United States Court of Appeals
For the First Circuit
No. 04-1473
RAMIRO FERNANDES PEREIRA,
Petitioner, Appellant,
v.
ALBERTO GONZALES, ATTORNEY GENERAL,* ET AL.,
Respondents, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
Before
Boudin, Chief Judge,
Campbell and Cyr, Senior Circuit Judges.
Randy Olen for petitioner.
Robin E. Feder, Assistant United States Attorney, with whom
Robert Clark Corrente, United States Attorney, was on brief, for
respondents.
July 21, 2005
*
Alberto Gonzales was sworn in as Attorney General of the United
States on February 3, 2005. We have substituted him for John
Ashcroft, previous holder of that office, as the respondent. See
Fed. R. App. P. 43(c)(2).
CAMPBELL, Senior Circuit Judge. Under former section
212(c) of the Immigration and Nationality Act ("INA"), the Attorney
General had authority to grant a discretionary waiver of
deportation to aliens who have accrued seven years of lawful
permanent residence in the United States. INA § 212(c), 8 U.S.C.
§ 1182(c) (1994) (repealed 1996). The statute, however, barred
application of the waiver provision to "an alien who has been
convicted of one or more aggravated felonies and has served for
such felony or felonies a term of imprisonment of at least 5
years." Id. This case presents the question whether an alien
aggravated felon, serving a state prison sentence of twelve or more
years, whose application for a section 212(c) waiver was delayed
for several years by an erroneous agency legal interpretation so
that he had served more than five years of his felony sentence by
the time he could proceed with the waiver application, is now
barred by law from seeking a waiver.
I. Background
The facts are not in dispute. Petitioner Ramiro
Fernandes Pereira ("Pereira"), who is a citizen of Portugal, was
admitted to the United States on March 8, 1969 as a lawful
permanent resident. On July 14, 1995, he pleaded nolo contendere
in Rhode Island Superior Court to first degree child molestation
and first degree sexual assault. The court sentenced him to thirty
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years' imprisonment, with twelve years to serve, eighteen years
suspended and eighteen years' probation.
On October 24, 1995, the Immigration and Naturalization
Service ("INS")1 initiated deportation proceedings against Pereira,
charging him with being deportable for having been convicted of an
aggravated felony, pursuant to what is now section
237(a)(2)(A)(iii) of the INA, 8 U.S.C. § 1227(a)(2)(A)(iii) (2000).
On October 22, 1996, after a hearing, the IJ found that Pereira had
been convicted of an aggravated felony and, therefore, ordered him
deported. The IJ noted that Pereira sought relief under former §
212(c) of the INA. He found, however, that Pereira was statutorily
ineligible for § 212(c) relief because § 440(d) of the
Antiterrorism and Effective Death Penalty Act ("AEDPA") (effective
April 24, 1996), which amended section 212(c) to read that it would
not apply to an alien who was deportable for having committed an
aggravated felony, applied retroactively to Pereira.
Pereira appealed to the BIA, arguing, inter alia, that §
440(d) of AEDPA should not be applied retroactively to him because
his conviction had occurred before its enactment. On January 30,
1998, the BIA affirmed the IJ's order and rejected Pereira's
challenge to the application of AEDPA, following Matter of Soriano,
1
On March 1, 2003, the relevant functions of the INS were
transferred to the new Department of Homeland Security and
reorganized into the Bureau of Immigration and Customs
Enforcement. We refer to the agency throughout this opinion as
the INS.
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21 I & N Dec. 516 (BIA 1996). In Soriano, the BIA found that
AEDPA's amendments eliminating § 212(c) relief for certain criminal
aliens were fully retroactive. Id. at 519. At the time of the
BIA's decision, Pereira had served less than five years in prison
on his aggravated felony conviction.
In 1999, this court, in effect, reversed the BIA's
position in Soriano. See Wallace v. Reno, 194 F.3d 279 (1st Cir.
1999). We held in Wallace that § 440(d) of AEDPA could not be
applied retroactively to aliens who were in deportation proceedings
before its enactment. Id. at 286-87. Thereafter, the Supreme
Court reached a somewhat similar result, also favorable to the
consideration of Pereira's § 212(c) application, in INS v. St. Cyr.
See 533 U.S. 289, 326 (2001) (holding that "§ 212(c) relief remains
available for 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").
Based on our decision in Wallace, Pereira and the INS
jointly moved the BIA to reopen and remand to the immigration
court. On May 17, 2000, the BIA granted the motion, but noted that
petitioner might nevertheless be ineligible for § 212(c) relief on
the basis of § 511(a) of the Immigration Act of 1990 ("IMMACT"),
which precludes an alien who has "been convicted of an aggravated
felony and has served a term of imprisonment of at least 5 years"
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from obtaining a section 212(c) waiver.2 IMMACT, Pub. L. No. 101-
649, § 511(a), 104 Stat. 4978, 5052 (1990). The BIA further noted
that a criminal alien has no enforceable right to compel the INS to
commence proceedings at a time advantageous to his ability to
establish eligibility for relief. It also stated that because
there was a reasonable possibility that Pereira would have served
five years in prison before entry of a final order granting him §
212(c) relief, it was not evident that he had a settled expectation
regarding the availability of § 212(c) relief. Because the record
did not establish how long Pereira had been incarcerated, the BIA
remanded with instructions to the IJ to determine whether Pereira
had already served at least five years in prison on his aggravated
felony conviction.
At a hearing on December 13, 2001, the IJ determined that
Pereira was statutorily ineligible for § 212(c) relief because he
had served "some six to seven years" in prison. Therefore, the IJ
denied the application for § 212(c) relief and reentered the order
of deportation. On May 30, 2002, the BIA affirmed without opinion.
2
Section 511(a) of IMMACT amended INA § 212(c), 8 U.S.C. §
1182(c), by adding at the end of § 212(c) 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.
IMMACT, Pub. L. No. 101-649, § 511(a), 104 Stat. 4978, 5052
(1990).
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On May 5, 2003, Pereira filed a petition for writ of
habeas corpus in the Rhode Island federal district court. The
government moved to dismiss the petition based on lack of personal
jurisdiction and Pereira's statutory ineligibility for § 212(c)
relief. The magistrate judge issued a report and recommendation,
recommending that the government's motion to dismiss be granted and
Pereira's habeas petition denied. On March 23, 2004, the district
court denied and dismissed the habeas petition. This appeal
followed.
II. Discussion
A. The Statutory Scheme
An alien convicted of an "aggravated felony" at any time
after admission to the United States is deportable. 8 U.S.C. §
1227(a)(2)(A)(iii) (2000). This Court, however, like others has
interpreted former § 212(c) of the INA to give aliens in
deportation proceedings, as well as in exclusion proceedings, the
right to apply to the Attorney General for a discretionary waiver.3
3
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 . . . . The first sentence of this
subsection shall not apply to an alien who has been
convicted of one or more aggravated felonies and has
served for such felony or felonies a term of
imprisonment of at least 5 years.
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In 1990, section 511(a) of IMMACT amended INA § 212(c) to preclude
the granting of waiver relief to an alien who had been convicted of
an aggravated felony and had served for such felony at least five
years in prison. See supra note 2.
The availability of § 212(c) relief was even more
drastically curtailed in 1996 by § 440(d) of AEDPA, which
restricted the Attorney General's authority to grant discretionary
relief from deportation to aliens convicted of certain felonies,
regardless of the amount of time they had served. On September 30,
1996, Congress enacted the Illegal Immigration Reform and Immigrant
Responsibility Act ("IIRIRA"), section 304 of which repealed INA §
212(c) and created a new form of discretionary relief called
"cancellation of removal." See INA § 240A, 8 U.S.C. § 1229b
(2000); IIRIRA § 304. Cancellation of removal is not available to
aliens who have been convicted of an aggravated felony. See INA §
240A, 8 U.S.C. § 1229b (2000); IIRIRA § 304.
B. Five-Year Bar
Whether an alien continues to accrue time toward the
five-year bar to section 212(c) relief after the issuance of a
final order of removal based upon an erroneous retroactive
INA § 212(c), 8 U.S.C. § 1182(c) (1994) (repealed 1996). While
the statute expressly applied to exclusion, many courts, as well
as ours, have held that it also applied to deportation. See,
e.g., Attwood v. Ashcroft, 260 F.3d 1, 2 n.1 (1st Cir. 2001);
Barreiro v. INS, 989 F.2d 62, 63 (1st Cir. 1993).
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application of AEDPA and IIRIRA is a question of law this court
reviews de novo. See Costa v. INS, 233 F.3d 31, 33 (1st Cir.
2000). In reviewing an agency's construction of a statute it is
charged with administering, we ask two questions: (1) "whether
Congress has directly spoken to the precise question at issue"; and
(2) if Congress has not so spoken, "whether the agency's answer is
based on a permissible construction of the statute." Chevron,
U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-
43 (1984). In this case, Congress has directly spoken to the
precise question at issue by declaring in unmistakable language
that the waiver provision does not apply to an aggravated felon who
has served for the felony a prison term of at least five years.
See supra note 2.
Pereira does not deny that he has by now served more than
five years in state prison for an aggravated felony. And on
December 13, 2001, when the IJ considered Pereira's remanded
request for § 212(c) relief, he had already been in prison for more
than five years. Pereira argues, however, that to deny him the
right to have his application considered because of the delay
caused by the BIA's prior erroneous legal position would violate
his right to due process. He further contends that he is entitled
to consideration of his § 212(c) application nunc pro tunc to the
date of his original deportation hearing because the five-year
delay in the adjudication of his § 212(c) application was solely
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due to the BIA's erroneous retroactivity determination in Soriano.
See Edwards v. INS, 393 F.3d 299 (2d Cir. 2004).4
1. The plain language of § 212(c) and our precedent in
Gomes v. Ashcroft precludes § 212(c) relief now
We "must presume that [the] legislature says in a statute
what it means and means in a statute what it says there." Conn.
Nat'l Bank v. Germain, 503 U.S. 249, 253-54 (1992). The Supreme
Court has stated that "when the statute's language is plain, the
sole function of the courts--at least where the disposition
required by the text is not absurd--is to enforce it according to
its terms." Hartford Underwriters Ins. Co. v. Union Planters Bank,
N.A., 530 U.S. 1, 6 (2000) (internal quotation marks omitted). At
the time Pereira entered his plea in state court on July 14, 1995,
the 1990 IMMACT amendments to section 212(c) limited his
eligibility for a § 212(c) waiver of deportation. The plain
language of section 212(c), in effect at that time, unequivocally
provided that discretionary relief under that section is not
4
The government argues that Pereira waived his equitable argument
by not raising it in the district court. It appears, however,
that Pereira did in fact raise this argument below. In the
district court, Pereira noted in his habeas petition that he had
argued before the BIA that he should be allowed to have his §
212(c) waiver application adjudicated nunc pro tunc to the date
of his original hearing. During the hearing on the motion to
dismiss, Pereira's counsel stated that, as relief for the alleged
due process violations, Pereira should be allowed to apply for a
§ 212(c) waiver nunc pro tunc to the date of his original
hearing. Pereira made a similar argument in his objection to the
magistrate judge's report and recommendation. We believe,
therefore, that Pereira preserved his equitable argument.
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available to "an alien who has been convicted of one or more
aggravated felonies and has served for such felony or felonies a
term of imprisonment of at least 5 years." INA § 212(c), 8 U.S.C.
§ 1182(c) (1994) (repealed 1996).
In arguing that Pereira is barred from § 212(c) relief,
the government relies on the logic of our decision in Gomes v.
Ashcroft, 311 F.3d 43 (1st Cir. 2002). In Gomes, the petitioner
was convicted of rape, an aggravated felony, on August 22, 1992 and
sentenced to six to twenty years' imprisonment. He began serving
the sentence immediately, and eventually was released from prison
nearly a decade later, on May 9, 2001. Id. at 44. On January 30,
1996, the petitioner had applied for a waiver of deportability
under former section § 212(c) of the INA. On October 23, 1996, the
IJ ruled that, under the recently enacted AEDPA, the petitioner was
ineligible for former § 212(c) relief, being an aggravated felon.
In the alternative, the IJ denied the petitioner's application as
a matter of discretion. Id. On October 31, 1997, the BIA affirmed
on the first ground and did not consider the IJ's alternative,
discretionary basis for denying relief. Id. By this time, the
petitioner had been in prison for just over five years. The
petitioner filed a habeas petition in district court, which the
court denied on the ground that the petitioner had served more than
five years' imprisonment for his felony conviction. Id. On
appeal, this Court rejected petitioner's argument that he had
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served less than five years at the time he filed his § 212(c)
application. We said there that "the relevant date is when the BIA
issued its decision." Id. at 45.
In reliance on Gomes, the magistrate's report, adopted by
the district court in this case, counted against Pereira all the
time he served in state prison after the IJ, on October 22, 1996,
held, erroneously as it turned out, that § 440(d) of the AEDPA
applied retroactively. Pereira does not question the holding in
Gomes, but he argues that Gomes is inapposite because (1) the due
process claim raised here was not raised in Gomes; and (2) such a
claim could not have been raised in Gomes because, there, the
erroneous, retroactive application of the AEDPA amendments did not
delay Gomes' proceedings; his time simply ran out.
Both in this case and in Gomes, the INS's original denial
of § 212(c) relief was based upon its erroneous legal conclusion
that the AEDPA amendments applied not only prospectively but
retroactively to any alien convicted of an aggravated felony. On
this theory, former § 212(c) became a nullity even as to those like
Pereira and Gomes whose felony convictions predated enactment of
the AEDPA. There is, to be sure, at least one difference between
Gomes and this case. In Gomes, the petitioner had served over five
years in prison on a sentence for an aggravated felony as of the
time the BIA issued its final order of removal on October 31, 1997.
In the instant case, however, when the BIA affirmed the IJ's
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original deportation order on January 30, 1998, Pereira had served
less than five years in prison. Not until sometime after the BIA
granted the joint motion to reopen, based on this court's reversal
of Soriano, had Pereira served more than five years in prison.
Despite this distinction, we believe that the holding in
Gomes governs this case. We held in Gomes that the time an alien
served in prison even after a legally erroneous denial of § 212(c)
relief was to be counted towards the five-year bar in § 212(c).
311 F.3d at 45. See also Giusto v. INS, 9 F.3d 8, 10 (2d Cir.
1993) ("reject[ing] [petitioner's] premise that the timing of the
INS's initiation of deportation proceedings, rather than the length
of time actually served, would determine the availability of the
waiver"). "[T]he relevant date is when the BIA issued its
decision." Gomes, 311 F.3d at 45 (citing 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.")).
While Pereira had not served at least five years in
prison for an aggravated felony offense at the time the BIA
originally affirmed the IJ's order of deportation, he had served
more than five years in prison by the time the BIA issued its final
order of removal on May 30, 2002. And unfortunate though it may
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be, any and all eligibility for § 212(c) relief had by then run
out. For the INS to grant, or this court to order, waiver relief
now would be to provide a form of relief expressly withdrawn by the
statute. The statute states quite flatly that after service of
five years' imprisonment, the waiver provision "shall not apply" to
the alien. No exception is provided for. See INA § 212(c), 8
U.S.C. § 1182(c) (1994) (repealed 1996).5
2. Whether applying the plain language of § 212(c) to
Pereira is unconstitutional
Petitioner, indeed, does not strongly urge that, after
over five years' incarceration, the statutory language would
entitle him to § 212(c) relief. Rather he argues that to deny him
relief in this set of facts amounts to a violation of his
constitutional right to due process of law. He points out that
much of the delay was caused by the INS's insistence on an
incorrect retroactive reading of the AEDPA. Ultimately, our court
and the Supreme Court forbad retroactive application of the AEDPA
5
The scant legislative history regarding the five-year bar
supports the plain reading of the text. See Giusto, 9 F.3d at 10
(noting that the legislative history regarding the enactment of
the five-year bar is scant, and that "inclusion of that section
was plainly part of an effort to 'broaden[] the list of serious
crimes, conviction of which results in various disabilities and
preclusion of benefits under the [INA]'") (quoting H.R. Conf.
Rep. No. 955, at 132 (1990), reprinted in 1990 U.S.C.C.A.N. 6710,
6784, 6797). That Congress chose to apply the five-year bar
retroactively, see Buitrago-Cuesta, 7 F.3d at 295; Barreiro, 989
F.2d at 63-64, indicates its intent to preclude aliens who had
served at least five years in prison on an aggravated felony
offense from receiving § 212(c) relief.
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to aliens like Pereira who had pled guilty prior to enactment of
the AEDPA in presumed reliance on their right to seek discretionary
relief under § 212(c). See St. Cyr, 533 U.S. at 326; Wallace, 194
F.3d at 286-87. Pereira argues that it is unfair to the point of
being unconstitutional to count against him the time he spent in
state prison serving his felony sentence while awaiting correction
of the INS's earlier erroneous ruling. He likens his plight to the
due process violation that occurs when an alien is saddled with an
incompetent attorney whose malfeasance prevents the alien from
timely seeking discretionary relief. See generally Lozada v. INS,
857 F.2d 10 (1st Cir. 1988).
Here, however, we are not dealing with the breakdown of
process occasioned by the ineptness of counsel. Rather, we deal
with a Congressional statute providing that one who has spent at
least five years in prison because of an aggravated felony is not
entitled to be considered for discretionary relief. Congress's
antagonism towards sheltering aliens who commit felonies has been
made clear by its repeated legislation on the subject, all directed
at enforcing and expanding its wish to expel such aliens. See
supra pp. 6-7.
Against this backdrop, it seems reasonable to infer that
Congress enacted the five-year proviso less to provide an avenue of
leniency to persons like Pereira who would go on to serve longer
terms (although they, too, could apply within the five years) than
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to assist convicted aliens sentenced to less than a five-year term
or, if to a longer term, those who might be pardoned or released
before actually serving five years, perhaps because of a subsequent
determination of innocence, their exemplary conduct, or some other
favorable circumstance. Viewing the purpose of § 212(c) in this
light, it would be immaterial to Congress that Pereira might have
slipped under the bar had he been able to seek discretionary relief
earlier. The important point, once he served five years in prison,
was that he now met all the criteria laid down for mandatory
deportation: no last-minute reprieve, release, or pardon during the
five years had occurred to indicate that he was the sort of person
Congress was willing to let remain.
If the above is the thrust of the statute--and the lack
of any statutory exception to the five-year rule suggests this to
be the case--the only remaining question is whether the
Constitution forbids Congress to adopt such a statute. We see no
reason why it does. Congress is not required to provide aggravated
felons with an avenue for discretionary relief from deportation,
and currently does not do so. See INA § 240A, 8 U.S.C. § 1229b(a)
(2000). While Congress earlier allowed such relief under § 212(c),
it limited § 212(c) to those who had not been imprisoned for over
five years (a bar already in place when Pereira entered his guilty
plea in 1995). See INA § 212(c), 8 U.S.C. § 1182(c) (1994)
(repealed 1996). While the bar may in some respects fall unevenly,
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as in this case, because of fortuitous circumstances affecting the
alien's ability to present his claim before he has served five
years, many legal enactments are less than totally equitable in
their impact. See, e.g., Dodd v. United States, 125 S. Ct. 2478,
2483 (2005) ("Although we recognize the potential for harsh results
in some cases, we are not free to rewrite the statute that Congress
has enacted."); Wickard v. Filburn, 317 U.S. 111, 129-30 (1942)
("An Act of Congress is not to be refused application by the courts
as arbitrary and capricious and forbidden by the Due Process Clause
merely because it is deemed in a particular case to work an
inequitable result."). We, therefore, reject the argument that
application of former § 212(c) of the INA as written violates the
Due Process Clause.
3. Whether nunc pro tunc relief is appropriate
Recently, the Second Circuit has held that nunc pro tunc
relief should be afforded where aliens have become statutorily
ineligible for § 212(c) relief based on the five-year rule
subsequent to a legally erroneous denial of their original
applications. Edwards v. INS, 393 F.3d 299, 312 (2d Cir. 2004).
This is the only ruling so far by a circuit court on the same issue
now before us. The Second Circuit noted that, based on its
precedent, it "might well conclude that whether five years'
imprisonment has been served should be decided as of the date on
which each alien's final order of deportation was entered." Id. at
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307. It stated that INS regulations could also be read to support
this position. Id. (citing 8 C.F.R. § 3.2(c)(1) (1996) (recodified
at 8 C.F.R. § 1003.2(c)(1)), which states, broadly, that "a motion
to reopen proceedings for consideration or further consideration of
an application for [§ 212(c) relief] may be granted if the alien
demonstrates that he or she was statutorily eligible for such
relief prior to the entry of the administratively final order of
deportation") (emphasis added).
But rather than decide whether § 212(c), as a matter of
statutory interpretation, rendered the petitioners ineligible for
such relief, the court held that the petitioners were entitled to
nunc pro tunc consideration of their applications. Id. at 312. In
reaching this result, the court explained that it was justified in
providing an exception contrary to the plain language of § 212(c),
because Congress did not rule out nunc pro tunc relief and such an
approach was common in other immigration contexts. See id. at 309-
10. The court reasoned that "where agency error has prevented an
alien from seeking deportation relief, 'justice . . . require[s],'
that the agency rectify that error--and that it do so, if
necessary, by means of nunc pro tunc relief." Id. at 311 (citation
omitted). Pereira urges us to adopt the same approach so that he
can have his § 212(c) application adjudicated nunc pro tunc to the
date of his original hearing.
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We decline the invitation. As already stated, 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. INA § 212(c), 8 U.S.C. § 1182(c) (1994)
(repealed 1996). In describing the limits of the nunc pro tunc
doctrine under Massachusetts law, we have stated that nunc pro tunc
authority may only be used to correct inadvertent or clerical
errors, and not to remedy "a defect in a judgment, order or decree
which expressed exactly the intention of the [agency] at the time
when it was made." Fierro v. Reno, 217 F.3d 1, 5 (1st Cir. 2000).
But see Edwards, 393 F.3d at 309 n.12 (rejecting the description of
the limits of nunc pro tunc authority set out in Fierro).6
6
We recognize that it is not uncommon, when dealing with
conventional statutes of limitation, to provide for equitable
relief to individuals unable, through no fault of their own, to
meet a time limitation. One might at first believe this to be a
comparable situation. But as we indicated above, we do not see
the five years as a time bar designed to prevent stale claims or
the like, but rather as a grace period intended primarily to
screen out those convicted felons whose period of actual
imprisonment turns out to be less than five years, reflecting, at
least in many cases, a lesser degree of culpability. While, to
be sure, the statute allows felons whose term of imprisonment
goes on for more than five years to also seek waiver relief
during the first five years, this is more an incidental
consequence than a main one. Given not only the uncompromising
language of the five-year bar, which notes no exception, but also
the history of Congress's desire to expel convicted aggravated
felons, we disagree with the Second Circuit's suggestion,
expressed in Edwards, that Congress, confronted with the instant
situation, might likely have desired that a court make an
exception to its own statutory language.
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Pereira argues that other circuits have employed the nunc
pro tunc doctrine to remedy significant errors in immigration
proceedings. See Snajder v. INS, 29 F.3d 1203 (7th Cir. 1994)
(holding that petitioner would have right to apply for § 212(c)
relief, even though he had served five years' imprisonment as an
aggravated felon, where his right to counsel had been violated in
the original deportation hearing); Batanic v. INS, 12 F.3d 662, 667
(7th Cir. 1993) ("The only way to cure the [violation of the right
to counsel] in the original hearing is to afford [petitioner] not
only a new hearing, but a new hearing in which counsel effectively
may protect [petitioner’s] rights to the same extent that the
attorney would have in the first hearing."); Castillo-Perez v. INS,
212 F.3d 518 (9th Cir. 2000) (remanding case with instructions to
apply the law as it existed at the time of the original hearing due
to ineffective assistance of counsel at the original hearing).
Pereira claims that, in light of the BIA's erroneous legal
interpretation, denial of the opportunity to apply nunc pro tunc
for § 212(c) relief would similarly amount to a due process
violation. All of those cases, however, involved a constitutional
violation of the right to counsel. Compare Lozada, 857 F.2d at 13
("Ineffective assistance of counsel in a deportation proceeding is
a denial of due process only if the proceeding was so fundamentally
unfair that the alien was prevented from reasonably presenting his
case.") (internal quotation marks omitted).
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Here, Pereira was denied the opportunity to seek timely
section 212(c) relief under a good faith legal interpretation of
the law at the time. Thereafter, the matter was litigated and in
due course resolved. The INS's initial position, while eventually
found by the courts to be legally erroneous, was not frivolous and
there is nothing to suggest it was pursued in bad faith. While it
may seem unfair not to allow Pereira to seek discretionary relief
now, the fact remains that Congress has mandated that such relief
is now no longer available.
The plain language of former § 212(c) clearly provides
that an alien who spends at least five years in prison on an
aggravated felony offense is ineligible to seek § 212(c) relief.
Counting the time Pereira spent in prison after his § 212(c)
application was disallowed under Soriano is required by the plain
language of § 212(c) and Gomes.
Affirmed.
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