Manuel Avelar-Cruz v. Eric Holder, Jr.

Case: 10-60044 Document: 00511385396 Page: 1 Date Filed: 02/17/2011

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

FILED
February 17, 2011
No. 10-60044
Summary Calendar Lyle W. Cayce
Clerk

MANUEL AVELAR-CRUZ,

Petitioner,

versus

ERIC H. HOLDER, JR., U.S. Attorney General,

Respondent.

Petition for Review of an Order of
the Board of Immigration Appeals
BIA No. A 036 636 673

Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*

Manuel Avelar-Cruz petitions for review of a decision of the Board of Im-
migration Appeals (“BIA”) holding that he is ineligible to apply for relief from

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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No. 10-60044

removal based on former § 212(c) of the Immigration and Nationality Act (“INA”)
because he has failed to show actual, subjective reliance on the statute before its
repeal. Because Avelar-Cruz has not provided evidence so compelling that any
reasonable adjudicator would believe he has actively engaged in conduct re-
flecting an intention to preserve his eligibility for relief, we deny the petition.

I.
Avelar-Cruz, a citizen of Mexico, became a lawful permanent resident of
the United States in 1982. In 1992, he was convicted by a state jury of false im-
prisonment and aggravated battery, both felonies.
In 2008, the Department of Homeland Security (“DHS”) brought removal
proceedings against Avelar-Cruz pursuant to the INA. The notice to appear
(“NTA”) alleged that Avelar-Cruz was subject to removal as an alien convicted
of an aggravated felony after his admission to the United States,1 making him
deportable under 8 U.S.C. § 1227(a)(2)(A)(iii) (2006).
At his initial hearing, Avelar-Cruz admitted the allegations contained in
the NTA and conceded that he was removable, but he requested a waiver of re-
moval under former INA § 212(c) (8 U.S.C. § 1182(c) (1994) (repealed 1996)). The
immigration judge (“IJ”) granted a § 212(c) waiver and an adjustment of status
under § 245 of the INA. DHS reserved the right to appeal, then filed a motion
for reconsideration before the IJ, arguing that, under Carranza-de Salinas v.
Gonzales, 477 F.3d 200, 204-05, 207-10 (5th Cir. 2007), Avelar-Cruz was not eli-
gible for a § 212(c) waiver, because his 1992 convictions resulted from a trial by
jury rather than a guilty plea, and at the time Avelar-Cruz chose to proceed with
a jury trial, he did not have an actual, subjective reliance on the continued avail-
ability of a § 212(c) waiver.

1
See 8 U.S.C. § 1101(a)(43)(F) (2006) (defining crimes of violence with a term of impris-
onment greater than one year as aggravated felonies).

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No. 10-60044

In response, the IJ held another hearing, at which Avelar-Cruz testified
that he knew of the § 212(c) waiver at the time of his criminal trial and that one
of the reasons he wanted to go to trial instead of plead guilty was that he be-
lieved the waiver would still be available to him if he did. He said that he had
delayed his application for the waiver so he could acquire additional “proof to be
able to demonstrate that I had rehabilitated my life.”
In support of his “rehabilitation,” Avelar-Cruz presented the following evi-
dence: He has lived in the United States for about thirty years; he owns a house
in Roswell, New Mexico; he owns and operates his own tile business; he owns
three vehicles; he has been married to a United States citizen since 1981; and
he has five United States-citizen children. He also testified that his 1992 con-
victions were the result of alcohol and a bad relationship. He further stated that
he no longer drinks; he has a relationship with his children; and his church has
“helped me change my life.” He said that, since his convictions seventeen years
ago, he has created a new life in which he helps others, including volunteering
with ministry and music at the prison where he was formerly incarcerated.
When questioned as to his knowledge of the § 212(c) waiver, Avelar-Cruz
stated that he had a conversation with his attorney at the time of his criminal
trial about the conditions of the waiver. When asked what kind of waiver he was
referring to, he responded, “Well, waiver. A waiver because there are laws in
which there are ways to request a pardon or waiver for cases such as this one.”
He did not know the legal name of, or the form number for, the waiver, but mere-
ly stated that he knew of “a waiver available to keep [him] from being deported.”
He also testified that his attorney did not offer that he apply for the waiver and
that he did not ask his attorney to do so, because he did not yet have proof that
he had “rehabilitated [his] life.” He could not, however, remember his previous
attorney’s name and did not have any documents to confirm his conversation
with his attorney about the waiver.

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Avelar-Cruz was taken into DHS custody in 2008 after he attempted to re-
new his green card. He said that he “knew” he would be taken into custody
when he went to renew his green card, “because [he] knew that this case that
[he] had had was going to end up with an immigration judge or with an immigra-
tion officer.” He said he nevertheless felt secure with being taken into custody,
because “back then I knew that I had enough proof so that I could demonstrate
that I had rehabilitated and that I was doing good.”
Based on the foregoing evidence, the IJ determined that Avelar-Cruz,
despite “his obvious efforts to tailor his responses . . . to fit the Fifth Circuit’s rul-
ing in Carranza,” was not eligible for § 212(c) relief, because he did not actively
engage in conduct that reflected an intent to preserve his eligibility for § 212(c)
relief. The IJ found that Avelar-Cruz’s passive actions of waiting for an “unde-
termined day in the ‘eventual’ future” to seek § 212(c) relief did not show that he
had made an affirmative decision to postpone filing his application to increase
his likelihood of receiving § 212(c) relief or establish a reasonable reliance inter-
est on the continued availability of § 212(c) relief. As a result, the IJ granted
DHS’s motion for reconsideration, vacated its order, denied Avelar-Cruz’s re-
quest for a § 212(c) waiver, and ordered that he be removed to Mexico. The BIA
dismissed Avelar-Cruz’s appeal, agreeing with the IJ that, in light of Avelar-
Cruz’s passivity in seeking § 212(c) relief until he was placed in removal proceed-
ings twelve years after his release from prison, he did not show that he had
made an affirmative decision to wait to apply for § 212(c) relief in an effort to in-
crease the likelihood of success based on his rehabilitation.

II.
A.
We have authority to review only the BIA’s decision, not the IJ’s, unless
the latter has some impact on the former. Mikhael v. INS, 115 F.3d 299, 302

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(5th Cir. 1997). We must decide the petition only on the administrative record,
and the administrative findings of fact are conclusive unless “any reasonable ad-
judicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)
(2006). We review the BIA’s conclusions of law de novo but defer to its reason-
able interpretation of immigration regulations. Carranza-de Salinas v. Gonzal-
ez, 477 F.3d 200, 203 (5th Cir. 2007). We owe no deference to the BIA’s conclu-
sions of law regarding the availability of § 212(c) relief. Hernandez-Castillo v.
Moore, 436 F.3d 516, 519 (5th Cir. 2006).

B.
Avelar-Cruz argues that the BIA erred when it found him ineligible for a
§ 212(c) waiver on the ground that he did not show an actual, subjective reliance
on the availability of the waiver under the INA. Former § 212(c) of the INA
stated, in pertinent part,
Aliens lawfully admitted for permanent residence who temporarily
proceeded abroad voluntarily and not under an order of deportation,
and who are returning to a lawful unrelinquished domicile of seven
consecutive years, may be admitted in the discretion of the Attorney
General . . . . The first sentence of this subsection shall not apply to
an alien who has been convicted of one or more aggravated felonies
and has served for such felony or felonies a term of imprisonment of
at least 5 years.
8 U.S.C. § 1182(c) (repealed 1996). Aliens who pleaded guilty to a deportable
offense before the repeal of § 212(c) remained eligible for § 212(c) relief even af-
ter repeal, because otherwise the repeal of the statute would have had an imper-
missible retroactive effect. INS v. St. Cyr, 533 U.S. 289, 319, 326 (2001). That
is because the decision to plead guilty and receive a sentence that would leave
the alien eligible for § 212(c) relief was likely made in reliance on the continuing
availability of § 212(c) relief. Id. at 323.
Although St. Cyr settled that aliens who pleaded guilty to a deportable of-

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No. 10-60044

fense before the repeal of § 212(c) remained eligible to apply for § 212(c) waivers
even after repeal, the Supreme Court has not addressed the issue whether eligi-
bility for such relief remains available to aliens who proceeded to trial. Relying
on Rankine v. Reno, 319 F.3d 93, 99-100 (2d Cir. 2003), this court concluded that
the repeal of § 212(c) relief did not operate retroactively as to aliens who were
convicted at trial before repeal, because, in electing to go to trial, they did not
detrimentally rely on continued eligibility for § 212(c) relief. Hernandez-Castillo
v. Moore, 436 F.3d 516, 520 (5th Cir. 2006).
The next year, however, we considered an alternative theory according to
which § 212(c)’s repeal might be impermissibly retroactive as to an alien who
was convicted after a trial rather than a guilty plea. See Carranza-de Salinas,
477 F.3d at 209. There, before the repeal of § 212(c), the petitioner was convict-
ed by a jury of possessing marihuana with intent to distribute. Id. at 202. In
1997, a year after repeal, she received an NTA charging that she was removable
based on her prior conviction. Id. at 203. She requested relief under former
§ 212(c), but the BIA held that a § 212(c) waiver was available only to aliens con-
victed pursuant to a plea agreement. See id.
Petitioner appealed, arguing that the repeal of § 212(c) was impermissibly
retroactive with respect to her case, because “she affirmatively chose not to apply
for § 212(c) relief immediately after her conviction, but instead to wait until de-
portation proceedings were initiated so as to have time to establish her rehabili-
tation and ties to the community.” Id. at 209. We reversed, relying on Restrepo
v. McElroy, 369 F.3d 627, 634-35 (2d Cir. 2004), holding that “the BIA erred in
finding [Carranza] ineligible to apply for § 212(c) relief without allowing her the
opportunity to demonstrate that her actual, subjective reliance on the prior state
of the law caused her to delay her application.” Carranza-de Salinas, 477 F.3d
at 202. We held that if petitioner could “demonstrate on remand that she affir-
matively decided to postpone her § 212(c) application to increase her likelihood

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No. 10-60044

of relief, then she has, under Hernandez-Castillo, established a reasonable ‘reli-
ance interest’ in the future availability of § 212(c) relief comparable to that of the
applicants in St. Cyr and she is entitled to make her application for relief.” Id.
at 210.
After Carranza-de Salinas, we require an applicant who alleges eligibility
for § 212(c) relief to demonstrate “actual, subjective reliance” on § 212(c) before
its repeal. Id. The applicant must show that he “‘detrimentally changed his po-
sition in reliance on continued eligibility for § 212(c) relief,’ or that he actively
engaged in conduct that ‘reflect[ed] an intention to preserve [his] eligibility for
relief under § 212(c).’” Id. at 205 (quoting Rankine, 319 F.3d at 99-100). The de-
termination of retroactive effect is made as to the individual applicant. Id.
Avelar-Cruz contends that, like the petitioner in Carranza-de Salinas, he
knew that he could apply for § 212(c) relief upon his release from prison, but he
affirmatively chose not to apply immediately, to have time to show rehabilitation
and to form ties to the community. In this regard, Avelar-Cruz argues that his
actions over the years (such as owning a house, running his own business, mar-
rying a U.S. citizen, caring for his five United States-citizen children, refraining
from drinking, and volunteering at his church and the prison where he was for-
merly held) provide “tangible proof and objective evidence of his actual mind set”
to rehabilitate himself while he patiently waited for the opportunity to apply for
§ 212(c) relief. Avelar-Cruz further asserts that when he sought to renew his
green card, he knew of the likelihood that he would be placed in removal pro-
ceedings because of his prior convictions, but he saw it as a chance to obtain
§ 212(c) relief.
But whether Avelar-Cruz did in fact affirmatively choose not to apply im-
mediately apply for § 212(c) relief, in order to show rehabilitation, is a question

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of fact,2 and “any reasonable adjudicator would [not] be compelled” to disagree
with the BIA’s determination that he did not so choose. See 8 U.S.C. § 1252-
(b)(4). Avelar-Cruz has no evidenceSSother than his testimony during removal
proceedingsSSthat he discussed obtaining § 212(c) relief with his attorney at the
time of his trial.
It is suspicious that Avelar-Cruz is not only unaware of any specifics re-
garding the § 212(c) waiver, but also cannot even remember the lawyer who de-
fended him at his criminal trial and who supposedly told him about the availa-
bility of § 212(c) waivers. Yet, Avelar-Cruz vividly remembers the conversation.
Moreover, although the mere fact that an alien has “let a considerable time
elapse before offering to demonstrate rehabilitation” does not imply that he did
not intend to file for a § 212(c) waiver,3 the fact that Avelar-Cruz did not so much
as contact an attorney, or at least develop some knowledge regarding how to ob-
tain a § 212(c) waiver—his only legal means of remaining in the country—before
being placed in removal proceedings twelve years after he was released from
prison suggests that he was not actually planning someday to seek a waiver.
Avelar-Cruz has therefore not provided evidence so compelling that any
reasonable adjudicator would believe he has actively engaged in conduct reflect-
ing an intention to preserve his eligibility for relief. See 8 U.S.C. § 1252(b)(4);
Carranza-de Salinas, 477 F.3d at 205. The petition for review is DENIED.

2
See Carranza-de Salinas, 477 F.3d at 210 (implying that whether the petitioner had
“established a reasonable ‘reliance interest’ in the future availability of § 212(c) relief compara-
ble to that of the applicants in St. Cyr” was something she would have to demonstrate factual-
ly on remand).
3
See id. at 209 (quoting Matter of Gordon, 17 I. & N. Dec. 389, 391-92 (BIA 1980)) (not-
ing that common sense suggests that a recently convicted alien would wait a long time before
trying to prove he had been rehabilitated).

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