NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 11-4367
_____________
OSCAR GENAO GUZMAN,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review of an Order of the
Board of Immigration Appeals
(Board No. A043-628-243)
Immigration Judge: Honorable Margaret R. Reichenberg
Submitted under Third Circuit LAR 34.1(a)
on September 11, 2012
BEFORE: SCIRICA, ROTH and BARRY, Circuit Judges
(Opinion filed: October 4, 2012 )
OPINION
ROTH, Circuit Judge:
Oscar Genao Guzman filed a petition for review of a final order of dismissal
issued by the Board of Immigration Appeals (BIA). For the reasons that follow, we will
deny the petition.
I. Background
Guzman, a citizen of the Dominican Republic, entered the United States as a
lawful permanent resident on August 28, 1992. He was arrested in Rhode Island on
December 2, 1993, and charged with possession of cocaine with intent to deliver.
Guzman left the state for thirteen years and did not answer the charges until he returned
in 2006. On October 5, 2006, the state court dismissed the charge of possession with
intent to deliver a controlled substance, and Guzman pled nolo contendere to an amended
charge of frequenting a narcotics nuisance. He was sentenced to one year probation.
On May 16, 2010, Guzman arrived at Newark Liberty International Airport after a
trip to the Dominican Republic and attempted to enter the United States as a lawful
permanent resident. He was detained and subsequently served with a Notice to Appear,
charging that he was subject to removal under 8 U.S.C. § 1182(a)(2)(A)(i)(II). On
November 15, 2010, he filed a motion with the Superior Court in Rhode Island to amend
the date of his criminal conviction. The court granted the motion and entered the
judgment and disposition nunc pro tunc to March 29, 1996.
In his removal proceedings, Guzman requested relief under former Immigration
and Nationality Act § 212(c), 8 U.S.C. § 1182(c) (repealed 1996). The Immigration
Judge (IJ) denied his section 212(c) application and found him removable. The BIA
dismissed Guzman‟s appeal of this decision on November 29, 2011, issuing a final order
of removal.
Guzman filed a timely petition for review in this Court and moved to stay
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removal. The government moved to dismiss the petition for lack of jurisdiction. We
denied the motion to dismiss and the motion for a stay of removal.
II. Jurisdiction and Standard of Review
The government contests our jurisdiction to hear this petition for review, arguing
that 8 U.S.C. § 1252(a)(2)(C) deprives us of “jurisdiction to review any final order of
removal against an alien who is removable by reason of having committed a criminal
offense covered in section 1182(a)(2).” 8 U.S.C. § 1252(a)(2)(C). Because Guzman was
convicted of a controlled substance violation covered under section 1182(a)(2), section
1252(a)(2)(C) would divest us of jurisdiction over this petition.
However, section 1252(a)(2)(D) permits judicial review of constitutional claims
and questions of law raised in petitions otherwise not reviewable under section
1252(a)(2)(C). We have interpreted questions of law to encompass “pure questions of
law” and “issues of application of law to fact, where the facts are undisputed and not the
subject of challenge.” Kamara v. Att’y Gen., 420 F.3d 202, 211 (3d Cir. 2005) (internal
quotation marks and citations omitted). Guzman raises one issue in his petition: whether
the BIA and IJ erred as a matter of law in holding that an amended date of conviction
entered nunc pro tunc to March 29, 1996, did not render him eligible for a section 212(c)
waiver. Because this is an issue of application of law to fact and the facts are undisputed,
we have jurisdiction under section 1252(a)(2)(D).
We “review the BIA‟s legal decisions de novo . . . but will afford Chevron
deference to the BIA‟s reasonable interpretations of statutes which it is charged with
administering.” Id. (citations omitted).
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III. Discussion
Guzman argues that he should be eligible for a discretionary waiver of deportation
under former section 212(c) because his date of conviction was entered nunc pro tunc to
March 29, 1996, which precedes the date when the repeal of section 212(c) became
effective. We find that Guzman is not eligible for this waiver.
Section 212(c), prior to its repeal by the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (IIRIRA) (effective April 1, 1997), gave the
Attorney General discretion to grant a waiver of deportation for lawful permanent
residents under certain circumstances. INA § 212(c), 8 U.S.C. § 1182(c) (repealed 1996).
Since its repeal, section 212(c) relief has remained available for those aliens “whose
convictions were obtained through plea agreements and who, notwithstanding these
convictions, would have been eligible for section 212(c) relief at the time of their plea
under the law in effect.” INS v. St. Cyr, 533 U.S. 289, 326 (2001); see also 8 C.F.R. §
1212.3(h).
Because Guzman entered his plea on October 5, 2006, more than nine years after
the repeal of section 212(c), he was not eligible for section 212(c) relief at the time of his
plea and is not eligible now. In St. Cyr, the Supreme Court declined to apply the repeal
of section 212(c) retroactively “[b]ecause respondent, and other aliens like him, almost
certainly relied upon th[e] likelihood [of receiving § 212(c) relief] in deciding whether to
forgo their right to a trial,” and thus eliminating the availability of this relief would have
an impermissible retroactive effect. St. Cyr, 533 U.S. at 325. Unlike the respondent in St.
Cyr, however, Guzman could not have relied upon the possibility of section 212(c) relief
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when he made his plea. Therefore, applying the repeal of section 212(c) in this case
would not have an impermissible retroactive effect.
Guzman argues that the date of his conviction governs whether he is eligible for
section 212(c) relief and that his date of conviction is 2006. However, we conclude that
the changing of the date of his conviction from 2006 to 1996 nunc pro tunc should be
considered in the same light as the vacating of a conviction. The BIA has addressed the
immigration consequences of a vacatur of conviction, holding that “[i]f . . . a court
vacates a conviction for reasons unrelated to the merits of the underlying criminal
proceedings, the respondent remains „convicted‟ for immigration purposes.” In re
Pickering, 23 I&N Dec. 621, 625 (BIA 2003), rev’d on other grounds, Pickering v.
Gonzales, 465 F.3d 263 (6th Cir. 2006). The state court‟s amended judgment in this case
should be treated similarly. There is no dispute that the state court granted Guzman‟s
motion to change the date of conviction nunc pro tunc solely for immigration purposes.
Because the judgment was amended for reasons unrelated to the merits of the underlying
criminal proceedings, 2006 remains the date of conviction for immigration purposes, and
he is not eligible for a section 212(c) waiver.
IV. Conclusion
For the foregoing reasons, we will deny the petition for review.
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