Valere, Jean M. v. Gonzales, Alberto ( 2007 )


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  •                            In the
    United States Court of Appeals
    For the Seventh Circuit
    ____________
    No. 05-2968
    JEAN M. VALERE,
    Petitioner,
    v.
    ALBERTO R. GONZALES,
    Respondent.
    ____________
    Petition for Review of an Order
    of the Board of Immigration Appeals.
    No. A17-769-408
    ____________
    ARGUED MARCH 31, 2006—DECIDED JANUARY 11, 2007
    ____________
    Before ROVNER, EVANS, and SYKES, Circuit Judges.
    SYKES, Circuit Judge. Jean Marie Valere, a citizen of
    Haiti, was admitted to the United States as a lawful
    permanent resident in 1968, when he was ten years old. In
    1994 he pleaded guilty to indecent assault of a child in
    Florida. Based on that conviction, the United States
    identified Valere as an aggravated felon and in 1998
    initiated removal proceedings against him. Valere eventu-
    ally sought relief under § 212(c) of the Immigration and
    Naturalization Act (“INA”), 8 U.S.C. § 1182(c) (1994),
    which was repealed in 1996 but under INS v. St. Cyr, 
    533 U.S. 289
    , 326 (2001), remains available to aliens who
    pleaded guilty to an aggravated felony prior to the effec-
    tive date of the repeal and would have been eligible for
    2                                               No. 05-2968
    relief under the law then in effect. An Immigration Judge
    (“IJ”) granted relief, but the Board of Immigration Appeals
    (“BIA”) reversed, relying on In re Blake, 23 I. & N. Dec.
    722 (B.I.A. 2005), which held that an alien removable on
    the basis of a conviction for sexual abuse of a minor is
    ineligible for relief under § 212(c) because that crime has
    no statutory counterpart in § 212(a) of the INA, 8 U.S.C.
    § 1882(a).
    In his petition for review, Valere argues that Blake
    and a 2004 regulation codifying the “statutory counter-
    part” rule for determining a removable alien’s eligibility
    for § 212(c) relief have an impermissibly retroactive effect
    as applied to his case. He also asserts that the “statutory
    counterpart” requirement violates equal protection. We
    deny the petition for review.
    I. Background
    Valere came to the United States from Haiti in 1968, at
    age ten, and was admitted as a legal permanent resident.
    In 1994 he pleaded guilty to a Florida charge of indecent
    assault of a child and was sentenced to four-and-a-half
    years’ imprisonment. In 1998 the Department of Home-
    land Security (“DHS”) (then called the Immigration and
    Naturalization Service or “INS”) issued a Notice to Ap-
    pear, charging that Valere was deportable under
    § 237(a)(2)(A)(iii) of the INA, 8 U.S.C. § 1227(a)(2)(A)(iii)
    (1998), as an alien convicted of an aggravated felony, and
    under § 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i) (1998),
    as an alien convicted of a crime of domestic violence,
    stalking, child abuse, child neglect, or child abandonment.
    At Valere’s initial removal hearing, the IJ held that the
    INS had established Valere’s status as an aggravated
    felon, see 8 U.S.C. § 1101(a)(43)(A) (1998), and ordered him
    removed to Haiti. Valere unsuccessfully appealed this
    No. 05-2968                                              3
    decision to the BIA. In July 2003 the DHS detained Valere
    to execute the removal order against him. At this point
    Valere moved to reopen his removal proceedings, citing St.
    Cyr, in which the Supreme Court held that § 212(c) relief
    remained available, despite its repeal, to aliens whose
    criminal convictions were obtained through guilty pleas
    prior to the effective date of the repeal and who would
    have been eligible to apply for § 212(c) relief under the
    law in effect at the time of the plea. St. 
    Cyr, 533 U.S. at 326
    . The IJ granted Valere’s motion to reopen on the
    basis of St. Cyr.
    After a change of venue from Miami to Chicago, Valere
    submitted his § 212(c) waiver application, which the IJ
    granted after a merits hearing. The DHS appealed, and
    during the pendency of the appeal, the BIA issued its
    ruling in Blake, holding that an alien deportable because
    of a conviction for sexual abuse of a minor is not eligible
    for a § 212(c) waiver because there is no statutory coun-
    terpart to that offense in the enumerated grounds for
    inadmissibility in § 212(a). Relying on Blake, the BIA
    reversed the IJ’s decision and ordered Valere removed
    to Haiti. Valere petitioned for review in this court.
    II. Discussion
    Aliens who have committed certain crimes generally
    may not be admitted to the United States. 8 U.S.C.
    § 1182(a)(2) (2000). The current § 212(a) of the INA
    enumerates the grounds, including the commission of
    certain crimes, which render an alien inadmissible. Under
    former § 212(c), in effect at the time Valere entered his
    guilty plea to indecent assault of a child, the Attorney
    General was authorized to grant discretionary admis-
    sion to an otherwise excludable alien (“inadmissibility”
    was formerly known as “exclusion”). 8 U.S.C. § 1182(c)
    (1994). Former § 212(c) allowed a discretionary waiver of
    4                                             No. 05-2968
    inadmissibility for permanent resident aliens who volun-
    tarily left the United States, sought reentry, and were
    returning to a “lawful unrelinquished domicile” of seven
    (or in some cases, ten) years. 
    Id. Not all
    returning aliens
    were eligible to apply for a § 212(c) waiver, however; an
    amendment passed in 1990 prohibited § 212(c) relief
    for aliens convicted of aggravated felonies who served
    terms of imprisonment of five years or more. Immigration
    Act of 1990, Pub. L. No. 101-649, § 511, 104 Stat. 4978,
    5052 (1990) (amending 8 U.S.C. § 1182).
    By its terms, former § 212(c) applied only to lawful
    resident aliens who were denied admission to the United
    States after voluntarily leaving the country and then
    attempting reentry. 8 U.S.C. § 1182(c) (1994). But in
    Francis v. INS, 
    532 F.2d 268
    (2d Cir. 1976), the Second
    Circuit expanded the statute’s applicability, making
    § 212(c) waivers available to aliens who had not left the
    country at all but were subject to removal (formerly
    know as “deportation”) on grounds substantially similar
    to the enumerated grounds for inadmissibility in § 212(a).
    See Leal-Rodriguez v. INS, 
    990 F.2d 939
    , 948-49 (7th Cir.
    1993). Applying a minimal-scrutiny equal protection
    analysis, the court in Francis held there was no rational
    basis for making § 212(c) relief available only to inad-
    missible aliens seeking reentry and not to similarly
    situated deportable aliens who had not left the country.
    
    Francis, 532 F.2d at 272-73
    .
    In In Matter of Silva, 16 I. & N. Dec. 26 (B.I.A. 1976),
    the BIA adopted the Second Circuit’s position. Leal-
    
    Rodriguez, 990 F.2d at 949
    ; see also Kim v. Gonzales, 
    468 F.3d 58
    , 60 (1st Cir. 2006). Thus, § 212(c) eligibility
    was extended to removable aliens who had not left the
    country, but only if the removable alien was situated
    similarly to a returning inadmissible alien. That is, a
    removable (deportable) alien was eligible to apply for
    No. 05-2968                                               5
    § 212(c) relief provided that the ground for his
    removability had a statutory counterpart in the enumer-
    ated grounds for inadmissibility in § 212(a). Leal-Rodri-
    
    guez, 990 F.2d at 949
    ; see also 
    Kim, 468 F.3d at 62-63
    ;
    Drax v. Reno, 
    338 F.3d 98
    , 107-08 (2d Cir. 2003).
    The passage of the Antiterrorism and Effective Death
    Penalty Act (“AEDPA”) in 1996 wrought more changes
    in § 212(c), identifying certain convictions that would
    make an alien ineligible for waiver consideration. Pub. L.
    No. 104-132, § 440(d), 110 Stat. 1214, 1277 (1996) (amend-
    ing 8 U.S.C. § 1182). Later that same year, the Illegal
    Immigration Reform and Immigrant Responsibility Act
    (“IIRIRA”) repealed § 212(c) altogether, replacing it with
    8 U.S.C. § 1229b. Pub. L. 104-208, 110 Stat. 3009-594
    (creating 8 U.S.C. § 1229b). Section 1229b grants the
    Attorney General authority to cancel removal only for
    certain classes of inadmissible or deportable aliens, but
    excludes from consideration aliens previously convicted
    of aggravated felonies. 8 U.S.C. § 1229b. Section 1229b
    applies to aliens in removal proceedings after April 1,
    1997. Velez-Lotero v. Achim, 
    414 F.3d 776
    , 780 (7th Cir.
    2005).
    In October 2004 the DHS promulgated 8 C.F.R. § 1212.3,
    which codified the judicially created “statutory counter-
    part” rule noted above, as well as the Supreme Court’s
    decision in St. Cyr, which held that “the repeal of § 212(c)
    was impermissibly retroactive as applied to aliens who
    pleaded guilty prior to IIRIRA’s effective date in the
    expectation that they would continue to be eligible for
    § 212(c) waivers.” 
    Velez-Lotero, 414 F.3d at 780
    . More
    specifically, § 1212.3(h) permits § 212(c) relief for aliens
    who pleaded guilty before April 1, 1997, the date the 1996
    repeal of § 212(c) took effect. Section 1212.3(f )(5) states
    that an alien is ineligible for a former § 212(c) waiver if
    he is deportable or removable “on a ground which does
    not have a statutory counterpart in section 212 of the Act.”
    6                                              No. 05-2968
    The BIA held that Valere was ineligible for a § 212(c)
    waiver because under the authority of Blake, the aggra-
    vated felony for which he was being deported—indecent
    assault of a minor—had no statutory counterpart in
    § 212(a). In Blake, the BIA traced the evolution of the
    statutory counterpart rule, codified in § 1212.3(f )(5), and
    held that the crime of sexual abuse of a minor had no
    statutory counterpart in § 212(a). The BIA rejected the
    petitioner’s argument that § 212(a)’s broad “crime of
    moral turpitude” ground for exclusion was a statutory
    counterpart to sexual abuse of a minor, holding that “the
    moral turpitude ground of exclusion addresses a dis-
    tinctly different and much broader category of offenses
    than the aggravated felony sexual abuse of a minor
    charge.” Blake, 23 I. & N. Dec. at 728. Blake held that
    while there need not be a “perfect match” in order to
    satisfy the “statutory counterpart” requirement, an “over-
    lap” in categories of crimes—even a “considerable over-
    lap”—is not enough. “[W]hether a ground of deportation
    or 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.” 
    Id. Valere does
    not directly challenge the BIA’s conclu-
    sion in Blake that the crime of sexual abuse of a minor
    has no statutory counterpart in § 212(a). Neither does he
    attempt to distinguish his crime of conviction—indecent
    assault of a minor—from the sexual abuse of a minor
    offense at issue in Blake. Rather, he argues that the BIA’s
    application of Blake to his case—and by extension, the
    application of § 1212.3(f )(5)—has an impermissibly retro-
    active effect. He also claims that application of the statu-
    tory counterpart requirement of § 1212.3(f )(5) violates
    his equal protection rights.
    Before proceeding to the substance of these claims, we
    note that we have jurisdiction to resolve them. Although
    No. 05-2968                                                    7
    § 242(a)(2)(C) of the INA, 8 U.S.C. § 1252(a)(2)(C), strips
    this court of jurisdiction to entertain reviews of “any
    final order of removal against an alien who is removable
    by reason of having committed a criminal offense covered
    by section 1182(a)(2) or 1227(a)(2)(A)(iii) . . . of this title,”
    § 1252(a)(2)(D) permits appellate court review of con-
    stitutional claims and questions of law. Knutsen v. Gonza-
    les, 
    429 F.3d 733
    , 736 (7th Cir. 2005). Valere’s retro-
    activity and equal protection claims are reviewed de novo.
    
    Knutsen, 429 F.3d at 736
    ; Hassan v. INS, 
    110 F.3d 490
    ,
    493 (7th Cir. 1997).
    The contours of Valere’s retroactivity argument are fuzzy
    at best. Valere seems to be arguing that the decision in St.
    Cyr gave rise to a vested right—the right to § 212(c)
    eligibility—that was eliminated by the application of the
    new DHS regulation, § 1212.3(f )(5), to his case. He con-
    tends that applying Blake (and thus § 1212.3(f )(5)) impairs
    his right to § 212(c) eligibility and thus has an
    impermissibly retroactive effect in violation of the rule of
    Landgraf v. USI Film Prods., 
    511 U.S. 244
    , 280 (1994).
    But Valere never had any right to § 212(c) eligibility. St.
    Cyr only extended § 212(c) eligibility to those who would
    have qualified to apply for this relief at the time of their
    guilty pleas and prior to the effective date of the repeal—it
    did not extend eligibility to aliens who would not have
    qualified under the law then in effect. The “statutory
    counterpart” rule for deportees seeking to invoke § 212(c)
    appears in the case law as far back as the late 1970s, well
    before Valere’s guilty plea. See, e.g., Leal-
    Rodriguez, 990 F.2d at 949
    ; Matter of Montenegro, 20 I. & N. Dec. 603
    (B.I.A. 1992); Matter of Meza, 20 I. & N. Dec. 257 (B.I.A.
    1991); Matter of Wadud, 19 I. & N. Dec. 182 (B.I.A. 1984);
    Matter of Granados, 16 I. & N. Dec. 726 (B.I.A. 1979).
    Section 1212.3(f )(5) is simply the agency’s codification of
    this preexisting, judicially created rule. Although the
    8                                               No. 05-2968
    Blake decision marked the first time the BIA applied the
    rule to the crime of sexual assault of a minor, the rule
    itself is not new. Valere’s crime of indecent assault of a
    minor—like Blake’s crime of sexual abuse of a minor—had
    no statutory counterpart in § 212(a) at the time Valere
    pleaded guilty. Accordingly, because Valere did not at the
    time of his guilty plea have a legal right to apply for a
    waiver under § 212(c), application of Blake (and by exten-
    sion § 1212.3(f )(5)) did not impair any established right
    he possessed and is not impermissibly retroactive.
    That leaves Valere’s equal protection argument, which
    is likewise difficult to make out. He seems to suggest
    that the Second Circuit’s reasoning in Francis requires
    that § 212(c) eligibility be extended to all removable
    aliens—not just those who are similarly situated to
    inadmissible aliens by virtue of being removable for a
    crime that has a comparable ground of exclusion in
    § 212(a). He argues that equal protection requires that “no
    distinction shall be made between permanent resident
    aliens who proceed abroad and nondeparting aliens who
    apply for the benefits of section 212(c) of the Act.” But 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. If the removable
    alien’s crime of 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.
    Section 212(c) on its face applies only to aliens seeking
    readmission to the country, not those being deported.
    Beginning with Francis, courts and the BIA have held
    § 212(c) relief is available to deportees who are similarly
    situated to inadmissibles, i.e., are being deported on a
    ground that substantially corresponds to a ground for
    No. 05-2968                                               9
    inadmissibility under § 212(a). These holdings estab-
    lished the statutory counterpart rule that was codified
    in 8 C.F.R. § 1212.3(f )(5) and applied in Blake. Valere
    argues that unless § 212(c) relief is available to all
    people facing deportation for convictions obtained by
    guilty plea prior to § 212(c)’s repeal, the regulation vio-
    lates equal protection. In Leal-Rodriguez, we declined to
    expand the reach of § 212(c) beyond the Second Circuit’s
    holding in Francis, specifically rejecting the argument
    that § 212(c) eligibility “should be extended to all
    deportable aliens, whatever their ground for expulsion.”
    
    Leal-Rodriguez, 990 F.3d at 950
    . Valere’s treatment is
    not different from other aliens who face deportation for
    reasons that have no corresponding ground for inad-
    missibility under § 212(a). 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 inadmissi-
    ble, returning alien who is eligible to apply for § 212(c)
    relief.
    Valere’s petition for review is DENIED.
    A true Copy:
    Teste:
    ________________________________
    Clerk of the United States Court of
    Appeals for the Seventh Circuit
    USCA-02-C-0072—1-11-07