Savoury v. U.S. Atty. Gen., No. 05-10966.

• Decision Date: 25 May 2006
• Docket Number: No. 05-10966.
• Citation: 449 F.3d 1307
• Parties: Karl SAVOURY, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1307

449 F.3d 1307

Karl SAVOURY, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.

No. 05-10966.

United States Court of Appeals, Eleventh Circuit.

May 25, 2006.

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Marshall L. Cohen, Cohen & Associates, Atlanta, GA, for Savoury.

David J. Pettinato, David V. Bernal, S. Nicole Nardone, OIL, Washington, DC, for U.S. Atty. Gen.

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

Before CARNES, WILSON and PRYOR, Circuit Judges.

CARNES, Circuit Judge:

Karl Savoury lawfully entered the United States as a visitor from Jamaica in 1984. In September 1988 he was arrested on state drug charges in Newark, New Jersey. In March 1991 while those charges were pending, Savoury married a citizen of this country and later that same month he filed for an adjustment of status based on his marriage. At his adjustment interview, Savoury told the INS officer about his arrest and the pending criminal charges. The officer asked Savoury to inform him about the final disposition of the criminal charges.

On May 18, 1992, Savoury pleaded guilty to and was convicted of possession of cocaine with intent to distribute in the third degree, a felony, and his counsel thereafter provided the INS officer who had conducted the adjustment of status interview with a letter informing him of the conviction. On August 5, 1992, the INS adjusted Savoury's status to lawful permanent resident. (The cases sometimes refer to this status as simply "permanent resident" and so will we.) Under 8 U.S.C. § 1186a(a)(1), when an adjustment to that status is based on marriage to a citizen that was entered into less than twenty-four months previously, the adjustment is conditional. In the ninety-day period before the second anniversary of the grant of status, the alien and spouse must submit a joint application to remove the conditional basis. Id. at § 1186a(c) & (d). The Savourys did that, and on August 18, 1994 the INS granted their application to remove the conditional basis of his permanent resident status.

Thereafter Savoury filed an application for naturalization, but it was denied because of insufficient evidence of child support. The denial document did not mention Savoury's conviction. Savoury requested a review of the denial, and the INS affirmed it on September 5, 2002. Records from Savoury's naturalization proceedings confirm that the INS had knowledge of his conviction at the time his status was adjusted to permanent resident. The "Continuation Processing Worksheet" of Savoury's application for naturalization included a notation, dated May 6, 2002, which states: "As per consultation with a SDAO [Supervisory District Adjudications Officer], the Service knew about this conviction at the time of adjustment, therefore, we have to DNR this arrest." At oral argument counsel for Savoury stated that "DNR" stands for "Do Not Relate" and means that the INS would not relate or connect the arrest to Savoury's file. The INS has not contended that "DNR" has any other meaning.

After a brief trip abroad, Savoury attempted to reenter this country on December 2, 2002. The INS detained him and issued a notice to appear, charging him with removability under INA § 212(a)(2)(A)(i)(II) on the ground that he was inadmissible due to his prior conviction. After an amendment to the notice to appear regarding his conviction date, Savoury admitted the allegations in the notice but denied removability and requested relief under INA § 212(c). After a hearing, the immigration judge determined that Savoury was removable under INA § 212(a)(2)(A)(i)(II) and that he was also ineligible for § 212(c) relief because his original adjustment to permanent resident status was not lawful. The BIA agreed with the IJ and dismissed Savoury's appeal. Savoury petitioned us for review.

I.

The first thing we must decide is whether to grant the government's motion to dismiss the petition for lack of jurisdiction. That motion is based on this provision of the INA:

Notwithstanding any other provision of law ... no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in section 1182(a)(2) ... of this title.

8 U.S.C. § 1252(a)(2)(C). Those words fit Savoury's petition for review because his state drug offense conviction is covered by § 1182(a). See 8 U.S.C. § 1182(a)(2)(A)(i)(II).

Even though § 1252(a)(2)(C) says what it does, courts still have jurisdiction not only to decide if the conditions that bar jurisdiction exist—whether the petitioner (1) is an alien (2) who is removable (3) by reason of having committed a crime covered by § 1252(a)(2)(C)—but also to decide any substantial constitutional challenges. Sebastian-Soler v. U.S. Att'y Gen., 409 F.3d 1280, 1283 (11th Cir.2005). In its motion to dismiss, the government contends that because Savoury fits the criteria that bar jurisdiction and raises no substantial constitutional challenges, we lack jurisdiction to rule on the merits of his petition.

After the government filed its motion to dismiss, however, the REAL ID Act of 2005 became law. It added to the law a provision now codified as 8 U.S.C. § 1252(a)(2)(D), which states:

Nothing in subparagraph (B) or (C), or in any other provision of this chapter (other than this section) which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section.

8 U.S.C. § 1252(a)(2)(D). That provision applies retroactively "to all pending proceedings regardless of the date of the final administrative order." Balogun v. U.S. Att'y Gen., 425 F.3d 1356, 1360 (11th Cir. 2005); see also Tovar-Alvarez v. U.S. Att'y Gen., 427 F.3d 1350, 1352 (11th Cir. 2005) (recognizing that the REAL ID Act has given this Court jurisdiction to review questions of law raised in a petition for review even though § 1252(a)(2)(C) applied). In his petition, Savoury does not dispute the BIA's factual determinations but raises questions of law. Because of § 1252(a)(2)(D) we have jurisdiction to decide those legal issues. Savoury prevails on the jurisdictional issue; but that is all he is entitled to prevail on in this proceeding.

II.

When the BIA issues a decision we review only that decision, except to the extent that it expressly adopts the immigration judge's decision. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). To the extent that the BIA does adopt the IJ's reasoning, we review the IJ's reasoning as well. Id. In this case the Board expressly adopted and affirmed the IJ's decision with a few additions, so we will review his decision as supplemented by the Board. On a petition for review of a final order of removal, we will defer to the BIA's statutory interpretation if it is reasonable. Brooks v. Ashcroft, 283 F.3d 1268, 1272 (11th Cir.2002). Naturally, if we would have reached the same interpretation ourselves we will inevitably decide that it is a reasonable one.

At the hearing and after it Savoury admitted the factual allegations charged in the notice to appear. The notice to appear charged Savoury with being removable pursuant to "[s]ection 212(a)(2)(A)(i)(II) of the Immigration and Nationality Act, as amended, in that you are an alien who has been convicted of, or admits having committed, or admits committing acts which constitute the essential elements of, a violation or a conspiracy or attempt to violate any law or regulation of a State ... relating to a controlled substance." He does not dispute that he was convicted of state felony drug charges or that it made him removable under INA § 212(a)(2)(A)(i)(II), 8 U.S.C. § 1182(a)(2)(A)(i)(II). Savoury requested relief under former INA § 212(c), which provided:

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.

Jaramillo v. INS, 1 F.3d 1149, 1151 (11th Cir.1993) (quoting the since repealed INA § 212(c), 8 U.S.C. § 1182(c) (emphasis added)). Savoury contends that he is eligible for § 212(c) relief because he is an alien lawfully admitted for permanent residence who, when detained, was returning to his lawful unrelinquished domicile of seven consecutive years in the United States after a brief, voluntary trip abroad.

Section 212(c) was repealed in 1996, but the Supreme Court partially extended its availability in INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). The St. Cyr decision holds 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. at 326, 121 S.Ct. at 2293. Savoury pleaded guilty in 1992 while § 212(c) was still in effect. Under St. Cyr he could apply for relief from the removability that arose from his conviction, which made him removable under 8 U.S.C. § 1182(a)(2)(A)(i)(II). In order to obtain § 212(c) relief, however, Savoury had to demonstrate that he was "lawfully admitted for permanent residence" and was "returning to a lawful unrelinquished domicile of seven consecutive years." See INA § 212(c) (repealed 1996). The duration of his unrelinquished domicile has never been disputed, but the nature of that domicile or his status during it has been and is the central contest of this appeal.

The immigration judge did not question that the INS knew of Savoury's conviction at the time it adjusted him to lawful permanent resident status in 1992, but the judge believed that made no difference. He determined that Savoury was not entitled to § 212(c) relief...