Alfredo Garza Guerra v. Eric Holder, Jr.

Filing 511134529

Alfredo Garza Guerra v. Eric Holder, Jr.

Doc. 511134529

Case: 09-60624

Document: 00511134529

Page: 1

Date Filed: 06/07/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
June 7, 2010 N o . 09-60624 Lyle W. Cayce Clerk

A L F R E D O GARZA GUERRA, also known as Alfredo Garza­Guerra, P e titio n e r v. E R IC H. HOLDER, JR., U.S. ATTORNEY GENERAL, Respondent

P e t it io n for Review of an Order of th e Board of Immigration Appeals B I A No. A017 896 860

B e fo r e JONES, Chief Judge, and KING and HAYNES, Circuit Judges. P E R CURIAM:* A lfr e d o Garza Guerra petitions for review of an order of the Board of I m m ig r a t io n Appeals, vacating a grant of waiver of inadmissibility under former § 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (repealed 1 9 9 6 ). As we lack jurisdiction to review the Board's order, we DISMISS the p e t it io n

.
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
*

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Case: 09-60624

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Date Filed: 06/07/2010

No. 09-60624 I . BACKGROUND A l fr e d o Garza Guerra (Garza), a native and citizen of Mexico, is a lawful p e r m a n e n t resident (LPR) of the United States. Garza has lived in the United S t a te s since 1967, and most of his family members are U.S. citizens, including h is wife and three daughters. Garza has two convictions under Texas law. In 1 9 8 2 , he pleaded no contest to aggravated sexual assault of a child, was s e n t e n c e d to five years of imprisonment, and served six months. He pleaded g u ilt y to criminal mischief for slashing tires in 1983, for which he was sentenced t o 60 days. Garza contends he was wrongly convicted of both crimes. He denies a n y sexual contact with the victim in the 1982 conviction and contends that he o n ly pleaded no contest on advice of his defense attorney, who told him the p r o s e c u t io n would put the five-year-old victim on the stand and that the jury w o u ld believe the victim. As to the criminal mischief conviction, Garza contends t h a t a friend slashed his ex-girlfriend's tires, that Garza was merely in the w r o n g place at the wrong time, and that he pleaded guilty and agreed to pay for th e tires because he was confused. In 2006, Garza sought entry to the United States at a port of entry. B e c a u s e of Garza's prior convictions, the Department of Homeland Security (D H S ) charged Garza with removability under §§ 212(a)(2)(A)(i)(I) and (a)(2)(B) o f the Immigration and Nationality Act (INA), 8 U.S.C. § 1182. Before an I m m ig r a t io n Judge (IJ), Garza conceded both charges of removability but moved fo r a waiver of inadmissibility under former § 212(c) of the INA, 8 U.S.C. § 1182 (r e p e a le d 1996).1 The IJ conducted a balancing test between positive and

Section 212(c) offered a discretionary waiver of inadmissibility to LPRs who have established at least seven years of unrelinquished domicile in the U.S. and who would otherwise be inadmissible due to convictions. Section 212(c) was repealed in 1996, by the passage of the Anti-Terrorism and Effective Death Penalty Act (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (1996), and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009 (1996). However, in INS v. St. Cyr, the Supreme Court held that § 212(c) discretionary relief "remains available for aliens . . . whose convictions

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No. 09-60624 n e g a t iv e factors, including Garza's prior convictions. The IJ noted a number of p o s it iv e factors leaning in Garza's favor, including his long-time legal residence, h is U.S. citizen family members, his steady employment history, and his o w n e r s h ip of property. The IJ also discussed the "very serious" conviction for a g g r a v a t e d sexual assault of a child, noting that Garza did not demonstrate r e h a b i lit a t io n , as he continued to deny culpability for the underlying offense. H o w e v e r , the IJ was swayed by the facts that the conviction stemmed from c o n d u c t that occurred when Garza was only 17 years old, more than 25 years b e f o r e these proceedings commenced, and that Garza did not have any other c r i m in a l history involving sexual offenses. The IJ exercised his discretion to g r a n t Garza's § 212(c) motion for waiver of inadmissibility. The DHS appealed the IJ's decision to the BIA, which conducted a de novo r e v ie w of the grant of waiver. While the BIA acknowledged "favorable factors in the record, including [Garza's] family ties in the United States," it determined th a t the favorable factors were "greatly outweighed by the adverse ones, namely [G a r z a 's criminal convictions]" and his failure to accept responsibility for his c r im in a l conduct. The BIA noted in particular the young age of the victim in v o lv e d . Finding that Garza's "criminal and sexually predatory offenses"

g re a tly outweighed the equities in his favor, the BIA vacated the IJ's grant of a § 212(c) waiver. Garza filed a timely petition for review in this court. Garza challenges the B I A 's decision on the grounds that the BIA improperly conducted a de novo r e v ie w of the IJ's decision and failed to conduct a balancing test. The DHS

were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for § 212(c) relief at the time of their plea under the law then in effect." 533 U.S. 289, 326 (2001). While the language "of § 212(c) would appear to apply only to the admission of returning aliens, it [has been] interpreted by the BIA and the courts to allow certain removable aliens to apply for a discretionary waiver." Marquez­Marquez v. Gonzales, 455 F.3d 548, 551 n.8 (5th Cir. 2006). As Garza's convictions date from 1982 and 1983, he remains eligible for § 212(c) discretionary relief.

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No. 09-60624 c o n te n d s that we do not have jurisdiction to hear Garza's petition, as it merely q u e s t io n s a discretionary decision of the BIA and fails to raise a legal question. I I . DISCUSSION We have jurisdiction to determine our own jurisdiction.

M a r q u e z ­ M a r q u e z , 455 F.3d at 554. Our jurisdiction to review final orders of r e m o v a l is limited. Id. at 553­54. The IIRIRA strips federal courts of

"ju r is d ic tio n to review any final order of removal against an alien who is re m o v a b le" because he committed criminal offenses covered under § 1182(a)(2).2 8 U.S.C. § 1252(a)(2)(C). Additionally, the IIRIRA divests federal courts of ju r is d ic t io n to hear challenges to discretionary decisions of the BIA, including t h e denial of § 212(c) relief. See 8 U.S.C. § 1252(a)(2)(B); Delgado­Reynua v. G o n z a l e s , 450 F.3d 596, 599­600 (5th Cir. 2006). However, we retain

ju r is d i c t io n to hear "constitutional claims or questions of law" raised by a p e t it io n for review, despite the two jurisdiction-stripping provisions cited above. 8 U.S.C. § 1252(a)(2)(D); see also Hadwani v. Gonzales, 445 F.3d 798, 800 (5th C ir . 2006) (per curiam). Because Garza concedes that he is removable under b o th §§ 1182(a)(2)(A)(i)(I) (moral turpitude) and 1182(a)(2)(B) (multiple c o n v ic t io n s ), §§ 1252(a)(2)(B) and (C) deprive us of jurisdiction to review Garza's c la im that the BIA erred in determining, in the exercise of discretion, that Garza d id not merit § 212(c) relief, unless his challenge presents a constitutional claim o r a question of law for purposes of § 1252(a)(2)(D). Cf. Marquez­Marquez, 455 F .3 d at 560­61. Garza argues that the BIA abused its discretion by improperly applying a de novo standard of review instead of reviewing for abuse of discretion. He

Under the IIRIRA, an alien who has been convicted of a crime of moral turpitude or of two or more offenses for which the aggregate sentence is five years or more in prison is inadmissible. See 8 U.S.C. §§ 1182(a)(2)(A)(i)(I) (moral turpitude), 1182(a)(2)(B) (multiple convictions). Garza conceded before the IJ that he was indeed removable under both of these subsections.

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No. 09-60624 c o n t e n d s that the application of an allegedly improper standard of review c o n s tit u te s a question of law, and therefore we have jurisdiction to consider this c la im .3 However, our circuit squarely addressed this issue in Delgado­Reynua, 4 5 0 F.3d at 599­600. There, the petitioner argued that we had jurisdiction to r e v ie w his challenge to the BIA's discretionary denial of § 212(c) relief because " t h e BIA improperly conducted de novo review, rather than reviewing the IJ's d e c i s io n for clear error." Id. at 599. We read this argument as an attempt to " p h r a s e [ ] his argument in legal terms" in order "to cloak a request for review of t h e BIA's discretionary decision, which is not a question of law." Id. at 599­600. L ik e the petitioner in Delgado­Reynua, Garza attempts to veil the argument th a t the BIA abused its discretion--which is clearly outside our jurisdiction--in te r m s of a legal question. a r g u m e n t .4 I n his brief, Garza initially asserts that the BIA did not conduct a b a la n cin g test. However, his argument on this point focuses exclusively on the B I A 's alleged failure to list all of the evidence presented in Garza's favor. To the e x t e n t that Garza argues that the BIA did not consider all the relevant factors in favor of granting waiver of inadmissibility, this argument is also outside of
To support this argument, Garza cites to a number of Fifth Circuit cases where we conducted abuse of discretion review of § 212(c) decisions, including Villarreal­San Miguel v. INS, 975 F.2d 248 (5th Cir. 1992), Ghassan v. INS, 972 F.2d 631 (5th Cir. 1992), Ashby v. INS, 961 F.2d 555 (5th Cir. 1992), Diaz­Resendez v. INS, 960 F.2d 493 (5th Cir. 1992), Luciano­Vincente v. INS, 786 F.2d 706 (5th Cir. 1986) (per curiam), and Osuchukwu v. INS, 744 F.2d 1136 (5th Cir. 1984). However, these cases pre-date the enactment of the jurisdiction-stripping provisions of the IIRIRA enacted in 1996; therefore, Garza's reliance is misplaced. Even if we had jurisdiction to consider Garza's argument that the BIA applied an incorrect standard of review, that argument would fail on the merits, as the administrative regulations that govern the BIA state that "[t]he [BIA] may review questions of law, discretion, and judgment and all other issues [other than findings of fact] in appeals from decisions of [IJs] de novo." 8 C.F.R. § 1003.1(d)(3)(ii). As the decision whether to grant waiver of inadmissibility under § 212(c) is discretionary, see St. Cyr, 533 U.S. at 294­95, the BIA did not err in conducting a de novo review of the IJ's decision.
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Accordingly, we lack jurisdiction to hear this

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No. 09-60624 o u r jurisdiction. Cf. Sung v. Keisler, 505 F.3d 372, 377 (5th Cir. 2007) (holding t h a t argument that IJ "did not consider all of the relevant factors" in a balancing in q u ir y did not pose a constitutional claim or question of law and therefore fell o u ts id e our jurisdiction). III. CONCLUSION F o r the foregoing reasons, we DISMISS the petition for lack of jurisdiction.

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