Emmanuel Obi v. Eric Holder, Jr. , 558 F.3d 609 ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-1260
E MMANUEL E. O BI,
Petitioner,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A28-636-542
S UBMITTED F EBRUARY 18, 2009—D ECIDED M ARCH 3, 2009 Œ
Before B AUER, R IPPLE, and K ANNE, Circuit Judges.
P ER C URIAM. Facing removal proceedings, Emmanuel
Obi, a native of Nigeria, applied for cancellation of re-
Œ
We granted the parties’ joint motion to waive oral argument.
See F ED . R. A PP . P. 34(f); C IR . R. 34(f). Thus, the appeal is
submitted on the briefs and the record.
2 No. 08-1260
moval. The immigration judge concluded that because Obi
had been convicted of marriage fraud in 1996, he was
ineligible for relief under IIRIRA, which did not take effect
until 1997. The Board of Immigration Appeals affirmed,
and Obi petitions for review, arguing as a matter of first
impression that the IJ erred in applying the IIRIRA bar to
a conviction that preceded that law’s effective date. We
deny the petition.
Obi, who is a citizen of Nigeria, entered the United States
on a student visa in 1984. That same year, he married a
United States citizen who filed an I-130 petition on his
behalf. The marriage ended in 1986, and a few weeks later
the Immigration and Naturalization Service denied Obi’s
request to adjust his status based on the marriage, conclud-
ing that he had married solely for immigration benefit. In
1988, Obi married a second United States citizen and was
granted permanent residency based on the marriage. This
marriage was also a sham, however, and in 1996 Obi was
found guilty of two counts of visa fraud for using the fake
marriage to stay in the United States. See 18 U.S.C. § 1546.
Obi absconded pending sentencing and, when officials
caught him in 1998, he was convicted of failing to appear
for sentencing as part of the conditions of his release. See
18 U.S.C. § 3146(a)(1). After serving his sentence for all
three charges, Obi (whose second marriage did not survive
his criminal convictions) married a third United States
citizen in 2001.
Two years later, immigration officials charged Obi with
removability based on his visa-fraud convictions. Obi
conceded that he was removable, but asked that his
No. 08-1260 3
removal be canceled. See 8 U.S.C. § 1229b(a). At a hearing
in March 2004, a government lawyer argued that Obi was
statutorily ineligible for this form of discretionary relief: to
be eligible, Obi had to show that he had been a lawful
permanent resident for five years and had resided contin-
uously in the United States for seven years, and his visa-
fraud convictions terminated his accrual of residency
under the so-called “stop-time rule.” See id. § 1229b(d)(1).
Immigration Judge Craig Zerbe rejected this contention,
however, because at an earlier hearing (one that is
not documented in the record on appeal) a different
government lawyer had agreed that the stop-time rule
applied only to the requirement of a seven-year residency,
not the five-year permanent residency, and that Obi
had therefore accrued enough time under both rules.
Another hearing was scheduled to address Obi’s request
for relief.
In the meantime Immigration and Customs Enforce-
ment detained Obi and lodged three more charges of
removability: 1) that he was inadmissible at the time he
became a permanent resident because he had “procured
his admission by fraud,” see 8 U.S.C. § 1227(a)(1)(A);
2) that he had been convicted of two or more crimes of
moral turpitude, see id. § 1227(a)(2)(A)(ii); and 3) that his
failure-to-appear conviction was an aggravated felony, see
id. § 1227(a)(2)(A)(iii). Obi denied that he was removable
on these additional grounds, and proceeded to hearing
with new counsel before Immigration Judge Robert
Vinikoor.
Judge Vinikoor rejected the government’s additional
theories of removability but concluded nonetheless that
4 No. 08-1260
Obi remained removable under 8 U.S.C. § 1227(a)(3)(B)(iii)
based on the visa-fraud convictions alone. The IJ next
dismissed Obi’s argument that the government had
“stipulated” he was statutorily eligible for relief, noting
that there was no record of any such agreement and that
even if there was, it could not override the statutory
requirements. Since Obi had obtained his permanent
residency by fraud, he was statutorily ineligible for cancel-
lation of removal for permanent residents. The IJ noted,
however, that Obi could apply for a different kind of
cancellation of removal reserved for certain nonpermanent
residents. See 8 U.S.C. § 1229b(b)(1).
At a final hearing, Obi pursued that relief. The IJ con-
cluded that, under a statutory provision enacted as part of
the Illegal Immigration Reform and Immigrant Responsi-
bility Act of 1996, Obi’s visa-fraud conviction disqualified
him for cancellation of removal for certain nonpermanent
residents. See 8 U.S.C. §§ 1229b(b)(1)(C), 1227(a)(3)(B)(iii).
Obi responded that his conviction should not count against
him because it preceded IIRIRA (he was convicted on April
10, 1996, nearly one year before IIRIRA took effect on April
1, 1997) and would give that law an “impermissibly
retroactive effect.” The IJ rejected the argument, however,
because although Obi’s conviction preceded IIRIRA’s
effective date, his removal proceedings (which began in
2003) did not. And, continued the IJ, IIRIRA applied to
all removal proceedings initiated after the law’s effective
date. The IJ therefore ordered Obi removed, and the BIA
affirmed.
Obi now appeals to this court, but before we can reach
the merits of his arguments we must first confirm that we
No. 08-1260 5
have jurisdiction to hear his case. Congress has excluded
from our jurisdiction denials of discretionary relief,
including cancellation of removal, unless the petitioner
raises a constitutional claim or a question of law. See
8 U.S.C. § 1252(a)(2)(B), (d); Stepanovic v. Filip, No. 07-3883,
2009 WL 187790, at *3 (7th Cir. Jan. 28, 2009). Obi’s appeal
presents two legal questions, and so we may proceed to the
merits of his case.
Obi first argues that the IJ erred in ruling that the
government was not bound to its “stipulation” that the
stop-time rule did not bar his request for relief. According
to Obi, the IJ should have deemed the stop-time rule
agreement sufficient to establish his statutory eligibility,
even though the record contained no evidence of
the agreement. We are unconvinced. To begin with, Obi
did not meet his burden of submitting evidence of any
stipulation or written agreement that supported his
eligibility for relief. See 8 C.F.R. § 1240.8; Bakarian v.
Mukasey, 541 F.3d 775, 782 (7th Cir. 2008). More impor-
tantly, the agreement, as Obi characterizes it, did
not completely resolve the question of his statutory
eligibility because it disposed of only one element Obi
had to prove—namely, that the stop-time rule did not
truncate his accrual of residency. And that ground proved
not to be the basis upon which the IJ ultimately denied
relief. Rather, the IJ correctly ruled that Obi had never
been lawfully admitted as a permanent resident at
the outset. See Mejia-Orellana v. Gonzales, 502 F.3d 13, 16-17
(1st Cir. 2007) (alien ineligible for cancellation of removal
when he had never been lawfully admitted as permanent
resident); In re Koloamatangi, 23 I. & N. Dec. 548, 551
6 No. 08-1260
(BIA 2003) (same). Obi does not challenge that conclusion,
and so even if we concluded that the IJ should have
enforced any such agreement, he would still be ineligible
for relief.
The other question of law that Obi raises is one that we
have not previously addressed: whether the IJ erred in
denying him relief based on a pre-IIRIRA conviction. In
support, Obi relies on the Supreme Court’s decision in
Landgraf v. USI Film Prods., 511 U.S. 244, 280 (1994), which
established a two-prong test for assessing whether a law
could be applied retroactively. See id. First, the court must
discern whether Congress intended for the law have to
retroactive impact. Id. If Congress’s intent is clear, that
ends the analysis. But if it is ambiguous, the court moves
to the second prong and determines whether applying the
law injures a party by “impair[ing] rights [he] possessed
when he acted, increas[ing] [his] liability for past conduct,
or impos[ing] new duties with respect to transactions
already completed.” Id. According to Obi, Congress did
not intend for the § 1229b(b)(1)(C) bar to apply to convic-
tions occurring before IIRIRA’s effective date of April 1,
1997, see IIRIRA, Pub. L. No. 104-208, § 309(a), 110 Stat.
3009-625 (1996), and moreover applying the bar in his case
would injure him.
Addressing Landgraf ’s first prong, we have previously
explained in a different context that Congress clearly
intended to apply IIRIRA’s cancellation-of-removal
provisions to all proceedings brought after April 1, 1997,
regardless of when an alien committed a disqualifying
crime. Lara-Ruiz v. INS, 241 F.3d 934, 945 (7th Cir. 2001).
No. 08-1260 7
Obi maintains that Lara-Ruiz is not controlling here because
the pertinent IIRIRA provision in his case is drafted
differently. The relevant provision in Lara-Ruiz applies a
bar to aliens “convicted of any aggravated felony,”
whereas § 1229b(b)(1)(C), the provision at issue here,
applies to aliens “convicted of an offense under [different
subsections of IIRIRA].” Being convicted “under” IIRIRA,
in Obi’s view, means that one’s conviction had to occur
after IIRIRA’s passage, and therefore only convictions that
occur post-IIRIRA are governed by § 1229b(b)(1)(C). This
argument cannot help Obi. It is illogical to speak of being
convicted of a criminal offense “under” IIRIRA, as it is not
a criminal statute. The statutory sections listed in
§ 1229b(b)(1)(C) merely cross-reference offenses in three
statutes of the criminal code. These criminal statutes,
including the one under which Obi was convicted of visa
fraud, predate IIRIRA. See 18 U.S.C. § 1546 (notes) (dating
visa-fraud statute’s creation to 1948); see also Gonzalez-
Gonzalez v. Ashcroft, 390 F.3d 649, 652 (9th Cir. 2004)
(rejecting reading of § 1229b(b)(1)(C) similar to Obi’s). The
distinction Obi proposes does not persuade us that Lara-
Ruiz is inapplicable to his case.
But even if Congress’s intent regarding § 1229b(b)(1)(C)’s
retroactivity were ambiguous, Obi’s argument would
still fail because he cannot meet Landgraf ’s second
prong—that retroactive application of an ambiguous
statute is impermissible only if it impairs rights that
existed under prior law or increases a party’s
liability for prior acts. Landgraf, 511 U.S. at 280; United
States v. Horta-Garcia, 519 F.3d 658, 661 (7th Cir. 2008). To
satisfy this test, Obi must show that he “affirmatively
8 No. 08-1260
abandoned rights or admitted guilt in reliance on [pre-
IIRIRA law].” Horta-Garcia, 519 F.3d at 661. Obi insists
that the statutory bar “attaches a new legal disability
to [his] prior conduct and takes away . . . one affirmative
defense to being deported,” but he does not explain
what that “new legal disability” is or further develop the
point.
In any event, Obi cannot show that he has been harmed
by his reliance on pre-IIRIRA law. He would have been
removable and ineligible for relief based on his marriage
fraud under the pre-IIRIRA regime, see, e.g., Savoury v.
Att’y Gen., 449 F.3d 1307, 1314 (11th Cir. 2006), and so
IIRIRA did not change the consequences of his criminal act.
(Indeed, Obi concedes that he would have been ineligible
for relief under § 212(c), the predecessor statute to cancella-
tion of removal.) Nor has he pointed to any affirmative
steps he took in reliance on the absence of the
§ 1229b(b)(1)(C) bar, such as pleading guilty or changing
his litigation strategy. See Lara-Ruiz, 941 F.3d at 945. As
such, Obi’s claim resembles a line of cases from other
circuits concluding that retroactivity concerns are not
triggered by application of the stop-time rule to pre-IIRIRA
crimes. See Martinez v. INS, 523 F.3d 365, 374-75 (2d Cir.
2008); Heaven v. Gonzales, 473 F.3d 167, 175-76 (5th Cir.
2006); Pinho v. INS, 249 F.3d 183, 188 (3d Cir. 2001); Tang v.
INS, 223 F.3d 713, 719 (8th Cir. 2000). Those cases con-
cluded that a bar to relief created by IIRIRA could be
applied to conduct preceding that law, because the peti-
tioners had not shown that they detrimentally relied on
pre-IIRIRA law or that IIRIRA changed the legal conse-
quences of a prior act. The same holds true for Obi. We
No. 08-1260 9
therefore hold that § 1229b(b)(1)(C) may be applied
retroactively.
D ENIED.
3-3-09