Morgan v. Keisler

• Decision Date: 29 October 2007
• Docket Number: No. 06-3505.,06-3505.
• Parties: Maciver MORGAN, Petitioner-Appellant, v. Peter D. KEISLER,<SMALL><SUP>*</SUP></SMALL> Acting Attorney General of the United States, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

507 F.3d 1053

Maciver MORGAN, Petitioner-Appellant, v. Peter D. KEISLER,^* Acting Attorney General of the United States, Respondent-Appellee.

No. 06-3505.

United States Court of Appeals, Sixth Circuit.

Argued: September 18, 2007.

Decided and Filed: October 29, 2007.

ARGUED:

James W. Chin, James Chin Law Office, Cleveland, Ohio, for Petitioner. Thomas H. Dupree, Jr., United States Department of Justice, Washington, D.C., for Respondent.

ON BRIEF:

James W. Chin, James Chin Law Office, Cleveland, Ohio, for Petitioner. Jennifer Keeney, Michelle Gorden Latour, United States Department of Justice, Washington, D.C., for Respondent.

Before: BATCHELDER and GILMAN, Circuit Judges; STAFFORD, District Judge.^**

OPINION

RONALD LEE GILMAN, Circuit Judge.

Maciver Morgan, a native and citizen of Jamaica, legally entered the United States as a permanent resident alien in 1985. Morgan married his wife, Tonya, in 1998, and they have since lived in Cleveland, Ohio with their two children and her child from a previous relationship. In 1996, Morgan pled guilty in Ohio state court to aggravated assault and was sentenced to 18 months in prison. The Bureau of Immigration and Customs Enforcement (ICE) initiated removal proceedings against him in 2003, alleging that his conviction for an aggravated felony/crime of violence made him removable under 8 U.S.C. § 1227(a)(2)(A)(iii).

Morgan contested his removability and alternatively applied for a waiver of inadmissibility pursuant to § 212(c) of the Immigration and Nationality Act (INA). Following three hearings, the Immigration Judge (IJ) denied Morgan's application and ordered him removed to Jamaica. The Board of Immigration Appeals (BIA) affirmed the IJ's decision and Morgan timely appealed. For the reasons set forth below, we AFFIRM the judgment of the BIA.

I. BACKGROUND

A. Statutory background

This case hinges on the effect of the various amendments to and eventual repeal of INA § 212(c). Two statutes are particularly relevant to this case: (1) the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which took effect on April 24, 1996, and (2) the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which took effect in relevant part on April 1, 1997. In Garcia-Echaverria v. United States, 376 F.3d 507, 515 n. 9 (6th Cir.2004), this court summarized the complex history of these statutes as follows:

Prior to the enactment of the AEDPA, § 212(c) of the INA (codified at 8 U.S.C. § 1182(c) (1995)) allowed the Attorney General to exercise his discretion and waive the deportation of a lawful permanent resident alien, meeting certain requirements, who was excludable by reason of having committed an "aggravated felony," except the Attorney General had no discretion to admit:

an alien who has been convicted of one or more aggravated felonies and has served for such felony or felonies a term of imprisonment of at least 5 years.

8 U.S.C. § 1182(c) (1995); [INS v.] St. Cyr, 533 U.S. [289,] [] 294-95 [121 S.Ct. 2271, 150 L.Ed.2d 347 (2001)] (explaining that although § 212(c) on its face only applies to exclusion proceedings, it had been interpreted as allowing lawful permanent residents to seek a waiver of deportation).... An alien convicted of [an aggravated felony], however, would have remained eligible for discretionary waiver of deportation if he had served less than five years of imprisonment. 8 U.S.C. § 1182(c) (1995).

Section 440(d) of the AEDPA narrowed the Attorney General's discretion, prohibiting the Attorney General from waiving the deportation of a lawful permanent resident, who was excludable by reasons of having committed "any criminal offense covered in section 241(a)(2)(A)(iii) ["aggravated felony"], (B) [controlled substance conviction]," etc., regardless of whether he had served five years of imprisonment. AEDPA, Pub.L. No. 104-132, § 440(d), 110 Stat. 1214 (1996); 8 U.S.C. § 1227(a)(2)(A)(iii) and (B).

Section 304 of the IIRIRA repealed § 212(c) of the INA and replaced it with 8 U.S.C. § 1229b, which prohibits the Attorney General from cancelling the removal of an alien who has ever "been convicted of any aggravated felony." 8 U.S.C. § 1229b(a)(3); IIRIRA, Pub.L. No. 104-208, § 304(a)-(b), 110 Stat. 3009 (1996). With some exceptions ..., this provision did not become effective until April 1, 1997, and by its terms applied to removal proceedings that commenced on or after that date. Id. at § 309(a).

Despite the seemingly complete repeal of § 212(c) relief effected by IIRIRA, the Supreme Court determined in INS v. St Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), that § 212(c) relief remains available for a certain group of aliens. The Ninth Circuit explained the effect of St. Cyr and provided the following summary of the most recent developments in § 212(c)'s history in Abebe v. Gonzales, 493 F.3d 1092, 1100 (9th Cir.2007):

[I]n 2001 the Supreme Court decided that § 212(c) relief remains available for aliens who pled guilty prior to AEDPA and/or IIRIRA and who "would have been eligible for § 212(c) relief at the time of their plea under the law then in effect." St. Cyr, 533 U.S. at 326 . In August 2002, the Department of Justice ("DOJ") published proposed amendments to its regulations that were meant to codify the requirements for former § 212(c) relief in the wake of AEDPA, IIRIRA, and St. Cyr. 67 Fed.Reg. 52627 (August 13, 2002). The DOJ noted that, among other things, "an applicant must, at a minimum meet the criteria ... [that he] is deportable or removable on a ground that has a corresponding ground of exclusion or inadmissibility." Id. at 52628-29. The final rule was published on September 28, 2004. 8 C.F.R. § 1212.3(f)(5).

Section 1212.3(f)(5) of the DOJ regulations is called the "statutory-counterpart" or "comparable-ground" rule and is designed to ensure consistency between the invocation of § 212(c) in the deportation/removal context (for which such relief was not initially intended) and its invocation in the exclusion/inadmissible context (for which such relief was initially intended). Cf. Matter of Wadud, 19 I & N Dec. 182, 184 (BIA 1984) ("Although [§ 212 of the INA] ... has been interpreted to include availability for relief in deportation proceedings as well[,] ... the Board has consistently held that section 212(c) can only be invoked in a deportation hearing where the ground of deportation charged is also a ground of inadmissibility."). In its current form, the statutory-counterpart rule is the last of five independent grounds set forth in 8 C.F.R. 1212.3(f) that can result in the denial of an alien's application for a waiver of inadmissibility. The text of the regulation reads, in relevant part, as follows:

An application for relief under former section 212(c) of the Act shall be denied if:

(1) The alien has not been lawfully admitted for permanent residence;

(2) The alien has not maintained lawful domicile in the United States, as either a lawful permanent resident or a lawful temporary resident ... for at least seven consecutive years immediately preceding the filing of the application;

(3) The alien is subject to inadmissibility or exclusion from the United States under paragraphs (3)(A), (3)(B), (3)(C), (3)(E), or (10)(C) of section 212(a) of the Act;

(4) The alien has been charged and found to be deportable or removable on the basis of a crime that is an aggravated felony ...; or

(5) The alien is deportable under former section 241 of the Act or removable under section 237 of the Act on a ground which does not have a statutory counterpart in section 212 of the Act.

8 C.F.R. § 1212.3(f) (2006).

B. Procedural background

As an initial matter, the IJ determined that Morgan satisfied the first two requirements for § 212(c) eligibility set forth in 8 C.F.R. § 1212.3(f): He was a lawful permanent resident and had maintained a lawful domicile in the United States for at least seven consecutive years before he applied for § 212(c) relief. 8 C.F.R § 1212.3(f)(1), (2). The IJ's primary rationale for nonetheless finding Morgan ineligible was that, "[a]t the time of his plea, Respondent's conviction [in Ohio for aggravated assault] was not a deportable offense." The IJ reasoned that, "[w]ithout a deportable offense, Respondent did not need, and was not eligible for, 212(c) relief." In other words, "Respondent did not have any expectations of relief" at the time that he pled guilty. The IJ then cited the Supreme Court's decision in St. Cyr for the proposition that, "[s]ince 212(c) relief was not available at the time of Morgan's plea, he cannot seek 212(c) relief now."

Morgan appealed the IJ's decision to the BIA, arguing that the IJ erred in reasoning that "his crime was not defined as an aggravated felony/crime of violence at the time of his guilty plea, and therefore he could not have pled guilty upon reliance of 212(c) availability." The BIA rejected Morgan's appeal on two separate grounds. First, the BIA noted that, "[s]ince the issuance of the Immigration Judge's decision, the Board has held that an alien convicted of an aggravated felony/crime of violence is not eligible for [relief under] section 212(c) of the Act because this ground of removability does not have a statutory counterpart in section 212(a) of the Act." (Citing Matter of Brieva-Perez, 23 I & N Dec. 766 (BIA 2005), and Matter of Blake, 23 I & N Dec. 722 (BIA 2005)). The BIA also held that "[Morgan] is ... precluded from 212(c) eligibility because he pled guilty to his aggravated felony crime ... after the April 24, 1996, effective date of § 440(d) of [AEDPA]." (Citing 8 C.F.R. § 1212.3(h)(2) (2005)). Morgan timely appeals the BIA's decision.

II. ANALYSIS

A. Standard of review

Where, as here, the BIA reviewed the IJ's decision de novo and issued its own separate opinion, we review the BIA's opinion as the final agency determination. See Grijalva v. Gonzales, 212 Fed.Appx. 541, 547 (6th Cir.2007) (citing Zaitona v. INS, ...