Lorenzo Antonio Sanchez-Becerra v. U.S. Atty. Gen.

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 1, 2008
No. 07-14549 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

Agency No. A90-727-738

LORENZO ANTONIO SANCHEZ-BECERRA,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________

(August 1, 2008)

Before CARNES, BARKETT and HULL, Circuit Judges.

PER CURIAM:

Lorenzo Antonio Sanchez-Becerra (“Sanchez-Becerra”) petitions for review
of the Board of Immigration Appeals’ (“BIA”) decision affirming the Immigration

Judge’s (“IJ”) order of removal and denial of his request for a waiver of removal.

After review, we dismiss the petition in part and deny it in part.

I. BACKGROUND

A. Initial Removal Proceedings

On December 5, 2002, the Immigration and Naturalization Service (“INS”)1

served Sanchez-Becerra with a Notice to Appear (“NTA”). The NTA charged that

(1) on or about January 1, 1980, Sanchez-Becerra, a native and citizen of Mexico,

illegally entered the United States through Texas; (2) on September 27, 1991,

Sanchez-Becerra’s status was adjusted to lawful permanent resident based on his

seasonal agricultural work; (3) on November 18, 1993, Sanchez-Becerra was

convicted in Alabama state court of second-degree rape; and (4) based on this

conviction, Sanchez-Becerra was removable under Immigration and Nationality

Act (“INA”) § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien

convicted of an aggravated felony as defined in INA § 101(a)(43)(A), 8 U.S.C. §

1101(a)(43)(A).

On February 4, 2003, Sanchez-Becerra did not appear for his removal

hearing. An IJ ordered him removed in absentia based on his second-degree rape

1
Congress abolished the INS on March 1, 2003 and replaced it with the Department of
Homeland Security. See Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135
(2002).
2
conviction. In April 2004, Sanchez-Becerra was removed to Mexico.

On October 23, 2004, Sanchez-Becerra was arrested by federal Border Patrol

agents in New Mexico. He was charged with illegal reentry, but the indictment

was dismissed after Sanchez-Becerra argued his initial removal proceedings in

abstentia were fundamentally unfair.

B. Reopened Removal Proceedings and § 212(c) Waiver Request

On June 16, 2005, Sanchez-Becerra and the government filed a joint motion

to reopen Sanchez-Becerra’s removal proceedings. The motion stated Sanchez-

Becerra never actually received notice of the removal hearing because the INS

listed his address as the county jail and sent the notice of the hearing there, but in

the interim he had been released on bond. The IJ granted the motion and reopened

the removal proceedings on September 12, 2005.

The IJ continued the removal proceedings five times between April 2006

and May 2007, at least four of which were attributed to Sanchez-Becerra’s counsel

being sick and/or Sanchez-Becerra’s not filing the required written applications for

relief from removal. During the course of these continued hearings, Sanchez-

Becerra admitted the charges in the NTA and conceded removability, but stated

that he intended to apply for a waiver of removal under former INA § 212(c), 8

U.S.C. § 1182(c).

A year after the removal proceedings had been reopened, Sanchez-Becerra
3
filed his application for a § 212(c) waiver on October 31, 2006. The next day, he

filed a memorandum supporting his request for a § 212(c) waiver nunc pro tunc.2

His memo argued that the agency error in 2003 in not providing him notice of his

original removal hearing and ordering him removed in abstentia prevented him

from applying for a § 212(c) waiver of removal back in 2003. Sanchez-Becerra

acknowledged that he was statutorily ineligible for a § 212(c) waiver under the

relevant statutes as construed by the BIA’s decision in In re Blake, 23 I. & N. Dec.

722 (BIA 2005).3 However, Sanchez-Becerra requested that the IJ allow him to

apply for a § 212(c) waiver nunc pro tunc, i.e., as if he was at his original removal

hearing in 2003 before the BIA decided Blake in 2005. The government’s position

throughout the proceedings was that Sanchez-Becerra was statutorily ineligible for

a § 212(c) waiver of removal.

At a continued hearing on November 2, 2006, the IJ scheduled a merits

hearing for Sanchez-Becerra’s § 212(c) waiver request. While appearing before

the IJ, Sanchez-Becerra’s counsel requested a hearing date in May 2007 and

accepted a hearing date of May 7, 2007.

On May 7, 2007, Sanchez-Becerra’s counsel was not present at the hearing.

2
Nunc pro tunc literally means “now for then” and refers to a court’s use of its inherent
power to have an action take retroactive legal effect. Black’s Law Dictionary 1100 (8th ed.
2004).
3
See infra note 7.
4
The IJ stated that Sanchez-Becerra’s counsel had filed an untimely request for

another continuance the previous week, which had been denied. The IJ also stated

the clerk of the United States District Court in El Paso had called the previous

week and said the district court judge had issued an order forbidding Sanchez-

Becerra’s counsel from leaving Texas until the pending criminal trial was finished.

The IJ told the clerk that Sanchez-Becerra’s case would proceed. The IJ told

Sanchez-Becerra, who did appear, that the IJ would be issuing a written decision.

C. IJ’s Removal Decision

On May 7, 2007, the IJ issued a written decision finding that Sanchez-

Becerra was removable as an aggravated felon based on his second-degree rape

conviction. The IJ also concluded that Sanchez-Becerra was statutorily ineligible

for a § 212(c) waiver.

Further, the IJ’s decision stated that Sanchez-Becerra’s request for nunc pro

tunc relief was “highly speculative” in light of the Attorney General’s instructions

in In re Jean, 23 I. & N. Dec. 373 (A.G. 2002), that a discretionary waiver must

balance humanitarian concerns against the seriousness of the criminal offense, and,

in the absence of extraordinary circumstances, waivers would not be granted where

the person seeking relief was convicted of a dangerous or violent crime. The IJ

stated that it considered second-degree rape to be a dangerous crime and that

“[g]iven the highly speculative nature of the relief, even if this Court were
5
empowered to grant such relief, nunc pro tunc relief is not a realistic option in this

matter.” Finally, the IJ stated that Sanchez-Becerra had not provided any

authority, from either the BIA or this Court, establishing that an IJ has any

equitable power to grant nunc pro tunc relief and thus concluded that it had “no

authority to grant the requested relief.”

D. BIA Appeal

On appeal to the BIA, Sanchez-Becerra argued that (1) the IJ’s denial of a

continuance deprived him of his right to counsel and was an abuse of discretion,

and (2) he was eligible for a § 212(c) waiver nunc pro tunc.

The BIA dismissed Sanchez-Becerra’s appeal. The BIA found no clear error

in the IJ’s factual findings. The BIA concluded that the IJ correctly determined

that Sanchez-Becerra was ineligible for a § 212(c) waiver, citing Blake.

The BIA also noted Sanchez-Becerra “through counsel, does not argue on

appeal that he is statutorily eligible for section 212(c) relief, notwithstanding

Matter of Blake.” The BIA concluded it had no jurisdiction to grant equitable

relief, which is what a § 212(c) waiver nunc pro tunc in Sanchez-Becerra’s case

would constitute. Finally, the BIA concluded Sanchez-Becerra had shown no

prejudice in the IJ’s denial of a continuance in light of his statutory ineligibility for

6
a waiver of inadmissibility. Sanchez-Becerra filed a timely petition for review.4

II. DISCUSSION

A. Jurisdiction

This Court’s jurisdiction to review removal orders is restricted where the

petitioner, like Sanchez-Becerra, is a criminal alien removable based on a

conviction for an “aggravated felony,” as defined in INA § 101(a)(43), 8 U.S.C. §

1101(a)(43). INA § 242(a)(2)(C); 8 U.S.C. § 1252(a)(2)(C) (referencing INA §

237(a)(2)(A)(iii); 8 U.S.C. § 1227(a)(2)(A)(iii)). However, we retain jurisdiction

to review “constitutional claims or questions of law.” INA § 242(a)(2)(D); 8

U.S.C. § 1252(a)(2)(D). A petitioner must allege a constitutional or legal claim

that is “colorable,” i.e., with “some possible validity,” for us to have jurisdiction

under INA § 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D). Arias v. U.S. Att’y Gen.,

482 F.3d 1281, 1284 & n.2 (11th Cir. 2007) (quotation marks omitted). We review

legal and constitutional claims de novo. Ali v. U.S. Att’y Gen., 443 F.3d 804, 808

(11th Cir. 2006).

B. § 212(c) Waiver Nunc Pro Tunc

Sanchez-Becerra argues the BIA erred in concluding that it lacked equitable

jurisdiction to grant nunc pro tunc relief and in denying his request for a § 212(c)

4
We review only the BIA’s decision, except to the extent the BIA expressly adopted the
IJ’s decision. Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001).
7
waiver nunc pro tunc. Sanchez-Becerra thus presents a legal question that this

Court has jurisdiction to review.

It is unnecessary to address whether nunc pro tunc relief is purely equitable

in nature or if the BIA had discretionary authority to grant nunc pro tunc relief

because, even if the BIA had that authority, Sanchez-Becerra was statutorily

ineligible for a § 212(c) waiver in 2003, just as he was in 2007. As discussed

below, the applicable statutory framework in 2003 was the same as that in 2007

and thus Sanchez-Becerra was equally ineligible for a § 212(c) waiver in 2003.

We start with INA § 212(a) and (c). INA § 212(a) lists the “classes of

excludable aliens” who are ineligible for admission to the United States. INA §

212(a); 8 U.S.C. § 1182(a). One of these excludable classes is “[c]riminal and

related grounds,” which includes, in relevant part, aliens convicted of “a crime

involving moral turpitude.” INA § 212(a)(2)(A)(i)(I); 8 U.S.C. §

1182(a)(2)(A)(i)(I). Former INA § 212(c), which has now been repealed, provided

for a waiver of such § 212(a) ineligibility as follows: “[a]liens 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 without regard to the provisions of subsection (a) of this

8
section.” INA § 212(c); 8 U.S.C. § 1182(c) (1994) (emphasis added).5

In 1976, the BIA expanded § 212(c) to permit a waiver of removal to a

lawful permanent resident in deportation proceedings and regardless of whether he

voluntarily departed the United States and merely seeks to return. See Farquharson

v. U.S. Att’y Gen., 246 F.3d 1317, 1323 (11th Cir. 2001) (citing Matter of Silva,

16 I. & N. Dec. 26, 30 (BIA 1976)). In subsequent cases, the BIA and Attorney

General clarified that a § 212(c) waiver was available only to aliens who were

deportable on grounds for which there was a comparable ground of inadmissibility

in INA § 212(a). See id. (citing Matter of Hernandez-Casillas, 20 I. & N. Dec.

262, 280-93 (A.G. 1991); Matter of Wadud, 19 I. & N. Dec. 182, 184 (BIA 1984);

Matter of Granados, 16 I. & N. Dec. 726, 728 (BIA 1979)). In other words, a

deportee was eligible for a § 212(c) waiver if the statutory ground for his

deportation was comparable to a statutory ground for inadmissibility under §

212(a).

In 1991, the BIA applied this statutory framework to an alien deportable for

an aggravated felony conviction and concluded that “a waiver under section 212(c)

5
Even though INA § 212(c) was repealed by the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (“IIRIRA”), relief remains 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.”
INS v. St. Cyr, 533 U.S. 289, 326, 121 S. Ct. 2271, 2293 (2001). Because Sanchez-Becerra pled
guilty in 1993 (before IIRIRA’s enactment in 1996), he was thus still eligible for INA § 212(c)
relief under St. Cyr.
9
is not unavailable to an alien convicted of an aggravated felony simply because

there is no ground of exclusion [in § 212(a)] which recites the words, ‘convicted of

an aggravated felony.’” Matter of Meza, 20 I. & N. Dec. 257, 259 (BIA 1991).

Instead, the BIA looked to whether the “specific category of aggravated felony at

issue” had a comparable ground of inadmissibility in § 212(a). See id. The BIA

concluded an alien deportable for an aggravated felony of “illicit trafficking in any

controlled substance,” as defined in INA § 101(a)(43)(B), 8 U.S.C. §

1101(a)(43)(B), was eligible for a § 212(c) waiver because it had a statutory

counterpart of inadmissibility in INA § 212(a)(23), 8 U.S.C. § 1182(a)(23).6 Id.

In 2005, the BIA applied this same framework in concluding that an alien

deportable based on an aggravated felony conviction for sexual abuse of a minor is

ineligible for a § 212(c) waiver. See Blake, 23 I. & N. Dec. at 727-29. The BIA

concluded the inadmissibility grounds for a “crime involving moral turpitude” in

INA § 212(a)(2)(A)(i)(I), 8 U.S.C. § 1182(a)(2)(A)(i)(I) was not a statutory

counterpart because “the moral turpitude ground of exclusion addresses a distinctly

different and much broader category of offenses than the aggravated felony sexual

abuse of a minor charge.” Id. at 728. The BIA explained that “the test for

comparability is not met merely by showing that some or many of the offenses

6
In 1990, INA § 212(a)(23), 8 U.S.C. § 1182(a)(23) was revised and redesignated at INA
§ 212(a)(2)(A)(i)(II), 8 U.S.C. § 1182(a)(2)(A)(i)(II). See Meza, 20 I. & N. Dec. at 260 n.5.
10
included in the charged category could also be crimes involving moral turpitude.”

Id. at 729. The aggravated felony of sexual abuse of a minor, which formed the

basis of Blake’s removal, did not have a comparable ground of inadmissibility in

§ 212(a) and thus deportee Blake was ineligible for a § 212(c) waiver.

As shown above, the use of a statutory counterpart analysis for § 212(c)

waiver requests applied by the BIA in Blake was established by the time of

Sanchez-Becerra’s initial removal proceedings in 2003. See Zamora-Mallari v.

Mukasey, 514 F.3d 679, 689-90 (7th Cir. 2008) (stating that the BIA in Blake “did

not establish a new rule of law, but rather applied the previously well-established

comparability standard in a different factual context”); Vo v. Gonzales, 482 F.3d

363, 369-70 (5th Cir. 2007) (rejecting argument that Blake contradicted prior

agency practice); Caroleo v. Gonzales, 476 F.3d 158, 163 (3d Cir. 2007) (“The

principle that § 212(c) is available in removal proceedings only where the ground

for removal has a ‘statutory counterpart’ ground for exclusion has been firmly in

place and consistently applied since at least 1991.”).7

7
The Blake petitioners actually petitioned for review of the BIA’s decision to the Second
Circuit. In 2007, the Second Circuit rejected the petitioners’ argument that the BIA’s decision
had changed the law regarding § 212(c) waivers and stated “[t]he statutory counterpart rule does
nothing more than crystallize the agency’s preexisting body of law.” Blake v. Carbone, 489 F.3d
88, 98-99 (2d Cir. 2007). However, the Second Circuit ultimately disagreed with the BIA’s
approach of analyzing whether the “aggravated felony” ground of deportation had a statutory
counterpart in the § 212(a) grounds of inadmissibility. Id. at 102-03. Instead, the Second Circuit
adopted the approach of analyzing whether the particular criminal offense, which was the ground
for the aggravated-felony deportation, had a statutory counterpart in the § 212(a) grounds of
inadmissibility. Id. at 103-04. The Second Circuit remanded to the BIA to make that statutory
11
 Even if the BIA allowed him to apply for a § 212(c) waiver as if it was 2003,

Sanchez-Becerra has not shown the statutory framework and BIA’s decision would

be any different than in Blake. In fact, Sanchez-Becerra has not challenged the

BIA’s analysis in Blake or explained what he would argue differently to show that

his aggravated felony conviction for sexual abuse of a minor for which he is being

deported has a statutory counterpart in § 212(a) to render him eligible for a

§ 212(c) waiver. Thus, because Sanchez-Becerra was statutorily ineligible for a

§ 212(c) waiver in 2003, just as he was in 2007, we deny Sanchez-Becerra’s

petition as to its challenge to the BIA’s conclusion that it could not grant him a §

212(c) waiver nunc pro tunc.8

counterpart analysis. Id. at 105.
Although the Second Circuit disagreed with the BIA’s Blake decision, this does not
affect the precedential effect of the BIA’s decision elsewhere. See Matter of Anselmo, 20 I. &
N. Dec. 25, 31 (BIA 1989) (“We are not required to accept an adverse determination by one
circuit court of appeals as binding throughout the United States.”). Indeed, other circuits agree
with the BIA’s analysis in Blake and have analyzed whether the “aggravated felony” ground of
deportation had a statutory counterpart in the § 212(a) grounds of inadmissibility. See Zamora-
Mallari, 514 F.3d at 691-93 (addressing aggravated felony of sexual abuse of a minor); Vue v.
Gonzales, 496 F.3d 858, 860-61 (8th Cir. 2007); Vo, 482 F.3d at 368-72; Caroleo, 476 F.3d at
167-68; Kim v. Gonzales, 468 F.3d 58, 62-63 (1st Cir. 2006). In any event, Sanchez-Becerra
does not challenge the BIA’s analysis in Blake in 2005, and we consider here only whether
Sanchez-Becerra was ineligible for a § 212(c) waiver in 2003.
8
At the end of the day, we note that the Seventh Circuit, albeit in a cursory footnote,
rejected a similar argument, stating as follows:
The petitioners all maintain on appeal that if their case had been heard before Blake
they would have qualified for § 212(c) relief. However, as just noted, Blake merely
applied the comparable basis test to a new factual scenario. If one of these
petitioners’ cases had come before Blake, that case would be the “Blake” case that
stood for the proposition that an alien convicted of sexual abuse of a minor does not
qualify for a § 212(c) waiver because there is no comparable ground of excludability.
Zamora-Mallari, 514 F.3d at 689-90 n.4.
12
C. Denial of Motion to Continue

Sanchez-Becerra argues that the IJ abused its discretion in denying him a

continuance of the May 7, 2007 removal hearing and effectively denied him his

right to counsel. The decision to grant a continuance is “within the IJ’s broad

discretion.” Zafar v. U.S. Att’y Gen., 461 F.3d 1357, 1362 (11th Cir. 2006). As

outlined above, Sanchez-Becerra’s removal hearing had already been continued

five times, and the IJ scheduled the May 7, 2007 hearing in November 2006.

Sanchez-Becerra’s main challenge–that the IJ failed to explain why it denied the

continuance and thereby abused its discretion–does not present a legal question

that this Court has jurisdiction to review. See Alvarez Acosta v. U.S. Att’y Gen.,

524 F.3d 1191, 1196-97 (11th Cir. 2008) (stating that a “garden-variety abuse of

discretion argument–which can be made by virtually every alien subject to a final

removal order–does not amount to a legal question under § 1252(a)(2)(D)”).

To the extent Sanchez-Becerra argues that the denial of a continuance

violated his due process rights to a fundamentally fair hearing and to the presence

of retained counsel, he presents a colorable constitutional claim that this Court has

jurisdiction to review. However, in order to prevail on a due process claim,

Sanchez-Becerra must show “substantial prejudice.” See Mullen-Cofee v. INS,

976 F.2d 1375, 1380 (11th Cir. 1992). Because the relief he is seeking–a § 212(c)

waiver–is discretionary, Arias, 482 F.3d at 1283, his counsel already presented his
13
arguments for a § 212(c) waiver in a memorandum to the IJ, and he has not cited

any arguments or evidence that counsel would have presented at the May 7, 2007

hearing, Sanchez-Becerra has not shown he suffered “substantial prejudice” from

the IJ’s denial of a continuance. Thus, we deny Sanchez-Becerra’s petition as to

the continuance claim.9

PETITION DISMISSED IN PART AND DENIED IN PART.

9
We deny the government’s October 3, 2007 motion to dismiss Sanchez-Becerra’s
petition for review as moot. Sanchez-Becerra’s motion to stay deportation was previously
denied by this Court on October 3, 2007.

14