Leon De Nobrega v. U.S. Attorney General , 406 F. App'x 371 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-11783 ELEVENTH CIRCUIT
Non-Argument Calendar DECEMBER 22, 2010
________________________ JOHN LEY
CLERK
Agency No. A036-475-234
LEON DE NOBREGA,
lllllllllllllllllllllPetitioner,
versus
U.S. ATTORNEY GENERAL,
lllllllllllllllllllllRespondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(December 22, 2010)
Before BARKETT, MARCUS and FAY, Circuit Judges.
PER CURIAM:
Leon De Nobrega, a citizen of Guyana and permanent resident of the United
States, petitions for review of the Board of Immigration Appeals’s (“BIA”)
decision, which affirmed the Immigration Judge’s (“IJ”) final order of removal and
denied De Nobrega’s application for a waiver of removal under former
Immigration and Nationality Act § 212(c), 8 U.S.C. § 1182(c). De Nobrega argues
that the BIA violated his right to due process by applying its decisions in Matter of
Blake, 23 I & N. Dec. 722 (BIA 2005), and Matter of Brieva-Perez, 23 I & N Dec.
766 (BIA 2005) retroactively to his case. De Nobrega also contends that the BIA
erred when it concluded that his ground of deportation did not have a statutory
counterpart in the grounds of inadmissibility. The government responds that we
lack jurisdiction over De Nobrega’s petition because he was found to be
removable based on a conviction for an aggravated felony, and his petition does
not raise any colorable constitutional claims or questions of law. For the reasons
stated below, we conclude that we have jurisdiction, but we deny the petition for
review on the merits.
I.
In 2004, the Department of Homeland Security issued a Notice to Appear to
Nobrega, charging that he was removable from the United States because he had
been convicted of an aggravated felony crime of violence and a crime involving
moral turpitude. Specifically, the notice alleged that, on June 26, 1984, De
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Nobrega was convicted in Bronx County, New York, of the offense of murder in
the second degree, in violation of New York Penal Law § 125.25. De Nobrega
admitted the allegations in the Notice to Appear, conceded removability, and
requested a waiver of removal under former INA § 212(c). The IJ denied De
Nobrega’s application for § 212(c) relief based on Matter of Brieva-Perez, which
held that an alien found to be removable based on an aggravated felony conviction
for a crime of violence may not apply for § 212(c) relief because that ground of
deportation does not have a statutory counterpart in any of the grounds of
inadmissibility under INA § 212(a).
De Nobrega appealed to the BIA, but the BIA dismissed his appeal. The
BIA observed that the statutory counterpart test applied in Matter of Brieva-Perez
was based on well-settled precedent that predated De Nobrega’s 1984 guilty plea.
Therefore, the BIA concluded that applying the statutory counterpart test to De
Nobrega’s conviction did not result in an impermissible retroactive effect. The
BIA explained that I.N.S. v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d
347 (2001), was not controlling because De Nobrega was not eligible for § 212(c)
relief at the time when he entered his plea. Finally, the BIA stated that De
Nobrega did not meaningfully challenge the IJ’s conclusion that his aggravated
felony ground of deportation did not have a statutory counterpart in the grounds
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for inadmissibility. Accordingly, the BIA affirmed the IJ’s conclusion that De
Nobrega was not eligible for § 212(c) relief.
II.
As an initial matter, we must consider whether we may exercise jurisdiction
over De Nobrega’s petition. We review our own subject matter jurisdiction de
novo. Arias v. U.S. Att’y Gen., 482 F.3d 1281, 1283 (11th Cir. 2007). We
generally lack jurisdiction over a petition for review filed by an alien who is
removable on account of a conviction for an aggravated felony. INA § 242
(a)(2)(C) 8 U.S.C. § 1252(a)(2)(C); INA § 237(a)(2)(A)(iii); 8 U.S.C.
§ 1227(a)(2)(A)(iii). Nevertheless, we retain jurisdiction to consider
constitutional claims or questions of law. INA § 242(a)(2)(D), 8 U.S.C.
§ 1252(a)(2)(D). We have explained that § 1252(a)(2)(D) only confers
jurisdiction over a “colorable” constitutional claim, meaning a claim that has
“some possible validity.” Arias, 482 F.3d at 1284 and n.2 (quotations omitted).
In order to determine whether De Nobrega’s legal claims are colorable,
such that may exercise jurisdiction over them, we must examine the merits of
those claims. See Oguejiofor v. Att’y Gen., 277 F.3d 1305, 1308-10 (11th
Cir.2002) (holding that appellate jurisdiction was lacking over a petitioner’s
constitutional claims after determining that they lacked merit). Because De
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Nobrega’s claims are not squarely foreclosed by precedent, we conclude that we
have jurisdiction to review them. Nevertheless, for the reasons described below,
De Nobrega’s arguments fail on the merits.
III.
We review the BIA’s legal determinations de novo. De la Rosa v. U.S. Att’y
Gen., 579 F.3d 1327, 1335 (11th Cir. 2009), cert. denied, 130 S.Ct. 3272 (2010).
Since 1988, Congress has provided that aliens who commit certain aggravated
felonies are deportable from the United States. INA §§ 101(a)(43),
237(a)(2)(A)(iii); 8 U.S.C. §§ 1101(a)(43), 1227(a)(2)(A)(iii); Anti-Drug Abuse
Act of 1988, Pub.L.No. 100-690, §§ 7342, 7344, 102 Stat. 4181 (1988). The
definition of “aggravated felony” applies to all convictions, regardless of when
they occurred. 8 U.S.C. § 1101(a)(43). Thus, an alien who has committed an
aggravated felony is deportable from the United States even if the conviction
occurred before Congress added the aggravated felony provisions to the INA.
Former INA § 212(c) authorizes the Attorney General to permit a lawful
permanent resident who leaves the United States to reenter the country even
though the individual would normally be ineligible for admission under the INA.
Congress repealed INA § 212(c) as part of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (“IIRIRA”). St. Cyr, 533 U.S. at 297, 121
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S.Ct. at 2277. In St. Cyr, the Supreme Court concluded that the repeal of § 212(c)
did not apply retroactively to aliens who pled guilty before the effective date of the
IIRIRA. The Court recognized that Congress has the power to make a statute
retroactive, but it observed that there is a general presumption against
retroactivity. Id. at 315-16, 121 S.Ct. at 2287-88. The Court concluded that
Congress had not expressed a clear intent to make the repeal of § 212(c)
retroactive. Id. at 314–20, 121 S.Ct. at 2287–90. The Court also noted that
applying the statute retroactively would upset the settled expectations of aliens
who pled guilty in reliance on the fact that they could later apply for § 212(c)
relief. Id. at 320-25, 121 S.Ct. at 2290-93. In the absence of a clear Congressional
intent to the contrary, the Court declined to give the statute such an effect. Id. at
326, 121 S.Ct. at 2293.
By its terms, former INA § 212(c) only applies to aliens in exclusion
proceedings who have been found to be inadmissible. See De la Rosa, 579 F.3d at
1329 (describing the history of INA § 212(c)). Nevertheless, for several decades,
the BIA has permitted certain aliens in deportation proceedings to apply for
§ 212(c) relief as well. Id. at 1329-30. Specifically, the BIA allowed an alien in
deportation proceedings to apply for § 212(c) relief if his ground of deportability
was comparable to one of the statutory grounds for inadmissibility in INA
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§ 212(a). Matter of Wadud, 19 I & N Dec. 182, 184-85 (BIA 1984); Matter of
Granados, 16 I & N Dec. 726, 728 (BIA 1979); see also De la Rosa, 579 F.3d at
1330-31 (describing the evolution of the comparable grounds test). The purpose
of this extension “was to equalize the treatment of aliens who were deportable
versus excludable on equivalent grounds.” Farquharson v. U.S. Att’y Gen., 246
F.3d 1317, 1323 (11th Cir. 2001).
In 2004, the agency promulgated 8 C.F.R. § 1212.3(f)(5), which provides
that an alien who is deportable or removable may not apply for § 212(c) relief if
his ground of deportation or removal does not have a statutory counterpart in the
grounds of inadmissibility. We have recognized that 8 C.F.R. § 1212.3(f)(5) is a
codification of the BIA’s preexisting case law concerning the comparable grounds
test. De la Rosa, 579 F.3d at 1332. In Matter of Blake, the BIA explained that a
ground of removal is a statutory counterpart of a ground of inadmissibility if
“Congress has employed similar language to describe substantially equivalent
categories of offenses.” 23 I & N. Dec. at 728.
Although De Nobrega phrases his argument in terms of due process, a
waiver of inadmissibility under § 212(c) is a purely discretionary form of relief.
See Oguejiofor, 277 F.3d at 1309 (explaining that an alien does not have a
constitutionally protected right to be eligible for discretionary relief). Therefore,
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De Nobrega cannot raise a due process challenge to the BIA’s determination that
he was ineligible for § 212(c) relief. De Nobrega’s retroactivity argument is more
properly viewed as a question of law, rather than a constitutional claim.
We conclude that the BIA did not err in applying Matter of Blake and the
statutory counterpoint test to De Nobrega’s case. The statutory counterpart rule is
based on longstanding BIA precedent that predates De Nobrega’s 1984 conviction.
See Matter of Granados, 16 I & N Dec. at 728 (1979 case holding that § 212(c)
relief is only available to an alien in deportation proceedings if the alien’s ground
of deportability is also a ground of inadmissibility); see also De la Rosa, 579 F.3d
at 1330-32 (describing the evolution of the statutory counterpart test explaining
that the statutory counterpart rule is the agency’s most recent formulation of the
comparable grounds test). Therefore, the application of Matter of Blake and the
statutory counterpart test to his case did not result in an impermissible retroactive
effect.
IV.
As noted above, we review the BIA’s legal determinations de novo. De la
Rosa, 579 F.3d at 1335. Under the prior panel precedent rule, a prior decision of a
panel of this Court is binding on all subsequent panels unless and until the panel’s
decision is overturned by the Supreme Court or by this Court sitting en banc.
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Smith v. GTE Corp., 236 F.3d 1292, 1300 n.8 (11th Cir. 2001).
In Matter of Blake, the BIA adopted a categorical approach to the statutory
counterpart test. The BIA explained that two offenses are statutory counterparts
only if “Congress has employed similar language to describe substantially
equivalent categories of offenses.” 23 I & N Dec. at 728.
In Matter of Brieva-Perez, the BIA applied this categorical approach and
concluded that the respondent’s aggravated felony conviction for a crime of
violence was not equivalent to a crime involving moral turpitude. 23 I & N Dec.
at 773. The BIA explained that there does not have to be a “perfect symmetry”
between the ground of deportation and the ground of inadmissibility, but it
reasoned that there “must be a closer match than the incidental overlap” between
the crime of violence ground and the crime involving moral turpitude ground. Id.The BIA pointed out that Congress had used “distinctly different terminology” to
describe the two offenses, and that there was a “significant variance” in the types
of offenses that fell into each category. Id.In Blake v. Carbone, 489 F.3d at 101-04, the Second Circuit rejected the
BIA’s categorical approach to the statutory counterpoint test. The Second Circuit
reasoned that the analysis should focus on the alien’s particular criminal offense,
rather than the category of deportation at issue. Id. at 103. Under the Second
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Circuit’s approach, an alien found to be removable based on an aggravated felony
may apply for § 212(c) relief if his conviction also would be considered a crime
involving moral turpitude. Id. at 104.
In De la Rosa, we adopted the categorical approach to the statutory
counterpoint test. De la Rosa, 579 F.3d at 1337-40. We explained that a
reviewing court must determine whether the alien’s statutory ground of removal is
substantially equivalent to one of the grounds of exclusion under INA § 212(a).
Id. at 1339. Under that test, it is irrelevant whether the actual offense of
conviction would also be a crime involving moral turpitude—the focus is on the
statutory categories in the INA. Id. We declined to adopt the Second Circuit’s
alternative, offense-based approach. Id. at 1337.
Although De Nobrega urges us to adopt the offense-based approach to the
statutory counterpart test laid out by the Second Circuit in Blake v. Carbone, his
argument is foreclosed by our decision in De la Rosa. In that case, we adopted the
BIA’s categorical approach to the statutory counterpart test, rather than Second
Circuit’s alternative approach. See De la Rosa, 579 F.3d at 1337-40. Under the
prior panel precedent rule, we are bound to follow De la Rosa unless it is
overruled by the Supreme Court or by this Court sitting en banc. See Smith, 236
F.3d at 1300 n.8.
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Applying the categorical approach, we conclude that the BIA did not err in
finding that De Nobrega’s ground of deportation is not a counterpart of any of the
grounds of inadmissibility in INA § 212(a). As the BIA observed in Matter of
Brieva-Perez, Congress used significantly different language to describe the two
categories, and each category includes certain types of offenses not covered by the
other category. Matter of Brieva-Perez, 23 I & N Dec. at 773. Therefore, the BIA
correctly ruled that De Nobrega was ineligible for § 212(c) relief.
Accordingly, after review of the administrative record and the parties’
briefs, we deny De Nobrega’s petition for review.
PETITION DENIED.
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