Margulis v. Holder
725 F.3d 785
| 7th Cir. | 2013Background
- Margulis, a lawful permanent resident, is deportable for nontrivial US crimes under 8 U.S.C. § 1227(a)(2).
- If deportable offences trigger inadmissibility on return, the five-year bar depends on grounds and prior deportation history (8 U.S.C. §§ 1182(a)(9), (a)(9)(B)).
- 8 U.S.C. § 1182(h) allows a waiver of inadmissibility for minor crimes, effectively wiping deportability for purposes of readmission.
- Margulis aborted a trip to Canada, returned to the US, was cleared by US customs but placed in removal proceedings based on his US criminal record.
- Board of Immigration Appeals (BIA) held Margulis did not “enter” Canada and thus could not have departed, precluding the 212(h) waiver; the court questions this interpretation and related regulatory and precedential bases.
- The court grants the petition for review, remanding for the BIA to address Sanchez and Rivas precedents and to consider whether Margulis may qualify for nunc pro tunc relief, possibly altering whether he is eligible for a waiver upon remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Margulis qualifies for § 212(h) nunc pro tunc relief as an arriving alien. | Margulis is a returning alien who departed and re-entered, making him eligible for nunc pro tunc waiver. | BIA held he never departed in a way that would make him an arriving alien eligible for waiver. | Remand to reconsider eligibility for nunc pro tunc relief. |
| Whether the Board properly interpreted “departure” and “entry” in Margulis’s abortive Canada trip. | Abortive trip constitutes departure from the United States for a foreign place under 8 C.F.R. § 215.1(h). | Board treated Margulis as not having departed or entered correctly, based on antiquated notions of entry. | Remand to reassess departure/entry determination. |
| Whether Sanchez remains controlling after regulatory changes and whether Rivas affects nunc pro tunc relief. | Sanchez provides nunc pro tunc relief; regulatory changes should not overrule it without explanation. | Regulation and subsequent decisions overrule Sanchez in retroactive relief. | Question left for Board on remand; potential retroactive relief remains open. |
Key Cases Cited
- Klementanovsky v. Gonzales, 501 F.3d 788 (7th Cir. 2007) (waiver of inadmissibility nunc pro tunc potential as applied to returning aliens)
- Lawal v. U.S. Attorney General, 710 F.3d 1288 (11th Cir. 2013) (retroactive relief considerations and nunc pro tunc relief context)
- INS v. St. Cyr, 533 U.S. 289 (U.S. 2001) (regulatory and nunc pro tunc relief considerations in immigration adjudication)
- Gonzalez-Balderas v. Holder, 597 F.3d 869 (7th Cir. 2010) (regulatory interpretations and discretionary relief)