Vue v. Gonzales
Decision Date | 07 August 2007 |
Docket Number | No. 06-3515.,06-3515. |
Citation | 496 F.3d 858 |
Parties | Kao VUE, Petitioner, v. Alberto GONZALES, Attorney General of the United States of America, Respondent. |
Court | U.S. Court of Appeals — Eighth Circuit |
Davis, Immigrant Legal Resource Center, National Immigration Project of the National Lawyers Guild, amici curiae, Zachary Nightingale, Marc Van Der Hout and Avantika Shastri, on the brief, San Francisco, CA, for petitioner.
Kevin J. Conway, argued, USDOJ, OIL, Washington, DC, for appellee.
Before BYE, RILEY, and BENTON, Circuit Judges.
Kao Vue challenges the final order of the Board of Immigration Appeals (BIA) denying his special motion to reopen for consideration of relief under repealed § 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c). Having jurisdiction under 8 U.S.C. § 1252(a)(2)(D), this court affirms.
In December 1989, Vue, a Laotian citizen, was admitted to the United States as a refugee. In 1991, he became a lawful permanent resident. In 1993, he pled guilty to first degree assault under Minn. Stat. § 609.221.
Due to this conviction, the Immigration and Naturalization Service charged that he was subject to deportation on two legal grounds: committing (1) a crime involving moral turpitude (CIMT), 8 U.S.C. § 1251(a)(2)(A)(i), and (2) an aggravated felony — a crime of violence, 8 U.S.C. § 1251(a)(2)(A)(iii), as defined in 8 U.S.C. § 1101(a)(43). Vue admitted deportability. The immigration judge found him deportable on both grounds. The BIA affirmed.
Vue twice moved the BIA to reopen under repealed § 212(c) of the INA,1 which waives deportation under certain circumstances. The BIA denied the motions. Vue appeals.
This court reviews the BIA's determinations on questions of law de novo, but gives substantial deference to its statutory interpretations. Jamieson v. Gonzales, 424 F.3d 765, 767 (8th Cir.2005); Habtemicael v. Ashcroft, 370 F.3d 774, 779 (8th Cir.2004); see also Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) ( ).
Vue contends that the BIA violated his "guarantee of equal protection under the constitution by denying his motion to reopen to seek § 212(c) relief." That section 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. . . .
By its literal language, § 212(c) relief was available only in exclusion proceedings, not deportation proceedings. See St. Cyr, 533 U.S. at 295, 121 S.Ct. 2271 (). However, judicial and administrative decisions have expanded the scope of § 212(c) to allow waivers of deportation under certain circumstances. See generally id. at 295, 121 S.Ct. 2271 ( ); see also Francis v. INS, 532 F.2d 268, 273 (2d Cir.1976) ( ).
The BIA has adopted the statutory counterpart analysis, where "section 212(c) can only be invoked in a deportation hearing where the ground of deportation charged is also a ground of inadmissibility." In re Wadud, 19 I. & N. Dec. 182, 184 (B.I.A.1984). This court, like seven other circuits, approved this analysis. See Soriano v. Gonzales, 489 F.3d 909, 909 (8th Cir.2006) (per curiam), citing In re Blake, 23 I. & N. Dec. 722, 723-29 (B.I.A. 2005) (); United States v. Vieira-Candelario, 6 F.3d 12, 13-14 (1st Cir.1993) (); Caroleo v. Gonzales, 476 F.3d 158, 162 (3d Cir.2007) (); Chow v. INS, 12 F.3d 34, 38 (5th Cir.1993) (); Gjonaj v. INS, 47 F.3d 824, 827 (6th Cir.1995) () ; Valere v. Gonzales, 473 F.3d 757, 762 (7th Cir.2007) (); Abebe v. Gonzales, 493 F.3d 1092, 1105 (9th Cir.2007) ( ); Rodriguez-Padron v. INS, 13 F.3d 1455, 1459 (11th Cir.1994) ( ).
Here, Vue's conviction of an aggravated felony — a crime of violence — made him deportable. Because this ground of deportation does not have a statutory counterpart in § 212(a), he cannot claim § 212(c) relief. This also defeats his equal protection claim. See Valere, 473 F.3d at 762 (); Rodriguez-Padron, 13 F.3d at 1459 ().
Vue urges that this court follow Blake v. Carbone, 489 F.3d 88, 100 (2d Cir. 2007), which concludes that the "comparable grounds analysis fails to comport with Francis." See Francis v. INS, 532 F.2d 268, 273 (2d Cir.1976). Although the second circuit recognized its "holding is at odds with that reached by several other circuits," it determined that "if petitioners' underlying aggravated felony offenses could form the basis of a ground of exclusion, they will be eligible for a § 212(c) waiver." See Blake, 489 F.3d at 103-104. According to the court, "Were we to approve of these other courts' formulaic approach — limiting ourselves only to the language in the relevant grounds of deportation and exclusion — we would be ignoring our precedent that requires us to examine the circumstances of the deportable alien, rather than the language Congress used to classify his or her status." Id. at 104.
The Blake case, however, is contrary to this court's precedent in Soriano — which is controlling. See Soriano, 489 F.3d at 909 ( ).2 Moreover, because there is no statutory counterpart, Vue is not similarly situated to an inadmissible alien. See Campos v. INS, 961 F.2d 309, 316 (1st Cir.1992) ( ); Caroleo, 476 F.3d at 163 (); Vo v. Gonzales, 482 F.3d 363, 372 (5th Cir.2007) ) ; Valere, 473 F.3d at 762 (); Komarenko v. INS, 35 F.3d 432, 435 (9th Cir.1994) ( ); Farquharson v. U.S. Attorney Gen., 246 F.3d 1317, 1325 (11th Cir.2001) (). See also Jurado-Gutierrez v. Greene, 190 F.3d 1135, 1152 (10th Cir.1999) (...
To continue reading
Request your trial-
Abebe v. Mukasey, 05-76201.
...v. Mukasey, 514 F.3d 679, 691-92 (7th Cir. 2008) (rejecting the reasoning of the Second Circuit's decision in Blake); Vue v. Gonzales, 496 F.3d 858, 860-62 (8th Cir. 2007) (same). In overruling Tapia-Acuna and discarding Komarenko as a dead letter, the majority creates a three-way circuit s......
-
Abebe v. Mukasey
...v. Mukasey, 514 F.3d 679, 691-92 (7th Cir. 2008) (rejecting the reasoning of the Second Circuit's decision in Blake); Vue v. Gonzales, 496 F.3d 858, 860-62 (8th Cir. 2007) (same). In overruling Tapia-Acuna and discarding Komarenko as a dead letter, the majority creates a three-way circuit s......
-
Zamora-Mallari v. Mukasey
...the Ninth Circuit in Abebe v. Gonzales, 493 F.3d 1092 (9th Cir.2007), and most recently the Eighth Circuit in Vue v. Gonzales, 496 F.3d 858 (8th Cir.2007).3 Abebe, the government commenced deportation proceedings against Abebe, charging that he was deportable because he had been convicted o......
-
Lovan v. Holder
...We upheld Blake's interpretation of former § 212(c) in Soriano v. Gonzales, 489 F.3d 909, 909 (8th Cir.2006). And in Vue v. Gonzales, 496 F.3d 858, 860-61 (8th Cir. 2007), we concluded that this statutory counterpart limitation on relief under former § 212(c) does not violate the Equal Prot......