Samuels v. Chertoff ( 2008 )

05-2646-ag
Sam uels v. Chertoff
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT vbn
August Term, 2008
(Argued: September 4, 2008 Decided: December19, 2008)
Docket No. 05-2646-ag
MICHAEL ALEXANDER SAMUELS, also known as Michael Bryan,
Petitioner,
-v-
MICHAEL CHERTOFF, Secretary, Department of Homeland Security; JULIE L. MYERS,
Assistant Secretary, United States Immigration and Customs Enforcement; CHRISTOPHER
SHANAHAN, New York City Field Director, United States Immigration and Customs
Enforcement; DEPARTMENT OF HOMELAND SECURITY; UNITED STATES
IMMIGRATION AND CUSTOMS ENFORCEMENT,*
Respondents.
Before: POOLER, SACK, and KATZMANN,
Circuit Judges.
*
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Secretary Chertoff, Assistant
Secretary Myers, and Director Shanahan are substituted for their predecessors in office, who
were, respectively, Thomas Ridge, Michael J. Garcia, and Edward J. McElroy.
Petitioner seeks review of an order of the Board of Immigration Appeals (“BIA”)
ordering his deportation after denying his application for relief pursuant to Immigration and
Nationality Act § 212(h), 8 U.S.C. § 1182(h). We reject Samuels’s claims that (1) 8 C.F.R. §
1212.7(d) is inconsistent with Section 212(h), (2) the promulgation of Section 1212.7(d) was
arbitrary and capricious, and (3) application of the regulation to his case was impermissibly
retroactive. However, because it is not clear that the BIA correctly applied Section 1212.7(d) to
Samuels’s application, we grant review, vacate and remand.
Petition for review GRANTED.
MATTHEW L. GUADAGNO, Bretz & Coven, LLP, New York, NY (Jules E. Coven and Kerry
W. Bretz, on the brief) for Petitioner.
NATASHA OELTJEN, Assistant United States Attorney for the Southern District of New York,
New York, NY (Michael J. Garcia, United States Attorney, and Neil M. Corwin,
Assistant United States Attorney, on the brief) for Respondents.
POOLER, Circuit Judge:
Michael Alexander Samuels petitions for review of an order of the Board of Immigration
Appeals (“BIA” or “Board”) that affirmed an order of Immigration Judge (“IJ”) Alan Page
finding Samuels deportable and denying his application for relief pursuant to Immigration and
Nationality Act § 212(h), 8 U.S.C. § 1182 (h). While Samuels conceded deportability, he applied
for adjustment of status based on the citizenship of his wife, a form of relief that his commission
of attempted robbery barred. Thus, Samuels applied for a Section 212(h) waiver of this bar,
which is available in the Attorney General’s discretion if the alien’s deportation would result in
“extreme hardship” to a citizen of the United States or legal permanent resident who is the alien’s
spouse, parent, or child.
At the time Samuels was convicted, the Attorney General had not issued a regulation to
2
govern his discretion under Section 212(h). However, during the pendency of Samuels’s
deportation proceedings, the Attorney General, after notice and comment proceedings,
promulgated a regulation codified at 8 C.F.R. § 1212.7(d). That regulation provides that the
Attorney General will ordinarily not exercise discretion favorably where the alien has committed
a violent or dangerous crime but allows for exceptions “in extraordinary circumstances, such as
those involving national security or foreign policy considerations, or cases in which an alien
clearly demonstrates that the denial of the application for adjustment of status . . . would result in
exceptional and extremely unusual hardship.” Samuels contends that the regulation goes beyond
the Attorney General’s statutory authority, is arbitrary and capricious because the Attorney
General deviated from prior precedent without a reasoned explanation, and is impermissibly
retroactive as applied to him. He also argues that the BIA too narrowly interpreted its own
regulation when it denied him relief.
BACKGROUND
On July 31, 1992, Samuels, a native and citizen of Jamaica, entered the United States
illegally with a passport and non-immigrant visa issued under the false name, “Michael Bryan.”
Once here, Samuels moved in with his long-term partner, Mauverine Bryan (“Mauverine”), who
is also the mother of Samuels’s twenty-two-year-old son, Jumaine, and seven-year-old daughter,
Brianna. Mauverine has been a citizen of the United States since May 1, 1996, and before then
was a lawful permanent resident (“LPR”). Mauverine sponsored Jumaine for LPR status, and he
arrived in the United States in November 1996.
On January 13, 1995, Samuels pleaded guilty to attempted robbery in the first degree
under Sections 110 and 160.15(2) of the New York Penal Law. He was sentenced to an
3
indeterminate term of one-and-a-half to four-and-a-half years of imprisonment. On March 10,
1995, the former Immigration and Naturalization Service served an order on Samuels requiring
him to show cause why he should not be deported as a non-immigrant who had remained in the
United States longer than permitted. Six months later, Samuels married Mauverine.
At a July 1996 hearing before Immigration Judge (“IJ”) Alan Page, Samuels conceded
that he was deportable but indicated that he intended to apply for adjustment of status pursuant to
8 U.S.C. § 1255 based on his wife’s citizenship and for a Section 212(h) waiver of the bar to
adjustment of status created by his conviction.
On March 28, 1997, the INS added a new charge of deportability based on Samuels’s
admission under a false name. IJ Page sustained this charge and advised Samuels that he would
require a Section 212(i) waiver of the fraud charge in order to pursue his adjustment of status
application. IJ Page granted Samuels both waivers in a September 25, 1997, decision. He found
that “[Samuels’s] emotional and financial support is essential to his wife’s and his son’s well-
being, and that [Samuels’s] deportation and the resulting separation from his immediate family
would result in extreme hardship particularly to [his] wife as well as to his son.” The IJ also
found that the positive factors affecting the discretionary decision of whether to grant the waivers
outweighed the negative factors.
The BIA reversed in a February 4, 2000, decision. Although the Board applied the same
test as the IJ—extreme hardship—in determining whether Samuels was eligible for consideration
for a waiver, it found that Samuels had not demonstrated extreme hardship. The BIA also found
that Samuels did not merit a favorable exercise of discretion because his criminal and
immigration history manifested “a pattern of unlawful behavior” that was not outweighed by
4
favorable equities.
In May 2000, Samuels moved to reopen the BIA’s decision. In support of his
application, he submitted a letter from a family therapist, Dr. Bonnie Weil, who had seen the
Samuels family twice in March 2000. Weil stated that Jumaine was experiencing severe
separation anxiety and that both Jumaine and Mauverine would suffer extreme hardship if
Samuels were deported. The Board granted reopening and remanded to the IJ after finding that
(1) the letter constituted new evidence that could not have been offered previously and (2)
Jumaine’s psychological problems were likely the result of the Board’s reversal of the IJ’s grant
of discretionary relief.
Samuels and Mauverine testified at a hearing on remand on March 11, 2002. After
hearing Samuels’s and Mauverine’s testimony, IJ Page adjourned for the submission of certain
records. At the next appearance on January 12, 2003, the government informed the IJ that the
Attorney General had recently adopted a new regulation, effective January 27, 2003, to govern
Section 212(h) waivers. In pertinent part, this regulation, now 8 C.F.R. § 1212.7(d), provides:
The Attorney General, in general, will not favorably exercise discretion under
section 212(h)(2) of the Act (8 U.S.C. 1182(h)(2)) to consent to an application . . .
for . . . adjustment of status, with respect to immigrant aliens who are
inadmissible under section 212(a)(2) of the Act in cases involving violent or
dangerous crimes, except in extraordinary circumstances, such as those involving
national security or foreign policy considerations, or cases in which an alien
clearly demonstrates that the denial of the application for adjustment of status . . .
would result in exceptional and extremely unusual hardship. Moreover,
depending on the gravity of the alien’s underlying criminal offense, a showing of
extraordinary circumstances might still be insufficient to warrant a favorable
exercise of discretion under section 212(h)(2) of the Act.
The IJ offered the parties an opportunity to brief the applicability of the new regulation.
In response, Samuels argued that in departing from the statutory standard of “extreme hardship,”
5
the Attorney General had gone outside his statutory authority. In addition, Samuels contended
that the new rule could not be applied retroactively to his conviction.
In his April 1, 2003, decision, IJ Page denied Samuels a Section 212(h) waiver and
therefore pretermitted his application for adjustment of status. Although the IJ found that
Samuels had demonstrated that his wife and children would experience extreme hardship if he
were deported, the IJ also found that the equities did not weigh in Samuels’s favor, making the
grant of a waiver inappropriate. Because of the result he reached on the discretionary factors, the
IJ found it unnecessary to determine whether Section 1212.7(d) applied retroactively.
On appeal to the Board, Samuels argued that the IJ’s discretionary decision was clearly
erroneous. The government also appealed, arguing that the IJ’s “extreme hardship” finding was
erroneous. However, the government did not ask the BIA to apply the new regulation.
The BIA upheld the IJ’s finding of extreme hardship but held that Section 1212.7(d)
applied to govern the exercise of discretion that occurs after “extreme hardship” is found. After
considering the arguments Samuels had made to the IJ, the Board found that (1) it had no
jurisdiction to consider whether the regulation was beyond the Attorney General’s statutory
authority, and (2) the regulation did not have an impermissibly retroactive effect because an
application for adjustment of status is a continuing application. Applying the regulation, the
Board held that Samuels did not merit a favorable exercise of discretion because he did not show
that his family would suffer “exceptional and extremely unusual hardship” following his
deportation. Because Samuels did not show “exceptional and extremely unusual hardship,” the
BIA considered it unnecessary to consider any other discretionary factors.
Samuels filed a habeas petition in district court, which was transferred to this court
6
pursuant to Section 106(c) of the REAL ID Act, Pub. L. No. 109-13, Div. B, 119 Stat 231, 310-
11 (2005). Samuels argues that (1) Section 1212.7(d) should not be accorded deference under
Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984), because it is
inconsistent with the statutory structure and irrationally departs from the BIA’s prior case law;
(2) the regulation is impermissibly retroactive as applied to him; (3) he is entitled to a remand
because he had no notice that the Board would apply the regulation to him; and (4) the Board
misinterpreted Section 1212.7(d).
DISCUSSION
I. Consistency with the statute.
Section 212(h) provides: “The Attorney General may, in his discretion, waive the
application of [the bar to adjustment of status triggered by crimes involving moral turpitude] . . .
if . . . in the case of an immigrant who is the spouse . . . of a citizen of the United States . . . it is
established to the satisfaction of the Attorney General that the alien’s denial of admission would
result in extreme hardship to the United States citizen or lawfully resident spouse . . . of such
alien. . . .” 8 U.S.C. § 1182(h)(1)(B). However “extreme hardship” is only the first step; the
alien must also obtain the Attorney General’s consent to apply for adjustment of status. The
Attorney General exercises his discretion with respect to that consent “pursuant to such terms,
conditions and procedures as he may by regulations prescribe. . . .” 8 U.S.C. § 1182(h)(2).
Because proof of “extreme hardship” constitutes only a threshold showing, Section
1212.7(d) is not inconsistent with Section 212 (h). Rather, in promulgating Section 1212.7(d),
the Attorney General exercised the authority given to him by Congress to set the standards that
will guide the exercise of discretion that follows after the alien shows “extreme hardship.”
7
Samuels argues, however, that we must go beyond the language of Section 212(h) and
consider the formerly parallel section applicable to suspension of deportation. Prior to the
enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(“IIRIRA”), Pub. L. No. 104-208, Div. C, 110 Stat. 3009-546 (1996), the showing required for
obtaining suspension of deportation was “extreme hardship.” 8 U.S.C. § 1254 (1995) (repealed).
In IIRIRA, Congress repealed suspension of deportation, replaced it with “cancellation of
removal” and changed the standard to “exceptional and extremely unusual hardship.” See 8
U.S.C. § 1229b(b)(1)(D). Because Congress made no similar change in Section 212(h), Samuels
reasons that Congress intended to retain the “extreme hardship” standard for Section 212(h)
waivers. Samuels also argues that we must deem Congress to have been aware that the BIA used
a flexible multi-factored standard for exercising its discretion on waivers when Congress
heightened the standard for cancellation of removal without enacting a corresponding change to
Section 212(h). See In re Marin, 16 I. & N. Dec. 581, 584-85 (B.I.A. 1978) (stating that there is
no one “inflexible” test to guide the agency’s discretion under Section 212(c) and listing various
factors that could be considered); In re Mendez-Morales, 21 I. & N. Dec. 296, 299-300 (B.I.A.
1996) (applying Marin to Section 212(h) waiver request).
Congress’s failure to amend Section 212(h) when it amended the suspension of
deportation provision, in light of its presumed awareness that the Board had exercised its
discretion under Section 212(h) using a nuanced, multi-factored standard, might argue for a
holding that the regulation was ultra vires if the statute were ambiguous. However, the statute is
not ambiguous. Section 212(h) unambiguously provides broad discretion to the Attorney
General with respect to waivers and grants the authority to promulgate regulations governing the
8
exercise of that discretion. The regulation at issue here simply guides the Attorney General’s
discretion in cases involving aliens who are inadmissible as a consequence of having committed
violent or dangerous crimes; it does not amend or override the statute. Its promulgation therefore
was not ultra vires. In so holding, we join those of our sister circuits that have addressed this
question. See Perez Pimentel v. Mukasey, 530 F.3d 321, 325-26 (5th Cir. 2008) (per curiam)
(holding that the regulation constitutes a permissible construction of the statute and is not ultra
vires because Congress gave the Attorney General broad discretion to set those standards); Mejia
v. Gonzales, 499 F.3d 991, 996 (9th Cir. 2007) (similar).1
Samuels also argues that the regulation is inconsistent with the statute because it
effectively leaves no discretion to the IJ to grant a waiver. This is hyperbole. The regulation
states only that the Attorney General will not favorably exercise his or her discretion “in general”
except in extraordinary circumstances such as when the alien shows “exceptional and extremely
unusual hardship,” national security or foreign policy concerns are implicated, or other
“extraordinary circumstances” are present. See Mejia, 499 F.3d at 996-97 ( upholding Section
1212.7 while acknowledging Succar v. Ashcroft, 394 F.3d 8 (1st Cir. 2005), in which the court
struck down a regulation that categorically eliminated eligibility for a certain type of relief for
certain aliens). There is no basis, therefore, on which we can conclude that the Attorney General
acted outside his delegated authority.
II. Deviation from prior precedent.
Even if Section 1212.7(d) were consistent with Section 212(h), Samuels urges that the
1
Mejia and Perez Pimentel discuss Section 212.7(d). This section was renumbered as
Section 1212.7(d).
9
regulation is arbitrary and capricious because (1) it represents a marked deviation from such prior
precedent as Marin and Mendez-Morales, and (2) the Attorney General did not explain the
agency’s change of course. Samuels relies principally on INS v. Yueh-Shaio Yang, in which the
Supreme Court said:
Though the agency’s discretion is unfettered at the outset, if it announces and
follows–by rule or by settled course of adjudication–a general policy by which its
exercise of discretion will be governed, an irrational departure from that policy (as
opposed to an avowed alteration of it) could constitute action that must be
overturned as “arbitrary, capricious, or an abuse of discretion” within the meaning
of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A).
519 U. S. 26, 32 (1996) (brackets omitted).
For four reasons, Yueh-Shaio Yang does not help Samuels. First, the precedents Samuels
cites as representing pre-existing law are not as different from the new regulation as Samuels
suggests. In Marin, the BIA recognized that
As the negative factors grow more serious, it becomes incumbent upon the
applicant to introduce additional offsetting favorable evidence, which in some
cases may have to involve unusual or outstanding equities. Such a showing at
times may be required solely by virtue of the circumstances and nature of the
exclusion ground sought waived.
16 I. & N. Dec. at 585 (emphasis added). And in Mendez-Morales, the Board rejected
“substantial” discretionary factors in the alien’s favor in light of his very serious crime. 21 I. &
N. Dec. at 302-04. Similarly, the Board has said:
We also have pointed out that as the negative factors grow more serious, it
becomes incumbent upon the alien to introduce additional offsetting favorable
evidence, which in some cases may have to involve unusual or outstanding
equities. Such a heightened showing is required when an alien has been convicted
of a serious drug offense, particularly one relating to the trafficking or sale of
drugs. The necessity of demonstrating unusual or outstanding equities is not
exclusively triggered by serious crimes involving controlled substances, however.
Rather, one must examine the gravity of the offense per se.
10
In re Edwards, 20 I. & N. Dec. 191, 195 (B.I.A. 1990). Thus, while the regulatory standard may
be more stringent than the standard in the Board’s prior cases, those cases strongly suggested that
a serious crime required outstanding offsetting equities in order to warrant a favorable exercise of
discretion. Indeed, the fact that the new regulation has the effect of making the negative equities
of serious crimes stronger in most circumstances is less like an irrational departure from prior
cases, and more like a readjustment of the relative weight accorded to the equities that a
petitioner might present.
Second, Section 1212.7(d) does not constitute an unannounced departure from a prior
standard. Rather, the regulation was promulgated following notice-and-comment rulemaking.
See Waiver of Criminal Grounds of Inadmissibility for Immigrants, Interim Rule with Request
for Comments, 67 Fed. Reg. 78675 (Dec. 26, 2002).
Third, the change in law did not go unexplained. In particular, the Federal Register
referred the reader to In re Jean, 23 I. & N. Dec. 373 (A.G. 2002), where the new standard was
first promulgated. See 67 Fed. Reg., at 78676-77. Jean set a standard almost identical to Section
1212.7(d) for waivers under a different section of the INA. The Attorney General first explicitly
condemned an earlier Board precedent, which he felt gave too little deference to the gravity of
the alien’s criminal offense; he found the Board’s rationale to be “wholly unconvincing” because
“[t]he majority there treated the applicant’s crime–participation in a burglary in which one of the
applicant’s co-conspirators shot a woman to death in front of her children–as a virtual
afterthought.” 23 I. & N. Dec. at 382. Turning to Jean’s crime—shaking a baby so severely that
the baby died—the Attorney General then said:
In my judgment, that balance [between the nature of the offense and discretionary
11
factors weighing in the alien’s favor] will nearly always require the denial of a
request for discretionary relief from removal where an alien’s criminal conduct is
as serious as that of the respondent. Congress has authorized the Attorney
General under section 209(c) to waive an alien’s inadmissibility, notwithstanding
certain otherwise disqualifying convictions, “for humanitarian reasons, to assure
family unity, or when it is otherwise in the public interest.” Congress did not
compel the Attorney General to do so. It would not be a prudent exercise of the
discretion afforded to me by this provision to grant favorable adjustments of status
to violent or dangerous individuals except in extraordinary circumstances, such as
those involving national security or foreign policy considerations, or cases in
which an alien clearly demonstrates that the denial of status adjustment would
result in exceptional and extremely unusual hardship. Moreover, depending on
the gravity of the alien’s underlying criminal offense, such a showing might still
be insufficient.
Id. at 383 (footnote omitted). The Attorney General’s rationale may not persuade all readers, but
it is reasoned and thus the argument that it is “arbitrary and capricious” because it departs from
prior precedent is misplaced. Cf. Fox Television Stations, Inc. v. FCC, 489 F.3d 444, 457 (2d
Cir. 2007) (requiring that an agency give a “reasoned explanation” for a change in policy).
Fourth, the Attorney General is authorized to review decisions of the Board, on the
referral of the Board or the Secretary of Homeland Security or on his or her own initiative. See 8
C.F.R. § 1003.1(h). Thus, his (or her) determination that Board precedent is incorrect does not
necessarily represent a change in policy by the Attorney General. Instead, the Attorney General
appears to have set policy on how he would exercise his discretion for the first time in Jean.
We, therefore, reject Samuels’s argument that the promulgation of Section 1212.7(d) was
arbitrary and capricious.
III. Retroactivity.
In determining whether a statute is impermissibly retroactive, the court first looks to
whether the law clearly specifies that it is to have retroactive effect. Landgraf v. USI Film
12
Prods., 511 U.S. 244, 257 (1994). A regulation or law, which, like this one, simply gives an
effective date, does not give a clear indication that it is to have retroactive effect. See INS v. St.
Cyr, 533 U.S. 289, 317 (2001) (“[T]he mere promulgation of an effective date for a statute does
not provide sufficient assurance that Congress specifically considered the potential unfairness
that retroactive application would produce.”).2 Therefore, we must proceed to the second
Landgraf step, in which we ask whether application of Section 1212.7(d) to aliens who, like
Samuels, pleaded guilty before the regulation was promulgated would produce “an impermissible
retroactive effect.” Id. at 320. A statute has “retroactive effect when it takes away or impairs
vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or
attaches a new disability, in respect to transactions or considerations already past.” Id. at 321(internal quotation marks omitted).
Samuels argues that we must find that Section 1212.7(d) would have an impermissibly
retroactive effect on him because (1) the new regulation makes it effectively impossible to obtain
a waiver; (2) at the time he pleaded guilty, he had a justifiable expectation that his application for
a waiver would be judged under the easier standard employed before Section 1212.7(d); and (3)
he has incurred many more obligations and ties in reliance on the previously applicable waiver
standard.
2
Quoting Henderson v. INS, 157 F.3d 106, 130 (2d Cir. 1998), Samuels argues that the
Attorney General made clear that Section 1212.7(d) was not to apply retroactively because “a
statute that is silent with respect to retroactivity is not ‘ambiguous.’” Petr’s Brief at 22.
However, confronted with the precise circumstance present here—the recitation of an effective
date without any further statement as to retroactivity—the St. Cyr Court proceeded to analyze
whether the statute in question would have impermissible retroactive effect. We conclude,
therefore, that we must follow St. Cyr and proceed to the second Landgraf step. We note in
passing that in Henderson, the legislative history also indicated that Congress did not intend the
statute to apply retroactively. See 157 F.3d at 129-30.
13
We have already concluded that while the new regulation makes getting a waiver more
difficult for certain aliens, it does not make it “effectively impossible.” Samuels’s second
argument, which is based on his legitimate expectations, also fails because at the time he pleaded
guilty he was not married and had no other qualifying relative. See 8 U.S.C. § 1182(h)(1)(B)
(restricting Section 212(h) relief to aliens with certain qualifying relatives). Thus, at the time of
his conviction, Samuels simply did not qualify for Section 212(h) relief. Even if an alien who
was married at the time he pleaded guilty could argue that the application of Section 1212.7(d) to
his situation would have an impermissibly retroactive effect, we fail to understand how Samuels
or other aliens who at the time of their pleas lacked facial eligibility for Section 212(h) relief can
legitimately argue that they had a vested right to apply for such waivers when they pleaded guilty.
Samuels relies on Restrepo v. McElroy, 369 F.3d 627 (2d Cir. 2004), to support his third
argument, which is that the regulation cannot be applied to him because he acquired additional
equities—his marriage, the birth of a child, and a house—in reliance on the continued availability
of Section 212(h) relief under the more flexible standard applicable before the adoption of
Section 1212.7(d). Restrepo is inapposite. At the time Restrepo was convicted of an aggravated
felony, he was eligible to apply for a waiver of inadmissibility pursuant to INA § 212(c), 8 U.
S.C. § 1182(c) (1996) (repealed) and could have filed an affirmative application for that relief.
369 F.3d at 632. The Anti-Terrorism and Effective Death Penalty Act repealed Section 212(c)
prior to Restrepo’s filing an application for relief. Restrepo claimed that he had forgone his
opportunity to file an immediate affirmative application in order to accumulate more equities in
support of a waiver. Id. at 632-33. We said: “It cannot . . . be doubted that an alien such as
Petitioner might well decide to forgo the immediate filing of a 212(c) application based on the
14
considered and reasonable expectation that he would be permitted to file a stronger application
for 212(c) relief at a later time. It seems equally clear that AEDPA’s undermining of this settled
expectation represents a prototypical case of retroactivity.” Id. at 634 (footnote omitted).
Restrepo was thus in a different position from Samuels. First, unlike Restrepo and the
petitioners in St. Cyr, Samuels had no vested interest in applying for Section 212(h) relief at the
time he pleaded guilty because he lacked a qualifying relative. Cf. Restrepo, 369 F.3d at 632; St.
Cyr, 533 U.S. at 314-15 (“Two important legal consequences ensued from respondent’s entry of
a guilty plea in March 1996: (1) He became subject to deportation, and (2) he became eligible for
a discretionary waiver of that deportation . . . .”). Moreover, Samuels cannot claim that he ever
had a vested right in the Attorney General’s favorable exercise of discretion under Section
212(h). Second, a comparison of the change brought about by the promulgation of Section
1212.7(d) with the outright repeal of Section 212(c) cuts against a finding of retroactivity. As
explained previously, Section 1212.7(d) somewhat diminished the expectation that a person
convicted of a violent crime could obtain a Section 212(h) waiver, but, unlike Section 212(c)
waivers, the relief remained available. This distinction between narrowing a path to relief and
eliminating it altogether might not be sufficient alone to hold that a statute or regulation is not
impermissibly retroactive. However, for aliens who, like Samuels, had no vested right to apply
for a Section 212(h) waiver when they pleaded guilty, the distinction between eliminating relief
altogether and raising the bar for relief is additional support for our holding that Section
1212.7(d) does not have an impermissibly retroactive effect. See Mejia, 499 F.3d at 998 (finding
no impermissible retroactivity in part because “[b]oth before and after the adoption of the
regulation, [petitioners] faced only possible deportation.” ).
15
IV. Notice.
Samuels also argues that a remand is required because he was not given notice that the
BIA intended to apply Section 1212.7(d) and therefore had no opportunity to respond. We reject
this argument primarily because the government’s request to the IJ to apply the new regulation
gave Samuels notice and an opportunity to respond. He did respond, and the BIA considered the
arguments that he made in his brief before finding that Section 1212.7(d) could be applied to his
case.
In addition, whether the pre- or post-regulatory standard was to be applied, Samuels had
every incentive to offer as much evidence favoring a waiver as he could. Consequently, Samuels
had adequate notice.
V. Application.
Finally, Samuels argues that even assuming Section 1212.7(d) is valid, the Board
misapplied it by considering only one portion of the regulation. In particular, he contends that
the Board failed to consider whether other facts, such as his rehabilitation and acquisition of a
home or business, could constitute “extraordinary circumstances” within the meaning of Section
1212.7(d). The government contends that we lack jurisdiction to consider this argument because
Samuels merely attacks the Board’s discretionary weighing of factors.
We hold that we have jurisdiction to consider Samuels’s argument. Samuels accurately
claims that (1) the regulation’s “in general” language implies that relief could be made available
as an exception to the Attorney General’s typical approach, and (2) the “such as” language is
illustrative, not exhaustive, implying that there could be “extraordinary circumstances” beyond
foreign policy and national security considerations and “exceptional and extremely unusual
16
hardship.” See Jarecki v. G. D. Searle & Co., 367 U.S. 303, 307 (1961) (noting that a statutory
term “gathers meaning from the words around it”). Samuels therefore argues that the Board
applied the wrong standard, an argument that we have jurisdiction to consider. See Xiao Ji Chen
v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d Cir. 2006) (indicating that we have jurisdiction to
determine whether the Board used an erroneous standard in making a discretionary
determination).
We are unable to conclude with confidence that the Board applied Section 1212.7(d)
correctly. We concede that it initially paraphrased the regulation accurately:
[T]he Attorney General will not, in general, favorably exercise discretion on
behalf of an alien who seeks a 212(h) waiver and is inadmissible . . . based upon a
violent or dangerous crime. See 8 C.F.R. § 1212.7(d). Exceptions may be made
in extraordinary cases, such as cases involving national security or foreign policy
considerations or cases in which the alien demonstrates that the denial of the
waiver would result in “exceptional and extremely unusual hardship.”
However, the Board then considered only whether the hardship that would accrue to
Samuels’s family was “exceptional and extremely unusual.” Indeed, the Board explicitly stated
that “[W]e find that the respondent has not shown that his family would suffer ‘exceptional and
extremely unusual hardship’ upon his deportation, and we therefore find that the respondent does
not merit a favorable exercise of discretion for a waiver under section 212(h).” (citing 8 C.F.R. §
1212.7(d)) (emphasis added). It is possible that the Board considered Samuels’s rehabilitation
and acquisition of property in this country and sub silentio decided that they were not sufficiently
“extraordinary,” a conclusion that would be entitled to considerable deference. But, in light of
the Board’s failure to mention these factors, its relatively extensive analysis of Samuels’s family
situation, and its use of language that implied that if no “exceptional and extremely unusual
17
hardship” was suffered by the family, then no favorable exercise of discretion was warranted, it
seems reasonably likely that the Board simply overlooked them. It is for the Board to consider in
the first instance whether the other equities Samuels claimed are extraordinary. We, therefore,
must vacate and remand to the Board.
CONCLUSION
We, therefore, grant review and vacate and remand on the narrow issue of whether the
BIA properly applied Section 1212.7(d) to Samuels.
18