Klementanovsky v. Gonzales

• Decision Date: 28 August 2007
• Docket Number: No. 06-3617.,06-3617.
• Citation: 501 F.3d 788
• Parties: Dmitry M. KLEMENTANOVSKY, Petitioner, v. Alberto R. GONZALES, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

501 F.3d 788

Dmitry M. KLEMENTANOVSKY, Petitioner, v. Alberto R. GONZALES, Respondent.

No. 06-3617.

United States Court of Appeals, Seventh Circuit.

Argued May 31, 2007.

Decided August 28, 2007.

Rehearing En Banc Denied October 23, 2007.

Lee A. Russo, Morgan R. Hirst, argued, Jones Day, Chicago, IL, for Petitioner.

Karen Lundgren, Department of Homeland Security, Office of the Chief Counsel, Chicago, IL, David V. Bernal, Ernesto H. Molina, Jr., Ana T. Zablah, argued, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before POSNER, KANNE, and WILLIAMS, Circuit Judges.

KANNE, Circuit Judge.

Dmitry M. Klementanovsky brings a petition for review of the Board of Immigration Appeals' ("BIA") order affirming the Immigration Judge's ("IJ") decision to deny his application for a waiver of inadmissibility under § 212(h) of the Immigration and Nationality Act (INA), and ordering his removal to Russia. He argues that the BIA erred by concluding that he was an aggravated felon and that the statute, as interpreted by the BIA, is unconstitutional. For the reasons set forth below, we deny the petition for review.

I. HISTORY

Klementanovsky is a native and citizen of Russia. In January of 1994, at the age of sixteen, he immigrated into the United States with his parents as religious refugees. He became a lawful permanent resident on July 9, 1995. In the ten years after arriving in the United States, his parents began the path to citizenship and Klementanovsky fell into a life of petty crime. In August of 1996, he was convicted of attempted robbery, robbery, and intimidation by threat of physical harm. See 720 ILL. COMP. STAT. 5/12-1, 5/18-1, and 5/12-6(A)(1). In October of 1998, he was convicted of criminal damage to property. See 720 ILL. COMP. STAT. 5/21-1(1)(a). In November of 2000, Klementanovsky was convicted of retail theft. See 720 ILL. COMP. STAT. 5/16A-3(a). In April of 2001, Klementanovsky was convicted once again of criminal damage to property, and in April of 2004 he returned to retail theft. Although a variety of sentences of probation, supervision, and community service were imposed for these convictions (all in Illinois state courts), Klementanovsky was not ordered to serve any time in prison.

This expanding collection of convictions had two effects on Klementanovsky's immigration status: he became both deportable and inadmissible. See 8 U.S.C. §§ 1227(a)(2)(A)(i)(II) and 1227(a)(2)(A)(ii); 8 U.S.C. §§ 1182(a)(2)(A)(i)(I) and 1182(a)(2)(B). In April 2004, the Government placed Klementanovsky in removal proceedings and issued him a notice to appear. It charged him with deportability under 8 U.S.C. § 1227(a)(2)(A)(i)(II) (conviction of a crime involving moral turpitude for which a sentence of one year or more may be imposed), and under 8 U.S.C. § 1227(a)(2)(A)(ii) (conviction of multiple crimes involving moral turpitude). Klementanovsky ad-mitted all but one of the allegations in the notice to appear, and he conceded deportability.

Klementanovsky sought relief from removal by asking for a waiver of inadmissibility under INA § 212(h)(1)(B), 8 U.S.C. § 1182(h)(1)(B). Section 212(h) provides that the Attorney General may waive certain grounds of inadmissibility, including the grounds applicable to Klementanovsky enumerated at INA §§ 212(a)(2)(A)(i)(I) and 212(a)(2)(B), for an immigrant who is the son of United States citizens:

if it is established to the satisfaction of the Attorney General that the alien's denial of admission would result in extreme hardship to the United States citizen . . . and . . . the Attorney General, in his discretion, and pursuant to such terms, conditions and procedures as he may by regulations prescribe, has consented to the alien's applying or reapplying for a visa, for admission to the United States, or adjustment of status.

8 U.S.C. § 1182(h)(1)(B), (C)(2).

The statute also establishes that the Attorney General shall not have the discretion to give such a waiver to an alien convicted of murder, torture, or an aggravated felony. 8 U.S.C. § 1182(h). Finally, "[n]o court shall have jurisdiction to review a decision of the Attorney General to grant or deny a waiver under this subsection." Id.

Klementanovsky's request was denied by the IJ. The IJ noted that waivers of inadmissibility under § 212(h) were previously available to applicants in exclusion proceedings and are currently available to arriving aliens in removal proceedings, as both categories of aliens are subject to the grounds of inadmissibility provided in the statute. Furthermore, the IJ noted that BIA precedent established that a waiver of inadmissibility under § 212(h) may be granted nunc pro tunc to retroactively cure grounds of inadmissibility at the time of entry, usually in concert with an application for an adjustment of status. See In re Abosi, 24 I & N Dec. 204 (BIA June 19, 2007) (reiterating that § 212(h) waivers are available either for arriving aliens or for aliens seeking adjustment of status, but applicant need not be both arriving and seeking adjustment). The IJ held that BIA precedent limits the availability of § 212(h) waivers only to proceedings where an alien seeks admission, or to circumstances where the applicant is assimilated to the same position as an alien seeking admission. Because Klementanovsky was not seeking admission or adjustment of status, but rather relief from deportation, the IJ held that his request for relief through § 212(h) was misplaced and ordered him removed.

The BIA upheld the denial of the waiver, and also added an alternate ground for denial: that "it is clear that [Klementanovsky's] convictions for robbery (and the attempt thereof), theft, and possibly intimidation/physical harm do meet the definition of an aggravated felony and would, therefore, bar the respondent from relief." R. at 7.

On appeal, Klementanovsky makes an argument that he has made from the beginning: that this interpretation of the statute denies him equal protection of the laws in violation of the due process clause of the Fifth Amendment. Specifically, he argues that "[t]he BIA's interpretation results in the disparate treatment of two classes of aliens identical in every respect except for a singular fact: members of one class happened to have departed and reentered the United States at some point after the convictions rendering them deportable." Petitioner's Br. at 12.

II. ANALYSIS

Although the statute denies this court the jurisdiction to review a decision by the Attorney General to deny relief under § 212(h), INA § 42(a) permits courts of appeals to consider constitutional claims and questions of law, notwithstanding any other provision of the statute. 8 U.S.C. § 1252(a)(2)(D) ("[N]othing in . . . any . . . provision of this Chapter (other than this section) which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section."); see Ramos v. Gonzales, 414 F.3d 800, 801-02 (7th Cir.2005). Because our review is limited to questions of law and constitutional questions, our review is de novo. Skorusa v. Gonzales, 482 F.3d 939, 942 (7th Cir.2007); see also Lara-Ruiz v. INS, 241 F.3d 934, 939 (7th Cir.2001).

A. Aggravated Felony

We turn first to the question of whether Klementanovsky is an aggravated felon. If he is, then he lacks standing to raise his constitutional objections because the Attorney General would be statutorily barred from granting him the relief that he seeks regardless of whether he succeeds on his equal protection claims. The government contends that a finding by the BIA that a petitioner is an aggravated felon is a finding of fact and therefore not reviewable by this court. We disagree.

Whether an alien's criminal conviction is indeed an "aggravated felony" under the INA is a question of law that we review de novo. Lara-Ruiz, 241 F.3d at 938-39. An aggravated felony is defined by the statute as (among other crimes which do not apply to Klementanovsky) a crime of violence or theft "for which the term of imprisonment [is] at least one year." 8 U.S.C. §§ 1101(a)(43)(F) and (G). The statute defines "term of imprisonment" to include "the period of incarceration or confinement ordered by a court of law...." 8 U.S.C. § 1101(a)(48)(B). None of Klementanovsky's convictions resulted in any prison sentence whatsoever being ordered by a court of law. As a matter of law, Klementanovsky has not been convicted of an aggravated felony as that term is defined in the statute, and therefore the Attorney General is not statutorily barred from applying § 212(h) to his case.

B. The Availability of a § 212(h) Waiver to a Deportable Alien

We turn then to the heart of Klementanovsky's argument: that by drawing a line between deportable criminal aliens who have left the country and returned, and those who have stayed and applied for a § 212(h) waiver directly, Congress and the BIA have denied him his right to equal protection of the laws. We uphold federal immigration legislation that distinguishes between classes of aliens if there is any "facially legitimate and bona fide reason for its enactment." Turkhan v. Perryman, 188 F.3d 814, 828 (7th Cir.1999). Under this highly deferential standard of review, if "`any reasonably conceivable state of facts' or any `plausible reason' could provide a rational basis for Congress' decision to treat the classes differently, our inquiry is at an end." Lara-Ruiz, 241 F.3d at 947 (7th Cir.2001) (quoting Turkhan, 188 F.3d at 828-29).

We should note at the outset that Klementanovsky's framing of the question misses the mark on a major point. He argues that the law draws a line between those who "happened to have departed and reentered" the country and those who have not left the country and have applied for a § 212(h) waiver directly. Petitioner's...