Romero-Rodriguez v. Gonzales, 05-60661.

• Decision Date: 04 June 2007
• Docket Number: No. 05-60661.,05-60661.
• Parties: Herbert Salvador ROMERO-RODRIGUEZ, Petitioner, v. Alberto R. GONZALES, U.S. Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

488 F.3d 672

Herbert Salvador ROMERO-RODRIGUEZ, Petitioner, v. Alberto R. GONZALES, U.S. Attorney General, Respondent.

No. 05-60661.

United States Court of Appeals, Fifth Circuit.

June 4, 2007.

Brian K. Bates, Quan, Burdette & Perez, Houston, TX, for Petitioner.

Daniel David Hu, Asst. U.S. Atty., Sharon A. Hudson, U.S. Citizenship & Imm. Services, Houston, TX, Thomas Ward Hussey, Dir., Norah Ascoli Schwarz, Michelle E. Gordon Latour, Cindy S. Ferrier, Keith Ian Bernstein, U.S. Dept. of Justice, OIL, Washington, DC, Trey Lund, U.S. Imm. & Customs Enforcement, Attn: Carl Perry, New Orleans, LA, for Respondent.

Petition for Review of an Order of the Board of Immigration Appeals.

Before KING, GARZA and OWEN, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

This case relates to an alien's eligibility to apply for a waiver of removal under the Immigration and Nationality Act ("INA") § 212(c), formerly 8 U.S.C. § 1182(c) (1995) (repealed 1996).¹ Section 212(c) grants the Attorney General the discretionary authority to waive removal for permanent residents who have been in the United States for more than seven years. An alien is not eligible to apply for a § 212(c) waiver if he has "served . . . a term of imprisonment of at least 5 years." Id. The eligibility issue in this case is one of timing. The petitioner, Herbert Romero-Rodriguez ("Romero"), sought a § 212(c) waiver twice and the Board of Immigration Appeals ("BIA") denied his eligibility to apply both times. He was denied once in 2000, when he had served less than five years in prison, and once in 2004, when he had served more than five years in prison. The difficulty in this case is that BIA denied Romero's 2000 application in error, and then when the BIA reopened the case, it denied his application in 2004 because he had served more than five years in prison. So the bar to eligibility in 2004 was not a bar to eligibility when the BIA erroneously denied Romero's application in 2000. In denying eligibility on the 2004 application, the BIA found that the relevant date for determining Romero's time served in prison was the date of the BIA's decision on the second application. Romero argues that the relevant date for determining his time served should be the date the BIA initially, and erroneously, denied his § 212(c) eligibility in 2000. Two other circuits have already addressed this issue and have come to differing conclusions. See Fernandes Pereira v. Gonzales, 417 F.3d 38 (1st Cir.2005) (finding petitioner ineligible to apply for a § 212(c) waiver because the statute's language clearly precludes petitioners who have served more than five years in prison); Edwards v. INS, 393 F.3d 299 (2nd Cir.2004) (finding petitioner eligible to apply for a § 212(c) waiver through the equitable doctrine of nunc pro tunc).

I

Romero, a native and citizen of El Salvador, was legally admitted into the United States and, in 1989, obtained lawful permanent resident status. In 1994, he pleaded guilty to aggravated assault. Initially, he was sentenced to seven years probation, but in 1995, he violated that probation. He began serving a six-year term of imprisonment on September 24, 1996. While Romero was incarcerated, the INS initiated removal proceedings. On October 13, 1999, the Immigration Judge ("IJ") found that Romero's assault conviction qualified as an aggravated felony, pursuant to 8 U.S.C. § 1101(a)(43)(F), and, therefore, that Romero was removable under 8 U.S.C. § 1227(a)(2)(A)(iii). Romero appealed to the BIA and sought a waiver of deportation through INA § 212(c), 8 U.S.C. § 1182(c), which granted the Attorney General discretionary power to waive removal of permanent residents who have lived in the U.S. for more than seven years and who have not served more than five years in prison.

The BIA upheld the IJ's removal decision and denied Romero's request for a § 212(c) waiver. The statutory authority to grant § 212(c) waivers had been revoked in 1996, three years before Romero's application. AEDPA § 440(d) (1996). Following the revocation, the BIA limited § 212(c) eligibility to those aliens whose removal proceedings were pending or completed at the time Congress revoked § 212(c). In re Soriano, 21 I. & N. Dec. 516, 519 (BIA 1996). Because Romero's request for a § 212(c) waiver was not pending or completed at the time of the revocation, the BIA denied him eligibility to apply. Romero's initial request for § 212(c) relief was denied on March 31, 2000, the date of the BIA decision.

It is indisputable that this decision of the BIA, as it relates to § 212(c) eligibility, was in error. In 2001, the Supreme Court decided INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347, which took a more expansive view of § 212(c) eligibility than that previously taken by the BIA. Id. at 326, 121 S.Ct. 2271. The Court held that "§ 212(c) relief remains available for aliens . . . whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for § 212(c) relief at the time of their plea under the law then in effect." Id. Romero had pleaded guilty to his aggravated assault conviction in 1994, two years before § 212(c) was revoked. Therefore, the BIA should have considered Romero's request for § 212(c) relief when it considered his application in 2000.

After St. Cyr, the BIA began considering requests for § 212(c) waivers from petitioners, like Romero, who had pleaded guilty to the convictions underlying their deportation prior to the revocation of § 212(c). In 2002, Romero filed a motion to reopen proceedings with the BIA. The BIA granted his motion to reopen and remanded his case to an IJ. In the meantime, Romero was released from prison on September 24, 2002, bringing his total time served in prison to six years. Both the IJ and the BIA denied his application for a § 212(c) waiver because, by that time, he had served more than five years in prison, and they held he was statutorily ineligible to apply for a § 212(c) waiver. 8 U.S.C. § 1182(c). The BIA denied Romero's second request for § 212(c) eligibility on March 10, 2004.

II

Romero's argument is one of statutory interpretation. We therefore have jurisdiction to hear this appeal because it raises a question of law. 8 U.S.C. § 1252.

A

We conduct a de novo review of the BIA's legal conclusions. Omagah v. Ashcroft, 288 F.3d 254, 258 (5th Cir.2002). "As to questions of statutory interpretation, however, we owe substantial deference to an agency's construction of a statute that it administers." Alwan v. Ashcroft, 388 F.3d 507, 510 (5th Cir.2004) (citing Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)); see also de Fuentes v. Gonzales, 462 F.3d 498, 502 (5th Cir.2006) ("Under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., we subject the BIA's construction of the law it administers to a deferential review."). Therefore, we review the BIA's interpretation of § 212(c) under the two-step Chevron analysis.

Applying Chevron, we first ask "whether Congress has directly spoken to the precise question at issue. If Congress' intent is clear, the agency and the courts are bound to give effect to it." de Fuentes, 462 F.3d at 502. The precise question at issue in this case is what date of denial should be treated as the relevant date for determining whether Romero's time served in prison exceeds five years: Romero argues it is the date of initial denial on direct review in 2000 and the government argues that it is the date of subsequent denial following the reopening of the case in 2004.²

"The starting point in interpreting a statute is its language, for `if the intent of Congress is clear, that is the end of the matter.'" Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 409, 113 S.Ct. 2151, 124 L.Ed.2d 368 (1993) (quoting Chevron, 467 U.S. at 842, 104 S.Ct. 2778). In this case, the statute fails to clearly indicate the relevant date for determining whether an alien's time served in prison exceeds five years.³ The former 8 U.S.C. § 1182(c) relevantly states,

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 . . . . The first sentence of this subsection shall not apply to 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).

Although the statute has long been held to apply to the deportation of lawful permanent residents who are presently in the United States, see Ashby v. INS, 961 F.2d 555, 557 n. 2 (5th Cir.1992), on its face, the statute seems only to apply to the exclusion of aliens returning to the United States from abroad. See Byus-Narvaez v. INS, 601 F.2d 879, 881 (5th Cir.1979) (allowing § 212(c) eligibility because it was not contested by the INS, but stating, "By its terms section 212(c) provides no relief to an alien . . . who has never left the country and has never sought readmission subsequent to becoming deportable."). As a result, the language of the statute contemplates determining the eligibility of an alien attempting to enter the country and does not contemplate determining the eligibility of an alien presently in the country, let alone an alien presently serving a term of imprisonment. Because the statute itself does not contemplate that an alien may be in prison at the time of the eligibility determination, the statute fails to unambiguously answer whether time in prison should be determined on the date of initial denial or the date of subsequent denial.⁴

The statutory ambiguity is further emphasized by the government's argument in this case that the statute clearly compels deciding the term of imprisonment on the...