Jose Palma-Martinez v. Loretta E. Lynch , 785 F.3d 1147 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-1866
JOSE PALMA-MARTINEZ,
Petitioner,
v.
LORETTA E. LYNCH, * Attorney
General of the United States,
Respondent.
____________________
On Petition for Review of an Order of the
Board of Immigration Appeals.
No. A098-653-358.
____________________
ARGUED FEBRUARY 10, 2015 — DECIDED MAY 11, 2015
____________________
Before POSNER, MANION, and TINDER, Circuit Judges.
MANION, Circuit Judge. Jose Miguel Palma-Martinez peti-
tions for review of the Board of Immigration Appeals (BIA)
decision affirming the Immigration Judge’s (IJ) order of re-
moval. Because the IJ neither erred in holding that Palma-
*We substitute Loretta E. Lynch, the current Attorney General of the
United States, as the Respondent in this action. See Fed. R. App. P. 43(c).
2 No. 14-1866
Martinez was ineligible for a waiver nor abused his discre-
tion in denying Palma-Martinez a continuance, we deny the
petition.
I. Background
Palma-Martinez is a native of Guatemala. He became a
lawful permanent resident in 2007. In 2011, he pleaded
guilty to conspiracy to knowingly transfer a false identifica-
tion document in violation of 18 U.S.C. § 1028(f). On May 6,
2013, the government commenced removal proceedings
against him with a notice to appear in immigration court
charging that he was removable under Section 237(a)(2)(A)(i)
of the Immigration and Nationality Act (INA) for having
committed a crime of moral turpitude 1 within five years af-
ter admission. See 8 U.S.C. § 1227(a)(2)(A)(i).
Before the IJ, Palma-Martinez admitted the allegations
contained in the notice, but requested a continuance because
he had filed a motion to set aside and vacate his conviction.
He also argued that he was eligible for a stand-alone waiver
of inadmissibility under INA § 212(h) granted nunc pro tunc.
See 8 U.S.C. § 1182(h). On September 30, 2013, the IJ ordered
that Palma-Martinez be removed because he had not
demonstrated good cause for a continuance and was ineligi-
ble for a waiver under § 212(h). On March 21, 2014, the BIA
affirmed the IJ’s decision. Palma-Martinez appeals.
1 18 U.S.C. § 1028 makes it a felony to commit fraud and related ac-
tivity in connection with identification documents and the authentication
features and information of identification documents. Crimes involving
fraud have always been considered crimes of moral turpitude. See Jordan
v. De George, 341 U.S. 223 (1951).
No. 14-1866 3
II. Analysis
“When the BIA adopts and affirms the IJ’s decision and
adds its own analysis ... we review both decisions. We apply
the principles of Chevron deference to the BIA’s interpreta-
tion of the immigration laws.” Halim v. Holder, 755 F.3d 506,
511 (7th Cir. 2014) (citation omitted). A determination of
whether an immigrant is eligible for a § 212(h) waiver is a
legal one which we review de novo. Papazoglou v. Holder, 725
F.3d 790, 792 (7th Cir. 2013). The granting of a continuance is
within the sound discretion of the IJ and is reviewed for
abuse of discretion. Hassan v. I.N.S., 110 F.3d 490, 492 (7th
Cir. 1997).
A. Palma-Martinez was ineligible for a stand-alone
waiver.
Under INA § 212(h) the Attorney General may waive the
ground of inadmissibility applicable to Palma-Martinez (the
crime of moral turpitude) if the denial of admission would
result in extreme hardship to a lawfully resident family
member and he is applying or reapplying for a visa, admis-
sion, or an adjustment of status. 8 U.S.C. § 1182 (h)(1)(B),
(C)(2). According to 8 C.F.R. § 1245.1(f), the sole means of
requesting a § 212(h) waiver for an alien in the United States
is to submit an application concurrent with an application
for adjustment of status. Palma-Martinez characterized his
request for a § 212(h) waiver as a stand-alone application be-
cause he did not apply concurrently for an adjustment of sta-
tus. 2
2 Palma-Martinez did not apply concurrently for an adjustment of
status because he had already sought and obtained an adjustment of sta-
tus to permanent resident in 2007.
4 No. 14-1866
Our decision in Klementanovsky v. Gonzales, 501 F.3d 788(7th Cir. 2007), forecloses the argument that a § 212(h) waiver
is available to aliens facing removal. In that case we held that
the plain language of § 212(h) limits waivers to aliens who
seek a visa, admission, or an adjustment of status, so that,
conversely, § 212(h) waivers are not available to aliens who
wish to avoid removal. We further held that Congress’s dis-
tinction between aliens seeking admission and those being
deported is not an equal protection violation. Id. at 792–93.
This is why Palma-Martinez sought a nunc pro tunc
(“now for then”) waiver. For a time, a waiver granted nunc
pro tunc could cure the grounds for an alien’s inadmissibility
retroactively. Id. at 790. It did this for aliens in Palma-
Martinez’s circumstances by treating the alien as if he had
been placed in admissibility proceedings after returning
from a foreign trip. The alien, however, must actually have
taken the foreign trip. There may have been some confusion
in the past about the availability of stand-alone § 212(h)
waivers granted nunc pro tunc. In The Matter of Rivas, 26 I. &
N. Dec. 130. (BIA 2013), however, the BIA definitely deter-
mined that they are not available.
In response, Palma-Martinez relies on Margulis v. Holder,
725 F.3d 785 (7th Cir. 2013), in which we overturned the
BIA’s denial of a waiver and stated that because Rivas’s deci-
sion invalidating nunc pro tunc waivers “was based on a stat-
utory interpretation, there may be room for argument to a
reviewing court that the Rivas decision is erroneous.” Id. at
789. However, Rivas’s holding has since been affirmed by the
Eleventh Circuit, Rivas v. U.S. Atty. Gen., 765 F.3d 1324, 1326
(11th Cir. 2014), and followed by the Sixth Circuit, Fayzullina
v. Holder, 777 F.3d 807, 816 (6th Cir. 2015) (“[T]he nunc pro
No. 14-1866 5
tunc waiver concept ... has since been definitively repudiated
by the BIA.”) (citing Rivas, 765 F.3d at 1329).
Furthermore, Palma-Martinez misunderstands our hold-
ing in Margulis. In that case, Margulis drove to Canada but
was denied entry, so he performed a U-turn and returned to
the United States. Upon returning, he was placed in removal
proceedings, rather than admissibility proceedings, because
immigration officials determined that he never left the Unit-
ed States even though he briefly crossed the border into
Canada. We remanded the case because the BIA did not
support its conclusion that Margulis had not departed and
was not seeking admission. Margulis, 725 F.3d at 789. We did
not rule on the availability of nunc pro tunc waivers; we ex-
plicitly stated: “Our grant of the petition for review is not a
ruling that the petitioner is entitled to the waiver that he’s
seeking. That remains to be seen.” Id. Even if we had ruled
that a nunc pro tunc waiver was available, Margulis is distin-
guishable: Unlike Margulis, Palma-Martinez never departed
the United States. 3 Thus, he may only request a waiver of
inadmissibility in conjunction with an application for ad-
justment of status, or by seeking admission from outside the
United States.
B. The IJ did not err by denying Palma-Martinez a con-
tinuance.
The issue of the continuance is moot. Palma-Martinez ar-
gues on appeal that the IJ should have granted him a contin-
3 Palma-Martinez never claims that he took a foreign trip after his
conviction. He simply asserts that a nunc pro tunc waiver would apply to
him. Therefore, Parma-Martinez is more like Klementanovsky than
Margulis in this respect.
6 No. 14-1866
uance while he pursued his motion challenging his underly-
ing conviction, but his motion was dismissed by the district
court on January 14, 2014, at his request. 4 Accordingly, his
need for a continuance to pursue post-conviction relief is no
longer a live controversy. See Qureshi v. Gonzales, 442 F.3d
985, 988 (7th Cir. 2006) (alien’s challenge to the IJ’s denial of
continuance to await his wife’s I-130 petition rendered moot
by the intervening dismissal of the I-130 petition).
Alternatively, the IJ’s denial of a continuance was not an
abuse of discretion. Palma-Martinez had to demonstrate
good cause for the continuance. 8 C.F.R. §§ 1003.29, 1240.6.
However, as the IJ pointed out, a pending collateral attack is
not good cause because its tentative nature does not affect
the finality of the conviction for immigration purposes. See
U.S. v. Wilson, 240 Fed. Appx. 139, 144 (7th Cir. 2007). Fur-
thermore, the IJ found that the post-conviction relief was too
speculative. Palma-Martinez filed his post-conviction motion
arguing ineffective assistance of counsel because his attorney
did not advise him of the effect his guilty plea would have
on his immigration status. However, the IJ quoted the por-
tion of the guilty plea transcript where Palma-Martinez ad-
mits to the judge that he waived any claim to ineffective as-
sistance of counsel, that he understood his guilty plea could
affect his immigration status, and that his attorney advised
him of this. See Jimenez-Guzman v. Holder, 642 F.3d 1294,
1297–98 (10th Cir. 2011) (denial of continuance not an abuse
of discretion because pending collateral attack did not affect
4 Curiously, Palma-Martinez did not mention in his brief that his
post-conviction motion was dismissed, even though his brief was filed
after the motion’s dismissal.
No. 14-1866 7
finality of conviction and because plea agreement foreclosed
any claim of ineffective assistance of counsel).
III. Conclusion
The IJ neither erred in holding that Palma-Martinez was
ineligible for a stand-alone waiver under INA § 212(h), nor
abused his discretion in denying Palma-Martinez a continu-
ance. Accordingly, the petition for review is DENIED.