Mansour v. Gonzales

• Decision Date: 14 December 2006
• Docket Number: No. 05-3674.,05-3674.
• Citation: 470 F.3d 1194
• Parties: Ghassan MANSOUR, Petitioner, v. Alberto GONZALES, United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1194

470 F.3d 1194

Ghassan MANSOUR, Petitioner, v. Alberto GONZALES, United States Attorney General, Respondent.

No. 05-3674.

United States Court of Appeals, Sixth Circuit.

Submitted: November 1, 2006.

Decided and Filed: December 14, 2006.

ON BRIEF: Mark Jacob Thomas, Chicago, Illinois, for Petitioner. Erica B. Miles, United States Department of Justice, Washington, D.C., for Respondent.

Before GILMAN and GRIFFIN, Circuit Judges; GWIN, District Judge.^*

OPINION

RONALD LEE GILMAN, Circuit Judge.

In 1995, Ghassan Mansour, a native and citizen of Iraq, was issued a final order of deportation based upon his aggravated-felony conviction for conspiracy to possess a controlled substance with the intent to distribute. Mansour had served just over five years in prison as punishment for this offense. In September of 1997, this court dismissed—for lack of jurisdiction—Mansour's petition to review his deportation order. The Immigration and Naturalization Service (INS) denied his motion to reopen the deportation proceedings in October of 1998.

Despite the deportation order, Mansour remained in the United States until 2000, when he briefly crossed the border into Mexico. When he attempted to reenter the United States, Mansour falsely claimed to be a U.S. citizen. Border officials paroled him into the country, where he later pled guilty to one count of making a false claim of U.S. citizenship. In January of 2005, due to changes in the immigration regulations, Mansour filed a special motion with the Board of Immigration Appeals (BIA) to reopen his deportation proceedings. The Department of Homeland Security (DHS) opposed the motion, arguing that Mansour is ineligible to seek the relief he requested.

The BIA denied Mansour's motion. It concluded that because Mansour's trip into Mexico effectively executed the outstanding deportation order, there were no deportation proceedings to reopen. The BIA further concluded that the new immigration regulations afforded Mansour no avenue of relief. Mansour timely petitioned for review by this court. For the reasons set forth below, we DENY the petition for review.

I. BACKGROUND

Mansour lives in Warren, Michigan. He was born in Baghdad in 1969 and entered the United States at Detroit, Michigan as a lawful permanent resident in August of 1981. On July 18, 1988, Mansour pled guilty to one count of conspiracy to possess a mixture containing a controlled substance with the intent to distribute, in violation of Mich. Comp. Laws § 333.7403(2)(a)(i). He was sentenced on August 19, 1988 to serve between five and twenty years in prison. The Michigan state-court judge credited Mansour with 49 days of time served prior to his conviction. Mansour was in prison for five years and a day. He was released on July 1, 1993.

In June of 1990, while Mansour was still incarcerated, the INS commenced deportation proceedings against him by issuing an Order to Show Cause. The INS claimed that Mansour was deportable under INA § 241(a)(11) (now codified as amended at 8 U.S.C. § 1227(a)(2)(B)(i)). Section 241(a)(11) states that any alien convicted of an offense relating to a controlled substance, except for a single offense of marijuana possession under 30 grams, is deportable. Mansour admitted the INS's factual allegations and conceded his deportability, as well as the INS's classification of him as an aggravated felon.

In August of 1991, the INS moved to administratively close the deportation proceedings pending a possible resentencing of Mansour, and the Immigration Judge (IJ) granted the motion. The record does not reveal whether or not Mansour was actually resentenced. By the time deportation proceedings resumed, Mansour had retained new counsel who was not familiar with had happened on the resentencing issue.

The INS filed a motion to recalendar the deportation proceedings. Shortly after Mansour was released from prison in July of 1993, the IJ granted the motion. The IJ subsequently found Mansour deportable as charged. Mansour argued that, although he was deportable, he was eligible for discretionary relief under INA § 212(c). 8 U.S.C. § 1182(c). Section § 212(c), later repealed, 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). An alien "who ha[d] been convicted of one or more aggravated felonies and ha[d] served . . . a term of imprisonment of at least 5 years," however, was ineligible for such discretionary relief. Id.

In January of 1995, the IJ ordered Mansour deported to Iraq, finding that he was statutorily ineligible for § 212(c) relief because he had been convicted of an aggravated felony and had served at least five years in prison. The BIA affirmed the IJ's decision. Mansour's petition for review was subsequently dismissed by this court for lack of jurisdiction. See Mansour v. INS, 123 F.3d 423, 424 (6th Cir. 1997). Section 440(a)(10) of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), provides that "[a]ny final order of deportation against an alien who is deportable by reason of having committed a criminal offense covered in [the Immigration and Nationality Act] section § 241(a)(2)(A)(iii), (B), (C), or (D), or any offense covered by [INA] section 241(a)(2)(A)(ii) for which both predicate offenses are covered by [INA] section 241(a)(2)(A)(i), shall not be subject to review by any court." Id. at 424 (citation omitted) (brackets in original). Because the INS issued Mansour's final order of deportation as a result of a felony conviction covered by § 440(a) of AEDPA, this court held that it had no jurisdiction to review his deportation order. See id. at 426.

In October of 1997, Mansour filed a motion to reopen his deportation proceedings with the BIA in light of the Attorney General's decision in In re Soriano, 21 I. & N. Dec. 516, 1996 WL 426888 (BIA 1996, A.G.1997). The Attorney General in Soriano directed the BIA to reopen cases where an alien had been placed into deportation proceedings prior to April 24, 1996, the effective date of AEDPA, and had conceded deportability. Id. AEDPA § 440(d) repealed INA § 212(c). Under Soriano, eligible aliens could reopen their deportation proceedings only "for the limited purpose of permitting him or her to contest deportability." Soriano, 21 I. & N. Dec. at 540. The purpose was "to eliminate even the remote possibility that an alien who had a colorable defense to deportability may have conceded deportability in reliance on the availability of section 212(c) relief." Id. Mansour's motion was denied by the BIA because he was ineligible for § 212(c) relief well before the enactment of § 440(d) of AEDPA due to his felony conviction and time spent in prison. This meant that the 1995 order of deportation remained final. See 8 C.F.R. § § 1003. 1(d)(2)(H), (d)(2)(ii), and (d)(7). The INS failed to execute the order of deportation, however, and Mansour remained in the United States.

In June of 2000, Mansour became engaged to Vanessa Ramos, a U.S. citizen from El Paso, Texas. Mansour claims that while he was in El Paso attending his engagement party, he "became drunk and accidentally travelled to Mexico." When he attempted to reenter the United States, Mansour falsely declared that he was a U.S. citizen. Border officials soon discovered that he was not a citizen. Although Mansour was a legally admitted permanent resident when he first came to the United States in 1981, the final order of deportation resulting from his drug conviction rendered Mansour inadmissible. Mansour was then paroled into the United States, where he pled guilty in June of 2001 to one count of making a false claim of U.S. citizenship, in violation of 18 U.S.C. § 911. He received a sentence of six months' home detention and three years' probation.

Mansour claims that he pled guilty only after INS officials offered to release him in exchange for his guilty plea. He returned to Michigan and married Vanessa Ramos in 2001. They now have two young children who are U.S. citizens.

In January of 2005, Mansour filed a special motion to reopen his deportation proceedings pursuant to 8 C.F.R. § 1003.44, which allows eligible aliens who pled guilty or nolo contendere to certain crimes before April 1, 1997 to apply for relief. Mansour argued that under the Supreme Court's decision in INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), he is now eligible for relief under the "special 212(c) rules." In St. Cyr, the Supreme Court held that former INA § 212(c) relief remained available to aliens "whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible" for a waiver of inadmissibility "at the time of their plea under the law then in effect." Id. at 326, 121 S.Ct. 2271. Section 1003.44, then, effectively codified the Court's holding in St. Cyr. See Lawrence v. Gonzales, 446 F.3d 221, 225 (1st Cir.2006) ("The regulation, which applies St. Cyr, [states] that the alien must have pled guilty `pursuant to a plea agreement made before April 1, 1997.'").

The DHS, which took over the functions of the INS in 2003, argued that Mansour's motion should be denied pursuant to 8 C.F.R. § 1003.44(k)(2), which excludes from eligibility for special relief "[a]liens issued a final order of deportation or removal who then illegally returned to the United States." In May of 2005, the BIA denied the motion, concluding that there were no deportation proceedings to reopen because Mansour's brief foray into Mexico had effectively executed the outstanding deportation order. The BIA also found that "the new regulations do not provide [Mansour with] any avenue of relief." This timely appeal followed.

II. ANALYSIS

A. Standard of review

We...