FILED
United States Court of Appeals
Tenth Circuit
June 24, 2008
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
TERESA ALVAREZ,
Petitioner, No. 07-9528
(Petition for Review)
v.
MICHAEL B. MUKASEY,
United States Attorney General,
Respondent.
ORDER AND JUDGMENT *
Before LUCERO and PORFILIO, Circuit Judges, and BRORBY, Senior Circuit
Judge.
Under former § 212(c) of the Immigration and Nationality Act (INA), a
lawful permanent resident subject to removal can apply for a discretionary waiver
of removal—often referred to as § 212(c) relief—if, among other things, the
ground for removal has a “comparable ground” (also referred to as “statutory
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
counterpart”) of inadmissability under former § 212(a) of the INA. Teresa
Alvarez seeks review of a final order of removal issued by the Board of
Immigration Appeals (BIA), vacating an Immigration Judge’s (IJ’s) grant of her
application for § 212(c) relief. She claims the BIA: (1) should have deemed
waived the government’s statutory-counterpart argument, (2) erroneously denied
her motion to remand, and (3) violated her right to equal protection of law. For
the reasons set forth below, the petition for review is DENIED.
I.
Ms. Alvarez, a native and citizen of Mexico, entered this country as a
lawful permanent resident in 1989. Three years later, she pleaded guilty in
Washington State court to second degree assault of her eleven-year-old son,
Mariano. See Wash. Rev. Code § 9A.36.021(1)(a). She was sentenced to one
year of imprisonment. In 2002, Ms. Alvarez’s conviction prompted the initiation
of removal proceedings, in which she was charged with removability as an alien
convicted of an aggravated felony, see 8 U.S.C. § 1227(a)(2)(A)(iii), because she
committed a “crime of violence,” see id. § 1101(a)(43)(F) (defining “‘aggravated
felony’” to mean “a crime of violence” under 18 U.S.C. § 16 “for which the term
of imprisonment [is] at least one year”).
Appearing before an IJ, Ms. Alvarez, through counsel, admitted and
conceded removability as an aggravated felon but sought § 212(c) relief. At a
subsequent merits hearing, she testified that she had been abusive to Mariano.
-2-
She testified that her felony conviction for second degree assault was the result of
her “slapp[ing] him” and “spank[ing] him with a stick” after he had misbehaved.
Admin. R. at 108. The IJ found Ms. Alvarez removable as charged but granted
§ 212(c) relief without identifying what comparable ground of inadmissibility
under § 212(a) made her eligible for such relief. The government appealed,
arguing that Ms. Alvarez was statutorily ineligible for § 212(c) relief because her
second degree assault conviction “does not have a comparable ground of
inadmissibility” that she “could seek to waive under former section 212(c) of the
Act.” Admin. R. at 82 (citing In re Esposito, 21 I. & N. Dec. 1, 7 (BIA 1995)).
The government also filed a motion to remand because the IJ did not provide a
separate oral or written decision. In December 2005, the BIA remanded the case,
noting that the IJ “neglected to prepare a separate order or written decision,” and
that “[a]n explanation of the reasons in the transcript is not sufficient.” Id. at 65.
In June 2006, the IJ issued an oral decision granting Ms. Alvarez § 212(c)
relief. The IJ noted that Ms. Alvarez was lawfully admitted to the United States
as a legal resident, had maintained an unrelinquished domicile for seven
consecutive years, and had family ties here. See Hem v. Maurer, 458 F.3d 1185,
1188-89 (10th Cir. 2006) (listing factors “favorable for granting” § 212(c)
relief). 1 He also acknowledged that although Ms. Alvarez had hurt Mariano and
1
Specifically, the IJ observed that “[Ms. Alvarez’s] mother and father and
all her relatives live in the United States, her children live in the United States,
(continued...)
-3-
had had an anger management problem, she was “a very low risk of
re-offending.” Admin. R. at 41. Moreover, Mariano was now in his twenties and
she had not “had much contact with him.” Id. The IJ further noted that
Ms. Alvarez and her teenaged daughters would experience hardship if she had to
pull them out of school and take them away from the steady job with which she
supported them. See Hem, 458 F.3d at 1188-89. The IJ concluded that § 212(c)
relief was appropriate because there was a “comparable statut[ory]” ground of
inadmissability. See Admin. R. at 42, 43. The IJ did not, however, identify the
“comparable statut[ory]” ground. Id.
The government appealed, again arguing that Ms. Alvarez was statutorily
ineligible for § 212(c) relief because her second degree assault conviction “was a
crime of violence” that did not have a “statutory counterpart in the grounds of
inadmissiblity under . . . section 212.” Id. at 27; see Zamora-Mallari v. Mukasey,
514 F.3d 679, 689-90 (7th Cir. 2008) (explaining that the “statutory counterpart”
analysis set forth in 8 C.F.R. § 1212.3(f)(5) codified the agency’s longstanding
judicially created “comparable ground” analysis). Ms. Alvarez filed an appellee
brief and a motion to remand, contending, among other things, that the
government had waived its statutory-counterpart argument by failing to raise it
1
(...continued)
she’s been here since approximately 1978. She’s been here more than 20 years.”
Admin. R. at 42.
-4-
before the IJ, and that United States v. Perez-Vargas, 414 F.3d 1282 (10th Cir.
2005), represented an intervening change in the law compelling a remand.
The BIA reversed the IJ’s decision, denied Ms. Alvarez’s motion to
remand, and ordered her removed from the United States to Mexico. In
particular, the BIA observed that Ms. Alvarez had “conceded that she was
removable as one convicted of an aggravated felony . . . and the [IJ] so found in
his decision.” Admin. R. at 2. Further, “the ‘crime of violence’ aggravated
felony . . . does not have a comparable ground of inadmissibility” that would
entitle Ms. Alvarez to § 212(c) relief. Id. This timely petition for review
followed.
II.
An explanation of the evolution of § 212(c) relief, 8 U.S.C. § 1182(c)
(repealed 1996), is set forth in INS v. St. Cyr, and need not be repeated here.
533 U.S. 289, 294-97 (2001); see also Valere v. Gonzales, 473 F.3d 757, 759-60
(7th Cir. 2007) (tracing evolution of § 212(c) relief). Suffice it to say that even
after the 1996 passage of the Antiterrorism and Effective Death Penalty Act and
the Illegal Immigration Reform and Immigrant Responsibility Act, § 212(c) relief
is still available to an alien, like Ms. Alvarez, whose conviction was obtained
through a plea agreement and who, notwithstanding that conviction, “would have
been eligible for § 212(c) relief at the time of [her] plea under the law then in
effect.” St. Cyr, 533 U.S. at 326. At the time of Ms. Alvarez’s plea, a lawful
-5-
permanent resident who had resided in this country for seven years and had not
served more than five years’ imprisonment for an aggravated felony conviction,
was “allowed to seek a § 212(c) waiver if the ground for removal [was] also a
[comparable or statutory] ground for exclusion.” Zamora-Mallari, 514 F.3d at
685. We now turn to the three issues raised by Ms. Alvarez in her petition for
review.
A.
Our jurisdiction to review a final order of removal arises under 8 U.S.C.
§ 1252(a), but it is not unlimited. Ms. Alvarez asserts that because the
government did not present its statutory-counterpart argument to the IJ in the first
instance, the BIA should have deemed the argument waived. Pet’r Opening Br.
at 16-17 (“‘The BIA has held that matters not raised before an IJ are not
preserved on appeal.’”) (quoting Torres de la Cruz v. Maurer, 483 F.3d 1013,
1022 (10th Cir. 2007)). This presents us with a question of law concerning the
propriety of the BIA’s (implicit) decision not to apply its waiver rule, which we
review de novo. See 8 U.S.C. § 1252(a)(2)(D) (allowing judicial “review of . . .
questions of law”); Ferry v. Gonzales, 457 F.3d 1117, 1126 (10th Cir. 2006) (“We
review the BIA’s legal determinations de novo.”); Sidabutar v. Gonzales,
503 F.3d 1116, 1122 (10th Cir. 2007) (setting forth this court’s duties in
reviewing a BIA decision). Further, “[o]ur scope of review directly correlates to
the form of the BIA decision.” Id. at 1123. Where, as here, a three-member
-6-
panel of the BIA issued a full opinion, that “opinion completely supercedes the IJ
decision for purposes of our review.” Uanreroro v. Gonzales, 443 F.3d 1197,
1203 (10th Cir. 2006).
Ms. Alvarez relies on Torres de la Cruz, 483 F.3d at 1022-23, to support
her contention that the BIA should have invoked its waiver rule to bar the
government’s statutory-counterpart argument. We are not persuaded by this
contention. The BIA has discretion whether to invoke its waiver rule.
See 8 C.F.R. § 1003.1(d)(2)(i)(A) (A “panel may summarily dismiss any appeal or
portion of any appeal in any case in which . . . [the] party concerned fails to
specify the reasons for the appeal.” (emphasis added)); Sidabutar, 503 F.3d
at 1120 (stating that “the BIA has discretionary authority to dismiss (and
conversely, accept) appeals lacking in specificity”). Indeed, in Torres de la Cruz
we concluded that “the doctrine of waiver can appropriately be applied by the
BIA under its rules and precedent,” not that the BIA must apply its waiver rule.
483 F. 3d at 1023 (emphasis added). This is consistent with our more-recent
observation that when
the BIA determines an issue administratively-ripe to warrant its
appellate review, we will not second-guess that determination.
Indeed, it is a touchstone of administrative law that “the formulation
of procedures [is] basically to be left within the discretion of the
agencies to which Congress had confided the responsibility for
substantive judgments.” Vermont Yankee Nuclear Power Corp. v.
Natural Resources Defense Council, Inc., 435 U.S. 519, 524 . . .
(1978). Administrative agencies “should be free to fashion their own
rules of procedure and to pursue methods of inquiry capable of
-7-
permitting them to discharge their multitudinous duties.” FCC v.
Pottsville Broadcasting Co., 309 U.S. 134, 143 . . . (1940).
Cf. Weinberger v. Salfi, 422 U.S. 749, 767 . . . (1975) (holding that
an agency may waive internal exhaustion requirements).
Sidabutar, 503 F.3d at 1120. Accordingly, we reject Ms. Alvarez’s contention
that the BIA should have deemed waived the government’s statutory-counterpart
argument. 2
B.
Ms. Alvarez next contends that the BIA should have granted her motion to
remand her case to the IJ (in which she sought to withdraw her previous
concession of removability) because “under the new rule stated in Perez-Vargas
she had not been convicted of a federal ‘crime of violence.’” Pet’r Opening Br.
at 27. The BIA disagreed. It held:
Perez-Vargas . . . [did] not establish a new framework for
determining whether a conviction constitutes a crime of violence,
such that application of this decision to the instant matter would
likely result in a changed outcome. Instead, [Perez-Vargas]
essentially reiterate[d] and employ[ed] the . . . framework established
2
We decline to consider Ms. Alvarez’s cursory assertion that the “BIA’s
selective enforcement of its ‘waiver rule’ . . . violates [her] right to due process of
law.” Pet’r Opening Br. at 15. See Bronson v. Swensen, 500 F.3d 1099, 1104
(10th Cir. 2007) (observing that this court has “routinely . . . declined to consider
arguments that . . . are inadequately presented . . . in an appellant’s opening
brief”). Although Ms. Alvarez discusses Tenth Circuit decisions in which the
BIA has imposed its waiver rule, she provides no supporting analysis or case law
demonstrating why the BIA’s “harsh[]” application of its waiver rule violates her
constitutional right to due process. Pet’r Opening Br. at 19. But even if she had
adequately presented her due process argument, the fact remains that whether the
BIA chooses to invoke its waiver rule is a discretionary decision and “we will not
second-guess that determination.” Sidabutar, 503 F.3d at 1120.
-8-
by the United States Supreme Court in Taylor v. United States,
495 U.S. 575 (1990), and previously employed by the Tenth Circuit
on numerous occasions. Accordingly, we find no basis to remand
these proceedings for additional adjudication.
Admin. R. at 3 (citations omitted).
The BIA’s denial of a motion to remand is held to the same substantive
standard as a motion to reopen. In re L-V-K, 22 I. & N. Dec. 976, 978
(BIA 1999); see 8 C.F.R. § 1003.2(c)(4). We have jurisdiction to review the
denial of a motion to reopen where judicial review of the underlying order is not
precluded. Infanzon v. Ashcroft, 386 F.3d 1359, 1361-62 (10th Cir. 2004). Here,
review of the underlying order is not precluded because the BIA’s denial of
§ 212(c) relief rested on its determination that Ms. Alvarez was statutorily
ineligible for § 212(c) relief—a determination that presents a question of law
regarding the applicability of § 212(c). See 8 U.S.C. § 1252(a)(2)(D).
We review the BIA’s denial of a motion to reopen for an abuse of
discretion. Infanzon, 386 F.3d at 1362. “The BIA abuses its discretion when its
decision provides no rational explanation, inexplicably departs from established
policies, is devoid of any reasoning, or contains only summary or conclusory
statements.” Id. (quotation omitted). None of these deficiencies are present in
the BIA’s order. Rather, the BIA denied reopening for logical, supportable
reasons.
-9-
C.
Finally, Ms. Alvarez contends that the BIA violated her right to equal
protection because § 212(c) relief—in particular the comparable-grounds
analysis—should not be “‘subject to meaningless and irrational hazards.’”
Pet’r Opening Br. at 31-32 (quoting Blake v. Carbone, 489 F.3d 88, 91 (2d Cir.
2007)). In other words, she asks this court to adopt the holding in Blake, grant
her petition for review, and remand her case to the BIA to determine whether her
underlying felony conviction for second degree assault is a crime of moral
turpitude. See Blake, 489 F.3d at 104 (holding “a deportable lawful permanent
resident with an aggravated felony conviction[] . . . eligible for a § 212(c) waiver
if his or her particular aggravated felony offense could form the basis of
exclusion under § 212(a) as a crime of moral turpitude” (emphasis added));
Pet’r Opening Br. at 33 (contending that a lawful permanent resident “with an
aggravated felony conviction,” like her, should be “eligible for a § 212(c) waiver
if . . . her particular [underlying] aggravated felony could form the basis of
exclusion under § 212(a) as a crime of moral turpitude” (emphasis added)).
We review the BIA’s application of the comparable-grounds analysis
de novo and decline Ms. Alvarez’s invitation to adopt Blake. See Ferry, 457 F.3d
at 1126. Instead, we join several circuits that have held that the statutorily
prescribed basis of removal (not the alien’s underlying offense) should be
compared to the statutory grounds of inadmissability under § 212(a). See Vue v.
-10-
Gonzales, 496 F.3d 858, 860 (8th Cir. 2007) (collecting cases); cf. Blake, 489
F.3d at 103-04 (collecting cases “at odds with” its holding). Here, Ms. Alvarez’s
aggravated-felony crime-of-violence conviction made her removable. Because
this ground of removal does not have a statutory counterpart in § 212(a), the BIA
correctly determined that she was not entitled to § 212(c) relief. See Caroleo v.
Gonzales, 476 F.3d 158, 168 (3d Cir. 2007) (“The BIA has held that the ‘crime of
violence’ aggravated felony ground for removal . . . is not ‘substantially
equivalent’ to INA § 212(a)’s ‘crime involving moral turpitude’ ground for
exclusion such that the two can be considered statutory counterparts.”) (citing In
re Brieva-Perez, 23 I. & N. Dec. 766, 733 (BIA 2005)); Chevron, U.S.A., Inc. v.
Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984) (deferring to any
reasonable interpretation given to a statute by the agency charged with
administering its terms). This also defeats Ms. Alvarez’s equal protection claim.
Vue, 496 F.3d at 860-61 (citing Valere, 473 F.3d at 762 and Rodriguez-Padron v.
INS, 13 F.3d 1455, 1459 (11th Cir. 1994)).
-11-
III.
The petition for review is DENIED. Ms. Alvarez’s Motion for Leave to
Proceed on Appeal Without Prepayment of Costs or Fees is GRANTED.
Entered for the Court
Wade Brorby
Senior Circuit Judge
-12-