Valere, Jean M. v. Gonzales, Alberto ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-2968
JEAN M. VALERE,
Petitioner,
v.
ALBERTO R. GONZALES,
Respondent.
____________
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A17-769-408
____________
ARGUED MARCH 31, 2006—DECIDED JANUARY 11, 2007
____________
Before ROVNER, EVANS, and SYKES, Circuit Judges.
SYKES, Circuit Judge. Jean Marie Valere, a citizen of
Haiti, was admitted to the United States as a lawful
permanent resident in 1968, when he was ten years old. In
1994 he pleaded guilty to indecent assault of a child in
Florida. Based on that conviction, the United States
identified Valere as an aggravated felon and in 1998
initiated removal proceedings against him. Valere eventu-
ally sought relief under § 212(c) of the Immigration and
Naturalization Act (“INA”), 8 U.S.C. § 1182(c) (1994),
which was repealed in 1996 but under INS v. St. Cyr, 533
U.S. 289, 326 (2001), remains available to aliens who
pleaded guilty to an aggravated felony prior to the effec-
tive date of the repeal and would have been eligible for
2 No. 05-2968
relief under the law then in effect. An Immigration Judge
(“IJ”) granted relief, but the Board of Immigration Appeals
(“BIA”) reversed, relying on In re Blake, 23 I. & N. Dec.
722 (B.I.A. 2005), which held that an alien removable on
the basis of a conviction for sexual abuse of a minor is
ineligible for relief under § 212(c) because that crime has
no statutory counterpart in § 212(a) of the INA, 8 U.S.C.
§ 1882(a).
In his petition for review, Valere argues that Blake
and a 2004 regulation codifying the “statutory counter-
part” rule for determining a removable alien’s eligibility
for § 212(c) relief have an impermissibly retroactive effect
as applied to his case. He also asserts that the “statutory
counterpart” requirement violates equal protection. We
deny the petition for review.
I. Background
Valere came to the United States from Haiti in 1968, at
age ten, and was admitted as a legal permanent resident.
In 1994 he pleaded guilty to a Florida charge of indecent
assault of a child and was sentenced to four-and-a-half
years’ imprisonment. In 1998 the Department of Home-
land Security (“DHS”) (then called the Immigration and
Naturalization Service or “INS”) issued a Notice to Ap-
pear, charging that Valere was deportable under
§ 237(a)(2)(A)(iii) of the INA, 8 U.S.C. § 1227(a)(2)(A)(iii)
(1998), as an alien convicted of an aggravated felony, and
under § 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i) (1998),
as an alien convicted of a crime of domestic violence,
stalking, child abuse, child neglect, or child abandonment.
At Valere’s initial removal hearing, the IJ held that the
INS had established Valere’s status as an aggravated
felon, see 8 U.S.C. § 1101(a)(43)(A) (1998), and ordered him
removed to Haiti. Valere unsuccessfully appealed this
No. 05-2968 3
decision to the BIA. In July 2003 the DHS detained Valere
to execute the removal order against him. At this point
Valere moved to reopen his removal proceedings, citing St.
Cyr, in which the Supreme Court held that § 212(c) relief
remained available, despite its repeal, to aliens whose
criminal convictions were obtained through guilty pleas
prior to the effective date of the repeal and who would
have been eligible to apply for § 212(c) relief under the
law in effect at the time of the plea. St. Cyr, 533 U.S. at
326. The IJ granted Valere’s motion to reopen on the
basis of St. Cyr.
After a change of venue from Miami to Chicago, Valere
submitted his § 212(c) waiver application, which the IJ
granted after a merits hearing. The DHS appealed, and
during the pendency of the appeal, the BIA issued its
ruling in Blake, holding that an alien deportable because
of a conviction for sexual abuse of a minor is not eligible
for a § 212(c) waiver because there is no statutory coun-
terpart to that offense in the enumerated grounds for
inadmissibility in § 212(a). Relying on Blake, the BIA
reversed the IJ’s decision and ordered Valere removed
to Haiti. Valere petitioned for review in this court.
II. Discussion
Aliens who have committed certain crimes generally
may not be admitted to the United States. 8 U.S.C.
§ 1182(a)(2) (2000). The current § 212(a) of the INA
enumerates the grounds, including the commission of
certain crimes, which render an alien inadmissible. Under
former § 212(c), in effect at the time Valere entered his
guilty plea to indecent assault of a child, the Attorney
General was authorized to grant discretionary admis-
sion to an otherwise excludable alien (“inadmissibility”
was formerly known as “exclusion”). 8 U.S.C. § 1182(c)
(1994). Former § 212(c) allowed a discretionary waiver of
4 No. 05-2968
inadmissibility for permanent resident aliens who volun-
tarily left the United States, sought reentry, and were
returning to a “lawful unrelinquished domicile” of seven
(or in some cases, ten) years. Id. Not all returning aliens
were eligible to apply for a § 212(c) waiver, however; an
amendment passed in 1990 prohibited § 212(c) relief
for aliens convicted of aggravated felonies who served
terms of imprisonment of five years or more. Immigration
Act of 1990, Pub. L. No. 101-649, § 511, 104 Stat. 4978,
5052 (1990) (amending 8 U.S.C. § 1182).
By its terms, former § 212(c) applied only to lawful
resident aliens who were denied admission to the United
States after voluntarily leaving the country and then
attempting reentry. 8 U.S.C. § 1182(c) (1994). But in
Francis v. INS, 532 F.2d 268 (2d Cir. 1976), the Second
Circuit expanded the statute’s applicability, making
§ 212(c) waivers available to aliens who had not left the
country at all but were subject to removal (formerly
know as “deportation”) on grounds substantially similar
to the enumerated grounds for inadmissibility in § 212(a).
See Leal-Rodriguez v. INS, 990 F.2d 939, 948-49 (7th Cir.
1993). Applying a minimal-scrutiny equal protection
analysis, the court in Francis held there was no rational
basis for making § 212(c) relief available only to inad-
missible aliens seeking reentry and not to similarly
situated deportable aliens who had not left the country.
Francis, 532 F.2d at 272-73.
In In Matter of Silva, 16 I. & N. Dec. 26 (B.I.A. 1976),
the BIA adopted the Second Circuit’s position. Leal-
Rodriguez, 990 F.2d at 949; see also Kim v. Gonzales, 468
F.3d 58, 60 (1st Cir. 2006). Thus, § 212(c) eligibility
was extended to removable aliens who had not left the
country, but only if the removable alien was situated
similarly to a returning inadmissible alien. That is, a
removable (deportable) alien was eligible to apply for
No. 05-2968 5
§ 212(c) relief provided that the ground for his
removability had a statutory counterpart in the enumer-
ated grounds for inadmissibility in § 212(a). Leal-Rodri-
guez, 990 F.2d at 949; see also Kim, 468 F.3d at 62-63;
Drax v. Reno, 338 F.3d 98, 107-08 (2d Cir. 2003).
The passage of the Antiterrorism and Effective Death
Penalty Act (“AEDPA”) in 1996 wrought more changes
in § 212(c), identifying certain convictions that would
make an alien ineligible for waiver consideration. Pub. L.
No. 104-132, § 440(d), 110 Stat. 1214, 1277 (1996) (amend-
ing 8 U.S.C. § 1182). Later that same year, the Illegal
Immigration Reform and Immigrant Responsibility Act
(“IIRIRA”) repealed § 212(c) altogether, replacing it with
8 U.S.C. § 1229b. Pub. L. 104-208, 110 Stat. 3009-594
(creating 8 U.S.C. § 1229b). Section 1229b grants the
Attorney General authority to cancel removal only for
certain classes of inadmissible or deportable aliens, but
excludes from consideration aliens previously convicted
of aggravated felonies. 8 U.S.C. § 1229b. Section 1229b
applies to aliens in removal proceedings after April 1,
1997. Velez-Lotero v. Achim, 414 F.3d 776, 780 (7th Cir.
2005).
In October 2004 the DHS promulgated 8 C.F.R. § 1212.3,
which codified the judicially created “statutory counter-
part” rule noted above, as well as the Supreme Court’s
decision in St. Cyr, which held that “the repeal of § 212(c)
was impermissibly retroactive as applied to aliens who
pleaded guilty prior to IIRIRA’s effective date in the
expectation that they would continue to be eligible for
§ 212(c) waivers.” Velez-Lotero, 414 F.3d at 780. More
specifically, § 1212.3(h) permits § 212(c) relief for aliens
who pleaded guilty before April 1, 1997, the date the 1996
repeal of § 212(c) took effect. Section 1212.3(f )(5) states
that an alien is ineligible for a former § 212(c) waiver if
he is deportable or removable “on a ground which does
not have a statutory counterpart in section 212 of the Act.”
6 No. 05-2968
The BIA held that Valere was ineligible for a § 212(c)
waiver because under the authority of Blake, the aggra-
vated felony for which he was being deported—indecent
assault of a minor—had no statutory counterpart in
§ 212(a). In Blake, the BIA traced the evolution of the
statutory counterpart rule, codified in § 1212.3(f )(5), and
held that the crime of sexual abuse of a minor had no
statutory counterpart in § 212(a). The BIA rejected the
petitioner’s argument that § 212(a)’s broad “crime of
moral turpitude” ground for exclusion was a statutory
counterpart to sexual abuse of a minor, holding that “the
moral turpitude ground of exclusion addresses a dis-
tinctly different and much broader category of offenses
than the aggravated felony sexual abuse of a minor
charge.” Blake, 23 I. & N. Dec. at 728. Blake held that
while there need not be a “perfect match” in order to
satisfy the “statutory counterpart” requirement, an “over-
lap” in categories of crimes—even a “considerable over-
lap”—is not enough. “[W]hether a ground of deportation
or removal has a statutory counterpart in the provi-
sions for exclusion or inadmissibility turns on whether
Congress has employed similar language to describe
substantially equivalent categories of offenses.” Id.
Valere does not directly challenge the BIA’s conclu-
sion in Blake that the crime of sexual abuse of a minor
has no statutory counterpart in § 212(a). Neither does he
attempt to distinguish his crime of conviction—indecent
assault of a minor—from the sexual abuse of a minor
offense at issue in Blake. Rather, he argues that the BIA’s
application of Blake to his case—and by extension, the
application of § 1212.3(f )(5)—has an impermissibly retro-
active effect. He also claims that application of the statu-
tory counterpart requirement of § 1212.3(f )(5) violates
his equal protection rights.
Before proceeding to the substance of these claims, we
note that we have jurisdiction to resolve them. Although
No. 05-2968 7
§ 242(a)(2)(C) of the INA, 8 U.S.C. § 1252(a)(2)(C), strips
this court of jurisdiction to entertain reviews of “any
final order of removal against an alien who is removable
by reason of having committed a criminal offense covered
by section 1182(a)(2) or 1227(a)(2)(A)(iii) . . . of this title,”
§ 1252(a)(2)(D) permits appellate court review of con-
stitutional claims and questions of law. Knutsen v. Gonza-
les, 429 F.3d 733, 736 (7th Cir. 2005). Valere’s retro-
activity and equal protection claims are reviewed de novo.
Knutsen, 429 F.3d at 736; Hassan v. INS, 110 F.3d 490,
493 (7th Cir. 1997).
The contours of Valere’s retroactivity argument are fuzzy
at best. Valere seems to be arguing that the decision in St.
Cyr gave rise to a vested right—the right to § 212(c)
eligibility—that was eliminated by the application of the
new DHS regulation, § 1212.3(f )(5), to his case. He con-
tends that applying Blake (and thus § 1212.3(f )(5)) impairs
his right to § 212(c) eligibility and thus has an
impermissibly retroactive effect in violation of the rule of
Landgraf v. USI Film Prods., 511 U.S. 244, 280 (1994).
But Valere never had any right to § 212(c) eligibility. St.
Cyr only extended § 212(c) eligibility to those who would
have qualified to apply for this relief at the time of their
guilty pleas and prior to the effective date of the repeal—it
did not extend eligibility to aliens who would not have
qualified under the law then in effect. The “statutory
counterpart” rule for deportees seeking to invoke § 212(c)
appears in the case law as far back as the late 1970s, well
before Valere’s guilty plea. See, e.g., Leal-Rodriguez, 990
F.2d at 949; Matter of Montenegro, 20 I. & N. Dec. 603
(B.I.A. 1992); Matter of Meza, 20 I. & N. Dec. 257 (B.I.A.
1991); Matter of Wadud, 19 I. & N. Dec. 182 (B.I.A. 1984);
Matter of Granados, 16 I. & N. Dec. 726 (B.I.A. 1979).
Section 1212.3(f )(5) is simply the agency’s codification of
this preexisting, judicially created rule. Although the
8 No. 05-2968
Blake decision marked the first time the BIA applied the
rule to the crime of sexual assault of a minor, the rule
itself is not new. Valere’s crime of indecent assault of a
minor—like Blake’s crime of sexual abuse of a minor—had
no statutory counterpart in § 212(a) at the time Valere
pleaded guilty. Accordingly, because Valere did not at the
time of his guilty plea have a legal right to apply for a
waiver under § 212(c), application of Blake (and by exten-
sion § 1212.3(f )(5)) did not impair any established right
he possessed and is not impermissibly retroactive.
That leaves Valere’s equal protection argument, which
is likewise difficult to make out. He seems to suggest
that the Second Circuit’s reasoning in Francis requires
that § 212(c) eligibility be extended to all removable
aliens—not just those who are similarly situated to
inadmissible aliens by virtue of being removable for a
crime that has a comparable ground of exclusion in
§ 212(a). He argues that equal protection requires that “no
distinction shall be made between permanent resident
aliens who proceed abroad and nondeparting aliens who
apply for the benefits of section 212(c) of the Act.” But the
requirement of a comparable ground of exclusion in
§ 212(a)—a “statutory counterpart”—is what makes a
removable, nondeparting alien similarly situated to an
inadmissible alien in the first place. If the removable
alien’s crime of conviction is not substantially equivalent
to a ground of inadmissibility under § 212(a), then the
removable alien is not similarly situated for purposes of
claiming an equal protection right to apply for § 212(c)
relief.
Section 212(c) on its face applies only to aliens seeking
readmission to the country, not those being deported.
Beginning with Francis, courts and the BIA have held
§ 212(c) relief is available to deportees who are similarly
situated to inadmissibles, i.e., are being deported on a
ground that substantially corresponds to a ground for
No. 05-2968 9
inadmissibility under § 212(a). These holdings estab-
lished the statutory counterpart rule that was codified
in 8 C.F.R. § 1212.3(f )(5) and applied in Blake. Valere
argues that unless § 212(c) relief is available to all
people facing deportation for convictions obtained by
guilty plea prior to § 212(c)’s repeal, the regulation vio-
lates equal protection. In Leal-Rodriguez, we declined to
expand the reach of § 212(c) beyond the Second Circuit’s
holding in Francis, specifically rejecting the argument
that § 212(c) eligibility “should be extended to all
deportable aliens, whatever their ground for expulsion.”
Leal-Rodriguez, 990 F.3d at 950. Valere’s treatment is
not different from other aliens who face deportation for
reasons that have no corresponding ground for inad-
missibility under § 212(a). Because there is no statutory
counterpart in § 212(a) for his crime of indecent assault of
a minor, Valere is not similarly situated to an inadmissi-
ble, returning alien who is eligible to apply for § 212(c)
relief.
Valere’s petition for review is DENIED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-11-07