Zivkovic v. Holder

• Decision Date: 06 November 2013
• Docket Number: No. 12–2143.,12–2143.
• Citation: 724 F.3d 894
• Parties: Milija ZIVKOVIC, Petitioner, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

724 F.3d 894

Milija ZIVKOVIC, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

No. 12–2143.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 26, 2012.

Decided July 31, 2013.

Rehearing Denied Nov. 6, 2013.

Maria T. Baldini–Potermin, Eric Berndt (argued), Attorneys, Maria Baldini–Potermin & Associates, Chicago, IL, for Petitioner.

Aimee J. Carmichael (argued), Attorney, OIL, Attorney, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Charles Roth, Attorney, National Immigrant Justice Center, Chicago, IL, for Amicus Curiae National Immigrant Justice Center.

Before EASTERBROOK, Chief Judge, and WOOD and WILLIAMS, Circuit Judges.

WOOD, Circuit Judge.

Milija Zivkovic, a Serbian who has been in the United States since 1966, has petitioned for review of an order of the Board of Immigration Appeals ordering him removed from the United States. The Board found that Zivkovic was removable because he had committed three aggravated felonies and that he was not eligible for the special relief provided by Section 212(c) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1182(c). Before this court, Zivkovic argues that none of the three felony convictions on which the Board relied can support its removal order. Even if one or more was properly counted, he continues, the Board erred when it rejected his eligibility for Section 212(c) relief. Finally, he complains that the Immigration Judge (IJ) should not have consulted certain conviction records that had been submitted for purposes of his bond proceeding when the IJ was considering his immigration petition.

Resolution of Zivkovic's petition might have been straightforward, but for the fact that two of his convictions are 35+ years old, and the immigration laws have not remained static over that time. Zivkovic realizes that he must knock out all three of the aggravated felonies before his argument about Section 212(c) makes any difference, because a conviction on one alone would be enough to guarantee near-automatic removal. See Immigration and Nationality Act § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii). But he believes that he can do so. Our assessment of his argument requires us to delve deeply into the history of the governing provisions of the immigration laws, and in addition to consider what level of deference we owe to the Board's effort to disentangle both the meaning of those statutes and Congress's intent over the years to make various changes retroactive. We conclude that the statutes are ambiguous and that the twin presumptions against retroactivity and implied repeal require us to grant Zivkovic's petition and to remand for further proceedings.

I

Zivkovic was admitted to the United States as a lawful permanent resident in 1966. Ten years later, on October 25, 1976, he pleaded guilty to the Illinois crime of burglary, now codified at 720 ILCS 5/19–1, and received a sentence of two to six years. In 1978, following a jury trial, he was convicted of attempted rape, see 720 ILCS 5/8–4 (current law defining crime of attempt); 720 ILCS 5/11–1.20 (current law defining criminal sexual assault), and was sentenced to 4 to 12 years in prison. Years later, on November 16, 2010, he was convicted under 720 ILCS 5/19–4(a)(2) for criminal trespass to a residence with a person present; for that crime, he received a three-year sentence of imprisonment. On the same day, he was convicted of aggravated battery, where the aggravating factor was the victim's age (over 60 years), and received a five-year sentence.

In 2004 Zivkovic received a Notice to Appear from the Department of Homeland Security (DHS). The Notice charged that he was removable on several grounds: first, pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien who has been convicted of an aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(G); second, for the attempt or conspiracy to commit a crime defined in 8 U.S.C. § 1101(a)(43)(A) (murder, rape, or sexual abuse of a minor); and third, under 8 U.S.C. § 1227(a)(2)(A)(ii), as an alien who has been convicted of two crimes involving moral turpitude not arising out of a single incident. DHS temporarily closed his case in 2005 to await the conclusion of criminal proceedings in Illinois state court.

On February 22, 2011, with the state case resolved, DHS restored Zivkovic's immigration case to the calendar. This time DHS charged that Zivkovic's 2010 residential trespass conviction was also a basis for his removability because it qualified as a “crime of violence” under the INA; DHS continued to assert that his 1976 and 1978 convictions for the aggravated felonies of burglary and attempted rape supported his removal. On November 17, 2011, the IJ determined that residential trespass is a crime of violence because, like burglary, it involves a substantial risk that physical force may be used. The IJ also concluded that Zivkovic's 1976 and 1978 convictions counted as aggravated felonies because they are so defined in the Illegal Immigrant Reform and Immigrant Responsibility Act of 1996 (IIRIRA). In reaching this conclusion, the IJ relied on a decision of the BIA holding that the Immigration Act of 1990 made “any alien who has been convicted of a crime defined as an aggravated felony, and who was placed in deportation proceedings on or after March 1, 1991, [ ] deportable regardless of when the conviction occurred.” Matter of Lettman, 22 I. & N. Dec. 365, 366 (BIA 1998) ( en banc ). The IJ found that Zivkovic was not eligible for discretionary waiver of removal because he went to trial rather than pleading guilty to the 1978 crime, and thus he cannot demonstrate that reliance on discretionary waiver from removal changed his response to those criminal charges.

On appeal, the BIA affirmed the IJ's determinations. Although at one point along the way, DHS had argued that Zivkovic was also removable because he had committed two crimes of moral turpitude, see 8 U.S.C. § 1227(a)(2)(A)(ii), the IJ did not specifically address that charge in his written decision. The Board also found it unnecessary to address that point; it explicitly commented that it was not reaching the moral turpitude ground and instead was affirming solely because of the aggravated felonies and ineligibility for Section 212(c) relief.

II

Because the standard of review that governs Zivkovic's petition is central to this case, we begin by reviewing the governing principles. To the extent that his petition raises questions of law, our review is generally de novo. Alvarado–Fonseca v. Holder, 631 F.3d 385, 389 (7th Cir.2011). Nevertheless, we use the qualifier “generally” because the BIA is an expert agency. In I.N.S. v. Aguirre–Aguirre, the Supreme Court held that when a court of appeals confronts questions implicating the Board's “construction of the statute which it administers”—here, the INA—“the court should ... appl[y] the principles of deference described in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).” 526 U.S. 415, 424, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999).

This does not mean, however, that Chevron applies to every issue that arises in an immigration case, for the simple reason that some questions of law do not depend on agency expertise for their resolution. The first preliminary question we must address is whether the question before us—what counts as a “crime of violence” for purposes of INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F)—is one for which Chevron deference is required. (For convenience, in the remainder of this opinion we omit the parallel citations to the INA and use only the citation found in Title 8.) Section 1101(a)(43)(F) says that “a crime of violence ( as defined in section 16 of Title 18, but not including a purely political offense) for which the term of imprisonment [is] at least one year.” Id. (emphasis added). Section 16 of Title 18, which addresses Crimes and Criminal Procedure, is one of the “general provisions” collected in Chapter 1 of the Code. No one thinks that the Board of Immigration Appeals has the authority to set the boundaries of the term “crime of violence” for every criminal prosecution in the United States; the great majority of these cases are entirely unrelated to immigration law. Nor is there any hint that Congress intended the Board to craft a particularized definition of this general statute for use exclusively in immigration proceedings. Instead, Congress elected to refer the Board to the general definition of “crime of violence” when that becomes important for immigration purposes. In these circumstances, one cannot say that the Board exercises any delegated power to interpret the governing statute—18 U.S.C. § 16—and thus Chevron deference does not apply to that aspect of the Board's reasoning. See Flores v. Ashcroft, 350 F.3d 666, 671 (7th Cir.2003).

The second preliminary question is whether we owe Chevron deference to the Board's decision about the retroactivity of a newly added provision of the immigration laws. At first glance, this might appear to be a closer question: after all, retroactivity (or the lack of retroactivity) is central to the determination of the content of the law at any given time. But in this case we have the benefit of a Supreme Court decision that is directly on point. In I.N.S. v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), the Court addressed the question whether certain amendments to the INA should be applied retroactively. The respondent, Enrico St. Cyr, pleaded guilty to a controlled-substance offense; he entered his plea just before the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, which was quickly amended by IIRIRA, 110 Stat. 3009–546. The specific question before the Court was whether the provisions of AEDPA and IIRIRA eliminating waivers of deportation...