Enriquez Gutierrez v. Holder

Filing

Enriquez Gutierrez v. Holder

Doc. 0

Case: 08-60769

Document: 00511176700

Page: 1

Date Filed: 07/16/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
July 16, 2010 N o . 08-60769 Lyle W. Cayce Clerk

R A U L ENRIQUEZ-GUTIERREZ P e titio n e r v. E R I C H. HOLDER, JR., U.S. ATTORNEY GENERAL R espon dent

P e tit io n for Review of an Order of the B o a r d of Immigration Appeals

B e fo r e JONES, Chief Judge, and BENAVIDES and PRADO, Circuit Judges. F O R T U N A T O P. BENAVIDES, Circuit Judge: R a u l Enriquez-Gutierrez petitions for review of a decision of the Board of I m m ig r a t io n Appeals ("BIA" or "Board") ordering him removed from this c o u n t r y . The BIA found that Enriquez is removable on the basis of a 2001 c o n v ic t io n for cocaine possession, but Enriquez protests that in an earlier d e p o r t a t io n proceeding, he received a waiver of deportation covering that c o n v ic t io n under former § 212(c) of the Immigration and Nationality Act ("INA"). The BIA concluded, however, that Enriquez had stipulated that his 2001 cocaine c o n v ic t io n would be excluded from coverage under that waiver. At oral

a r g u m e n t before this Court, the government conceded that Enriquez had not s t ip u la t e d that his 2001 cocaine conviction would be excluded from the waiver.

Dockets.Justia.com

Case: 08-60769

Document: 00511176700

Page: 2

Date Filed: 07/16/2010

No. 08-60769 W e find that the transcript of Enriquez's deportation hearing reveals that the B I A 's conclusion regarding the stipulation is incorrect. We also conclude that t h e BIA's opinion does not otherwise state a valid rationale for removing E n r iq u e z from this country. Consequently, we vacate the decision of the BIA a n d remand this case for further proceedings. I. E n r iq u e z is a citizen of Mexico, but became a lawful permanent resident o f this country in 1976. In 1980, he was convicted of an offense relating to alien s m u g g lin g , and subsequently was convicted in 1990 for felony delivery of m a r iju a n a . After his marijuana conviction, the Immigration and Naturalization S e r v ic e ("INS") commenced deportation proceedings against Enriquez in 1991. Enriquez conceded that his marijuana conviction rendered him eligible for d e p o r t a t io n , but he sought a waiver of deportation under former § 212(c) of the I N A . Under former § 212(c), the Attorney General had discretion to allow aliens s u b je c t to deportation to remain in this country, so long as they had maintained " a lawful unrelinquished domicile of seven consecutive years" in the United S t a te s , had not been convicted of "one or more aggravated felonies," and had not " s e r v e d for such felony or felonies a term of imprisonment of at least 5 years." See 8 U.S.C. § 1182(c) (1994).1 T h e immigration judge ("IJ") refused to grant Enriquez a waiver in May 1 9 9 1 , and the BIA dismissed Enriquez's appeal of the IJ's decision in July 1994.

The text of former § 212(c) did not explicitly allow waiver of deportation. Instead, it authorized the Attorney General to waive grounds of inadmissibility for "[a]liens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily . . . and who [were] returning to a lawful unrelinquished domicile of seven consecutive years." 8 U.S.C. § 1182(c) (1994). However, in Francis v. INS, the Second Circuit held that it would violate the equal protection clause to provide § 212(c) relief to excludable aliens seeking readmission if such relief were not also available to deportable aliens resident in this country. 532 F.2d 268, 273 (2d Cir. 1976). Soon after, the BIA adopted this view in Matter of Silva, and § 212(c) waivers became available in deportation proceedings throughout the country. 16 I. & N. Dec. 26, 29-30 (BIA 1976).

1

2

Case: 08-60769

Document: 00511176700

Page: 3

Date Filed: 07/16/2010

No. 08-60769 S e v e r a l months after this dismissal, Enriquez filed a motion seeking r e c o n s id e r a tio n and reopening of his case, but the motion remained pending b e fo r e the BIA for more than seven years. Finally, in February 2002, the BIA d e c lin e d to reconsider its 1994 decision, but agreed to reopen Enriquez's d e p o r t a t io n proceedings. The BIA remanded Enriquez's case to an IJ, to allow E n r iq u e z an opportunity to demonstrate that he now merited § 212(c) relief g iv e n the decade that had passed since his deportation proceedings began. I n the interim, however, several important developments had occurred. Enriquez had been convicted of two additional crimes in 2001, possession of a fir e a r m in violation of state law and possession of less than a gram of cocaine. Additionally, in 1996, Congress had considerably rewritten the nation's im m ig r a t io n laws, restricting grants of § 212(c) relief and then repealing the p r o v is io n altogether. First, the Antiterrorism and Effective Death Penalty Act o f 1996 ("AEDPA") placed new restrictions on the eligibility of certain aliens for w a iv e r s of deportation under § 212(c). Pub. L. No. 104-132, § 440(d), 110 Stat. 1 2 1 4 , 1277. Second, shortly after the passage of AEDPA, Congress passed the I ll e g a l Immigration Reform and Immigrant Responsibility Act of 1996 (" I I R I R A " ), Pub. L. No. 104-208, 110 Stat. 3009-546. IIRIRA repealed § 212(c) a n d replaced it with INA § 240A, a more restrictive provision that only allows t h e Attorney General to "cancel" the removal of aliens if they have not been c o n v ic t e d of an aggravated felony. See 8 U.S.C. § 1182(c) (2006) (former INA § 2 1 2 (c )); § 1229b (new INA § 240A); IIRIRA § 304(a)-(b), 110 Stat. at 3009-594-97. Although Congress repealed § 212(c) in 1996, it has continued to be applied in c e r t a i n deportation and removal proceedings. Notably, in INS v. St. Cyr, the S u p r e m e Court ruled that IIRIRA's repeal of § 212(c) could not be applied r e t r o a c t iv e ly to aliens who had pleaded guilty before the passage of IIRIRA and w h o s e guilty pleas to deportable offenses may have been entered with the e x p e c t a t io n that they would be eligible for discretionary waiver of deportation. 3

Case: 08-60769

Document: 00511176700

Page: 4

Date Filed: 07/16/2010

No. 08-60769 5 3 3 U.S. 289, 326 (2001). O n remand before a new IJ, the government chose not to bring new d e p o r t a t io n charges against Enriquez for his 2001 convictions, but Enriquez filed a n updated application requesting § 212(c) relief. Since 8 C.F.R. § 1212.3(d) p r o v id e s that the approval of an application for § 212(c) relief only covers "those s p e c ific grounds of excludability, deportability, or removability that [are] d e s c r ib e d in [an alien's] application," Enriquez disclosed that he might be d e p o r t a b le due to "convictions for controlled substance offenses, 1990 & 1999." His disclosure of a 1999 controlled substance offense was actually a reference to h is 2001 conviction for cocaine possession, for which he had been arrested in 1 9 9 9 . However, whatever ambiguity was created by Enriquez's reference to a " 1 9 9 9 " conviction was cured by his attachment to his application of a record of h is cocaine conviction, showing that the underlying offense occurred in 1999 but t h a t he was convicted in 2001. Notably, Enriquez did not seek a waiver for his 2 0 0 1 firearm conviction, as such relief had historically been unavailable under t h e former § 212(c). See Chow v. INS, 12 F.3d 34, 38 (5th Cir. 1993). W h a t next occurred at Enriquez's deportation hearing in April 2004 is the p r im a r y subject of this appeal. At the hearing, the government announced that it was willing to stipulate to a grant of § 212(c) relief for Enriquez's 1980 alien s m u g g lin g conviction and his 1990 marijuana conviction. Enriquez's counsel and t h e IJ agreed to a stipulation of relief for these offenses, but at the close of the h e a r in g , the following exchange occurred between Enriquez's counsel and the IJ: J U D G E FOR THE RECORD S u b m it t e d . 04/29, today. There's no other issue or fact of law a n d the parties have stipulated to the grant of the 212(c) relief for t h e offenses that occurred 1990 and before, then nothing else to r e s o lv e . That doesn't resolve, of course, any future issues c o n c e r n in g the 2001 [conviction]. M S . BRODYAGA TO JUDGE W e ll, we will, we would agree that it does, by law, Judge. The

4

Case: 08-60769

Document: 00511176700

Page: 5

Date Filed: 07/16/2010

No. 08-60769 G o v e r n m e n t is . . . not stipulating to that, but we are also not s t ip u la t in g that it doesn't--we will argue . . . that by law it does. J U D G E TO MS. BRODYAGA S u re. M S . BRODYAGA TO JUDGE B u t we have no problem with their position and are happy to a c c e p t the grant. T h e IJ then proceeded to grant Enriquez's application for a § 212(c) waiver and s t a t e d in an oral decision that "the Court finds that the parties have stipulated t o the grant of the 212(c) relief on the issues that were remanded by the Board fo r consideration, and that is the [1990] conviction and any other crime that o c c u r r e d prior to 1990 that brought the respondent into deportation p r o c e e d in g s ." Thus, although the IJ orally limited his grant of § 212(c) relief to E n r iq u e z 's 1980 and 1990 convictions, Enriquez's counsel clearly reserved the r ig h t to argue that the waiver also by law covered his disclosed 2001 cocaine c o n v ic tio n . S o o n after, in October 2004, the government served a new notice to appear o n Enriquez, alleging that he was eligible for removal from the United States on t h e basis of his 2001 cocaine and firearm convictions. The government asserted r e m o v a l on the basis of three statutory provisions. It claimed that Enriquez was r e m o v a b le because he had been convicted of breaking a law "relating to a c o n t r o lle d substance," see 8 U.S.C. § 1227(a)(2)(B)(i), and had been convicted of " p o s s e s s in g , or carrying . . . a firearm . . . in violation of . . . law." § 1227(a)(2)(C). "a g g ra va ted See

It also claimed that Enriquez had been convicted of an see § 1227(a)(2)(A)(iii), as defined at 8 U.S.C.

felony,"

§ 1101(a)(43)(B) to include "a drug trafficking crime," which in turn is defined a t 18 U.S.C. § 924(c)(2) to include "any felony punishable under the Controlled S u b s t a n c e s Act (21 U.S.C. § 801 et seq.)." As described above, the significance o f the aggravated felony charge is that permanent resident aliens like Enriquez

5

Case: 08-60769

Document: 00511176700

Page: 6

Date Filed: 07/16/2010

No. 08-60769 a r e statutorily ineligible for discretionary cancellation of removal under § 240A if they have been convicted of an aggravated felony. See 8 U.S.C. § 1229b(a)(3). T h e government's new removal charges against Enriquez were eventually h e a r d before the same IJ who had initially granted § 212(c) relief in Enriquez's e a r lie r deportation proceedings. As expected, Enriquez argued that his § 212(c) w a iv e r blocked removal on the basis of his 2001 cocaine conviction. He also a r g u e d that although he could be removed due to his firearms conviction, he was e lig ib le for adjustment of status, which would allow him to remain in the United S t a te s .2 In November 2005, the IJ rejected these arguments and ordered

E n r iq u e z removed to Mexico. The IJ found that, as a matter of law, his previous g r a n t of § 212(c) relief could not have covered Enriquez's 2001 cocaine conviction, s in c e § 212(c) had already been repealed for five years by 2001. The IJ explained t h a t although the Supreme Court had ruled in INS v. St. Cyr that § 212(c) relief w a s available to aliens who had pleaded guilty to crimes before the passage of A E D P A and IIRIRA, Enriquez's convictions postdated both, rendering St. Cyr in a p p lic a b le to his case. 533 U.S. at 326. He also found that Enriquez's 2001 c o c a in e conviction was an aggravated felony, making him ineligible for a d ju s tm e n t of status for his firearms offense. O n appeal, the BIA affirmed the IJ's decision, but under a somewhat

As noted above, historically, § 212(c) waivers were unavailable for aliens eligible for deportation due to firearms convictions. However, such aliens were eligible for adjustment of status, another form of relief that allowed them to remain in this country, despite any firearms conviction. Under 8 U.S.C. § 1255(a), "[t]he status of an alien who was inspected and admitted or paroled into the United States . . . may be adjusted by the Attorney General . . . to that of an alien lawfully admitted for permanent residence if," among other requirements, the alien is "admissible to the United States for permanent residence." In 1992, prior to the passage of AEDPA and IIRIRA, the BIA held that even if a firearms offense renders an alien deportable, it does not make him or her inadmissible to this country, with the result that if an alien is "granted adjustment of status to lawful permanent resident, the [alien] will no longer be deportable on the basis of [the firearms] conviction." In re Rainford, 20 I. & N. Dec. 598, 602 (BIA 1992). Given our remand to the BIA in this case, we express no opinion on whether this relief would be available to cure Enriquez's removability for his firearms conviction, if he could not be removed for his cocaine conviction.

2

6

Case: 08-60769

Document: 00511176700

Page: 7

Date Filed: 07/16/2010

No. 08-60769 d iffe r e n t rationale. The BIA seemingly agreed with the IJ's conclusion that E n r iq u e z 's 2001 cocaine conviction had been ineligible for a § 212(c) waiver b e c a u s e it postdated the passage of AEDPA and IIRIRA.3 However, the BIA also e x p a n d e d on the IJ's analysis. The Board reviewed the transcript of Enriquez's A p r il 2004 deportation hearing, which had apparently not been made part of the r e c o r d in Enriquez's removal proceedings before the IJ. Based on its review of t h e transcript, the Board surprisingly found that Enriquez had stipulated to lim it the grant of § 212(c) relief in that proceeding to his 1980 and 1990 c o n v ic t io n s , excluding his 2001 cocaine conviction. The BIA explained that u n d e r 8 C.F.R. § 1212.3(d), a § 212(c) waiver only covers the specific grounds of d e p o r t a b ilit y that were disclosed in the alien's application, and that therefore it w a s permissible for parties like Enriquez to stipulate to limited grants of relief. The BIA also found that res judicata could not bar the government's attempt to r e m o v e Enriquez on the basis of his 2001 cocaine conviction, since res judicata w a s inapplicable to claims "which were stipulated to as not being covered in p r io r immigration proceedings" and since the government had been under no o b l i g a tio n to bring all available charges against Enriquez in that proceeding. Thus, the BIA found that Enriquez's § 212(c) waiver did not cover his 2001 c o c a in e conviction, and that he therefore could be removed for that conviction. H a v in g established Enriquez's removability, the Board next found that his 2 0 0 1 cocaine conviction was an aggravated felony,4 making Enriquez ineligible
From the wording of the BIA's decision, it is unclear whether the BIA ruled that § 212(c) relief is categorically unavailable for post-IIRIRA convictions, or whether it ruled that such relief is simply unavailable in removal proceedings commenced after IIRIRA's passage. Although the best reading of the decision is the latter reading, for the purposes of this opinion, we assume that the BIA adopted the broader holding so that on remand there is no confusion on this issue. We note that under the Supreme Court's recent decision in Carachuri-Rosendo v. Holder, this conclusion is likely incorrect. No. 09-60 (U.S. June 14, 2010). The BIA found that Enriquez's 2001 conviction under Texas law for cocaine possession qualified as an aggravated felony because it was his second drug possession offense, and therefore Enriquez "could have
4 3

7

Case: 08-60769

Document: 00511176700

Page: 8

Date Filed: 07/16/2010

No. 08-60769 fo r discretionary cancellation of removal under § 240A. The Board also noted t h a t Enriquez was ineligible for § 240A relief because he had already been g r a n t e d § 212(c) relief once before. See 8 U.S.C. § 1229b(c)(6). Consequently, it a ffir m e d the IJ's order removing Enriquez to Mexico. The BIA did not discuss E n r iq u e z 's eligibility for adjustment of status for his 2001 firearms conviction, p resu m a b ly because the BIA's determination that Enriquez could be removed for h is 2001 cocaine conviction rendered this issue irrelevant. Enriquez now

p e t it io n s for review of the BIA's order affirming his removal from the United S ta te s . II. O u r jurisdiction in this case is governed by 8 U.S.C. § 1252. This provision g e n e r a lly prohibits judicial review of "any final order of removal against an alien w h o is removable by reason of having committed" certain criminal offenses, in c lu d in g controlled substance and firearms offenses like those for which E n r iq u e z has been convicted. See 8 U.S.C. §§ 1252(a)(2)(C); 1227(a)(2)(B)(i) (c o n t r o lle d substances offenses); 1227(a)(2)(C) (firearms offenses). However, the R E A L ID Act of 2005, Pub. L. No. 109-13, § 106(a), 119 Stat. 231, 310, amended § 1252 to grant judicial review over "constitutional claims or questions of law r a is e d upon a petition for review filed with an appropriate court of appeals in

been prosecuted" for felony recidivism under federal law. To reach this conclusion, the BIA relied on its prior decision in In re Carachurri-Rosendo, 24 I. & N. Dec. 382, 387-88 (BIA 2007), which we affirmed, see 570 F.3d 263, 264 (5th Cir. 2009), but which has now been overturned by the Supreme Court. In Carachuri-Rosendo, the Supreme Court held that "second or subsequent simple possession offenses are not aggravated felonies . . . when . . . the state conviction is not based on the fact of a prior conviction." No. 09-60, slip op. at 2. Based on the records of Enriquez's 2001 cocaine conviction, it appears that he was not charged for recidivism on the basis of his earlier 1990 marijuana conviction. Nevertheless, since we remand this case to the BIA, we leave this issue to be resolved definitively on remand. Ultimately, this issue may not be dispositive in this case, as Enriquez is already ineligible for cancellation of removal under § 240A because he previously received relief under former § 212(c) of the INA. That said, the Supreme Court's decision calls into question the IJ's determination that Enriquez is ineligible for adjustment of status on the basis of his 2001 cocaine conviction.

8

Case: 08-60769

Document: 00511176700

Page: 9

Date Filed: 07/16/2010

No. 08-60769 a c c o r d a n c e with this section." 8 U.S.C. § 1252(a)(2)(D). Consequently, to the e x t e n t that Enriquez's petition raises legal or constitutional issues, we have ju r is d ic t io n to address them. Unless otherwise noted below, we review such le g a l and constitutional issues de novo. See Larin-Ulloa v. Gonzales, 462 F.3d 4 5 6 , 461 (5th Cir. 2006). I n appeals such as this, we generally only have authority to review the B I A 's decision, although we may also review the IJ's decision when it has some im p a c t on the BIA's decision, as when the BIA has adopted all or part of the IJ's r e a s o n in g . See Zhu v. Gonzales, 493 F.3d 588, 593 (5th Cir. 2007). In this case, a lt h o u g h the BIA agreed with the IJ's analysis in certain respects, the BIA's d e c is io n does not rely on the IJ's decision, and thus our review is confined to the B I A 's analysis and reasoning. Additionally, since the BIA is a division of the E x e c u tiv e Office for Immigration Review ("EOIR"), and a "`judicial judgment c a n n o t be made to do service for an administrative judgment,'" see INS v. O r la n d o Ventura, 537 U.S. 12, 16 (2002) (per curiam) (quoting SEC v. Chenery C o r p ., 318 U.S. 80, 88 (1943)), we may usually only affirm the BIA on the basis o f its stated rationale for ordering an alien removed from the United States. See K w o n v. INS, 646 F.2d 909, 916 (5th Cir. 1981) (in reviewing BIA decision, e x p la in in g that "we are not permitted to consider reasons [for the BIA's decision] o t h e r than those it advanced"). However, in certain circumstances, there may b e limited exceptions to this rule. Even if there is a reversible error in the BIA's a n a ly s is , affirmance may be warranted "where there is no realistic possibility t h a t , absent the errors, the . . . BIA would have reached a different conclusion." Cao He Lin v. U.S. Dep't of Justice, 428 F.3d 391, 401 (2d Cir. 2005). E n r iq u e z raises a number of challenges to the BIA's removal order. First, h e asserts that his 2001 cocaine conviction was eligible for a § 212(c) waiver in h is 2004 deportation proceedings, despite the fact that his conviction occurred a ft e r the passage of AEDPA and IIRIRA. Second, he argues that the BIA went 9

Case: 08-60769

Document: 00511176700

Page: 10

Date Filed: 07/16/2010

No. 08-60769 b e y o n d its authority in reviewing the transcript of his April 2004 deportation h e a r in g , which was apparently not made part of the record before the IJ in his la t e r removal proceedings. Third, he contends that the BIA erred in determining t h a t he stipulated that the § 212(c) waiver granted in his 2004 deportation p r o c e e d in g s would not cover his 2001 cocaine conviction. Fourth, he asserts that a s a matter of law, his 2001 cocaine conviction was included within the IJ's 2004 w a iv e r because he disclosed the conviction in his application for § 212(c) relief, p u r s u a n t to 8 C.F.R. § 1212.3(d). We now address these issues in turn. A. A lt h o u g h Enriquez's 2001 cocaine conviction occurred after the passage of I I R I R A , we conclude that this did not render the conviction ineligible for waiver under § 212(c) in his 2004 deportation proceedings. As noted above, the BIA's d e c is io n could be read as holding that the 2001 cocaine conviction could not have b e e n waived under § 212(c) in Enriquez's deportation proceedings, as his c o n v ic t io n postdated the passage of AEDPA and IIRIRA. The BIA noted that E n r iq u e z was ineligible for relief under St. Cyr, as he had pleaded guilty in 2001 fo r his cocaine offense long after AEDPA became effective. The BIA also

s u p p o r t e d its conclusion by pointing to 8 C.F.R. § 1212.3(h)(3), which provides t h a t "[s]ection 212(c) relief is not available with respect to convictions arising fr o m plea agreements made on or after April 1, 1997." Relying on similar a r g u m e n t s , the government once asserted during this appeal that Enriquez's § 212(c) waiver could not have covered his 2001 cocaine conviction. However, the g o v e r n m e n t subsequently abandoned this argument in a Rule 28(j) letter n o tify in g us of the Second Circuit's recent opinion in Garcia-Padron v. Holder, 5 5 8 F.3d 196 (2d Cir. 2009). In Garcia-Padron, as in this case, the Second Circuit had to determine w h e t h e r an alien who had been in deportation proceedings prior to the passage o f AEDPA and IIRIRA could receive a § 212(c) waiver of deportation for a 10

Case: 08-60769

Document: 00511176700

Page: 11

Date Filed: 07/16/2010

No. 08-60769 c o n v ic t io n that occurred after the passage of AEDPA and IIRIRA. Id. at 199. The Second Circuit concluded that such convictions are eligible for § 212(c) relief. In reaching this conclusion, the Garcia-Padron court relied on two provisions t h a t clarify that AEDPA and IIRIRA's limitations on § 212(c) relief do not g e n e r a l ly apply to deportation proceedings commenced before their effective d a t e s . See id. at 200-201 & n.5. Section 309(c)(1)(A) of IIRIRA establishes that, s u b je c t to certain exceptions not applicable here, "in the case of an alien who is in exclusion or deportation proceedings as of the . . . effective date [of the Act], . . . the amendments made by this subtitle shall not apply." 110 Stat. at 3009625. Similarly, 8 C.F.R. § 1212.3(g) provides that AEDPA's limitations on

§ 212(c) relief are inapplicable to "any applicant for relief . . . whose deportation p r o c e e d in g s were commenced before the Immigration Court before April 24, 1 9 9 6 ." Therefore, the Second Circuit found that AEDPA and IIRIRA do not r e s t r ic t the availability of § 212(c) relief for an alien in deportation proceedings t h a t began before the effective date of both statutes. T h e Second Circuit also explained that 8 C.F.R. § 1212.3(h)(3) is not in c o n flic t with this conclusion. The court found that § 1212.3(h)(3) merely codifies t h e holding in St. Cyr, where the Supreme Court held that the repeal of § 212(c) c o u ld not be applied retroactively to aliens placed into removal proceedings after p a s s a g e of IIRIRA, but who had pleaded guilty before the passage of IIRIRA. See 558 F.3d at 202 (citing St. Cyr, 533 U.S. at 293). The Second Circuit r e a s o n e d that in Garcia-Padron, the alien's situation was "the reverse of that presen t in St. Cyr: his deportation proceeding began under the

p r e -A E D P A /I IR I R A regime, and his subsequent conviction occurred under the p o s t -A E D P A /II R I R A regime." Id. Consequently, the court held that because " § 1212.3(h) was promulgated to deal with a retroactivity problem not present in [Garcia-Padron], the regulation cannot supersede the plain language of I I R I R A section 309(c)(1), which preserves section 212(c) relief for [aliens] whose 11

Case: 08-60769

Document: 00511176700

Page: 12

Date Filed: 07/16/2010

No. 08-60769 d e p o r t a t io n proceedings began under the pre-IIRIRA regime." Id. T h i s analysis is supported by the commentary published in the Federal R e g is t e r that accompanied the promulgation of § 1212.3(h)(3) and discussed the r e g u la tio n 's interaction with § 1212.3(g), the provision that makes AEDPA's lim it a t io n s on § 212(c) relief inapplicable to deportation proceedings commenced b e fo r e AEDPA's effective date. In this commentary, the EOIR explained that: One commenter expressed concern that [8 C.F.R. § 1212(3)(h)] w o u ld delete a previous rule issued by the Department that created a procedure for eligible aliens to apply for section 212(c) relief. The p r e v io u s rule, sometimes referred to as the "Soriano rule," . . . is p r e s e n t ly codified at 8 CFR 1212.3(g) [and provides] that the lim it a t io n s of section 440(d) of AEDPA are not applicable to section 2 1 2 (c ) applicants whose deportation proceedings commenced prior t o April 24, 1996, the effective date of AEDPA. . . . In [8 C.F.R. § 1212(3)(h)], the Department is implementing the Supreme Court's r u lin g in St. Cyr by providing eligibility and procedural r e q u ir e m e n t s for section 212(c) relief for aliens whose convictions w e r e entered after a plea agreement. . . . The commenter is correct in observing that the issue addressed in current § 1212.3(g) c o n t in u e s to be relevant to aliens whose deportation proceedings w e r e commenced prior to the enactment of AEDPA. The D e p a r tm e n t will therefore leave intact the existing provision of 8 C F R 1212.3(g), which will continue to govern cases falling within its p a ra m eters. S e c tio n 212(c) Relief for Aliens with Certain Criminal Convictions Before April 1 , 1997, 69 Fed. Reg. 57,826, 57,832 (Sept. 28, 2004). As this commentary d e m o n s t r a t e s , § 1212.3(h)(3) does not displace § 1212.3(g),5 much less § 309(c)(1)

The EOIR promulgated § 1212.3(g) in 2001, for the purpose of establishing a nationally uniform rule governing the applicability of AEDPA, after a number of courts had held that Congress did not intend for AEDPA to apply retroactively to proceedings commenced before its effective date. See Section 212(c) Relief for Certain Aliens in Deportation Proceedings Before April 24, 1996, 66 Fed. Reg. 6,436, 6,438 (Jan. 22, 2001) ("In the interest of the uniform and expeditious administration of the immigration laws, the Attorney General acquiesces on a nationwide basis in those appellate decisions holding that AEDPA section 440(d) is not to be applied in the cases of aliens whose deportation proceedings were commenced before AEDPA was enacted.").

5

12

Case: 08-60769

Document: 00511176700

Page: 13

Date Filed: 07/16/2010

No. 08-60769 o f IIRIRA. Therefore, we agree with the holding of the Second Circuit in GarciaP a d r o n ,6 and find that the fact that Enriquez's 2001 cocaine conviction occurred a ft e r the passage of AEDPA and IIRIRA does not mean it could not have been w a iv e d in his deportation proceedings.7 B. E n r iq u e z also argues that the BIA impermissibly considered the t r a n s c r ip t s of his 2004 deportation hearing and the oral decision of the IJ that r e s u lt e d from that proceeding, which he alleges were not properly made part of t h e record in his later removal proceedings. He argues that when the BIA a s s e s s e d the scope of his § 212(c) waiver, it should have only considered d o c u m e n t s made part of the record before the IJ. These documents included his a p p lic a t io n for § 212(c) relief, which disclosed his 1999 cocaine offense, and the w r it t en order of the IJ, which showed that his application was "granted," without fu r t h e r explanation. We find Enriquez's arguments unpersuasive and conclude t h a t the BIA did not err in consulting the transcripts, as it had authority to take a d m in is t r a t iv e notice of them. We review an agency's decision to take

a d m in is t r a t iv e notice for abuse of discretion. See Rivera-Cruz v. INS, 948 F.2d 9 6 2 , 966 (5th Cir. 1991). The BIA is prohibited from engaging "in factfinding in the course of d e c id in g appeals." 8 C.F.R. § 1003.1(d)(3)(iv); see also Procedural Reforms To I m p r o v e Case Management, 67 Fed. Reg. 54,878, 54,892 (Aug. 26, 2002)

In Requena-Rodriguez v. Pasquarell, we applied AEDPA's limits on § 212(c) relief against an alien who had been in deportation proceedings before AEDPA's passage. 190 F.3d 299, 301-02 (5th Cir. 1999). However, in that case, the alien had not argued that AEDPA "should not apply to deportation proceedings that were pending on the date it became effective." Id. at 306 n.26. Enriquez has now presented this argument. We also note that Enriquez is presently in removal proceedings, commenced long after AEDPA and IIRIRA became effective. Thus, we have no quarrel with the BIA's conclusion that Enriquez is ineligible for further relief under former § 212(c) in the removal proceedings from which this appeal has been taken.
7

6

13

Case: 08-60769

Document: 00511176700

Page: 14

Date Filed: 07/16/2010

No. 08-60769 (c h a r a c te r iz in g § 1003.1(d)(3)(iv) as codifying "Board precedent holding that new fa c t s will not be considered on appeal"). Accordingly, the record in removal p r o c e e d in g s before the BIA is limited to the "hearing before the immigration ju d g e , including the testimony, exhibits, applications, proffers, and requests, the im m ig r a t io n judge's decision, and all written orders, motions, appeals, briefs, a n d other papers filed in the proceedings." 8 C.F.R. § 1240.9. In this case, a lt h o u g h the jumbled state of the record makes it difficult to be sure, it appears t h a t the transcripts of the IJ's 2004 oral decision and the 2004 deportation h e a r in g were not made part of the record before the IJ in Enriquez's removal p r o c e e d in g s .8 The transcript of the 2004 oral decision is located in the portion o f the administrative record that includes materials presented to the IJ in E n r iq u e z 's 2005 removal proceedings, but it could not have been made part of t h e record before the IJ in 2005, as it was not transcribed until October 2006. It appears that the transcripts first entered the record on appeal before the BIA, w h e n hearing transcripts from Enriquez's terminated deportation proceedings w e r e mistakenly included in the record instead of hearing transcripts from his la t e r removal proceedings. As such, the transcripts do not seem to be part of the fo r m a l record in this case, as that term is defined in 8 C.F.R. § 1240.9.9 N e v e r t h e le s s , even assuming that the transcripts were not properly made p a r t of the record, the BIA was entitled to take administrative notice of them. Although the BIA may not engage in factfinding, it may take "administrative n o tic e of commonly known facts such as current events or the contents of official

This gap in the record before the IJ is hardly surprising, as Enriquez's 2005 removal proceedings were held before the same IJ that had previously granted his application for § 212(c) relief in 2004. The government argues that because it cited to the transcript in its briefing before the BIA, the transcript became part of the record before the BIA within the meaning of 8 C.F.R. § 1240.9. This argument is meritless, as it would allow parties to introduce new evidence never considered by the IJ into proceedings before the BIA.
9

8

14

Case: 08-60769

Document: 00511176700

Page: 15

Date Filed: 07/16/2010

No. 08-60769 d o c u m e n t s " pursuant to 8 C.F.R. § 1003.1(d)(3)(iv). We find that the transcripts a t issue in this case qualify as "official documents" under § 1003.1(d)(3)(iv). Usually, when the BIA takes notice of "official documents," it takes notice of S t a te Department reports discussing current events in foreign countries. See 67 F e d . Reg. at 54,892 (explaining that § 1003.1(d)(3)(iv) "make[s] clear that the B o a r d may take administrative notice . . . of the contents of official documents s u c h as the country condition reports prepared by the Department of State"). However, the text of § 1003.1(d)(3)(iv) does not limit the BIA to noticing only c o u n t r y condition reports, and we have previously held in the immigration c o n t e x t that courts "allow agencies `wide latitude in taking official notice.'" See R iv e r a -C r u z , 948 F.2d at 966 (quoting Kaczmarczyk v. INS, 933 F.2d 588, 596 (7 t h Cir.1991)). Consistent with this principle, we note that the Second Circuit h a s held that a state court decision disbarring an alien's counsel was an "official d o c u m e n t " under § 1003.1(d)(3)(iv) that the BIA had to consider in adjudicating a n ineffective assistance of counsel claim. See Yang v. Gonzales, 478 F.3d 133, 1 4 2 -4 3 (2d Cir. 2007). Similarly, as the government has pointed out, in the context of judicial n o tic e , we have previously held that "[a] court may take judicial notice of the r e c o r d in prior related proceedings, and draw reasonable inferences therefrom." I n re Missionary Baptist Found. of Am., Inc., 712 F.2d 206, 211 (5th Cir. 1983). Additionally, we have held that district courts have "the right to take notice of [t h e ir ] own files and records" in adjudicating cases between the same parties r a is in g substantially similar issues as those addressed in previous cases. Aloe C r e m e Labs., Inc. v. Francine Co., 425 F.2d 1295, 1296 (5th Cir. 1970) (per c u r ia m ). With these precedents in mind, we conclude that the BIA did not abuse it s discretion by taking administrative notice of the transcripts of prior p r o c e e d in g s involving Enriquez, the authenticity of which has not been c h a lle n g e d . Enriquez protests that the BIA never stated that it was taking 15

Case: 08-60769

Document: 00511176700

Page: 16

Date Filed: 07/16/2010

No. 08-60769 a d m in is t r a t iv e notice of the transcripts, but we see no error in the Board's fa ilu r e to recite that it was taking notice of them. Cf. Kona Tech. Corp. v. S. Pac. T r a n s p . Co., 225 F.3d 595, 613 (5th Cir. 2000) ("Even if a trial judge fails to m a k e a specific finding on a particular fact, the reviewing court may assume t h a t the court impliedly made a finding consistent with its general holding so lo n g as the implied finding is supported by the evidence."). Consequently, the t r a n s c r ip t s were properly before the BIA and are also properly before us on this a p p e a l. C. S in c e the transcripts are properly before us, we must now assess whether t h e BIA erred in concluding that Enriquez stipulated to exclude his 2001 cocaine c o n v ic t i o n from the reach of the § 212(c) waiver granted in his deportation p r o c e e d in g s . We find that the BIA's conclusion is contradicted by the transcript o f Enriquez's deportation proceeding, and that Enriquez expressly reserved the r ig h t to argue that his cocaine conviction fell under the § 212(c) waiver. A s an initial matter, we find that we have jurisdiction over Enriquez's c la im regarding the scope of his stipulation. We have already explained that the R E A L ID Act limits our jurisdiction in cases such as this to "constitutional c la im s or questions of law." 8 U.S.C. § 1252(a)(2)(D). Consequently, we may not r e v ie w any factual determinations made in Enriquez's immigration proceedings. In his briefing, Enriquez seems to assume that the BIA's determination r e g a r d in g the scope of his stipulation qualifies as a question of fact. As such, he a r g u e s that the BIA's "factual" error is so severe that it establishes a due process v io l a t i o n , which we could remedy since we retain jurisdiction over criminal a lie n s ' constitutional claims. See United States ex rel. Vajtauer v. Commissioner o f Immigration at Port of New York, 273 U.S. 103, 106 (1927) (holding that " [d ]e p o r t a tio n . . . on charges unsupported by any evidence is a denial of due p r o c e s s "). However, we need not address whether a factual error could ever 16

Case: 08-60769

Document: 00511176700

Page: 17

Date Filed: 07/16/2010

No. 08-60769 e s t a b lis h a due process violation reviewable under the REAL ID Act, as the s c o p e of the stipulation reached in Enriquez's deportation proceedings is a q u e s t io n of law. The Supreme Court has held that the "[d]etermination of the m e a n in g and effect of a stipulation . . . is not a factual finding;" instead, courts r e v i e w stipulations in the same manner they "review a determination of m e a n in g and effect of a contract, or consent decree, or proffer for summary ju d g m e n t ." Braxton v. United States, 500 U.S. 344, 350 (1991); see also United S ta te s v. Hollis, 506 F.3d 415, 419 (5th Cir. 2007) (explaining that meaning of s t ip u la t io n is reviewed de novo). Since the reach of Enriquez's stipulation p r e s e n t s a question of law, there is no barrier to our jurisdiction necessitating E n r iq u e z 's recourse to a due process claim. O u r jurisdiction established, we find that the transcript of Enriquez's April 2 0 0 4 deportation hearing unambiguously demonstrates that he did not stipulate t o exclude his 2001 cocaine conviction from his § 212(c) waiver. At the hearing, t h e IJ stated that his grant of § 212(c) relief would not "resolve, of course, any fu t u r e issues concerning the 2001" cocaine conviction. In response, Enriquez's c o u n s e l immediately protested, "Well, we will, we would agree that it does, by la w , Judge. The Government is . . . not stipulating to that, but we are also not s t ip u la t in g that it doesn't--we will argue . . . that by law it does." It is true that E n r iq u e z then accepted the government's offer to stipulate to relief for his 1980 a n d 1990 convictions and stood by as relief was granted for those convictions by t h e IJ. But this in no way indicates that Enriquez was forfeiting his opportunity t o argue that the § 212(c) waiver reached further than those convictions. The h e a r in g transcript flatly contradicts the BIA's conclusion regarding the scope of E n r iq u e z 's stipulation; indeed, at oral argument, the government conceded that E n r i q u e z did not stipulate to exclude his 2001 cocaine conviction from the IJ's g r a n t of § 212(c) relief. T h a t said, if the BIA's decision provided valid grounds for removing 17

Case: 08-60769

Document: 00511176700

Page: 18

Date Filed: 07/16/2010

No. 08-60769 E n r iq u e z irrespective of this error, we would be able to affirm the BIA. However, this is not possible, as the error fundamentally undermines the B o a r d 's rationale for affirming the IJ's order removing Enriquez. In its decision, t h e BIA's apparent reasoning was that the government could remove Enriquez o n the basis of his 2001 cocaine conviction because (i) § 212(c) relief was u n a v a ila b le for the cocaine conviction because it postdated IIRIRA, (ii) Enriquez s t ip u la t e d that the § 212(c) waiver granted in his deportation proceedings would n o t cover his 2001 cocaine conviction, (iii) res judicata could not apply to block r e m o v a l on the basis of a conviction that, by stipulation, was not covered in prior p r o c e e d in g s , and (iv) the government had been under no obligation to bring all a v a ila b le deportation charges against Enriquez in his deportation proceedings, a ls o barring a claim of res judicata. We have already rejected the claim that E n r i q u e z was categorically ineligible for § 212(c) relief for his 2001 conviction b e c a u s e it postdated IIRIRA. We have also now rejected the contention that E n r iq u e z stipulated that his 2001 cocaine conviction was not covered by his w a iv e r . After these two conclusions, the BIA's third point is now invalid. Also, t h e BIA's fourth point is irrelevant--even if the government had been under no o b lig a t io n to bring all possible deportation charges against Enriquez in his d e p o r t a t io n proceedings, if the § 212(c) waiver covered his 2001 cocaine c o n v ic t io n , he could not now be removed on the basis of that conviction. Due to t h e BIA's erroneous conclusion regarding the scope of Enriquez's stipulation, it n e v e r addressed his argument that, as a matter of law, the § 212(c) waiver had t o include his disclosed 2001 cocaine conviction, notwithstanding the IJ's failure t o include the cocaine conviction in his oral grant of relief. If Enriquez can p r e v a il on this issue, he may avoid removal, at least for his 2001 cocaine c o n v ic tio n . O f course, none of this resolves Enriquez's removability on the basis of his 2 0 0 1 firearms offense, which he has conceded. Even if he cannot be removed for 18

Case: 08-60769

Document: 00511176700

Page: 19

Date Filed: 07/16/2010

No. 08-60769 h is 2001 cocaine conviction because of the § 212(c) waiver, he could still be r e m o v e d for his firearms offense. The BIA correctly noted that under 8 U.S.C. § 1229b(c)(6), Enriquez is ineligible for cancellation of removal under INA § 240A b e c a u s e he is a prior recipient of relief under former INA § 212(c). However, the B I A failed to discuss Enriquez's claim that he is eligible for adjustment of status fo r his firearms offense. Although it is unclear if Enriquez remains eligible for a d ju s tm e n t of status, since the BIA has not addressed this issue, we are r e lu c t a n t to address it at this stage, given our obligation to restrict our review t o the BIA's stated rationale for its decision. Kwon, 646 F.2d at 916.1 0 Enriquez c o u ld yet avoid removal, if he can show that his § 212(c) waiver had to cover his d is c lo s e d 2001 cocaine conviction. D. E n r iq u e z asks us to rule that, as a matter of law, the IJ's grant of § 212(c) r e lie f necessarily had to include Enriquez's 2001 cocaine conviction, which was d is c lo s e d in his application for relief. Enriquez largely bases this argument on 8 C.F.R. § 1212.3(d), which provides that "the approval [of a § 212(c) waiver] c o v e r s only those specific grounds of excludability, deportability, or removability t h a t were described in the [alien's] application." T h e BIA never ruled on this issue because it incorrectly concluded that E n r iq u e z had stipulated that his 2001 cocaine conviction would not be covered b y the § 212(c) waiver. The Supreme Court has cautioned us that when the BIA h a s not yet considered an issue, "a court of appeals should remand a case to an a g e n c y for decision of a matter that statutes place primarily in agency hands." Orlando Ventura, 537 U.S. at 16. Since "we will defer to the BIA's interpretation

Although we only review the BIA's decision, and not that of the IJ, we note that the IJ ruled that Enriquez was ineligible for adjustment of status because it found that his 2001 cocaine conviction qualified as an aggravated felony. As explained earlier in footnote 4, the Supreme Court's recent decision in Carachuri-Rosendo has undermined that conclusion. No. 09-60.

10

19

Case: 08-60769

Document: 00511176700

Page: 20

Date Filed: 07/16/2010

No. 08-60769 o f immigration regulations if the interpretation is reasonable," see Lopez-Gomez v . Ashcroft, 263 F.3d 442, 444 (5th Cir. 2001), and the BIA has not yet spoken on t h is question, we find that it would be inappropriate to rule on this issue at this t im e . If necessary for the resolution of this case, the BIA or an IJ can address t h is issue on remand.1 1 III. T h u s , we hold that the BIA erroneously overstated the scope of the s t ip u la t io n reached in Enriquez's deportation proceedings. We also conclude t h a t this error fatally undermines the BIA's stated rationale for removing E n r iq u e z from the United States. However, we remand this case to the BIA, as w e express no opinion on whether Enriquez could yet still be removed under a d iffe r e n t rationale. C o n s e q u e n t ly , Enriquez's petition for review is GRANTED, the decision o f the BIA is VACATED, and this case is REMANDED for further proceedings c o n s is t e n t with this opinion.

The government argues that if Enriquez was dissatisfied with the IJ's decision to limit the grant of § 212(c) relief to the 1980 and 1990 convictions, he should have appealed that decision and may not argue now in these proceedings that the grant covered his 2001 cocaine conviction. Since the BIA found that Enriquez had stipulated to limit the scope of the § 212(c) waiver, it did not address this argument in its decision, and thus we also leave this issue to be addressed on remand.

11

20