Klementanovsky, Dmit v. Keisler, Peter D. ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-3617
DMITRY M. KLEMENTANOVSKY,
Petitioner,
v.
ALBERTO R. GONZALES,
Respondent.
____________
Petition for Review of an Order of
the Board of Immigration Appeals.
No. A71-235-839
____________
ARGUED MAY 31, 2007—DECIDED AUGUST 28, 2007
____________
Before POSNER, KANNE, and WILLIAMS, Circuit Judges.
KANNE, Circuit Judge. Dmitry M. Klementanovsky
brings a petition for review of the Board of Immigration
Appeals’ (“BIA”) order affirming the Immigration Judge’s
(“IJ”) decision to deny his application for a waiver of
inadmissibility under § 212(h) of the Immigration and
Nationality Act (INA), and ordering his removal to Russia.
He argues that the BIA erred by concluding that he was
an aggravated felon and that the statute, as interpreted
by the BIA, is unconstitutional. For the reasons set forth
below, we deny the petition for review.
2 No. 06-3617
I. HISTORY
Klementanovsky is a native and citizen of Russia. In
January of 1994, at the age of sixteen, he immigrated into
the United States with his parents as religious refugees.
He became a lawful permanent resident on July 9, 1995. In
the ten years after arriving in the United States, his
parents began the path to citizenship and Klementanovsky
fell into a life of petty crime. In August of 1996, he was
convicted of attempted robbery, robbery, and intimidation
by threat of physical harm. See 720 ILL. COMP. STAT. 5/12-
1, 5/18-1, and 5/12-6(A)(1). In October of 1998, he was
convicted of criminal damage to property. See 720 ILL.
COMP. STAT. 5/21-1(1)(a). In November of 2000,
Klementanovsky was convicted of retail theft. See 720 ILL.
COMP. STAT. 5/16A-3(a). In April of 2001, Klementanovsky
was convicted once again of criminal damage to property,
and in April of 2004 he returned to retail theft. Although
a variety of sentences of probation, supervision, and
community service were imposed for these convictions
(all in Illinois state courts), Klementanovsky was not
ordered to serve any time in prison.
This expanding collection of convictions had two effects
on Klementanovsky’s immigration status: he became both
deportable and inadmissible. See 8 U.S.C. §§ 1227(a)(2)
(A)(i)(II) and 1227 (a)(2)(A)(ii); 8 U.S.C. §§ 1182
(a)(2)(A)(i)(I) and 1182 (a)(2)(B). In April 2004, the Govern-
ment placed Klementanovsky in removal proceedings and
issued him a notice to appear. It charged him with
deportability under 8 U.S.C. § 1227(a)(2)(A)(i)(II) (convic-
tion of a crime involving moral turpitude for which a
sentence of one year or more may be imposed), and under
8 U.S.C. § 1227(a)(2)(A)(ii) (conviction of multiple
crimes involving moral turpitude). Klementanovsky ad-
mitted all but one of the allegations in the notice to
appear, and he conceded deportability.
No. 06-3617 3
Klementanovsky sought relief from removal by asking
for a waiver of inadmissibility under INA § 212(h)(1)(B),
8 U.S.C. § 1182(h)(1)(B). Section 212(h) provides that
the Attorney General may waive certain grounds of
inadmissibility, including the grounds applicable to
Klementanovsky enumerated at INA §§ 212(a)(2)(A)(i)(I)
and 212(a)(2)(B), for an immigrant who is the son of
United States citizens:
if it is established to the satisfaction of the Attorney
General that the alien’s denial of admission would
result in extreme hardship to the United States
citizen . . . and . . . the Attorney General, in his discre-
tion, and pursuant to such terms, conditions and
procedures as he may by regulations prescribe, has
consented to the alien’s applying or reapplying for
a visa, for admission to the United States, or adjust-
ment of status.
8 U.S.C. § 1182(h)(B), (C)(2).
The statute also establishes that the Attorney General
shall not have the discretion to give such a waiver to
an alien convicted of murder, torture, or an aggravated
felony. 8 U.S.C. § 1182(h). Finally, “[n]o court shall have
jurisdiction to review a decision of the Attorney General
to grant or deny a waiver under this subsection.” Id.
Klementanovsky’s request was denied by the IJ. The IJ
noted that waivers of inadmissibility under § 212(h) were
previously available to applicants in exclusion proceedings
and are currently available to arriving aliens in removal
proceedings, as both categories of aliens are subject to
the grounds of inadmissibility provided in the statute.
Furthermore, the IJ noted that BIA precedent established
that a waiver of inadmissibility under § 212(h) may be
granted nunc pro tunc to retroactively cure grounds of
inadmissibility at the time of entry, usually in concert with
an application for an adjustment of status. See In re Abosi,
4 No. 06-3617
24 I&N Dec. 204 (BIA June 19, 2007) (reiterating that
§ 212(h) waivers are available either for arriving aliens
or for aliens seeking adjustment of status, but applicant
need not be both arriving and seeking adjustment). The IJ
held that BIA precedent limits the availability of § 212(h)
waivers only to proceedings where an alien seeks admis-
sion, or to circumstances where the applicant is assimi-
lated to the same position as an alien seeking admission.
Because Klementanovsky was not seeking admission or
adjustment of status, but rather relief from deportation,
the IJ held that his request for relief through § 212(h) was
misplaced and ordered him removed.
The BIA upheld the denial of the waiver, and also added
an alternate ground for denial: that “it is clear that
[Klementanovsky’s] convictions for robbery (and the
attempt thereof), theft, and possibly intimidation/physical
harm do meet the definition of an aggravated felony and
would, therefore, bar the respondent from relief.” R. at 7.
On appeal, Klementanovsky makes an argument that he
has made from the beginning: that this interpretation of
the statute denies him equal protection of the laws in
violation of the due process clause of the Fifth Amend-
ment. Specifically, he argues that “[t]he BIA’s interpreta-
tion results in the disparate treatment of two classes of
aliens identical in every respect except for a singular fact:
members of one class happened to have departed and
reentered the United States at some point after the
convictions rendering them deportable.” Petitioner’s Br.
at 12.
II. ANALYSIS
Although the statute denies this court the jurisdiction to
review a decision by the Attorney General to deny relief
under § 212(h), INA § 242(a) permits courts of appeals
No. 06-3617 5
to consider constitutional claims and questions of law,
notwithstanding any other provision of the statute.
8 U.S.C. § 1252(a)(2)(D) (“[N]othing in . . . any . . . provi-
sion of this Chapter (other than this section) which limits
or eliminates judicial review, shall be construed as pre-
cluding review of constitutional claims or questions of law
raised upon a petition for review filed with an appropriate
court of appeals in accordance with this section.”); see
Ramos v. Gonzales, 414 F.3d 800, 801-02 (7th Cir. 2005).
Because our review is limited to questions of law and
constitutional questions, our review is de novo. Skorusa v.
Gonzales, 482 F.3d 939, 942 (7th Cir. 2007); see also Lara-
Ruiz v. INS, 241 F.3d 934, 939 (7th Cir. 2001).
A. Aggravated Felony
We turn first to the question of whether Klementanovsky
is an aggravated felon. If he is, then he lacks standing to
raise his constitutional objections because the Attorney
General would be statutorily barred from granting him the
relief that he seeks regardless of whether he succeeds on
his equal protection claims. The government contends that
a finding by the BIA that a petitioner is an aggravated
felon is a finding of fact and therefore not reviewable by
this court. We disagree.
Whether an alien’s criminal conviction is indeed an
“aggravated felony” under the INA is a question of law
that we review de novo. Lara-Ruiz, 241 F.3d at 938-39. An
aggravated felony is defined by the statute as (among
other crimes which do not apply to Klementanovsky) a
crime of violence or theft “for which the term of imprison-
ment [is] at least one year.” 8 U.S.C. §§ 1101(a)(43)(F) and
(G). The statute defines “term of imprisonment” to include
“the period of incarceration or confinement ordered by a
court of law. . . .” 8 U.S.C. § 1101(a)(48)(B). None of
Klementanovsky’s convictions resulted in any prison
6 No. 06-3617
sentence whatsoever being ordered by a court of law. As a
matter of law, Klementanovsky has not been convicted of
an aggravated felony as that term is defined in the statute,
and therefore the Attorney General is not statutorily
barred from applying § 212(h) to his case.
B. The Availability of a § 212(h) Waiver to a Deportable
Alien
We turn then to the heart of Klementanovsky’s argu-
ment: that by drawing a line between deportable criminal
aliens who have left the country and returned, and those
who have stayed and applied for a § 212(h) waiver directly,
Congress and the BIA have denied him his right to equal
protection of the laws. We uphold federal immigration
legislation that distinguishes between classes of aliens if
there is any “facially legitimate and bona fide reason
for its enactment.” Turkhan v. Perryman, 188 F.3d 814,
828 (7th Cir. 1999). Under this highly deferential standard
of review, if “ ‘any reasonably conceivable state of facts’ or
any ‘plausible reason’ could provide a rational basis for
Congress’ decision to treat the classes differently, our
inquiry is at an end.” Lara-Ruiz, 241 F.3d at 947 (7th Cir.
2001) (quoting Turkhan, 188 F.3d at 828-29).
We should note at the outset that Klementanovsky’s
framing of the question misses the mark on a major point.
He argues that the law draws a line between those who
“happened to have departed and reentered” the country
and those who have not left the country and have applied
for a § 212(h) waiver directly. Petitioner’s Br. at 12. He
characterizes this line drawing as being about his “lack of
international travel.” Id. at 13. The statute itself draws
no such line. On its face, § 212(h) makes a waiver avail-
able to those aliens who have a criminal history and seek
to apply or reapply for a visa, admission, or adjustment of
status. 8 U.S.C. § 1182(h). The line that Congress has
No. 06-3617 7
drawn is between those criminal aliens who seek to be
admitted to the United States, and those criminal aliens
who are being deported from the United States. In the case
of the former, a humanitarian waiver is available under
§ 212(h). In the case of the latter, Congress has conspicu-
ously refused to include a provision for a discretionary
waiver of deportability from the applicable statute.
Compare 8 U.S.C. § 1227(a)(2)(A)(vi) (waiver of deport-
ability available for crimes of moral turpitude only if
the deportable alien has been pardoned) with 8 U.S.C.
§ 1227(a)(3)(C)(ii) (waiver of deportability available at
the discretion of the Attorney General for certain crimes
of immigration document fraud). The statute draws a line
between those who are asking to enter the United States,
and those who have already been given the opportunity to
enter the United States and repaid that act by commenc-
ing a life of crime. The former can apply for a discretionary
waiver of previous criminal acts, and the latter cannot.
There are any number of rational grounds on which
Congress could choose to draw a line between those who
committed crimes before applying to enter the country
(making them inadmissable) and those who have com-
mitted crimes since arriving (making them deportable).
But Klementanovsky makes a different argument by
focusing on the question of international travel and the
availability of relief for those who have left but not for
those who have stayed. He argues that the BIA unconstitu-
tionally applies the INA by giving preferential treatment
to those who “happened to have departed and reentered”
or who have engaged in “international travel” since
becoming deportable. We will assume this is casual
wording on his part. An alien who has been found
deportable and simply “travels internationally” or departs
and returns has committed an entirely different and
separate federal crime which will do nothing but com-
pound his immigration woes. If Klementanovsky were to
8 No. 06-3617
simply depart and return in the hopes of applying for a
§ 212(h) waiver, he would face a potential ten year prison
term. See 8 U.S.C. § 1326(b) (providing a maximum ten
year prison term for an alien who leaves voluntarily
while a deportation order is outstanding subsequent to
a conviction for a felony, and who subsequently reenters
or is found inside the United States without prior express
permission of the Attorney General).
At its heart, Klementanovsky’s argument is that, having
conceded deportability for a series of criminal acts, he
should be allowed to apply for a waiver of inadmissa-
bility without leaving the country. It is undisputed that, if
he presented himself at the border and asked for a waiver
of inadmissability in order to enter and care for his
parents, it would be within the discretion of the Attorney
General to consider that request. He asks that the govern-
ment be required to consider such a request despite the
fact that he has not left and reapplied from outside the
United States, arguing that this line drawing is devoid of
any rational basis. We can think of plenty of rational
reasons why Congress might have chosen to draw this
line between criminal aliens who have left the country
and those who have stayed. Congress might have wanted
to ensure that dangerous people, including those convicted
of crimes of moral turpitude, remain outside the United
States while their applications for discretionary relief are
being considered. Congress might have wanted aliens
seeking such waivers to do so from outside the United
States in order to discourage them from attempting to “fly
under the radar” of the immigration authorities in the
event that the discretionary waiver is ultimately denied.
Congress might have rationalized that an alien who self-
deports and returns through proper admission procedures
provides immigration authorities a second bite at the
apple to intercept and consider otherwise unlawful aliens.
Congress might have rationalized that granting a waiver
No. 06-3617 9
to those who self-deport and seek readmission at the
borders provides an incentive for such aliens to voluntarily
depart at their own expense. In sum, we are not persuaded
that there is no rational basis that might underlie such
a distinction.
Klementanovsky argues that a contrary finding by our
sister circuit should be persuasive. Yeung v. INS, 76 F.3d
337 (11th Cir. 1995). The Eleventh Circuit in Yeung found
potential equal protection violations by the BIA distin-
guishing between classes of deportable aliens who have
failed to depart and reenter and those who chose to self
deport and reenter after a criminal conviction. The court,
however, remanded the case to the BIA to allow the board
to reconcile its seemingly inconsistent cases. Id. at 341
(“We remand the case to the Board of Immigration Appeals
with instructions to reconsider its prior interpretation of
§ 212(h) in [Matter of] Sanchez, [17 I.&N. Dec. 218 (BIA
1980)], Matter of Parodi, 17 I.&N. Dec. 218 (BIA 1980), . . .
and Yeung in order to make them consistent with the
language of the statute itself.”).
We find Yeung unpersuasive. First, the court in Yeung
never fully addressed whether there is any “facially
legitimate and bona fide reason” why Congress might draw
a line between inadmissible and deportable aliens, prefer-
ring instead to remand the case to the BIA to reconcile
internal inconsistencies. Second, in Yeung, the BIA’s
decision had held out the possibility that a § 212(h) waiver
would be available for a deportee who “had departed and
returned to this country subsequent to his conviction.”
Yeung, 76 F.3d at 338 (emphasis added). It was this
disparate treatment, which allowed a deportable alien to
depart, return, and then apply for a waiver, that caused
the Eleventh Circuit’s concern. Id. at 339-41. In
Klementanovsky’s case, the decision of the BIA conspicu-
ously holds that the statute “preclude[s] certain aliens—
10 No. 06-3617
those who have not departed the United States and cannot
establish eligibility for adjustment of status—from apply-
ing for relief.” R. at 7. As we noted above, the statute on
its face requires exactly what the BIA stated here: that a
criminal alien who is not eligible for adjustment of status
must leave the country before applying for a waiver. To
the extent that the Eleventh Circuit’s decision was based
on a concern about “international travelers” receiving
preferential treatment, the BIA appears to have backed
away from that interpretation of the INA that previously
allowed § 212(h) waivers to some aliens who had left the
country and returned.
This is consistent with our circuit precedent. As we
noted in LaGuerre v. Reno, 164 F.3d 1035, 1041 (7th Cir.
1998), there is a difference between the situation of an
alien who seeks discretionary relief outside the United
States and an alien who seeks discretionary relief inside
the United States. We cautioned that the situation in
LaGuerre “must not be confused with that in Francis v.
INS, 532 F.2d 268 (2nd Cir. 1976), where the government
was taking the irrational position that an alien who
after coming to the United States had taken a trip abroad
and returned and was then ordered deported was entitled
to more consideration than one who had never taken a
foreign trip after coming to the United States.” LaGuerre,
164 F.3d at 1041. “That is different from the situation of
an alien who seeks discretionary relief while he is still
outside the United States.” Id. As such, the INA treats
aliens within the same criminal class differently depend-
ing on whether they are inside the country and wish to
remain or have left the country and wish to return.
Turkhan, 188 F.3d at 828. In LaGuerre, we found that
Congress’s more lenient treatment of excludable aliens has
a rational basis insofar as it creates an incentive for
deportable aliens to leave the country at their own ex-
pense, a result that is consistent with our holding above.
LaGuerre, 164 F.3d at 1041.
No. 06-3617 11
Contrary to Klementanovsky’s argument, the BIA did
not imply that the waiver would have been available to
an alien who was convicted, found deportable, left the
country, and then returned. The BIA simply held that the
waiver found at INA § 212(h) is reserved for those who are
seeking admission to the country, or those who are assimi-
lated to the position of somebody seeking admission, such
as by applying for adjustment of status. This is consistent
with the plain language of the statute as written, and we
are able to imagine any number of rational reasons why
Congress might have chosen to draw these distinctions. To
the extent that the BIA once maintained a slightly differ-
ent view in the case of Yeung, that view seems to be
abandoned.
III. CONCLUSION
Accordingly, the petition is DENIED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-28-07