Enriquez-Gutierrez v. Holder

Case: 08-60769 Document: 00511176700 Page: 1 Date Filed: 07/16/2010

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
July 16, 2010

No. 08-60769 Lyle W. Cayce
Clerk

RAUL ENRIQUEZ-GUTIERREZ

Petitioner

v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL

Respondent

Petition for Review of an Order of the
Board of Immigration Appeals

Before JONES, Chief Judge, and BENAVIDES and PRADO, Circuit Judges.
FORTUNATO P. BENAVIDES, Circuit Judge:
Raul Enriquez-Gutierrez petitions for review of a decision of the Board of
Immigration Appeals (“BIA” or “Board”) ordering him removed from this
country. The BIA found that Enriquez is removable on the basis of a 2001
conviction for cocaine possession, but Enriquez protests that in an earlier
deportation proceeding, he received a waiver of deportation covering that
conviction under former § 212(c) of the Immigration and Nationality Act (“INA”).
The BIA concluded, however, that Enriquez had stipulated that his 2001 cocaine
conviction would be excluded from coverage under that waiver. At oral
argument before this Court, the government conceded that Enriquez had not
stipulated that his 2001 cocaine conviction would be excluded from the waiver.
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We find that the transcript of Enriquez’s deportation hearing reveals that the
BIA’s conclusion regarding the stipulation is incorrect. We also conclude that
the BIA’s opinion does not otherwise state a valid rationale for removing
Enriquez from this country. Consequently, we vacate the decision of the BIA
and remand this case for further proceedings.
I.
Enriquez is a citizen of Mexico, but became a lawful permanent resident
of this country in 1976. In 1980, he was convicted of an offense relating to alien
smuggling, and subsequently was convicted in 1990 for felony delivery of
marijuana. After his marijuana conviction, the Immigration and Naturalization
Service (“INS”) commenced deportation proceedings against Enriquez in 1991.
Enriquez conceded that his marijuana conviction rendered him eligible for
deportation, but he sought a waiver of deportation under former § 212(c) of the
INA. Under former § 212(c), the Attorney General had discretion to allow aliens
subject to deportation to remain in this country, so long as they had maintained
“a lawful unrelinquished domicile of seven consecutive years” in the United
States, had not been convicted of “one or more aggravated felonies,” and had not
“served for such felony or felonies a term of imprisonment of at least 5 years.”
See 8 U.S.C. § 1182(c) (1994).1
The immigration judge (“IJ”) refused to grant Enriquez a waiver in May
1991, and the BIA dismissed Enriquez’s appeal of the IJ’s decision in July 1994.

1
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).

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Several months after this dismissal, Enriquez filed a motion seeking
reconsideration and reopening of his case, but the motion remained pending
before the BIA for more than seven years. Finally, in February 2002, the BIA
declined to reconsider its 1994 decision, but agreed to reopen Enriquez’s
deportation proceedings. The BIA remanded Enriquez’s case to an IJ, to allow
Enriquez an opportunity to demonstrate that he now merited § 212(c) relief
given the decade that had passed since his deportation proceedings began.
In the interim, however, several important developments had occurred.
Enriquez had been convicted of two additional crimes in 2001, possession of a
firearm in violation of state law and possession of less than a gram of cocaine.
Additionally, in 1996, Congress had considerably rewritten the nation’s
immigration laws, restricting grants of § 212(c) relief and then repealing the
provision altogether. First, the Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”) placed new restrictions on the eligibility of certain aliens for
waivers of deportation under § 212(c). Pub. L. No. 104-132, § 440(d), 110 Stat.
1214, 1277. Second, shortly after the passage of AEDPA, Congress passed the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009-546. IIRIRA repealed § 212(c)
and replaced it with INA § 240A, a more restrictive provision that only allows
the Attorney General to “cancel” the removal of aliens if they have not been
convicted of an aggravated felony. See 8 U.S.C. § 1182(c) (2006) (former INA §
212(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
certain deportation and removal proceedings. Notably, in INS v. St. Cyr, the
Supreme Court ruled that IIRIRA’s repeal of § 212(c) could not be applied
retroactively to aliens who had pleaded guilty before the passage of IIRIRA and
whose guilty pleas to deportable offenses may have been entered with the
expectation that they would be eligible for discretionary waiver of deportation.

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533 U.S. 289, 326 (2001).
On remand before a new IJ, the government chose not to bring new
deportation charges against Enriquez for his 2001 convictions, but Enriquez filed
an updated application requesting § 212(c) relief. Since 8 C.F.R. § 1212.3(d)
provides that the approval of an application for § 212(c) relief only covers “those
specific grounds of excludability, deportability, or removability that [are]
described in [an alien’s] application,” Enriquez disclosed that he might be
deportable due to “convictions for controlled substance offenses, 1990 & 1999.”
His disclosure of a 1999 controlled substance offense was actually a reference to
his 2001 conviction for cocaine possession, for which he had been arrested in
1999. However, whatever ambiguity was created by Enriquez’s reference to a
“1999” conviction was cured by his attachment to his application of a record of
his cocaine conviction, showing that the underlying offense occurred in 1999 but
that he was convicted in 2001. Notably, Enriquez did not seek a waiver for his
2001 firearm conviction, as such relief had historically been unavailable under
the former § 212(c). See Chow v. INS, 12 F.3d 34, 38 (5th Cir. 1993).
What next occurred at Enriquez’s deportation hearing in April 2004 is the
primary 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
smuggling conviction and his 1990 marijuana conviction. Enriquez’s counsel and
the IJ agreed to a stipulation of relief for these offenses, but at the close of the
hearing, the following exchange occurred between Enriquez’s counsel and the IJ:
JUDGE FOR THE RECORD
Submitted. 04/29, today. There’s no other issue or fact of law
and the parties have stipulated to the grant of the 212(c) relief for
the offenses that occurred 1990 and before, then nothing else to
resolve. That doesn’t resolve, of course, any future issues
concerning the 2001 [conviction].
MS. BRODYAGA TO JUDGE
Well, we will, we would agree that it does, by law, Judge. The

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Government is . . . not stipulating to that, but we are also not
stipulating that it doesn’t—we will argue . . . that by law it does.
JUDGE TO MS. BRODYAGA
Sure.
MS. BRODYAGA TO JUDGE
But we have no problem with their position and are happy to
accept the grant.

The IJ then proceeded to grant Enriquez’s application for a § 212(c) waiver and
stated in an oral decision that “the Court finds that the parties have stipulated
to the grant of the 212(c) relief on the issues that were remanded by the Board
for consideration, and that is the [1990] conviction and any other crime that
occurred prior to 1990 that brought the respondent into deportation
proceedings.” Thus, although the IJ orally limited his grant of § 212(c) relief to
Enriquez’s 1980 and 1990 convictions, Enriquez’s counsel clearly reserved the
right to argue that the waiver also by law covered his disclosed 2001 cocaine
conviction.
Soon after, in October 2004, the government served a new notice to appear
on Enriquez, alleging that he was eligible for removal from the United States on
the basis of his 2001 cocaine and firearm convictions. The government asserted
removal on the basis of three statutory provisions. It claimed that Enriquez was
removable because he had been convicted of breaking a law “relating to a
controlled substance,” see 8 U.S.C. § 1227(a)(2)(B)(i), and had been convicted of
“possessing, or carrying . . . a firearm . . . in violation of . . . law.” See
§ 1227(a)(2)(C). It also claimed that Enriquez had been convicted of an
“aggravated felony,” see § 1227(a)(2)(A)(iii), as defined at 8 U.S.C.
§ 1101(a)(43)(B) to include “a drug trafficking crime,” which in turn is defined
at 18 U.S.C. § 924(c)(2) to include “any felony punishable under the Controlled
Substances Act (21 U.S.C. § 801 et seq.).” As described above, the significance
of the aggravated felony charge is that permanent resident aliens like Enriquez

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are 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).
The government’s new removal charges against Enriquez were eventually
heard before the same IJ who had initially granted § 212(c) relief in Enriquez’s
earlier deportation proceedings. As expected, Enriquez argued that his § 212(c)
waiver blocked removal on the basis of his 2001 cocaine conviction. He also
argued that although he could be removed due to his firearms conviction, he was
eligible for adjustment of status, which would allow him to remain in the United
States.2 In November 2005, the IJ rejected these arguments and ordered
Enriquez removed to Mexico. The IJ found that, as a matter of law, his previous
grant of § 212(c) relief could not have covered Enriquez’s 2001 cocaine conviction,
since § 212(c) had already been repealed for five years by 2001. The IJ explained
that although the Supreme Court had ruled in INS v. St. Cyr that § 212(c) relief
was available to aliens who had pleaded guilty to crimes before the passage of
AEDPA and IIRIRA, Enriquez’s convictions postdated both, rendering St. Cyr
inapplicable to his case. 533 U.S. at 326. He also found that Enriquez’s 2001
cocaine conviction was an aggravated felony, making him ineligible for
adjustment of status for his firearms offense.
On appeal, the BIA affirmed the IJ’s decision, but under a somewhat

2
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.

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different rationale. The BIA seemingly agreed with the IJ’s conclusion that
Enriquez’s 2001 cocaine conviction had been ineligible for a § 212(c) waiver
because it postdated the passage of AEDPA and IIRIRA.3 However, the BIA also
expanded on the IJ’s analysis. The Board reviewed the transcript of Enriquez’s
April 2004 deportation hearing, which had apparently not been made part of the
record in Enriquez’s removal proceedings before the IJ. Based on its review of
the transcript, the Board surprisingly found that Enriquez had stipulated to
limit the grant of § 212(c) relief in that proceeding to his 1980 and 1990
convictions, excluding his 2001 cocaine conviction. The BIA explained that
under 8 C.F.R. § 1212.3(d), a § 212(c) waiver only covers the specific grounds of
deportability that were disclosed in the alien’s application, and that therefore it
was 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
remove Enriquez on the basis of his 2001 cocaine conviction, since res judicata
was inapplicable to claims “which were stipulated to as not being covered in
prior immigration proceedings” and since the government had been under no
obligation 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
cocaine conviction, and that he therefore could be removed for that conviction.
Having established Enriquez’s removability, the Board next found that his
2001 cocaine conviction was an aggravated felony,4 making Enriquez ineligible

3
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.
4
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

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for discretionary cancellation of removal under § 240A. The Board also noted
that Enriquez was ineligible for § 240A relief because he had already been
granted § 212(c) relief once before. See 8 U.S.C. § 1229b(c)(6). Consequently, it
affirmed the IJ’s order removing Enriquez to Mexico. The BIA did not discuss
Enriquez’s eligibility for adjustment of status for his 2001 firearms conviction,
presumably because the BIA’s determination that Enriquez could be removed for
his 2001 cocaine conviction rendered this issue irrelevant. Enriquez now
petitions for review of the BIA’s order affirming his removal from the United
States.
II.
Our jurisdiction in this case is governed by 8 U.S.C. § 1252. This provision
generally prohibits judicial review of “any final order of removal against an alien
who is removable by reason of having committed” certain criminal offenses,
including controlled substance and firearms offenses like those for which
Enriquez has been convicted. See 8 U.S.C. §§ 1252(a)(2)(C); 1227(a)(2)(B)(i)
(controlled substances offenses); 1227(a)(2)(C) (firearms offenses). However, the
REAL 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
raised 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.

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accordance with this section.” 8 U.S.C. § 1252(a)(2)(D). Consequently, to the
extent that Enriquez’s petition raises legal or constitutional issues, we have
jurisdiction to address them. Unless otherwise noted below, we review such
legal and constitutional issues de novo. See Larin-Ulloa v. Gonzales, 462 F.3d
456, 461 (5th Cir. 2006).
In appeals such as this, we generally only have authority to review the
BIA’s decision, although we may also review the IJ’s decision when it has some
impact on the BIA’s decision, as when the BIA has adopted all or part of the IJ’s
reasoning. See Zhu v. Gonzales, 493 F.3d 588, 593 (5th Cir. 2007). In this case,
although the BIA agreed with the IJ’s analysis in certain respects, the BIA’s
decision does not rely on the IJ’s decision, and thus our review is confined to the
BIA’s analysis and reasoning. Additionally, since the BIA is a division of the
Executive Office for Immigration Review (“EOIR”), and a “‘judicial judgment
cannot be made to do service for an administrative judgment,’” see INS v.
Orlando Ventura, 537 U.S. 12, 16 (2002) (per curiam) (quoting SEC v. Chenery
Corp., 318 U.S. 80, 88 (1943)), we may usually only affirm the BIA on the basis
of its stated rationale for ordering an alien removed from the United States. See
Kwon v. INS, 646 F.2d 909, 916 (5th Cir. 1981) (in reviewing BIA decision,
explaining that “we are not permitted to consider reasons [for the BIA’s decision]
other than those it advanced”). However, in certain circumstances, there may
be limited exceptions to this rule. Even if there is a reversible error in the BIA’s
analysis, affirmance may be warranted “where there is no realistic possibility
that, 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).
Enriquez raises a number of challenges to the BIA’s removal order. First,
he asserts that his 2001 cocaine conviction was eligible for a § 212(c) waiver in
his 2004 deportation proceedings, despite the fact that his conviction occurred
after the passage of AEDPA and IIRIRA. Second, he argues that the BIA went

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beyond its authority in reviewing the transcript of his April 2004 deportation
hearing, which was apparently not made part of the record before the IJ in his
later removal proceedings. Third, he contends that the BIA erred in determining
that he stipulated that the § 212(c) waiver granted in his 2004 deportation
proceedings would not cover his 2001 cocaine conviction. Fourth, he asserts that
as a matter of law, his 2001 cocaine conviction was included within the IJ’s 2004
waiver because he disclosed the conviction in his application for § 212(c) relief,
pursuant to 8 C.F.R. § 1212.3(d). We now address these issues in turn.
A.
Although Enriquez’s 2001 cocaine conviction occurred after the passage of
IIRIRA, 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
decision could be read as holding that the 2001 cocaine conviction could not have
been waived under § 212(c) in Enriquez’s deportation proceedings, as his
conviction postdated the passage of AEDPA and IIRIRA. The BIA noted that
Enriquez was ineligible for relief under St. Cyr, as he had pleaded guilty in 2001
for his cocaine offense long after AEDPA became effective. The BIA also
supported its conclusion by pointing to 8 C.F.R. § 1212.3(h)(3), which provides
that “[s]ection 212(c) relief is not available with respect to convictions arising
from plea agreements made on or after April 1, 1997.” Relying on similar
arguments, the government once asserted during this appeal that Enriquez’s
§ 212(c) waiver could not have covered his 2001 cocaine conviction. However, the
government subsequently abandoned this argument in a Rule 28(j) letter
notifying us of the Second Circuit’s recent opinion in Garcia-Padron v. Holder,
558 F.3d 196 (2d Cir. 2009).
In Garcia-Padron, as in this case, the Second Circuit had to determine
whether an alien who had been in deportation proceedings prior to the passage
of AEDPA and IIRIRA could receive a § 212(c) waiver of deportation for a

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conviction 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
that clarify that AEDPA and IIRIRA’s limitations on § 212(c) relief do not
generally apply to deportation proceedings commenced before their effective
dates. See id. at 200-201 & n.5. Section 309(c)(1)(A) of IIRIRA establishes that,
subject 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 3009-
625. 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
proceedings were commenced before the Immigration Court before April 24,
1996.” Therefore, the Second Circuit found that AEDPA and IIRIRA do not
restrict the availability of § 212(c) relief for an alien in deportation proceedings
that began before the effective date of both statutes.
The Second Circuit also explained that 8 C.F.R. § 1212.3(h)(3) is not in
conflict with this conclusion. The court found that § 1212.3(h)(3) merely codifies
the holding in St. Cyr, where the Supreme Court held that the repeal of § 212(c)
could not be applied retroactively to aliens placed into removal proceedings after
passage 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
reasoned that in Garcia-Padron, the alien’s situation was “the reverse of that
present in St. Cyr: his deportation proceeding began under the
pre-AEDPA/IIRIRA regime, and his subsequent conviction occurred under the
post-AEDPA/IIRIRA regime.” Id. Consequently, the court held that because
Ҥ 1212.3(h) was promulgated to deal with a retroactivity problem not present
in [Garcia-Padron], the regulation cannot supersede the plain language of
IIRIRA section 309(c)(1), which preserves section 212(c) relief for [aliens] whose

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deportation proceedings began under the pre-IIRIRA regime.” Id.
This analysis is supported by the commentary published in the Federal
Register that accompanied the promulgation of § 1212.3(h)(3) and discussed the
regulation’s interaction with § 1212.3(g), the provision that makes AEDPA’s
limitations on § 212(c) relief inapplicable to deportation proceedings commenced
before AEDPA’s effective date. In this commentary, the EOIR explained that:
One commenter expressed concern that [8 C.F.R. § 1212(3)(h)]
would delete a previous rule issued by the Department that created
a procedure for eligible aliens to apply for section 212(c) relief. The
previous rule, sometimes referred to as the “Soriano rule,” . . . is
presently codified at 8 CFR 1212.3(g) [and provides] that the
limitations of section 440(d) of AEDPA are not applicable to section
212(c) applicants whose deportation proceedings commenced prior
to April 24, 1996, the effective date of AEDPA. . . . In [8 C.F.R.
§ 1212(3)(h)], the Department is implementing the Supreme Court’s
ruling in St. Cyr by providing eligibility and procedural
requirements for section 212(c) relief for aliens whose convictions
were entered after a plea agreement. . . . The commenter is correct
in observing that the issue addressed in current § 1212.3(g)
continues to be relevant to aliens whose deportation proceedings
were commenced prior to the enactment of AEDPA. The
Department will therefore leave intact the existing provision of 8
CFR 1212.3(g), which will continue to govern cases falling within its
parameters.
Section 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
demonstrates, § 1212.3(h)(3) does not displace § 1212.3(g),5 much less § 309(c)(1)

5
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.”).

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of IIRIRA. Therefore, we agree with the holding of the Second Circuit in Garcia-
Padron,6 and find that the fact that Enriquez’s 2001 cocaine conviction occurred
after the passage of AEDPA and IIRIRA does not mean it could not have been
waived in his deportation proceedings.7
B.
Enriquez also argues that the BIA impermissibly considered the
transcripts of his 2004 deportation hearing and the oral decision of the IJ that
resulted from that proceeding, which he alleges were not properly made part of
the record in his later removal proceedings. He argues that when the BIA
assessed the scope of his § 212(c) waiver, it should have only considered
documents made part of the record before the IJ. These documents included his
application for § 212(c) relief, which disclosed his 1999 cocaine offense, and the
written order of the IJ, which showed that his application was “granted,” without
further explanation. We find Enriquez’s arguments unpersuasive and conclude
that the BIA did not err in consulting the transcripts, as it had authority to take
administrative notice of them. We review an agency’s decision to take
administrative notice for abuse of discretion. See Rivera-Cruz v. INS, 948 F.2d
962, 966 (5th Cir. 1991).
The BIA is prohibited from engaging “in factfinding in the course of
deciding appeals.” 8 C.F.R. § 1003.1(d)(3)(iv); see also Procedural Reforms To
Improve Case Management, 67 Fed. Reg. 54,878, 54,892 (Aug. 26, 2002)

6
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.
7
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.

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(characterizing § 1003.1(d)(3)(iv) as codifying “Board precedent holding that new
facts will not be considered on appeal”). Accordingly, the record in removal
proceedings before the BIA is limited to the “hearing before the immigration
judge, including the testimony, exhibits, applications, proffers, and requests, the
immigration judge’s decision, and all written orders, motions, appeals, briefs,
and other papers filed in the proceedings.” 8 C.F.R. § 1240.9. In this case,
although the jumbled state of the record makes it difficult to be sure, it appears
that the transcripts of the IJ’s 2004 oral decision and the 2004 deportation
hearing were not made part of the record before the IJ in Enriquez’s removal
proceedings.8 The transcript of the 2004 oral decision is located in the portion
of the administrative record that includes materials presented to the IJ in
Enriquez’s 2005 removal proceedings, but it could not have been made part of
the 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,
when hearing transcripts from Enriquez’s terminated deportation proceedings
were mistakenly included in the record instead of hearing transcripts from his
later removal proceedings. As such, the transcripts do not seem to be part of the
formal record in this case, as that term is defined in 8 C.F.R. § 1240.9.9
Nevertheless, even assuming that the transcripts were not properly made
part 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
notice of commonly known facts such as current events or the contents of official

8
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.
9
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.

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No. 08-60769

documents” pursuant to 8 C.F.R. § 1003.1(d)(3)(iv). We find that the transcripts
at 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
State Department reports discussing current events in foreign countries. See 67
Fed. Reg. at 54,892 (explaining that § 1003.1(d)(3)(iv) “make[s] clear that the
Board may take administrative notice . . . of the contents of official documents
such 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
country condition reports, and we have previously held in the immigration
context that courts “allow agencies ‘wide latitude in taking official notice.’” See
Rivera-Cruz, 948 F.2d at 966 (quoting Kaczmarczyk v. INS, 933 F.2d 588, 596
(7th Cir.1991)). Consistent with this principle, we note that the Second Circuit
has held that a state court decision disbarring an alien’s counsel was an “official
document” under § 1003.1(d)(3)(iv) that the BIA had to consider in adjudicating
an ineffective assistance of counsel claim. See Yang v. Gonzales, 478 F.3d 133,
142-43 (2d Cir. 2007).
Similarly, as the government has pointed out, in the context of judicial
notice, we have previously held that “[a] court may take judicial notice of the
record in prior related proceedings, and draw reasonable inferences therefrom.”
In 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
[their] own files and records” in adjudicating cases between the same parties
raising substantially similar issues as those addressed in previous cases. Aloe
Creme Labs., Inc. v. Francine Co., 425 F.2d 1295, 1296 (5th Cir. 1970) (per
curiam). With these precedents in mind, we conclude that the BIA did not abuse
its discretion by taking administrative notice of the transcripts of prior
proceedings involving Enriquez, the authenticity of which has not been
challenged. Enriquez protests that the BIA never stated that it was taking

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No. 08-60769

administrative notice of the transcripts, but we see no error in the Board’s
failure to recite that it was taking notice of them. Cf. Kona Tech. Corp. v. S. Pac.
Transp. Co., 225 F.3d 595, 613 (5th Cir. 2000) (“Even if a trial judge fails to
make a specific finding on a particular fact, the reviewing court may assume
that the court impliedly made a finding consistent with its general holding so
long as the implied finding is supported by the evidence.”). Consequently, the
transcripts were properly before the BIA and are also properly before us on this
appeal.
C.
Since the transcripts are properly before us, we must now assess whether
the BIA erred in concluding that Enriquez stipulated to exclude his 2001 cocaine
conviction from the reach of the § 212(c) waiver granted in his deportation
proceedings. We find that the BIA’s conclusion is contradicted by the transcript
of Enriquez’s deportation proceeding, and that Enriquez expressly reserved the
right to argue that his cocaine conviction fell under the § 212(c) waiver.
As an initial matter, we find that we have jurisdiction over Enriquez’s
claim regarding the scope of his stipulation. We have already explained that the
REAL ID Act limits our jurisdiction in cases such as this to “constitutional
claims or questions of law.” 8 U.S.C. § 1252(a)(2)(D). Consequently, we may not
review any factual determinations made in Enriquez’s immigration proceedings.
In his briefing, Enriquez seems to assume that the BIA’s determination
regarding the scope of his stipulation qualifies as a question of fact. As such, he
argues that the BIA’s “factual” error is so severe that it establishes a due process
violation, which we could remedy since we retain jurisdiction over criminal
aliens’ constitutional claims. See United States ex rel. Vajtauer v. Commissioner
of Immigration at Port of New York, 273 U.S. 103, 106 (1927) (holding that
“[d]eportation . . . on charges unsupported by any evidence is a denial of due
process”). However, we need not address whether a factual error could ever

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No. 08-60769

establish a due process violation reviewable under the REAL ID Act, as the
scope of the stipulation reached in Enriquez’s deportation proceedings is a
question of law. The Supreme Court has held that the “[d]etermination of the
meaning and effect of a stipulation . . . is not a factual finding;” instead, courts
review stipulations in the same manner they “review a determination of
meaning and effect of a contract, or consent decree, or proffer for summary
judgment.” Braxton v. United States, 500 U.S. 344, 350 (1991); see also United
States v. Hollis, 506 F.3d 415, 419 (5th Cir. 2007) (explaining that meaning of
stipulation is reviewed de novo). Since the reach of Enriquez’s stipulation
presents a question of law, there is no barrier to our jurisdiction necessitating
Enriquez’s recourse to a due process claim.
Our jurisdiction established, we find that the transcript of Enriquez’s April
2004 deportation hearing unambiguously demonstrates that he did not stipulate
to exclude his 2001 cocaine conviction from his § 212(c) waiver. At the hearing,
the IJ stated that his grant of § 212(c) relief would not “resolve, of course, any
future issues concerning the 2001” cocaine conviction. In response, Enriquez’s
counsel immediately protested, “Well, we will, we would agree that it does, by
law, Judge. The Government is . . . not stipulating to that, but we are also not
stipulating that it doesn’t—we will argue . . . that by law it does.” It is true that
Enriquez then accepted the government’s offer to stipulate to relief for his 1980
and 1990 convictions and stood by as relief was granted for those convictions by
the IJ. But this in no way indicates that Enriquez was forfeiting his opportunity
to argue that the § 212(c) waiver reached further than those convictions. The
hearing transcript flatly contradicts the BIA’s conclusion regarding the scope of
Enriquez’s stipulation; indeed, at oral argument, the government conceded that
Enriquez did not stipulate to exclude his 2001 cocaine conviction from the IJ’s
grant of § 212(c) relief.
That said, if the BIA’s decision provided valid grounds for removing

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No. 08-60769

Enriquez irrespective of this error, we would be able to affirm the BIA.
However, this is not possible, as the error fundamentally undermines the
Board’s rationale for affirming the IJ’s order removing Enriquez. In its decision,
the BIA’s apparent reasoning was that the government could remove Enriquez
on the basis of his 2001 cocaine conviction because (i) § 212(c) relief was
unavailable for the cocaine conviction because it postdated IIRIRA, (ii) Enriquez
stipulated that the § 212(c) waiver granted in his deportation proceedings would
not cover his 2001 cocaine conviction, (iii) res judicata could not apply to block
removal on the basis of a conviction that, by stipulation, was not covered in prior
proceedings, and (iv) the government had been under no obligation to bring all
available deportation charges against Enriquez in his deportation proceedings,
also barring a claim of res judicata. We have already rejected the claim that
Enriquez was categorically ineligible for § 212(c) relief for his 2001 conviction
because it postdated IIRIRA. We have also now rejected the contention that
Enriquez stipulated that his 2001 cocaine conviction was not covered by his
waiver. After these two conclusions, the BIA’s third point is now invalid. Also,
the BIA’s fourth point is irrelevant—even if the government had been under no
obligation to bring all possible deportation charges against Enriquez in his
deportation proceedings, if the § 212(c) waiver covered his 2001 cocaine
conviction, he could not now be removed on the basis of that conviction. Due to
the BIA’s erroneous conclusion regarding the scope of Enriquez’s stipulation, it
never addressed his argument that, as a matter of law, the § 212(c) waiver had
to include his disclosed 2001 cocaine conviction, notwithstanding the IJ’s failure
to include the cocaine conviction in his oral grant of relief. If Enriquez can
prevail on this issue, he may avoid removal, at least for his 2001 cocaine
conviction.
Of course, none of this resolves Enriquez’s removability on the basis of his
2001 firearms offense, which he has conceded. Even if he cannot be removed for

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No. 08-60769

his 2001 cocaine conviction because of the § 212(c) waiver, he could still be
removed 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
because he is a prior recipient of relief under former INA § 212(c). However, the
BIA failed to discuss Enriquez’s claim that he is eligible for adjustment of status
for his firearms offense. Although it is unclear if Enriquez remains eligible for
adjustment of status, since the BIA has not addressed this issue, we are
reluctant to address it at this stage, given our obligation to restrict our review
to the BIA’s stated rationale for its decision. Kwon, 646 F.2d at 916.10 Enriquez
could yet avoid removal, if he can show that his § 212(c) waiver had to cover his
disclosed 2001 cocaine conviction.
D.
Enriquez asks us to rule that, as a matter of law, the IJ’s grant of § 212(c)
relief necessarily had to include Enriquez’s 2001 cocaine conviction, which was
disclosed 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]
covers only those specific grounds of excludability, deportability, or removability
that were described in the [alien’s] application.”
The BIA never ruled on this issue because it incorrectly concluded that
Enriquez had stipulated that his 2001 cocaine conviction would not be covered
by the § 212(c) waiver. The Supreme Court has cautioned us that when the BIA
has not yet considered an issue, “a court of appeals should remand a case to an
agency 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

10
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.

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No. 08-60769

of 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
this question, we find that it would be inappropriate to rule on this issue at this
time. If necessary for the resolution of this case, the BIA or an IJ can address
this issue on remand.11
III.
Thus, we hold that the BIA erroneously overstated the scope of the
stipulation reached in Enriquez’s deportation proceedings. We also conclude
that this error fatally undermines the BIA’s stated rationale for removing
Enriquez from the United States. However, we remand this case to the BIA, as
we express no opinion on whether Enriquez could yet still be removed under a
different rationale.
Consequently, Enriquez’s petition for review is GRANTED, the decision
of the BIA is VACATED, and this case is REMANDED for further proceedings
consistent with this opinion.

11
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.

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