Leon-Medina v. Holder

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 29, 2009
No. 08-60801
Summary Calendar Charles R. Fulbruge III
Clerk
JOSE M. LEON-MEDINA, Also Known as Jose Leon-Medina,
Petitioner,
versus
ERIC H. HOLDER, JR., U.S. Attorney General,
Respondent.
Petition for Review of an Order of
the Board of Immigration Appeals
No. A91 598 775
Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Jose Leon-Medina, a native and citizen of Mexico, petitions for review of
an order of the Board of Immigration Appeals (“BIA”) dismissing his appeal of
an order of an immigration judge (“IJ”) denying his application for waiver of re-
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
No. 08-60801
moval. Because the BIA adopted the ruling of the IJ, we review the decisions of
both the IJ and the BIA. See Efe v. Ashcroft, 293 F.3d 899, 903 (5th Cir. 2002).
In 1990, Leon-Medina was admitted to the United States as a lawful per-
manent resident (“LPR”). In 1995, he pleaded guilty of one count of illegal trans-
portation of aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(ii).1 According to the
allegations in the criminal complaint, Leon-Medina, while in Mexico, agreed to
transport eight illegal aliens to Dallas, Texas, from an undetermined location;
he was apprehended while transporting them within the United States.
In 2005, Leon-Medina was detained while attempting to reenter the Unit-
ed States from Mexico. Although the Bureau of Immigration and Customs En-
forcement (“ICE”) initially charged him with being inadmissible to the United
States, it subsequently charged him with being removable from the United
States because he had been convicted of an aggravated felony based on his con-
viction of illegal transportation of aliens.
Leon-Medina admitted that he was removable as charged, and he sought
cancellation of removal under former § 212(c) of the Immigration and National-
ity Act (“INA”), which, before its repeal, was codified at 8 U.S.C. § 1182(c). Leon-
Medina asserted that he should not have been admitted to the United States and
should have been in proceedings regarding his admissibility to the United
States, not proceedings regarding his removal therefrom. The IJ rejected that
argument, because a different IJ had already granted Leon-Medina bond, which
would not have been allowed if he were inadmissible, and because illegal trans-
portation of aliens within the United States is not a ground for inadmissibility.
The IJ ruled that Leon-Medina was ineligible for cancellation of removal under
former § 212(c), because he was removable on account of an aggravated felony
conviction for which there was no corresponding ground of inadmissibility or
1
At the time Leon-Medina pleaded guilty, the statutory subsection was codified at
8 U.S.C. § 1324(a)(1)(B).
2
No. 08-60801
statutory counterpart.
Leon-Medina timely appealed to the BIA, arguing that his conviction of
illegally transporting aliens in violation of § 1324(a)(1)(A)(ii) is an aggravated
felony alien smuggling offense under 8 U.S.C. § 1101(a)(43)(N) that has an inad-
missibility statutory counterpart in 8 U.S.C. § 1182(a)(6)(E)(i), rendering him
eligible for relief under former INA § 212(c). He additionally asserted that the
IJ improperly relied on ICE’s decision to charge him with being removable in-
stead of being inadmissible and improperly considered the bond ruling to be a
binding determination that he was admissible.
The BIA ruled that § 1182(a)(6)(E)(i) is not the statutory counterpart to
§ 1101(a)(43)(N), because the two provisions use dissimilar language and do not
describe equivalent categories of offenses. The BIA determined that a conviction
of a violation of § 1324(a)(1)(A)(ii), standing alone, will not support a charge of
inadmissibility under § 1182(a)(6)(E)(i), because such a conviction concerns the
transportation of aliens who were already in the United States. The BIA noted
that § 1182(a)(6)(E)(i) is the statutory counterpart to 8 U.S.C. § 1227(a)(1)(E)(i),
making it less likely that § 1182(a)(6)(E)(i) is the statutory counterpart to
§ 1101(a)(43)(N). The BIA adopted the IJ’s ruling and dismissed the appeal.
In this court, Leon-Medina argues that the BIA and IJ erred by ruling that
there is no inadmissibility statutory counterpart to his conviction under § 1324-
(a)(1)(A)(ii), because § 1182(a)(6)(E)(i) is such a statutory counterpart. He main-
tains that the two statutory subsections are counterparts for purposes of former
INA § 212(c) eligibility, because both concern the same category of offenses, alien
smuggling. Citing Soriano v. Gonzales, 484 F.3d 318, 320-21 (5th Cir. 2007),
Leon-Medina asserts that the BIA erred by ruling that a conviction for a viola-
tion of § 1324(a)(1)(A)(ii), standing alone, will not support a charge of inadmis-
sibility under § 1182(a)(6)(E)(i). He contends that the BIA erred by analyzing
whether § 1182(a)(6)(E)(i) is the statutory counterpart to § 1101(a)(43)(N), be-
cause the proper issue for analysis is whether § 1182(a)(6)(E)(i) is the statutory
3
No. 08-60801
counterpart to § 1324(a)(1)(A)(ii).
Leon-Medina maintains that the ruling of the BIA is not entitled to defer-
ence, because the statutory provisions are unambiguous, and the BIA’s ruling
is unreasonable. He argues that the IJ’s ruling was erroneous, because (1) the
IJ determined that transporting aliens illegally within the United States is not
alien smuggling, (2) the IJ relied on ICE’s decision to charge him with being re-
movable as opposed to inadmissible, and (3) the IJ improperly allowed the impli-
cation of the bond determination to control his ruling.
We review legal arguments de novo. See Beltran-Resendez v. INS, 207
F.3d 284, 286 (5th Cir. 2000). We defer to the BIA’s interpretation of immigra-
tion regulations if that interpretation is reasonable. Hernandez-Castillo v.
Moore, 436 F.3d 516, 519 (5th Cir. 2006). Deference is not owed to the BIA’s in-
terpretation, however, if Congress has directly spoken to the precise question at
issue and the intent of Congress is clear. Martinez v. Mukasey, 519 F.3d 532,
542-43 (5th Cir. 2008).
Before its repeal, former INA § 212(c) provided that aliens lawfully admit-
ted for permanent residence who temporarily proceeded abroad and who were
not under an order of removal could be admitted at the discretion of the Attorney
General without regard to any specified ground of inadmissibility in § 1182(a).
See In re Silva, 16 I. & N. Dec. 26, 27 (BIA 1976). Although the statute was ad-
dressed to aliens in exclusion proceedings, it was interpreted by the BIA as also
allowing the Attorney General to consider waivers from LPR’s in removal pro-
ceedings who were similarly situated to aliens in exclusion proceedings. Id. To
determine whether a removee was “similarly situated” to a person in exclusion
proceedings, the BIA set forth a “comparable grounds” test that asked whether
the ground of removal was also a ground of inadmissibility. See In re Wadud, 19
I. & N. Dec. 182, 184-85 (BIA 1984).
In 1996, Congress repealed former INA § 212(c). Alvarez-Hernandez v.
Acosta, 401 F.3d 327, 329 (5th Cir. 2005). In 2001, however, the Court held in
4
No. 08-60801
INS v. St. Cyr, 533 U.S. 289 (2001), that relief under former INA § 212(c) re-
mained available for aliens whose convictions were obtained through plea agree-
ments and who, notwithstanding their convictions, would have been eligible for
former INA § 212(c) relief at the time of their guilty pleas. Hernandez-Castillo,
436 F.3d at 517-18 (citing St. Cyr, 533 U.S. at 326).
The availability of a former INA § 212(c) waiver thus revived, in 2004, the
BIA-promulgated 8 C.F.R. § 1212.3(f)(5), which provides that a LPR is ineligible
for a former INA § 212(c) waiver if the alien is removable on a ground that does
not have a statutory counterpart in § 1182. Thus, under the BIA’s comparable
ground analysis (also known as the statutory counterpart rule), an alien who is
removable on a ground that does not have a corresponding ground of inadmissi-
bility is ineligible for former INA § 212(c) relief. See Vue v. Gonzales, 496 F.3d
858, 860 (8th Cir. 2007).
There is no ground of inadmissibility in § 1182(a) that excludes aliens who
have been convicted of aggravated felonies. See In re Meza, 20 I. & N. Dec. 257,
259 (BIA 1991). This, however, does not preclude an alien who is removable on
account of an aggravated felony conviction from being eligible for relief under
former INA § 212(c). Id. Instead, eligibility for relief under former INA § 212(c)
for an alien who is removable because he was convicted of an aggravated felony
depends on whether the category of aggravated felony for which he was convict-
ed has an inadmissibility statutory counterpart. Id.
Following the revival of former INA § 212(c) relief in St. Cyr, the BIA re-
affirmed that the procedure set forth in Meza is the proper method for determin-
ing whether an alien who is removable because of an aggravated felony convic-
tion is eligible to seek relief under former INA § 212(c). See In re Blake, 23
I. & N. Dec. 722, 724-29 (BIA 2005), petition for review granted and remanded,
Blake v. Carbone, 489 F.3d 88 (2d Cir. 2007). This court has upheld the proce-
dure set forth in Blake. Vo v. Gonzales, 482 F.3d 363, 368-72 (5th Cir. 2007).
Therefore, the pertinent issue is whether there is a comparable ground of
5
No. 08-60801
inadmissibility, i.e., an inadmissibility statutory counterpart, to the category of
aggravated felony conviction for which Leon-Medina was adjudged removable.
See id. at 368. Leon-Medina’s argument that the pertinent issue is whether his
actual crime, not the category of his aggravated felony conviction, has an inad-
missibility statutory counterpart is without merit. See Meza, 20 I. & N. Dec. at
259; Blake, 23 I. & N. Dec. at 726-28.
For the same reason, Leon-Medina’s reliance on Soriano is misplaced.
There, we held that an alien who had been convicted of transporting illegal ali-
ens within the United States was inadmissible under § 1182(a)(6)(E)(i) because
his conduct included participation “in a scheme to aid other aliens in an illegal
entry.” Soriano, 484 F.3d at 320-31. Because the court in Soriano merely ruled
that the alien’s conduct fell within the ambit of § 1182(a)(6)(E)(i) and did not ad-
dress whether § 1182(a)(6)(E)(i) is the statutory counterpart of § 1101(a)(43)(N),
it is not controlling in this case. See id.
Whether a ground for “removal has a statutory counterpart in the provi-
sions for exclusion or inadmissibility turns on whether Congress has employed
similar language to describe substantially equivalent categories of offenses.”
Blake, 23 I. & N. Dec. at 728. There must be “a close textual link” between the
ground of removal and the ground of inadmissibility to establish that the ground
of inadmissibility is a statutory counterpart. Vo, 482 F.3d at 368. That there is
some overlap between the crimes comprising the category of aggravated felony
and the ground of inadmissibility is insufficient to show that the ground of inad-
missibility is a statutory counterpart. Blake, 23 I. & N. Dec. at 728
The category of Leon-Medina’s aggravated felony conviction is § 1101(a)-
(43)(N), which provides that convictions for violations of “paragraph (1)(A) or (2)
of section 1324(a) of this title (relating to alien smuggling)” are aggravated felo-
ny convictions except when the alien’s offense consists solely of assisting his
spouse, child, or parent. The statutory subsection that Leon-Medina asserts is
the inadmissibility counterpart, § 1182(a)(6)(E)(i), is titled “Smugglers,” and it
6
No. 08-60801
provides that “[a]ny alien who at any time knowingly has encouraged, induced,
assisted, abetted, or aided any other alien to enter or to try to enter the United
States in violation of law is inadmissible.”
The BIA ruled that § 1182(a)(6)(E)(i) is not the statutory counterpart of
§ 1101(a)(43)(N), because (1) the statutory subsections use dissimilar language,
(2) § 1101(a)(43)(N) includes offenses concerning aliens who were already in the
United States but § 1182(a)(6)(E)(i) does not, and (3) § 1182(a)(6)(E)(i) is the
statutory counterpart of § 1227(a)(1)(E)(i), which provides that
[a]ny alien who (prior to the date of entry, at the time of any entry,
or within 5 years of the date of any entry) knowingly has encour-
aged, induced, assisted, abetted, or aided any other alien to enter or
to try to enter the United States in violation of law is deportable.
The BIA properly applied its comparability analysis in this case. The lan-
guage used in §§ 1101(a)(43)(N) and 1182(a)(6)(E)(i) is distinct. Section 1182(a)-
(6)(E)(i) does not include offenses regarding aliens already within the United
States, but § 1101(a)(43)(N) does. See § 1324(a)(1)(A). The BIA appears to be
correct that § 1182(a)(6)(E)(i) more closely corresponds to § 1227(a)(1)(E)(i) than
to § 1101(a)(43)(N). Identical language in the two provisions renders both de-
portable and inadmissible “[a]ny alien who . . . knowingly has encouraged, in-
duced, assisted, abetted, or aided any other alien to enter or try to enter the
United States in violation of law.” §§ 1182(a)(6)(E)(i), 1227(a)(1)(E)(i). The BIA
thus correctly concluded that Congress intended the aggravated felony deporta-
bility ground at § 1101(a)(43)(N) to “serve difference purposes and encompass a
different class of conduct” from §§ 1182(a)(6)(E)(i) and 1227(a)(1)(E)(i).
Leon-Medina has not shown that the BIA erred by holding that he is ineli-
gible for cancellation of removal under former INA § 212(c). Because this pre-
cludes him from receiving relief, we do not reach his remaining arguments.
The petition for review is DENIED.
7