Lovan v. HolderLovan v. Holder
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Chanh Lovan, a citizen of Laos, petitions for review of the final order of the Board of Immigration Appeals (BIA) removing him from the United States because he was convicted in 1991 of what is now an “aggravated felony.” See
I. Background
The relevant facts can be briefly summarized, but the applicable immigration laws and precedents are complex. Lovan entered the United States as a refugee in 1981 and became a lawful permanent resident four years later. He was convicted by an Arkansas jury in 1991 of sexually abusing an eight-year-old child. Sentenced to three years in prison, Lovan was discharged for good behavior after serving thirteen months. He converted to Christianity while in prison and remains a practicing Christian. His wife and children are U.S. citizens.
At the time of Lovan’s conviction, an alien convicted of an aggravated felony was deportable, but his sex crime did not fall within the statutory definition of aggravated felony.
See
In February 2002, Lovan visited Laos to attend his mother’s funeral and to visit his ailing father, traveling under a Permit to Reenter the United States issued by the Immigration and Naturalization Service (INS). He returned and was re-admitted by an immigration official in March 2002. The following October, Lovan applied for naturalization. The INS then filed a notice to appear alleging that he was deport-able because of an aggravated felony conviction.
Lovan responded by applying for a waiver of deportation under former INA § 212(c), and for asylum, withholding of removal, and relief under the CAT. The IJ ordered Lovan removed to Laos, concluding he is ineligible for a § 212(c) waiver, he is barred from asylum and withholding of removal because convicted of a “particularly serious crime,” and he failed to prove the likelihood of torture that is the basis for relief under the CAT. The BIA dismissed Lovan’s administrative appeal, agreeing with the IJ’s conclusions. Lovan petitions for review of all rulings except
II. Deportation Issues
Lovan’s primary contention is that the BIA erred in concluding he is ineligible for waiver of deportation under former INA § 212(c). As relevant here, that statute provided: “Aliens lawfully admitted for permanent residence who temporarily proceeded abroad ... may be admitted in the discretion of the Attorney General without regard to the provisions of subsection (a) of this section.”
1. The government responds with a threshold argument-Lovan cannot be eligible for relief under former § 212(c) because Congress repealed that statute in 1996. See IIRIRA § 304(b), 110 Stat. at 3009-597. After § 304(b) was enacted, circuit courts disagreed whether the repeal deprived previously eligible lawful permanent resident aliens of discretionary § 212(c) relief. The Supreme Court resolved one facet of this issue in INS v. St. Cyr, 533 U.S. 289, 314-26, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), concluding that § 304(b) would have an impermissible retroactive effect if applied to aliens who became eligible for § 212(c) relief by pleading guilty to aggravated felonies pri- or to the statute’s repeal. Therefore, the Court construed § 304(b) as allowing those aliens to seek § 212(c) relief.
The government argues that Lovan may not be granted the relief afforded in St. Cyr because he was convicted by a jury in 1991, and St. Cyr premised its retroactive effect analysis on the Court’s perception that lawful permanent residents reasonably relied on the continuing availability of § 212(c) relief in deciding to plead guilty. 533 U.S. at 321-24, 121 S.Ct. 2271. Once again, our sister circuits disagree on this issue. Some have accepted the government’s argument. See Montenegro v. Ashcroft, 355 F.3d 1035, 1037 (7th Cir.2004); Dias v. I.N.S., 311 F.3d 456, 458 (1st Cir.2002), ce rt. denied, 539 U.S. 926, 123 S.Ct. 2574, 156 L.Ed.2d 603 (2003); Armendariz-Montoya v. Sonchik, 291 F.3d 1116, 1121-22 (9th Cir.2002), cert. denied, 539 U.S. 902, 123 S.Ct. 2247, 156 L.Ed.2d 110 (2003). Others have decided that the impermissible retroactive effect identified in St. Cyr is not limited to aliens convicted by guilty plea. See Atkinson v. Attorney General, 479 F.3d 222, 230-31 (3d Cir. 2007); Carranza-De Salinas v. Gonzales, 477 F.3d 200, 206-09 (5th Cir.2007); Hem v. Maurer, 458 F.3d 1185, 1200 (10th Cir.2006); Restrepo v. McElroy, 369 F.3d 627, 631-40 (2d Cir.2004). 1 Among the latter courts, the Fifth Circuit requires aliens convicted after a trial to prove actual reliance on former § 212(c) to establish eligibility for relief under St. Cyr. CarranzaDe Salinas, 477 F.3d at 205; see also Wilson v. Gonzales, 471 F.3d 111, 122 (2d Cir.2006) (requiring “objective evidence” the alien “almost certainly relied”). The Third Circuit in Atkinson disagreed.
Having carefully reviewed these various decisions, we will follow the Third Circuit’s decision in
Atkinson.
That court first noted that requiring actual reliance in each case “runs contrary” to the Supreme Court’s retroactivity analysis in
Landgraf v. USI Film Products,
511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), which was the basis for the decision in
St. Cyr.
Prior to IIRIRA’s enactment, Atkinson remained free to apply for a waiver under section 212(c) despite his conviction of an aggravated felony. After IIRIRA, he lost that right.... IIRIRA [thereby] attached a new legal consequence to Atkinson’s conviction: the certainty — rather than the possibility — of deportation. Such a change in legal consequences based on events completed before IIRIRA’s enactment constitutes an impermissible retroactive effect.
479 F.3d at 230. We agree. Thus, Lovan is not precluded from relief under
St. Cyr.
Whether Lovan is eligible for relief under former § 212(c) as applied in
St. Cyr
is an issue of law that we have jurisdiction to consider under
2. Relief under
St. Cyr
turns on how the agency would have applied former § 212(c) had Lovan traveled to Laos, reentered this country, and been placed in deportation all before the repeal of § 212(c) in 1996. Lovan argues he is eligible for relief under former § 212(c) because, when he traveled to Laos and returned to the United States in 2002, he was excludable as an alien who had been convicted of a “crime involving moral turpitude.”
The INA and predecessor statutes distinguish between deportation of aliens present in the country and exclusion of aliens seeking admission. The current statutes maintain the distinction but refer to “deportation” as “removal” and to “ex-cludable” aliens as “inadmissable.”
See
Prior to 1996, classes of excludable aliens were defined in INA § 212(a),
Adhering to an earlier decision of the Attorney General construing comparable provisions in prior law, the BIA concluded this was an arbitrary result that should be avoided.
In re G-A-,
7 I.
&
N. Dec. 274 (B.I.A.1956), following
In re L-,
1 I. & N. Dec. 1 (BIA 1940). In
G-A-,
a lawful permanent resident was admitted after traveling abroad despite being excludable due to a prior criminal conviction. The INS sought his deportation on the ground that he entered the country while excluda
The BIA initially refused to apply this expansive reading of § 212(c) to lawful permanent residents who never left the United States. But the Second Circuit held that this was an arbitrary, unfair distinction that violated the Equal Protection Clause.
Francis v. INS,
532 F.2d 268 (2d Cir.1976). The BIA acquiesced in this decision in
In re Silva,
16 I. & N. Dec. 26, 30 (B.I.A.1976), but later held that a lawful permanent resident who never left the country is eligible for § 212(c) relief only if he is “similarly situated” to an excludable alien because his ground of deportation is comparable to a ground of exclusion.
In re Wadud,
19 I. & N. Dec. 182, 184-86 (B.I.A.1984). In numerous pre-IIRIRA decisions, the BIA applied this “comparable ground” standard.
See, e.g., In re Jimenez-Santillano,
21 I. & N. Dec. 567, 572-77 (B.I.A.1996);
In re Esposito,
21 I. & N. Dec. 1, 5-11 (B.I.A.1995);
In re Montenegro,
20 I. & N. Dec. 603, 604-06 (B.I.A.1992). The statutory basis for these decisions appeared to evaporate when Congress repealed § 212(c) in 1996. But after
St. Cyr
brought former § 212(c) back into play, the Attorney General promulgated a regulation barring a waiver under former § 212(c) if the alien is deportable “on a ground which does not have a statutory counterpart in section 212 of the Act.”
In In re Blake, 23 I. & N. Dec. 722, 727-29 (B.I.A.2005), the BIA applied this regulation and held that the aggravated felony of sexual abuse of a minor did not have a “statutory counterpart” ground of inadmissibility in INA § 212(a). Therefore, even if sexual abuse of a minor was “a crime involving moral turpitude” making the alien inadmissible under § 212(a)(2), relief under former § 212(c) as applied in St. Cyr was not available to a lawful permanent resident whose ground of deportation (removal) was a pre-IIRIRA conviction for this particular aggravated felony. We upheld Blake’s interpretation of former § 212(c) in Soriano v. Gonzales, 489 F.3d 909, 909 (8th Cir.2006). And in Vue v. Gonzales, 496 F.3d 858, 860-61 (8th Cir.2007), we concluded that this statutory counterpart limitation on relief under former § 212(c) does not violate the Equal Protection Clause. The BIA relied on Blake and Soriano in rejecting Lovan’s application for discretionary relief under former § 212(c).
Lovan argues he is nonetheless eligible for relief under former § 212(c) and
St. Cyr
because, prior to IIRIRA’s enactment, he was in precisely the same position as the lawful permanent residents who were afforded this relief in
In re G-A-
and
In re L-:
he left the country after his 1991 conviction; he was readmitted despite being excludable because convicted of “a
Under Blake and Soriano, which is binding on our panel, Lovan would be ineligible for relief under former § 212(c) if he had never left the country after his 1991 conviction for sexual abuse of a minor because of the statutory counterpart doctrine. That doctrine evolved from the Second Circuit’s decision in Francis as adopted by the BIA in Silva, decisions intended to ameliorate perceived unfairness in denying to a lawful permanent resident who never left the country a discretionary remedy available to an identically situated lawful permanent resident who left and returned. But Lovan relies on the earlier BIA decisions in In re G-A- and In re L-, decisions intended to ameliorate a different unfairness — denying discretionary § 212(c) relief to an excludable lawful permanent resident who temporarily left the country, merely because immigration officials overlooked his excludability when he reentered and then commenced deportation proceedings based on the conviction that made him excludable. 5 Rationalizing the competing equities in these situations is not easy, and Congress has delegated that task to the agency, not to us. But In re G-A- and In re L-, though apparently not applied in published BIA opinions in the early 1990’s, were never overruled, nor were they expressly made subject to the statutory counterpart doctrine. Indeed, the Attorney General expressly declined a request by the INS to reconsider these decisions in In re Hernandez-Casillas, 20 I. & N. Dec. 262, 284 n. 6 (BIA 1991).
In Romero-Rodriguez v. Gonzales, 488 F.3d 672, 677-79 (5th Cir.2007), the Fifth Circuit remanded a case to the BIA because it failed to consider whether the alien was eligible for nunc pro tunc § 212(c) relief under the In re L- line of cases. That is the situation here. Thus, remand is the proper disposition of this petition for review. If the BIA would have made Lovan eligible for § 212(c) relief, nunc pro tunc, prior to the statute’s repeal, then it was an error of law in applying St. Cyr to deny him eligibility under former § 212(c) at this time, and the agency should proceed to determine whether he warrants a § 212 waiver. On the other hand, if we have misinterpreted footnote 6 of the Attorney General’s decision in Hernandez-Casillas, then the BIA must clearly explain why Blake rather than G-A- applies to this case and makes Lovan ineligible for relief under former § 212(c) and St. Cyr.
3. Lovan further argues that application of
Blake
and our decision in
Soriano
would violate his constitutional right to equal protection as construed by the Second Circuit in
Francis.
We need not con
4. Finally, Lovan argues that retroactively applying the amended definition of aggravated felony to his pre-IIRIRA conviction for sexual abuse of a minor violated the due process right to “fair notice and repose” recognized in
Landgraf,
511 U.S. at 267, 114 S.Ct. 1483. The Second Circuit squarely rejected this contention in
Kuhali v. Reno,
266 F.3d 93, 111-12 (2d Cir.2001).
Accord Mendez-Morales v. INS,
119 F.3d 738, 739 (8th Cir.1997);
Ahdab v. Gonzales,
189 Fed.Appx. 73, 78-79 (3d Cir.2006) (unpublished);
Cordes v. Gonzales,
421 F.3d 889, 895-96 (9th Cir.2005),
vacated for lack of jurisdiction,
517 F.3d 1094, 1095 (2008). We agree. As Lovan does not contest that his offense constituted “sexual abuse of a minor,” he is removable because of this aggravated felony conviction. See
III. Withholding of Removal
Lovan argues that the BIA erred in concluding that he is ineligible for withholding of removal to Laos because his “life or freedom would be threatened in that country” on account of his religion, which is a protected ground. See
We lack jurisdiction to review this contention for two distinct reasons. First, Lovan is removable for having committed an aggravated felony, a type of criminal offense enumerated in
[Gjiven§ 1252(a)(2)(C) , the undisputed classification of Petrov’s crime as an “aggravated felony” means that we are not authorized to inquire whether it is also a “particularly serious crime” — for the latter characterization affects the agency’s decision, not ours.
No rule of law prevents the removal of aliens who have committed immigration fraud [or sexual abuse of a minor]. See INS v. Yueh-Shaio Yang, 519 U.S. 26, 117 S.Ct. 350, 136 L.Ed.2d 288 (1996).
Petrov v. Gonzales, 464 F.3d 800, 801-02 (7th Cir.2006) (emphasis in original). We agree. Thus, no reviewable error of law has been raised.
Second, the BIA has developed administrative standards for determining whether an aggravated felony that does not fall within the statute’s
per se
rule
6
is a “par
IV. Convention Against Torture
Finally, Lovan argues that he is entitled to relief under the CAT. See
The petition for review is granted and the case is remanded to the BIA for further proceedings not inconsistent with this opinion.
Notes
. The Fourth Circuit’s position seems unclear. Compare Chambers v. Reno, 307 F.3d 284, 290-93 (4th Cir.2002), with Olatunji v. Ashcroft, 387 F.3d 383, 389-95 (4th Cir.2004).
. Under current law, the authority to suspend deportation has been replaced by more restrictive “cancellation of removal” provisions.
See
. In Edwards v. INS, 393 F.3d 299, 308-09 (2d Cir.2004), the court observed that the Attorney General and the BIA have employed this type of “nunc pro tunc ” remedy for more than sixty years, and Congress has never countermanded the practice. In Edwards, the court invoked the analogous judicial remedy in a different situation involving former § 212(c). We do not reach that question in this case.
. The IJ simply stated in a brief footnote that “the government is not required to charge him with removability at the time of his last entry,” citing In re Ruis, 18 I. & N. Dec. 320 (B.I.A.1982). Ruis involved a completely different issue and was in no way inconsistent with In re G-A-.
. These two doctrines may have different impacts that seem perplexing in a case like this, but this reflects the different inequities they were designed to address. When a lawful permanent resident has never left the country, the BIA in cases like Blake focuses on whether the ground of deportation actually charged has a statutory counterpart, without regard to whether another ground of deportation could have been charged that does have a statutory counterpart, such as conviction of a crime involving moral turpitude. By contrast, in applying former § 212(c) nunc pro tunc in cases like G-A-, the focus is on whether the lawful permanent resident when he returned from a trip abroad was in fact excludable for any reason, including prior conviction of a crime involving moral turpitude.
.