Gomes v. Ashcroft

United States Court of Appeals
For the First Circuit

No. 02-1508

ANTHONY GOMES,

Petitioner - Appellant,

v.

JOHN ASHCROFT, ATTORNEY GENERAL OF THE UNITED STATES,
IMMIGRATION AND NATURALIZATION SERVICE; FRED MCDONALD, SHERIFF,

Respondents - Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Michael A. Ponsor, U.S. District Judge]

Before

Torruella, Circuit Judge,
Stahl, Senior Circuit Judge,
and Howard, Circuit Judge.

Michael G. Moore for appellant.
Brenda M. O'Malley, Attorney, with whom Robert D. McCallum,
Jr., Assistant Attorney General, and Terri J. Scadron, Senior
Litigation Counsel, were on brief, for appellees.

November 12, 2002
 STAHL, Senior Circuit Judge. Petitioner-appellant Anthony

Gomes appeals from the district court's denial of his petition for

habeas corpus under 28 U.S.C. § 2241, by which he sought review of

an order of deportation. He contends that he is entitled to

discretionary relief pursuant to former section 212(c) of the

Immigration and Nationality Act (INA), 8 U.S.C. § 1182(c)

(1995)(repealed), despite the fact that he served more than five

years of a sentence for an aggravated felony. We disagree, and

affirm the district court.

I. BACKGROUND

Gomes is a native and citizen of Trinidad. He was admitted to

the United States as a lawful permanent resident in 1972. On

August 22, 1992, he was convicted by a Massachusetts superior court

jury of four counts of rape, and was sentenced to six to twenty

years' imprisonment. Gomes apparently began serving this sentence

immediately, and was released from prison on May 9, 2001.

On November 30, 1994, the Immigration and Naturalization

Service issued an Order to Show Cause charging Gomes with

deportability as an alien convicted of an aggravated felony. See

8 U.S.C. § 1227(a)(2)(A)(iii). On January 30, 1996, Gomes filed an

application for a waiver of deportability under former section

212(c) of the INA.1

1
While Gomes's application was pending before an immigration
judge, Congress enacted the Antiterrorism and Effective Death
Penalty Act (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (April 24,

2
 On October 23, 1996, the immigration judge held that Gomes was

ineligible for former section 212(c) relief pursuant to AEDPA, and,

in the alternative, denied his application as a matter of

discretion. On October 31, 1997, the Board of Immigration Appeals

(BIA) affirmed the order on the first ground and did not consider

the alternative basis for denial of relief. Gomes sought habeas

relief in the United States District Court for the District of

Massachusetts. The district court denied his petition on April 9,

2002, holding that Gomes was ineligible for former section 212(c)

relief because he had served a term of imprisonment for more than

five years on his felony conviction.

II. DISCUSSION

On appeal, Gomes challenges the district court's rulings of

law, which we review de novo. Costa v. INS, 233 F.3d 31, 33 (1st

Cir. 2000).

Former INA section 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 .
. . .

8 U.S.C. § 1182(c). While the statutory language specified aliens

1996). Section 440(d) of AEDPA amended INA section 212(c) by
disqualifying aliens who committed an aggravated felony from
obtaining former section 212(c) waivers. This amendment does not
apply to Gomes's petition. Goncalves v. Reno, 144 F.3d 110, 133-34
(1st Cir. 1998).

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attempting to reenter the country, we have uniformly interpreted

former section 212(c) to give aliens in deportation proceedings, as

well as exclusion proceedings, the right to apply for a

discretionary waiver. Barreiro v. INS, 989 F.2d 62, 63 (1st Cir.

1993); see also, e.g., Attwood v. Ashcroft, 260 F.3d 1, 2 n.1 (1st

Cir. 2001); Goncalves v. Reno, 144 F.3d 110, 114 (1st Cir. 1998).

The Immigration and Nationality Act of 1990, Pub. L. No. 101-

649, 104 Stat. 4978 (IMMACT), amended former section 212(c) to

preclude an alien who has "been convicted of an aggravated felony

and has served a term of imprisonment of at least 5 years" from

seeking a section 212(c) waiver. Id. § 511(a). The amendment

applied "to admissions occurring after the date of the enactment of

this Act." Id. § 511(b). The enactment date of IMMACT was

November 29, 1990. Pub L. No. 101-649, 104 Stat. 4978.

On January 30, 1996, Gomes filed an application for a waiver

of deportability under former section 212(c). The BIA issued its

final decision in Gomes's case on October 31, 1997. By this date,

Gomes had served more than five years in prison. Under IMMACT,

therefore, he was ineligible for former section 212(c) relief.

Against this, Gomes offers two arguments. First, he suggests

that he is entitled to relief because he had served less than five

years of his sentence at the time he filed his former section

212(c) application and went before the immigration judge. We join

the Second Circuit, however, in holding that the relevant date is

4
when the BIA issued its decision. Buitrago-Cuesta v. INS, 7 F.3d

291, 296 (2d Cir. 1993) ("Just as we credit aliens for time spent

in the country while an appeal is pending before the BIA so that

they are eligible for § 212(c) relief, we will also consider the

time aliens spend in prison during the course of a hearing for

purposes of rendering them ineligible for § 212(c) relief.").

Gomes does not dispute that he had served more than five years by

that time.2

Second, Gomes questions settled interpretation of the term

"admissions" as used in section 511(b). He contends that because

he entered the United States in 1972, nearly two decades before the

effective date of IMMACT, the five-year rule set forth in the

IMMACT amendments does not apply to his case. The statutory term

"admission[]" does not refer to an alien's initial entry; rather,

quite confusingly, it refers to the alien's effort to seek

admission through his petition for relief from exclusion under §

212(c). A.G. Order No. 1531-91, 56 Fed. Reg. 50033 (Oct. 3, 1991)

("[T]he term 'admissions' [as used in § 511(b)] covers all

2
Gomes also contends generally that IMMACT section 511(a)
should not apply retroactively to his conviction. All of the
circuit courts that have considered this argument have rejected it,
including ours. Barreiro, 989 F.2d at 63; see also Scheidemann v.
INS, 83 F.3d 1517, 1523 (3d Cir. 1996); Samaniego-Meraz v. INS, 53
F.3d 254, 255 (9th Cir. 1995); Asencio v. INS, 37 F.3d 614, 616-17
(11th Cir. 1994); Campos v. INS, 16 F.3d 118, 122 (6th Cir. 1994);
De Osorio v. INS, 10 F.3d 1034, 1043 (4th Cir. 1993); Buitrago-
Cuesta, 7 F.3d at 296. In any event, Gomes's conviction took place
in 1992, after IMMACT's enactment date.

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applications under the Act for section 212(c) relief, whether

actually made upon application for admission into the United States

or made only after entry."); see also Goncalves, 144 F.3d at 114;

Barreiro, 989 F.2d at 63; De Osorio v. INS, 10 F.3d 1034 (4th Cir.

1993).3 Gomes applied for former section 212(c) relief on January

30, 1996, well after the 1990 enactment date of IMMACT.

Accordingly, his admission, for purposes of IMMACT, occurred after

the effective date set forth in § 511(b), and he is ineligible for

former section 212(c) relief.4

Affirmed.

3
Although we did not comment specifically on the Attorney
General's interpretation of § 511(b), we stated in White v. INS
that "[t]he amendment applies to applications for discretionary
relief filed after November 20, 1991." 17 F.3d 475, 477 n.3 (1st
Cir. 1994) (citing De Osorio, 10 F.3d at 1034). (In White, we
misstated the enactment date of IMMACT; the actual enactment date
was November 29, 1990. Pub L. No. 101-649, 104 Stat. 4978. The
discrepancy is immaterial to this case.)
4
Because we conclude that Gomes is ineligible for relief under
former section 212(c), the other arguments presented in his brief
are moot.

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