Guevara, Eusebio v. Gonzales, Alberto , 472 F.3d 972 ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-2696
EUSEBIO GUEVARA,
Petitioner,
v.
ALBERTO R. GONZALES,
Respondent.
____________
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A91-816-037
____________
ARGUED MARCH 31, 2006—DECIDED JANUARY 8, 2007
____________
Before ROVNER, EVANS, and SYKES, Circuit Judges.
SYKES, Circuit Judge. Eusebio Guevara, a citizen of
Honduras, petitions for review of a decision of the Bureau
of Immigration Appeals (“BIA”) reversing an immigration
judge’s (“IJ”) discretionary grant of a waiver of removal
under 8 U.S.C. § 1182(c). Guevara argues that the BIA
applied the wrong standard of review and exceeded its
authority by ordering his removal from the United States.
We deny the petition for review.
I. Background
Guevara is a Honduran who legally entered the United
States in 1985 and became a lawful permanent resident in
1990. In 1991, while living in California, he was convicted
2 No. 05-2696
of retail theft after he shoplifted a pair of pants. In 1996,
while living in Wisconsin, he was convicted of two counts
of fourth-degree sexual assault in violation of section
940.225(3m) of the Wisconsin Statutes and sentenced to
63 days’ imprisonment and 18 months of probation. In
June 2004 Guevara left the United States to visit family
in Honduras. Upon his return a month later, he was
placed in removal proceedings pursuant to 8 U.S.C.
§ 1182(a)(2)(A)(i)(I) as an alien removable for having been
convicted of a crime involving moral turpitude.
An IJ found Guevara removable based upon his sexual
assault convictions. Guevara sought a discretionary
waiver of removal on the grounds of rehabilitation and
economic hardship pursuant to the now-repealed 8 U.S.C.
§ 1182(c). This section, commonly referred to as § 212(c),1
was repealed by the Immigration Reform and Immi-
grant Responsibility Act of 1996, but its repeal was
subsequently held to be inapplicable to aliens, like
Guevara, whose convictions were obtained by guilty
plea prior to the Act’s effective date of April 1, 1997. INS
v. St. Cyr, 533 U.S. 289, 318-25 (2001) (holding that the
repeal of § 212(c) had an impermissibly retroactive effect
on aliens who pleaded guilty prior to the Act’s effective
date). Section 212(c) permitted certain classes of perma-
nent resident aliens, otherwise removable, to be admitted
“in the discretion of the Attorney General” if they were
returning from a temporary and voluntary journey abroad
to a “lawful unrelinquished domicile of seven consecutive
years.” Guevara’s eligibility to seek a § 212(c) waiver is not
at issue here.2
1
The former 8 U.S.C. § 1182(c) was § 212(c) of the Immigration
and Nationality Act of 1952.
2
The Department of Homeland Security has promulgated a
rule limiting the discretion of IJs to grant § 212(c) waivers in
(continued...)
No. 05-2696 3
After a hearing at which Guevara was the only wit-
ness, the IJ weighed the positive and negative equities
presented by the case and elected to grant Guevara a
discretionary § 212(c) waiver of removal. The government
appealed to the BIA, which adopted the IJ’s findings of
fact but reversed his weighing of the factors pertaining to
the discretionary waiver of removal. The BIA concluded
that the negative equities outweighed the positive to the
extent that Guevara should not receive a discretionary
waiver. The BIA did not remand the matter to the IJ for
further action; instead, the BIA’s decision included an
order removing Guevara from the country.
In his petition for review, Guevara argues that the BIA
exceeded its legal authority in two ways. First, he con-
tends the BIA applied the wrong standard of review when
it reversed the IJ’s discretionary grant of the § 212(c)
waiver. Second, he contends the BIA was not authorized
to order him removed from the country when such an
order was not first entered by the IJ.
II. Discussion
A. Discretionary Grant of § 212(c) Waiver of Re-
moval
Subject to certain exceptions not pertinent here, this
court has no jurisdiction to review the merits of the BIA’s
2
(...continued)
certain instances, but the government does not contend that
Guevara falls within any of the enumerated categories that
would render him ineligible to invoke the protections of the
repealed section. See 8 C.F.R. § 1212.3. For further restrictions
on the eligibility for a § 212(c) waiver not applicable here, see
Matter of Blake, 23 I. & N. Dec. 722 (BIA 2005).
4 No. 05-2696
exercise of discretion. 8 U.S.C. § 1252(a)(2)(B);3 see Jarad
v. Gonzales, 461 F.3d 867, 869 (7th Cir. 2006). Further,
under 8 U.S.C. § 1252(a)(2)(C), “no court shall have
jurisdiction to review any final order of removal against
an alien who is removable by reason of having commit-
ted a criminal offense covered in section 1182(a)(2),” the
section applicable to Guevara’s case. Recognizing these
jurisdictional limitations, Guevara characterizes his
first argument as a challenge to an error of law on the
part of the BIA, which is reviewable pursuant to 8 U.S.C.
§ 1252(a)(2)(D) notwithstanding the limitations just
mentioned. Specifically, Guevara argues that the BIA
applied an incorrect standard of review in reversing the
IJ’s decision granting the waiver of removal.
Pursuant to 8 C.F.R. § 1003.1(d)(3), an IJ’s findings of
fact are subject to a clearly erroneous standard of review
by the BIA, but “the Board may review questions of law,
discretion, and judgment and all other issues in appeals
from decisions of immigration judges de novo.” Guevara
claims the BIA improperly rejected facts found by the IJ
by failing to apply the clearly erroneous standard of
review. This argument rests on a misreading of both the
IJ’s decision and the BIA’s.
The IJ’s decision lists what he identified as the positive
and negative factors in Guevara’s case that should be
balanced in the exercise of discretion under § 212(c).4 The
3
This section provides in pertinent part that “no court shall
have jurisdiction to review . . . any other decision or action of
the Attorney General or the Secretary of Homeland Security
the authority for which is specified under this subchapter to
be in the discretion of the Attorney General or the Secretary of
Homeland Security.”
4
The IJ’s identification of the factors pertinent to the balanc-
ing of equities was drawn from the BIA’s decisions in Matter of
(continued...)
No. 05-2696 5
negative factors weighing against a waiver were Guevara’s
criminal convictions—especially the more serious sexual
assault convictions—and his denial before the IJ that he
actually committed the sexual assaults. On this latter
point, Guevara acknowledged at his hearing that he
pleaded guilty to the sexual assault charges but said he
did so on the advice of his attorney; he denied that he
actually committed the offenses. The IJ identified the
following positive factors: the duration of Guevara’s
residence in the United States (over nineteen years at the
time of decision), his steady employment during that time,
the lack of any criminal convictions in the eight years
following his sexual assault convictions, his credible
expression of remorse for his crimes,5 and the economic
difficulties that would accompany Guevara’s return to
Honduras. The IJ concluded that “the equities do outweigh
the negative factors represented by his convictions.” With
respect to the passage of time since Guevara’s last crim-
inal conviction, the IJ held as follows:
The record indicates that he has not been convicted of
any crime since 1996. I think, therefore, that it can
be said that the respondent has been reformed so that
he has chosen a way of life where future criminal
misconduct is unlikely because he has not been in-
volved in criminal misconduct since his November of
1996 conviction.
4
(...continued)
Edwards, 20 I. & N. Dec. 191 (BIA 1990), and Matter of Marin,
16 I. & N. Dec. 581 (BIA 1978).
5
The IJ’s finding that Guevara was remorseful is difficult to
reconcile with Guevara’s denial that he committed the sexual
assaults, which the IJ identified as a negative factor that
weighed against a discretionary waiver of removal.
6 No. 05-2696
On appeal, the BIA addressed both the IJ’s factfinding
and his balancing of the pertinent factors as follows:
In accordance with Matter of Marin, 16 I&N Dec. 581
(BIA 1978), the Immigration Judge sufficiently set
forth the positive and negative factors presented in
this case. We adopt those findings [citation omitted].
However, upon weighing those factors, we agree with
the DHS that the respondent does not merit a discre-
tionary grant of a section 212(c) waiver. See Matter of
Buscemi, 19 I&N Dec. 628 (BIA 1988). We acknowl-
edge the difficult conditions in Honduras, the respon-
dent’s long residence in the United States, his employ-
ment history, and the financial support he provides
his family. In this case, we consider rehabilitation to
be a neutral factor. On the one hand, 9 years have
passed since the respondent’s criminal conduct. On the
other hand, he still has not fully acknowledged his
wrongdoing. All in all, the seriousness of the respon-
dent’s sexual assault convictions, as well as the cir-
cumstances of those offenses, outweigh the favor-
able equities in this case.
(Emphasis added.)
The issue Guevara raises here centers on the sentence
we have emphasized in the paragraph quoted above from
the BIA’s decision. Guevara argues that the IJ found as a
matter of fact that he had “reformed” or “rehabilitated”
himself in the years following his conviction and the BIA
failed to apply the clearly erroneous standard of review
to that finding. According to Guevara, the BIA simply
disagreed with the IJ’s finding of rehabilitation and
rejected it out of hand, rather than finding it to be clearly
erroneous under the more demanding standard of re-
view applicable to an IJ’s factfinding. The government
responds that the BIA did not reject the IJ’s factfinding
but simply concluded that the IJ had given the matter of
No. 05-2696 7
rehabilitation too much weight when balancing the
equities.
We do not read the BIA’s decision as a rejection of the
IJ’s factfinding on rehabilitation; to the contrary, the
decision specifically adopted the IJ’s findings on the
positive and negative factors in Guevara’s case. Rather,
the BIA reweighed the positive and negative factors and
concluded that rehabilitation was a neutral factor rather
than a positive one. The BIA determined that the IJ had
given undue weight to Guevara’s rehabilitation vis-à-vis
the negative factors in his case. The relative weight of
Guevara’s rehabilitation in the balancing process is not
“factfinding” subject to the clearly erroneous standard of
review; it is a matter of discretion and judgment and
is subject to de novo review by the BIA. Accordingly, the
BIA did not apply the incorrect standard of review in
reversing the IJ’s discretionary grant of the removal
waiver.
B. The BIA’s Order of Removal
Guevara next argues that the Board had no authority
to order his removal from the country when no such
order had been entered in the first instance by the IJ. The
IJ held that Guevara was “subject to removal” pursuant
to 8 U.S.C. § 1182(a)(2)(A)(i)(I) by virtue of having com-
mitted a crime of moral turpitude. However, the IJ did not
order Guevara’s deportation—notwithstanding his remov-
ability—but instead granted the discretionary waiver of
removal discussed above. The BIA, having concluded on
appeal that the IJ improperly balanced the equities in
making the waiver decision, reversed the discretionary
grant of relief and ordered Guevara “removed from the
United States to Honduras.” Guevara now argues that
the power to enter such an order rests solely with the
IJ and not the BIA. In support of his argument, Guevara
8 No. 05-2696
cites a Ninth Circuit case holding that the BIA is restricted
to affirming or reversing orders of removal, not issuing
them in the first instance. Molina-Camacho v. Ashcroft,
393 F.3d 937, 940 (9th Cir. 2004).
But the Second, Fifth, and Eighth Circuits have held
otherwise on this issue, and we agree with the conclu-
sions of these circuits. See Lazo v. Gonzales, 462 F.3d 53,
54-55 (2d Cir. 2006); Delgado-Reynua v. Gonzales, 450 F.3d
596, 600-01 (5th Cir. 2006); Solano-Chicas v. Gonzales, 440
F.3d 1050, 1054 (8th Cir. 2006). As recognized in these
opinions, the conclusion that the BIA has the authority
to enter the order it did in Guevara’s case flows from the
definition of “order of deportation” contained in the
Immigration and Naturalization Act: “The term ‘order of
deportation’ means the order of the special inquiry officer,
or other such administrative officer to whom the Attor-
ney General has delegated the responsibility for deter-
mining whether an alien is deportable, concluding that
the alien is deportable or ordering deportation.” 8 U.S.C.
§ 1101(47)(A) (emphasis added).
This section also provides that an “order of deportation,”
as defined above, “shall become final upon the earlier of
a determination by the Board of Immigration Appeals
affirming such order” or the expiration of the time to
appeal to the BIA. 8 U.S.C. § 1101(47)(B). For purposes of
this section, the phrase “special inquiry officer” is synony-
mous with an IJ, see 8 C.F.R. § 1.1(l), and the phrase
“deportable” is synonymous with the term “removable,” see
Evangelista v. Ashcroft, 359 F.3d 145, 147 n.1 (2d Cir.
2004); Avila-Macias v. Ashcroft, 328 F.3d 108, 111-12 (3d
Cir. 2003). Thus, if an IJ decides that an alien is remov-
able but does not ultimately order removal due to a
grant of a waiver, cancellation, or the like, the decision
that the alien is removable is nonetheless an “order of
deportation” that may be affirmed by the BIA. See Solano-
No. 05-2696 9
Chicas, 440 F.3d at 1054 (“Thus, it follows that where
the BIA reverses the IJ’s order granting cancellation of
removal, the BIA, in essence, gives effect to the IJ’s order
of removability, for the BIA decision eliminates the
impediments to removal.”); Lazo, 462 F.3d at 54 (“[T]he
BIA did not ‘order’ Lazo’s removal (as Lazo characterizes
the order); the BIA has removed an impediment to the re-
moval that was ordered by the IJ.”); Delgado-Reynua, 450
F.3d at 601 (“We join the Eighth Circuit in concluding
that where the BIA reverses an IJ’s grant of discretionary
relief and gives effect to the IJ’s original order of
removability, the BIA has merely eliminated ‘impedi-
ments to removal’ and effected the original removal or-
der.”).
In Guevara’s case, the IJ initially determined that
Guevara was removable for having committed a crime
involving moral turpitude. Pursuant to 8 U.S.C.
§ 1101(47)(A), this threshold determination constituted
an order of deportation (i.e., removal) that could be given
effect by the BIA once it reversed the IJ’s subsequent
conclusion that Guevara was entitled to a discretionary
waiver of removal pursuant to § 212(c). In other words, the
BIA rejected only the waiver determination in the IJ’s
decision, leaving the IJ’s first holding—that of remov-
ability—intact. The BIA was thus empowered to order
Guevara removed to Honduras.
The petition for review is DENIED.
10 No. 05-2696
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-8-07