United States Court of Appeals
For the First Circuit
No. 05-2157
JUAN ALVARO SANTA CRUZ-BUCHELI,
Petitioner,
v.
ALBERTO R. GONZÁLES,
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Selya, and Dyk,*
Circuit Judges.
Rosanna M. De Castro, on brief for petitioner.
William C. Minick, Attorney, Office of Immigration Litigation,
Civil Division, U.S. Department of Justice, Peter D. Keisler,
Assistant Attorney General, Civil Division, and James E. Grimes,
Senior Litigation Counsel, on brief for respondent.
September 22, 2006
*
Of the Federal Circuit, sitting by designation.
Per Curiam. In this petition for review, Juan Alvaro
Santa Cruz-Bucheli ("Santa Cruz") contests the decision of the
Board of Immigration Appeals ("BIA") denying his motion to reopen
his removal proceedings. We deny the petition for review and
affirm the decision of the BIA.
I. Background
Santa Cruz is a native and citizen of Colombia who has
been a permanent legal resident of the United States since 1965.
Since his arrival in this country, he has been convicted of several
offenses. Most relevant to this petition is Santa Cruz's May 23,
1996 conviction in a Florida state court for attempted trafficking
of a controlled substance (i.e., cocaine).
On July 25, 1996, Santa Cruz was placed in removal
proceedings when the Immigration and Naturalization Service
("INS")1 issued an Order to Show Cause charging him, inter alia,
with being removable under § 241(a)(2)(B)(i) of the Immigration and
Nationality Act ("INA"), 8 U.S.C. § 1251(a)(2)(B)(i), as an alien
convicted of a violation of any law relating to a controlled
substance.
1
The functions of the INS have since been transferred to the
Bureau of Immigration and Customs Enforcement, which is part of the
Department of Homeland Security. See Homeland Security Act of
2002, Pub. L. No. 107-296, § 471, 116 Stat. 2135, 2205 (codified as
amended at 6 U.S.C. § 291(a)). For simplicity, we refer to the INS
throughout this opinion.
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In late August 1996, a hearing was held before an
Immigration Judge ("IJ") to determine whether Santa Cruz should be
removed. During this hearing, Santa Cruz requested a discretionary
waiver of removal under former § 212(c) of the INA, 8 U.S.C. § 1182
(c) (repealed 1996).2 The INS argued that because of Santa Cruz's
controlled substance conviction and the restrictions promulgated
under the Anti-Terrorism and Effective Death Penalty Act of 1996,
Pub. L. No. 104-132, 110 Stat. 1214 ("AEDPA"), he was ineligible
for a discretionary waiver of removal under § 212(c). The IJ
agreed with the INS and ordered Santa Cruz's removal to Colombia.
Santa Cruz appealed the order to the BIA. On May 21,
1997, the BIA affirmed the decision of the IJ, finding Santa Cruz
statutorily ineligible for a § 212(c) discretionary waiver because
of his conviction for a controlled substance offense. The BIA
issued a final order of removal.
However, on June 30, 1999, the Assistant District
Director of the INS stayed the order of removal pending a
2
Under former § 212(c), an alien could seek from the Attorney
General a discretionary waiver of removal if the alien was
"lawfully admitted for permanent residence [and] temporarily
proceeded abroad voluntarily and not under an order of deportation,
and who [was] returning to a lawful unrelinquished domicile of
seven consecutive years." 8 U.S.C. § 1182(c) (repealed 1996).
While this statute literally would not apply to Santa Cruz because
he did not proceed abroad voluntarily, it has been judicially
enlarged to apply to give "the Attorney General discretionary
authority to waive deportation for aliens already within the United
States who were deportable." Wallace v. Reno, 194 F.3d 279, 281
(1999).
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determination that Santa Cruz, despite the decisions of the IJ and
BIA, might nevertheless have qualified for a § 212(c) waiver of
removal under In re Soriano, 21 I. & N. Dec. 516 (BIA 1996, A.G.
1997).3 While this determination was pending, Santa Cruz was
released from custody. After the BIA determined that Santa Cruz
was in fact ineligible for § 212(c) relief under In re Soriano, he
was arrested on May 5, 2005.
On May 17, 2005, Santa Cruz filed a motion to reopen with
the BIA, asking the BIA to remand his case to an immigration judge
for reconsideration of his eligibility for a § 212(c) waiver in
light of the Supreme Court's decision in INS v. St. Cyr, 533 U.S.
289 (2001). On June 18, 2005, the BIA denied the motion. The BIA
decided that the restrictions set forth in § 440(d) of AEDPA
governed Santa Cruz's eligibility for a waiver under § 212(c) and
that Santa Cruz was ineligible for a waiver under these
restrictions.4 Santa Cruz now appeals the BIA's decision.
3
In In re Soriano, the BIA held that § 440(d) of AEDPA did not
apply to § 212(c) requests pending as of April 24, 1996, when AEDPA
became effective. Because Santa Cruz filed his application for a
§ 212(c) waiver after April 24, 1996, he did not qualify for In re
Soriano relief.
4
AEDPA had an effective date of April 24, 1996. On September 30,
1996, Congress enacted the Illegal Immigration Reform and Immigrant
Responsibility Act ("IIRIRA"), which eliminated § 212(c) relief
entirely, effective April 1, 1997. See IIRIRA, Pub. L. No. 104-
208, § 304(b), 110 Stat. 3009-546, 597 (1996). In Santa Cruz's
case, the BIA explained that because Santa Cruz's controlled
substance conviction occurred on May 23, 1996 -- after the
effective date of AEDPA but before the effective date of IIRIRA --
his eligibility for a § 212(c) waiver was governed by § 212(c) as
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II. Discussion
A. Standard of Review
We review the BIA's denial of a motion to reopen for
abuse of discretion. See INS v. Doherty, 502 U.S. 314, 323 (1992);
Falae v. Gonzáles, 411 F.3d 11, 14 (1st Cir. 2006). We find an
abuse of discretion if the BIA has made an error of law or acted in
a manner that is arbitrary or capricious. See Carter v. INS, 90
F.3d 14, 17 (1st Cir. 1996); see also Henry v. INS, 74 F.3d 1, 4
(1st Cir. 1996) (further explaining that we would find an abuse of
discretion if the BIA considered improper factors, failed to
consider a relevant factor, or assigned a factor improper weight in
making a determination).
B. The Motion to Reopen
Santa Cruz argues that the BIA erred in denying his
motion to reopen because it improperly applied § 440(d) of AEDPA to
bar him from seeking a waiver of removal under former § 212(c) of
the INA.5 Section 440(d) of AEDPA made an alien ineligible for a
waiver of removal if he or she had committed inter alia, any
offense covered in § 241(a)(2)(B)(i) of the INA, which includes "a
amended by AEDPA as it stood prior to the enactment of IIRIRA. The
BIA found that under § 440(d) of AEDPA, § 212(c) relief is not
available to aliens such as Santa Cruz who are removable by reason
of having committed a controlled substance offense.
5
In other words, Santa Cruz is arguing that because AEDPA did not
apply, he would be eligible to seek a waiver of removal because he
satisfies all of the requirements of former § 212(c).
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violation of any law or regulation of a State, the United States,
or a foreign country relating to a controlled substance." Santa
Cruz contends that § 440(d) of AEDPA may not be applied to bar
§ 212(c) relief to an alien who engaged in criminal conduct prior
to the effective date of AEDPA but who has been convicted by a
guilty plea made after the effective date of AEDPA. Santa Cruz
offers three cases in support of this argument.
First, Santa Cruz argues that the Supreme Court's holding
in INS v. St. Cyr, 533 U.S. 289 (2001), bars the application of
AEDPA to his request for a waiver of removal.6 In St. Cyr, the
Court held that IIRIRA could not be applied retroactively to bar
§ 212(c) relief to an alien who had entered into a plea bargain
before the effective date of IIRIRA. Id. at 326. The Court noted
that "preserving the possibility [of § 212(c) relief] would have
been one of the principal benefits sought by defendants deciding
whether to accept a plea bargain." Id. at 323. Because aliens may
have relied on the availability of § 212(c) relief when entering
into plea bargains, the Court held that "§ 212(c) relief remains
available for aliens [who] . . . would have been eligible for
§ 212(c) relief at the time of their plea." Id. at 326 (emphasis
added). When Santa Cruz entered into his plea agreement on May 23,
6
Although St. Cyr dealt with the retroactive application of
IIRIRA, we have recognized that its logic is equally applicable to
similarly configured cases where AEDPA would bar a waiver of
removal under § 212(c). See Leitao v. Reno, 311 F.3d 453, 455 n.3
(1st Cir. 2002).
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19967 he was no longer eligible for § 212(c) relief because AEDPA
had already been effective for one month. Santa Cruz's position
was rejected in our decision in Lawrence v. Gonzáles, 446 F.3d 221,
225 (1st Cir. 2006), in which we held that the proper date to be
used in determining the applicability of § 440(d) of AEDPA is the
date of conviction. We specifically stated that "the date of
criminal conduct is irrelevant." Id.; see also Khan v. Ashcroft,
352 F.3d 521, 525 (2d Cir. 2001) ("§ 440(d) is not impermissibly
retroactive as applied to aliens . . . who pleaded guilty following
AEDPA's effective date, even if the criminal conduct underlying
their convictions took place before AEDPA's date"). Unlike in St.
Cyr, Santa Cruz could not have reasonably relied on the possibility
of § 212(c) relief when he decided to enter into the plea bargain.
As we explained in Lawrence v. Gonzáles, 446 F.3d 221, 225 (1st
Cir. 2006), Santa Cruz "had no basis for assuming (as part of his
plea or otherwise) that section 212(c) relief would be potentially
available as part of the quid pro quo for the plea." Furthermore,
the reasoning in St. Cyr would not extend to Santa Cruz's conduct
because it is unlikely that Santa Cruz was relying on the
7
Santa Cruz also alleges that he was unable to enter into a plea
bargain prior to April 24, 1996, the effective date of AEDPA,
because he was in detention in Puerto Rico, rather than in Florida
(where he had been charged). See Pet. Br. at 8. However, Santa
Cruz provides no explanation as to what prevented him from making
the plea bargain while situated in Puerto Rico, and his own
submissions seem to suggest that he was ordered transferred to
Florida on April 17, 1996, a full week before the effective date of
AEDPA. Accordingly, we decline to address this argument.
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possibility of a waiver of removal when he decided to commit his
crime in 1986. See, e.g., Magana-Pizano v. INS, 200 F.3d 603, 612
(9th Cir. 1999) ("It is difficult to argue, for example, that a
convict would have refrained from committing the criminal act if he
had just known of the potential for future deportation
consequences."). Accordingly, St. Cyr provides no support for
Santa Cruz's contention that § 440(d) of AEDPA should not apply to
his application for § 212(c) relief.
Second, Santa Cruz suggests that our decision in
Goncalves v. Reno, 144 F.3d 110 (1st Cir. 1998), supports his
contention that § 440(d) of AEDPA does not apply to his application
for a § 212(c) waiver. In Goncalves, we held that § 440(d) of
AEDPA would not apply to an application for § 212(c) relief filed
prior to the effective date of AEDPA. Id. at 133. We noted that
neither the text nor the legislative history of AEDPA suggested
that Congress had meant § 440(d) to apply to applications for
§ 212(c) relief already pending on the effective date. Id. at 128-
33. However, unlike in Goncalves, where the application for a
§ 212(c) waiver was made before AEDPA became effective, Santa Cruz
made his application for a § 212(c) waiver after AEDPA became
effective and barred him from relief.8 Because § 440(d) of AEDPA
8
Contrary to his claim, Santa Cruz never had an "expectancy" to
apply for a § 212(c) waiver. Prior to his conviction, Santa Cruz
had no expectation of a § 212(c) waiver because he was not subject
to removal and thus was ineligible (and had no need) to apply for
a waiver. After Santa Cruz's conviction for controlled substances
-8-
had already made Santa Cruz ineligible for a § 212(c) waiver before
he submitted his application, Goncalves fails to lend support to
Santa Cruz's position.
Third, Santa Cruz contends that the holding in Henderson
v. INS, 157 F.3d 106 (2d Cir. 1998), provides support for his
argument that § 440(d) of AEDPA does not apply to his application
for § 212(c) relief. In Henderson, the Second Circuit held that
§ 440(d) did not apply to an alien seeking § 212(c) relief whose
removal proceeding had commenced prior to the effective date of
AEDPA. Id. at 130. As in Goncalves, the Second Circuit noted that
there was no evidence of congressional intent to make § 440(d)
applicable to pending immigration proceedings. However, unlike in
Henderson, where removal proceedings began before AEDPA became
effective, removal proceedings against Santa Cruz did not commence
until July 25, 1996, more than three months after the effective
date of AEDPA. Because AEDPA became effective before Santa Cruz
was subject to removal proceedings, Henderson also fails to support
his position.
Accordingly, we conclude that § 440(d) of AEDPA does
apply to Santa Cruz's application for a waiver of removal under
former § 212(c) of the INA. Santa Cruz does not contest the fact
that he was convicted by a Florida court of attempted trafficking
trafficking made him subject to removal, he could have no
expectation of a waiver because by that time, § 440(d) of AEDPA
made him ineligible to seek a § 212(c) waiver.
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of a controlled substance. Under § 440(d) of AEDPA, an alien
convicted of any offense relating to a controlled substance is no
longer eligible for a waiver of removal under § 212(c). Thus,
because Santa Cruz was ineligible for a § 212(c) waiver, the BIA's
decision to deny his motion to reopen was neither arbitrary nor
capricious, nor did it make an error of law.
III. Conclusion
For the reasons stated above, we deny the petition for
review and affirm the decision of the BIA.
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