Velez-Lotero v. Achim

• Decision Date: 11 July 2005
• Docket Number: No. 04-2466.,04-2466.
• Citation: 414 F.3d 776
• Parties: Nelson I. VELEZ-LOTERO, Petitioner-Appellee, v. Deborah ACHIM, Interim Field Office Director, U.S. Immigration and Customs Enforcement, Michael Garcia, Assistant Secretary of U.S. Immigration and Customs Enforcement, Alberto R. Gonzales, Attorney General of the United States, et al., Respondents-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

414 F.3d 776

Nelson I. VELEZ-LOTERO, Petitioner-Appellee, v. Deborah ACHIM, Interim Field Office Director, U.S. Immigration and Customs Enforcement, Michael Garcia, Assistant Secretary of U.S. Immigration and Customs Enforcement, Alberto R. Gonzales, Attorney General of the United States, et al., Respondents-Appellants.

No. 04-2466.

United States Court of Appeals, Seventh Circuit.

Argued January 13, 2005.

Decided July 11, 2005.

James C. Ten Broeck, Jr. (argued), Chicago, IL, for Petitioner-Appellee.

Sheila M. Entenman, Office of the United States Attorney, Chicago, IL, Papu Sandhu (argued), Dept. of Justice Civil Div., Immigration Litigation, Washington, DC, for Respondents-Appellants.

Before ROVNER, EVANS and SYKES, Circuit Judges.

SYKES, Circuit Judge.

Nelson Velez-Lotero, a citizen of Columbia, pled guilty to a controlled substance offense in Illinois in 1995 and was later ordered deported on the basis of that conviction. After serving almost seven years of a seventeen-year prison sentence, Velez-Lotero was paroled and his custody was transferred to immigration authorities. He then filed a motion to reopen his case in the immigration court, claiming eligibility for discretionary waiver of inadmissibility under § 212(c) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(c), notwithstanding his conviction.

Section 212(c) was repealed by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"); it was replaced by a narrower discretionary relief provision that excludes from eligibility anyone previously convicted of an aggravated felony, including drug offenses like Velez-Lotero's. However, in INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), the Supreme Court held that the repeal could not be retroactively applied to aliens whose convictions were obtained by guilty pleas entered prior to IIRIRA's effective date. The immigration judge ("IJ") denied Velez-Lotero's motion to reopen, concluding that although the repeal of § 212(c) could not be applied to Velez-Lotero under St. Cyr, he was otherwise ineligible for § 212(c) discretionary relief because pre-IIRIRA law precluded such relief for aliens who had served five years or more in prison on an aggravated felony conviction.

The district court granted Velez-Lotero's habeas corpus petition, holding that under St. Cyr, eligibility for § 212(c) discretionary relief is determined at the time of the alien's guilty plea. On this reading of St. Cyr, the district court concluded that Velez-Lotero was eligible for § 212(c) relief because at the time of his guilty plea he had not yet served five years' imprisonment.

We reverse. The district court misapplied St. Cyr. The retroactive application of the repeal of § 212(c) is not at issue here. In denying Velez-Lotero's motion to reopen, the IJ did not retroactively apply IIRIRA's repeal of § 212(c); rather, the immigration judge concluded, correctly, that Velez-Lotero was ineligible for § 212(c) relief under pre-IIRIRA law because at the time he applied for relief he had served more than five years in prison on an aggravated felony conviction.

I. Background

Velez-Lotero, a native and citizen of Columbia, entered the United States in 1986 as an immigrant. On February 1, 1995 he pled guilty to possession of a controlled substance with intent to deliver in Illinois state court and was sentenced to a seventeen-year term of imprisonment. In August of 1996, the Immigration and Naturalization Service issued an order to show cause, charging Velez-Lotero with deportability under sections 241(a)(2)(A)(iii) and 241(a)(2)(B)(i) of the INA. At a deportation hearing on March 4, 1997, Velez-Lotero admitted the allegations contained in the order, conceded deportability, and sought no relief. The IJ ordered him deported to Columbia and Velez-Lotero did not appeal.

On February 1, 2002, after serving almost seven years in prison, Velez-Lotero was paroled and his custody was transferred to immigration authorities. On June 19, 2002, he moved to reopen his deportation case, claiming eligibility for discretionary relief under § 212(c) of the INA, 8 U.S.C. § 1182(c) and citing the Supreme Court's then-recent decision in St. Cyr. In St. Cyr, the Supreme Court held that the repeal of § 212(c) was impermissibly retroactive when applied to aliens who pled guilty prior to IIRIRA's effective date; therefore, the Court concluded, discretionary relief under § 212(c) "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." St. Cyr, 533 U.S. at 326, 121 S.Ct. 2271.

In his motion to reopen, Velez-Lotero asserted that under 8 U.S.C. § 1182(c) (1994) — the "law then in effect" at the time of his plea — § 212(c) relief was available to a criminal alien facing deportation who had not served five years' imprisonment. Velez-Lotero contended that because he had not served five years in prison at the time of his guilty plea, he was eligible for § 212(c) relief pursuant to the Supreme Court's decision in St. Cyr. Velez-Lotero also requested protection under Article 3 of the United Nations Convention Against Torture.

The IJ held that Velez-Lotero was ineligible for a § 212(c) waiver because he requested relief only after serving more than five years in prison for an aggravated felony, which made him statutorily ineligible under the law as it stood at the time of his plea. The IJ also ruled that Velez-Lotero's petition for relief under the Convention Against Torture was untimely; aliens seeking relief under the Convention and whose deportation orders became final before March 22, 1999, must have filed their motions to reopen by June 21, 1999. See 8 C.F.R. § 208.18(b)(2). Velez-Lotero's deportation order became final shortly after March 4, 1997, so he was required to file for relief by June 21, 1999, but did not. In denying Velez-Lotero's claim under the Convention, the IJ did not consider Velez-Lotero's argument that the June 21, 1999, filing deadline was arbitrary and capricious, being only three months after the legislation came into effect.

Velez-Lotero appealed to the Board of Immigration Appeals ("BIA"), which affirmed the IJ's decision without opinion under its streamlining procedure. See 8 C.F.R. § 1003.1(e)(4). He then sought review in this court, but we dismissed the petition pursuant to the jurisdiction-stripping provisions of IIRIRA. See 8 U.S.C. § 1252(a)(2)(c); Calcano-Martinez v. INS, 533 U.S. 348, 121 S.Ct. 2268, 150 L.Ed.2d 392 (2001). Velez-Lotero then filed a petition for a writ of habeas corpus in the district court. The district court granted relief, remanding the case to the IJ for a new hearing. Velez-Lotero v. Achim, 312 F.Supp.2d 1097, 1098 (N.D.Ill.2004). The court read St. Cyr to require that Velez-Lotero's eligibility for § 212(c) relief be determined as of the time of his guilty plea; because Velez-Lotero had not served five years' imprisonment at the time of his plea, the court held he was not precluded from § 212(c) eligibility under pre-IIRIRA law. Id.

In reaching this conclusion, the court noted that prior to § 212(c)'s repeal, the BIA had held that "[t]he plain language of section 212(c) ... now bars such relief to any alien who has been convicted of an aggravated felony or felonies and who `has served,' not merely been sentenced to, a term of imprisonment of at least five years." Id. (quoting In re Ramirez-Somera, 20 I & N Dec. 564, 566 (BIA 1992)). The district court reasoned that under St. Cyr, the operative date for determining § 212(c) eligibility is the date of the alien's guilty plea. Id. at 1100. Velez-Lotero obviously had not served five years in prison for an aggravated felony at the time of his guilty plea, so the district court concluded that he remained eligible for § 212(c) relief under St. Cyr and the denial of his motion to reopen was therefore improper. Id.

The district court also held that remand was appropriate because the IJ had not considered Velez-Lotero's argument that the three-month "window" to file for relief under the Convention Against Torture was arbitrary and capricious. The court also instructed the IJ to consider Velez-Lotero's request for a bond under 8 U.S.C. § 1226. The respondents — immigration authorities responsible for Velez-Lotero's custody (hereafter collectively "the government") — appealed.

II. Discussion

A. Eligibility for § 212(c) Waiver

The INA of 1952 excluded from the United States several classes of aliens, including aliens convicted of crimes involving moral turpitude or illicit trafficking in narcotics. This rule included a proviso, in § 212(c), granting the Attorney General broad discretion to admit certain aliens otherwise excludable under the Act. Section 212(c) provided that "[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, may be admitted in the discretion of the Attorney General." 8 U.S.C. § 1182(c). The BIA and federal courts later broadened the scope of this provision by holding that lawful permanent residents were eligible to apply for § 212(c) relief in deportation proceedings as well. See Francis v. INS, 532 F.2d 268 (2d Cir. 1976); Matter of Silva, 16 I & N Dec. 26 (BIA 1976). Eligibility for § 212(c) relief does not mean entitlement to relief. Section 212(c) limits the class of persons who are eligible to be considered for relief by the Attorney General; the ultimate decision whether to grant such relief is subject to administrative regulation and BIA decisional law, none of which is at issue in this case.

In 1990 Congress amended § 212(c) to preclude relief for "an alien who has been convicted of one or more aggravated felonies and has served for such...