Orestes J. Asencio (“Asencio”), a Florida inmate, appeals the affirmance of the Immigration Judge’s final order of deportation and the denial of his request for a waiver of inadmissibility under 8 U.S.C. § 1105a(a). This court finds no merit in Aseneio’s claims; thus, we affirm the judgment of the Immigration Judge.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Asencio, a native and citizen of Cuba, was admitted to the United States as a lawful permanent resident with an effective entry date of March of 1975. In October of 1980, he was convicted in Florida state court on charges of conspiring to commit a burglary, burglary of a structure, attempted murder in the first degree and unlawful possession of a firearm, and was sentenced to life imprisonment. On that same date, he was also convicted on unrelated charges of burglary and grand theft, and sentenced to fifteen years imprisonment for those offenses.
The Immigration and Naturalization Service (“INS”) initiated deportation proceedings against Asencio in 1982. The INS charged him with deportability under § 241(a)(4) of the Immigration and Nationality Act (“the Act”), 8 U.S.C. § 1251(a)(4), as an alien who, after entry into the United States, was convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal conduct. At his deportation hearing, Asencio acknowledged that his convictions for burglary and grand theft arose from an incident separate from that which gave rise to his attempted murder conviction, and that he had been incarcerated continuously since 1980.
Based upon his convictions, the Immigration Judge (“IJ”) found him to be deportable under § 241(a)(4). The IJ farther held that Asencio’s conviction for conspiracy to commit attempted first degree murder was an aggravated felony as defined in § 101(a)(43) of the Act, 8 U.S.C. § 1101(a)(43). As an aggravated felon who had been incarcerated for more than five years, Asencio was therefore ineligible for a waiver of inadmissibility under § 212(c) of the Act, 8 U.S.C. § 1182(c). Consequently, the IJ ordered Asencio deported to Cuba.
Asencio appealed the IJ’s finding that he was ineligible for relief from deportation to the Board of Immigration Appeals (“the Board”). He argued that he could not be considered an aggravated felon under § 101(a)(43) of the Act, as that subsection, enacted after the dates of his criminal convictions, did not apply retroactively. The Board affirmed the IJ’s decision and dismissed As-encio’s appeal. It found that Asencio was ineligible to apply for relief from deportation under § 212(c) of the Act, 8 U.S.C. § 1182(c), because that subsection, as amended in 1990, “provides that an alien who has been convicted of an aggravated felony and has served at least five years is ineligible for a waiver [of inadmissibility].” The Board noted that the statutory bar to relief applies to all felony convictions, regardless of when the crime was committed or conviction occurred. As-encio’s timely pro se petition for review of the Board’s decision followed.
II. DISCUSSION
A. Deportability
Asencio argues that the IJ erred in finding that he was deportable under § 241(a) of the Act, because the INS did not prove by clear and convincing evidence that his state convictions involved crimes of moral turpitude and arose out of separate schemes of criminal conduct. He further asserts that the IJ abused his discretion by failing to consider his eligibility for a waiver of inadmissibility based on extreme hardship under § 212(h) of the Act. The government contends that Asencio failed to exhaust these claims before the Board, and that this court therefore lacks jurisdiction to review them on appeal.
Under § 106(c) of the Act, 8 U.S.C. § 1105a(c), a court lacks jurisdiction to con
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sider a claim which has not first been presented to the Board, as an alien must exhaust the administrative remedies available to him prior to obtaining judicial review.
Melian v. I.N.S.,
B. Waiver of Inadmissibility
Asencio argues that his 1980 conviction for conspiracy to commit attempted murder and incarceration for more than five years does not render him ineligible to receive a waiver of inadmissibility under § 212(c) of the Act. He maintains that his conviction cannot be considered an aggravated felony as defined by § 101(a)(43) of the Act, because that subsection did not contain an effective date, thereby indicating that Congress intended that it only have a prospective application. Because the term “aggravated felony” does not apply retroactively, Asencio concludes, then the statutory bar to waivers of inadmissibility contained in § 212(c), which only becomes effective if the alien is convicted of an aggravated felony, also has no retroactive application. Asencio fijrther argues that because the statutory bar in § 212(c) only applies to aliens, it does not apply to deportation proceedings.
This court reviews an administrative agency’s statutory interpretation
de novo,
but defers to the agency’s interpretation if it is reasonable.
Perlera-Escobar,
Section 212(c) provides, in relevant part, that “[ajliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General.” While originally designed as a waiver of exclusion, this provision has been extended to provide relief from deportation orders as well.
Jaramillo v. I.N.S.,
The term “aggravated felony” was first introduced into the Act by § 7342 of the Anti-Drug Abuse Act of 1988 (“ADAA”). As codified in 8 U.S.C. § 1101(a)(43), the Act listed attempts and conspiracy to commit murder as offenses which would constitute an aggravated felony, but did not contain an effective date. Section 501(a) of IMMACT amended § 101(a)(48) to include additional offenses, which the IMMACT expressly stated were aggravated felonies only if committed on or after the date of enactment of the amendment. The offenses listed in the original definition, however, were left without an effective date.
In the present case, the Board based its denial of Aseneio’s appeal on its prior decision in Matter of A-A-, ID 3176 (BIA 1992). In that opinion the Board held that although the ADAA did not specifically include a generally effective date for aggravated felony convictions, the construction of the statute as a whole suggested that the aggravated felony definition was meant to encompass all convictions, regardless of date. Based on its interpretation of § 101(a)(43), the Board found that, with the exception of the offenses added to the list of aggravated felonies by the IM-MACT in 1990, the statutory bar in § 212(c) applied retroactively to aliens convicted of aggravated felonies prior to enactment of the ADAA
This issue is one of first impression in this circuit. However, several of our sister circuits have addressed the issue, and have held that the Board’s retroactive application of the statutory bar in § 212(c) is reasonable.
See
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Barreiro v. I.N.S.,
Aseneio’s second argument, that the statutory bar in § 212(c) does not apply to deportation proceedings because the statute only refers to “admissions,” is also without merit. While this court has not specifically addressed this issue, it has held that resident aliens subject to deportation may seek discretionary relief under that section.
See Jaramillo,
Asencio, an aggravated felon who has been incarcerated for more than five years, is statutorily barred under § 212(e) from seeking a waiver of inadmissibility. Therefore, the Board’s dismissal of his request for a stay of deportation is affirmed.
AFFIRMED.