Tobar-Barrera v. Holder
| Decision Date | 29 October 2013 |
| Docket Number | No. 11-1447,11-1447 |
| Parties | ERWIN TOBAR-BARRERA, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Fourth Circuit |
UNPUBLISHED
On Petition for Review of an Order of the Board of Immigration Appeals.
Before GREGORY, DAVIS, and KEENAN, Circuit Judges.
Petition granted in part and denied in part by unpublished opinion. Judge Davis wrote the opinion, in which Judge Gregory joined. Judge Keenan wrote a dissenting opinion.
ARGUED: Timothy William Davis, LAW OFFICE OF TIMOTHY W. DAVIS, LLC, Baltimore, Maryland, for Petitioner. Jonathan Aaron Robbins, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Stuart F. Delery, Acting Assistant Attorney General, William C. Peachey, Assistant Director, Matthew Allan Spurlock, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
Petitioner Erwin Tobar-Barrera ("Tobar-Barrera"), a native and citizen of Guatemala, seeks review of the Board of Immigration Appeals' ("Board") order dismissing his appeal of the decision by an Immigration Judge ("IJ") finding him ineligible for discretionary relief from removal under Section 203 of the Nicaraguan Adjustment and Central American Relief Act ("NACARA").1 The IJ found Tobar-Barrera ineligible because he had been convicted of a disqualifying aggravated felony and ordered him removed. For the reasons that follow, we grant in part and deny in part the petition for review. We vacate the Board's order and remand for further proceedings consistent with this opinion.
The record reveals that the then-operative Immigration and Naturalization Service ("INS") initiated removal proceedings on April 27, 1990. But those proceedings were administratively closed on September 6, 1991 to allow Tobar-Barrera to join a class of Guatemalans who had been offered special process forseeking asylum in the United States.2 For the fourteen years that followed, there was no appreciable change in Tobar-Barrera's immigration status. Tobar-Barrera filed his asylum application in May 2005. His application remained pending for two years, awaiting review by the U.S. Citizenship and Immigration Service ("USCIS"), the agency that now reviews such applications. The application was denied.
According to USCIS, Tobar-Barrera was not entitled to relief because he had a disqualifying aggravated felony conviction, manslaughter. USCIS applied the definition of aggravated felony found in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110Stat. 3009-546 (1996) ("IIRIRA"). IIRIRA broadened the kinds of offenses that qualified as "crime of violence" aggravated felonies by decreasing the requisite imprisonment term from five years to one year. See IIRIRA § 321(a)(3). Under the pre-IIRIRA definition, Tobar-Barrera's manslaughter conviction is not a disqualifying aggravated felony.
Tobar-Barrera's immigration proceedings languished for another two years until the Department of Homeland Security ("DHS") moved to re-calendar his removal proceedings in September 2009 because USCIS had found Tobar-Barrera ineligible for relief. In the interim, Tobar-Barrera attacked USCIS's adverse ruling by filing an action for declaratory and injunctive relief in the United States District Court for the District of Maryland. Tobar-Barrera v. Napolitano, No. 09-3064, 2010 WL 972557 (D. Md. Mar. 12, 2010). The district court ordered the government to provide Tobar-Barrera with a de novo asylum adjudication because USCIS erroneously found him ineligible for relief. Id. at *8. There was no appeal from that ruling.
Tobar-Barrera filed a new application for relief in July 2010. He argued that the record of conviction did not conclusively show that he had committed an aggravated felony and asked the IJ to consider new evidence - his own live testimony - as further proof that he was not convicted of an aggravatedfelony. The IJ ruled that such testimony was inadmissible extrinsic evidence, and therefore could not be considered. She further ruled that Tobar-Barrera's conviction was an aggravated felony under IIRIRA, making him ineligible for relief. For these reasons, she ordered him removed to Guatemala.
Tobar-Barrera appealed to the Board, asserting that the IJ erroneously applied the IIRIRA-amended definition of aggravated felony; that she also erred in failing to consider his live testimony; and that his due process rights were violated by the near twenty-year delay in the Attorney General's prosecution of his removal proceedings. The Board affirmed the IJ's order and dismissed the appeal.
Tobar-Barrera filed a timely petition for review in this Court. He contends that the Board erred in concluding that IIRIRA's definition of "aggravated felony" applied to him.3
We have carefully reviewed the record and fully considered the oral arguments of counsel.
Because the Board adopted the findings and reasoning of the IJ, we review her decision as supplemented by the Board. Niang v. Gonzales, 492 F.3d 505, 511 n.8 (4th Cir. 2007). The Board's determination that Tobar-Barrera's conviction is an aggravated felony is a legal issue we review de novo. See Mbea v. Gonzales, 482 F.3d 276, 279 (4th Cir. 2004). For reasons that follow, we grant, in part, the petition for review, finding as we do that the Board erroneously applied the IIRIRA-amended definition to the particular facts and circumstances of Tobar-Barrera's case.
There is no question that the definition of "aggravated felony" changed while Tobar-Barrera's case was pending before the agency. In 1996, Congress, through IIRIRA, amended the definition of "aggravated felony" set forth in the Immigration and Nationality Act ("INA"), 8 U.S.C § 1101 (a)(43)(F) (2013). IIRIRA modified the INA's definition of aggravated felony in a way that would make it more difficult for an alien to obtain relief in future removal proceedings.4 In enacting the IIRIRAamendments, Congress provided that "[t]he amendments made by this section shall apply to actions taken on or after the date of the enactment of this Act [September 30, 1996], regardless of when the conviction occurred." IIRIRA § 321(c) (emphasis added).
Thus, the interpretation of IIRIRA section 321(c) is the source of the present dispute. See Garrido-Morato v. Gonzales, 485 F.3d 319, 323 (5th Cir. 2007) (). The Board, in affirming the IJ's ruling, found that the IJ properly applied the IIRIRA-amended definition of aggravated felony to conclude that Tobar-Barrera's conviction rendered him ineligible for NACARA relief. The Attorney General agrees, of course, relying primarily on Third and Fifth Circuit rulings that the term "actions taken" under section 321(c) refers to the Attorney General's efforts to give effect to that particular section of IIRIRA (i.e., determining the meaning of "aggravated felony" to assess whether an ex-felon is eligible for discretionary relief). Garrido-Morato, 485 F.3d at 324; Biskupski v. Att'y Gen., 503 F.3d 274, 283 (3d Cir. 2007). Ineffect, these circuits found that Congress intended that section 321(c) apply retroactively to all adjudications occurring on and after the date of enactment. Garrido-Morato, 485 F.3d at 324; Biskupski, 503 F.3d at 281-283. See also Valderrama-Fonseca v. I.N.S., 116 F.3d 853, 856-57 (9th Cir. 1997); Xiong v. I.N.S., 173 F.3d 601, 607 (7th Cir. 1999); Choeum v. I.N.S., 129 F.3d 29, 36-37 (1st Cir. 1997).
Tobar-Barrera, however, argues for a more narrow interpretation of the term and contends that "actions taken" refers to the point at which the Attorney General began its initial removal proceedings which, in this case, was in April 1990. For support, Tobar-Barrera cites to the Sixth Circuit's decision in Saqr v. Holder, holding that "the term 'action taken' . . . derive[s] from the point at which the removal action begins for purposes of determining whether the pre- or post-IIRIRA definition of aggravated felony applies." 580 F.3d 414, 422 (6th Cir. 2009). Tobar-Barrera has the better argument.
We reject the Attorney General's contention that we should take the approach of the Fifth and Third Circuits in this case. This is because we decline to interpret the statute to say something that Congress chose not to say. There is no question that Congress intended the amended definition of "aggravated felony" to have some retroactive effect, in the sense that the new definition of "aggravated felony" would apply no matter whensuch convictions become final. But Congress did not say, as it well knows how to say when it chooses, that the amended definition would apply in all proceedings "'pending on or after the date of enactment of the Act.'" Cf., e.g., Mueller v. Angelone, 181 F.3d 557, 566 n.4 (4th Cir. 1999)(discussing § 107(c) of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, § 105, 110 Stat. 1214, 1220); Sanders v. Allison Engine Co., Inc., 703 F.3d 930, 934 (6th Cir. 2012)(discussing § 4(f)(1) of the Fraud Enforcement and Recovery Act of 2009, Pub. L. No. 111-21, 123 Stat. 1617, 1625). Rather, Congress limited the retroactive application of the amended definition of "aggravated felony" by saying, instead, that the new definition would apply to "actions taken" on and after the date of enactment. The question posed, then, is what does the limitation enacted by Congress mean?
If we give conclusive effect to post-enactment decisions of an IJ or of the Board as "actions taken" to long-pending removal proceedings, as in this case, then we would be reading out of the statute the very limitation on retroactivity Congress intended. We simply do not believe that is a plausible interpretation of Congress's...
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