PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 12-2007
_______________
JORGE ROBERTO LUPERA-ESPINOZA,
Petitioner
v.
ATTORNEY GENERAL OF THE
UNITED STATES OF AMERICA,
Respondent
________________
On Petition for Review from an
Order of the Board of Immigration Appeals
(Board No. A023-301-750)
Immigration Judge: Hon. Walter A. Durling
_________________
Argued February 13, 2013
Before: HARDIMAN and ALDISERT, Circuit Judges.
and STARK*, District Judge
(Filed: May 28, 2013)
Gregory F. Laufer [Argued]
Paul, Weiss, Rifkind, Wharton & Garrison LLP
1285 Avenue of the Americas
New York, NY 10019
Attorneys for Petitioner
David V. Bernal
Lauren Fascett [Argued]
Eric H. Holder, Jr.
Thomas W. Hussey
John J. W. Inkeles
Jennifer P. Williams
United States Department of Justice
Office of Immigration Litigation, Civil Division
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Attorneys for Respondent
Nancy Morawetz
Washington Square Legal Services, Inc.
Immigrant Rights Clinic
245 Sullivan Street
*
The Honorable Leonard P. Stark, District Judge for the
United States District Court for the District of Delaware,
sitting by designation.
2
5th Floor
New York, NY 10012-0000
Attorney for Amicus Petitioner
_____________________
OPINION OF THE COURT
_____________________
HARDIMAN, Circuit Judge.
The question presented is whether an alien who has
spent more than five years in prison for an aggravated felony
is eligible for a waiver of deportation under former
Immigration and Nationality Act (INA) § 212(c). We hold
that he is not.
I
A native and citizen of Ecuador, Jorge Espinoza
became a lawful permanent resident of the United States in
1980. In January 1994, he was served with an order to show
cause charging him with deportability on the basis of a
February 1993 New York conviction for selling cocaine. In
response, Espinoza filed an application for a waiver of
deportation under former INA § 212(c). Prior to his
deportation hearing, however, Espinoza was paroled into the
custody of the Immigration and Naturalization Service (INS)
and his proceedings were administratively closed on
December 5, 1994. As a result, Espinoza‘s application for §
212(c) relief was never adjudicated by the agency.
After his release from INS custody, Espinoza lived and
worked in the New York City area until June 2004, when he
3
was arrested again. On February 22, 2007, Espinoza was
convicted of conspiracy to possess with intent to distribute
cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1), and
841(b)(1)(A), and was sentenced to 120 months‘
imprisonment. After his 2007 conviction, the Department of
Homeland Security (DHS) reopened Espinoza‘s 1994
deportation proceedings. In February 2010, DHS served
Espinoza with an additional charge of deportability based on
the 2007 conviction, which supplemented the charges that had
been lodged in 1994.
In February 2010, Espinoza‘s first deportation hearing
was held in York, Pennsylvania. At Espinoza‘s request,
Immigration Judge (IJ) Walter Durling postponed the
proceedings to give Espinoza time to seek an attorney. In
April 2010, Judge Durling again postponed the hearing after
Espinoza requested a list of attorneys to contact. Although he
agreed to provide the list, Judge Durling told Espinoza that
―the list is essentially worthless‖ because ―[n]o organization
on the list will agree to represent any individual who is still
serving the terms of imprisonment.‖ Three months later,
Immigration Judge Jesus Clemente took over the proceedings
and postponed Espinoza‘s hearing for a third time after
Espinoza expressed uncertainty as to whether his family had
retained counsel for him. Finally, on September 28, 2010,
Espinoza‘s deportation hearing proceeded, although he still
had not obtained counsel. Espinoza told Judge Clemente that
he had reached out to attorneys on the list the court had
provided him, but that he had not received any responses.
Judge Clemente asked Espinoza if he was ready to proceed
notwithstanding the absence of counsel, and Espinoza agreed
4
to do so. On May 31, 2011, Judge Durling ordered Espinoza
removed from the United States to Ecuador.1
In July 2011, Espinoza appealed to the Board of
Immigration Appeals (BIA), arguing, inter alia, that: (1) the
Government had failed to prove that he was not an American
citizen or national; and (2) he was eligible for a waiver of
deportability under former INA § 212(c). On August 30,
2011, the BIA affirmed Judge Durling‘s determination that
Espinoza was not an American citizen or national, but
remanded the case so the Immigration Court could consider
whether Espinoza might be eligible for § 212(c) relief.
During a September 27, 2011, hearing following
remand, Judge Durling requested that the Government
provide Espinoza with a ―short memorandum‖ detailing the
Government‘s argument for why Espinoza was ineligible for
§ 212(c) relief and continued the hearing until November 8.
Before the scheduled hearing was conducted, however, on
November 4 Judge Durling held that Espinoza was ineligible
for relief under § 212(c) and entered a second order of
deportation.2
1
Because Espinoza contended at the September 28,
2010, hearing that he is a citizen of the United States, Judges
Clemente and Durling conducted a number of further
hearings between December 6, 2010, and May 31, 2011, to
permit Espinoza to obtain evidence to support his claim. He
was unable to do so.
2
Because the Government filed its memorandum on
November 2, 2011, it is likely that Espinoza did not have time
5
Once again, Espinoza appealed to the BIA, this time
arguing: (1) he was eligible for § 212(c) relief; (2) his due
process rights had been violated because he neither received
the Government‘s § 212(c) memorandum nor had an
opportunity to present his argument prior to the IJ‘s decision;
and (3) he had been denied his right to counsel. In a March
15, 2012, opinion, the BIA agreed with Judge Durling‘s
interpretation of relevant precedent addressing § 212(c)
before ultimately ―find[ing] no error in the Immigration
Judge‘s legal conclusion that the respondent‘s 2007
aggravated felony conviction is not subject to waiver under
section 212(c) under controlling Third Circuit law.‖ App. 17.
Alternatively, the BIA found that Espinoza was ineligible for
§ 212(c) relief because, by March 15, 2012, he had served
five years in prison for his 2007 conviction, dating back to
February 22, 2007. Finally, the BIA found Espinoza‘s due
process and citizenship claims unpersuasive and dismissed his
appeal, thereby affirming the IJ‘s November 4, 2011,
deportation order. Espinoza petitioned for review of the
BIA‘s August 30, 2011, and March 15, 2012, decisions.3
to review the memorandum and respond to it before Judge
Durling‘s November 4 decision.
3
Espinoza was released from the custody of the United
States Bureau of Prisons on or about March 15, 2013, and
was transferred to the custody of United States Immigration
and Customs Enforcement. He was deported from the United
States to Ecuador on or about March 26, 2013.
6
II
In support of his petition for review Espinoza claims:
(1) he is eligible for discretionary relief from deportation
under former INA § 212(c) and (2) his due process rights
were violated when he was prevented from presenting his
case prior to Judge Durling‘s November 4 decision and
because the IJs failed to ascertain whether he had received the
required list of attorneys.4
The BIA had jurisdiction under 8 C.F.R. §§
1003.1(b)(3) and 1240.15, which confer appellate jurisdiction
over decisions of immigration judges in removal
proceedings.5 Federal courts generally lack jurisdiction to
4
Espinoza also challenges the BIA‘s conclusion that
he is not a ―national‖ of the United States within the meaning
of 8 U.S.C. § 1101(a)(22) because he is not a United States
citizen. Under the INA, the Attorney General‘s removal
power is limited to ―deportable aliens.‖ See 8 U.S.C. §
1227(a). An alien is defined as ―any person not a citizen or
national of the United States.‖ 8 U.S.C. § 1101(a)(3).
Espinoza argues that even though he is not a citizen of the
United States, he might still be considered a ―national‖ under
a ―disjunctive‖ reading of the statutory provision that defines
the term. See 8 U.S.C. § 1101(a)(22) (―The term ‗national of
the United States‘ means (A) a citizen of the United States, or
(B) a person who, though not a citizen of the United States,
owes permanent allegiance to the United States.‖). This
argument is foreclosed by our decision in Salim v. Ashcroft,
350 F.3d 307, 310 (3d Cir. 2003) (per curiam).
5
Before the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (IIRIRA), ―individuals
7
review final orders of removal based on an alien‘s conviction
for an aggravated felony. 8 U.S.C. § 1252(a)(2)(C).
Nevertheless, because Espinoza‘s appeal presents only
constitutional claims and questions of law relating to the
BIA‘s final removal order, we have jurisdiction under 8
U.S.C. § 1252(a)(2)(D). See Papageorgiou v. Gonzalez, 413
F.3d 356, 358 (3d Cir. 2005) (holding that ―all aliens,
including criminal aliens‖ are permitted ―to obtain review of
constitutional claims and questions of law upon the filing of a
petition for review with an appropriate court of appeals‖).
―When, as here, the BIA affirms an IJ‘s decision and
adds analysis of its own, we review both the IJ‘s and the
BIA‘s decisions.‖ Martinez v. Att’y Gen., 693 F.3d 408, 411
(3d Cir. 2012) (citing Dia v. Ashcroft, 353 F.3d 228, 243 (3d
Cir. 2003) (en banc); Abdulai v. Ashcroft, 239 F.3d 542, 549
(3d Cir. 2001)). We review questions of law de novo.
Fadiga v. Att’y Gen., 488 F.3d 142, 153–54 (3d Cir. 2007).
who were ineligible for admission into the United States and
were never admitted into the United States were referred to as
‗excludable,‘ while aliens who had gained admission, but
later became subject to expulsion from the United States,
were referred to as ‗deportable.‘ After IIRIRA, aliens who
were previously referred to as ‗excludable‘ are termed
‗inadmissible,‘ and the term ‗removal proceedings‘ covers
proceedings applicable to both inadmissible and deportable
aliens. Thus, a reference to an order of removal would
encompass an order of deportation.‖ Avila-Macias v.
Ashcroft, 328 F. 3d 108, 111 (3d Cir. 2003) (internal
quotation marks and citations omitted).
8
III
A
We begin our evaluation of the impact of the five-year
bar by exploring the evolution of the Attorney General‘s
authority to grant aliens discretionary relief from deportation.
Section 212 of the INA of 1952, codified at 8 U.S.C. § 1182,
excludes certain classes of aliens from the United States,
including those convicted of offenses involving moral
turpitude or illicit narcotics trafficking. See Pub. L. No. 82-
414, 66 Stat. 163, 182–87 (1952). That section was subject to
a waiver provision, § 212(c), which was codified at 8 U.S.C.
§ 1182(c). The first sentence of § 212(c) provided: ―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 . . . .‖ 66 Stat. at 187, 8
U.S.C. § 1182(c) (repealed). Although § 212(c) ―was literally
applicable only to exclusion proceedings, . . . it . . . has been
interpreted by the Board of Immigration Appeals . . . to
authorize any permanent resident alien with ‗a lawful
unrelinquished domicile of seven consecutive years‘ to apply
for a discretionary waiver from deportation.‖ INS v. St. Cyr,
533 U.S. 289, 295 (2001) (citing Matter of Silva, 16 I. & N.
Dec. 26, 30 (1976)).
A few decades after passing the INA, Congress began
to narrow the class of permanent resident aliens who may
apply for discretionary relief under § 212(c). Of critical
significance to this appeal, Congress in 1990 amended §
212(c) to bar discretionary relief to any alien who has ―been
convicted of an aggravated felony and has served a term of
9
imprisonment of at least 5 years.‖ See Immigration Act of
1990 § 511(a), Pub. L. No. 101-649, 104 Stat. 4978, 5052
(1990) (1990 Amendment).6 When Congress enacted the
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), it barred § 212(c) relief to those aliens who were
convicted of a broad set of offenses, including ―aggravated
felonies, drug convictions, certain weapons or national
security violations, and multiple convictions involving crimes
of moral turpitude.‖ Perez v. Elwood, 294 F.3d 552, 556–57
(3d Cir. 2002); see AEDPA, Pub. L. No. 104-132, 110 Stat.
1214, 1277–79 (1996) (amending 8 U.S.C. § 1182(c)). Later
that same year, Congress passed IIRIRA, which repealed INA
§ 212(c), and replaced it with a new section, IIRIRA § 240A,
codified at 8 U.S.C. § 1229b. Perez, 294 F.3d at 557. Under
§ 240A, the Attorney General does not have discretion to
cancel removal for anyone previously ―convicted of any
6
The 1990 Amendment reads: ―Section 212(c) (8
U.S.C. 1182(c)) is amended by adding at the end the
following: ‗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.‘.‖ This language was subsequently clarified ―by
striking ‗an aggravated felony and has served‘ and inserting
‗one or more aggravated felonies and has served for such
felony or felonies‘.‖ See Miscellaneous and Technical
Immigration and Naturalization Amendments of 1991 §
306(a)(10), Pub. L. No. 102-232, 105 Stat. 1733, 1751
(1991). ―This technical change is of no significance to the
issues presented here either in its text or its effective date . . .
.‖ Scheidemann v. INS, 83 F.3d 1517, 1519 n.1 (3d Cir.
1996) (citing 105 Stat. at 1759).
10
aggravated felony.‖ 8 U.S.C. § 1229b(a)(3); Perez, 294 F.3d
at 557. IIRIRA also contains transitional rules that instruct
courts not to apply the statute to deportation proceedings
initiated before the statute‘s effective date of April 1, 1997.
IIRIRA § 309(c)(1), Pub. L. No. 104-208, 110 Stat. 3009
(1996).7
In light of this statutory scheme, we consider
Espinoza‘s criminal and immigration proceedings to
determine whether he may seek discretionary withholding of
deportation under § 212(c). Using all ―traditional tools of
statutory construction,‖ we first ask ―whether Congress has
directly spoken to the precise question at issue.‖ Chevron,
U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837,
842, 843 n.9 (1984). ―If Congress has done so, [our] inquiry
is at an end; [we] ‗must give effect to the unambiguously
expressed intent of Congress.‘‖ FDA v. Brown & Williamson
Tobacco Corp., 529 U.S. 120, 132 (2000) (quoting Chevron,
467 U.S. at 843).
B
Espinoza argues that because he was placed into
deportation proceedings before IIRIRA became law, the
transitional rules of § 309(c)(1) enable him to seek
discretionary relief from deportation under former INA
7
IIRIRA § 309(c)(1) states: ―[I]n the case of an alien
who is in exclusion or deportation proceedings as of the title
III-A effective date—(A) the amendments made by this
subtitle shall not apply, and (B) the proceedings (including
judicial review thereof) shall continue to be conducted
without regard to such amendments.‖
11
§ 212(c). We need not address this argument because the
1990 Amendment bars Espinoza from seeking § 212(c) relief
irrespective of IIRIRA.
At the time Espinoza filed his first application for §
212(c) relief in 1994, Congress had already amended the
statute in 1990 to bar discretionary relief to those convicted of
an ―aggravated felony‖ who had served a term of
imprisonment of at least five years. The language of the 1990
Amendment is unequivocal: ―The first sentence of [§ 212(c)]
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.‖ 104 Stat. at 5052 (internal quotation marks
omitted). As we have stated, ―§ 212(c) plainly bars
discretionary relief to aliens who have served at least five
years‘ imprisonment for one or more ‗aggravated felonies.‘‖
Scheidemann, 83 F.3d at 1518. Where, as here, the initial §
212(c) application was filed after 1990, the only date that
matters is when the petitioner began serving his criminal
sentence. See id. at 1526 (―If an alien has served at least five
years‘ imprisonment for a felony conviction, as petitioner
here has, the only limitations on the applicability of the §
212(c) bar are two: (1) that the application for relief must
have been submitted after the date of the bar‘s enactment, and
(2) that the conviction must have been for an ‗aggravated
felony‘ as defined in the Act.‖).
Espinoza concedes that his conviction for conspiracy
to possess with intent to distribute cocaine constitutes an
aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. §
1101(a)(43)(B). By the time the BIA issued its final order of
deportation on March 15, 2012, Espinoza had served more
12
than five years for his 2007 conviction and thus, as the BIA
correctly held, he was ineligible for § 212(c) relief.8
Espinoza‘s sole rejoinder is that equity demands that
he be relieved from the operation of the statute as written. He
argues that ―[b]ecause he had not served five years‘
imprisonment for an aggravated felony prior to his
[September 1994] application [for § 212(c) relief], his
application should not have been denied under the five-year
bar.‖ Espinoza Br. 25. Espinoza cites our decision in
Caroleo v. Gonzales, 476 F.3d 158 (3d Cir. 2007), abrogated
on other grounds by Judulang v. Holder, 132 S. Ct. 476
(2011), as support for the proposition that he was entitled to
seek § 212(c) relief as a matter of equity.
In Caroleo, the BIA issued a final order of removal
denying § 212(c) relief based on an arguably incorrect
interpretation of the Supreme Court‘s holding in St. Cyr.
Caroleo, 476 F.3d at 160–61. At the time of the order,
Caroleo had not yet served five years in prison for his
underlying aggravated felony conviction. Id. at 160. A few
years later, he filed a special motion with the BIA, again
seeking § 212(c) relief, and again arguing that he deserved
relief under St. Cyr. Id. at 161. By this point, however,
Caroleo had served more than eight years in prison. Id. He
argued that we should, nunc pro tunc, consider his § 212(c)
application retroactive to April 2001—the time when he first
raised the St. Cyr issue before the IJ and BIA and before he
had served five years in prison. Id. at 162. Because we held
8
Because Espinoza is ineligible for § 212(c) relief due
to the five-year bar, we do not reach the BIA‘s alternative
holding that Espinoza was also ineligible under IIRIRA
§ 240A.
13
that Caroleo was ineligible for § 212(c) relief on grounds
unrelated to his St. Cyr argument, we did not determine
whether he could seek § 212(c) relief. Id. at 162–63.
Nevertheless, we stated:
Were we to reach the [St. Cyr issue], we would
hold that Caroleo should be permitted, on
equitable grounds, to apply for § 212(c) relief
despite having now served more than five years
in prison . . . .
Id. at 162. Espinoza argues that this dictum applies to his
petition for review. We disagree.
As we have noted, the 1990 Amendment
unambiguously states that an aggravated felon who has
served more than five years for his crime is ineligible for
§ 212(c) relief. Scheidemann, 83 F.3d at 1518; see also
Fernandes Pereira v. Gonzales, 417 F.3d 38, 47 (1st Cir.
2005) (―[T]he language of § 212(c) seems to us utterly
clear—the relief sought simply does not exist for an
aggravated felon who has served five years of his felony
term.‖). A court may not award equitable relief in
contravention of the expressed intent of Congress. See INS v.
Pangilinan, 486 U.S. 875, 883–85 (1988) (―[I]t is well
established that ‗[c]ourts of equity can no more disregard
statutory and constitutional requirements and provisions than
can courts of law,‘‖ id. at 883 (quoting Hedges v. Dixon
Cnty., 150 U.S. 182, 192 (1893) (alteration in original)).
Because Espinoza has now spent more than five years in
prison for an aggravated felony, he is statutorily precluded
from seeking relief under § 212(c).
14
In addition, the facts of Caroleo are readily
distinguishable from the facts of Espinoza‘s case. There,
Caroleo had not yet served five years in prison at the time the
BIA issued its arguably erroneous final order of removal.9
Caroleo, 476 F.3d at 162. For Espinoza, however, the five-
year period lapsed during the pendency of the administrative
proceedings. By the time the BIA issued its final order of
deportation on March 15, 2012, Espinoza had served more
than five years in prison following his February 22, 2007,
aggravated felony conviction. Unlike in Caroleo, where the
BIA‘s decision to deny § 212(c) relief was arguably based on
legal error alone, the BIA denied Espinoza‘s § 212(c) claim
9
At least one of our sister courts has held that nunc
pro tunc relief should be granted to an alien who became
statutorily ineligible for § 212(c) relief based on the five-year
bar subsequent to a legally erroneous denial of the alien‘s
original application. See Edwards v. INS, 393 F.3d 299, 304,
312 (2d Cir. 2004). But see Romero-Rodriguez v. Gonzales,
488 F.3d 672, 679 (5th Cir. 2007) (―[T]his court‘s equitable
nunc pro tunc authority cannot be used to fix the type of error
that occurred when the BIA erroneously denied Romero‘s
initial application for a § 212(c) waiver.‖); Pereira, 417 F.3d
at 47 (―declin[ing] the [Second Circuit‘s] invitation‖ in
Edwards because ―the language of § 212(c) seems to us
utterly clear—the relief sought simply does not exist for an
aggravated felon who has served five years of his felony
term‖). The Second Circuit was careful to note, however, that
it ―express[ed] no views on whether an award of nunc pro
tunc relief would be similarly warranted where the alien
accrued more than five years imprisonment during the
pendency of the administrative appeals.‖ Edwards, 393 F.3d
at 312 n.18 (emphasis added).
15
on two independent grounds: (1) a rejection of his § 212(c)
argument based on IIRIRA and (2) the five-year bar. Even if
we assume, arguendo, that the BIA erred in its interpretation
of how IIRIRA affected Espinoza‘s § 212(c) claim, the five-
year bar still prevented the BIA from granting Espinoza §
212(c) relief. Thus, Caroleo is inapposite. Simply put, we
hold that the BIA correctly held that Espinoza was ineligible
to seek § 212(c) relief because he had served more than five
years for an aggravated felony by the time the BIA affirmed
the IJ‘s deportation order.
IV
Espinoza also argues that he suffered two due process
violations during the course of his deportation proceedings.
We disagree.
First, Espinoza contends that we should remand the
case because the IJs failed to comply with regulations
promulgated by the Attorney General to protect his right to
counsel. Section 1240.10(a)(2)-(3) of Title 8 of the Code of
Federal Regulations directs that ―‗[i]n a removal proceeding,
the immigration judge shall‘ ‗[a]dvise the respondent of the
availability of free legal services provided by organizations
and attorneys . . . located in the district where the removal
hearing is being held‘ and shall ‗[a]scertain that the
respondent has received a list of such programs[.]‘‖ Leslie v.
Att’y Gen., 611 F.3d 171, 175 (3d Cir. 2010) (quoting 8
C.F.R. § 1240.10(a)(2)-(3)) (alterations in original). A review
of the record indicates that the IJs satisfied these
requirements.
A few minutes into the April 2010 hearing, Espinoza
requested a list of attorneys to contact and Judge Durling
16
agreed to send Espinoza the list. The IJs then postponed
Espinoza‘s hearing twice more—for a total of three
postponements—thereby giving Espinoza more than five
months to secure counsel. At the start of Espinoza‘s fourth
hearing, the following exchange occurred:
[IJ Clemente:] Now, sir, I gave you time to get
an attorney. Were you able to get an attorney?
[Espinoza:] I wrote letters to the attorneys that
you guys provided me with, the list. And I
haven‘t received anything in response yet. . . .
App. 147–48 (emphasis added). The record indicates that the
IJs advised Espinoza of the availability of free legal services
and provided him with a list of such programs in compliance
with 8 C.F.R. § 1240.10(a)(2)-(3).
Espinoza‘s claim that Judge Durling denied him due
process by rendering a decision on the § 212(c) issue on
November 4 without first giving Espinoza the opportunity to
present his arguments on November 8 is also unavailing.
―Where an alien claims a denial of due process because he
was prevented from making his case to the BIA or the IJ, he
must show (1) that he was ‗prevented from reasonably
presenting his case‘ and (2) that ‗substantial prejudice‘
resulted.‖ Fadiga, 488 F.3d at 155 (quoting Khan v. Att’y
Gen., 448 F.3d 226, 236 (3d Cir. 2006)) (internal quotation
marks, citation, and footnote omitted). Espinoza posits that
―[h]ad [he] been given the opportunity to respond to the
government‘s position, the IJ might well have . . . declined to
order [his] removal.‖ Espinoza Br. 32. But Espinoza fails to
cite any evidence that suggests the outcome would have been
17
different had the IJ waited until after November 8 to issue his
legal ruling.
When the BIA remanded Espinoza‘s case to Judge
Durling on August 30, 2011, it explicitly noted that it was
doing so because ―recent decisions from the Second, Fifth,
and Ninth Circuits support the conclusion that the respondent
is not barred from obtaining 212(c) relief as a result of his
2007 conviction.‖ App. 12 (citing Pascua v. Holder, 641
F.3d 316 (9th Cir. 2011); Enriquez-Gutierrez v. Holder, 612
F.3d 400 (5th Cir. 2010); Garcia-Padron v. Holder, 558 F.3d
196 (2d Cir. 2009)). Then, during the hearing following
remand, Judge Durling and the Government attorney engaged
in an extended colloquy about relevant caselaw. App. 69–73.
When the Government attorney attempted to argue that
Espinoza was precluded from § 212(c) relief based on Third
Circuit precedent, Judge Durling pushed back based on the
caselaw the BIA cited in its remand order. App. 71
(―Actually, the circuit courts out there . . . [p]ermit post-
IIRIRA convictions if it‘s subject to 212(c). . . . So his 2007
federal drug trafficking offense, in those circuits they would
say he is eligible for 212(c) for that.‖).
In the end, Judge Durling was persuaded by the
Government‘s argument that relevant Third Circuit precedent
precluded Espinoza from seeking § 212(c) relief. Though he
ultimately ruled against Espinoza, Judge Durling exhibited a
deft familiarity with the relevant caselaw and, in fact, noted
the same argument during the hearing that Espinoza presented
in his January 25, 2012, letter to the BIA explaining his
grounds for appeal. Compare App. 69–73, with App. 45–47.
The BIA also considered these arguments, which it had
already cited in its previous remand order, and, after
reviewing Judge Durling‘s decision de novo, issued its own
18
opinion rejecting them. Even now, Espinoza‘s § 212(c)
arguments remain fundamentally unchanged from what Judge
Durling posited during the remand hearing. The proceedings
did not require additional factfinding and turned on a discrete
question of law that Judge Durling understood and carefully
considered. Judge Durling acknowledged Espinoza‘s best
arguments during the September 27, 2011, hearing and
Espinoza was able to present those arguments fully, first to
the BIA and now to this Court. Therefore, Espinoza suffered
no prejudice and was not deprived of due process.
V
Because Espinoza has served more than five years in
prison for an aggravated felony, he may not seek
discretionary relief from deportation under INA § 212(c).
Furthermore, he suffered no due process violations during the
pendency of his administrative proceedings. Therefore, we
will affirm the BIA‘s decision ordering Espinoza deported
from the United States.10
10
Mr. Espinoza was represented pro bono by Gregory
F. Laufer. The Court is grateful for Mr. Laufer‘s work on this
case, which was consistent with the highest standards of the
Third Circuit Bar.
19