Esquivel, Hector R. v. Mukasey, Michael B. ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-2260
H ECTOR R. E SQUIVEL,
Petitioner,
v.
M ICHAEL B. M UKASEY, Attorney General
of the United States,
Respondent.
____________
Petition for Review of the Decision
of the Board of Immigration Appeals.
No. A14 484 902
____________
A RGUED JULY 8, 2008—D ECIDED S EPTEMBER 11, 2008
____________
Before B AUER, C OFFEY, and R OVNER, Circuit Judges.
C OFFEY, Circuit Judge. Hector Esquivel, a Mexican
citizen, was ordered removed after an Immigration
Judge found him inadmissible as a result of having com-
mitted crimes in this country involving moral turpitude.
In ordering Esquivel’s removal, the IJ determined that
Esquivel was ineligible for a waiver under former § 212(c)
of the Immigration and Naturalization Act because he
2 No. 07-2260
had previously served more than five years’ imprisonment
for an aggravated felony: attempted murder. Esquivel
appealed to the BIA, which dismissed his appeal and also
denied his motion to remand or administratively close
proceedings. Esquivel now challenges the basis for the
IJ’s finding that he was ineligible for a § 212(c) waiver. We
deny his petition for review.
Esquivel came to the United States in 1966 at the age of
six and has resided here since. He was convicted before
a jury of attempted murder 1 in Illinois in 1981 and served
seven years of a fifteen-year prison sentence. After his
release in 1988, he was placed in deportation proceedings.
Esquivel applied for a waiver under the now-repealed
§ 212(c) of the INA, which permitted permanent resident
aliens to request relief from deportation under certain
circumstances. After that, an IJ granted his application
for the waiver of deportation in 1989, and the BIA agreed
and affirmed in 1991. Esquivel was able to retain his
status as lawful permanent resident.
Esquivel later on two separate occasions pleaded guilty
to two separate counts of misdemeanor retail theft, in
February 1991 and February 1994. See 720 ILCS 5/16A-3.
He continued to reside in the United States, but in 2004
he traveled outside the country, and upon return
in June 2004, he was apprehended by the Immigration
Service and placed in removal proceedings for the
1
Esquivel’s brief states that he pleaded guilty to attempted
murder, but, as the government points out, the record indi-
cates that he was tried by a jury.
No. 07-2260 3
theft offenses referred to above. In September 2004 he was
charged with being inadmissible as a returning resident
because he had committed two crimes involving moral
turpitude, which referred to the theft offenses, not the
attem pted murder conviction. See 8 U.S.C.
§ 1182(a)(2)(A)(i)(I).
Esquivel next appeared before an IJ, who found that as a
result of his two theft offenses he no longer qualified for
a waiver of removal and that because he had multiple
theft offenses, he was unable to qualify for the petty
theft exception. As a result of this ruling Esquivel applied
for a second waiver of removal under § 212(c), but the IJ
denied the waiver and ordered him removed finding
that he had also served five years or more of a prison
sentence for an aggravated felony, namely, the attempted
murder. In reaching that conclusion, the IJ noted that
§ 212(c) of the INA was eliminated in 1997 with the passage
of the Illegal Immigration Reform and Immigrant Respon-
sibility Act (IIRIRA), and the IJ also discussed INS v.
St. Cyr, 533 U.S. 289, 326 (2001), which held that the
repeal of § 212(c) could not apply retroactively to aliens
whose convictions resulted from guilty pleas entered prior
to the IIRIRA’s effective date. The IJ concluded that
Esquivel was bound by the language of § 212 as drafted in
1990, and that version of the statute specified that an
alien who had served five years or more of a prison
sentence for an aggravated felony was ineligible for a
§ 212(c) waiver. See 8 U.S.C. § 1101(a)(43)(A)(U), (a)(43)(F).
According to the IJ, Esquivel’s offense of attempted
murder qualified as an aggravated felony, and his seven-
year term of imprisonment for that conviction precluded
him from receiving this type of waiver.
4 No. 07-2260
Esquivel appealed this decision to the BIA and joined
with a motion to remand or to administratively close
proceedings.2 Esquivel contended that the IJ erred in
relying on his 1981 attempted murder conviction and
resulting imprisonment to find him statutorily ineligible
for § 212(c) relief. In denying Esquivel’s requests for
relief, the BIA adopted and affirmed the IJ’s decision,
concluding that Esquivel was ineligible for a second
waiver under former § 212(c) of the INA. According to
the BIA, the IJ did not err in considering Esquivel’s 1981
conviction for attempted murder when ruling on his
current eligibility for § 212(c) relief. The BIA approved the
Immigration Judge’s decision that Esquivel’s attempted
murder conviction was an aggravated felony. Finally, the
BIA denied Esquivel’s motion to remand or terminate
proceedings on the ground that the government had not
attested to his prima facie eligibility for naturalization.
On appeal Esquivel does not dispute that he is inadmissi-
ble based on the theft convictions; instead, he argues only
that the IJ erred in finding him ineligible for a waiver of his
inadmissibility. Thus, the only issue before us is whether
the IJ properly concluded that the attempted murder
conviction precluded the § 212(c) relief. If the IJ’s finding
on that issue is correct, then the theft convictions provide
a sufficient basis for Esquivel’s removal. See Klementanovsky
v. Gonzales, 501 F.3d 788, 789 (7th Cir. 2007) (denying
2
Esquivel argued that the BIA should close the removal
proceedings or hold them in abeyance pending his applica-
tion for naturalization.
No. 07-2260 5
petition for review of alien who had been convicted of
multiple theft offenses, none of which resulted in any
prison time but which constituted crimes involving
moral turpitude).
Esquivel argues that the IJ should not have taken into
account his attempted murder conviction. In effect, he
contends that his initial waiver in 1989 amounted to an
expungement of his attempted murder conviction from
his criminal record for immigration purposes and that
therefore the IJ should not have considered it when
ruling on his second waiver application. Although he
concedes that the 1990 amendment has retroactive ap-
plication, he argues that his first waiver should bar that
amendment’s application only to his first conviction. He
also claims that the IJ erred by applying the term “aggra-
vated felony” to this offense, since that term was codified
after he was convicted of the crime. See 8 U.S.C.
§ 1101(a)(43)(A), (a)(43)(U). We also wish to make clear
that since these arguments involve questions of law, we
have jurisdiction to review them, Knutsen v. Gonzales, 429
F.3d 733, 736 (7th Cir. 2005); 8 U.S.C. § 1252(a)(2)(D), and
our review is de novo, Knutsen, 429 F.3d at 736; Hassan v.
INS, 110 F.3d 490, 493 (7th Cir. 1997).
Esquivel’s primary argument, that if a conviction’s
removal effect was waived in 1989 it should remain
waived today, is foreclosed by this circuit’s case law.
Prior to 1996, § 212(c) of the INA, codified at 8 U.S.C.
§ 1182(c), gave the Attorney General discretion to waive
deportation for aliens under certain circumstances. But
Congress amended § 212(c) in April 1996 and removed
6 No. 07-2260
its availability to aggravated felons, and one year later
Congress made its complete repeal effective. See
Antiterrorism and Effective Death Penalty Act, Pub. L. No.
104-132, § 440(d), 110 Stat. 1214, 1277 (1996); IIRIRA, Pub.
L. No. 104-208, § 304(b), 110 Stat. 3009 (1996). Under
the Supreme Court’s decision in St. Cyr, however,
§ 212(c) waivers remain available to aliens who pleaded
guilty to an aggravated felony prior to the effective date
of the repeal and who would have been eligible for
relief under the law then in effect. See generally Valere v.
Gonzales, 473 F.3d 757, 759-60 (7th Cir. 2007) (discussing the
current status of § 212(c) waivers in great detail). But we
have recognized certain qualifications. Velez-Lotero v.
Achim, 414 F.3d 776, 781 (7th Cir. 2005), held that St. Cyr
does not disturb the operation of the pre-IIRIRA statute
and does not alter the rule that the 1990 version of § 212(c)
applies to applications for relief submitted after its effec-
tive date. See In re Lettman, 22 I. & N. Dec. 365, 370-71 (BIA
1998) (holding that alien placed in removal proceedings
after March 1, 1991, who has been convicted of an aggra-
vated felony is subject to removal regardless of date of
conviction). In addition, an alien seeking such relief is
required to demonstrate “actual reliance.” See United
States v. De Horta Garcia, 519 F.3d 658, 661 (7th Cir. 2008);
Jideonwo v. INS, 224 F.3d 692, 700 (7th Cir. 2000); LaGuerre
v. Reno, 164 F.3d 1035, 1041 (7th Cir. 1998); Reyes-Hernandez
v. INS, 89 F.3d 490, 492-93 (7th Cir. 1996). Thus, the rule is
that “relief under § 212(c) is not available to any alien
whose removal proceeding began after repeal except to
those who affirmatively abandoned rights or admitted
guilt in reliance on § 212(c) relief.” De Horta Garcia, 519
No. 07-2260 7
F.3d at 661; Montenegro v. Ashcroft, 355 F.3d 1035, 1037 (7th
Cir. 2004). And furthermore we require a showing of
specific facts demonstrating actual reliance. Jideonwo, 224
F.3d at 700; Reyes-Hernandez, 89 F.3d at 492. Esquivel not
only failed to make a showing of reliance, he also failed to
enter a plea of guilty to attempted murder—he was
found guilty after a jury trial.
Moreover, Esquivel cannot escape the consequences of
having committed an aggravated felony on his admissibil-
ity into the country just because that term was defined to
include attempted murder after his offense was committed.
The statute itself states that the amended definition of
aggravated felony “applies regardless of whether the
conviction was entered before, on, or after” the date of the
amendment’s enactment, September 30, 1996. 8 U.S.C.
§ 1101(a)(43)(U); see also Zamora-Mallari v. Mukasey, 514
F.3d 679, 690 (7th Cir. 2008) (upholding denial of § 212(c)
waiver where crime of sexual abuse did not constitute
aggravated felony at time of guilty plea). Thus, this circuit
has held that “Congress clearly manifested an intent to
apply the amended definition of ‘aggravated felony’
retroactively.” Flores-Leon v. INS, 272 F.3d 433, 439 (7th
Cir. 2001). Therefore Esquivel is barred from relief via the
retroactive application of § 212(c).
We are not aware of nor has the petitioner has cited us
any precedent for Esquivel’s argument that a § 212(c)
waiver effectively expunges a conviction from an alien’s
criminal record for immigration purposes or bars subse-
quent consideration of that conviction. The BIA has
established that a § 212(c) waiver does not waive the basis
8 No. 07-2260
for excludability itself; it merely waives the finding of
excludability. See In re Balderas, 20 I. & N. Dec. 389, 391
(BIA 1991); see also Peralta-Taveras v. Att’y Gen., 488 F.3d
580, 585 (2d Cir. 2007); Becker v. Gonzales, 473 F.3d 1000,
1003-04 (9th Cir. 2007); Amouzadeh v. Winfrey, 467 F.3d 451,
458-59 (5th Cir. 2006); Munoz-Yepez v. Gonzales, 465 F.3d
347, 350 (8th Cir. 2006); Rodriguez-Munoz v. Gonzales, 419
F.3d 245, 248 (3d Cir. 2005). And we have recently held
that an alien previously granted a § 212(c) waiver from
an aggravated felony conviction would not be eligible
for cancellation of removal under § 240A(a), 8 U.S.C.
§ 1229b(a), because he would still remain an alien con-
victed of an aggravated felony. Negrete-Rodriguez v.
Mukasey, 518 F.3d 497, 504 (7th Cir. 2008).
Finally, Esquivel challenges the BIA’s denial of his
motion to remand or administratively close proceedings
based on his pending application for naturalization. But
as the government correctly notes, the merits of this
issue are beyond our jurisdiction. Thus, we retain only
limited jurisdiction to review Esquivel’s 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, we may
consider only properly raised constitutional claims and
questions of law, and Esquivel’s claim that the removal
proceedings should have been terminated based on his
pending application for naturalization does not qualify as
such. See 8 U.S.C. § 1252(a)(2)(D); Hernandez-Alvarez v.
Gonzales, 432 F.3d 763, 765 (7th Cir. 2005). Thus, we
lack jurisdiction to consider Esquivel’s challenges to the
No. 07-2260 9
BIA’s denial of his motions to remand and administra-
tively close proceedings because they do not involve
constitutional claims or questions of law. See Zamora-
Mallari, 514 F.3d at 696; 8 U.S.C. § 1252(a)(2)(C).
The petition for review is D ENIED.
9-11-08