Bezabe v. Attorney General of the United States ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
9-29-2006
Bezabe v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-3057
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-3057
CARLOS BEZABE,
Petitioner,
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent.
On Petition for Review of an Order
of the Board of Immigration Appeals
(BIA No. A23-226-854)
Submitted pursuant to Third Circuit LAR 34.1(a)
September 11, 2006
Before: FUENTES, FISHER, and BRIGHT,* Circuit Judges.
(Filed: September 29, 2006 )
*
The Honorable Myron H. Bright, Senior Judge, United States Court of Appeals
for the Eighth Circuit, sitting by designation.
OPINION OF THE COURT
FUENTES, Circuit Judge.
Carlos Bezabe petitions for review of a decision of the Board of Immigration
Appeals (“BIA”) affirming an Immigration Judge’s order of removal, and denying his
motion to reopen his proceedings. We will deny Bezabe’s petition for review.
I. Background
Carlos Bezabe is a Cuban national who was paroled into the United States as part
of the Mariel boatlift in 1980. In 1983, Bezabe moved to Pennsylvania and married a
United States citizen. Once there, he was convicted of several gun and drug-related
offenses: in 1984, he was convicted in Bergen County, New Jersey of possession of a
revolver; in 1986, he was convicted in Lebanon, Pennsylvania of possession with intent to
deliver a quarter-pound of marijuana; in 1987, he was convicted in Lebanon,
Pennsylvania of two counts of possession with intent to deliver cocaine, and one count of
possession of cocaine.
In 1992, Bezabe’s wife filed an alien relative petition on his behalf, and in 1997 he
applied to adjust his status to legally permanent resident. Unfortunately, in 1998 the
Bureau of Immigration and Customs Enforcement instead served Bezabe with a Notice to
Appear, charging him as removable under § 212(a)(2)(C) of the Immigration and
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Nationality Act (“INA,” “Act”) as “an illicit trafficker in a[] controlled substance.” 8
U.S.C. § 1182(a)(2)(C). On November 30, 1998, Bezabe appeared before an Immigration
Judge (“IJ”) who determined that, based on admissions by Bezabe and documentary
evidence, Bezabe was “subject to removal as an alien suspected of engaging in illegal
trafficking of narcotics.” The IJ adjourned the proceedings so Bezabe could submit
argument objecting to removal and apply for an adjustment of status. Although Bezabe
never submitted these applications, the IJ determined that Bezabe would not have been
eligible for a § 212(h) discretionary waiver of removal if he had applied for such relief.
The IJ also stated that, if Bezabe had been eligible for a waiver, he would not have
exercised his discretion to waive removal. On January 19, 1999, the IJ ordered Bezabe
removed.
On July 12, 2002, the BIA affirmed the IJ’s order of removal. Bezabe filed a
motion to reopen, seeking to pursue a claim under the Convention Against Torture. The
BIA denied this motion on January 29, 2003. On September 26, 2003, Bezabe filed a writ
of habeas corpus with the Eastern District of Pennsylvania. In May 2005, the District
Court transferred Bezabe’s petition to this Court pursuant to the REAL ID Act.1 Before
1
The REAL ID Act provides that habeas petitions pending before the district
courts as of its enactment on May 11, 2005 shall be transferred to the court of appeals for
the circuit in which a petition for review could properly have been filed. That court of
appeals then treats the habeas petition as if it were a petition for review—except that the
30-day filing deadline does not apply. See REAL ID Act of 2005, § 106(c), Pub. L. No.
109-13, 119 Stat. 231, 311; Jordon v. Attorney General, 424 F.3d 320, 327 (3d Cir. 2005).
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this Court, Bezabe challenges as legal error the IJ’s determinations (1) that he was a drug
trafficker under INA § 212(a)(2)(C); and (2) that he was ineligible for an “extreme
hardship waiver” under INA § 212(h).2 Specifically, he argues that amendments to the
INA since 1987 3 were applied retroactively to crimes he committed at that time, and have
impermissibly barred his eligibility for a discretionary waiver of removal. It was not until
1990, he argues, that § 212(a) was amended to define his convictions as “drug
trafficking.” And it was not until 1996, he argues, that§ 212(h) was amended to bar
waiver of removal to aliens who had committed an “aggravated felony.”
II. Discussion
We have jurisdiction to review questions of law and constitutional claims under
INA § 242(a)(2)(D). 8 U.S.C. § 1252(a)(2)(D). Papageorgiou v. Gonzales, 413 F.3d 356,
358 (3d Cir. 2005). Accordingly, we review Bezabe’s petition to the extent he asserts
either constitutional claims or errors of law by the IJ.
A statute has a retroactive effect if it “attaches new legal consequences to events
2
Bezabe appears to have abandoned pursuit of any claim under the Convention
Against Torture.
3
In 1990, INA § 212(a) was amended to consolidate and reorganize the crime-
related exclusions under that provision. See Immigration Act of 1990, Pub. L. No. 101-
649, § 601, 104 Stat. 4978, 5067-75. In 1996, INA § 212(h) was amended to exclude
“aggravated felons” from eligibility for an extreme hardship waiver under that provision.
See Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-
208, 110 Stat. 3009-546, 3009-639.
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completed before its enactment.” INS v. St. Cyr, 533 U.S. 289, 321 (2001). In this case,
the relevant statutes do not have a retroactive effect because, contrary to Bezabe’s
assertions, they have not changed the legal consequences of Bezabe’s drug trafficking
convictions. Under the “old” and the “new” version of the INA, Bezabe is ineligible for §
212(h) relief.4
Before the 1990 amendments to the INA, the Act rendered removable, under §
212(a)(23), any alien who:
has been convicted of a violation of . . . any law or regulation of a State . . .
relating to a controlled substance . . .or . . . [who] immigration officer[s]
know or have reason to believe is or has been an illicit trafficker in any such
controlled substance . . . .
See 8 U.S.C. § 1182(a)(23) (Supp. IV 1986), amended by Immigration Act of 1990, §
601, Pub. L. No. 101-649, 104 Stat. 4978, 5067-75. The 1990 amendments replaced that
provision with INA § 212(a)(2)(C), which renders removable any alien who “is or has
been an illicit trafficker in any controlled substance.” 8 U.S.C. § 1182(a)(2)(C). In all
respects relevant to Bezabe, these provisions are identical: his conduct falls as much
under the pre-1990 provision as it does under post-1990 provision. With several
convictions for possession with intent to deliver, he “is or has been” an illicit trafficker
under either provision.
4
§ 212(h) provides, in relevant part, a discretionary waiver of removal when it
would “result in extreme hardship to the United States citizen or lawfully resident spouse,
parent, son, or daughter of such alien.” 8 U.S.C. § 1182(h)(1)(B).
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Moreover, § 212(h) relief has, at all relevant times, been unavailable to an alien
removable on account of being a drug trafficker. Like the current version of the
provision, the pre-1996 § 212(h) permitted a discretionary waiver of removal for aliens
charged under § 212(a)(2)(A), (B), (D), and (E). See 8 U.S.C. § 1182(h) (1994). This
provision did not provide a discretionary waiver to aliens removed under § 212(a)(2)(C).5
It specifically omitted relief for aliens removable on account of trafficking in controlled
substances. Any changes to § 212(h) that might have affected other aliens have not
affected Bezabe. He was ineligible for § 212(h) relief in 1987 and was ineligible in 1999.
Therefore, the IJ did not err in denying § 212(h) relief to Bezabe.
Accordingly, we will deny Bezabe’s petition for review.
5
Nor did § 212(h) provide—before the 1990 amendments—discretionary relief to
aliens charged under § 212(a)(23) as drug traffickers. It permitted discretionary relief to
aliens removable under § 212(a)(23) for “simple possession of 30 grams or less of
marihuana.” See 8 U.S.C. § 1182(h) (1982). This provision would not have applied to
Bezabe who has several drug trafficking convictions.
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