NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0404n.06
Filed: July 7, 2008
No. 06-4513
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ELISEO CAYABYAB BELTRAN, )
)
Petitioner-Appellant, )
) ON PETITION FOR REVIEW
v. ) FROM THE BOARD OF
) IMMIGRATION APPEALS
MICHAEL MUKASEY, ) AFTER REMAND BY THE
) SIXTH CIRCUIT
Respondent-Appellee. )
_______________________________________ )
)
)
BEFORE: GILMAN and COOK, Circuit Judges; and COHN*, District Judge.
AVERN COHN, District Judge. This is an immigration case that began almost fifteen years ago.
Appellant Eliseo Cayabyab Beltran (“Beltran”) now appeals from a final order of deportation issued
against him by the Board of Immigration Appeals (“BIA”). Beltran contends that he is eligible for
discretionary relief from deportation under former § 212(c) of the Immigration and Nationality Act,
8 U.S.C. § 1182(c), and that his case should be remanded to the immigration court to consider the
merits of this claim. The government argues that Beltran is ineligible for relief under the terms of
the statute.
For the reasons discussed below, we reverse the decision of the BIA and remand for
consideration of the merits of Beltran’s petition for relief under § 1182(c).
*
The Honorable Avern Cohn, United States District Judge for the Eastern District of
Michigan, sitting by designation.
I. Background and Procedural History
Beltran originally entered the United States as an immigrant in 1977, when he was fourteen
years old, along with his parents and siblings. Prior to that time Beltran lived in the Philippines.
Since entering the United States, Beltran his been convicted of three crimes. He was first
convicted of larceny of a building, Mich. Comp. Laws Ann. § 750.360, in 1981. He was sentenced
to six months in jail and five years of probation. In 1984, Beltran was found to have violated his
probation by (1) leaving Michigan without permission to care for an ill relative and (2) failing to
make certain court-ordered payments. As a result, Beltran’s probation was revoked and he was
sentenced to a year in jail, with credit for the six months that he had previously served.
In 1992, Beltran was convicted of first-degree retail fraud, Mich. Comp. Laws Ann. §
750.356c, after attempting to steal a television and VCR from a store at which he worked. He was
sentenced to three years’ probation.
Finally, in 2000, Beltran pled no contest to fourth-degree criminal sexual conduct, Mich.
Comp. Laws Ann. § 750.520e, a misdemeanor. The record does not disclose the nature of the
underlying conduct. He was sentenced to time served as a pretrial detainee (about 120 days) and
released.
As a result of his first two convictions, Beltran was served with an order to show cause in
August 1994, initiating what has turned out to be a long and tortuous series of deportation
proceedings. The order to show cause charged Beltran with deportability under former 8 U.S.C. §
1251(a)(2)(A)(ii) because he had been convicted of two crimes involving moral turpitude not arising
out of a single scheme of criminal misconduct.
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A. Original Proceedings in Immigration Court
Beltran appeared pro se before an immigration judge in October 1995. He admitted the
factual allegations and conceded deportability as charged. To avoid deportation, he petitioned for
a waiver under former 8 U.S.C. § 1182(c),1 which allowed an immigration judge to provide
discretionary relief from deportation for legal permanent residents. Following a hearing in February
1996, the immigration judge issued a decision finding Beltran deportable under § 1251(a)(2)(A)(ii)
and denying his application for a § 1182(c) waiver on the merits. The judge ordered Beltran
deported to the Philippines.
1
Former Section 1182(c) provided:
Aliens lawfully admitted for permanent residen[ce] 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 without regard to the provisions
of subsection (a) of this paragraph (other than subsection (A), (B),
(C), or (E) of paragraph (3)). Nothing contained in this subsection
shall limit the authority of the Attorney General to exercise the
discretion vested in him under section 1181(b) of this title. The
first sentence of this subsection shall not apply to an alien who has
been convicted of an aggravated felony and has served a term of
imprisonment of at least 5 years.
8 U.S.C. § 1182(c) (1991). The last sentence of the section, pertaining to aliens convicted of
aggravated felonies who have served five years in prison, does not apply to Beltran; it applies
only to aliens admitted after the date of enactment of the Immigration Act of 1990 (November
29, 1990). Pub. L. No. 101-649, § 511(b). Section 1182(c) was subsequently amended by the
Anti-Terrorism and Effective Death Penalty Act, Pub. L. No. 104-132, 110 Stat. 1214 (1996),
and repealed by the Illegal Immigration Reform and Immigrant Responsibility Act, Pub. L. 104-
208, 110 Stat. 3009-546 (1996). As discussed below, however, these laws do not apply to the
proceedings in this case, since the proceedings commenced prior to 1996.
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B. The First Appeal
Beltran appealed to the BIA, arguing that the immigration judge should have granted his
application for a § 1182(c) waiver. In October 1998, the BIA vacated the deportation order, finding
that the immigration judge had not adequately advised Beltran of the free legal services available to
him, and remanded the case to the immigration court for further proceedings. The BIA also held that
Beltran was statutorily eligible for a § 1182(c) waiver.
C. Remanded Proceedings in Immigration Court
An immigration judge held a new hearing in January 1999. Beltran failed to appear because,
as the parties agree, he was never served with the necessary papers due to a change of address. The
immigration judge issued an in absentia order of deportation, finding that Beltran had abandoned
any application for relief.
Beltran filed a motion to reopen the case and rescind the in absentia order of deportation in
March 2001. The immigration judge denied the motion, finding that Beltran had failed to comply
with the regulations concerning notification of an address change during deportation proceedings.
D. The Second Appeal
Beltran again appealed to the BIA. The BIA dismissed the appeal in February 2002.
Beltran then petitioned for review in this Court. We reversed, holding that Beltran had
complied with the statutory requirements for notification of a change of address, and remanded the
case to the immigration court with instructions to grant Beltran’s motion to reopen his deportation
hearing. Beltran v. INS, 332 F.3d 407 (6th Cir. 2003).
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E. Second Set of Remanded Proceedings in Immigration Court
Following the remand to the immigration court, the Department of Homeland Security
(“DHS”) lodged an additional charge of deportability against Beltran, supported by additional factual
allegations. DHS said that, because of the one-year sentence imposed after Beltran’s probation
violation, his larceny conviction was an “aggravated felony” as defined in 8 U.S.C. §
1101(a)(43)(G). Consequently, Beltran was subject to deportation under former 8 U.S.C. §
1251(a)(2)(A)(iii). In addition, DHS argued that, because Beltran’s 2000 conviction for fourth-
degree criminal sexual conduct occurred after the repeal of § 1182(c),2 that section could not provide
Beltran with relief from deportation.
In June 2004, an immigration judge sustained the additional factual allegations and the
additional charge of deportability. The immigration judge found that the 1981 larceny conviction
was an “aggravated felony” as defined in 8 U.S.C. § 1101(a)(43)(G). The judge also found that the
aggravated felony conviction did not bar Beltran from relief under § 1182(c), since the conviction
occurred prior to September 30, 1996, and thus fell within the rule articulated by the Supreme Court
in INS v. St. Cyr, 533 U.S. 289 (2001).
However, the immigration judge determined that, despite Beltran’s statutory eligibility for
§ 1182(c) relief, that provision would not provide relief from Beltran’s 2000 conviction for fourth-
degree criminal sexual conduct. The immigration judge held that the conviction for fourth-degree
criminal sexual conduct involved “moral turpitude” and that in order to avoid deportation Beltran
would require an additional waiver issued under 8 U.S.C. § 1229b(a). Finally, the immigration judge
2
Section 1182(c) was repealed in 1996 by § 309(c)(1) of the Illegal Immigration Reform
and Immigrant Responsibility Act, Pub. L. 104-208, 110 Stat. 3009-546.
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concluded that Beltran was barred from § 1229b(a) relief because he had been convicted of an
aggravated felony (the 1981 larceny conviction and subsequent probation violation) and therefore
declined to consider Beltran’s application for a waiver under § 1182(c), reasoning that even if the
waiver were granted, Beltran would remain subject to deportation under 8 U.S.C. §
1251(a)(2)(A)(ii). The immigration judge again ordered Beltran deported to the Philippines.
F. The Third Appeal
Beltran again appealed from the immigration judge’s order of deportation. In October 2004,
the BIA issued a decision affirming the immigration judge’s order without a separate opinion.
Beltran filed a motion for reconsideration with the BIA, which was denied. He then petitioned for
review in this Court.
In March 2005, DHS moved to remand the proceedings “in view of the lengthy and complex
history of this deportation matter [to] allow the [BIA] to clarify in the first instance the applicability
of 8 U.S.C. § 1229b (cancellation of removal) in the case of an alien in deportation proceedings, and
8 C.F.R. §§ 1212.3(g) and 1212.3(h)(3) in the case of an alien whose proceedings commenced prior
to 1996, but who suffered an additional criminal conviction after April 1, 1997.” Beltran did not
oppose the motion, and in June 2005 we issued an order remanding the case to the BIA.
G. The BIA’s Decision on Remand
Following the remand, the BIA issued a new decision dismissing the appeal. During the
remanded proceedings, DHS reiterated its earlier argument that § 1182(c) would not provide Beltran
with complete relief and that it was therefore unnecessary to consider the merits of Beltran’s petition
for relief under that statutory provision. DHS also argued an additional theory that it had not
previously raised, specifically that under 8 C.F.R. § 1212.3(f)(5), Beltran is statutorily ineligible for
7
§ 1182(c) relief because one of the two claimed grounds of deportability (8 U.S.C. §
1251(a)(2)(A)(iii) (conviction of an aggravated felony)) does not have a “statutory counterpart” in
former 8 U.S.C. § 1182(a). Beltran argued that DHS should be foreclosed from raising the “statutory
counterpart” argument due to collateral estoppel, law of the case, or some related doctrine. He
further argued that § 1182(c) would provide him with relief from deportation despite his conviction
for fourth-degree criminal sexual conduct in 2000.
The BIA dismissed the appeal, holding first that Beltran was not eligible for cancellation of
removal under 8 U.S.C. § 1229b. The BIA noted that Beltran was subject to “deportation
proceedings” that commenced prior to the enactment of the Illegal Immigration Reform and
Immigrant Responsibility Act (“IIRIRA”), Pub. L. 104-208, 110 Stat. 3009-546 (1996). IIRIRA
replaced “deportation proceedings” with “removal proceedings” under a new set of statutory
provisions and regulations. Section 1229b, which provides for “cancellation of removal,” was
enacted as an amendment to IIRIRA. As such, § 1229b is not applicable to cases, like Beltran’s,
proceeding under the old law of “deportation proceedings.”
The BIA further held that Beltran was not eligible for § 1182(c) relief because his 1981
larceny conviction lacks a “statutory counterpart” of inadmissibility under 8 U.S.C. § 1182(a), as
required by 8 C.F.R. § 1212.3(f)(5). Rejecting Beltran’s contention that collateral estoppel or law
of the case should bar consideration of the statutory counterpart argument, the BIA noted that “the
current issue has never before been resolved or adjudicated by any governing body that has issued
a decision in this case, and is crucial in deciding whether or not the respondent is eligible for a
waiver” under § 1182(c).
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III. Standard of Review
In immigration appeals, we ordinarily review questions of law de novo, but we defer to the
BIA’s reasonable interpretations of the immigration statutes. Singh v. Gonzalez, 451 F.3d 400, 403
(6th Cir. 2006); see also INS v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999). The BIA’s factual
findings may be reversed only where “any reasonable adjudicator would be compelled to conclude
to the contrary.” 8 U.S.C. § 1252(b)(4)(B).
IV. Analysis
A. The BIA Erred in Allowing DHS to Raise a New Argument on Remand
In June 2005, we granted DHS’s unopposed motion to remand the case to the BIA “to clarify
in the first instance the applicability of 8 U.S.C. § 1229b (cancellation of removal) in the case of
alien in deportation proceedings, and 8 C.F.R. §§ 1212.3(g) and 1212.3(h)(3) in the case of an alien
whose proceedings commenced prior to 1996, but who suffered an additional criminal conviction
after April 1, 1997.” After the remand, the BIA issued an opinion holding that Beltran was ineligible
for relief under 8 U.S.C. § 1182(c) because there was no “statutory counterpart” to his 1981 larceny
conviction under 8 U.S.C. § 1182(a), as required by 8 C.F.R. § 1212.3(f)(5). The record does not
show that either Beltran, the government, or the immigration courts had previously raised the
“statutory counterpart” issue even in passing.
We hold that DHS waived the “statutory counterpart” issue by failing to raise it in
administrative proceedings prior to Beltran’s appeal to this Court and that the BIA’s consideration
of the issue after the remand for clarification impermissibly exceeded the scope of the mandate.
Prior to the 2005 remand, the government had consistently taken the affirmative position that Beltran
was statutorily eligible for relief under § 1182(c). Counsel for DHS explicitly conceded the point
9
during the June 2004 hearing before the immigration judge. Furthermore, the immigration judge
stated in her opinion that Beltran was eligible for § 1182(c) relief, and DHS successfully moved for
summary affirmance of that opinion. Therefore, DHS could not have made the “statutory
counterpart” argument for the first time before this Court. “It is a well-established rule that this
Court will not consider claims that are presented for the first time on appeal nor arguments that are
not properly raised below.” Berryman v. Rieger, 150 F.3d 561, 568 (6th Cir. 1998).
The fact that the case was remanded to the BIA for clarification does not change this result.
In accordance with DHS’s motion, the remand was granted to allow the BIA (which had not issued
a separate opinion) to clarify the application of 8 U.S.C. § 1229b and 8 C.F.R. §§ 1212.3(g) and
1212.3(h)(3), issues which were essential to the immigration court’s disposition of the case. The
remand was not license for the BIA to consider wholly new legal arguments that could not have been
raised in this Court absent the remand. “[U]pon remand of a case for further proceedings after a
decision by the appellate court, the trial court must proceed in accordance with the mandate and the
law of the case as established on appeal. The trial court must implement both the letter and the spirit
of the mandate, taking into account the appellate court's opinion and the circumstances it embraces.”
Brunet v. City of Columbus, 58 F.3d 251, 254 (6th Cir. 1995) (internal quotation marks omitted).
Here, the BIA exceeded the scope of the mandate in allowing DHS to raise an issue that was not
discussed in the immigration court’s opinion and that could not have been raised in this Court.
B. Beltran Is Not Otherwise Foreclosed From Seeking Relief Under § 1182(c)
Once the “statutory counterpart” bar to § 1182(c) has been lifted, Beltran is not otherwise
foreclosed from seeking relief from deportation under that provision. The only suggestion to the
contrary comes in the 2004 opinion of the immigration court. That opinion held that § 1182(c)
10
would not provide Beltran with relief from his 2000 conviction for fourth-degree criminal sexual
conduct because the conviction occurred after § 1182(c) was repealed. In its decision after the
remand, the BIA rejected the immigration court’s position:
However, just as cancellation of removal, which replaced the now
repealed waiver of inadmissibility under section 212(c) of the Act,
was explicitly enacted for those aliens in removal proceedings, former
section 212(c) of the Act was preserved for those aliens in deportation
proceedings subject to its [sic] Antiterrorism and Effective Death
Penalty Act (“AEDPA”), which took effect on April 24, 1996, and
IIRIRA amendments. Thus, under section 309(c) of the IIRIRA, the
respondent, who is not eligible to seek cancellation of removal for his
2000 conviction because he is in deportation proceedings, is
technically eligible to seek section 212(c) relief as to his post-AEDPA
and IIRIRA convictions because section 309(c) of the IIRIRA
specifically makes the repeal of the pre-IIRIRA deportation laws,
including repeal of section 212(c) of the Act, inapplicable to those
aliens in deportation proceedings.
Moreover, the regulation at 8 C.F.R. § 1212.3(g), was retained at the
time that the new regulations pertaining to relief under former section
212(c) of the Act were enacted in accordance with the United States
Supreme Court’s decision in INS v. St. Cyr, 533 U.S. 289 (2001). As
a result, while the AEDPA changes to the old deportation laws should
apply to bar the respondent from eligibility for a section 212(c)
waiver for his 2000 conviction, the regulation at 8 C.F.R. § 1212.3(g)
bars that result. Thus, the respondent’s case is governed by the pre-
AEDPA versions of former section 212(c) of the Act as those
versions relate to his various convictions unless the regulation at 8
C.F.R. 1212.3(h)(3) bars that outcome. In this regard, we find that 8
C.F.R. § 1212.3(h)(3) should not be read to automatically bar relief
under former section 212(c) of the Act for an alien who remains in
old-law deportation proceedings because to do so would countermand
section 309(c) of the IIRIRA which specifically preserved relief under
former section 212(c) of the Act for aliens in old-law deportation
proceedings such as the respondent in this case.
JA 4. The BIA’s reasoning is persuasive; Beltran’s deportation proceedings are governed by pre-
AEDPA law, and he remains eligible for relief under § 1182(c).
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In its brief, DHS adopts the BIA’s position that Beltran’s case is governed by pre-AEDPA
law and that he remains eligible for § 1182(c) relief. Respondent’s Br. at 28-32. Further, DHS
agrees with Beltran that if the BIA is reversed on the “statutory counterpart” issue, the case should
be remanded to the immigration court for consideration of the merits of Beltran’s petition for §
1182(c) relief. Respondent’s Br. at 53-54.
V. Conclusion
For the reasons stated above, we REVERSE the decision of the BIA and REMAND the case
to the immigration court with instructions to consider the merits of Beltran’s petition for relief from
deportation under § 1182(c).
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