a crime involving moral turpitude.
On May 29, 2003, Khodja appeared before an immigration judge. Khodja acknowledged that he was not a United States citizen and had presented himself for inspection as a returning lawful resident on December 22, 2002. He denied factual allegations relating to his prior convictions for armed violence and aggravated battery. On February 26, 2004, Khodja indicated to the immigration judge that he would seek a § 212(c) waiver and a § 212(h) waiver. Prior to its repeal, § 212(c) granted discretion to the Attorney General to admit certain aliens despite their inadmissible status. See 8 U.S.C. § 1182(c) (repealed 1996). Section 212(h), which is still in effect, grants the Attorney General broad discretion to admit an alien under various circumstances, including if denial of admission would result in extreme hardship to the alien's family. See 8 U.S.C. § 1182(h). This relief is unavailable to any alien convicted of an aggravated felony following his or her previous admittance into the United States. Id.
Khodja's final removal hearing was held on June 15, 2005. The immigration judge determined that Khodja was removable, denied Khodja's applications for waivers under § 212(c) and (h), and ordered Khodja deported to Canada. Khodja timely appealed the immigration judge's decision to the Board of Immigration Appeals. The Board held that Khodja was ineligible for a § 212(c) waiver but agreed with Khodja that the immigration judge erred in its analysis of his § 212(h) waiver application. The Board remanded to the immigration judge for a proper determination of whether Khodja had been convicted of an “aggravated felony” for purposes of § 212(h).
On remand, the immigration judge found that Khodja had been convicted of an aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(F). Accordingly, the immigration judge again denied Khodja's application for a § 212(h) waiver. Khodja appealed this decision to the Board, which affirmed the immigration judge's decision, although on different grounds. Khodja filed his petition for review with this court on June 14, 2011.
We have jurisdiction to review constitutional claims and questions of law raised in a petition for review. Frederick v. Holder, 644 F.3d 357, 362 (7th Cir.2011), petition for cert. filed, 80 U.S.L.W. 3078 (U.S. Aug. 1, 2011) (No. 11–135); 8 U.S.C. § 1252(a)(2)(C), (D). Khodja challenges the Board's decision based on legal error and due process grounds. We review these claims de novo. Frederick, 644 F.3d at 362.
Khodja was charged as inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(I), which provides that “any alien convicted of ... a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime ... is inadmissible.” Khodja does not challenge that he was convicted of a crime involving moral turpitude. Instead, Khodja asserts that he is entitled to a hearing on his application for a § 212(c) waiver. Section 212(c) of the Immigration and Nationality Act of 1952 provided that
[a]liens 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....
8 U.S.C. § 1182(c) (repealed 1996); INS v. St. Cyr, 533 U.S. 289, 295, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). This section was amended in 1990 to preclude relief for anyone convicted of an aggravated felony who served a term of at least five years' imprisonment. St. Cyr, 533 U.S. at 297, 121 S.Ct. 2271. In 1996, Congress passed the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104–132, § 440(d), 110 Stat. 1214, 1277. The AEDPA amended § 212(c) to preclude relief for convictions based on a broad set of offenses, including all aggravated felonies. St. Cyr, 533 U.S. at 297, 121 S.Ct. 2271; Frederick, 644 F.3d at 361 n. 2. Later that same year, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub.L. No. 104–208, 110 Stat. 3009. This statute repealed § 212(c), replacing it with “a new section that gives the Attorney General the authority to cancel removal for a narrow class of inadmissible or deportable aliens.” St. Cyr, 533 U.S. at 297, 121 S.Ct. 2271 ( citing 8 U.S.C. § 1229b). This section also precludes relief for any alien convicted of an aggravated felony. Id. Prior to its repeal, aliens who applied for equitable relief under § 212(c) had an approximately fifty percent chance of success. Canto v. Holder, 593 F.3d 638, 642 (7th Cir.), ...
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...affirmatively abandoned rights or admitted guilt in reliance on a chance of obtaining Section 212(c) relief. See Khodja v. Holder, 666 F.3d 415, 420 (7th Cir.2011) (applying St. Cyr to petitioner who affirmatively abandoned his right to pursue a judicial recommendation against deportation).......
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