Valere v. Gonzales

• Citation: 473 F.3d 757
• Decision Date: 11 January 2007
• Docket Number: No. 05-2968.,05-2968.
• Parties: Jean M. VALERE, Petitioner, v. Alberto R. GONZALES, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

473 F.3d 757

Jean M. VALERE, Petitioner, v. Alberto R. GONZALES, Respondent.

No. 05-2968.

United States Court of Appeals, Seventh Circuit.

Argued March 31, 2006.

Decided January 11, 2007.

William A. Quiceno (argued), Kempster, Keller & Lenz-Calvo, Chicago, IL, for Petitioner.

Karen Lundgren, Department of Homeland Security Office of the Chief Counsel, Chicago, IL, Papu Sandhu, Patricia A. Smith (argued), Department of Justice Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before ROVNER, EVANS, and SYKES, Circuit Judges.

SYKES, Circuit Judge.

Jean Marie Valere, a citizen of Haiti, was admitted to the United States as a lawful permanent resident in 1968, when he was ten years old. In 1994 he pleaded guilty to indecent assault of a child in Florida. Based on that conviction, the United States identified Valere as an aggravated felon and in 1998 initiated removal proceedings against him. Valere eventually sought relief under § 212(c) of the Immigration and Naturalization Act ("INA"), 8 U.S.C. § 1182(c) (1994), which was repealed in 1996 but under INS v. St. Cyr, 533 U.S. 289, 326, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), remains available to aliens who pleaded guilty to an aggravated felony prior to the effective date of the repeal and would have been eligible for relief under the law then in effect. An Immigration Judge ("IJ") granted relief, but the Board of Immigration Appeals ("BIA") reversed, relying on In re Blake, 23 I. & N. Dec. 722 (B.I.A.2005), which held that an alien removable on the basis of a conviction for sexual abuse of a minor is ineligible for relief under § 212(c) because that crime has no statutory counterpart in § 212(a) of the INA, 8 U.S.C. § 1182(a).

In his petition for review, Valere argues that Blake and a 2004 regulation codifying the "statutory counterpart" rule for determining a removable alien's eligibility for § 212(c) relief have an impermissibly retroactive effect as applied to his case. He also asserts that the "statutory counterpart" requirement violates equal protection. We deny the petition for review.

I. Background

Valere came to the United States from Haiti in 1968, at age ten, and was admitted as a legal permanent resident. In 1994 he pleaded guilty to a Florida charge of indecent assault of a child and was sentenced to four-and-a-half years' imprisonment. In 1998 the Department of Homeland Security ("DHS") (then called the Immigration and Naturalization Service or "INS") issued a Notice to Appear, charging that Valere was deportable under § 237(a)(2)(A)(iii) of the INA, 8 U.S.C. § 1227(a)(2)(A)(iii) (1998), as an alien convicted of an aggravated felony, and under § 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i) (1998), as an alien convicted of a crime of domestic violence, stalking, child abuse, child neglect, or child abandonment.

At Valere's initial removal hearing, the IJ held that the INS had established Valere's status as an aggravated felon, see 8 U.S.C. § 1101(a)(43)(A) (1998), and ordered him removed to Haiti. Valere unsuccessfully appealed this decision to the BIA. In July 2003 the DHS detained Valere to execute the removal order against him. At this point Valere moved to reopen his removal proceedings, citing St. Cyr, in which the Supreme Court held that § 212(c) relief remained available, despite its repeal, to aliens whose criminal convictions were obtained through guilty pleas prior to the effective date of the repeal and who would have been eligible to apply for § 212(c) relief under the law in effect at the time of the plea. St. Cyr, 533 U.S. at 326, 121 S.Ct. 2271. The IJ granted Valere's motion to reopen on the basis of St. Cyr.

After a change of venue from Miami to Chicago, Valere submitted his § 212(c) waiver application, which the IJ granted after a merits hearing. The DHS appealed, and during the pendency of the appeal, the BIA issued its ruling in Blake, holding that an alien deportable because of a conviction for sexual abuse of a minor is not eligible for a § 212(c) waiver because there is no statutory counterpart to that offense in the enumerated grounds for inadmissibility in § 212(a). Relying on Blake, the BIA reversed the IJ's decision and ordered Valere removed to Haiti. Valere petitioned for review in this court.

II. Discussion

Aliens who have committed certain crimes generally may not be admitted to the United States. 8 U.S.C. § 1182(a)(2) (2000). The current § 212(a) of the INA enumerates the grounds, including the commission of certain crimes, which render an alien inadmissible. Under former § 212(c), in effect at the time Valere entered his guilty plea to indecent assault of a child, the Attorney General was authorized to grant discretionary admission to an otherwise excludable alien ("inadmissibility" was formerly known as "exclusion"). 8 U.S.C. § 1182(c) (1994). Former § 212(c) allowed a discretionary waiver of inadmissibility for permanent resident aliens who voluntarily left the United States, sought reentry, and were returning to a "lawful unrelinquished domicile" of seven (or in some cases, ten) years. Id. Not all returning aliens were eligible to apply for a § 212(c) waiver, however; an amendment passed in 1990 prohibited § 212(c) relief for aliens convicted of aggravated felonies who served terms of imprisonment of five years or more. Immigration Act of 1990, Pub.L. No. 101-649, § 511, 104 Stat. 4978, 5052 (1990) (amending 8 U.S.C. § 1182).

By its terms, former § 212(c) applied only to lawful resident aliens who were denied admission to the United States after voluntarily leaving the country and then attempting reentry. 8 U.S.C. § 1182(c) (1994). But in Francis v. INS, 532 F.2d 268 (2d Cir.1976), the Second Circuit expanded the statute's applicability, making § 212(c) waivers available to aliens who had not left the country at all but were subject to removal (formerly know as "deportation") on grounds substantially similar to the enumerated grounds for inadmissibility in § 212(a). See Leal-Rodriguez v. INS, 990 F.2d 939, 948-49 (7th Cir.1993). Applying a minimal-scrutiny equal protection analysis, the court in Francis held there was no rational basis for making § 212(c) relief available only to inadmissible aliens seeking reentry and not to similarly situated deportable aliens who had not left the country. Francis, 532 F.2d at 272-73.

In In Matter of Silva, 16 I. & N. Dec. 26 (B.I.A.1976), the BIA adopted the Second Circuit's position. Leal-Rodriguez, 990 F.2d at 949; see also Kim v. Gonzales, 468 F.3d 58, 60 (1st Cir.2006). Thus, § 212(c) eligibility was extended to removable aliens who had not left the country, but only if the removable alien was situated similarly to a returning inadmissible alien. That is, a removable (deportable) alien was eligible to apply for § 212(c) relief provided that the ground for his removability had a statutory counterpart in the enumerated grounds for inadmissibility in § 212(a). Leal-Rodriguez, 990 F.2d at 949; see also Kim, 468 F.3d at 62-63; Drax v. Reno, 338 F.3d 98, 107-08 (2d Cir.2003).

The passage of the Antiterrorism and Effective Death Penalty Act ("AEDPA") in 1996 wrought more changes in § 212(c), identifying certain convictions that would make an alien ineligible for waiver consideration. Pub.L. No. 104-132, § 440(d), 110 Stat. 1214, 1277 (1996) (amending 8 U.S.C. § 1182). Later that same year, the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA") repealed § 212(c) altogether, replacing it with 8 U.S.C. § 1229b. Pub.L. 104-208, 110 Stat. 3009-594 (creating 8 U.S.C. § 1229b). Section 1229b grants the Attorney General authority to cancel removal only for certain classes of inadmissible or deportable aliens, but excludes from consideration aliens previously convicted of aggravated felonies. 8 U.S.C. § 1229b. Section 1229b applies to aliens in removal proceedings after April 1, 1997. Velez-Lotero v. Achim, 414 F.3d 776, 780 (7th Cir.2005).

In October 2004 the DHS promulgated 8 C.F.R. § 1212.3, which codified the judicially created "statutory counterpart" rule noted above, as well as the Supreme Court's decision in St. Cyr, which held that "the repeal of § 212(c) was impermissibly retroactive as applied to aliens who pleaded guilty prior to IIRIRA's effective date in the expectation that they would continue to be eligible for § 212(c) waivers." Velez-Lotero, 414 F.3d at 780. More specifically, § 1212.3(h) permits § 212(c) relief for aliens who pleaded guilty before April 1, 1997, the date the 1996 repeal of § 212(c) took effect. Section 1212.3(f)(5) states that an alien is ineligible for a former § 212(c) waiver if he is deportable or removable "on a ground which does not have a statutory counterpart in section 212 of the Act."

The BIA held that Valere was ineligible for a § 212(c) waiver because under the authority of Blake, the aggravated felony for which he was being deported— indecent assault of a minor—had no statutory counterpart in § 212(a). In Blake, the BIA traced the evolution of the statutory counterpart rule, codified in § 1212.3(f)(5), and held that the crime of sexual abuse of a minor had no statutory counterpart in § 212(a). The BIA rejected the petitioner's argument that § 212(a)'s broad "crime of moral turpitude" ground for exclusion was a statutory counterpart to sexual abuse of a minor, holding that "the moral turpitude ground of exclusion addresses a distinctly different and much broader category of offenses than the aggravated felony sexual abuse of a minor charge." Blake, 23 I. & N. Dec. at 728. Blake held that while there need not be a "perfect match" in order to satisfy the "statutory counterpart" requirement, an "overlap" in categories of crimes — even a "considerable overlap" — is not enough. "[W]hether a ground of deportation or removal has a statutory counterpart in the provisions for exclusion or inadmissibility turns on whether Congress has employed similar language to describe substantially...