Rodriguez-Munoz v. Atty Gen USA ( 2005 )


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  •                                                                                                                            Opinions of the United
    2005 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    8-16-2005
    Rodriguez-Munoz v. Atty Gen USA
    Precedential or Non-Precedential: Precedential
    Docket No. 05-1732
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    "Rodriguez-Munoz v. Atty Gen USA" (2005). 2005 Decisions. Paper 599.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2005/599
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    PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    NO. 05-1732
    ________________
    RICHARD JOSE RODRIGUEZ-MUNOZ,
    Appellant,
    v.
    *ALBERTO GONZALES, U.S. ATTORNEY GENERAL;
    U.S. DEPARTMENT OF HOMELAND SECURITY;
    EDMOND C. CICCHI, Warden of Middlesex County
    Correctional Center
    (*Pursuant to F.R.A.P. 43(c))
    ____________________________________
    On Petition for Review from the United States
    Department of Justice Board of Immigration Appeals
    (BIA No. A34 204 757)
    Initially filed as a Notice of Appeal
    from D NJ 04-cv-04846
    Prior to the Enactment of the Real ID Act of 2005
    Submitted Under Third Circuit LAR 34.1(a)
    August 5, 2005
    Before: VAN ANTWERPEN, GREENBERG AND
    NYGAARD, Circuit Judges
    (Filed: August 16, 2005 )
    Richard Jose Rodriguez-Munoz
    1196 Eastern Parkway
    Apartment A10
    Brooklyn, NY 11213
    Appellant, Pro Se
    Pamela R. Perron, Esq.
    Assistant U. S. Attorney
    970 Broad Street, Suite 700
    Newark, NJ 07102
    Counsel for Appellees
    _________________
    OPINION
    _________________
    VAN ANTWERPEN, Circuit Judge
    Richard Jose Rodriguez-Munoz petitions for review of
    a final order of the Board of Immigration Appeals (“BIA”).
    2
    For the reasons that follow, we will deny the petition.1
    Rodriguez-Munoz is a native and citizen of the
    Dominican Republic. He was admitted to the United States as
    a lawful permanent resident (“LPR”) in 1976. In 1992, he
    pled guilty to four drug offenses in New York state court,
    including third degree criminal sale of a controlled substance
    (crack cocaine), a class B felony. See 
    N.Y. Penal Law § 220.39
    . In 1994, the Immigration and Naturalization Service
    (“INS”) charged Rodriguez-Munoz with deportability as an
    alien convicted of an aggravated felony and as being
    convicted of a violation relating to a controlled substance.2
    See Immigration and Nationality Act (“INA”) §§
    241(a)(2)(A)(iii); 241(a)(2)(B)(i) [
    8 U.S.C. §§ 1
    This case was originally filed as an appeal of an order of the
    United States District Court for the District of New Jersey
    denying Rodriguez-Munoz’s petition for a writ of habeas
    corpus. We recently held, however, that habeas appeals, such as
    Rodriguez-Munoz’s, “that were pending before this Court on the
    effective date of the Real ID Act of 2005 [Pub. L. 109-13, 
    119 Stat. 231
    ] are properly converted to petitions for review and
    retained by this Court.” See Bonhometre v. Gonzales, -- F.3d --,
    
    2005 WL 1653641
    , at *2 (3d Cir. July 15, 2005).
    2
    We recognize, of course, that the Department of Homeland
    Security has taken over the responsibilities of the former INS.
    See Ambartsoumian v. Ashcroft, 
    388 F.3d 85
    , 95 n.6 (3d
    Cir.2004).
    3
    1231(a)(2)(A)(iii); 1231(a)(2)(B)(i)].3 While the immigration
    proceedings were pending, Rodriguez-Munoz pled guilty in
    New York to two additional offenses: fifth degree criminal
    possession of marijuana (September 21, 1999) and seventh
    degree criminal possession of a controlled substance
    (November 3, 2000).
    In October 2003, Rodriguez-Munoz appeared before
    an Immigration Judge (“IJ”) and asked that the government
    “repaper” the proceedings so that he could simultaneously
    apply for a waiver of removal (based on the 1992 conviction)
    under former INA § 212(c) [
    8 U.S.C. § 1182
    (c)], and for
    cancellation of removal (based on the 1999 and 2000
    convictions) under INA § 240A [8 U.S.C. § 1229b].4 The IJ
    ordered the deportation proceedings administratively closed to
    allow Rodriguez-Munoz to be repapered. The government
    filed an interlocutory appeal which the BIA sustained, finding
    that administrative closure is inappropriate where one of the
    3
    These provisions have been redesignated INA §§
    237(a)(2)(A)(iii) and 237(a)(2)(B)(i) [
    8 U.S.C. §§ 1227
    (a)(2)(A)(iii) and 1227(a)(2)(B)(i)], respectively.
    4
    Repapering is a process whereby the deportation or
    exclusion proceedings are administratively closed and the
    government initiates removal proceedings to allow aliens to
    apply for cancellation of removal under INA § 240A, a form of
    relief that was not available when they were charged with
    deportation or exclusion. See Illegal Immigration Reform and
    Immigrant Responsibility Act of 1996 (“IIRIRA”) § 309(c)(3).
    4
    parties (in this case, the government) opposes it.
    On remand, the IJ denied Rodriguez-Munoz’s
    applications for relief and ordered him deported. The BIA
    dismissed Rodriguez-Munoz’s appeal, concluding that even if
    he were repapered and eligible for a § 212(c) waiver, he
    would not be entitled to cancellation of removal because his
    1992 conviction for criminal sale of a controlled substance, an
    aggravated felony, would still exist for purposes of evaluating
    his eligibility for § 240A relief.
    Rodrizuez-Munoz then filed a habeas corpus petition
    under 
    28 U.S.C. § 2241
    , arguing that his constitutional rights
    were violated by the refusal to repaper him so that he could
    simultaneously apply for both waiver of removal under §
    212(c) and cancellation of removal under § 240A. The
    District Court denied the petition on the merits and
    Rodriguez-Munoz filed a notice of appeal, which has been
    converted to a petition for review. See fn.1, supra.
    Rodriguez-Munoz was deported on March 23, 2005. See
    Appellant’s Brief, 7 n.8.
    Rodriguez-Munoz does not dispute that he is
    deportable based on his 1992 conviction for criminal sale of a
    controlled substance. In addition, his 1999 and 2000
    convictions render him removable pursuant to INA §
    237(a)(2)(B)(i) (alien convicted of a controlled substance
    offense). He argues, however, that he would be entitled to
    relief if permitted to simultaneously apply for a waiver of
    removal under § 212(c) and for cancellation of removal under
    § 240A. We disagree.
    5
    When Rodriguez-Munoz was convicted of drug
    crimes in 1992, § 212(c) allowed a lawful permanent resident
    with seven years of consecutive residence in the United States
    to apply for a discretionary waiver of deportation. See INS v.
    St. Cyr, 
    533 U.S. 289
    , 295 (2001). The IIRIRA, which
    became effective in April 1997, repealed § 212(c) and
    replaced it with § 240A. Under the current provision, the
    Attorney General may cancel removal of an alien who has
    been an LPR for not less than five years, has resided
    continuously in the United States for seven years after having
    been admitted, and “has not been convicted of any aggravated
    felony.” INA § 240A(a); see Ponnapula v. Ashcroft, 
    373 F.3d 480
    , 486 (3d Cir. 2004). In addition, an alien “who has been
    granted relief under section 212(c)” is ineligible for
    cancellation of removal. § 240(c)(6) [8 U.S.C.
    § 1229b(c)(6)].
    The government acknowledges that “[t]here is no
    question that Rodriguez-Munoz is eligible to apply for a
    [§212(c)] waiver of deportation concerning” his 1992
    conviction. See Appellee’s Brief, 11. Indeed, under INS v.
    St. Cyr, 
    533 U.S. 289
     (2001), Ҥ 212(c) relief remains
    available for aliens whose convictions were obtained through
    plea agreements and who, notwithstanding those convictions,
    would have been eligible for § 212(c) relief at the time of
    their plea under the law then in effect.” 
    533 U.S. at 326
    .
    According to St. Cyr, “the elimination of any possibility of §
    212(c) relief by IIRIRA has an obvious and severe [and
    impermissible] retroactive effect.” Id. at 325.
    Importantly, however, Rodriguez-Munoz would not be
    6
    eligible for cancellation of removal, which he also needs to
    prevail. The language of § 240A(a) is clear: The Attorney
    General may cancel removal only if an LPR “has not been
    convicted of any aggravated felony.” Rodriguez-Munoz
    apparently did not argue before the BIA that his 1992
    conviction is not an aggravated felony, nor does he raise such
    an argument on appeal. See Miah v. Ashcroft, 
    346 F.3d 434
    ,
    439 n.2 (3d Cir. 2003). Instead, he contends that his 1992
    conviction, once waived under § 212(c), could not be
    considered when evaluating whether he was eligible for
    cancellation of removal under § 240A.
    As the BIA has explained, however, “[t]he grant of a
    section 212(c) relief merely waives the finding of
    deportability rather than the basis of the deportability itself.
    Therefore, the crimes alleged to be grounds for deportability
    do not disappear from the alien’s record for immigration
    purposes.” Matter of Balderas, 
    20 I. & N. Dec. 389
    , 391
    (BIA 1991); see Molina-Amezcua v. I.N.S., 
    6 F.3d 646
    , 647
    (9th Cir. 1993) (“A waiver of deportation gives the alien a
    chance to stay in the United States despite his misdeed, but it
    does not expunge the conviction.”). Thus, even if Rodriguez-
    Munoz’s deportation based on his 1992 conviction were
    waived under § 212(c), that conviction would nonetheless
    remain an aggravated felony for purposes of precluding his
    application for cancellation of removal under § 240A.
    Rodriguez-Munoz relies on Matter of Gabryelsky, 
    20 I. & N. Dec. 750
     (BIA 1993), in which the BIA permitted the
    alien to simultaneously apply for adjustment of status under §
    245(a) and for waiver of deportation under § 212(c). See
    7
    Gabryelsky, 20 I. & N. Dec. at 756. In that case, however, the
    BIA based its conclusion on a regulation permitting combined
    § 245(a) and § 212(c) applications, and on the fact that the
    granting of each form of relief made the alien statutorily
    eligible for the other form. Id. at 754-56. Here, by contrast, a
    waiver of deportation under § 212(c) would not make
    Rodriguez-Munoz eligible for § 240A relief.
    For the reasons that we have given, we will deny the
    petition for review.
    8