994 F.3d 112
3d Cir.2021Background
- Jose Arcenio Aristy-Rosa, a lawful permanent resident admitted in 1993, was convicted in New York of attempted criminal sale of a controlled substance (cocaine) and sentenced to probation.
- He received a Notice to Appear charging removability under 8 U.S.C. § 1227 for (a) controlled-substance offense, (b) aggravated felony, and (c) inadmissibility-related grounds; he conceded removability on the aggravated-felony and controlled-substance grounds and did not seek relief.
- In December 2017 the New York Governor granted Aristy-Rosa a full and unconditional gubernatorial pardon for the controlled-substance conviction.
- Aristy-Rosa moved to sua sponte reopen removal proceedings, arguing the pardon eliminated the basis for removal; the IJ denied the motion (time/number-barred and pardon inapplicable to controlled-substance ground) and the BIA affirmed, relying on existing BIA precedent and distinguishing an OLC memorandum on presidential pardons.
- Aristy-Rosa petitioned for review; the Third Circuit considered the statutory text of the INA, whether a state pardon eliminates the controlled-substance removal ground or the underlying "conviction," and whether the OLC opinion altered that analysis.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a state gubernatorial full pardon for a controlled-substance conviction removes the §1227(a)(2)(B) controlled-substance removal ground | Pardon extinguishes the immigration basis for removal | §1227(a)(2)(A)(vi) contains an explicit pardon waiver but §1227(a)(2)(B) does not, so Congress did not waive removal for controlled-substance offenses | Court: No; plain text shows no pardon waiver for controlled-substance ground, so the pardon did not eliminate that removal ground |
| Whether the gubernatorial pardon erases the "conviction" under INA §1101(a)(48) | Pardon removes formal adjudication so he is no longer "convicted" for immigration purposes | A pardon does not erase a conviction; INA defines "conviction" and pardon would render statutory pardon-waiver language superfluous | Court: No; conviction remains for immigration purposes despite state pardon |
| Whether the OLC opinion that a presidential pardon can bar deportation controls here | Puts forward OLC view that pardons (broadly) extinguish immigration consequences | OLC addresses presidential pardons; state pardons do not implicate federal pardon power or preclude federal immigration determinations | Court: OLC inapplicable; state pardons do not override statutory scheme and federal control of immigration |
| Whether the court may review the BIA's denial of sua sponte reopening on legal grounds | Argued BIA relied on incorrect legal premise | BIA discretion to deny sua sponte reopening but courts may review legal premises | Court: Exercised limited jurisdiction to review the legal question de novo and denied petition on correct legal interpretation |
Key Cases Cited
- Food Mktg. Inst. v. Argus Leader Media, 139 S. Ct. 2356 (statutory interpretation starts with plain text)
- Lamie v. U.S. Trustee, 540 U.S. 526 (when statute is plain courts enforce it)
- BFP v. Resolution Tr. Corp., 511 U.S. 531 (inclusion/omission in statute shows congressional intent)
- United States v. Johnson, 529 U.S. 53 (courts should not create exceptions where Congress omitted them)
- Aguilera-Montero v. Mukasey, 548 F.3d 1248 (construction of pardon-waiver language in immigration context)
- Balogun v. Attorney General, 425 F.3d 1356 (pardon waiver not implied in inadmissibility provisions)
- Arizona v. United States, 567 U.S. 387 (federal primacy over immigration policy)
- Galvan v. Press, 347 U.S. 522 (immigration decisions entrusted to Congress)
- United States v. Noonan, 906 F.2d 952 (pardon does not eliminate the fact of conviction)
- Calle-Vujiles v. Ashcroft, 320 F.3d 472 (BIA may sua sponte reopen but exercise is discretionary)