716 F.3d 781
3rd Cir.2013Background
- Espinoza, a native of Ecuador, became a lawful permanent resident in 1980 and faced deportability based on a 1993 cocaine sale conviction.
- Espinoza initially sought a §212(c) discretionary relief; proceedings were closed after he was paroled to INS custody and his relief was never adjudicated.
- In 2007 Espinoza was convicted of conspiracy to possess with intent to distribute cocaine (an aggravated felony) and sentenced to 120 months.
- DHS reopened the 1994 deportation case in 2010, adding the 2007 conviction as a new deportability ground; hearings proceeded without counsel.
- An IJ ordered Espinoza removed in 2011; the BIA affirmed in 2011 and 2012, holding Espinoza ineligible for §212(c) relief under the five-year bar.
- Espinoza appeals, arguing eligibility for §212(c) relief and due process; court agrees he is barred and affirms the BIA’s removal order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the five-year bar strips §212(c) relief for aggravated felons. | Espinoza seeks §212(c) relief under equity. | Espinoza had served ≥5 years for an aggravated felony, barred by statute. | Yes; five-year bar applies and precludes relief. |
| Whether transitional IIRIRA rules allow relief notwithstanding the five-year bar. | Equitable application should permit relief under pre-IIRIRA rules. | Statutory bar applies irrespective of IIRIRA transitional rules. | Inapplicable; bar applies regardless of IIRIRA transition. |
| Whether the due process claims regarding counsel and procedural timing have merit. | IJs failed to provide proper counsel list and process violated due process. | Record shows compliance with counsel-list requirements; no prejudice. | No due process violation; proceedings adequate. |
| Whether Caroleo's equitable considerations override the five-year bar. | Equity allows nunc pro tunc relief despite later five-year bar. | Statutory text forecloses relief for aggravated felons with ≥5 years. | Distinguishable; Caroleo does not apply; statute controls. |
Key Cases Cited
- INS v. St. Cyr, 533 U.S. 289 (1990s) (established discretionary relief under §212(c) as a matter of statutory analysis)
- Avila-Macias v. Ashcroft, 328 F.3d 108 (3d Cir. 2003) (explains removal proceedings terminology post-IIRIRA)
- Fadiga v. Att’y Gen., 488 F.3d 142 (3d Cir. 2007) (de novo review; standard for due process claims and legal questions)
- Caroleo v. Gonzales, 476 F.3d 158 (3d Cir. 2007) (equitable relief discussion; distinguishable from Espinoza fact pattern)
- Scheidemann v. INS, 83 F.3d 1517 (3d Cir. 1996) (interprets 1990 §212(c) bar language as applied to aggravated felonies)
- Pereira v. Gonzales, 417 F.3d 38 (1st Cir. 2005) (commentary on five-year bar interpretation of §212(c))
- Perez v. Elwood, 294 F.3d 552 (3d Cir. 2002) (discusses scope of §212(c) and AEDPA regime)