Lovan v. Holder

• Decision Date: 31 July 2009
• Docket Number: No. 08-2177.,08-2177.
• Citation: 574 F.3d 990
• Parties: Chanh LOVAN, Petitioner, v. Eric C. HOLDER, Jr., Attorney General, Respondents.
• Court: U.S. Court of Appeals — Eighth Circuit

574 F.3d 990

Chanh LOVAN, Petitioner, v. Eric C. HOLDER, Jr., Attorney General, Respondents.

No. 08-2177.

United States Court of Appeals, Eighth Circuit.

Submitted: February 11, 2009.

Filed: July 31, 2009.

Barbara A. Schwartz, argued, David Pille and Miacaela Schuneman, Student Legal Interns from the University of Iowa, College of Law, on the brief, Iowa City, IA, for Petitioner.

Ada Elsie bosque, OIL, U.S. DOJ, argued, William C. Peachey, on the brief, Washington, DC, for Respondent

Before LOKEN, Chief Judge, MELLOY and BENTON, Circuit Judges.

LOKEN, Chief Judge.

Chanh Lovan, a citizen of Laos, petitions for review of the final order of the Board of Immigration Appeals (BIA) removing him from the United States because he was convicted in 1991 of what is now an "aggravated felony." See 8 U.S.C. §§ 1227(a)(2)(A)(iii), 1101(a)(43). Lovan argues (1) he is eligible for relief under former § 212(c) of the Immigration and Nationality Act (INA); (2) retroactively classifying his conviction as an "aggravated felony" violated due process; (3) he is eligible for withholding of removal under 8 U.S.C. § 1231(b)(3) and 8 C.F.R. § 1208.16; (4) he is entitled to relief under the United Nations Convention Against Torture (CAT). We agree in part with the first contention and therefore remand.

I. Background

The relevant facts can be briefly summarized, but the applicable immigration laws and precedents are complex. Lovan entered the United States as a refugee in 1981 and became a lawful permanent resident four years later. He was convicted by an Arkansas jury in 1991 of sexually abusing an eight-year-old child. Sentenced to three years in prison, Lovan was discharged for good behavior after serving thirteen months. He converted to Christianity while in prison and remains a practicing Christian. His wife and children are U.S. citizens.

At the time of Lovan's conviction, an alien convicted of an aggravated felony was deportable, but his sex crime did not fall within the statutory definition of aggravated felony. See 8 U.S.C. § 1251(a)(4)(B) (1988), now recodified at 8 U.S.C. § 1227(a)(2)(A)(iii); 8 U.S.C. § 1101(a)(43) (1988), as amended by Immigration Act of 1990, Pub.L. No. 101-649, § 501, 104 Stat. 4978, 5048. In 1996, Congress amended the definition of aggravated felony to include "sexual abuse of a minor." Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), Pub.L. No. 104-208, div. C, § 321(a), 110 Stat. 3009-546, 3009-627 (1996), codified at 8 U.S.C. § 1101(a)(43)(A). The amendment was expressly made applicable to convictions prior to its enactment. § 321(b), 110 Stat. at 3009-628.

In February 2002, Lovan visited Laos to attend his mother's funeral and to visit his ailing father, traveling under a Permit to Reenter the United States issued by the Immigration and Naturalization Service (INS). He returned and was re-admitted by an immigration official in March 2002. The following October, Lovan applied for naturalization. The INS then filed a notice to appear alleging that he was deportable because of an aggravated felony conviction.

Lovan responded by applying for a waiver of deportation under former INA § 212(c), and for asylum, withholding of removal, and relief under the CAT. The IJ ordered Lovan removed to Laos, concluding he is ineligible for a § 212(c) waiver, he is barred from asylum and withholding of removal because convicted of a "particularly serious crime," and he failed to prove the likelihood of torture that is the basis for relief under the CAT. The BIA dismissed Lovan's administrative appeal, agreeing with the IJ's conclusions. Lovan petitions for review of all rulings except the denial of asylum. We review the BIA's decision as the final agency action, "including the IJ's findings and reasoning to the extent they were expressly adopted by the BIA." Fofanah v. Gonzales, 447 F.3d 1037, 1040 (8th Cir.2006).

II. Deportation Issues

Lovan's primary contention is that the BIA erred in concluding he is ineligible for waiver of deportation under former INA § 212(c). As relevant here, that statute provided: "Aliens lawfully admitted for permanent residence who temporarily proceeded abroad ... may be admitted in the discretion of the Attorney General without regard to the provisions of subsection (a) of this section." 8 U.S.C. § 1182(c) (1994). The reference to subsection (a) was to INA § 212(a), which enumerated the grounds upon which an alien could be excluded from entry into the United States.

1. The government responds with a threshold argument-Lovan cannot be eligible for relief under former § 212(c) because Congress repealed that statute in 1996. See IIRIRA § 304(b), 110 Stat. at 3009-597. After § 304(b) was enacted, circuit courts disagreed whether the repeal deprived previously eligible lawful permanent resident aliens of discretionary § 212(c) relief. The Supreme Court resolved one facet of this issue in INS v. St. Cyr, 533 U.S. 289, 314-26, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), concluding that § 304(b) would have an impermissible retroactive effect if applied to aliens who became eligible for § 212(c) relief by pleading guilty to aggravated felonies prior to the statute's repeal. Therefore, the Court construed § 304(b) as allowing those aliens to seek § 212(c) relief.

The government argues that Lovan may not be granted the relief afforded in St. Cyr because he was convicted by a jury in 1991, and St. Cyr premised its retroactive effect analysis on the Court's perception that lawful permanent residents reasonably relied on the continuing availability of § 212(c) relief in deciding to plead guilty. 533 U.S. at 321-24, 121 S.Ct. 2271. Once again, our sister circuits disagree on this issue. Some have accepted the government's argument. See Montenegro v. Ashcroft, 355 F.3d 1035, 1037 (7th Cir.2004); Dias v. I.N.S., 311 F.3d 456, 458 (1st Cir. 2002), cert. denied, 539 U.S. 926, 123 S.Ct. 2574, 156 L.Ed.2d 603 (2003); Armendariz-Montoya v. Sonchik, 291 F.3d 1116, 1121-22 (9th Cir.2002), cert. denied, 539 U.S. 902, 123 S.Ct. 2247, 156 L.Ed.2d 110 (2003). Others have decided that the impermissible retroactive effect identified in St. Cyr is not limited to aliens convicted by guilty plea. See Atkinson v. Attorney General, 479 F.3d 222, 230-31 (3d Cir. 2007); Carranza-De Salinas v. Gonzales, 477 F.3d 200, 206-09 (5th Cir.2007); Hem v. Maurer, 458 F.3d 1185, 1200 (10th Cir. 2006); Restrepo v. McElroy, 369 F.3d 627, 631-40 (2d Cir.2004).¹ Among the latter courts, the Fifth Circuit requires aliens convicted after a trial to prove actual reliance on former § 212(c) to establish eligibility for relief under St. Cyr. Carranza-De Salinas, 477 F.3d at 205; see also Wilson v. Gonzales, 471 F.3d 111, 122 (2d Cir.2006) (requiring "objective evidence" the alien "almost certainly relied"). The Third Circuit in Atkinson disagreed.

Having carefully reviewed these various decisions, we will follow the Third Circuit's decision in Atkinson. That court first noted that requiring actual reliance in each case "runs contrary" to the Supreme Court's retroactivity analysis in Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), which was the basis for the decision in St. Cyr. Under Landgraf, a determination that a statute has an impermissible retroactive effect "is applied across the board." 479 F.3d at 227. That conclusion is consistent with our retroactivity analysis in Alvarez-Portillo v. Ashcroft, 280 F.3d 858, 865-67 (8th Cir.2002). In Atkinson, the court then concluded:

Prior to IIRIRA's enactment, Atkinson remained free to apply for a waiver under section 212(c) despite his conviction of an aggravated felony. After IIRIRA, he lost that right.... IIRIRA [thereby] attached a new legal consequence to Atkinson's conviction: the certainty—rather than the possibility—of deportation. Such a change in legal consequences based on events completed before IIRIRA's enactment constitutes an impermissible retroactive effect.

479 F.3d at 230. We agree. Thus, Lovan is not precluded from relief under St. Cyr. Whether Lovan is eligible for relief under former § 212(c) as applied in St. Cyr is an issue of law that we have jurisdiction to consider under 8 U.S.C. § 1252(a)(2)(D). See Munoz-Yepez v. Gonzales, 465 F.3d 347, 351 (8th Cir.2006).

2. Relief under St. Cyr turns on how the agency would have applied former § 212(c) had Lovan traveled to Laos, reentered this country, and been placed in deportation all before the repeal of § 212(c) in 1996. Lovan argues he is eligible for relief under former § 212(c) because, when he traveled to Laos and returned to the United States in 2002, he was excludable as an alien who had been convicted of a "crime involving moral turpitude." 8 U.S.C. § 1182(a)(2)(A)(i)(I). Review of considerable statutory and administrative history is needed to frame this issue.

The INA and predecessor statutes distinguish between deportation of aliens present in the country and exclusion of aliens seeking admission. The current statutes maintain the distinction but refer to "deportation" as "removal" and to "excludable" aliens as "inadmissable." See 8 U.S.C. §§ 1182, 1229a. Despite substantial overlap, not every circumstance that renders an alien deportable makes him inadmissible, and vice versa. See Zamora-Mallari v. Mukasey, 514 F.3d 679, 683 (7th Cir.2008).

Prior to 1996, classes of excludable aliens were defined in INA § 212(a), 8 U.S.C. § 1182(a) (1994), while classes of deportable aliens were defined in INA § 241(a), 8 U.S.C. § 1251(a) (1994). The Attorney General was given discretion to waive exclusion of certain aliens in § 212(c), and to suspend deportation of a narrower class of aliens in INA § 244, 8 U.S.C. § 1254 (1994).² By its plain language, § 212(c) applied only to the admission of a returning lawful permanent resident. As § 212(c) applied to a broader class than § 244, some lawful permanent residents who were both excludable and deportable were...