Osiris Humberto Ibanez v. U.S. Attorney General , 270 F. App'x 816 ( 2008 )


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  •                                                               [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT                       FILED
    ________________________            U.S. COURT OF APPEALS
    ELEVENTH CIRCUIT
    March 20, 2008
    No. 07-12932                    THOMAS K. KAHN
    Non-Argument Calendar                   CLERK
    ________________________
    BIA No. A17-700-472
    OSIRIS HUMBERTO IBANEZ,
    Petitioner,
    versus
    U.S. ATTORNEY GENERAL,
    Respondent.
    ________________________
    Petition for Review of a Decision of the
    Board of Immigration Appeals
    _________________________
    (March 20, 2008)
    Before TJOFLAT, DUBINA and BLACK, Circuit Judges.
    PER CURIAM:
    Petitioner Osiris Ibanez, with the assistance of counsel, petitions for review
    of the Board of Immigration Appeals’s (“BIA”) decision to affirm the Immigration
    Judge’s order that he was ineligible for a waiver of removal under former
    Immigration and Nationality Act (“INA”) § 212(c), 8 U.S.C. § 1182(c) (repealed).
    Ibanez was found to be removable under INA § 237(a)(2)(A)(iii), 8 U.S.C. §
    1227(a)(2)(A)(iii) because he was a criminal alien. Ibanez argues that the BIA
    should have held his case in abeyance or remanded for further fact finding based
    on a pending Freedom of Information Act request. Ibanez also argues that the
    repeal of § 212(c) relief for aliens convicted after a jury trial has an impermissible
    retroactive effect. Finally, Ibanez argues that distinguishing between aliens who
    pled guilty and aliens convicted after a jury trial violates his right to equal
    protection and due process.
    “We review de novo whether we have subject-matter jurisdiction.” Arias v.
    U.S. Att’y Gen., 
    482 F.3d 1281
    , 1283 (11th Cir. 2007). In addition, we review
    questions of law de novo, with appropriate deference to the BIA’s reasonable
    interpretation of the statute in question. See Sarmiento Cisneros v. U.S. Att’y Gen.,
    
    381 F.3d 1277
    , 1279-80 (11th Cir. 2004) (citing Chevron U.S.A. Inc. v. Natural
    Res. Def. Council, Inc., 
    467 U.S. 837
    , 843, 
    104 S. Ct. 2778
    , 2782 (1984)).
    However, no deference is owed to the agency when the interpretation of the statute
    involves the retroactive application of the statute. 
    Id. at 1280.
    Finally, we review
    constitutional claims de novo. Contreras-Rodriguez v. U.S. Att’y Gen., 
    462 F.3d 2
    1314, 1316 (11th Cir. 2006).
    We first conclude that we lack jurisdiction to address Ibanez’s claim that the
    Board should have granted his request to hold the administrative proceedings in
    abeyance. This court may not review “any final order of removal against an alien
    who is removable by reason of having committed a criminal offense covered in” 8
    U.S.C. § 1227(a)(2)(A)(iii), that is, an alien removable for an aggravated felony
    offense. INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C). The only exception to the
    jurisdictional bar is that we may review constitutional claims and questions of law.
    INA § 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D).
    Because Ibanez is removable due to his convictions for aggravated felony
    drug offenses, we conclude that judicial review of the Board’s discretional denial
    of his request to abate the proceedings is barred. See Jean-Pierre v. U.S. Atty.
    Gen., 
    500 F.3d 1315
    , 1320 (11th Cir. 2007).
    Ibanez next argues that he had an expectation of the availability of a §
    212(c) waiver when he went to trial in Tennessee, and that the waiver should
    remain available to him, notwithstanding Congress’s repeal of § 212(c) in 1986.
    He is wrong. In INS v. St. Cyr, 
    533 U.S. 289
    , 
    121 S. Ct. 2271
    (2001), the Supreme
    Court held that the provisions that repealed discretionary relief from deportation
    under § 212(c) do not apply retroactively to an alien who pleaded guilty to criminal
    charges, in reliance on the possibility of § 212(c) relief, prior to the enactment of
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    the repealer provisions. St. 
    Cyr, 533 U.S. at 326
    , 121 S. Ct. at 2293. If an alien
    pleaded guilty or nolo contendere to certain crimes before April 1, 1997, he may
    file a motion to reopen his deportation proceedings in order to seek § 212(c) relief.
    8 C.F.R. § 1003.44. An alien is ineligible for § 212(c) relief if he was convicted of
    an aggravated felony, unless he was convicted between 1990 and 1996 and served
    less than five years of his sentence, or he was convicted pursuant to a guilty plea
    before 1990. 
    Id. at §§
    1003.44(c), 1212.3(f)(4)(i)-(ii).
    In Alexandre v. U.S. Att’y. Gen., 
    452 F.3d 1204
    (11th Cir. 2006), we
    concluded that § 212(c) relief is not available to aliens who were convicted after a
    trial instead of on a guilty plea. 
    Alexandre, 452 F.3d at 1207
    . Moreover, we have
    noted as consistent with St. Cyr, the distinction between aliens who pleaded guilty
    and those who proceeded to trial. See Brooks v. Ashcroft, 
    283 F.3d 1268
    , 1274
    (11th Cir. 2002).
    The overwhelming majority of circuit courts have held that there is no
    impermissible retroactive effect in § 212(c) relief which is not granted to someone
    who went to trial, because the person did not detrimentally rely on the availability
    of relief. Accordingly, we reject Ibanez’s argument that he had an expectation of
    the availability of § 212(c) waiver.
    Finally, we reject Ibanez’s contention that distinguishing between aliens
    who are convicted after a trial and aliens who plead guilty violates his right to due
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    process or equal protection. See 
    Brooks, 283 F.3d at 1274
    (citing Fernandez-
    Bernal v. Att’y Gen. of the U.S., 
    257 F.3d 1304
    , 1312 (11th Cir. 2001)).
    For the above-stated reasons, we DISMISS the petition in part, and DENY
    the petition in part.
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