[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 26, 2006
Nos. 05-14759 and 05-15973 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A90-920-577
ANTONIO GAMALIEL RUBIO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petitions for Review of a Decision of the
Board of Immigration Appeals
_________________________
(May 26, 2006)
Before TJOFLAT, ANDERSON and BIRCH, Circuit Judges.
PER CURIAM:
Petitioner Antonio Galliel Rubio is a native and citizen of El Salvador. He
entered the United States without authorization in 1981. He became a temporary
resident in April 1988 and obtained permanent resident status in August 1990.
On January 30, 1996, he pled guilty to the offense of burglary in the Superior
Court of Gwinnett County, Georgia, and was sentenced to five-years confinement,
to be served on probation after he completed a term of 90 to120 days in “Boot
Camp.” The Immigration and Naturalization Service (“INS”) thereafter charged
him with removability under Immigration and Naturalization Act (“INA”) §
237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien having been convicted
of an aggravated felony.
At a removal proceeding before an Immigration Judge (“IJ”), Petitioner
contended that he had not been convicted (in the Gwinnett County Superior Court)
of an aggravated felony because his five-year sentence was a sentence of
probation, rather than a suspended sentence, and therefore did not fall within the
definition of “term of imprisonment” in INA § 101(a)(48)(G), 8 U.S.C. §
1101(a)(48)(G). Because he had not committed an aggravated felony, he argued,
he was not removable. The IJ disagreed. The INA treats a burglary conviction as
an aggravated felony if the term of imprisonment the court imposes is “at least one
2
year,”1 and the term the court imposed in Petitioner’s case was five years.2 The IJ
therefore found Petitioner removable. Having reached that decision, the IJ asked
Petitioner if he wished to request any other form of relief (other than the denial of
removal). He said no,3 and the IJ ordered him deported to El Salvador.
Petitioner appealed the IJ’s decision to the Board of Immigration Appeals
(“BIA”), and on January 31, 2002, it dismissed the appeal. In its order, the BIA
addressed and rejected Petitioner’s argument that his 1996 Gwinnett County
conviction was not an aggravated felony (and therefore not a ground for removal)
because, according to Petitioner, “his sentence to 5 years was a sentence to
probation rather than a suspended sentence and, therefore, d[id] not fall within the
definition of “term of imprisonment” in [INA §] 101(a)(48)(G).” The BIA agreed
with the IJ’s finding regarding Petitioner’s sentence, observing that “the language
1
INA § 101(a)(48)(G), 8 U.S.C. § 1101(a)(48(G), states:
(a) As used in this chapter –
....
(43) The term “aggravated felony” means –
....
(G) a theft offense (including receipt of stolen property) or burglary offense for
which the term of imprisonment [is] at least one year.
2
The IJ labeled Petitioner’s conviction a “crime of violence” that amounted to an
aggravated felony because Petitioner’s sentence was for five years. The BIA, in its order
dismissing Petitioner’s appeal, eschewed the crime of violence label, and as we indicate infra,
treated the crime as an aggravated felony under INA § 101(a)(48)(G), 8 U.S.C. §
1101(a)(48)(G).
3
As a convicted felon, Petitioner evidently realized that he was ineligible for asylum or
withholding of removal.
3
in the conviction document clearly states that [Petitioner] was sentenced to a 5-year
period of confinement, most of which he was allowed to serve on probation. The
fact that a portion of the . . . incarceration was suspended or probated is irrelevant
for immigration purposes. See section 101(a)(48)(G) of the Act.” Petitioner did
not seek review of the BIA’s decision dismissing his appeal. Accordingly, the
merits of that decision are not before us.
The Government designated May 23, 2002, as the date of Petitioner’s
removal, and notified Petitioner’s attorney that his client should report for removal
on that date. Petitioner failed to appeal and became a fugitive. He remained such
until he was arrested in September 2004. Following his apprehension, he filed a
special motion with the BIA, pursuant to 8 C.F.R. § 1003.44, to reopen his removal
proceedings to seek relief under former INA § 212(c), 8 U.S.C. § 1182(c) (repealed
1996) (hereafter § 212(c)), and to stay his removal pending the BIA’s decision.4
The BIA granted the stay on October 18, 2004.
On August 2, 2005, the BIA, relying on Matter of Blake, 23 I. & N. Dec.
722 (B.I.A. 2005), denied his motion. The BIA stated that to warrant reopening,
4
In INS v. St. Cyr, 533 U.S. 289, 326, 121 S.Ct. 21271, 150 L.Ed.2d 347 (2001), the
Supreme Court held that although § 212(c) was repealed in 1996, § 212(c) discretionary relief is
available to aliens “whose convictions were obtained through plea agreements and who,
notwithstanding those convictions, would have been eligible for § 212(c) relief at the time of
their plea under the law then in effect.” As Petitioner pled guilty in January 1996, he was
eligible for § 212(c) relief if he met the requisites for the same.
4
Petitioner had to demonstrate that he was eligible to apply for § 212(c) relief; that
is, he had to establish that the ground on which he had been held removable, the
aggravated felony of burglary, had a corresponding ground of inadmissibility
under INA § 212(a), 8 U.S.C. § 1182(a). The BIA went to some length in
explaining the hurdle Petitioner faced:
To be statutorily eligible for a section 212(c) waiver, the respondent
must establish that section 212(a) of the Act, 8 U.S.C. § 1182(a),
contains a ground of inadmissibility that is comparable to the grounds
upon which he is removable, in this case for having been convicted of
the aggravated felony of burglary as defined in section 101(a)(43)(G)
of the Act, 8 U.S.C. § 1101(a)(43)(G). Matter of Blake, 23 I&N Dec.
722 (BIA 2005). . . . In Matter of Blake . . ., we recently held that the
test for determining whether a ground of removability has a statutory
counterpart in section 212(a) of the Act ‘turns on whether Congress
has employed similar language to describe substantially equivalent
categories of offenses.’ 23 I&N Dec. At 728. No provision in section
212(a) of the Act establishes inadmissibility for burglary or any
comparable category of offenses. We recognize that burglary is a
crime involving moral turpitude and thus a conviction therefore will
render an alien inadmissible under section 212(a)(2)(A)(i)(I) of the
Act, 8 U.S.C. § 1182(a)(2)(A)(i)(I). Nonetheless, that fact does not
establish comparability under the standard announced in Matter of
Blake, supra. Id. at 729. The wide range of offenses that fall within
the scope of section 212(a)(2)(A)(i)(I) of the Act simply does not
compare in any way that can be described as substantially equivalent
to the narrow category of burglary and theft offenses specified in
section 101(a)(43)(G) of the Act. Cf. Matter of Brieva, 23 I&N Dec.
766 (BIA 2005) (holding that section 212(a) . . . does not contain a
ground of inadmissibility that corresponds to the crime of violence
ground of removability). Thus, we conclude that section 212(a) of the
Act does not contain a ground of inadmissibility that is comparable to
the grounds upon which the respondent is removable.
5
Because INA § 212(a), 8 U.S.C. § 1182(a), has no relevant statutory
counterpart, the BIA held that Petitioner was not eligible for a § 212(c) waiver. It
therefore denied his special motion for relief from the removal order.
On August 29, 2005, Petitioner petitioned this court to review the BIA’s
August 2 ruling. On September 29, the BIA denied his motion for reconsideration.
On October 31, 2005, he petitioned this court to review the September 29 ruling.
We consolidated the two petitions for review.
Prior to briefing, we asked the parties to address in their briefs the following
questions:
1) Whether INA § 242(a)(C), 8 U.S.C. § 1252(a)(C), limits this court’s
jurisdiction over this petition for review. See Del Pilar v. Attorney General, 326
F.3d 1154, 1156 (11th Cir. 2003).
2) If INA § 242(a)(C) applies, address whether the specific constitutional
challenges or questions of law, if any, raised by Petitioner, are reviewable. See 8
U.S.C. § 1252(a)(2)(D); Brooks v. Ashcroft, 283 F.3d 1268 (11th Cir. 2002).
3) If Petitioner seeks judicial review of the denial of discretionary relief,
does INA § 242(a)(2)(B) preclude this court’s jurisdiction if the Board of
Immigration Appeals did not exercise any discretion in denying the requested
relief?
We consider these questions in turn.
INA § 242(a)(C), 8 U.S.C. § 1252(a)(C), states, in pertinent part:
(a) Applicable provisions
....
(2) Matters not subject to judicial review
....
6
(C) Orders against criminal aliens
Notwithstanding any other provision of law (statutory or
nonstatutory), including section 2241 of Title 28, or any other habeas
corpus provision . . . no court shall have jurisdiction to review any
final order of removal against an alien who is removable by reason of
having committed a criminal offense covered by section 1182(a)(2) or
1227(a)(2)(A)(iii) . . . of this title. . . .
Section 1227(a)(2)(A)(iii) states, in pertinent part:
(a) Classes of deportable aliens
Any alien . . . in and admitted to the United States shall, upon the
order of the Attorney General, be removed if the alien is within one or
more of the following classes of deportable aliens:
....
(2) Criminal offenses
(A) General crimes
....
(iii) Aggravated felony
In Del Pilar, the court considered the scope of its review for someone
standing in Petitioner’s shoes. We said that “our review . . . is limited to ‘whether
[he] is (1) an alien (2) who is removable (3) based on a conviction for an
aggravated felony.’ Bahaar v. Ashcroft, 264 F.3e 1309, 1311 (11th Cir. 2001) (per
curiam).” 326 F.3d at 1157. As was the case with the petitioner in Del Pilar,
Petitioner is an alien who is removable under § 1227(a)(2)(A)(iii) for having
committed an aggravated felony. The answer to the first question, then, is that
we lack jurisdiction to review the challenged BIA orders unless, in response to the
second question, Petitioner has presented constitutional challenges or questions of
7
law.5 We find nothing in Petitioner’s brief that could be considered a
constitutional challenge. He does present this legal issue, however: whether the
BIA’s reliance on Blake in denying his special motion to reopen and his motion for
reconsideration was inconsistent with the Supreme Court’s decision in INS v. St.
Cyr, 533 U.S. 289, 121 S.CT. 2271, 150 L.Ed.2d 347 (2001). The Government
concedes that Petitioner’s aggravated felony conviction did not, standing alone, bar
him from eligibility for § 212(c) relief and contends that the BIA’s reliance on
Blake was not inconsistent with St. Cyr.
As indicated in the above quotation from the BIA’s decision denying
Petitioner § 212(c) relief, in Blake, the BIA held that “the test for determining
whether a ground of removability has a statutory counterpart in [INA §] 212(a)
‘turns on whether Congress has employed similar language to describe
substantially equivalent categories of offenses.’” Using that test, the BIA
concluded that no provision in INA § 212(a), 8 U.S.C. § 1182(a), “establishes
inadmissibility for burglary or any comparable category of offenses.” Given this
failure of comparability, the BIA concluded that Petitioner was ineligible for a §
212(c) waiver. The legal question Petitioner presents thus boils down to whether
5
INA § 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D), states, in pertinent part: “Nothing in
subparagraph (B) or (C), or in any other provision of this chapter (other than this section) which
limits or eliminates judicial review, shall be construed as precluding review of constitutional
claims or questions of law raised upon a petition for review filed with an appropriate court of
appeals. . . .”
8
the BIA erred when it relied on Blake to deny relief. Or, put another way, did the
BIA err in finding that the ground for which Petitioner was deported, the
aggravated felony of burglary, was not substantially equivalent to a ground of
inadmissibility cited in INA § 212(a), 8 U.S.C. § 11982(a)? We are obliged to
defer to the BIA’s reasonable interpretation of the INA. See Assa’ad v. U.S. Att’y
Gen., 332 F.3d 1321, 1326 (11th Cir. 2003). The Blake comparability test seems
to us to be a reasonable interpretation of the relevant INA provisions. Moreover,
we see nothing in Blake’s rationale or holding that is inconsistent with the
Supreme Court’s decision in St. Cyr. We therefore reject Petitioner’s legal
challenge to the BIA rulings under consideration.
This brings us to the third question, which concerns the application of INA §
242(a)(2)(D). The Government concurs with the assertion at page v of Petitioner’s
brief, that “[T]he Attorney General exercised no discretion in denying the
requested relief. The Board of Immigration appeals, the Attorney General’s
delegatee, simply ruled that Petitioner was not eligible for the relief sought.” In
light of this concession, our treatment of the first two questions ends our review.
For the reasons stated, the BIA’s decisions denying Petitioner’s special
motion and motion for reconsideration are
AFFIRMED.
9