Kleynburg v. Holder
525 F. App'x 814
10th Cir.2013Background
- Kleynburg, a Moldova-born refugee, entered the U.S. in 1992 and later pled guilty to two shoplifting offenses in 1993 and 1994.
- She filed for adjustment of status in 2002 and, during interview, failed to disclose arrests; DHS deemed her inadmissible for CIMT and misrepresentation but approved a waiver application.
- Adjustment of status retroactively dated to November 1992 because of refugee status; she subsequently committed additional shoplifting offenses and a controlled-substance offense.
- DHS began removal proceedings in 2012 based on 2006 and 2010 theft convictions and the 2010 drug conviction; the IJ found grounds for removal proven and denied discretionary relief through cancellation of removal.
- The BIA held that petitioner did not have seven years of continuous residence due to the stop-time rule, and that the 2002 waiver did not erase the 1993 CIMT convictions for continuous-residence purposes; it also denied remand for due-process concerns.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 1993 CIMTs, even if waived for inadmissibility, count toward continuous residence for cancellation. | Kleynburg argues waivers erase underlying convictions for stop-time purposes. | Government contends waivers do not erase underlying removability basis for continuous-residence calculation. | CIMTs can be used for stop-time calculation even if waived for inadmissibility. |
| Whether applying the stop-time rule to pre-IIRIRA convictions is impermissibly retroactive after Vartelas. | Vartelas precludes retroactive application of stop-time to pre-IIRIRA crimes. | Stop-time rule may be applied retroactively consistent with prior circuit precedent. | Stop-time rule applies to pre-IIRIRA convictions; not impermissibly retroactive under Vartelas. |
| Whether refugees’ retroactive LPR status affects the stop-time calculation. | Refugee roll-back should exempt LPRs from stop-time rule. | No exemption in governing statute for refugees from stop-time rule. | No exemption; stop-time rule applies to refugees as to continuous residence. |
| Whether the BIA properly denied remand on due-process grounds. | Counsel's alleged misrepresentations and possible ex parte communications biased the proceedings. | Petitioner failed to show prejudice or denial of a meaningful hearing. | No due-process violation shown; remand denial affirmed. |
Key Cases Cited
- Vartelas v. Holder, 132 S. Ct. 1479 (Supreme Court 2012) (limits retroactive application of certain IIRIRA provisions; focus on new legal consequences)
- Martinez v. INS, 523 F.3d 365 (2d Cir. 2008) (stop-time rule did not impermissibly attach new disability to pre-IIRIRA crime)
- Sinotes-Cruz v. Gonzales, 468 F.3d 1190 (9th Cir. 2006) (stop-time rule retroactivity as to pre-IIRIRA crime varies by context)
- Barrera-Quintero v. Holder, 699 F.3d 1239 (10th Cir. 2012) (limits court review to grounds articulated by BIA; de novo review for legal issues)