Martinez v. I.N.S.

• Citation: 523 F.3d 365
• Decision Date: 23 April 2008
• Docket Number: Docket No. 03-41049-ag (L).,Docket No. 05-3319-ag (CON).
• Parties: Leonardo Zuluaga MARTINEZ, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

523 F.3d 365

Leonardo Zuluaga MARTINEZ, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Docket No. 03-41049-ag (L).

Docket No. 05-3319-ag (CON).

United States Court of Appeals, Second Circuit.

Argued April 18, 2007.

Decided April 23, 2008.

Leonardo Zuluaga Martinez, pro se, Framingham, Mass., for Petitioner.

Lizas Murcia, Assistant United States Attorney (Terrance P. Flynn, United States Attorney for the Western District of New York, on the brief), Buffalo, N.Y., for Respondent.

Nancy Morawetz, Washington Square Legal Services, New York University School of Law, New York, N.Y., Amicus Curiae in Support of Petitioner.

Before: WALKER, STRAUB, and B.D. PARKER, Circuit Judges.

Judge STRAUB concurs in a separate opinion.

JOHN M. WALKER, JR., Circuit Judge:

Petitioner, a legal permanent resident alien, seeks review of a decision of the Board of Immigration Appeals affirming the immigration judge's denial of cancellation of removal for failure to satisfy the seven-year continuous residence requirement of INA § 240A(d), 8 U.S.C. § 1229b. Because petitioner's removal proceedings were initiated after the effective date of the Illegal Immigration Reform and Immigration Responsibility Act of 1996 ("IIRIRA"), the agency retroactively applied IIRIRA's permanent provisions, including the "criminal-offense stop-time rule," 8 U.S.C. § 1229b(d)(1)(B). The agency determined that pursuant to this rule, petitioner's commission of a criminal offense on April 9, 1995 terminated his period of continuous residence one month before he could achieve the requisite seven years. Petitioner asks us to review that determination.

BACKGROUND

Petitioner Leonardo Zuluaga Martinez ("Zuluaga"), a native and citizen of Colombia, entered the United States in April 1985. He became a legal permanent resident on December 1, 1990. On April 9, 1995, Zuluaga was arrested in Massachusetts for possession of heroin. This led to his conviction, in May 1998, based on a guilty plea to illegal possession of drugs and three counts of assault and battery, under Massachusetts law, for which he was sentenced to an 18 month term of imprisonment.

In June 1998, the Immigration and Naturalization Service ("INS") served Zuluaga with a notice to appear, charging him as removable under Immigration and Nationality Act ("INA") § 237(a)(2)(B)(i), for having "been convicted of a violation of ... any law or regulation of a State ... relating to a controlled substance." 8 U.S.C. § 1227(a)(2)(B)(i). In March 1999, petitioner was convicted a second time for illegal possession of heroin in violation of Massachusetts law, following an arrest on November 21, 1997. The INS thereupon charged Zuluaga as being additionally removable as an aggravated felon pursuant to INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), based on the May 1998 convictions for assault and battery, and pursuant to INA § 237(a)(2)(B)(i), based on the March 1999 heroin conviction.

In May 1999, at a hearing before the Immigration Judge ("IJ"), Zuluaga admitted to all of the above convictions. The IJ then found (1) that Zuluaga was removable from the United States and (2) that the assault and battery offenses were aggravated felonies; the latter making Zuluaga statutorily ineligible for cancellation of removal under INA § 240A(a). See 8 U.S.C. § 1229b(a)(3). The IJ ordered Zuluaga removed to Colombia.

Zuluaga appealed to the Board of Immigration Appeals ("BIA"). In October 1999, while that appeal was pending, the Massachusetts state court granted Zuluaga's motion to vacate his assault and battery convictions because the trial court had failed to warn him about the immigration consequences of the plea. The BIA initially dismissed Zuluaga's appeal, but subsequently granted his motion to reopen based on Massachusetts's vacatur to allow Zuluaga to pursue cancellation of removal.

The IJ, on remand, then determined what lies at the heart of this appeal: that Zuluaga was still statutorily ineligible for cancellation of removal because he had failed to achieve seven years of continuous lawful permanent residence, as required under INA § 240A(a)(2), 8 U.S.C. § 1229b(a)(2). The IJ found that because Zuluaga had entered the country illegally without inspection, his period of lawful residence did not begin until May 4, 1988, the date he applied for temporary resident status. The IJ further determined that by operation of the stop-time rule of INA § 240A(d)(1), 8 U.S.C. § 1229b(d)(1)(B), which became effective according to IIRIRA on April 1, 1997, Zuluaga's period of continuous residence ended on April 9, 1995 when he committed his first drug offense, a month short of the seven years of continuous lawful permanent residence necessary for cancellation eligibility. The IJ denied Zuluaga's application for cancellation of removal and the BIA summarily affirmed.

The district court, upon a habeas petition, returned the case to the IJ, via the BIA, to determine whether Zuluaga might have been admitted earlier than May 4, 1988. But, after considering further evidence on the issue, the IJ confirmed his original determination, again denied relief, and ordered removal.

Zuluaga then moved for reconsideration of the IJ's decision, not arguing that the May 4, 1998 starting date for the seven year period was improper, but that the application of the stop-time rule which cut off the period just short of the seven years was impermissibly retroactive. The IJ declined reconsideration, relying on the BIA's decision in In re Perez, 22 I. & N. Dec. 689 (B.I.A.1999) (en banc), which had applied the stop-time rule to offenses preceding the passage of IIRIRA.

In November 2003, the BIA rejected Zuluaga's appeal. The BIA affirmed the IJ's conclusion that Zuluaga had failed to demonstrate the requisite seven years of continuous residence prior to the commission of his crime on April 9, 1995. Relying also on In re Perez, the BIA concluded that the stop-time rule applied to Zuluaga's situation and precluded cancellation of removal. Zuluaga timely filed a petition for review of the BIA's decision.

DISCUSSION

Zuluaga does not challenge the agency's factual determination that his continuous residence "clock" began to run on May 4, 1988, but he argues that it did not stop on April 9, 1995. Zuluaga maintains that the criminal-offense stop-time rule, which became effective on April 1, 1997, is impermissibly retroactive as applied to criminal conduct that preceded its enactment. Zuluaga asks us to conclude (1) that the commission of the offense on April 9, 1995 did not stop the accrual of his seven years of permanent residence and (2) that he is therefore eligible for cancellation of removal. As a consequence, he asks us to remand to the BIA for further remand to the IJ for a determination as to whether a favorable exercise of discretion is warranted.

A. Immigration Framework in 1995

Under the immigration laws in effect in April 1995, when Zuluaga committed the offense at issue, legal permanent residents who were subject to deportation, but who had resided in the United States for seven consecutive years, were eligible to apply for a discretionary waiver of deportation under INA § 212(c). See 8 U.S.C. § 1182(c) (repealed 1996) ("Aliens 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...."). Although "§ 212(c) was literally applicable only to exclusion proceedings," the BIA interpreted the provision "to authorize any permanent resident alien with `a lawful unrelinquished domicile of seven consecutive years' to apply for a discretionary waiver from deportation." INS v. St. Cyr, 533 U.S. 289, 295, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (citing In re Silva, 16 I. & N. Dec. 26, 30 (B.I.A.1976) (adopting position of Francis v. INS, 532 F.2d 268 (2d Cir. 1976))).

"The decision of whether to award section 212(c) relief involved only a balancing of the `adverse factors evidencing an alien's undesirability as a permanent resident with the social and humane considerations presented in his behalf to determine whether the granting of [a section 212(c) waiver] appear[ed] in the best interests of this country.'" Kai Tung Chan v. Gantner, 464 F.3d 289, 295 (2d Cir.2006) (per curiam) (quoting In re Marin, 16 I. & N. Dec. 581, 584 (B.I.A.1978)) (alterations in original). Although the decision to grant § 212(c) relief was ultimately a discretionary one, a "substantial percentage" of applications were granted. St. Cyr, 533 U.S. at 296, 121 S.Ct. 2271 (noting that between 1989 and 1995, over 10,000 applicants obtained § 212(c) relief).

Under the pre-IIRIRA system then in existence, aliens accrued time toward their required period of continuous residence and physical presence until they applied for relief from deportation. See Arenas-Yepes v. Gonzales, 421 F.3d 111, 115 n. 4 (2d Cir.2005). This gave aliens an incentive to delay their deportation proceedings until they could fulfill the requisite seven years. See Suassuna v. INS, 342 F.3d 578, 581 (6th Cir.2003). Before IIRIRA, the accrual of time towards seven years of continuous residence was not stopped by the commission of a crime.

B. The Illegal Immigration Reform and Immigration Responsibility Act of 1996

IIRIRA, which was enacted on September 30, 1996 and went into effect on April 1, 1997, eliminated the § 212(c) waiver, and replaced it with cancellation of removal, "a more strict procedure." United States v. Johnson, 391 F.3d 67, 70 (2d Cir.2004). Under INA § 240A(a), which replaced INA § 212(c), a legal permanent resident alien must satisfy three conditions to qualify for cancellation of removal relief: the alien (1) must have been "lawfully admitted for permanent residence for not less than 5 years," (2) must have "resided in the United States continuously...