John Williams v. United States

705 F.3d 293

8th Cir.

2013

Check Treatment

Docket

John Jacob WILLIAMS, Petitioner v. UNITED STATES of America, Respondent.

No. 12-2659

United States Court of Appeals, Eighth Circuit

Jan. 23, 2013

Submitted: Dec. 10, 2012.

699 F.3d 1026

presumption is not overridden by other provisions, like the one in 8 U.S.C. § 1184(h), which says that “the fact that an alien ... has otherwise sought permanent residence ... shall not constitute evidence of [immigrant intent] for purposes of ... maintaining [L-1] status.” Nothing in § 1184(b), however, alters the definition of “lawful immigration status” set forth in 8 C.F.R. § 245.1(d)(1). We note as well that Chaudhry does not contend that he failed to maintain lawful status “for technical reasons,” which would be a separate exception under § 1255(c).

Finally, Chaudhry suggests that § 245.1(d)(1) supplies only the meaning of “lawful immigration status” for purposes of § 1255(c), not § 1255(k), which contains the critical, ambiguous phrase “lawful status.” Though we are mindful of the dangers of importing terms of art from one statute to another—the confusion in this very case between “unlawful presence” and “unlawful status” illustrates what can happen—his argument is not persuasive. First, the precise words “lawful immigration status” do not appear even in § 1255(c), which discusses only “unlawful immigration status,” “lawful status,” and “lawful nonimmigrant status.” Were we to accept Chaudhry‘s argument, 8 C.F.R. § 245.1(d)(1) would define nothing at all. The plain inference is that the regulatory definition applies to all of these interchangeable formulations. Second, as explained above, § 1255(k) carves out a limited exception to § 1255(c). Reading these two subsections together, it is most natural to conclude that the “lawful status” contemplated in the latter subsection is the same “lawful status” discussed in the former.

III

We conclude with a comment on a peculiar aspect of this case that the IJ, the Board, and both parties appear to have overlooked. At some point during the pendency of his first two adjustment applications, Chaudhry returned to Pakistan to attend to family business. He returned to the United States on March 12, 2005, shortly after the expiration of his nonimmigrant status, at which time he was paroled into the country until March 13, 2006. While we reject the argument that a pending adjustment application conferred “lawful status” on Chaudhry pursuant to 8 C.F.R. § 245.1(d)(1)(ii), it may be that Chaudhry‘s parolee status tolled the accrual of days without status pursuant to 8 C.F.R. § 245.1(d)(1)(iv).

Chaudhry did not advance this theory before the Board, however. His failure to exhaust the argument—perhaps occasioned by the government‘s own failure to identify the controlling regulation in the proceedings below—deprives us of the opportunity to pass on the issue.

Sarmiento v. Holder, 680 F.3d 799, 803-04 (7th Cir. 2012) (“A party must exhaust all administrative remedies before seeking review by this court, and failure to raise a specific issue before the Board typically forecloses a party from raising it on appeal.“).

Accordingly, the petition for review is DENIED.

John Jacob Williams, pro se.

Before BYE, ARNOLD, and MELLOY, Circuit Judges.

PER CURIAM.

John Jacob Williams requests authorization to file a second 28 U.S.C. § 2255 motion. We deny the request.

A jury found Mr. Williams guilty of two drug offenses and a firearm offense. The district court sentenced him to 300 months in prison, and we affirmed the convictions.

United States v. Williams, 557 F.3d 943, 945 (8th Cir. 2009). Mr. Williams then filed his first section 2255 motion. The district court denied the motion, and this court denied Mr. Williams‘s request for a certificate of appealability.

Mr. Williams now requests authorization to file a second section 2255 motion to present the claim that he rejected a favorable plea offer because trial counsel failed to adequately explain the terms of the offer and the consequences of rejecting it. In support of this claim, Mr. Williams cites

Lafler v. Cooper, — U.S. —, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012), and , cases in which the United States Supreme Court acknowledged that defendants have a constitutional right to effective assistance of counsel with respect to plea offers that lapse or are rejected. Mr. Williams claims he could not have presented his claim in his first section 2255 motion, which he filed before Cooper and Frye were decided. Pursuant to section 2255(h)(2), we can authorize the filing of a second or successive section 2255 motion that contains a claim based on a “new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” 28 U.S.C. § 2255(h)(2). In Cooper and Frye, the Court noted that its analysis was consistent with the approach many lower courts had taken for years, as well as with its own precedent. See ; . We therefore conclude, as have the other circuit courts of appeals that have addressed the issue, that neither Cooper nor Frye announced a new rule of constitutional law. See ; (per curiam); ; (per curiam). The request for authorization is denied.