De La Rosa v. U.S. Attorney General

• Court: U.S. Court of Appeals — Eleventh Circuit
• Writing for the Court: Per Curiam
• Citation: De La Rosa v. U.S. Attorney General, 579 F.3d 1327 (11th Cir. 2009)
• Decision Date: 20 August 2009
• Docket Number: No. 08-13861.
• Parties: Jose Erasmo DE LA ROSA, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.

579 F.3d 1327

Jose Erasmo DE LA ROSA, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.

No. 08-13861.

United States Court of Appeals, Eleventh Circuit.

August 20, 2009.

Maria I. Casablanca, Miami, FL, for Petitioner.

Stuart S. Nickum, David V. Bernal, Anthony Cardozo Payne, USDOJ, OIL, Civ. Div., Washington, DC, for Respondent.

Petition for Review of a Decision of the Board of Immigration Appeals.

Before DUBINA, Chief Judge, and BIRCH and WILSON, Circuit Judges.

PER CURIAM:

This case presents us with an issue of first impression in our circuit. Jose Erasmo De la Rosa ("De la Rosa") petitions for review of the Board of Immigration Appeals' ("BIA") decision affirming the Immigration Judge's ("IJ") determination that he was statutorily ineligible for a waiver of his deportation charge. He contends that his conviction of the aggravated felony of sexual abuse of a minor qualifies him to apply for a waiver of deportation pursuant to the former Immigration and Nationality Act ("INA") § 212(c), 8 U.S.C. § 1182(c) (repealed 1996) ("§ 212(c) waiver"). We disagree and AFFIRM.

I. BACKGROUND¹

In June 2004, De la Rosa was issued a Notice to Appear ("NTA"). The NTA alleged that De la Rosa, although having been legally admitted to the United States, was deportable² because (1) he was from the Dominican Republic and was not a citizen or a national of the United States; (2) he was admitted to the United States in March 1989 as an immigrant; and (3) in 1995, he was convicted in a Florida court of committing a lewd act upon a child under the age of sixteen in violation of Florida Statute § 800.04(3). The NTA charged that De la Rosa was subject to deportation from the United States pursuant to INA §§ 237(a)(2)(A)(iii)³ and 237(a)(2)(E)(i) because he had been convicted both of an aggravated felony as defined in INA § 101(a)(43)(A)—a law relating to murder, rape, or sexual abuse of a minor—and a crime of domestic violence, i.e., child abuse. The record indicates that De la Rosa pled nolo contendere to his aggravated felony charge.

De la Rosa admitted to the allegations in the NTA and conceded that he was deportable but sought relief in the form of a § 212(c) waiver. The government moved to pretermit his application for a § 212(c) waiver and maintained that De la Rosa's aggravated felony conviction rendered him ineligible for § 212(c) relief in accordance with the BIA's decision in In re Blake, 23 I. & N. Dec. 722 (BIA 2005). The IJ agreed, pretermitted De la Rosa's application for § 212(c) relief, and ordered him removed from the United States.

De la Rosa appealed to the BIA and claimed, inter alia, that his aggravated felony conviction constituted a "crime involving moral turpitude" as contemplated by INA § 212(a)(2), thus allowing him to apply for the § 212(c) waiver. Administrative Record ("AR") at 11-13. The BIA disagreed, dismissed the appeal, and found that Blake precluded De la Rosa from obtaining a § 212(c) waiver. The BIA reasoned that "[a]s the aggravated felony ground of removal applicable in this case ... has no statutory counterpart in the grounds of inadmissibility under section 212(a) of the Act, the aggravated felony charge cannot be waived as a ground of deportability under former section 212(c)." Id. at 2.

Although the question presented in this case concerns De la Rosa's eligibility for a § 212(c) waiver, our full consideration of that issue demands a close analysis of both the history of INA § 212(c) and how that provision has been interpreted by our sister circuits. Accordingly, we indulge in a brief survey of the legal landscape in this area.

A. History of INA § 212(c), 8 U.S.C. § 1182(c)

INA § 212(c) concerns only persons in exclusion proceedings. The statutory language in INA § 212(a) lists classes of excludable aliens who are ineligible for admission to the United States.⁴ INA § 212(a); 8 U.S.C. § 1182(a). INA § 212(c), however, vests the Attorney General with the discretion to waive exclusion for "[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."⁵ 8 U.S.C. § 1182(c) (repealed 1996). Even though INA § 212(c) was repealed by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"),⁶ relief remains available to 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." INS v. St. Cyr, 533 U.S. 289, 326, 121 S.Ct. 2271, 2293, 150 L.Ed.2d 347 (2001); see also Alexandre, 452 F.3d at 1207 (stating that those who had pled nolo contendere prior to April 1997 could seek § 212(c) relief pursuant to 8 C.F.R. § 1003.44). Because De la Rosa pled nolo contendere to the crime rendering him deportable in 1995, he was eligible to apply for § 212(c) relief.

As we have noted, on its face § 212(c) applies only to exclusion proceedings. That said, the Department of Homeland Security (formerly the Immigration and Naturalization Service ("INS")) has, for several decades, permitted aliens subject to deportation to seek § 212(c) relief nunc pro tunc.⁷ The rationale for the expansion was that if the INS allowed a resident alien to reenter the country even though he was excludable and then later sought to deport him, the alien should not be put in a worse position than if he had been excluded in the first instance. See Matter of G-A-, 7 I. & N. Dec. 274, 275-76 (BIA 1956). In a previous recitation of § 212(c)'s tortuous history, we explained how this extension produced inequities in its application. See Farquharson v. U.S. Att'y Gen., 246 F.3d 1317, 1323 (11th Cir.2001). "While one resident alien who became deportable and then voluntarily left the country became eligible for waiver upon reentry, another alien who was deportable for the same reason but never left the country had no recourse." Id.

In Francis v. INS, 532 F.2d 268, 272 (2d Cir.1976), the Second Circuit addressed this distinction and concluded that it was "not rationally related to any legitimate purpose of the statute." Id. Instead of striking the statute, however, the Second Circuit elected to extend § 212(c) relief to deportable aliens regardless of whether they had left the United States after committing the act rendering them deportable. See id. at 273. The BIA quickly adopted the reasoning of Francis and likewise extended § 212(c) relief to deportable aliens. See Matter of Silva, 16 I. & N. Dec. 26, 30 (BIA 1976).

The BIA later qualified the extension in Matter of Wadud, 19 I. & N. Dec. 182 (BIA 1984). In Wadud, the BIA settled upon the comparable grounds test as a means of determining whether a deportee and an excludee were similarly situated. Under the test, eligibility for § 212(c) relief turned on whether the "ground of deportation charged is also a ground of inadmissibility." Id. at 184 (citations omitted). The BIA expressly "decline[d] to expand the scope of section 212(c) relief in cases where the ground of deportability charged is not also a ground of inadmissibility." Id. at 185.

In 1991, the BIA softened the comparable grounds test somewhat in Matter of Meza, 20 I. & N. Dec. 257 (BIA 1991). In Meza, the BIA applied the statutory framework to an alien deportable for an aggravated felony conviction. Although no ground of exclusion expressly references "aggravated felonies," the BIA nonetheless concluded that " a waiver under section 212(c) is not unavailable to an alien convicted of an aggravated felony simply because there is no ground of exclusion [in § 212(a)] which recites the words, `convicted of an aggravated felony.'" Id. at 259. Instead, the BIA looked to whether the "specific category of aggravated felony at issue" had a comparable ground of inadmissibility in § 212(a). Id. The BIA ultimately determined that an alien deportable for an aggravated felony of "illicit trafficking in any controlled substance," as defined in INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), was eligible for a § 212(c) waiver because the category of aggravated felony had a statutory counterpart of inadmissibility in INA § 212(a)(23), 8 U.S.C. § 1182(a)(23).⁸ Id.

The comparable grounds test gathered ascendent strength in Matter of Montenegro, 20 I. & N. Dec. 603 (BIA 1992), and Matter of Esposito, 21 I. & N. Dec. 1 (BIA 1995), both of which also effectively worked to isolate Meza. In Montenegro, the respondent was found deportable based on his conviction for assault with a firearm. See Montenegro, 20 I. & N. Dec. at 605. The respondent argued eligibility for § 212(c) relief under Meza because his assault conviction constituted a crime of moral turpitude—a comparable ground of exclusion for purposes of § 212(c) eligibility. See id. The BIA disagreed and distinguished Meza, limiting it to "the unique situation created by the language and legislative history of an amendment to section 212(c) by [the Immigration Act of 1990], which indicated that some aggravated felons are eligible for a section 212(c) waiver in deportation proceedings even though there is no single comparable ground of exclusion based on conviction of an aggravated felony." Id.

Likewise, in Esposito, the BIA again rejected the respondent's argument that his ineligibility for § 212(c) relief due to a lack of a comparable exclusion ground was cured because his offense supported some ground of excludability. See Esposito, 21 I. & N. Dec. at 9. As stated by the BIA, "[w]hile the respondent could be deemed inadmissible within the meaning of section 212(a)(10) of the Act based in part on his firearms violation, this does not make him eligible for section 212(c) relief. [His] firearms conviction standing alone supports a charge of deportation under section 241(a)(14), [he] has in fact been found deportable based on this charge, and section 212(c) cannot...