Nadal-Ginard v. Holder

• Decision Date: 25 February 2009
• Docket Number: No. 08-1550.,08-1550.
• Citation: 558 F.3d 61
• Parties: Bernardo NADAL-GINARD, Petitioner, v. Eric H. HOLDER, Jr.,<SMALL><SUP>*</SUP></SMALL> Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — First Circuit

558 F.3d 61

Bernardo NADAL-GINARD, Petitioner, v. Eric H. HOLDER, Jr.,^* Attorney General of the United States, Respondent.

No. 08-1550.

United States Court of Appeals, First Circuit.

Submitted January 9, 2009.

Decided February 25, 2009.

Ilana Etkin Greenstein, Harvey Kaplan, Jeremiah Friedman, Maureen O'Sullivan, Jeanette Kain and Kaplan, O'Sullivan & Friedman, LLP, on brief for petitioner.

Gregory G. Katsas, Assistant Attorney General, Civil Division, Mary Jane Candaux, Assistant Director and Michael C. Heyse, Attorney, Office of Immigration Litigation, United States Department of Justice, Civil Division, on brief for respondent.

Before TORRUELLA, SILER,^** and HOWARD, Circuit Judges.

HOWARD, Circuit Judge.

Petitioner Bernardo Nadal-Ginard seeks review of the Board of Immigration Appeals' ("BIA") decision denying his motion to terminate removal proceedings, and upholding the Immigration Judge's decision to pretermit his application for a waiver of inadmissibility under former § 212(c) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(c). Discerning no legal or factual error in the BIA's decision, we deny the petition.

I. BACKGROUND

Nadal-Ginard is a native of Spain who became a lawful permanent resident of the United States in 1976. In 1995, his successful medical career in this country was derailed when a jury convicted him of four counts of larceny of more than $250 for misappropriating funds from Boston Children's Heart Foundation ("BCHF"), a non-profit corporation organized to serve Boston Children's Hospital. He was subsequently sentenced to three to five years in prison for one count and one year each for the remaining three counts.¹ He was also stripped of his medical license and found liable to BCHF in federal civil proceedings for more than $6.5 million, see Boston Children's Heart Found., Inc. v. Nadal-Ginard, 73 F.3d 429, 432, 443 (1st Cir. 1996).

Shortly after his conviction, Nadal-Ginard traveled abroad at least twice to visit his ailing mother: once in June 1996, and again in January 1997. Despite his prior convictions, which rendered him inadmissible unless he obtained discretionary relief from the government under statutory provisions in force at the time, he reentered the United States without incident at the conclusion of each trip.

In 2004, Nadal-Ginard again traveled abroad and again attempted to reenter the country, presenting a foreign passport and his permanent resident alien card ("greencard") to the examining officer for inspection. This time, however, the Department of Homeland Security ("DHS") denied him admission on the basis that he was an arriving alien who had been convicted of crimes involving moral turpitude punishable by five or more years imprisonment in aggregate. The DHS subsequently charged him, explicitly as a native and citizen of Spain, with inadmissibility under the relevant provisions of the Immigration and Nationality Act ("INA"), sections 212(a)(2)(A)(i)(I), 8 U.S.C. § 1182(a)(2)(A)(i)(I), and 212(a)(2)(B), 8 U.S.C. § 1182(a)(2)(B).²

During his removal hearings in front of an Immigration Judge ("IJ"), Nadal-Ginard raised two arguments relevant to this petition. First, he argued that the DHS had failed to produce competent evidence of his alienage, and therefore the IJ lacked jurisdiction over the removal proceedings. He admitted that he had presented a foreign passport and a greencard to the immigration official when he attempted his reentry, but he asserted that it was the government's burden to establish his alienage, and that the government's proof was inadequate to do so. The government resisted both of these propositions, maintaining that the burden fell to Nadal-Ginard, as a convicted felon, to prove his citizenship, and relying on Nadal-Ginard's passport as adequate evidence of alienage. The IJ agreed with the government, finding that Nadal-Ginard's passport and greencard constituted sufficient evidence of alienage to establish jurisdiction.

Second, Nadal-Ginard argued to the IJ that he should be allowed to apply for discretionary relief from removal under the former INA § 212(c), which at the time of his 1996 readmission to the country would have permitted him to make such an application, but which was repealed before his 2004 travel and subsequent removal hearings.³ Nadal-Ginard asserted that he had relied on the continued availability of § 212(c) relief when he decided to pursue a jury trial, and therefore he should be excused from the retroactive application of its repeal. Finding no evidence in the record of any such reliance, the IJ denied the request. The IJ eventually found Nadal-Ginard removable as charged and pretermitted his applications for cancellation of removal and a waiver of inadmissibility.

On appeal, the BIA affirmed in a separate written opinion. In response to Nadal-Ginard's renewed argument that his alienage had not been established, the BIA explicitly found that Nadal-Ginard was a lawful permanent resident who, because of his convictions, was correctly categorized as an arriving alien. It further held that, because he was an arriving alien, Nadal-Ginard bore the burden of proving his admissibility, and it rejected Nadal-Ginard's assertion that the government bore the burden of establishing his alienage. Finally, the BIA concluded that Nadal-Ginard had failed to establish that he was entitled to be admitted to the United States because he presented no "reliable evidence" of U.S. citizenship and had not "shown that his Spanish passport confers anything less than full nationality and citizenship of Spain."

The BIA further held that Nadal-Ginard had not established his eligibility to apply for § 212(c) relief. Citing INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), and Dias v. INS, 311 F.3d 456 (1st Cir.2002), the BIA reasoned that because his convictions were obtained after trial rather than by plea agreements, Nadal-Ginard was subject to the retroactive application of § 212(c)'s repeal. The BIA additionally rejected Nadal-Ginard's argument that he should be allowed to apply for § 212(c) relief nunc pro tunc to the date of his first post-conviction admission into the United States, an admission which he characterized as contrary to law and having the effect of denying him the opportunity to apply for discretionary relief. The BIA held that it "lack[ed] jurisdiction" to interfere with what it characterized as the DHS's "prosecutorial discretion to decide if and when to commence removal proceedings against aliens," but it also considered the merits of Nadal-Ginard's argument and found that Nadal-Ginard had failed to "demonstrate any basis for seeking nunc pro tunc relief under section 212(c)." This petition for review followed.

II. LEGAL STANDARDS

We have jurisdiction over the petition pursuant to INA § 242(a)(1)(A), 8 U.S.C. § 1252(a)(1), which provides for review of final orders of removal, and INA § 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D), which provides for circuit courts' review of legal and constitutional questions even if otherwise barred by the jurisdiction-stripping provisions of INA § 242(a)(2)(B), (C).

When the BIA issues its own opinion affirming an immigration judge's decision, we focus on the Board's decision. Pulisir v. Mukasey, 524 F.3d 302, 307-08 (1st Cir.2008) (citing Stroni v. Gonzales, 454 F.3d 82, 86 (1st Cir.2006)). We review constitutional questions and questions of law de novo. Mekhoukh v. Ashcroft, 358 F.3d 118, 129 (1st Cir.2004). We typically give deference to the DHS's construction of the INA, which the agency administers. INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999); Lattab v. Ashcroft, 384 F.3d 8, 17 (1st Cir.2004); Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). However, when the Court reviews the retroactive application of a statute, it does not afford the agency's interpretation any deference. St. Cyr, 533 U.S. at 320 n. 45, 121 S.Ct. 2271.

III. DISCUSSION

A. Nadal-Ginard's Alienage and the BIA's Jurisdiction

Nadal-Ginard's first argument to us is that the government failed to establish his alienage during the administrative proceedings, and therefore the BIA lacked jurisdiction. His attack is two-fold: he argues that the BIA erred as a matter of law in holding that the DHS did not bear the burden of establishing that he is an alien, and that the evidence in the record showing alienage is insufficient to establish his present alienage. We disagree.

1. The Burden of Establishing Alienage

As to the burden of establishing alienage, Nadal-Ginard concedes that, if his alienage had been established, he would have borne the burden of proving his admissibility to the United States. He argues, however, that the BIA erred by expecting him to shoulder that burden without first requiring reliable evidence of alienage from the government.

On the contrary, the BIA properly treated Nadal-Ginard as an arriving alien and made no error of law in exerting jurisdiction over him. All persons attempting to enter the United States must apply in person to an immigration officer at a port-of-entry. 8 C.F.R. § 1235.1(a). "A person claiming U.S. citizenship must establish that fact to the examining officer's satisfaction," and if such person "fails to satisfy the examining immigration officer that he or she is a U.S. citizen, he or she shall thereafter be inspected as an alien." 8 C.F.R. § 1235.1(b). And, as the BIA properly noted, an alien who is an applicant for admission has the burden of establishing that he "is clearly and beyond doubt entitled to be admitted and is not inadmissible under section [212 of the INA]." 8 U.S.C. § 1229a(c)(2)(A); see also 8 C.F.R. § 1240.8(b) (an arriving alien "must prove that he or she is clearly and beyond a doubt entitled to be admitted to the United States and is not inadmissible as charged").

Moreover, even though an alien...