Vo v. Gonzales

• Decision Date: 19 March 2007
• Docket Number: No. 05-60518.,05-60518.
• Citation: 482 F.3d 363
• Parties: Dung Tri VO, Petitioner, v. Alberto R. GONZALES, United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

482 F.3d 363

Dung Tri VO, Petitioner, v. Alberto R. GONZALES, United States Attorney General, Respondent.

No. 05-60518.

United States Court of Appeals, Fifth Circuit.

March 19, 2007.

Imran B. Mirza (argued), Houston, TX, for Vo.

Ernesto Horacio Molina, Jr. (argued), Donald Anthony Couvillon, Thomas Ward Hussey, Dir., Michael Peter Lindemann, Linda Susan Wendtland, Christopher Cyrus Fuller (Civ. Div.), U.S. Dept. of Justice, OIL, Washington, DC, Trey Lund, U.S. Imm. & Customs Enforcement, Field Office Dir., Attn: Carl Perry, New Orleans, LA, Sharon A. Hudson, U.S. Citizenship & Imm. Services, Houston, TX, for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals.

Before JONES, Chief Judge, and WIENER and BARKSDALE, Circuit Judges.

EDITH H. JONES, Chief Judge:

Petitioner Dung Tri Vo appeals a Board of Immigration Appeals ("BIA") decision finding him ineligible to apply for relief under former § 212(c) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(c), because one of his crimes, unauthorized use of a motor vehicle ("UUV"), lacks a comparable ground of inadmissibility under INA § 212(a).¹ We find no error in the BIA's determination that Vo's crime does not have a statutory counterpart in § 212(a) and accordingly DENY the petition for review.

I. FACTUAL AND PROCEDURAL BACKGROUND

Dung Tri Vo, a native and citizen of Vietnam, was admitted to the United States as a lawful permanent resident on April 29, 1985. In December 1989, Vo was convicted in Texas state court of theft by receiving and was sentenced to five years imprisonment. One month later, he pleaded guilty to UUV and was sentenced to eight years imprisonment. Vo again pleaded guilty to UUV in Texas state court in 1992, and was sentenced to seven years imprisonment. For all of the offenses, he did not serve more than five years in prison cumulatively. Based on these convictions, on February 16, 2000, the Immigration and Naturalization Service ("INS") served Vo with a notice to appear, charging that he was removable under INA § 237(a)(2)(A)(iii).

Vo appeared before an Immigration Judge ("IJ"), admitted the allegations, and conceded that he was removable based on the aggravated felony theft offense, 8 U.S.C. § 1101(a)(43)(G). However, he argued that the Texas crime of UUV was not a crime of violence, 8 U.S.C. § 1101(a)(43)(F). Vo also applied for relief from removal under the Convention Against Torture ("CAT"). See 8 C.F.R. § 208.16.

After finding that UUV was indeed a crime of violence, the IJ sustained both grounds for removal in findings that Vo does not challenge. The IJ determined that the only form of relief open to Vo was deferral of removal under CAT, but Vo had failed to establish that it was more likely than not that he would be tortured if he returned to Vietnam. See § 208.16(b)(2). The IJ accordingly denied CAT relief and ordered Vo removed to Vietnam.

The BIA affirmed the IJ's denial of relief under CAT. However, in light of INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), the BIA remanded the case for consideration of whether Vo was entitled to relief from removal under former INA § 212(c).

On remand, the IJ found Vo ineligible to apply for § 212(c) relief. Vo failed to establish that his UUV conviction had a statutory counterpart in § 212(a), since it did not qualify as a crime involving moral turpitude and there was no other crime listed under § 212(a) that could be linked to Vo's conviction. Accordingly, the IJ denied Vo's application for a waiver of removal.

The BIA dismissed Vo's appeal, finding him removable because he committed an aggravated felony that was classified as a crime of violence under INA § 101(a)(43)(F). Relying on 8 C.F.R. § 1212.3(f)(5), and the reasoning of Matter of Blake, 23 I. & N. Dec. 722, 2005 WL 778740 (BIA 2005), the BIA stated that in order to receive a § 212(c) waiver, the ground of removability at issue must contain a statutory counterpart in § 212(a)'s grounds of excludability. The BIA determined that the incidental overlap between § 101(a)'s crime of violence provision and the § 212(a) provision for a crime involving moral turpitude was insufficient to establish eligibility for a § 212(c) waiver: "The distinctly different terminology used to describe the two categories of offenses and the significant variance in the types of offenses covered by these two provisions lead us to conclude that they are not `statutory counterparts' for purposes of § 212(c) eligibility." Vo filed a timely petition for review in this court.

II. DISCUSSION

A. Jurisdiction

The REAL ID Act amended 8 U.S.C. § 1252 to preclude judicial review of any removal order based on, inter alia, commission of an aggravated felony. See § 1252(a)(2)(C); Hernandez-Castillo v. Moore, 436 F.3d 516, 519 (5th Cir.), cert. denied, ___ U.S. ___, 127 S.Ct. 40, 166 L.Ed.2d 18 (2006). However, the Act also provides that none of its provisions "shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review." § 1252(a)(2)(D). This court therefore has jurisdiction to decide the legal and constitutional questions raised by Vo. See Hernandez-Castillo, 436 F.3d at 519. We review the BIA's conclusions of law de novo, according deference to the BIA's interpretations of ambiguous provisions of the INA. Carbajal-Gonzalez v. INS, 78 F.3d 194, 197 (5th Cir.1996).

B. History of § 212(c) Relief

Former INA § 212(c) allowed a discretionary waiver of many of the grounds of inadmissibility set forth in § 212(a) 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." INA § 212(c), 8 U.S.C. § 1182(c). In Francis v. INS, 532 F.2d 268 (2d Cir.1976), the Second Circuit held that it violated equal protection to limit § 212(c) relief to aliens who had temporarily departed and were seeking readmission, and required that the INS make § 212(c) waivers available to all lawful permanent residents, including those who had not departed. Francis thus expanded the class of aliens to whom § 212(c) relief is available but did not broaden the statutory grounds to which it may be applied. The BIA adopted Francis in Matter of Silva, 16 I. & N. Dec. 26, 1976 WL 32326 (BIA 1976), and made § 212(c) waivers available in both exclusion and deportation proceedings nationwide.

In 1990, Congress limited § 212(c) availability to aliens who had served fewer than five years in prison, Immigration Act of 1990, Pub. L. No. 101-649, § 511, 104 Stat. 4978, 5052. Congress then repealed the provision entirely in 1996 with the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L. No. 104-208, § 304(b), 110 Stat. 3009-54, 3009-597. The Supreme Court, however, held that § 212(c) relief must remain 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." St. Cyr, 533 U.S. at 326, 121 S.Ct. at 2293. Thus, aliens who pled guilty before the repeal of § 212(c) remain eligible to apply for discretionary relief. Significantly, St. Cyr, did not address the issue of comparable grounds.

In 2004, the BIA designed regulations to conform with St. Cyr. As part of this codification, the BIA promulgated 8 C.F.R. § 1212.3(f)(5), which provided that an application for § 212(c) relief "shall be denied if: . . . [t]he alien is deportable under former section 241 of the Act or removable under section 237 of the Act on a ground which does not have a statutory counterpart in section 212 of the Act." In Matter of Blake, the BIA applied § 1212.3(f)(5) and determined that the aggravated felony offense of sexual abuse of a minor does not have a statutory counterpart in § 212(a). See 23 I. & N. Dec. at 727-29. The BIA specifically rejected the argument that sexual abuse of a minor constituted a crime involving moral turpitude as set out in § 212(a), concluding that the overlap between crimes of violence, such as sexual abuse, and crimes involving moral turpitude was insufficient to show that the crimes were statutory counterparts. Id. at 728. Because there is no other provision in § 212(a) that can serve as a comparable ground of inadmissibility to sexual abuse of a minor, Blake was ineligible to apply for § 212(c) relief. Id. at 729.

In so ruling, the BIA discussed how the decision "clarifie[d]" its prior precedent, rather than established a new rule or standard. Id. at 728. Since at least 1979, the BIA has held that § 212(c) relief is available only to waive charges of deportability for which there is a comparable ground of inadmissibility. See, e.g., Matter of Granados, 16 I. & N. Dec. 726, 729, 1979 WL 44438 (BIA 1979), aff'd, Granados-Gonzales v. INS, 624 F.2d 191 (9th Cir.1980) (table) (§ 212(c) relief unavailable because "respondent's conviction for possession of an unregistered sawed-off shotgun does not come within the grounds of excludability which are subject to a section 212(c) waiver"); see also Matter of Jimenez, 21 I. & N. Dec. 567, 573, 1996 WL 426890 (BIA 1996) (conviction for fraud and misuse of visas insufficiently comparable to ground of excludability for fraud or willful misrepresentation of a material fact in procuring a visa to permit § 212(c) relief; despite some overlap, the former has a "vastly greater scope" and encompasses more serious violations); Matter of Esposito, 21 I. & N. Dec. 1, 9-10, 1995 WL 147030 (BIA 1995) ("section 212(c) relief is available in deportation proceedings only to those aliens who have been found deportable under a ground of deportability for which there is a comparable ground of excludability"); Matter of Wadud, 19 I. & N. Dec. 182, 184 (BIA 1984) ("section 212(c) can...