Zamora-Mallari, Erne v. Mukasey, Michael B. ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 06-3717, 06-3841, 06-3979, 07-1199 & 07-1670
ERNESTO ZAMORA-MALLARI,
GERARDO MEDINA-MUNOZ,
and JOSE L. BARRAZA-IBARRA,
Petitioners,
v.
MICHAEL B. MUKASEY, Attorney General
of the United States, Respondent.
____________
Petitions for Review of Orders of the
Board of Immigration Appeals.
Agency Nos. A43-221-786, A90-312-769 & A90-942-606
____________
ARGUED SEPTEMBER 6, 2007—DECIDED JANUARY 24, 2008
____________
Before FLAUM, MANION, and KANNE, Circuit Judges.
MANION, Circuit Judge. This opinion resolves three
separate appeals challenging orders of the Board of Immi-
gration Appeals (“Board”). The petitioners, Ernesto
Zamora-Mallari (“Mallari”), Gerardo Medina-Munoz
(“Munoz”), and Jose Luis Barraza-Ibarra (“Ibarra”), all
sought waivers of removability under §212(c) of the
Immigration and Nationality Act (“INA”). The Board
denied their requests for §212(c) waivers, as well as
2 Nos. 06-3717, 06-3841, 06-3979, 07-1199 & 07-1670
other motions brought by the petitioners. The petitioners
appeal. We deny the petitions for review.
I.
A. Petitioner Mallari
In 1991, Mallari, a citizen of the Philippines, entered the
United States on an immigrant visa as an unmarried son
of a United States citizen. Less than three years later,
Mallari was indicted in Illinois state court on charges of
criminal sexual abuse, aggravated criminal sexual abuse,
and sexual exploitation of a child. In 1995, Mallari pleaded
guilty to criminal sexual abuse and was sentenced to
one year probation and community service.
In September 1999, the government served Mallari
with a Notice to Appear (“NTA”) in immigration court,
charging him with removal as an alien convicted of crimi-
nal sexual abuse, an aggravated felony. Mallari requested
a waiver from removal under § 212(c). An Immigration
Judge (“IJ”) denied Mallari’s request and ordered him
removed to the Philippines; the IJ concluded that Mallari
was not eligible for a § 212(c) waiver because at the time
of his guilty plea he lacked seven years of lawful domicile,
as required by statute. Mallari appealed to the Board,
arguing that he should have been permitted to present
his application for § 212(c) relief. The government moved
to remand Mallari’s case to allow him to apply for § 212(c)
relief. The Board agreed that remand was appropriate,
noting that Mallari now possessed the seven years resi-
dency required for a § 212(c) waiver. Accordingly, the
Board remanded the case to the IJ “for further proceed-
ings consistent with this opinion.”
Nos. 06-3717, 06-3841, 06-3979, 07-1199 & 07-1670 3
On remand to the IJ, Mallari submitted numerous
documents in support of his § 212(c) waiver application.
The government, however, responded that Mallari
was not eligible for the requested relief based on the
Board’s recent decision in Matter of Blake, 23 I & N Dec. 722
(BIA 2005). In Blake, the Board held that aliens charged
with deportability for having committed the aggravated
felony of sexual abuse of a minor are ineligible for relief
under § 212(c) because there is no ground of inadmissi-
bility corresponding to that ground of deportability. The
IJ denied Mallari’s request for § 212(c) relief and Mallari
again appealed to the Board.
On July 20, 2006, in lieu of a brief, Mallari filed a motion
to remand, seeking to pursue adjustment of status on
the basis of an approved relative visa petition filed by his
adult son who is a citizen of the United States. The govern-
ment opposed Mallari’s motion to remand. On September
21, 2006, the Board dismissed Mallari’s appeal, conclud-
ing that Mallari was ineligible for a waiver under § 212(c).
The Board further concluded that while Mallari might
be eligible for an adjustment of status on the basis of a
relative visa petition, he had failed to establish any dis-
cretionary considerations favoring remand and therefore
he had not met his heavy burden of proving that reopen-
ing the proceedings was warranted. Mallari appeals.
B. Petitioner Munoz
Munoz, a citizen of Mexico, was admitted into the United
States as a lawful permanent resident on October 27, 1989.
In 1990, Munoz pleaded guilty in Illinois state court to the
crime of aggravated criminal sexual abuse of a minor.
Munoz was sentenced to probation for four years, but he
4 Nos. 06-3717, 06-3841, 06-3979, 07-1199 & 07-1670
violated his probation order by returning to Mexico.
Following Munoz’s probation violation, the Illinois
state court sentenced him to three years of imprisonment.
Based on his conviction, the government served Munoz
with an NTA in immigration court, charging him with
removal as an alien convicted of sexual abuse of a minor,
an aggravated felony. In May 2005, an IJ determined
that Munoz was removable, and that he was not entitled
to a § 212(c) waiver of removability. Munoz appealed to
the Board. In September 2006, the Board dismissed his
appeal, holding that Munoz was not entitled to a § 212(c)
waiver. Munoz filed an appeal with this court.
The day before oral argument, Munoz filed an Emer-
gency Motion to Hold Petition for Review in Abeyance to
allow the Board to adjudicate a motion to reopen he had
filed one week earlier with the Board. The motion to hold
in abeyance is now also before this court. In support of
his motion, Munoz attested that on August 28, 2007, he
filed a Motion to Reopen his immigration case with the
Board, seeking adjustment of status as the spouse of a
United States citizen. The government objected to Munoz’s
request to hold this appeal in abeyance, noting that pro-
ceeding with Munoz’s appeal would have no effect on
Munoz’s motion to reopen. Given that Munoz’s appeal
was fully briefed and argued, and that we are consider-
ing a purely legal question, there is no reason to further
delay adjudication of the issue presented on appeal.
Accordingly, we deny Munoz’s Motion to Hold Petition
for Review in Abeyance.
C. Petitioner Ibarra
In 1981, Ibarra, a citizen of Mexico, “entered the United
States at or near El Paso, Texas . . . without being admitted
Nos. 06-3717, 06-3841, 06-3979, 07-1199 & 07-1670 5
or paroled into the United States.” IJ Decision at 2. How-
ever, he later became a lawful permanent resident on
May 18, 1990. Less than one month later, Ibarra pleaded
guilty in Illinois state court to two counts of aggravated
criminal sexual assault “based on his sexual penetration
of a child under the age of 13.”
On May 4, 1999, the Immigration and Naturalization
Service “INS” (now the Department of Homeland
Security, “DHS”) served Ibarra with an NTA. The NTA
charged Ibarra with removability from the United States as
an alien convicted of criminal sexual assault, an aggravated
felony. An IJ ordered Ibarra deported to Mexico, deter-
mining that he was statutorily ineligible for a § 212(c)
waiver. Ibarra appealed to the Board. While his appeal
was pending, the Supreme Court decided INS v. St. Cyr,
533 U.S. 289 (2001). In St. Cyr, the Supreme Court held
that aliens whose criminal convictions were obtained
through plea agreements, and who would have been
eligible for § 212(c) relief at the time of their pleas, re-
mained eligible for § 212(c) relief notwithstanding the
fact that § 212(c) had been repealed prior to the initiation
of their removal proceedings. Id. at 326. Based on St. Cyr,
the Board remanded Ibarra’s case to the INS to allow Ibarra
to apply for § 212(c) relief. On remand, an IJ determined
that Ibarra was not eligible for a § 212(c) waiver based on
the offense for which he was found removable. Ibarra
appealed to the Board. The Board dismissed Ibarra’s
appeal, agreeing with the IJ that Ibarra was not entitled
to § 212(c) relief. Ibarra appealed to this court.
While his appeal was pending before this court, Ibarra
filed a motion to reopen his case to present an application
for adjustment of status based on his marriage to a United
States citizen and his wife’s approved visa petition. The
6 Nos. 06-3717, 06-3841, 06-3979, 07-1199 & 07-1670
Board denied Ibarra’s motion to reopen and Ibarra ap-
pealed that decision to this court. He also filed a motion
to reconsider both the Board’s denial of his request for
§ 212(c) relief and its denial of his motion to reopen. The
Board denied Ibarra’s motion to reconsider and Ibarra
appeals from that denial as well.
II.
On appeal, all three petitioners argue that they are
entitled to seek a waiver from removability pursuant to
§ 212(c). Mallari and Ibarra also present other issues re-
lated solely to their individual cases. We address the
§ 212(c) issue first, as to all petitioners, and then con-
sider the additional issues on appeal.
A. Section 212(c)
Historically, the government could remove a lawful
permanent resident from the United States by either
deporting them after entry under § 241 (now § 237) of the
INA, 8 U.S.C. § 1227, or by excluding them upon reentry
under § 212 of the INA, 8 U.S.C. § 1182(a). Currently,
there are forty-six grounds of exclusion, 8 U.S.C. § 1182,
and thirty-three grounds of deportation, 8 U.S.C. § 1227.
Blake v. Carbone, 489 F.3d 88, 94 (2d Cir. 2007). While
there is some overlap, not every act that renders someone
deportable makes him excludable, and vice versa. Id.Until 1996, § 244 of the INA authorized the Attorney
General, in his discretion, to suspend the deportation of
a person who 1) maintained at least seven years of con-
tinuous physical presence in the United States (ten for
certain deportable offenses) following the commission of
Nos. 06-3717, 06-3841, 06-3979, 07-1199 & 07-1670 7
the deportable offense, 2) possessed “good moral charac-
ter,” and 3) whose deportation would result in “extreme
hardship” (“exceptional and extremely unusual hard-
ship” for certain deportable offenses) “to the alien or to his
spouse, parent, or child, who is a citizen of the United
States or an alien lawfully admitted for permanent resi-
dence.” 8 U.S.C. § 1254(a)(1) & (2) (repealed 1996). Simi-
larly, § 212(c) of the INA contained a waiver provision
for those subject to exclusion, providing the Attorney
General with discretion to waive exclusion (now known
as inadmissibility) for “[a]liens lawfully admitted for
permanent residence who temporarily proceeded abroad
voluntarily and not under an order of deportation, and
who are returning to a lawful unrelinquished domicile of
seven consecutive years . . . .” 8 U.S.C. § 1182(c) (repealed
1996).
By its terms, § 244 applied only to those in deportation
(now called removal) proceedings and § 212(c) applied
only to those in exclusion proceedings. See 8 U.S.C.
§ 1254(a); 8 U.S.C. § 1182(c). The disparity between the
statutes could lead to some strange outcomes. For instance,
if a lawful permanent resident left the country and upon
returning to the United States was placed in exclusion
proceedings, a § 212(c) waiver would be available. How-
ever, if the border officials failed to place the lawful
permanent resident in exclusion proceedings and in-
stead allowed reentry, and later the government instituted
deportation proceedings, a § 212(c) waiver would not
be available under the plain language of that statute.
While the latter individual could seek a § 244 waiver
from deportation, the requirements for a waiver under
that section were more stringent. Thus, a § 212(c) waiver
was more desirable. But because the returning lawful
permanent resident had been allowed reentry and was
8 Nos. 06-3717, 06-3841, 06-3979, 07-1199 & 07-1670
not placed in removal proceedings, the text of § 212(c)
limited such an individual to a § 244 waiver.
To address this quirk in the system, the Board for over
sixty years considered § 212(c) waiver applications from
“lawful permanent residents who commit[ed] an
excludable offense in the United States, depart[ed] and
return[ed] to the United States after commission of the
offense, [and who] ha[d] not been put in exclusion pro-
ceedings upon return, but later end[ed] up in deportation
proceedings.” See Blake, 489 F.3d at 94. See Matter of G-A-, 7
I & N Dec. 274 (BIA 1956). In other words, since the Board’s
decision in Matter of G-A, the Board allowed cer-
tain individuals in deportation proceedings to obtain
a waiver under a statutory provision, namely § 212(c),
that by its terms did not apply.
Following the Board’s decision in Matter of G-A-, a
lawful permanent resident who had never left the United
States sought a § 212(c) waiver from the Board. See Matter
of Arias-Uribe, 13 I & N Dec. 696 (BIA 1971), aff’d sub nom.
Arias-Uribe v. INS, 466 F.2d 1198 (9th Cir. 1972). The Board,
while recognizing that it had already expanded the
scope of § 212(c) beyond that authorized by Congress,
refused to broaden § 212(c) even further so as to allow a
waiver for those who never left the country. Arias-Uribe,
13 I & N Dec. at 698.
However, in 1976, the Second Circuit rejected the
Board’s position that a § 212(c) waiver was only available
to those individuals who had actually departed and
reentered the country. Francis v. INS, 532 F.2d 268 (2d Cir.
1976). In Francis, the INS charged the petitioner with
deportability under § 241 of the INA based on his con-
viction for a narcotics offense. Francis sought a § 212(c)
waiver, but the Board held that because Francis had never
Nos. 06-3717, 06-3841, 06-3979, 07-1199 & 07-1670 9
left the United States and was being deported under
§ 241, and not being excluded under § 212(a), § 212(c) did
not apply. Francis appealed to the Second Circuit, arguing
that treating him differently than lawful permanent
residents who had departed and returned to the United
States violated the Equal Protection Clause of the Con-
stitution. The Second Circuit agreed, holding that Congress
lacked a rational justification for treating lawful permanent
residents who had traveled abroad and then returned
differently than those who had never left the country. Id.
at 273. Rather than strike the statute, though, the Second
Circuit held that the petitioner and others who “differed
from excludable lawful permanent residents only in
terms of a recent departure from the country” were en-
titled to seek a § 212(c) waiver. See Blake, 489 F.2d at 95
(explaining Francis).
The Solicitor General decided not to seek certiorari in
Francis, and the Board then acquiesced to the Second
Circuit’s decision in Francis by following the mandate
of Francis throughout the country, see Matter of Silva, 16
I & N Dec. 26 (BIA 1976), even though the Board was “not
required to accept an adverse determination by one cir-
cuit court of appeals as binding throughout the United
States.” State of Ga. Dep’t. of Med. Assis. v. Bowen, 846 F.2d
708, 710 (11th Cir. 1988). See Valere v. Gonzales, 473 F.3d 757,
760 (7th Cir. 2007) (“In In Matter of Silva, 16 I & N Dec. 26
(B.I.A. 1976), the B.I.A. adopted the Second Circuit’s
position.”). Based on Francis, immigration courts through-
out the country considered § 212(c) waiver requests from
lawful permanent residents in deportation proceedings
where the permanent resident aliens were similarly
situated to those in exclusion proceedings. See, e.g., Matter
of Silva, 16 I & N. Dec. 26. This court followed suit. Leal-
10 Nos. 06-3717, 06-3841, 06-3979, 07-1199 & 07-1670
Rodriguez v. INS, 990 F.2d 939, 948-49 (7th Cir. 1993)
(holding that based on Francis’s rationale a deportable
alien may seek § 212(c) relief if the ground for deporta-
tion had a comparable ground of exclusion, but rejecting
the petitioner’s argument that all deportable aliens quali-
fied for a § 212(c) waiver).
The Board, as early as the 1970’s, began to apply a
“comparable grounds” analysis to determine if a lawful
permanent resident subject to deportation was similarly
situated to someone in exclusion proceedings. Valere,
473 F.3d at 761. The Board adopted the “comparable
grounds” test to account for the fact that a § 212(c) waiver
was only available to aliens who were “excludable” under
§212(a). Thus, an alien deportable under § 241 would be
similarly situated to an excludable alien only if the statu-
tory ground for removal had a statutory counterpart, i.e.,
a “comparable ground,” in the enumerated grounds for
excludability under § 212(a). See id. at 760. In other
words, the Board concluded that an individual subject
to removal is only allowed to seek a § 212(c) waiver if
the ground for removal is also a statutory ground for
exclusion. The Attorney General approved the “compara-
ble grounds” analysis in 1991. Matter of Hernandez-Casillas,
20 I & N Dec. 262 (BIA 1990; A.G. 1991) (holding that
§ 212(c) is not available for a ground of deportability that
is not also a waivable ground of excludability under
§ 212(a)).1
1
The Attorney General’s approval was pursuant to the author-
ity “Congress has vested in the Attorney General . . . to decide
legal questions arising under the immigration laws. See 8 U.S.C.
§ 1103(a). The Attorney General has delegated this function
(continued...)
Nos. 06-3717, 06-3841, 06-3979, 07-1199 & 07-1670 11
The Board’s adoption of the “comparable grounds” test,
however, did not end the difficulties caused by applying
a statutory standard beyond the text’s scope. Rather, it
created an entirely new issue, namely how to determine
what was a “comparable” ground of excludability. One
of the next significant issues the Board confronted con-
cerned the handling of § 212(c) waiver requests made by
individuals subject to deportation for being convicted of
an aggravated felony. Section 241(a)(4)(B) of the INA
provided for deportation for those convicted of aggravated
felonies, whereas § 212(a) does not provide for exclusion
of those convicted of aggravated felonies. The Board
concluded that, rather than adopt an absolute bar to
§ 212(c) waivers for aggravated felons subject to deporta-
tion, it would look to the provision of the INA that defined
the offense as an “aggravated felony” to determine if there
was a comparable ground of excludability. In re Meza,
20 I & N Dec. 257 (BIA 1991). Accordingly, in Meza, the
Board first looked to the INA to determine the underly-
ing category of aggravated felony charged, which, in that
case, was “any illicit trafficking in any controlled sub-
stance . . . including any drug trafficking crime.” Id. The
Board then looked to § 212(a) to determine if it provided a
ground of excludability that compared to the underlying
aggravated felony. The Board concluded that § 212(a)(23),
which provided as a basis for exclusion that the convic-
tion was for “a violation of, or conspiracy to violate, any
1
(...continued)
to the Board; however, the Attorney General retains the author-
ity to review final decisions of the BIA, either upon the Attor-
ney General’s initiative or by request. See 8 C.F.R. § 3.1(h).”
Farquharson v. U.S. Att’y. Gen., 246 F.3d 1317, 1323 n.7 (11th
Cir. 2001).
12 Nos. 06-3717, 06-3841, 06-3979, 07-1199 & 07-1670
law or regulation relating to the illicit possession or traffic
in narcotic drugs . . . .” see 8 U.S.C. § 1182(a)(23), provided
a comparable ground of excludability. Accordingly, the
Board concluded that Meza could seek a § 212(c) waiver. Id.
The Board’s decision in Meza left other questions
unanswered—most significantly whether the Board (and
courts) should look to the grounds for deportation
stated in the NTA, as opposed to what the INS could have
charged the alien with as a basis for excludability had the
alien sought admission. The Ninth Circuit in Komarenko v.
INS, 35 F.3d 432 (9th Cir. 1994), explored this question. In
Komarenko, the petitioner was convicted of assault with a
deadly weapon. Following his conviction, the INS began
deportation proceedings, charging Komarenko with
deportability based on being an alien convicted of a
firearms charge. Id. at 434. After the Board held that
Komarenko did not qualify for a § 212(c) waiver because
there was no comparable ground for excludability,
Komarenko filed a petition for review in the Ninth Circuit.
Komarenko argued that the Board’s ruling violated his
equal protection and due process rights and that he was
entitled to a § 212(c) waiver because “the factual basis for
his conviction, assault with a deadly weapon, could have
rendered him excludable as an alien convicted of a
crime involving moral turpitude under § 212(a)(2) of the
INA.” Id. at 435. In other words, Komarenko argued that
the court “must focus on the facts of his individual case
and conclude that because he could have been excluded
under the moral turpitude provision, he has been denied
equal protection.” Id. (emphasis in original). The Ninth
Circuit rejected Komarenko’s argument for several reasons.
First, it refused “to speculate whether the I.N.S. would
have applied this broad [moral turpitude] excludability
Nos. 06-3717, 06-3841, 06-3979, 07-1199 & 07-1670 13
provision to an alien in Komarenko’s position.” Id. Second,
the court believed that looking to what an alien could
have been charged with as a basis for excludability, as
opposed to what he was charged with, “would extend
discretionary review to every ground for deportation that
could constitute the essential elements of a crime involv-
ing moral turpitude.” Id. The Ninth Circuit believed that
“[s]uch judicial legislating would vastly overstep our
limited scope of judicial inquiry into immigration legisla-
tion, and would interfere with the broad enforcement
powers Congress has delegated to the Attorney General, see
8 U.S.C. § 1103(a).” Id. (internal quotations omitted). Third,
the Ninth Circuit believed that Komarenko’s proposed
approach “would create an arbitrary distinction between
aliens whose firearms convictions rise to the level of a
crime of moral turpitude and those whose convictions do
not, and then extend discretionary review only to those
with the more serious convictions.” Id. at 435 n.2. Accord-
ingly, the Ninth Circuit held that the appropriate focus
was on the charged ground for deportation and not on
whether an alien could have been excluded under the
moral turpitude provision. See id. 435. The Ninth Circuit
then concluded that Komarenko did not qualify for a
§ 212(c) waiver, holding “that the deportation provision
for aliens convicted for firearms charges and the exclu-
sion provision for moral turpitude” are not substantially
identical. Id. at 434.
While the circuits attempted to navigate the torrents of
§ 212(c), Congress began a series of amendments to the
immigrations laws. First, in 1990, Congress amended
§ 212(c) so as to prevent the Attorney General from grant-
ing waivers to aggravated felons who had served five or
more years in prison. See Immigration Act of 1990, Pub. L.
14 Nos. 06-3717, 06-3841, 06-3979, 07-1199 & 07-1670
No. 101-649, § 511(a), 104 Stat. 4978, 5052 (1990). Then in
1996, Congress eliminated § 212(c) waivers entirely for
lawful permanent residents convicted of an aggravated
felony, see Antiterrorism and Effective Death Penalty Act
(“AEDPA”), Pub.L. No. 104-132, § 440(d), 110 Stat. 1214,
1277 (1996), and later that same year repealed § 212(c)
entirely. See Illegal Immigration Reform and Immigrant
Responsibility Act (“IIRIRA”), Pub.L. No. 104-208, 110
Stat. 3009-597 (1996).2
However, in INS v. St. Cyr the Supreme Court held
there is
nothing in IIRIRA unmistakably indicating that Con-
gress considered the question whether to apply its
repeal of § 212(c) retroactively to such aliens. We
therefore hold that § 212(c) relief remains available for
aliens, like respondent, whose convictions were ob-
2
As part of the broad structural changes to the IIRIRA, Con-
gress “dropped the concept of ‘excludability’ and now uses
the defined term of ‘inadmissibility.’ ” Xi v. U.S. I.N.S., 298 F.3d
832, 838 (9th Cir. 2002). The IIRIRA also eliminated some of
the distinctions that had existed between “deportation” and
“exclusion” proceedings and created a unified proceeding
under § 240 called “removal proceedings.” 8 U.S.C. § 1229a.
Section 240(e)(2) of the INA then defines the term “removable”
to mean an alien who is “deportable” or an alien who is
“inadmissible.” Congress also adopted § 240A(a), Cancellation
of Removal, creating a waiver from removal whether the
permanent resident was inadmissible under § 212(a) or
deportable under § 237 (which replaced the predecessor
deportation provision, § 241), but only for certain classes of
aliens, excluding those convicted of aggravated felonies. 8 U.S.C.
§ 1229B.
Nos. 06-3717, 06-3841, 06-3979, 07-1199 & 07-1670 15
tained through plea agreements and who, notwith-
standing 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. 289, 326 (2001).
Following St. Cyr, the DHS promulgated a rule to
implement St. Cyr, and at the same to time clarify the
comparable grounds test. The DHS codified the compara-
ble grounds test in 8 C.F.R. § 1212.3(f)(5), providing
that “[a]n application for relief under former section 212(c)
of the Act shall be denied if . . . [t]he alien is deportable
under former section 241 of the Act or removable under
section 237 of the Act on a ground which does not have
a statutory counterpart in section 212 of the Act.”
In 2005, the Board in Blake, 23 I & N Dec. 722, again
applied the comparable grounds test, as recently codified
in 8 C.F.R. § 1212.3(f)(5). In that case, the DHS charged
Blake with deportability for having an aggravated felony
conviction for sexual abuse of a minor. Blake sought a
waiver of deportability under § 212(c). The Board held
that Blake did not qualify for a § 212(c) waiver because
there was no comparable ground of inadmissibility (i.e.,
excludability) under § 212(a). The Board in Blake also
specifically rejected the petitioner’s claim that the “crime
of moral turpitude” ground for exclusion was the stat-
utory counterpart. Id. at 729.
Numerous circuits, including this one, have followed the
Board’s approach in Blake. See Valere v. Gonzales, 473 F.3d
757, 762 (7th Cir. 2007) (holding that Board’s decision
denying Valere § 212(c) relief under the reasoning of
Blake did not violate the Equal Protection clause because
“there is no statutory counterpart in § 212(a) for his crime
16 Nos. 06-3717, 06-3841, 06-3979, 07-1199 & 07-1670
of indecent assault of a minor,” and therefore “Valere
is not similarly situated to an inadmissible, returning alien
who is eligible to apply for § 212(c) relief”); Soriano v.
Gonzales, 489 F.3d 909, 909 (8th Cir. 2006) (holding that
Soriano “was ineligible for a waiver of removability under
Immigration and Nationality Act (INA) § 212(c) . . . because
the ground for which he was found removable—the
aggravated felony of sexual abuse of minor—does not have
a statutory counterpart in the grounds of inadmissibility
listed in INA § 212(a). . . .”); Caroleo v. Gonzales, 476 F.3d
158, 167-68 (3d Cir. 2007) (holding that Caroleo was not
entitled to a § 212(c) waiver because Caroleo was charged
with removability for a crime of violence and there is
no statutory counterpart in § 212(a), and rejecting
Caroleo’s claim that the Board should look to the under-
lying crime of attempted murder and treat that as being
a counterpart to § 212(a)’s crime of moral turpitude).
Recently, however, the Second Circuit overruled the
Board’s Blake decision. In Blake v. Carbone, 489 F.3d 88 (2d
Cir. 2007), the four petitioners had all been charged with
removability for various criminal offenses. Specifically,
two of the petitioners had been convicted of murder,
rape, and sexual abuse of a minor; one had a federal
racketeering conviction; and the fourth was convicted of
first degree manslaughter. The Board concluded that they
were not eligible for § 212(c) waivers because there were
no statutory counterparts to the grounds of removability.
The petitioners appealed to the Second Circuit, arguing
that the moral turpitude ground of excludability was the
statutory counterpart because all aggravated felonies
involved crimes of moral turpitude. Conversely, the
government argued that the only question was whether
the ground for deportability relied upon by the DHS had
a comparable ground for exclusion. The Second Circuit
Nos. 06-3717, 06-3841, 06-3979, 07-1199 & 07-1670 17
rejected both approaches, holding instead that the Board
must determine whether each petitioner’s “particular
aggravated felony offense could form the basis of exclusion
under § 212(a) as a crime of moral turpitude.” Id. at 104
(emphasis added). In reaching this conclusion, Blake
expressly “recognize[d] [its] holding [was] at odds with
that reached by several other circuits.” Id. at 103. The Blake
court then explained its reason for rejecting these deci-
sions, stating:
Were we to approve of these other courts’ formulaic
approach—limiting ourselves only to the language in
the relevant grounds of deportation and exclusion—we
would be ignoring our precedent that requires us to
examine the circumstances of the deportable alien,
rather than the language Congress used to classify
his or her status.
Id. at 104.
Since the Second Circuit’s decision in Blake, two circuits
have rejected Blake’s approach in published opinions,
specifically, the Ninth Circuit in Abebe v. Gonzales, 493
F.3d 1092 (9th Cir. 2007), and most recently the Eighth
Circuit in Vue v. Gonzales, 496 F.3d 858 (8th Cir. 2007).3 In
3
The Third Circuit has also rejected the Second Circuit’s
approach in Blake, albeit in an unpublished decision. See Birkett
v. Att’y Gen. of U.S., 2007 WL 3193530 (3d Cir. 2007). Also in an
unpublished decision the Eleventh Circuit in Palomino-Abad v.
U.S. Att’y Gen., 229 Fed.Appx. 891 (11th Cir. 2007), remanded the
case to the Board to allow the Board to reconsider its ruling
in light of the Second Circuit’s decision in Blake. In doing so,
the Eleventh Circuit stated that it was not expressing any
opinion about the petitioner’s eligibility for a § 212 waiver. In
(continued...)
18 Nos. 06-3717, 06-3841, 06-3979, 07-1199 & 07-1670
Abebe, the government commenced deportation proceed-
ings against Abebe, charging that he was deportable
because he had been convicted of sexual abuse of a minor,
an aggravated felony. The Ninth Circuit, after explaining
the history of the § 212(c) issue, reaffirmed its holding
in Komarenko, that § 212(c) relief is only available in “cases
involving aliens facing deportation on a basis which ‘is
identical to a statutory ground for exclusion for which dis-
cretionary relief would be available.’ ” Abebe, 493 F.3d at
1104 (emphasis in original) (quoting Komarenko). In other
words, the Ninth Circuit looked to the actual grounds on
which an alien is found to be removable—not the possible
grounds. Id.Most recently, the Eighth Circuit in Vue v. Gonzales, 496
F.3d 858 (8th Cir. 2007), addressed the § 212(c) issue. After
summarizing the history of the § 212(c) issue, the court
ruled that since there was no statutory counterpart to
3
(...continued)
Gutierrez-Almazan v. Gonzales, 491 F.3d 341 (7th Cir. 2007),
the petitioner sought reversal of the Board’s decision deny-
ing him § 212(c) relief because he had failed to file a timely
petition. The Board had also ruled that even if Almazan’s
petition was timely, he was not entitled to relief under § 212(c)
because he was convicted of sexual assault of a minor and there
was no comparable ground for inadmissibility. This court did
not reach the merits of the § 212(c) issue, even though Valere
would control, and instead remanded, directing the Board to
consider the petition. This court then added that on remand the
Board “may wish to reconsider its prejudice ruling in light of
the Second Circuit’s decision in Blake v. Carbone, 489 F.3d 88(2d Cir. 2007).” Gutierrez-Almazan, 491 F.3d at 344 n.1. Gutierrez-
Almazan, however, did not take a position on the propriety of
the Second Circuit’s decision in Blake. Id.Nos. 06-3717, 06-3841, 06-3979, 07-1199 & 07-1670 19
Vue’s aggravated felony (first degree assault), Vue was
not entitled to a § 212(c) waiver. The Vue court also re-
jected the Second Circuit’s decision in Blake as contrary
to its own Eighth Circuit precedent and held that Vue
was not entitled to a § 212(c) waiver even if his aggravated
felony was also a crime of moral turpitude. Id. at 861.
Against this backdrop, we consider the petitioners’
argument that they were entitled to seek § 212(c) waivers.
Initially, the petitioners all argue that the Board
impermissibly applied 8 C.F.R. § 1212.3(f)(5) and the
Board’s decision in Blake retroactively so as to deny them
relief under § 212(c). Specifically, the petitioners argue that
the Board erred in relying on Blake and 8 C.F.R.
§ 1212.3(f)(5) in holding that they were not eligible for
§ 212(c) waivers because Blake was decided after they
pleaded guilty to sexual abuse of a minor and 8 C.F.R.
§ 1212.3(f)(5) was promulgated after their guilty pleas.
However, neither Blake nor 8 C.F.R. § 1212.3(f)(5) estab-
lished a new rule. Rather, since the 1970’s, the Board has
held that § 212(c) waivers for deportation cases were
limited to situations where there was a comparable ground
of excludability. See Valere, 473 F.3d at 762. Section
1212.3(f)(5) of the regulations also did not create a new
rule of law, but merely codified the Board’s case law.
Similarly, the Board in Blake did not establish a new rule
of law, but rather applied the previously well-established
comparability standard in a different factual context.4
4
The petitioners all maintain on appeal that if their case had
been heard before Blake they would have qualified for § 212(c)
relief. However, as just noted, Blake merely applied the compara-
ble basis test to a new factual scenario. If one of these petition-
(continued...)
20 Nos. 06-3717, 06-3841, 06-3979, 07-1199 & 07-1670
Therefore, Blake and 8 C.F.R. § 1212.3(f)(5) did not retroac-
tively apply a new rule of law to the petitioners. See Valere,
473 F.3d at 761 (rejecting the argument that § 1212.3(f)(5)
impaired petitioner’s right to a § 212(c) waiver because
he “never had any right to § 212(c) eligibility. . . . Section
1212.3(f)(5) is simply the agency’s codification of this
preexisting, judicially created rule”); Vue, 496 F.3d at 863(stating that “8 C.F.R 1212.3(f)(5) merely codifies estab-
lished law”); see also Blake, 489 F.3d at 98-99 (noting that
“[t]he statutory counterpart rule does nothing more than
crystallize the agency’s preexisting body of law and
therefore cannot have an impermissible retroactive effect”).
In a somewhat related argument, the petitioners also
claim that the government impermissibly retroactively
denied them § 212(c) waivers for having committed an
“aggravated felony” because at the time they pleaded
guilty to sexual abuse, sexual abuse did not constitute
an “aggravated felony.” The petitioners point out that it
was only after Congress passed IIRIRA that sexual abuse
was defined as an “aggravated felony.” However, in
passing IIRIRA, Congress expressly provided “that the
amended definition of ‘aggravated felony’ should be
applied to any and all criminal violations committed by an
alien after entry into the United States, regardless of
whether they were committed before or after the
amended definition went into affect.” Flores-Leon v. INS,
272 F.3d 433, 439 (7th Cir. 2001).
4
(...continued)
ers’ cases had come before Blake, that case would be the “Blake”
case that stood for the proposition that an alien convicted of
sexual abuse of a minor does not qualify for a § 212(c) waiver
because there is no comparable ground of excludability.
Nos. 06-3717, 06-3841, 06-3979, 07-1199 & 07-1670 21
Moreover, as the Second Circuit explained in Blake,
such claims of impermissible
retroactivity by petitioners Blake and Singh are curi-
ous. Each pleaded guilty to a crime that was not a
deportable offense when they entered their pleas. Blake
pleaded guilty to sexual abuse of a minor in 1992 but
did not become deportable until 1996, when IIRIRA
amended the definition of an aggravated felony
to include sexual abuse of a minor. See 8 U.S.C.
§ 1101(a)(43). Singh similarly pleaded guilty to murder
in 1986 but did not become deportable until the pas-
sage of the AEDPA. To say Blake and Singh relied on
the law in effect at the time of their guilty plea is
illogical; neither would have been deportable at the
time of their plea, making it impossible for them to
even think they would need a § 212(c) waiver to stay
in the country.
Blake, 489 F.3d at 99 n.8.
Similarly, in this case, because at the time the petitioners
pleaded guilty to sexual abuse it was not a deportable
offense, they could not have pleaded guilty in reliance on
the availability of a § 212(c) waiver since they had no
need for a waiver. The petitioners’ real complaint is that
they pleaded guilty to offenses that were not deportable at
the time of their pleas. However, because Congress ex-
pressly made the new definition of “aggravated felony”
retroactive, the petitioners cannot challenge the retro-
activity of that definition. See Flores-Leon, 272 F.3d at 438-
39 (holding that “Congress has clearly manifested an intent
to apply the amended definition of ‘aggravated felony’
retroactively”).
Next, the petitioners claim that the Board’s decisions
holding them ineligible for § 212(c) waivers violate the
22 Nos. 06-3717, 06-3841, 06-3979, 07-1199 & 07-1670
Supreme Court’s holding in St. Cyr. As explained above,
in St. Cyr the Supreme Court held that § 212(c) relief
remains available to aliens whose convictions were ob-
tained through plea agreements and who, notwithstand-
ing those convictions, would have been eligible for § 212(c)
waivers at the time of their pleas under the law then in
effect. St. Cyr, 533 U.S. at 326. However, for St. Cyr to
benefit the petitioners, the petitioners must show that at
the time of their pleas they were entitled to § 212(c) relief.
As explained above, since at least 1979 the government
has denied § 212(c) waivers to those subject to deport-
ability, absent a comparable ground in § 212(c). Thus,
unless there is a comparable ground of inadmissibility
under § 212(a), St. Cyr is inapplicable.
That then leads to petitioners’ argument that because
their convictions for sexual abuse of a minor are crimes
of moral turpitude, they qualify for § 212(c) waivers, and
therefore denying them the right to apply for such
waivers violates St. Cyr and their equal protection rights. In
support of their position, the petitioners rely on the Second
Circuit’s decision in Blake, overturning the Board’s Blake
decision. This court, however, rejected that argument in
Valere, and we need a compelling reason to overturn circuit
precedent, such as a Supreme Court mandate or a new
statute. Santos v. United States, 461 F.3d 886, 891 (7th Cir.
2006).
The petitioners initially contend that Valere is not con-
trolling because the petitioner in that case did “not directly
challenge the [Board’s] conclusion in Blake that the crime
of sexual abuse of a minor has no statutory counterpart in
§ 212(a).” See Valere, 473 F.3d at 761. That argument,
however, ignores the fact that Valere presented an equal
protection argument that required this court to consider
Nos. 06-3717, 06-3841, 06-3979, 07-1199 & 07-1670 23
the validity of Blake and the statutory counterpart test.
Specifically, in Valere, the petitioner claimed “that applica-
tion of the statutory counterpart requirement of
§ 1212.3(f)(5) violates his equal protection rights.” Id. To
address Valere’s equal protection argument, this court
needed to first determine if Valere was similarly situated to
an inadmissible alien, and that determination rested on the
validity of the statutory counterpart test and Blake. In
Valere, this court held that § 1212.3(f)(5) was “simply the
agency’s codification of this preexisting judicially
created [statutory counterpart] rule.” Id. at 761. We fur-
ther held that “[a]lthough the Blake decision marked the
first time the [Board] applied the rule to the crime of
sexual assault of a minor, the rule itself is not new.” Id.
This court then concluded that “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.” Id. We further held that
because there was “no statutory counterpart in § 212(a) for
his crime of indecent assault of a minor, Valere is not
similarly situated to an inadmissible, returning alien
who is eligible to apply for § 212(c) relief.” Id. at 762.
Therefore Valere’s equal protection challenge failed. Id.
Thus, contrary to the petitioners’ argument, Valere did
consider the validity of the statutory counterpart test, as
well as Blake’s holding that the crime of moral turpitude
category did not qualify as a counterpart, and Valere
controls.
The petitioners also claim that we should overturn
our decision in Valere because it was based on the Board’s
decision in Blake, which the Second Circuit recently over-
turned. However, as the Second Circuit recognized in Blake,
its holding conflicts with every other circuit that has
24 Nos. 06-3717, 06-3841, 06-3979, 07-1199 & 07-1670
confronted the issue. See Blake, 489 F.3d at 103. See, e.g.,
Avilez-Granados v. Gonzales, 481 F.3d 869, 872 (5th Cir.
2007)5; Caroleo v. Gonzales, 476 F.3d 158, 168 (3d Cir. 2007);
Kim v. Gonzales, 468 F.3d 58, 62 (1st Cir. 2006); Komarenko
v. INS, 35 F.3d 432 (9th Cir. 1994). Since Blake, in published
opinions, two circuits have reaffirmed their earlier hold-
ings and rejected the Second Circuit’s approach in Blake. See
Abebe v. Gonzales, 493 F.3d 1092 (9th Cir. 2007); Vue v.
Gonzales, 496 F.3d 858 (8th Cir. 2007). A third circuit has
rejected Blake in an unpublished order. See Birkett v.
Attorney General of U.S., 2007 WL 3193530 (3d Cir. 2007).
Thus, the weight of precedent supports our holding in
Valere.
Additionally, we find the reasoning of the Ninth Circuit
in Komarenko, as recently reaffirmed in Abebe, particularly
persuasive. As the Ninth Circuit explained, if courts
were to look beyond the charged grounds of deportation
to the underlying criminal offense to determine whether
the criminal offense could have been treated as a crime
of moral turpitude, that would greatly expand the role
Congress assigned the judiciary in immigration cases. That
is especially true given that the precise meaning of the
term “moral turpitude” is not clearly established. We also
find the Fifth Circuit’s reasoning in Avilez-Granados, 481
F.3d 869, persuasive. In that case, the alien was charged
with removability for sexual abuse of a child. The peti-
5
The Fifth Circuit in Avilez-Granados “note[d] that two compan-
ion cases, Vo v. Gonzales, 482 F.3d 363, and Brieva-Perez v.
Gonzales, 482 F.3d 356 (5th Cir. 2007), were heard on the
same day and contain related issues and overlapping reason-
ing.”
Nos. 06-3717, 06-3841, 06-3979, 07-1199 & 07-1670 25
tioner argued that there was a statutory counterpart in the
crime of moral turpitude ground of inadmissibility. The
Fifth Circuit rejected that argument, reasoning that “it is
not enough that a crime could be reclassified. There is no
textual link between sexual abuse of a child and crimes
involving moral turpitude to indicate that Congress had
the same class of offenses in mind when it enacted the
two provisions that must be compared.” Id. at 872.
Further, we reject the Second Circuit’s reasoning in Blake
that it is inappropriate to take a “formulaic approach” that
limits the court “to the language in the relevant grounds
of deportation and exclusion.” Id. Rather, an approach
that focuses on the ground that forms the actual basis for
deportation is most appropriate given that the courts have
already expanded the scope of § 212(c) beyond its ex-
pressed coverage. As the First Circuit observed, § 212(c)
has already been “stretched beyond its language” in
response to equal protection concerns.” See Campos v. INS,
961 F.2d 309, 316 (1st Cir. 1992). Additional “judicial
redrafting would serve only to pull the statute further
from its moorings in the legislative will.” Farquharson,
246 F.3d at 1325. Moreover, “further speculative tinkering
by courts with a statute that says one thing but is sup-
posed to mean another will likely as not result in even
more confusion.” Campos, 961 F.2d at 315. While it has
been firmly established since Francis that those subject to
deportation may seek § 212(c) waivers, even though by its
own terms § 212(c) is inapplicable to deportation pro-
ceedings, we decline to further expand § 212(c) to look
beyond the actual charges of removability for purposes
of determining comparability. Accordingly, we reject the
petitioners’ argument that they qualify for § 212(a) waivers.
We further affirm our holding in Valere that there is no
26 Nos. 06-3717, 06-3841, 06-3979, 07-1199 & 07-1670
equal protection violation because there is no “statutory
counterpart in § 212(a) for his crime of indecent assault
of a minor, [and thus petitioner] is not similarly situated
to an inadmissible, returning alien who is eligible to
apply for § 212(c) relief.” Valere, 473 F.3d at 762. Similarly,
in this case, because there is no “comparable ground”
of exclusion for sexual abuse of a minor, petitioners
are not similarly situated to inadmissible aliens and
therefore they also cannot establish an equal protection
violation. Likewise, because at the time of their pleas the
petitioners did not qualify for § 212(c) relief, St. Cyr does
not apply.
Finally, we note that the Board continues to believe that
its approach in Blake is appropriate, notwithstanding the
Second Circuit’s decision, as demonstrated by the Board’s
recent decision in In re Jacques, 2007 WL 2463895 (2007). In
Jacques, the respondent had sought a § 212(c) waiver. The
Board held that Jacques was ineligible for such a waiver
because the ground for removal, namely knowingly
receiving stolen property, did not have a comparable
ground of inadmissibility. The Board also held that
“whether the offense in question might also have come
under a different ground of removability, i.e., convicted
of a crime involving moral turpitude, . . . is not relevant
to the inquiry.” Id. Further, the Board declined to follow the
Second Circuit’s decision in Blake, noting that it was bound
to follow precedent from the jurisdiction in which the
appeal arises. Id. The Board added that its approach has
been followed by the Third, Fifth, Seventh and Ninth
Circuit, citing Caroleo v. Gonzales, 476 F.3d 158 (3d Cir.
2007); Vo v. Gonzales, 482 F.3d 363 (5th Cir. 2007); Valere v.
Gonzales, 473 F.3d 757 (7th Cir. 2007); Abebe v. Gonzales, 493
F.3d 1092 (9th Cir. 2007).
Nos. 06-3717, 06-3841, 06-3979, 07-1199 & 07-1670 27
B. Individual Claims
Other than his motion to hold this appeal in abeyance
and his arguments related to § 212(c), Munoz did not
present any additional arguments on appeal. Conversely,
Ibarra and Mallari present several additional arguments
on appeal. We consider their claims individually below.
1. Ibarra
As noted above, after the Board denied Ibarra’s request
for a § 212(c) waiver, Ibarra filed a motion to reopen his
case, arguing that he was eligible to adjust his status to that
of lawful permanent resident given his marriage to a
United States citizen. The Board denied Ibarra’s motion to
reopen and Ibarra filed a notice of appeal of that decision
to this court. He also filed a motion to reconsider both
the Board’s denial of his request for § 212(c) relief and
its denial of his motion to reopen. The Board denied
Ibarra’s motion to reconsider and Ibarra appeals from that
denial as well. On appeal, Ibarra argues that the Board
erred in denying his motion to reopen and his subse-
quent motion for reconsideration. The government main-
tains that we lack jurisdiction to consider Ibarra’s appeal,
as it relates to the denial of his motion to reopen and the
denial of his motion for reconsideration.6
6
The government properly acknowledges that this court has
jurisdiction over the § 212(c) waiver issue because that issue
presents both a question of law and a constitutional question.
Under § 106(a) of the REAL Act of 2005, circuit courts have
jurisdiction to review questions of law and constitutional
claims notwithstanding other jurisdictional bars. 8 U.S.C.
§1251(a)(2)(C).
28 Nos. 06-3717, 06-3841, 06-3979, 07-1199 & 07-1670
We begin with the jurisdictional question. Because
Ibarra’s conviction for sexual abuse of a minor con-
stitutes an aggravated felony under the INA, this court
retains only limited jurisdiction to review a final order of
removal. See 8 U.S.C. § 1252(a)(2)(C) (providing that no
court shall have jurisdiction to review any final order of
removal against an alien who is removable for having
committed an aggravated felony). Specifically, this court
may consider only constitutional claims and questions
of law raised in proper petitions for review. See 8 U.S.C.
§ 1252(a)(2)(D); Hernandez-Alvarez v. Gonzales, 432 F.3d 763,
765 (7th Cir. 2005). Moreover, “where Congress explicitly
withdraws our jurisdiction to review a final order of
deportation, our authority to review motions to recon-
sider or to reopen deportation proceedings is thereby
likewise withdrawn.” Sarmadi v. INS, 121 F.3d 1319, 1322
(9th Cir. 1997); see also Assaad v. Ashcroft, 378 F.3d 471,
474 (5th Cir. 2004) (explaining that “just as our power to
review a final [removal] order is circumscribed by
§ 1252(a)(2)’s various jurisdiction-stripping provisions,
our ‘jurisdiction to entertain an attack on that order
mounted through filing . . . a motion to reopen’ is equally
curtailed”) (quoting Patel v. U.S. Att’y Gen., 334 F.3d 1259,
1261 (11th Cir. 2003)); Emile v. INS, 244 F.3d 183, 189 (1st
Cir. 2001) (noting that “[b]ecause [defendant] was con-
victed of an aggravated felony, we have no authority to
consider on direct review any other claim once we con-
clude that he was legitimately so classified”); Sousa v. INS,
226 F.3d 28, 34 (1st Cir. 2000) (holding that “having de-
termined that [the petitioner] is removable as an aggra-
vated felon, our authority to act in this case with respect to
the removal proceeding, including incidental rulings on
discretionary relief, is at an end”). Thus, we generally
lack jurisdiction to consider Ibarra’s challenges to the
Nos. 06-3717, 06-3841, 06-3979, 07-1199 & 07-1670 29
Board’s denial of his motions to reopen and for recon-
sideration.
In response, Ibarra claims that this court has jurisdic-
tion because the Board’s denials of his motion to reopen
and motion for reconsideration were based on an incorrect
interpretation of the law. Ibarra also argues that by denying
him a hearing of his application for adjustment of status
based on his wife’s visa petition, the Board violated his
right to due process.
A “petitioner may not create the jurisdiction that Con-
gress chose to remove simply by cloaking an . . . argument
in constitutional garb . . . .” Torres-Aguilar v. INS, 246 F.3d
1267, 1271 (9th Cir. 2001). Yet that is exactly what
Ibarra seeks to do, by reformulating his arguments as
presenting legal and constitutional questions. Ibarra fails
to cite any case law that would support his position that the
denial of his motion to reopen or for reconsideration
implicates legal or constitutional principles. Rather, the
decision to grant or deny a motion to reopen is a discre-
tionary decision, even if the alien demonstrates that he is
entitled to relief. See 8 C.F.R. § 1003.2(a). In this case, the
Board denied Ibarra’s motion to reopen, finding that Ibarra
should have presented his request for adjustment of
status much earlier. This conclusion did not involve a
question of law. Nor does Ibarra present a valid con-
stitutional claim, as the due process clause does not re-
quire the Board to reopen or reconsider cases previously
decided or otherwise provide for discretionary relief. See
Dave v. Ashcroft, 363 F.3d 649, 653 (7th Cir. 2004) (holding
that “in immigration proceedings, a petitioner has no
liberty or property interest in obtaining purely discre-
tionary relief . . . and the denial of such relief therefore
cannot implicate due process”); Garcia v. Att’y Gen. of
30 Nos. 06-3717, 06-3841, 06-3979, 07-1199 & 07-1670
U.S., 329 F.3d 1217, 1224 (11th Cir. 2003) (holding that
“aliens do not enjoy a constitutionally protected liberty
interest in a purely discretionary form of relief”). Accord-
ingly, this court lacks jurisdiction to consider Ibarra’s
challenges to the Board’s denial of his motion to reopen
and motion for reconsideration. Id.7
Ibarra also argues that the Board’s order stripping him
forever of his lawful permanent residence was “an exces-
sive fine” in violation of the Eighth Amendment. The
Board’s removal order, however, is not a “fine,” and thus
7
In addition to arguing that the Board violated his due pro-
cess rights by denying his motion to reopen and for reconsid-
eration, throughout his appellate briefs Ibarra makes general
claims of due process violations. See, e.g., Ibarra Brief at 16
(“Immigration Judge Cuevas violated the Petitioner’s rights to
due process in denying the request for a continuance.”); id. (“He
further erred and violated the Petitioner’s right to due pro-
cess . . . in denying him a waiver under Section 212(c) of the
INA.”); id. (“The Board erred in concluding that the Petitioner
was not eligible for a § 212(c) waiver [and] [i]n so doing, the
Board also violated the Petitioner’s right to . . . due process of
the law.”); id. at 17 (“Denying the Petitioner a hearing on his
application for adjustment of status was a further violation of his
right to due process . . . .”); id. at 20-21 (The IJ “further vio-
lated his right to due process, by allowing the government to
file its 95 pages of documents the day before the May 14, 2004
hearing.”); id. at 22 (“The Board has further violated the Peti-
tioner’s right to due process by not following its own prece-
dent.”). But other than citing the general due process require-
ment that a petitioner be provided a meaningful opportunity
to be heard, Ibarra does not develop these other due process
arguments or cite any applicable case law. Therefore, these
claims have been forfeited. See United States v. Boyle, 484
F.3d 943, 946 (7th Cir. 2007).
Nos. 06-3717, 06-3841, 06-3979, 07-1199 & 07-1670 31
the Excessive Fine Clause of the Eighth Amendment does
not apply. The Cruel and Unusual Punishment Clause
is likewise inapplicable because “deportation proceedings
are not criminal and do not constitute punishment” and
thus do not “constitute ‘cruel and unusual punishment’
under the Eighth Amendment.” Flores-Leon, 272 F.3d at
440. Accordingly, Ibarra’s attempt to invoke the Eighth
Amendment fails.
2. Mallari
On appeal, in addition to the arguments raised by the
other petitioners in relation to the § 212(c) waiver issue,
Mallari contends that the law of the case doctrine re-
quired the IJ to consider his request for a § 212(c) waiver.8
As noted above, the IJ originally denied Mallari § 212(c)
relief because he lacked the requisite seven years of
residency then required for such a waiver. On appeal to
the Board, the Board remanded his case to the IJ for
consideration of Mallari’s request for a § 212(c) waiver.
Mallari argues that because the Board previously re-
manded the case to the IJ to allow him to apply for a
§ 212(c) waiver, the law of the case doctrine bars the
Board from now ruling that he is not entitled to a § 212(c)
waiver.
The law of the case doctrine generally provides that
“once an appellate court either expressly or by necessary
8
In his appellate brief, Ibarra states in passing: “The law of this
case therefore is that the Petitioner is statutorially eligible
under St. Cyr.” See Ibarra Petitioner Brief at 21. Ibarra, how-
ever, did not further develop this argument and has thus
forfeited it. See Boyle, 484 F.3d at 946.
32 Nos. 06-3717, 06-3841, 06-3979, 07-1199 & 07-1670
implication decides an issue, the decision will be binding
upon all subsequent proceedings in the same case.” Key v.
Sullivan, 925 F.2d 1056, 1060 (7th Cir. 1991). The law of
the case doctrine has been applied to agency proceed-
ings. Id. See also Zhang v. Gonzales, 434 F.3d 993, 998 (7th
Cir. 2006). However, the law of the case doctrine is inap-
plicable in this case because the Board never ruled that
Mallari was entitled to a § 212(c) waiver. Rather, the Board
remanded the case to allow Mallari to seek a § 212(c)
waiver, noting that he now met the required seven years
of residency. The Board never addressed the merits of
Mallari’s petition for § 212(c) relief. Nor did the Board
address the question of whether Mallari’s basis for re-
moval had a comparable ground in § 212(a). Accordingly,
the law of the case doctrine does not apply. See Key, 925
F.2d at 1061 (holding that “the law of the case doctrine
comes into play only with respect to issues previously
determined”).
Mallari also seeks to challenge on appeal the Board’s
denial of his motion to remand. As noted above, while
Mallari’s appeal from the IJ’s denial of his request for a
§ 212(c) waiver was pending before the Board, Mallari
requested a remand to pursue adjustment of status on the
basis of an approved relative visa petition filed by his
adult son who is a United States citizen. The government
opposed Mallari’s motion to remand. On September 21,
2006, the Board dismissed Mallari’s appeal, concluding
that Mallari was ineligible for a waiver under § 212(c).
The Board further held that while he might be eligible
for an adjustment of status on the basis of a relative visa
petition, Mallari had failed to establish any discretionary
considerations favoring remand and therefore failed to
meet his heavy burden of proving that reopening the
Nos. 06-3717, 06-3841, 06-3979, 07-1199 & 07-1670 33
proceedings was warranted. Mallari challenges the Board’s
denial of his motion to remand.
As with Ibarra’s motion to reopen, we lack jurisdiction to
consider Mallari’s challenge to the Board’s denial of his
motion to remand. Mallari was charged with removability
as an aggravated felon and § 1252(a)(2)(C) precludes all
judicial review, other than for constitutional and legal
claims. 8 U.S.C. § 1252(a)(2)(C). See supra at 51-52.
Mallari argues alternatively that if § 1252(a)(2)(C) acts to
bar this court from having jurisdiction over the Board’s
decision to deny his remand request, the issue is still
properly before this court pursuant to § 1252(a)(2)(D), as
an issue involving constitutional dimensions. Mallari
then posits that “[g]iven the utter lack of attention to
Mr. Mallari’s life circumstances along with the sig-
nificant error of facts contained in the Board’s decision,
it appears Mr. Mallari’s constitutional right to due pro-
cess was violated as the Board’s decision is truly void
of any discretion.” Petitioner Mallari’s Reply Brief at 10.
Again, we stress that “petitioner may not create the
jurisdiction that Congress chose to remove simply by
cloaking an . . . argument in constitutional garb . . . .”
Torres-Aguilar v. INS, 246 F.3d at 1271. Rather, a constitu-
tional claim “would at least have to be colorable” before
a court will exercise jurisdiction to review such a claim
or question. Id. “To be colorable in this context . . . the
claim must have some possible validity.” Id. (internal
quotation omitted). In this case, Mallari failed to present
even a colorable due process claim. While a permanent
resident alien is entitled to due process, such process is
provided in the form of notice of the charges against him
and a meaningful opportunity to be heard at a deportation
hearing. Kwong Hai Chew v. Colding, 344 U.S. 590, 596-98
34 Nos. 06-3717, 06-3841, 06-3979, 07-1199 & 07-1670
(1953). In this case, Mallari received both notice and a
meaningful opportunity to be heard during the removal
proceedings. Due process does not require the Board to
provide for additional hearings on remand, and an alien
does not have a constitutionally protected interest in
receiving discretionary relief. Therefore, Mallari’s claim
that the Board erred in denying his request for remand
fails to state a colorable constitutional claim. We accord-
ingly lack jurisdiction to review that issue on appeal.
III.
In sum, we reaffirm our holding in Valere and hold
that aliens, such as those petitioning this court, charged
with removability for an aggravated felony involving
sexual abuse of a minor do not qualify for a § 212(c)
waiver under the comparable grounds test. Moreover,
because there is no comparable ground for inadmissi-
bility, petitioners are not similarly situated to those
found inadmissible under § 212(a) and therefore there is
no equal protection violation. The law of the case doctrine
is also inapplicable to Mallari’s case because the Board
never reached the merits of his § 212(c) petition. Finally,
we lack jurisdiction to review the petitioners’ challenges
to the Board’s denials of their subsequent motions. We
DENY the petitions for review.
Nos. 06-3717, 06-3841, 06-3979, 07-1199 & 07-1670 35
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-24-08