Lawrence v. Holder , 717 F.3d 1036 ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALFREDO ROLANDO LAWRENCE , No. 07-74829
Petitioner,
Agency No.
v. A040-199-868
ERIC H. HOLDER, JR., Attorney OPINION
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 8, 2013*
Pasadena, California
Filed May 21, 2013
Before: Ferdinand F. Fernandez, Johnnie B. Rawlinson,
and Jay S. Bybee, Circuit Judges.
Opinion by Judge Fernandez
*
The panel unanimously finds this case suitable for decision without
oral argument. Fed. R. App. P. 34(a)(2).
2 LAWRENCE V . HOLDER
SUMMARY**
Immigration
The panel denied Alfredo Rolando Lawrence’s petition
for review of the Board of Immigration Appeals’ decision
finding him ineligible for INA § 212(c) relief, because he is
an aggravated felon who filed his application for relief after
November 29, 1990.
The panel held that the term “admissions” in § 212(c)’s
effective date provision refers to the date that an alien seeks
relief, and thus the aggravated felony bar applies to
applications filed after November 29, 1990, regardless of the
date the alien was initially admitted to the United States.
COUNSEL
Duane M. Hamilton, Chow & Hamilton, Buena Park,
California, for Petitioner.
Tony West, Assistant Attorney General, Aviva L. Poczter,
Senior Litigation Counsel, Jesse D. Lorenz, Trial Attorney,
United States Department of Justice, Civil Division, Office of
Immigration Litigation, Washington, D.C., for Respondent.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
LAWRENCE V . HOLDER 3
OPINION
FERNANDEZ, Circuit Judge:
Alfredo Rolando Lawrence, a native and citizen of
Panama, petitions for review of the Board of Immigration
Appeals’ (BIA) determination that he is not eligible for relief
pursuant to former Immigration and Nationality Act (INA)
§ 212(c) (8 U.S.C. § 1182(c) (1992)) because he is an
aggravated felon, who filed his application for relief after
November 29, 1990. We deny the petition.
BACKGROUND
Lawrence was admitted to the United States on June 16,
1987, as a lawful permanent resident (LPR). On May 12,
1992, the State of California charged him with armed
robbery1 and kidnapping.2 He pled guilty to both charges
pursuant to a plea agreement and was sentenced to nine years
imprisonment on each offense. He served five years and
seven months of his term and was released on December 16,
1997. A few weeks before his release, a Notice to Appear
(NTA) was issued pursuant to INA § 237(a)(2)(A)(iii),
(a)(2)(A)(i) (8 U.S.C. § 1227(a)(2)(A)(iii), (i)). It alleged that
he was removable as an LPR convicted of an aggravated
felony and a crime involving moral turpitude.
At his hearing on the NTA, the Immigration Judge (IJ)
sustained the factual allegations in the NTA and found that
Lawrence was removable. Lawrence indicated to the IJ that
1
See Cal. Penal Code § 211.
2
See Cal. Penal Code § 207(a).
4 LAWRENCE V . HOLDER
he sought asylum and withholding of removal. He also
briefed the IJ on the availability of relief under the
Convention Against Torture (CAT).3
On October 5, 1998, the IJ issued a decision, finding
Lawrence ineligible for asylum and withholding of removal
because he had been convicted of an aggravated felony that
was a particularly serious crime, and stating that the IJ lacked
jurisdiction over Lawrence’s CAT claim. The IJ ordered him
removed to Panama.
Lawrence appealed the IJ’s decision to the BIA. The BIA
dismissed his appeal with respect to asylum and withholding
of removal, but remanded on the question of CAT protection.
It determined that the IJ did have jurisdiction to consider the
CAT issue. On remand, Lawrence applied for a waiver under
§ 212(c) of the INA (hereafter § 212(c)) for the first time on
March 2, 2004. However, § 212(c) relief is barred for
applicants who have been convicted of an aggravated felony
and served over five years in prison. Immigration Act of
1990 (IMMACT), Pub. L. No. 101–649, § 511 (a) & (b), 104
Stat. 4978, 5052 (hereafter § 511(a) and § 511(b),
respectively). Lawrence asserted that he could seek § 212(c)
relief despite the bar because it applied only to “admissions”
taking place on or after November 29, 1990, but he was
admitted as an LPR in 1987. He then withdrew his
application for CAT protection, which left only his
application for § 212(c) relief pending.
3
United Nations Convention Against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment, adopted Dec. 10, 1984, S. Treaty
Doc. No. 100-20 (1988), 1465 U.N.T.S. 85, implemented at 8 C.F.R.
§ 1208.18.
LAWRENCE V . HOLDER 5
On March 13, 2006, the IJ pretermitted Lawrence’s
application for § 212(c) relief on the ground that he had been
convicted of an aggravated felony for which he had served
more than five years in prison and thus was barred from
seeking a § 212(c) waiver. Lawrence appealed that decision
to the BIA, which adopted and affirmed the IJ’s decision on
November 13, 2007. The BIA noted that it was “well settled”
that the aggravated felony bar to a § 212(c) waiver applied to
applications for a waiver filed after November 29, 1990,
regardless of the alien’s initial admission date to the United
States. This petition for review followed.
JURISDICTION AND STANDARDS OF REVIEW
We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1).
We review the BIA’s factual determinations for
substantial evidence and treat the BIA’s determinations as
“‘conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary.’” Lopez-Cardona v.
Holder, 662 F.3d 1110, 1111 (9th Cir. 2011); see also INS v.
Elias-Zacarias, 502 U.S. 478, 481 & n.1, 483–84, 112 S. Ct.
812, 815 & n.1, 817, 117 L. Ed. 2d 38 (1992).
We review issues of law de novo, but “subject to
established principles of deference.” Edu v. Holder, 624 F.3d
1137, 1142 (9th Cir. 2010) (internal quotation marks
omitted); see also Garcia v. Holder, 659 F.3d 1261, 1265–66
(9th Cir. 2011). We owe deference to the legal interpretations
of the Attorney General, if they are “based on a permissible
construction of the statute.” Chevron, U.S.A., Inc. v. Natural
Res. Def. Council, Inc., 467 U.S. 837, 843, 104 S. Ct. 2778,
2782, 81 L. Ed. 2d 694 (1984); see also INS v.
Aguirre-Aguirre, 526 U.S. 415, 424, 119 S. Ct. 1439, 1445,
6 LAWRENCE V . HOLDER
143 L. Ed. 2d 590 (1999). We also owe deference to the legal
determinations of the BIA, but that presents more complexity.
In this case, the BIA’s legal determination was essentially as
set forth in a published opinion of five members of the BIA.
See In re A– A–, 20 I. & N. Dec. 492 (BIA 1992). Thus, to
the extent we are reviewing its decision, we also owe its
determination deference if “based on a permissible
construction of the statute.” Chevron, 467 U.S. at 843, 104
S. Ct. at 2782; see also Aguirre-Aguirre, 526 U.S. at 424, 119
S. Ct. at 1445.
Finally, as to the particulars of the case at hand, we
review “the decision of the IJ, as well as any additional
reasoning offered by the BIA.” Husyev v. Mukasey, 528 F.3d
1172, 1177 (9th Cir. 2008).
DISCUSSION
Lawrence sought relief from removal pursuant to
§ 212(c),4 despite the fact that he had committed an
aggravated felony and had served more than five years in
prison as a result.5
4
Although the section has been repealed, it is still applicable to those
aliens who pled guilty to offenses while it was in effect — that is, before
April 1, 1997. See INS v. St. Cyr, 533 U.S. 289, 297, 326, 121 S. Ct.
2271, 2277, 2293, 150 L. Ed. 2d 347 (2001). Because Lawrence pled
guilty on May 19, 1992, the section is applicable to him.
5
As it applies to Lawrence, § 212(c) reads as follows in pertinent part:
Aliens lawfully admitted for permanent residence who
temporarily proceeded abroad voluntarily and not under
an order of deportation, and who are returning to a
lawful unrelinquished domicile of seven consecutive
years, may be admitted in the discretion of the Attorney
LAWRENCE V . HOLDER 7
Congress amended § 212(c) when it enacted the
aggravated felony bar to relief on November 29, 1990.
Sections 511(a) and 511(b) of IMMACT provide:
(a) IN GENERAL. — Section 212(c)
(8 U.S.C. § 1182(c)) is amended by adding at
the end the following: “The first sentence of
this subsection shall not apply to an alien who
has been convicted of an aggravated felony
and has served a term of imprisonment of at
least five years.”
(b) EFFECTIVE DATE. — The amendment
made by subsection (a) shall apply to
admissions occurring after the date of the
enactment of this Act.
Thereafter, the bar was expanded to cover an alien who
has committed “one or more aggravated felonies and has
General . . . . The first sentence of this subsection shall
not apply to an alien who has been convicted of one or
more aggravated felonies and has served for such
felony or felonies a term of imprisonment of at least
five years.
On its face, the statute applied to exclusion proceedings only, but it can be
applied to deportation proceedings as well. See 8 C.F.R. § 1212.3; Pascua
v. Holder, 641 F.3d 316, 319 n.2 (9th Cir. 2011); Tapia-Acuna v. INS,
640 F.2d 223, 225 (9th Cir. 1981), overruled by Abebe v. Mukasey,
554 F.3d 1203, 1207 (9th Cir. 2009) (en banc) (per curiam); In re Silva,
16 I. & N. Dec. 26, 30 (BIA 1976).
8 LAWRENCE V . HOLDER
served for such felony or felonies”6 a term of imprisonment
of at least five years, but that does not affect our analysis.
There can be no doubt that the aggravated felony bar does
apply to Lawrence if within the meaning of § 511(b) his
“admission” occurred after November 29, 1990. As already
indicated, his convictions occurred on May 19, 1992, and his
application for § 212(c) relief was filed on March 2, 2004.
The BIA determined that the bar applied to him because his
application for relief was filed after November 29, 1990.
Lawrence disagrees with the BIA’s determination and
points to the fact that, in general, the words “admission” and
“admitted” mean “the lawful entry of the alien into the United
States after inspection and authorization by an immigration
officer.” 8 U.S.C. § 1101(a)(13)(A). Thus, he argues that
because he was admitted as an LPR on or about June 16,
1987, the felony bar does not apply to him.
Lawrence’s argument would be plausible, if it were not
for the unique history of § 212(c). Read literally, § 212(c)
relief would not apply to him at all — on its face it only
refers to aliens who had been “lawfully admitted” but left and
then sought to be admitted again. However, that does not
describe Lawrence; he did not literally seek admission in
2004 because he had never left. When Congress acted,
§ 212(c) could have been applied to a person in his position
because “the distinction between reentry and deportation
[had] been blurred.” Samaniego-Meraz v. INS, 53 F.3d 254,
257 (9th Cir. 1995), overruled on other grounds by Toia v.
6
See Miscellaneous and Technical Immigration and Naturalization
Amendments of 1991, Pub. L. No. 102–232, § 306(a)(10), 105 Stat. 1733,
1751.
LAWRENCE V . HOLDER 9
Fasano, 334 F.3d 917, 921 (9th Cir. 2003). Thus, when
Congress used the term “admissions” in the effective date
provision in § 212(c), it could have been referring to the
initial admission of an alien (i.e., the first usage of the term
admission in § 212(c), which refers to “[a]liens lawfully
admitted for permanent residence”), or it could have been
referring to the second admission requested when the alien
returned after leaving (i.e., the second usage of the term
admission in § 212(c), which states that aliens “may be
admitted in the discretion of the Attorney General”). It is not
likely that Congress meant the former, rather than the latter,
which is the date on which the alien would have been seeking
reentry but found himself in the status of an aggravated felon.
Because the very purpose of the judicial expansion of
§ 212(c) relief to those who had not left was to ensure that
they would be given treatment equal to that of returning
aliens,7 they should be treated in that fashion for the purposes
of § 511(b). That is, the date that they seek the equivalent of
“returning” relief should be used; that date, at the earliest, is
the date of their application for relief. Still, we agree that
some ambiguity remains.
The Attorney General has resolved the ambiguity, and we
owe that determination deference. On October 3, 1991, the
Attorney General issued an interim rule for the purpose of
amending the Code of Federal Regulations to implement
§ 511(a) and (b). See Interim Rule re 212(c) Waiver, 56 Fed.
Reg. 50,033–34 (Oct. 3, 1991). The Attorney General noted
that the aggravated felony bar had been enacted and went on
to explain:
7
See Tapia-Acuna, 640 F.2d at 225; Francis v. INS, 532 F.2d 268, 273
(2d Cir. 1976); In re Silva, 16 I. & N. Dec. at 30.
10 LAWRENCE V . HOLDER
As used in section 511(b) of IMMACT,
the term “admissions” covers all applications
under the Act for section 212(c) relief,
whether actually made upon application for
admission into the United States or made only
after entry. The language of the waiver
contained in section 212(c) applies by its
terms only to applications for readmission
into the United States by inadmissible lawful
permanent resident aliens who temporarily
proceeded abroad voluntarily. However, the
Attorney General has long equated
applications for section 212(c) relief which
are made during deportation proceedings after
entry, with those applications made at the
time an alien physically seeks admission into
the United States. This treatment has been
accepted and expanded by the courts, and
applies even if the alien did not depart the
United States after becoming excludable.
Thus, under the prevailing interpretation, the
phrase “shall apply to admissions” as used in
section 511(b) of IMMACT refers to all
applications for relief pursuant to section
212(c) of the Act submitted after November
29, 1990 . . . .
Id. at 50,033 (citations omitted). As suggested by our
previous discussion, that determination was “based on a
permissible construction of the statute.” Chevron, 467 U.S.
at 843, 104 S. Ct. at 2782; see also Aguirre-Aguirre, 526 U.S.
at 424, 119 S. Ct. at 1445.
LAWRENCE V . HOLDER 11
The BIA later commented upon the regulation;8 it noted
that Congress had “specified that [the aggravated felony bar]
was to be virtually immediate.” In re A– A–, 20 I. & N. Dec.
at 501. It went on to declare: “The Attorney General has
thereby determined that the statutory bar to section 212(c)
relief shall apply only to those applications submitted after
November 29, 1990. We are therefore bound by his
determination in this regard.” Id. at 502. That, of course,
was the rule followed in the case at hand. Again, we defer.
Six other circuit courts of appeals have had occasion to
comment on whether the date of application for relief is the
operative date for this purpose. All agree with the agency’s
construction of § 511(b).
The Fourth Circuit Court of Appeals responded to an
attack similar to Lawrence’s as follows:
We find the Board’s and the Attorney
General’s interpretation to be reasonable and
consistent with congressional intent.
Although the [aliens] are correct with regard
to the technical meaning of “admissions” in
the context of immigration laws, the
interpretation they advocate would require
ignoring the administrative and judicial
interpretations which have broadened the
meaning of “admissions” in the § 212(c)
context. These decisions have held that
§ 212(c) no longer exclusively applies to
aliens who have departed and are seeking
8
See 8 C.F.R. § 212.3 (1992); on February 28, 2003, the number of the
regulation was changed to 8 C.F.R § 1212.3 without material change.
12 LAWRENCE V . HOLDER
reentry or readmission back into the United
States, but also to those who have not
departed but are in deportation proceedings.
We do not believe it is unreasonable for
Congress to assume that its use of the term
“admissions” in the amendment to § 212(c)
would be subject to the prevailing judicial and
administrative interpretation. Accordingly,
we affirm the Board’s conclusion that the
aggravated felony bar applies to the [aliens]
because their applications for § 212(c) relief
were filed after . . . the enactment date of
IMMACT.
De Osorio v. INS, 10 F.3d 1034, 1039 (4th Cir. 1993)
(citations omitted). Other courts of appeals have agreed,
although sometimes with less than hyaline reasoning. See
Velez-Lotero v. Achim, 414 F.3d 776, 780, 781 (7th Cir.
2005); Gomes v. Ashcroft, 311 F.3d 43, 45–46 (1st Cir. 2002);
Scheidemann v. INS, 83 F.3d 1517, 1519–20, 1525–26 (3rd
Cir. 1996); Campos v. INS, 16 F.3d 118, 120–21 (6th Cir.
1994); Buitrago-Cuesta v. INS, 7 F.3d 291, 292 (2d Cir.
1993); Cortes-Castillo v. INS, 997 F.2d 1199, 1202 n.1 (7th
Cir. 1993); see also Saravia-Paguada v. Gonzales, 488 F.3d
1122, 1132–35 (9th Cir. 2007) (applying § 511(a) to an alien
admitted before the effective date of IMMACT without any
reference to § 511(b)). If we had any remaining doubt, those
cases would absterge it.
LAWRENCE V . HOLDER 13
Therefore, we hold that the aggravated felony bar applies
to Lawrence’s attempt to seek § 212(c) relief.9
CONCLUSION
Lawrence, an LPR and aggravated felon, hopes to take
advantage of the relief provided by § 212(c), but that hope
has induced him to chase an eidolon. As an aggravated felon,
who filed his application for relief after November 29, 1990,
he falls outside of the protective scope of § 212(c).
Petition DENIED.
9
Lawrence also makes a halfhearted equal protection argument, without
citation to pertinent authorities. His claim is otiose. There can be no
doubt that Congress can rationally distinguish between aliens who commit
felonies and those who do not. See Alvarenga-Villalobos v. Ashcroft,
271 F.3d 1169, 1174 (9th Cir. 2001); United States v. Yacoubian, 24 F.3d
1, 8 n.3 (9th Cir. 1994). Similarly, Congress can certainly draw lines that
specify effective dates when it enacts or amends relief statutes. See
Hernandez-Mezquita v. Ashcroft, 293 F.3d 1161, 1164–65 (9th Cir. 2002).
Moreover, Lawrence, who committed and pled guilty to a felony after
IMMACT’s enactment, is not similarly situated to those who pled before
the enactment. See Chan v. Reno, 113 F.3d 1068, 1073–74 (9th Cir.
1997); see also Toia v. Fasano, 334 F.3d 917, 920–21 (9th Cir. 2003).