Jose Aristy-Rosa v. Attorney General United States ( 2021 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 20-2105
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JOSE ARCENIO ARISTY-ROSA,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
______________
On Petition for Review of a Decision of
the Board of Immigration Appeals
(Agency No. A043-907-039)
Immigration Judge: John P. Ellington
______________
Submitted under Third Circuit L.A.R. 34.1(a)
March 15, 2021
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Before: SHWARTZ, PORTER, and MATEY, Circuit Judges.
(Filed: March 16, 2021)
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OPINION
______________
David Kaplan
120 Chestnut Street
Philadelphia, PA 19106
Counsel for Petitioner
Rebekah Nahas
Craig A. Newell, Jr.
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
SHWARTZ, Circuit Judge.
Jose Arcenio Aristy-Rosa petitions for review of a
decision of the Board of Immigration Appeals (“BIA”)
affirming the decision of the Immigration Judge (“IJ”) denying
his motion to sua sponte reopen and terminate removal
proceedings. Aristy-Rosa received a full and unconditional
gubernatorial pardon, and he asserts that it extinguished the
basis for his removal. He is incorrect and we will therefore
deny the petition.
2
I
Aristy-Rosa, a native and citizen of the Dominican
Republic, was admitted to the United States in January 1993 as
a lawful permanent resident. Several years later, he was
convicted of attempted criminal sale of a controlled substance,
cocaine, in violation of New York state law. He was sentenced
to five years’ probation and a six-month suspension of his
driver’s license.
Thereafter, Aristy-Rosa received a Notice to Appear
(“NTA”) in the Immigration Court. The NTA charged Aristy-
Rosa with being subject to removal under Section 237 of the
Immigration and Nationality Act (“INA”) for three reasons:
(1) he had committed a crime relating to a controlled
substance, in violation of 8 U.S.C. § 1227(a)(2)(B)(i); (2) his
controlled substances conviction constituted an aggravated
felony, in violation of 8 U.S.C. § 1227(a)(2)(A)(iii); and (3) he
was an alien who was inadmissible under 8 U.S.C.
§ 1182(a)(2)(A)(i)(II) at the time of his application for
adjustment of status, in violation of 8 U.S.C. § 1227(a)(1)(A).
Aristy-Rosa conceded removability under 8 U.S.C. §§
1227(a)(2)(A)(iii) and (a)(2)(B)(i) and sought no relief from
removal. An IJ ordered Aristy-Rosa removed on these
grounds, and Aristy-Rosa did not appeal that order. Aristy-
Rosa later filed two motions to reopen his removal proceedings
to apply for adjustment of status and other relief, both of which
were denied.
In December 2017, New York Governor Andrew
Cuomo fully and unconditionally pardoned Aristy-Rosa for his
controlled substance conviction. Aristy-Rosa then moved to
3
sua sponte reopen his removal proceedings,1 arguing that the
pardon eliminated the basis for his removal. The IJ denied the
motion, reasoning that it was time- and number-barred and
that, under the plain text of the INA, a pardon fails to
extinguish the basis for removal where the underlying
conviction was for a controlled substance offense. Aristy-Rosa
appealed this decision to the BIA.
The BIA dismissed the appeal. It concluded that Aristy-
Rosa’s argument was foreclosed by In re Suh, 23 I. & N. Dec.
626 (B.I.A. 2003), which held that certain “removable
offenses, such as controlled substance violations under section
237(a)(2)(B) [of the INA] . . . are . . . not covered by the
[INA’s] pardon waiver” provision. Id. at 627. The BIA also
determined that a Department of Justice Office of Legal
Counsel (“OLC”) memorandum, which opined that Congress
could not restrict the scope of a presidential pardon, was not
inconsistent with Suh because the memorandum “detail[ed] the
extent of a presidential pardon, rather than a gubernatorial
pardon as is at issue here.” A.R. 4.
Aristy-Rosa petitions for review.
1
An immigrant generally may only file one motion to
reopen, no later than ninety days after the date that the IJ’s or
the BIA’s decision became final. See 8 C.F.R. § 1003.2(c)(2).
“[T]he Regulations, however, allow[] the BIA to reopen or
reconsider a case sua sponte at any time.” Calle-Vujiles v.
Ashcroft, 320 F.3d 472, 474 (3d Cir. 2003). Sua sponte
reopening is generally reserved for “exceptional situations.”
Id. (quoting In re J-J-, 21 I. & N. Dec. 976, 984 (B.I.A. 1997)).
4
II2
To resolve this petition, we must interpret the INA
provision governing pardons. Our “starting point lies in a
careful examination of the ordinary meaning and structure of
the law itself.” Food Mktg. Inst. v. Argus Leader Media, 139
S. Ct. 2356, 2364 (2019). “[W]hen the statute’s language is
plain, the sole function of the courts . . . is to enforce it
according to its terms.” Lamie v. U.S. Trustee, 540 U.S. 526,
534 (2004) (quoting Hartford Underwriters Ins. Co. v. Union
Planters Bank, N.A., 530 U.S. 1, 6 (2000)).
Section 1227 provides the grounds upon which an alien
may be removed from the United States, and § 1227(a)(2)
specifically enumerates the various crimes that may constitute
a basis for removal. As relevant here, § 1227(a)(2)(A) and
§ 1227(a)(2)(B) include “[g]eneral crimes” and “[c]ontrolled
2
The BIA had jurisdiction under 8 C.F.R.
§§ 1003.1(b)(3) and 1240.15, and we have jurisdiction over
final orders of the BIA under 8 U.S.C. § 1252(a)(1). See
Garcia v. Att’y Gen., 665 F.3d 496, 502 n.4 (3d Cir. 2011).
While we generally lack jurisdiction to review a BIA decision
declining to exercise its discretion to sua sponte reopen a
removal proceeding, see Calle-Vujiles, 320 F.3d at 475, we
“may exercise jurisdiction to the limited extent of recognizing
when the BIA has relied on an incorrect legal premise,” Pllumi
v. Att’y Gen., 642 F.3d 155, 160 (3d Cir. 2011). “In such cases
we can remand to the BIA so it may exercise its authority
against the correct legal background.” Id. (quotation marks
omitted). We review legal questions concerning the
interpretation of the INA de novo. Roye v. Att’y Gen., 693
F.3d 333, 339 (3d Cir. 2012).
5
substances” offenses, respectively. General crimes include
“crime[s] involving moral turpitude,” “aggravated felon[ies],”
“high speed flight from an immigration checkpoint,” and
“[f]ailure to register as a sex offender.” 8 U.S.C.
§ 1227(a)(2)(A)(i)-(v). The general crimes provision also
contains a pardon waiver, which explains that convictions for
crimes of moral turpitude, aggravated felonies, and high speed
flight cannot serve as the basis for removal “if the alien
subsequent to the criminal conviction has been granted a full
and unconditional pardon by the President of the United States
or by the Governor of any of the several States.” 8 U.S.C.
§ 1227(a)(2)(A)(vi). Section 1227(a)(2)(B), which provides
for removal of an alien “convicted of a violation of (or a
conspiracy or attempt to violate) any law or regulation of a
State . . . relating to a controlled substance,” contains no pardon
waiver. That is, Congress did not explicitly provide that a full
pardon for a controlled substance conviction extinguishes the
immigration consequences of that offense. Thus, under the
plain text of § 1227, Aristy-Rosa’s pardon eliminated the
aggravated felony ground for his removal but not the controlled
substance ground. See Suh, 23 I. & N. Dec. at 628 (explaining
that “[t]he plain language of the statute clearly states which
grounds of removal are waived if a pardon is granted,” and
controlled substances offenses “are not among those
enumerated”); see also Aguilera-Montero v. Mukasey, 548
F.3d 1248, 1252 (9th Cir. 2008) (reviewing whether
§ 1227(a)(2)(A)(vi)’s pardon waiver provision extends to 8
U.S.C. § 1182(a)3 and concluding that “basic tenets of statutory
3
Section 1182 deals with the inadmissibility of aliens,
rather than their removability. “[I]nadmissibility applies to
those aliens who, for one reason or another, are ineligible to
enter or re-enter the United States in the first place.” Balogun
6
construction preclude us from inferring a [pardon] waiver
under the provisions of 8 U.S.C. § 1182(a)”); Balogun v. Att’y
Gen., 425 F.3d 1356, 1362 (11th Cir. 2005) (“Section 1182
does not have a pardon provision like [§] 1227[(a)(2)(A)] does,
and we believe that if Congress had intended to extend the
pardon waiver to inadmissible aliens, it would have done so
[explicitly].”).
Aristy-Rosa’s argument that Congress implied a pardon
waiver for a controlled substance offense fails. First, because
“it is generally presumed that Congress acts intentionally and
purposely when it includes particular language in one section
of a statute but omits it in another,” we will not imply a pardon
waiver in § 1227(a)(2)(B) where none exists in the text. BFP
v. Resolution Tr. Corp., 511 U.S. 531, 537 (1994) (quotation
marks omitted); see also United States v. Johnson, 529 U.S. 53,
58 (2000) (“When Congress provides exceptions in a statute, it
does not follow that courts have authority to create others. The
proper inference . . . is that Congress considered the issue of
exceptions and, in the end, limited the statute to the ones set
forth.”); Zumel v. Lynch, 803 F.3d 463, 473 (9th Cir. 2015)
(“Since Congress knows how to eliminate the immigration
v. Att’y Gen., 425 F.3d 1356, 1362 (11th Cir. 2005). A person
with a controlled substance conviction, for example, is
ineligible to enter the United States. 8 U.S.C.
§ 1182(a)(2)(A)(i)(II). “This ineligibility to enter the country
contrasts with the situation of deportable aliens who are either
(1) eligible to enter when they arrive and are admitted, but
become ineligible to remain because of some later event, or
(2) those who were admitted, but would not have been had
their inadmissible status been known at the time of admission.”
Balogun, 425 F.3d at 1362.
7
consequences of unlawful conduct when it wants to, we should
not interpret congressional silence as accomplishing the same
end.”).4
4
Aristy-Rosa’s pardon also does not alter the fact that
he was “convicted.” Under the INA, “conviction” means “a
formal judgment of guilt of the alien entered by a court,”
including “where a judge or jury has found the alien guilty or
the alien has entered a plea of guilty or nolo contendere or has
admitted sufficient facts to warrant a finding of guilt” or where
“the judge has ordered some form of punishment, penalty, or
restraint on the alien’s liberty to be imposed.” 8 U.S.C.
§ 1101(a)(48)(A). Aristy-Rosa argues that the pardon
“removed the formal adjudication of guilt” such that he is no
longer “convicted” under the INA and therefore should not
have been ordered removed. “A cardinal rule of statutory
interpretation is that courts should avoid interpreting a statute
in ways that would render certain language superfluous.”
United States v. Williams, 917 F.3d 195, 202 (3d Cir. 2019).
Adopting Aristy-Rosa’s construction that a full pardon
extinguishes any “conviction” would render
§ 1227(a)(2)(A)(vi)’s pardon waiver provision superfluous.
See also Doe v. Nat’l Bd. of Med. Exam’rs, 199 F.3d 146, 155
(3d Cir. 1999) (explaining that a “commonplace” rule of
statutory interpretation is that “the specific governs the
general,” particularly “when Congress has targeted specific
problems with specific solutions in the context of a general
statute” (quotation marks omitted)). Moreover, outside the
immigration context, a pardon “does not eliminate . . . [the]
conviction and does not create any factual fiction that [the]
conviction had not occurred.” United States v. Noonan, 906
F.2d 952, 960 (3d Cir. 1990) (quotation marks omitted); see
also Burdick v. United States, 236 U.S. 79, 94 (1915) (noting
8
Second, this plain-text interpretation of the INA does
not produce absurd results. See Hanif v. Att’y Gen., 694 F.3d
479, 483 (3d Cir. 2012) (noting that we follow the plain text
unless “the literal meaning of a statute [could] lead to a patently
absurd result that no rational legislature could have intended”
(alteration in original) (quoting Barrios v. Att’y Gen., 399 F.3d
272, 277 n.11 (3d Cir. 2005)). Some controlled substance
offenses are also aggravated felonies, as is the case here, but
not all aggravated felonies involve controlled substances.
Congress could have rationally decided that controlled
substance offenses warrant removal because of the impact such
crimes have on the entire community. See Suh, 23 I. & N. Dec.
at 627-28.
Finally, the OLC memorandum, Effects of a
Presidential Pardon, 19 Op. O.L.C. 160 (1995), does not alter
our analysis. There, the OLC considered, among other things,
whether “a full and unconditional presidential pardon
precludes the exercise of the authority to deport a convicted
alien.” Id. It noted that the INA waives removal for certain
crimes under § 1227(a)(2)(A),5 but that “[t]he statute is silent
. . . as to the effect of such a pardon on . . . offenses involving
controlled substances, firearms, and miscellaneous crimes.”
that acceptance of a pardon “carries an imputation of guilt”).
Thus, Aristy-Rosa remains convicted of a controlled substance
offense.
5
At the time, this provision of the immigration laws was
codified at 8 U.S.C. § 1251. See 19 Op. O.L.C. at 160 & n.*
(“[O]n September 30, 1996, that section was redesignated as
section 237 of the INA, and was thereafter recodified as 8
U.S.C. § 1227.” (citing Pub. L. No. 104-208, § 305(a)(2), 110
Stat. 3009, 3009-598 (1996)); see also 8 U.S.C. § 1251 (1994).
9
Id. The OLC nevertheless concluded that a full presidential
pardon would extinguish the immigration effects of any federal
crime, including those involving controlled substances,
“because congressional legislation cannot define or limit the
effect of a presidential pardon” due to the scope of the
President’s pardon power in Article II of the Constitution. Id.
at 161. These separation of powers concerns are absent here,
however, because Aristy-Rosa’s case concerns only a state
pardon, and a state “does not have the authority to make
immigration-law determinations.” In re Thomas, 27 I. & N.
Dec. 674, 680 (A.G. 2019); see also Aguilera-Montero, 548
F.3d at 1255 n.9 (noting the OLC’s analysis was not relevant
where “[petitioner’s] case involve[d] a state pardon”); cf.
Arizona v. United States, 567 U.S. 387, 409-10 (2012)
(collecting cases and noting that “the removal process is
entrusted to the [sole] discretion of the Federal Government”);
Galvan v. Press, 347 U.S. 522, 531 (1954) (“Policies pertaining
to the entry of aliens and their right to remain here are . . .
entrusted exclusively to Congress.”).6
III
For these reasons, we will deny the petition for review.
6
Any argument that the BIA failed to give full faith and
credit to Aristy-Rosa’s state pardon is meritless because 28
U.S.C. § 1738 does not apply to administrative agencies. See
NLRB v. Yellow Freight Sys., Inc., 930 F.2d 316, 320 (3d Cir.
1991) (“[F]ederal administrative agencies are not bound by
section 1738 because they are not courts.” (quotation marks
omitted)); Thomas, 27 I. & N. Dec. at 687.
10