Avilez-Granados v. Gonzales , 481 F.3d 869 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 19, 2007
_______________________ Charles R. Fulbruge III
Clerk
No. 05-61165
_______________________
ANTONIO AVILEZ-GRANADOS,
Petitioner,
versus
ALBERTO R. GONZALES
UNITED STATES ATTORNEY GENERAL,
Respondent.
On Petition for Review of an Order of
the Board of Immigration Appeals
Before JONES, Chief Judge, and WIENER and BARKSDALE, Circuit
Judges.
EDITH H. JONES, Chief Judge:
Petitioner Antonio Avilez-Granados (“Avilez”) appeals a
Board of Immigration Appeals (“BIA”) decision holding that he is
ineligible to apply for discretionary relief under § 212(c) of the
Immigration and Nationality Act (“INA”), 8 U.S.C. § 1182(c),
because his crime, aggravated sexual assault of a child, lacks a
comparable ground of inadmissability under INA § 212(a).1 Avilez
further challenges the BIA’s authority to enter a removal order
where the Immigration Judge (“IJ”) initially granted § 212(c)
relief. We DENY Avilez’s petition for review of the BIA’s denial
of § 212(c) relief, but because he was not given an opportunity to
apply for an adjustment of status based on his marriage to an
American citizen, we REMAND to the BIA for further proceedings.
I. BACKGROUND
Petitioner Avilez was born in Mexico in 1967 and became
a lawful permanent resident of the United States in 1988. He is
married to a United States citizen and is the father of two United
States citizen children. In 1994, Avilez pleaded guilty to
aggravated sexual assault of a child in Texas state court. He
received ten years of probation, which he successfully completed in
2004. On December 1, 2003, the Department of Homeland Security
(“DHS”) issued a Notice to Appear charging Avilez with removability
from the United States as an alien convicted of an aggravated
felony under 8 U.S.C. § 1101(a)(43)(A).
Avilez sought a waiver of deportation under former INA
§ 212(c), 8 U.S.C. § 1182(c). The IJ found Avilez to be
statutorily eligible for waiver of deportation because he had over
seven years of continuous lawful residence and he did not serve
1
We note that two companion cases, Vo v. Gonzales, No. 05-60518, and
Brieva-Perez v. Gonzales, No. 05-60639, were heard on the same day and contain
related issues and overlapping reasoning.
2
more than five years in jail or prison. The IJ found that Avilez
had presented evidence of unusual or outstanding equities to
justify his exercise of discretion in granting a waiver. Among the
equities the IJ cited were Avilez’s long residence in the United
States, his citizen wife’s serious health problems, and the fact
that his citizen children do not speak Spanish. The court also
noted that Avilez successfully completed probation, accepted
responsibility, and won his victim’s forgiveness.
DHS appealed to the BIA, arguing both that Avilez was
statutorily ineligible for § 212(c) relief and that he was not
deserving of relief as a matter of discretion. The BIA reversed
the IJ’s decision, finding Avilez statutorily ineligible for
§ 212(c) relief under its recent decision Matter of Blake, which
held that the offense that rendered Avilez removable (sexual abuse
of a minor) has no “statutory counterpart” in the grounds of
inadmissibility under § 212(a). See Matter of Blake, 23 I. & N.
Dec. 722 (BIA 2005). The BIA granted Avilez voluntary departure
and issued an alternative order for removal from the United States.
Avilez timely filed a petition for review in this court. On March
3, 2006, the court denied Avilez’s motion for a stay of removal
pending review, and he subsequently was removed to Mexico.
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II. DISCUSSION
A. Jurisdiction
Although the REAL ID Act limits this court’s jurisdiction
to review Avilez’s conviction for an aggravated felony, see
8 U.S.C. § 1252(a)(2)(C); Hernandez-Castillo v. Moore, 436 F.3d
516, 519 (5th Cir.), cert. denied, __ U.S. __, 127 S. Ct. 40
(2006), we retain jurisdiction to review the constitutional claims
and questions of law raised by Avilez under § 1252(a)(2)(D). See
Rosales v. Bureau of Immigration & Customs Enforcement, 426 F.3d
733, 736 (5th Cir. 2005), cert. denied, __ U.S. __, 126 S. Ct. 1055
(2006). We review the BIA’s conclusions of law de novo, according
deference to the BIA’s interpretations of ambiguous provisions of
the INA. Carbajal-Gonzalez v. INS, 78 F.3d 194, 197 (5th Cir.
1996).
B. Availability of § 212(c) Relief
Avilez contends the BIA erred by finding him statutorily
ineligible to apply for a waiver of deportation under former INA
§ 212(c), 8 U.S.C. § 1182(c), because his conviction of sexual
assault of a child does not have a statutory counterpart ground of
inadmissibility under § 212(a). Avilez argues that the BIA’s
interpretation of § 212(c), as expressed in its regulations, see
8 C.F.R. § 1212.3(f)(5), and opinions, see Blake, 23 I. & N. Dec.
722, impermissibly contradicts prior agency practice; is an
irrational departure from prior policy and therefore undeserving of
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deference; creates a retroactive bar to relief in violation of
I.N.S. v. St. Cyr, 533 U.S. 289, 121 S. Ct. 2271 (2001); and
violates the Equal Protection clause and the decision of Francis v.
INS, 532 F.2d 268 (2d Cir. 1976). The same arguments were raised
before this panel in a companion case, Vo v. Gonzales, No. 05-
60518, and for the reasons set forth in that opinion, we reiterate
that the BIA did not err in holding Avilez ineligible for § 212(c)
relief. See also De la Paz Sanchez v. Gonzales, 473 F.3d 133 (5th
Cir. 2006) (UUV lacks statutory counterpart, and § 212(c) relief
therefore is unavailable); Caroleo v. Gonzales, 476 F.3d 158, 164-
68 (3d Cir. 2007)(aggravated felony of “crime of violence” does not
have a statutory counterpart in INA § 212(a)); Valere v. Gonzales,
473 F.3d 757, 761-62 (7th Cir. 2007)(8 C.F.R. § 1212.3 is not
impermissibly retroactive).
To the extent Avilez presents arguments in addition to
those advanced in Vo, the outcome remains unchanged. Avilez
contends that unlike Vo’s crime of unauthorized use of a motor
vehicle, sexual assault of a child would be considered a “crime
involving moral turpitude” under any common-sense understanding.
However, it is not enough that a crime could be reclassified.
There is no textual link between sexual abuse of a child and crimes
involving moral turpitude to indicate that Congress had the same
class of offenses in mind when it enacted the two provisions that
must be compared. Cf. Matter of Meza, 20 I. & N. Dec. 257, 259
(BIA 1991) (petitioner found eligible to apply for § 212(c) relief
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because his crime, trafficking in a controlled substance, was
sufficiently analogous to a section 212(a) ground of excludability,
namely violation of laws related to a controlled substance); see
also Blake, 23 I. & N. Dec. at 728 (“[W]hether a ground of
deportation or removal has a statutory counterpart in the
provisions for exclusion or inadmissibility turns on whether
Congress has employed similar language to describe substantially
equivalent categories of offenses.”). Absent this textual link, we
cannot extend § 212(c) relief to cover any crime that common-sense
might classify as involving moral turpitude.
C. BIA’s Order of Removal
Avilez also contends that the BIA erred by ordering him
removed without remanding the case to the IJ for further
proceedings. Under 8 U.S.C. § 1101(a)(47)(A) and 8 C.F.R.
§ 1240.1(a)(1)(i) et seq., Avilez maintains, only special inquiry
officers and IJs may issue orders of removal. See Molina-Camacho
v. Ashcroft, 393 F.3d 937 (9th Cir. 2004). As counsel conceded at
oral argument, however, this court has already determined that the
BIA has the authority to issue an order of removal in the first
instance once the IJ has determined that the alien is removable.
See Delgado-Reynua v. Gonzales, 450 F.3d 596 (5th Cir. 2006).
Nevertheless, while the BIA need not have remanded the
case for the IJ simply to issue the order of removal, Avilez urged
alternative grounds for relief that were never addressed. He
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argues he should have been permitted to return to the IJ and apply
for adjustment of status based on his marriage to an American
citizen. See Matter of Azurin, 23 I. & N. Dec. 695, 698 (BIA
2005). Although he never sought this form of relief before the
BIA, he was not required to; the IJ had already granted Avilez
relief under § 212(c), and he therefore had no reason to press for
an adjustment of status.
Avilez’s reliance on the availability of § 212(c) relief
was reasonable, albeit ultimately incorrect.2 This case must
therefore be remanded to the IJ to determine whether Avilez should
be granted an adjustment of status.
III. CONCLUSION
For the reasons set forth by this court in Vo v.
Gonzales, No. 05-60518, and by the BIA in Blake, 23 I. & N.
Dec. 722, Avilez is ineligible to apply for relief under INA
§ 212(c), as his crime lacks a statutory counterpart ground of
inadmissability in INA § 212(a). His petition for review is thus
DENIED in part. However, because he should have been granted an
opportunity to apply for an adjustment of status before the IJ, we
REMAND the case for further proceedings consistent with this
opinion.
2
The BIA did not issue the Blake opinion until after Avilez had
applied for and been granted § 212(c) relief by the IJ. Because Blake clarified
agency practice and did not change the applicable rule, Avilez’s error was not
unreasonable.
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