Petr Spacek v. Eric H. Holder, Jr.
688 F.3d 536
| 8th Cir. | 2012Background
- Spacek, born in Czechoslovakia, entered as a refugee in 1984 and became a permanent resident in 1985.
- He has prior felonies: 1987 Minnesota theft, 1995 North Dakota simple assault, and 2010 North Dakota racketeering.
- DHS initiated removal after learning of the 2010 racketeering conviction; Spacek conceded removability and sought cancellation and a §1182(h) waiver.
- IJ granted both reliefs but DHS appealed the cancellation denial while Spacek cross-appealed the waiver denial.
- BIA held Spacek ineligible for cancellation as an aggravated felon and ineligible for §1182(h) waiver because of the aggravated felony after admission.
- Spacek petitions for review challenging both eligibility determinations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the racketeering conviction an aggravated felony under §1101(a)(43)(J)? | Spacek contends no interstate nexus element is required. | DHS/BIA treat the offense as an aggravated felony under §1101(a)(43)(J). | Yes; the racketeering conviction qualifies as an aggravated felony. |
| Does Spacek's admission status affect eligibility for a §1182(h) waiver after an aggravated felony? | Spacek argues the waiver applies if not admitted as a permanent resident at the time of the felony. | Spacek’s admission status should bar the waiver because admission occurred before the aggravated felony under §1159. | No; but even under Spacek’s view, he would still be ineligible due to §1159-based admission. |
Key Cases Cited
- United States v. Castillo-Rivera, 244 F.3d 1020 (9th Cir. 2001) (interstate nexus not required for state offenses to qualify as aggravated felonies)
- United States v. Sandoval-Barajas, 206 F.3d 853 (9th Cir. 2000) (jurisdictional nexus discussion relevant to §1101(a)(43) interpretation)
- In re Vasquez-Muniz, 23 I. & N. Dec. 207 (BIA 2002) (BIA adoption of Ninth Circuit reasoning on aggravated felonies)
- Nieto Hernandez v. Holder, 592 F.3d 681 (5th Cir. 2009) (aggravated felony description and state offenses interplay)
- Negrete-Rodriguez v. Mukasey, 518 F.3d 497 (7th Cir. 2008) (state offenses as aggravated felonies interpretation)
- Bracamontes v. Holder, 675 F.3d 380 (4th Cir. 2012) (statutory interpretation of §1182(h) waiver eligibility for post-entry adjustment)
- Lanier v. U.S. Att’y Gen., 631 F.3d 1363 (11th Cir. 2011) (post-entry adjustment and §1182(h) waiver applicability)
- Hing Sum v. Holder, 602 F.3d 1092 (9th Cir. 2010) (interpretation of §1182(h) for adjusted aliens)
- Martinez v. Mukasey, 519 F.3d 532 (5th Cir. 2008) (waiver analysis for aliens adjusting status)