Kao Vue v. Alberto Gonzales

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-3515
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*
Kao Vue, *
*
Petitioner, *
*
v. * Petition for Review from the Board
* of Immigration Appeals.
Alberto Gonzales, Attorney General *
of the United States of America, *
*
Respondent. *
*
*
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Submitted: June 13, 2007
Filed: August 7, 2007 (Corrected 10/31/07)
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Before BYE, RILEY, and BENTON, Circuit Judges.
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BENTON, Circuit Judge.
Kao Vue challenges the final order of the Board of Immigration Appeals (BIA)
denying his special motion to reopen for consideration of relief under repealed §
212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c). Having
jurisdiction under 8 U.S.C. § 1252(a)(2)(D), this court affirms.
I.
In December 1989, Vue, a Laotian citizen, was admitted to the United States
as a refugee. In 1991, he became a lawful permanent resident. In 1993, he pled guilty
to first degree assault under Minn. Stat. § 609.221.
Due to this conviction, the Immigration and Naturalization Service charged that
he was subject to deportation on two legal grounds: committing (1) a crime involving
moral turpitude (CIMT), 8 U.S.C. § 1251(a)(2)(A)(i), and (2) an aggravated felony –
a crime of violence, 8 U.S.C. § 1251(a)(2)(A)(iii), as defined in 8 U.S.C. §
1101(a)(43). Vue admitted deportability. The immigration judge found him
deportable on both grounds. The BIA affirmed.
Vue twice moved the BIA to reopen under repealed § 212(c) of the INA,1 which
waives deportation under certain circumstances. The BIA denied the motions. Vue
appeals.
II.
This court reviews the BIA’s determinations on questions of law de novo, but
gives substantial deference to its statutory interpretations. Jamieson v. Gonzales, 424
F.3d 765, 767 (8th Cir. 2005); Habtemicael v. Ashcroft, 370 F.3d 774, 779 (8th Cir.
2004); see also Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S.
837, 842-43 (1984) (“If the intent of Congress is clear, that is the end of the matter,”
1
Although § 212(c) discretionary relief was repealed by the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996, the Supreme Court held “that §
212(c) relief remains available for aliens, like respondent, whose convictions were
obtained through plea agreements and who, notwithstanding those convictions, would
have been eligible for § 212(c) relief at the time of their plea under the law then in
effect.” See INS v. St. Cyr, 533 U.S. 289, 326 (2001).
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but “if the statute is silent or ambiguous with respect to the specific issue, the question
for the court is whether the agency’s answer is based on a permissible construction of
the statute”).
A.
Vue contends that the BIA violated his “guarantee of equal protection under the
constitution by denying his motion to reopen to seek § 212(c) relief.” That section
provided:
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 General. . . .
By its literal language, § 212(c) relief was available only in exclusion
proceedings, not deportation proceedings. See St. Cyr, 533 U.S. at 295 (Ҥ 212(c) was
literally applicable only to exclusion proceedings”). However, judicial and
administrative decisions have expanded the scope of § 212(c) to allow waivers of
deportation under certain circumstances. See generally id. at 295 (§ 212(c) has “been
interpreted by the Board of Immigration Appeals (BIA) to authorize any permanent
resident alien with a lawful unrelinquished domicile of seven consecutive years to
apply for a discretionary waiver from deportation”); see also Francis v. INS, 532 F.2d
268, 273 (2d Cir. 1976) (equal protection clause violated when § 212(c) waiver was
available to lawful permanent residents who departed and returned to the United
States – but unavailable to those who never left the country).
The BIA has adopted the statutory counterpart analysis, where “section 212(c)
can only be invoked in a deportation hearing where the ground of deportation charged
is also a ground of inadmissibility.” In re Wadud, 19 I. & N. Dec. 182, 184 (B.I.A.
1984). This court, like seven other circuits, approved this analysis. See Soriano v.
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Gonzales, 489 F.3d 909, 909 (8th Cir. 2006) (per curiam), citing In re Blake, 23 I. &
N. Dec. 722, 723-29 (B.I.A. 2005) (“We agree with the BIA that Soriano was
ineligible for a waiver of removability . . . because the ground for which he was found
removable . . . does not have a statutory counterpart in the grounds of inadmissibility
listed in INA § 212(a)”); United States v. Vieira-Candelario, 6 F.3d 12, 13-14 (1st
Cir. 1993) (“relief is only available, however, if the ground for deportation is one for
which an alien could initially have been excluded from the country under section
212(a) of the Act”); Caroleo v. Gonzales, 476 F.3d 158, 162 (3d Cir. 2007) (“In order
for Caroleo to establish his eligibility for § 212(c) relief, he must demonstrate . . . that
the basis for his removal has a ‘statutory counterpart’ ground for exclusion in INA §
212(a)”); Chow v. INS, 12 F.3d 34, 38 (5th Cir. 1993) (“a § 212(c) waiver is available
in deportation proceedings only to those aliens who have been found deportable under
a charge of deportability for which there is a comparable ground of excludability”);
Gjonaj v. INS, 47 F.3d 824, 827 (6th Cir. 1995) (“Numerous courts have held there
must be a comparable ground of exclusion for an alien in deportation proceedings to
be eligible for section 212(c) relief. We decline to change this well-established rule”);
Valere v. Gonzales, 473 F.3d 757, 762 (7th Cir. 2007) (“Because there is no statutory
counterpart in § 212(a) for his crime of indecent assault of a minor, Valere is not
similarly situated to an inadmissible, returning alien who is eligible to apply for §
212(c) relief”); Abebe v. Gonzales, __ F.3d __, No. 05-76201, slip op. 8099, 8123 (9th
Cir. filed July 9, 2007) (§ 212(c) relief denied because “the aggravated felony/sexual
abuse of a minor ground under which Abebe was found deportable is not substantially
identical to the CIMT ground of exclusion”); Rodriguez-Padron v. INS, 13 F.3d
1455, 1459 (11th Cir. 1994) (§ 212(c) relief not available when there was no
comparable ground of exclusion).
Here, Vue’s conviction of an aggravated felony – a crime of violence – made
him deportable. Because this ground of deportation does not have a statutory
counterpart in § 212(a), he cannot claim § 212(c) relief. This also defeats his equal
protection claim. See Valere, 473 F.3d at 762 (“If the removable alien’s crime of
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conviction is not substantially equivalent to a ground of inadmissibility under §
212(a), then the removable alien is not similarly situated for purposes of claiming an
equal protection right to apply for § 212(c) relief”); Rodriguez-Padron, 13 F.3d at
1459 (“the denial of availability of 212(c) waiver to Petitioners has a rational basis
and consequently does not violate their right to equal protection of the law”).
Vue urges that this court follow Blake v. Carbone, 489 F.3d 88, 100 (2d Cir.
2007), which concludes that the “comparable grounds analysis fails to comport with
Francis.” See Francis v. INS, 532 F.2d 268, 273 (2d Cir. 1976). Although the
second circuit recognized its “holding is at odds with that reached by several other
circuits,” it determined that “if petitioners’ underlying aggravated felony offenses
could form the basis of a ground of exclusion, they will be eligible for a § 212(c)
waiver.” See Blake, 489 F.3d at 103-104. According to the court, “Were we to
approve of these other courts’ formulaic approach – limiting ourselves only to the
language in the relevant grounds of deportation and exclusion – we would be ignoring
our precedent that requires us to examine the circumstances of the deportable alien,
rather than the language Congress used to classify his or her status.” Id. at 104.
The Blake case, however, is contrary to this court’s precedent in Soriano –
which is controlling. See Soriano, 489 F.3d at 909 (petitioner ineligible for a waiver
of removability because there was no statutory counterpart in the grounds of
inadmissibility).2 Moreover, because there is no statutory counterpart, Vue is not
similarly situated to an inadmissible alien. See Campos v. INS, 961 F.2d 309, 316
(1st Cir. 1992) (no equal protection violation because “Campos is being treated no
differently from any other alien convicted of a crime that is a ground for deportation
but has no corresponding ground for exclusion”); Caroleo, 476 F.3d at 163 (“The
2
As relevant precedent of this court, Vue cites Shah v. Reno, 184 F.3d 719 (8th
Cir. 1999). Shah considers only jurisdiction and retroactivity. Id. at 724. Shah does
not address equal protection or the statutory counterpart analysis.
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principle that § 212(c) is available in removal proceedings only where the ground for
removal has a statutory counterpart ground for exclusion has been firmly in place and
consistently applied since at least 1991”); Vo v. Gonzales, 482 F.3d 363, 372 (5th Cir.
2007) (§ 212(c) relief “has only been extended to those for whom the ground of
deportability has a comparable ground of inadmissibility. Vo does not fall into this
limited category . . . and there is therefore no equal protection violation”); Valere, 473
F.3d at 762 (“the requirement of a comparable ground of exclusion in § 212(a) – a
“statutory counterpart”– is what makes a removable, nondeparting alien similarly
situated to an inadmissible alien in the first place”); Komarenko v. INS, 35 F.3d 432,
435 (9th Cir. 1994) (petitioner “not denied his constitutional right to equal protection
of the law” when the ground for deportation was not “substantially identical” to the
ground for exclusion); Farquharson v. U.S. Attorney Gen., 246 F.3d 1317, 1325
(11th Cir. 2001) (“we hold that the BIA's decision that Farquharson is ineligible for
a waiver of deportation under § 212(c) of the INA does not violate Farquharson's right
to equal protection”). See also Jurado-Gutierrez v. Greene, 190 F.3d 1135, 1152
(10th Cir. 1999) (“we need not determine whether deportable and excludable aliens
are similarly situated because, even assuming they are, we find a rational basis for the
differentiation in § 212(c)”); Avilez-Granados v. Gonzales, 481 F.3d 869, 873 (6th
Cir. 2007) (citing In re Azurin, 23 I. & N. Dec. 695, 698 (B.I.A. 2005), and holding
that petitioner married to American citizen “is ineligible to apply for relief under INA
§ 212(c), as his crime lacks a statutory counterpart ground of inadmissibility in INA
§ 212(a). . . . However, because he should have been granted an opportunity to apply
for an adjustment of status before the IJ, we remand”). See generally Kim v.
Gonzales, 468 F.3d 58, 63 (1st Cir. 2006) (“Congress never itself created waiver
authority for those deported for aggravated felonies or crimes of violence . . . and
Congress’ own views on the subject of waivers are reflected in its repeal of section
212(c) in its entirety”).
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B.
Vue next contends that the BIA’s interpretation of INA § 212(c) violates the
St. Cyr holding that relief be determined by the law in effect at the time of the plea
agreement. Vue similarly asserts that the BIA abused its discretion in denying the
motion to reopen “because it departs from established policies recognizing that a
serious assault constitutes a crime involving moral turpitude.” These contentions rely
on the premise that Vue could have obtained § 212(c) relief in 1993 when he pled
guilty.
At the time of his plea, the law was well settled that a deportee could obtain §
212(c) relief only if there was a comparable ground for inadmissibility. See, e.g.,
Campos v. INS, 961 F.2d 309, 312-13 (1st Cir. 1992) (refusing 212(c) relief to alien
charged with an offense not listed in 212(a)); Chow, 12 F.3d at 38 (“a § 212(c) waiver
is available in deportation proceedings only to those aliens who have been found
deportable under a charge of deportability for which there is a comparable ground of
excludability”); Leal-Rodriguez v. INS, 990 F.2d 939, 952 (7th Cir. 1993) (“To hold
that the same form of discretionary relief must be available to aliens deportable for
different, but arguably comparable, violations is to interfere again, on an even weaker
rationale, with Congress’s scheme for regulating aliens”); Cabasug v. INS, 847 F.2d
1321, 1326 (9th Cir. 1988) (§ 212(c) relief unavailable unless the ground of
deportation was "substantially identical in the exclusion and deportation statutes”).
See also In re Montenegro, 20 I. & N. Dec. 603, 604 (B.I.A. 1992) (“a section 212(c)
waiver is available in deportation proceedings only to those aliens who have been
found deportable under a charge of deportability for which there is a comparable
ground of excludability”); In re Meza, 20 I. & N. Dec. 257, 258 (B.I.A. 1991) (“a
section 212(c) waiver is available in deportation proceedings only to those aliens who
have been found deportable under a ground of deportability for which there is a
comparable ground of excludability”); In re Hernandez-Casillas, 20 I. & N. Dec. 262-7-
(B.I.A. 1990, A.G. 1991) (“a lawful permanent resident of the United States, who has
been found deportable under section 241(a)(2) . . . is ineligible for a waiver under
section 212(c) of the Act because there is no ground of exclusion which is comparable
to the entry without inspection ground of deportation”); see also In re Wadud, 19 I.
& N. Dec. at 184 (same); In re Granados, 16 I. & N. Dec. 726, 728 (B.I.A. 1979)
(same). See generally Valere v. Gonzales, 473 F.3d 757, 762 (7th Cir. 2007)(“The
statutory counterpart rule for deportees seeking to invoke § 212(c) appears in the case
law as far back as the late 1970s”).
Vue cannot establish that he would have been eligible for § 212(c) relief when
he pled guilty. Similarly, his contention – that the BIA’s interpretation of 8 C.F.R. §
1212.3(f)(5) is not reasonable because it is “based on a regulation enacted more than
10 years after” his plea – also fails. 8 C.F.R. § 1212.3(f)(5) provides:
An application for relief under former section 212(c) of the Act
shall be denied if . . . . The alien is deportable under former
section 241 of the Act or removable under section 237 of the Act
on a ground which does not have a statutory counterpart in section
212 of the Act.”
8 C.F.R 1212.3(f)(5) merely codifies established law. See Valere, 473 F.3d at 761(rejecting the argument that § 1212.3(f)(5) impaired petitioners right to § 212(c)
eligibility because he “never had any right to § 212(c) eligibility. . . . Section
1212.3(f)(5) is simply the agency’s codification of this preexisting, judicially created
rule”); see also Blake, 489 F.3d at 98-99 (“The statutory counterpart rule does nothing
more than crystallize the agency’s preexisting body of law and therefore cannot have
an impermissible retroactive effect”).
Vue’s conviction of an aggravated felony was one of the two legal grounds for
deportation. That his aggravated felony was also a CIMT is irrelevant. See Kim v.
Gonzales, 468 F.3d 58, 62 (1st Cir. 2006) (“we conclude that it would not matter even
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if Kim’s actions in this instance could be considered a crime of moral turpitude as well
as an aggravated felony and crime of violence” because “there is no waiver authority
for one who is excluded as an aggravated felon or one who commits a crime of
violence”) (emphasis in original); Caroleo v. Gonzales, 476 F.3d 158, 168 (3d Cir.
2007) (“It is therefore irrelevant that Caroleo's conviction for attempted murder could
have subjected him to removal as an alien convicted of a crime of moral turpitude . .
. . Once the government has categorized his offense as a ‘crime of violence’ in
removal proceedings . . . our § 212(c) inquiry focuses on whether this statutory
ground for removal is substantially equivalent to any of the statutory grounds for
exclusion contained in INA § 212(a)”) (emphasis in original). The BIA thus did not
abuse its discretion in denying Vue’s motions to reopen. See INS v. Doherty, 502
U.S. 314, 323 (1992) (“The granting of a motion to reopen is . . . discretionary” and
“the Attorney General has broad discretion to grant or deny such motion”).
III.
The judgment of the BIA is affirmed, and the petition denied.
BYE, Circuit Judge, concurring.
Although I agree with the reasoning and result in Blake v. Carbone, 489 F.3d
88 (2d Cir. 2007), our panel is bound by the now-published decision in Soriano v.
Gonzales, 489 F.3d 909 (8th Cir. 2006). I therefore concur in affirming the order of
the Board of Immigration Appeals.
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