Cabral v. Holder
2011 U.S. App. LEXIS 2078
| 5th Cir. | 2011Background
- Cabral, a Philippines native and United States lawful permanent resident, was admitted in 1992.
- In 1999, Cabral was convicted in New York of two counts of sexual abuse in the third degree.
- DHS denied Cabral naturalization in 2004 due to moral character concerns stemming from the convictions.
- CABRAL was charged with removability under 8 U.S.C. § 1227(a)(2)(A)(ii) and appeared before an IJ who found deportability and denied relief, including a § 212(h) waiver, and pretermitted the waiver.
- Cabral sought to hold his BIA appeal in abeyance to collaterally attack the convictions; the BIA denied the abeyance and dismissed the appeal, which Cabral timely appealed.
- The Fifth Circuit denied Cabral’s petitions for review, upholding the BIA’s abeyance decision and the ineligibility for § 212(h) waiver.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the BIA abused its discretion by denying abeyance | Cabral argued the BIA should abate to permit collateral attack. | Cabral bears burden to show good cause; BIA relied on precedent that collateral attacks do not disturb finality. | No abuse; BIA properly exercised discretion. |
| Whether Cabral is eligible for a § 212(h) waiver while inside the United States without concurrent adjustment of status | Cabral contends waiver available without outside status or concurrent adjustment. | Cabral, inside U.S., must pursue adjustment of status; § 212(h) waiver requires adjustment application per regulation. | Cabral ineligible without concurrent adjustment application. |
| Whether the § 212(h) framework violates equal protection | Argues rational basis unequal treatment between deportable and excludable aliens. | Court should defer to Congress’s plenary power with rational basis review; distinctions may be rationally justified. | No equal protection violation; rational basis supported by Congressional purposes. |
| Whether landlord textual interpretations of 8 U.S.C. § 1101(a)(13) control Cabral’s status as admitting for purposes of § 212(h) | Cites § 1101(a)(13)(C)(v) to argue aliens with certain offenses may seek 212(h). | Subsection (A) governs returning permanent residents; Cabral was not seeking admission and § 1101(a)(13)(A) controls. | Textual interpretation rejected; permanent residents returning are not seeking admission for purposes of § 212(h). |
Key Cases Cited
- Masih v. Mukasey, 536 F.3d 370 (5th Cir. 2008) (abeyance discretion governed by good cause; defer to BIA precedent)
- Galvez-Vergara v. Gonzales, 484 F.3d 798 (5th Cir. 2007) (BIA must provide rational basis for disregarding precedents)
- Okabe v. INS, 671 F.2d 863 (5th Cir. 1982) (post-conviction motions do not negate finality for deportation absent overturn)
- Klementanovsky v. Gonzales, 501 F.3d 788 (7th Cir. 2007) (rational basis for distinguishing deportable vs excludable aliens)
- Requena-Rodriguez v. INS, 190 F.3d 299 (5th Cir. 1999) (equal protection upheld where rational basis exists for distinction)
- Francis v. INS, 532 F.2d 268 (2d Cir. 1976) (equal protection concerns with discretionary waivers under former § 212(c))
- Madriz-Alvarado v. Ashcroft, 383 F.3d 321 (5th Cir. 2004) (equal protection and rational basis analysis for immigration classifications)
- Malagon de Fuentes v. Gonzales, 462 F.3d 498 (5th Cir. 2006) (addresses deference to distinctions between deportable vs excludable aliens)
- Jankowski-Burczyk v. INS, 291 F.3d 172 (2d Cir. 2002) (treats adjustment-based discretionary waivers in context of status)