Nourredine Khodja v. Eric H. Holder ( 2011 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2346
N OURREDINE K HODJA,
Petitioner,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
Petition for Review of Orders of
the Board of Immigration Appeals.
No. A038-672-573
A RGUED O CTOBER 27, 2011—D ECIDED D ECEMBER 12, 2011
Before F LAUM, K ANNE, and W OOD , Circuit Judges.
K ANNE, Circuit Judge. Petitioner Nourredine Khodja
became a lawful permanent resident of the United
States on February 11, 1984. In 1990, Khodja was con-
victed of aggravated battery and armed violence
and sentenced to four years’ imprisonment. After his
sentencing hearing, Khodja moved for a judicial recom-
mendation against deportation (“JRAD”). An assistant
attorney for the Immigration and Naturalization Service
2 No. 11-2346
(“INS”) stated that the motion should be denied because
Khodja could seek a § 212(c) waiver in a subsequent
immigration proceeding. On this basis, the trial judge
denied the motion. Congress repealed § 212(c) in 1996. In
2003, following a vacation to the Dominican Republic, the
INS charged Khodja as being inadmissible for having been
convicted of a crime involving moral turpitude. Khodja
sought a waiver under §§ 212(c) and (h). The immigration
judge denied both waivers, and the Board of Immigration
Appeals affirmed. Because we find that the repeal of
§ 212(c) does not apply retroactively to Khodja’s case, the
petition will be granted.
I. B ACKGROUND
Nourredine Khodja is a sixty-one-year-old Tunisian
native and dual citizen of Tunisia and Canada. In 1969,
Khodja met his wife, a United States citizen, while she
was a summer exchange student in Canada. They
married in 1977 and have two children, ages thirty-two
and twenty-four. Khodja became a lawful permanent
resident of the United States on February 11, 1984.
On October 14, 1988, Khodja was charged in Illinois state
court with aggravated battery, armed violence, and
attempted murder after he repeatedly stabbed James W.
Bevan in the back and side. During the bench trial, expert
testimony established that Khodja suffered from major
depression with psychotic features at the time he com-
mitted the crime. On March 14, 1990, the trial judge
found Khodja “guilty but mentally ill” on the aggravated
battery and armed violence counts. Khodja was found
No. 11-2346 3
not guilty of attempted murder. On May 18, 1990, Khodja
was sentenced to four years’ imprisonment for his
armed violence conviction. He did not receive a sen-
tence on the aggravated battery conviction.1
Following his sentencing hearing, Khodja moved for
a judicial recommendation against deportation, or JRAD.
At the time of Khodja’s hearing, a sentencing judge
could issue a JRAD, which provided that the defendant’s
conviction could not be used as a basis for deportation
by immigration authorities. See 8 U.S.C. § 1251(b)(2)
(repealed 1990). “Although called a ‘recommendation,’
the command of a JRAD was mandatory.” Solis-Chavez
v. Holder, Nos. 10-1354 & 11-1243, 2011 WL 5041916, at *2
(7th Cir. Oct. 25, 2011). At Khodja’s hearing, Seth Fitter,
an assistant attorney for the former INS, urged the court to
deny the JRAD motion because Khodja could seek a waiver
before an immigration judge. He stated as follows:
Basically, Judge, this is a highly unusual type of
relief for the Defendant here.
There is an Immigration Judge who handles immigra-
tion cases. He is apart from the Immigration Service.
He would make a ruling on a case like this to deter-
mine whether the Defendant is deportable. And then
after that, if that’s correct, then there is a separate
portion in which the Defendant would testify, bring
1
The trial judge did not sentence Khodja on the aggravated
battery count because the aggravated battery conviction
arose from the same offense as his armed violence conviction.
4 No. 11-2346
in his wife, and the Judge has—could grant a waiver
of this conviction.
But if the Court grants this motion, it’s as if you are
usurping the role of the Immigration Judge in
making that ruling.
And I don’t believe in this type of case the Immigra-
tion Judge should be taken out of the picture, so to
speak.
(R. at 534-35.) The Illinois state trial judge then denied
the JRAD motion, stating “it’s more appropriate to be
heard in the proper tribunal” and “[t]his is a matter
which has to be handled by the immigration authori-
ties.” (R. at 536.) Khodja’s counsel moved to withdraw
the JRAD motion, which the trial judge granted.2
Khodja appealed his conviction to the Illinois Appel-
late Court. On September 13, 1991, the Illinois Appellate
Court denied Khodja’s appeal. Khodja served eighteen
2
The trial judge at first denied the JRAD motion, stating “I am
going to deny the motion. I feel that this is a matter for the
federal government to be concerned with. Motion denied.”
(R. at 535.) Khodja’s counsel then queried whether the judge
was denying the motion on its face or in deference to the
federal courts, to which the trial judge responded that it
would be more appropriately heard in the proper tribunal.
Khodja’s counsel moved to withdraw the motion, which the
judge granted, explaining, “I didn’t make a ruling. I said
motion denied, but if [counsel] wants to withdraw the
motion, she may do so. This is a matter which has to be
handled by the immigration authorities.” (R. at 536.)
No. 11-2346 5
months of his four-year sentence. He was released from
custody in July of 1993 and discharged from parole on
September 8, 1994.
On December 22, 2002, Khodja and his wife returned
to the United States from a vacation to the Dominican
Republic. Khodja presented himself to officials at the
airport and applied for admission. Rather than admit
Khodja, immigration officials deferred his inspection
and ordered him to appear before the Chicago immigra-
tion office. On April 24, 2003, immigration officials
served Khodja with a Notice to Appear. The government
alleged that Khodja was subject to removal under
8 U.S.C. § 1182(a)(2)(A)(i)(I) as an alien convicted of a
crime involving moral turpitude.
On May 29, 2003, Khodja appeared before an immigra-
tion judge. Khodja acknowledged that he was not a
United States citizen and had presented himself for in-
spection as a returning lawful resident on December 22,
2002. He denied factual allegations relating to his
prior convictions for armed violence and aggravated
battery. On February 26, 2004, Khodja indicated to the
immigration judge that he would seek a § 212(c) waiver
and a § 212(h) waiver. Prior to its repeal, § 212(c) granted
discretion to the Attorney General to admit certain
aliens despite their inadmissible status. See 8 U.S.C.
§ 1182(c) (repealed 1996). Section 212(h), which is still
in effect, grants the Attorney General broad discretion
to admit an alien under various circumstances, including
if denial of admission would result in extreme hardship
to the alien’s family. See 8 U.S.C. § 1182(h). This relief
6 No. 11-2346
is unavailable to any alien convicted of an aggravated
felony following his or her previous admittance into
the United States. Id.Khodja’s final removal hearing was held on June 15,
2005. The immigration judge determined that Khodja
was removable, denied Khodja’s applications for
waivers under §§ 212(c) and (h), and ordered Khodja
deported to Canada. Khodja timely appealed the im-
migration judge’s decision to the Board of Immigration
Appeals. The Board held that Khodja was ineligible for
a § 212(c) waiver but agreed with Khodja that the im-
migration judge erred in its analysis of his § 212(h)
waiver application. The Board remanded to the immigra-
tion judge for a proper determination of whether
Khodja had been convicted of an “aggravated felony” for
purposes of § 212(h).
On remand, the immigration judge found that
Khodja had been convicted of an aggravated felony as
defined in 8 U.S.C. § 1101(a)(43)(F). Accordingly, the
immigration judge again denied Khodja’s application
for a § 212(h) waiver. Khodja appealed this decision to
the Board, which affirmed the immigration judge’s deci-
sion, although on different grounds. Khodja filed his
petition for review with this court on June 14, 2011.
II. A NALYSIS
We have jurisdiction to review constitutional claims
and questions of law raised in a petition for review.
Frederick v. Holder, 644 F.3d 357, 362 (7th Cir. 2011), petition
No. 11-2346 7
for cert. filed, 80 U.S.L.W. 3078 (U.S. Aug. 1, 2011) (No. 11-
135); 8 U.S.C. §§ 1252(a)(2)(C), (D). Khodja challenges
the Board’s decision based on legal error and due
process grounds. We review these claims de novo.
Frederick, 644 F.3d at 362.
A. Section 212(c) Waiver
Khodja was charged as inadmissible under 8 U.S.C.
§ 1182(a)(2)(A)(i)(I), which provides that “any alien
convicted of . . . a crime involving moral turpitude
(other than a purely political offense) or an attempt or
conspiracy to commit such a crime . . . is inadmissible.”
Khodja does not challenge that he was convicted of a
crime involving moral turpitude. Instead, Khodja asserts
that he is entitled to a hearing on his application for
a § 212(c) waiver. Section 212(c) of the Immigration
and Nationality Act of 1952 provided that
[a]liens lawfully admitted for permanent residence
who temporarily proceeded abroad voluntarily and
not under an order of deportation, and who are re-
turning to a lawful unrelinquished domicile of
seven consecutive years, may be admitted in the
discretion of the Attorney General . . . .
8 U.S.C. § 1182(c) (repealed 1996); INS v. St. Cyr, 533 U.S.
289, 295 (2001). This section was amended in 1990 to
preclude relief for anyone convicted of an aggravated
felony who served a term of at least five years’ imprison-
ment. St. Cyr, 533 U.S. at 297. In 1996, Congress passed
the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”), Pub. L. No. 104-132, § 440(d), 110 Stat.
8 No. 11-2346
1214, 1277. The AEDPA amended § 212(c) to preclude
relief for convictions based on a broad set of offenses,
including all aggravated felonies. St. Cyr, 533 U.S. at 297;
Frederick, 644 F.3d at 361 n.2. Later that same year, Con-
gress passed the Illegal Immigration Reform and Immi-
grant Responsibility Act of 1996 (“IIRIRA”), Pub. L. No.
104-208, 110 Stat. 3009. This statute repealed § 212(c),
replacing it with “a new section that gives the Attorney
General the authority to cancel removal for a narrow
class of inadmissible or deportable aliens.” St. Cyr, 533
U.S. at 297 (citing 8 U.S.C. § 1229b). This section also
precludes relief for any alien convicted of an aggravated
felony. Id. Prior to its repeal, aliens who applied for
equitable relief under § 212(c) had an approximately
fifty percent chance of success. Canto v. Holder, 593
F.3d 638, 642 (7th Cir.), cert. denied, 131 S. Ct. 85 (2010).
In 2001, the Supreme Court addressed the retroactive
application of the IIRIRA’s repeal of § 212(c) in INS v. St.
Cyr, 533 U.S. 289 (2001). “The St. Cyr Court concluded
that Congress did not provide a sufficiently clear com-
mand with respect to the temporal reach of the repeal
of former § 212(c) by IIRIRA section 304(b), such that
the Court could not unambiguously conclude that Con-
gress intended it to apply retroactively.” Canto, 593 F.3d
at 642. The Supreme Court then held that retroactive
application of the IIRIRA’s repeal of § 212(c) “would
have an impermissible retroactive effect on aliens who
had pled guilty prior to the repeal of section 212(c)
because the repeal fundamentally changed the rights
they had at the time of their convictions.” Id. The
Supreme Court noted the quid pro quo involved in
No. 11-2346 9
plea agreements and held that aliens who entered
into plea agreements “ ‘almost certainly relied upon [the]
likelihood of receiving discretionary relief under
section 212(c) in deciding whether to forgo their right to
a trial . . . .’ ” Id. (quoting St. Cyr, 533 U.S. at 325).
St. Cyr failed to address whether aliens who pled
not guilty and were convicted following a trial are also
entitled to relief under § 212(c). A circuit split exists as
to whether such relief is available outside the guilty-
plea context. See Solis-Chavez, 2011 WL 5041916, at *8.
“The rule in this circuit remains 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.” United States v. De Horta Garcia, 519 F.3d 658,
661 (7th Cir. 2008). Previously we have recognized that
those who pled guilty prior to the repeal of § 212(c)
and those who conceded deportability based on the
expectation that they could seek relief under § 212(c) are
entitled to St. Cyr relief. Id. “In both cases, we required a
showing of specific facts demonstrating actual reliance.” Id.
Although Khodja did not plead guilty and was
instead convicted at trial, we find that he has
demonstrated actual reliance on the availability of a
§ 212(c) waiver such that he affirmatively abandoned
his right to pursue a JRAD. In Solis-Chavez, we noted
that although a JRAD is a purely discretionary form
of relief, it can serve as “a complete defense to removal.”
2011 WL 5041916, at *6. Thus, in Solis-Chavez’s case, he
had a due process interest in protecting “a previously
10 No. 11-2346
entered JRAD against the government’s claim that it is
untimely and therefore invalid.” Id. at *6 n.1.
In this case, INS assistant attorney Fitter specifically
referenced the availability of a waiver at Khodja’s hearing
on his JRAD motion. He stated: “[T]here is a separate
portion in which the Defendant would testify, bring in
his wife, and the [Immigration] Judge . . . could grant a
waiver of this conviction.” (R. at 534-35.) Immediately
following Fitter’s statement, the trial judge pre-
liminarily denied Khodja’s JRAD motion. Khodja then
withdrew his request for a JRAD. The facts indicate that
Khodja chose to forgo a possible benefit in reliance on
Fitter’s statement that he would be eligible for § 212(c)
relief. See Esquivel v. Mukasey, 543 F.3d 919, 922 (7th
Cir. 2008) (requiring a showing of specific facts demon-
strating actual reliance). If the state trial court had
granted Khodja’s motion for a JRAD, Khodja would
have a complete defense to deportation. But because of
Fitter’s statement, Khodja withdrew his motion and
chose not to appeal the denial of his JRAD motion,
even though he appealed his conviction. We find that
Khodja has demonstrated actual reliance in forgoing a
possible benefit such that the repeal of § 212(c) does
not apply retroactively in this case. Accordingly, we
will remand to the agency for further proceedings to
address Khodja’s § 212(c) waiver application.
B. Section 212(h) Waiver
Khodja also applied for a § 212(h) waiver during his
deportation proceedings. Under § 212(h), the Attorney
No. 11-2346 11
General has broad discretion to waive the inadmis-
sibility of an alien in a variety of circumstances. See 8
U.S.C. § 1182(h). No waiver may be provided, however,
if the alien has been convicted of an “aggravated felony.”
Id. “Aggravated felony” includes a “crime of violence,”
as defined in 18 U.S.C. § 16, for which the term of impris-
onment is at least one year. 8 U.S.C. § 1101(a)(43)(F).
A “crime of violence” has two definitions. The first
uses a categorical approach and applies to “an offense
that has as an element the use, attempted use, or threat-
ened use of physical force against the person or property
of another.” 18 U.S.C. § 16(a). Our review under § 16(a) is
strictly limited to the elements of the crime. LaGuerre
v. Mukasey, 526 F.3d 1037, 1039 (7th Cir. 2008) (per
curiam). The second definition includes “any other
offense that is a felony and that, by its nature, involves
a substantial risk that physical force against the person
or property of another may be used in the course of
committing the offense.” 18 U.S.C. § 16(b). The Board
determined that Khodja’s armed violence offense, based
on the predicate felony of aggravated battery, satisfies
this second definition.
The Board applied a modified categorical approach
in determining that the armed violence conviction met
the definition of “crime of violence” under § 16(b),
looking beyond the elements of the offense to the
charging documents. Relying upon this court’s rea-
soning in United States v. Fife, 624 F.3d 441 (7th Cir.
2010), cert. denied, 131 S. Ct. 1536 (2011), the Board held
that Khodja’s predicate felony of aggravated battery
12 No. 11-2346
involved a greater risk of physical force than the
predicate felony of possession with intent to deliver
cocaine that was at issue in Fife. Moreover, the Board
noted that the indictment referenced Khodja’s acts of
knowingly causing bodily harm to the victim by
stabbing him in the back and side. This was enough for
the Board to conclude that Khodja had been convicted
of a “crime of violence” under § 16(b).
Khodja argues that the Board erred in using a modi-
fied categorical approach or, in the alternative, that the
Board improperly considered Khodja’s actual conduct in
determining whether his offense satisfied the modified
categorical approach. Khodja’s first argument is without
merit. The statutory language for armed violence states:
“A person commits armed violence when, while armed
with a dangerous weapon, he commits any felony
defined by Illinois law . . . .” 720 ILCS 5/33A-2(a). The
term “any felony” encompasses a broad range of under-
lying acts which may or may not constitute crimes
of violence. The modified categorical approach
applies when “analysis of the elements reveals that a
statute may be violated in several ways, such as a
statute which creates more than one crime or one that
defines one crime with multiple enumerated modes of
commission.” Fife, 624 F.3d at 445; cf. Gaiskov v. Holder, 567
F.3d 832, 836 n.2 (7th Cir. 2009) (based on the statutory
language, all prohibited conduct was reasonably under-
stood as “sexual abuse of a minor”; therefore, it was
unnecessary to apply the modified categorical approach
in determining whether the defendant’s offense met
the definition of “sexual abuse”). In Fife, we held that
No. 11-2346 13
Illinois’s armed violence statute “creates multiple modes
of commission, defined by the felony committed while
armed with a dangerous weapon.” 624 F.3d at 446. The
same armed violence statute is at issue in this case and
the Board was correct in applying a modified categorical
approach.
Under the modified categorical approach, “we look at
the conviction’s judicial record to determine whether it
qualifies as a crime of violence, but we will still not exam-
ine the particular facts of the conviction.” United States
v. Curtis, 645 F.3d 937, 940 (7th Cir. 2011). “[T]he point
of the expanded inquiry is not to consider what the
defendant in fact did but to determine which category
of crime the defendant committed.” United States v.
Dismuke, 593 F.3d 582, 589 (7th Cir. 2010), cert. denied,
131 S. Ct. 3018 (2011). In this case, the Board considered
the underlying felony of aggravated battery as well as
Khodja’s actual conduct in stabbing the victim. Because
the modified categorical approach prohibits consid-
eration of a defendant’s actual conduct, the Board erred
in considering what Khodja did. But this error is
harmless because a proper examination of Khodja’s
conviction under the modified categorical approach,
considering only the underlying felony of aggravated
battery, still leads to the conclusion that Khodja was
convicted of a “crime of violence.”
In Illinois, “[a] person commits aggravated battery
when, in committing a battery . . . he or she
knowingly . . . [c]auses great bodily harm or permanent
disability or disfigurement.” 720 ILCS 5/12-3.05(a)(1).
The nature of this crime is such that a victim suffers
14 No. 11-2346
physical harm at the hands of a willing perpetrator.
To establish that a defendant committed the underlying
felony of aggravated battery, a prosecutor would have
to demonstrate that the defendant caused bodily harm.
We have interpreted similar statutes as having as an
element the use of physical force against another. See
LaGuerre, 526 F.3d at 1039 (discussing Illinois’s domestic
battery statute).
We hold that a person who commits an aggravated
battery in Illinois presents “a substantial risk that
physical force against the person or property of another
may be used in the course of committing the offense.” 18
U.S.C. § 16(b). The addition of a dangerous weapon
increases this risk. Under the modified categorical ap-
proach, therefore, Khodja was convicted of a “crime of
violence” under § 16(b). In addition, Khodja was impris-
oned for more than one year. Accordingly, his convic-
tion fits the definition of an “aggravated felony” and
§ 212(h) relief is unavailable.
III. C ONCLUSION
For the foregoing reasons, we G RANT the petition and
R EMAND this case for a full hearing on Khodja’s § 212(c)
waiver application.
12-12-11