Lawrence v. Gonzales

• Decision Date: 05 May 2006
• Docket Number: No. 05-1960.,No. 05-2147.,05-1960.,05-2147.
• Citation: 446 F.3d 221
• Parties: Uwagboe Orumwense LAWRENCE, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

446 F.3d 221

Uwagboe Orumwense LAWRENCE, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.

No. 05-1960.

No. 05-2147.

United States Court of Appeals, First Circuit.

Submitted February 10, 2006.

Decided May 5, 2006.

William P. Joyce and Joyce & Associates, P.C. on consolidated brief for petitioner.

Robbin K. Blaya, Office of Immigration Litigation, Civil Division, United States Department of Justice, Peter Keisler, Assistant Attorney General, Civil Division, and Terri J. Scadron, Assistant Director, on consolidated brief for respondent.

Before BOUDIN, Chief Judge, STAHL, Senior Circuit Judge, and HOWARD, Circuit Judge.

BOUDIN, Chief Judge.

On July 6, 1995, Uwagboe Orumwense Lawrence — a Nigerian citizen who was a lawful permanent resident of the United States — pled guilty in the South Boston District Court to a charge of larceny in the amount of roughly $18,000, apparently based on the writing of bad checks. He received a two-year sentence, which was suspended, and completed probation without incident. What followed were the federal government's efforts to deport Lawrence, leading to the proceedings now before us.

In May 1998, the former Immigration and Naturalization Service ("INS") began removal proceedings against Lawrence as an alien convicted of an aggravated felony under 8 U.S.C.A. § 1227(a)(2)(A)(iii) (West Supp.1998). As that provision stood in 1995, Lawrence's offense had not been an aggravated felony, because the term of imprisonment imposed was less than five years. 8 U.S.C. § 1101(a)(43)(G) (1994). By 1998, Congress had broadened the definition to include theft convictions involving sentences of one year or more. 8 U.S.C.A. § 1101(a)(43)(G) (West Supp.1998).¹

Seeking to avoid deportation under this expanded definition, Lawrence asked the South Boston District Court to revise and revoke his prior sentence, or, in the alternative, to order a new trial. The court granted a new trial, and on July 30, 1998, it accepted Lawrence's new guilty plea and sentenced him to 338 days of probation — just below the one-year floor established by the new definition. The apparent basis for the new trial was that his original guilty plea was made without warning of the possible deportation consequences. See Mass. Gen. Laws ch. 278, § 29D (1994).

The INS then amended its charge against Lawrence, alleging that he was in any event removable as an alien convicted of a crime involving moral turpitude for which a sentence of one year or longer may be imposed. 8 U.S.C.A. § 1227(a)(2)(A)(i) (West Supp.1998). After a hearing, an Immigration Judge ("IJ") found that Lawrence was removable under this provision, but granted Lawrence time so he could file an asylum petition (which Lawrence subsequently submitted and then later withdrew).

Proceedings were then delayed pending the INS's adjudication of an I-130 petition filed on Lawrence's behalf by his wife, who is a United States citizen.² After the INS approved the petition on February 2, 2000 — which is merely a first step — Lawrence submitted an application for an adjustment of status and an application for a discretionary waiver of a ground of inadmissibility under section 212(h) of the Immigration and Nationality Act ("INA"). 8 U.S.C. § 1182(h) (2000). Section 212(h), which is not at issue in this appeal, permits waivers in certain situations involving family hardship.³

On October 24, 2001, after a hearing, the IJ ordered Lawrence to be deported to Nigeria and denied his applications for an adjustment of status and for a discretionary waiver under section 212(h). The IJ's removal order rested solely on the ground that Lawrence had been convicted of a crime involving "moral turpitude" within five years of his admission into the United States. Lawrence filed a motion to reopen and reconsider these denials, but the IJ denied the motion, noting that Lawrence's criminal history, false statements in aid of his asylum application, and fraudulent activity outweighed competing claims of hardship.

Lawrence then appealed to the Board of Immigration Appeals ("BIA"), which, on July 2, 2002, affirmed the IJ's decision without opinion. An initial motion to reopen and reconsider was denied, and a second one rejected as untimely.

Thereafter, Lawrence was detained pending his removal in North Dartmouth Massachusetts, by the Bureau of Immigration and Customs Enforcement. In April 2003, he petitioned for a writ of habeas corpus in the district court in Massachusetts and sought a stay of deportation, which the district court granted. On June 24, 2005, while Lawrence's habeas petition was still pending, the district court ordered it to be transferred to this court pursuant to section 106(c) of the REAL ID Act of 2005, Pub.L. No. 109-13, Div. B, 119 Stat. 302, 311 (codified at 8 U.S.C. § 1252(a)(5)).

On April 26, 2005, Lawrence filed a special motion with the BIA to reopen his case in order to seek relief under former section 212(c) of the INA (codified at 8 U.S.C. § 1182(c) (1994)).⁴ The BIA denied Lawrence's motion on June 30, 2005, finding that he was ineligible for the requested relief. Lawrence then filed the present petition for judicial review of the BIA's decision. We consolidated the petition for review with Lawrence's habeas proceeding, which had already been transferred to this court by the district court.

In his petition for review, Lawrence challenges the BIA's denial of his April 2005 motion to reopen his case. Review of such a denial is for "abuse of discretion," but this rubric includes errors of law, Wang v. Ashcroft, 367 F.3d 25, 26-27 (1st Cir.2004), which are reviewed de novo, "according due weight to the BIA's expertise in construing the statutory framework that it administers." Orehhova v. Gonzales, 417 F.3d 48, 52 (1st Cir.2005) (quoting Radkov v. Ashcroft, 375 F.3d 96, 98 (1st Cir.2004)).

Lawrence does not dispute that he is removable because his crime was one of moral turpitude (and meets the other statutory conditions for removability on this ground), but he says that the BIA erred in ruling that, as a matter of law, section 212(c) relief is unavailable to him. Read literally, section 212(c) appears to be limited solely to persons seeking to reenter the United States, but it has been judicially enlarged to cover persons already inside the United States who are similarly situated.⁵

Lawrence's problem is that this waiver authority was itself repealed in 1996 — before his application. But in INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), the Supreme Court held that because Congress was unclear as to retroactive application of the repeal, application for such relief could still be made even after repeal by those aliens "whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for § 212(c) relief at the time of their plea under the law then in effect." Id. at 326, 121 S.Ct. 2271.

The Court's rationale for this prudential line-drawing was that "[p]lea agreements involve a quid pro quo between a criminal defendant and the government," id. at 321, 121 S.Ct. 2271 — that is, the availability of potential section 212(c) relief might have been relied on by the defendant, id. at 322-23, 121 S.Ct. 2271. To implement St. Cyr, the Justice Department provides that withholding relief may be sought if the alien "[a]greed to plead guilty or nolo contendere to an offense rendering the alien deportable or removable, pursuant to a plea agreement made before April 1, 1997." 8 C.F.R. § 1003.44(b)(2) (2006).

Although the Attorney General's decision whether to grant withholding remains discretionary,⁶ the BIA's refusal to entertain Lawrence's request is based on a ruling of law — namely, that the 1998 conviction and plea represent the pertinent date for judging whether the exception in St. Cyr and the regulation apply. This ruling is itself reviewable under the venerable principle of Service v. Dulles, 354 U.S. 363, 372, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957), even though the Attorney General would thereafter be free to deny withholding on discretionary grounds.

The BIA's decision that Lawrence is ineligible for section 212(c) relief is correct. St. Cyr allows section 212(c) relief to be sought, despite the repeal of the section, by those who would have been eligible "at the time of their plea under the law then in effect." 533 U.S. at 326, 121 S.Ct. 2271 (emphasis added). The regulation, which applies St. Cyr, refines this language, stating that the alien must have pled guilty "pursuant to a plea agreement made before April 1, 1997." 8 C.F.R. § 1003.44(b)(2) (emphasis added).

The potential discrepancy between the two tests does not matter here. Lawrence's currently effective plea and conviction occurred in July 1998, well after the April 1997 cutoff date. At the time he pled guilty, section 212(c) had been repealed. He had no basis for assuming (as part of his plea or otherwise) that section 212(c) relief would be potentially available as part of the quid pro quo for the plea.

Lawrence says that the availability of section 212(c) relief should be determined based upon when the conduct underlying his conviction took place. This is the test used in an ex post facto analysis where punishment is increased for a pre-existing crime, Harisiades v. Shaughnessy, 342 U.S. 580, 594, 72 S.Ct. 512, 96 L.Ed. 586 (1952), but ex post facto principles do not apply to removal proceedings, Galvan v. Press, 347 U.S. 522, 531, 74 S.Ct. 737, 98 L.Ed. 911 (1954). Instead, St. Cyr and the regulations control, and, for their tests, the date of the criminal conduct is irrelevant.

Lawrence also argues that his 1995 conviction should fix the pertinent date because the superceding 1998 conviction was obtained solely for strategic purposes — i.e., to avoid the expanded aggravated felony definition. St. Cyr's concern is with whether an alien entering a plea could be relying in his plea on the...