731 F.3d 281
3rd Cir.2013Background
- Fernandez Taveras, a Dominican-born lawful permanent resident since 1978, was convicted in 1999 for criminal possession of a controlled substance (crack cocaine). DHS initiated removal proceedings in 2003 based on that conviction; an IJ granted cancellation of removal under INA § 240A(a) in 2004.
- In 2010 DHS initiated new removal proceedings charging removability for two petty larceny convictions (2006 and 2008) as crimes involving moral turpitude (CIMTs).
- Fernandez Taveras conceded removability in the second proceeding and applied for adjustment of status (INA § 245) and a § 212(h) waiver of inadmissibility.
- The IJ granted adjustment and § 212(h) relief, concluding the earlier § 240A(a) cancellation effectively prevented the 1999 conviction from being used to bar admissibility or waiver eligibility.
- The BIA reversed, holding that § 240A(a) cancels removal only and does not erase or waive the underlying conviction for future admissibility/waiver assessments; thus the 1999 drug conviction rendered Fernandez Taveras inadmissible and ineligible for § 212(h) relief and adjustment.
- The Third Circuit denied the petition for review, agreeing with the BIA and adopting De Hoyos’ reasoning that cancellation of removal does not preclude later consideration of the underlying conviction in separate proceedings; § 101(a)(13)(C)(v) (reentry/admission context) does not change that result.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a prior grant of § 240A(a) cancellation of removal precludes using the underlying conviction to deny admissibility, waiver, or adjustment in a later, separate removal proceeding | Fernandez Taveras: prior § 240A(a) cancellation operates as a waiver of the conviction for future eligibility determinations, so the 1999 drug conviction cannot be used to deny § 212(h) relief or adjustment | DHS/BIA: § 240A(a) cancels the prior removal only and does not erase or waive the underlying conviction for future proceedings; conviction remains relevant to admissibility/waiver | Court: § 240A(a) cancels removal only; underlying conviction remains usable to deny admissibility, waiver, and adjustment in later proceedings; petition denied |
| Whether INA § 101(a)(13)(C)(v) (not regarding returning LPR as seeking admission if later granted § 1182(h) or § 1229b(a)) bars using the prior conviction in adjustment/waiver analysis | Fernandez Taveras: § 101(a)(13)(C)(v) should be read to preclude treating him as inadmissible when applying for adjustment of status after prior cancellation | DHS/BIA: § 101(a)(13)(C)(v) addresses physical reentry/admission of returning LPRs, not in-removal-proceeding adjustment of status; it does not broaden § 240A(a) | Court: § 101(a)(13)(C)(v) governs reentry/admission, not adjustment of status in removal proceedings; it does not affect scope of § 240A(a) |
| Whether former § 212(c) jurisprudence (e.g., Balderas) applies to interpret the scope of § 240A(a) relief | Fernandez Taveras: relied on IJ’s view rejecting application of Balderas to this context | DHS/BIA: Balderas and predecessor § 212(c) jurisprudence are instructive and support that waiver cancels removal basis but not underlying conviction | Court: Agrees Balderas and related precedent are instructive; § 240A(a) has analogous limits to former § 212(c) |
| Whether Fernandez Taveras was denied due process by not being allowed to contest the 1999 conviction | Fernandez Taveras: factual record from prior proceeding insufficient; he was denied opportunity to establish admissibility | DHS/BIA: conviction is undisputed; issue is legal effect, not factual | Court: No due process violation—facts of the conviction are undisputed; dispute was legal effect of conviction |
Key Cases Cited
- INS v. St. Cyr, 533 U.S. 289 (2001) (describing historical discretionary relief from deportation and the effects of waivers)
- De Hoyos v. Mukasey, 551 F.3d 339 (5th Cir. 2008) (cancellation of removal cancels removal, not the underlying conviction; conviction may affect later admissibility)
- Duhaney v. Attorney General, 621 F.3d 340 (3d Cir. 2010) (prior § 212(c) waiver does not prevent later consideration of the same conviction for other immigration purposes)
- Rodriguez-Munoz v. Gonzales, 419 F.3d 245 (3d Cir. 2005) (discussing effect of predecessor § 212(c) waivers and scope of relief)
- Vartelas v. Holder, 132 S. Ct. 1479 (2012) (§ 101(a)(13)(C) applies to physical reentry/admission of returning LPRs, not adjustment of status)