Pascua v. Holder
641 F.3d 316
| 9th Cir. | 2011Background
- Pascua, a lawful permanent resident since 1983, was convicted in 1995 of firearm and meth possession and in 2005 of meth and ammunition.
- INS began deportation in 1996 based on the 1995 offenses; DHS added post-IIRIRA charges after 2005 convictions while the case was pending.
- IIRIRA became effective April 1, 1997, repealing §212(c) and replacing it with cancellation of removal under §240A.
- Pascua seeks discretionary relief from deportation; the issue is whether pre-IIRIRA law, IIRIRA, or both govern her relief eligibility given post-IIRIRA charges.
- The BIA issued inconsistent rulings on IIRIRA applicability and the relief available, prompting review by the Ninth Circuit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether former §212(c) applies to proceedings begun before 4/1/1997 | Pascua relies on §309(c) transitional rule to keep §212(c) available. | Government emphasizes IIRIRA repeal governs post-1997 charges; transitional merits limit. | Yes; §212(c) applies to entire case despite post-IIRIRA charges. |
| Whether §1212.3(h) regulation overrides §309(c) transitional rule | §309(c) controls; §1212.3(h) cannot defeat pre-IIRIRA relief. | Regulation restricts §212(c) relief based on plea timing and post-1997 convictions. | §309(c) prevails; §212(c) relief applies to Pascua's pre- and post-IIRIRA charges. |
| Whether Pascua may obtain Gabryelsky relief remandable for consideration | Gabryelsky relief allows adjustment of status to overcome firearms issue and enables §212(c) for drugs. | BIA did not consider Gabryelsky; potential relief should be decided by agency. | Remanded to the BIA to decide Gabryelsky relief eligibility. |
Key Cases Cited
- Becker v. Gonzales, 473 F.3d 1000 (9th Cir. 2007) (discusses transition to §240A and §212(c) repeal)
- Garcia-Jimenez v. Gonzales, 488 F.3d 1082 (9th Cir. 2007) (pre-IIRIRA proceedings and relief interplay)
- Mendiola-Sanchez v. Ashcroft, 381 F.3d 937 (9th Cir. 2004) (transitional rules application in pre/post dates)
- Enriquez-Gutierrez v. Holder, 612 F.3d 400 (9th Cir. 2010) (§1212.3(h) addresses retroactivity in certain contexts)
- Garcia-Padron v. Holder, 558 F.3d 196 (2d Cir. 2009) (held §309(c) precedents; §1212.3(h) non-overriding)
- Abebe v. Mukasey, 554 F.3d 1203 (9th Cir. 2009) (en banc discussion on §212(c) and retroactivity)
- In re Gabryelsky, 20 I. & N. Dec. 750 (BIA 1993) (Gabryelsky relief allowing adjustment to overcome weapons charge)
- In re Azurin, 23 I. & N. Dec. 695 (BIA 2005) (reaffirmed Gabryelsky relief context)