Richard Fitzgerald Barton v. U.S. Attorney General ( 2009 )

  •                                                         [DO NOT PUBLISH]
                       FOR THE ELEVENTH CIRCUIT
                        ________________________                   FILED
                                                          U.S. COURT OF APPEALS
                               No. 08-15440                 ELEVENTH CIRCUIT
                                                                JUNE 10, 2009
                           Non-Argument Calendar
                         ________________________            THOMAS K. KAHN
                           Agency No. A031-446-859
                     Petition for Review of a Decision of the
                          Board of Immigration Appeals
                                 (June 10, 2009)
    Before CARNES, MARCUS and ANDERSON, Circuit Judges.
          Richard Fitzgerald Barton, a native and citizen of Jamaica, petitions for
    review of the Board of Immigration Appeals’ judgment affirming the Immigration
    Judge’s denial of his requests for relief from removability under former INA §
    212(c), 8 U.S.C. § 1152(c) and INA § 212(h), 8 U.S.C. § 1152(h). Barton
    contends that he is admissible to the United States for permanent residence, as
    required for an adjustment of status under INA § 245, 8 U.S.C. § 1255, because he
    is entitled to a waiver of the convictions in his criminal history that would
    otherwise make him inadmissible. Specifically, he argues that the BIA erred by
    finding him statutorily ineligible for a waiver of his two robbery convictions under
    former INA § 212(c) and his marijuana conviction under INA § 212(h).
          Barton was admitted to the United States as a lawful immigrant in June
    1971. In 1988 he pleaded guilty to two charges of first degree robbery. In July
    2001 Barton was convicted of misdemeanor possession of up to one half ounce of
    marijuana. In April 2002 he was convicted of possession of a firearm by a
    convicted felon. A 2004 Notice to Appear alleged that Barton was removable (1)
    under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii) because of his
    conviction of an aggravated felony that was specifically a crime of violence under
    INA § 101(A)(43)(F), 8 U.S.C. § 1101(a)(43)(F); (2) under INA § 237(a)(2)(C), 8
    U.S.C. § 1227(a)(2)(C) because of his conviction of unlawful possession of a
    firearm; and (3) under INA § 237(a)(2)(A)(ii), 8 U.S.C. 1227(a)(2)(A)(ii) because
    of his conviction of two crimes of moral turpitude not arising out of a single
    scheme of criminal misconduct. Barton conceded removability but applied for an
    adjustment of status under § 245(a), 8 U.S.C. § 1255(a) and for waivers of
    inadmissibility under former INA § 212(c) and INA § 212(h). The IJ denied
    Barton’s request for relief of removal, and the BIA affirmed the IJ’s decision.
    Barton appeals.
          Barton does not challenge the exercise of discretionary relief but instead the
    determination that he was ineligible for that relief. We have jurisdiction to review
    that legal question. See INA § 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D) (“Nothing
    in subparagraph (B) or (C), or in any other provision of this chapter (other than
    this section) which limits or eliminates judicial review, shall be construed as
    precluding review of constitutional claims or questions of law raised upon a
    petition for review filed with an appropriate court of appeals in accordance with
    this section.”); INS v. St. Cyr, 
    533 U.S. 289
    , 307–08, 
    121 S. Ct. 2271
    , 2283 (2001)
    (noting the distinction between eligibility for discretionary relief and the favorable
    exercise of discretion).
           We review only the BIA’s decision because the BIA did not expressly adopt
    the IJ’s judgment or reasoning. See Al Najjar v. Ashcroft, 
    257 F.3d 1262
    , 1284
    (11th Cir. 2001). We review de novo the BIA’s legal determinations, and that
    review is “informed by the principle of deference articulated in Chevron, U.S.A.,
    Inc. v. Natural Resources Defense Council, Inc., 
    467 U.S. 837
    104 S. Ct. 2278
    81 L. Ed. 2d 894
     (1984).” Castillo-Arias v. U.S. Att’y Gen., 
    446 F.3d 1190
    , 1195
    (11th Cir. 2006) (citation and internal quotation marks omitted).
           Barton contends that the BIA erred in finding he was ineligible for a waiver
    of his armed robbery convictions under former INA § 212(c). That provision
    allows the Attorney General to waive an alien’s inadmissible status when an alien
    is a lawful permanent resident who has lived continuously in the United States for
    seven years.1 See INA § 212(c), 8 U.S.C. § 1182(c). Although § 212(c) originally
    provided for a waiver of exclusion for aliens who had gone abroad temporarily,
    the provision has been “extended to provide relief from deportation orders as
    well.” Asencio v. INS, 
    37 F.3d 614
    , 616 (11th Cir. 1994).
           A § 212(c) waiver is available to removable lawful permanent residents only
             Although Congress repealed § 212(c) in 1996, Barton, who pleaded guilty before the
    repeal, can still seek § 212(c) relief. See Alexandre v. U.S. Att’y Gen., 
    452 F.3d 1204
    , 1207
    (11th Cir. 2006).
    to the extent that the grounds for removal are analogous to grounds for exclusion
    under INA § 212(a), 8 U.S.C. § 1182(a). The BIA determined that although
    Barton’s robbery convictions had an analogous ground for exclusion under INA §
    212(a) to the extent that they were charged as crimes of moral turpitude, they did
    not to the extent that they were charged as aggravated felonies. For that reason,
    removability could not be waived under § 212(c) for the robbery convictions.
    Barton argues, however, that he should not be deprived of § 212(h) relief from the
    effect of his marijuana conviction just because the robbery convictions are both
    crimes of moral turpitude and aggravated felonies.
          To adjust status, an alien must be legally admissible into the United States.
    INA § 245(a), 8 U.S.C. § 1255(a). An alien who has been convicted of any
    controlled substance offense is inadmissible, although that conviction may be
    waived under § 212(h). INA § 212(a)(2)(A)(i)(II), (a)(2)(F), 8 U.S.C. §
    1182(a)(2)(A)(i)(II), (a)(2)(F). In particular, a marijuana conviction involving
    simple possession of thirty grams or less may be waived, at the discretion of the
    Attorney General, for an alien who is the spouse, parent, or child of an American
    citizen or lawful permanent resident if the denial of admission would “result in
    extreme hardship” to the American citizen or permanent resident. INA §
    212(h)(1)(B), 8 U.S.C. § 1182(h)(1)(B).
          However, an alien who has “been convicted of an aggravated felony” is not
    eligible for a § 212(h) waiver. INA § 212(h), 8 U.S.C. § 1182(h). A theft offense
    is an aggravated felony. INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G). Even if
    the BIA had waived Barton’s robbery convictions, waiver of an alien’s conviction
    under former INA § 212(c) does not operate as “a pardon or expungement of the
    conviction itself” and such a conviction can still serve as a basis for deportation.
    See In re Balderas, 20 I. & N. Dec. 389, 391 (1991); cf. Ali v. U.S. Att’y Gen., 
    443 F.3d 804
    , 809 (11th Cir. 2006) (holding that “state convictions expunged under a
    rehabilitative statute are still convictions for immigration purposes” (citation and
    internal quotation marks omitted)).
          Barton is not eligible for a § 212(h) waiver of his marijuana conviction
    because his robbery convictions are aggravated felonies. His unwaived marijuana
    conviction is sufficient to deny him relief of removal. See INA §
    212(a)(2)(A)(i)(II), 8 U.S.C. § 1182(a)(2)(A)(i)(II). Thus, the BIA did not err in
    affirming the IJ’s denial of Barton’s request for relief from removal.