United States Court of Appeals
For the First Circuit
No. 05-1960
No. 05-2147
UWAGBOE ORUMWENSE LAWRENCE,
Petitioner,
v.
ALBERTO R. GONZALES, ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS AND ON PETITION
FOR A WRIT OF HABEAS CORPUS
Before
Boudin, Chief Judge,
Stahl, Senior Circuit Judge,
and Howard, Circuit Judge.
William P. Joyce and Joyce & Associates, P.C. on consolidated
brief for petitioner.
Robbin K. Blaya, Office of Immigration Litigation, Civil
Division, United States Department of Justice, Peter Keisler,
Assistant Attorney General, Civil Division, and Terri J. Scadron,
Assistant Director, on consolidated brief for respondent.
May 5, 2006
BOUDIN, Chief Judge. On July 6, 1995, Uwagboe Orumwense
Lawrence--a Nigerian citizen who was a lawful permanent resident of
the United States--pled guilty in the South Boston District Court
to a charge of larceny in the amount of roughly $18,000, apparently
based on the writing of bad checks. He received a two-year
sentence, which was suspended, and completed probation without
incident. What followed were the federal government's efforts to
deport Lawrence, leading to the proceedings now before us.
In May 1998, the former Immigration and Naturalization
Service ("INS") began removal proceedings against Lawrence as an
alien convicted of an aggravated felony under 8 U.S.C.A. §
1227(a)(2)(A)(iii) (West Supp. 1998). As that provision stood in
1995, Lawrence's offense had not been an aggravated felony, because
the term of imprisonment imposed was less than five years. 8
U.S.C. § 1101(a)(43)(G) (1994). By 1998, Congress had broadened
the definition to include theft convictions involving sentences of
one year or more. 8 U.S.C.A. § 1101(a)(43)(G) (West Supp. 1998).1
Seeking to avoid deportation under this expanded
definition, Lawrence asked the South Boston District Court to
1
Retroactive applications of the immigration laws are
permissible if Congress clearly intends such applications, INS v.
St. Cyr, 533 U.S. 289, 316 (2001), as deportation is treated as
part of Congress' power to regulate immigration civilly and not as
punishment for crime, INS v. Lopez-Mendoza, 468 U.S. 1032, 1038
(1984). Here, the broadened definition was to be applied
"regardless of whether the conviction was entered before, on, or
after" the statute's enactment date. 8 U.S.C.A. § 1101(a)(43).
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revise and revoke his prior sentence, or, in the alternative, to
order a new trial. The court granted a new trial, and on July 30,
1998, it accepted Lawrence's new guilty plea and sentenced him to
338 days of probation--just below the one-year floor established by
the new definition. The apparent basis for the new trial was that
his original guilty plea was made without warning of the possible
deportation consequences. See Mass. Gen. Laws ch. 278, § 29D
(1994).
The INS then amended its charge against Lawrence,
alleging that he was in any event removable as an alien convicted
of a crime involving moral turpitude for which a sentence of one
year or longer may be imposed. 8 U.S.C.A. § 1227(a)(2)(A)(i) (West
Supp. 1998). After a hearing, an Immigration Judge ("IJ") found
that Lawrence was removable under this provision, but granted
Lawrence time so he could file an asylum petition (which Lawrence
subsequently submitted and then later withdrew).
Proceedings were then delayed pending the INS's
adjudication of an I-130 petition filed on Lawrence's behalf by his
wife, who is a United States citizen.2 After the INS approved the
petition on February 2, 2000--which is merely a first step--
Lawrence submitted an application for an adjustment of status and
2
The I-130 petition allows a citizen or permanent resident of
the United States to establish a connection with certain eligible
non-citizen relatives (for example, a spouse or a child) so that
these relatives may seek a visa or adjustment of status.
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an application for a discretionary waiver of a ground of
inadmissibility under section 212(h) of the Immigration and
Nationality Act ("INA"). 8 U.S.C. § 1182(h) (2000). Section
212(h), which is not at issue in this appeal, permits waivers in
certain situations involving family hardship.3
On October 24, 2001, after a hearing, the IJ ordered
Lawrence to be deported to Nigeria and denied his applications for
an adjustment of status and for a discretionary waiver under
section 212(h). The IJ's removal order rested solely on the ground
that Lawrence had been convicted of a crime involving "moral
turpitude" within five years of his admission into the United
States. Lawrence filed a motion to reopen and reconsider these
denials, but the IJ denied the motion, noting that Lawrence's
criminal history, false statements in aid of his asylum
application, and fraudulent activity outweighed competing claims of
hardship.
Lawrence then appealed to the Board of Immigration
Appeals ("BIA"), which, on July 2, 2002, affirmed the IJ's decision
3
This provision allows the Attorney General to waive
deportation in certain cases if, among other things, an alien is
"the spouse, parent, son, or daughter" of a citizen or permanent
resident and "it is established to the satisfaction of the Attorney
General that the alien's denial of admission would result in
extreme hardship to the United States citizen or lawfully resident
spouse, parent, son, or daughter of such alien." 8 U.S.C. §
1182(h) (2000).
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without opinion. An initial motion to reopen and reconsider was
denied, and a second one rejected as untimely.
Thereafter, Lawrence was detained pending his removal in
North Dartmouth, Massachusetts, by the Bureau of Immigration and
Customs Enforcement. In April 2003, he petitioned for a writ of
habeas corpus in the district court in Massachusetts and sought a
stay of deportation, which the district court granted. On June 24,
2005, while Lawrence's habeas petition was still pending, the
district court ordered it to be transferred to this court pursuant
to section 106(c) of the REAL ID Act of 2005, Pub. L. No. 109-13,
Div. B, 119 Stat. 302, 311 (codified at 8 U.S.C. § 1252(a)(5)).
On April 26, 2005, Lawrence filed a special motion with
the BIA to reopen his case in order to seek relief under former
section 212(c) of the INA (codified at 8 U.S.C. § 1182(c) (1994)).4
The BIA denied Lawrence's motion on June 30, 2005, finding that he
was ineligible for the requested relief. Lawrence then filed the
present petition for judicial review of the BIA's decision. We
consolidated the petition for review with Lawrence's habeas
proceeding, which had already been transferred to this court by the
district court.
4
This section, prior to its repeal in 1996, provided that
"[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." 8 U.S.C. § 1182(c) (1994).
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In his petition for review, Lawrence challenges the BIA's
denial of his April 2005 motion to reopen his case. Review of such
a denial is for "abuse of discretion," but this rubric includes
errors of law, Wang v. Ashcroft, 367 F.3d 25, 26-27 (1st Cir.
2004), which are reviewed de novo, "according due weight to the
BIA's expertise in construing the statutory framework that it
administers." Orehhova v. Gonzales, 417 F.3d 48, 52 (1st Cir.
2005) (quoting Radkov v. Ashcroft, 375 F.3d 96, 98 (1st Cir.
2004)).
Lawrence does not dispute that he is removable because
his crime was one of moral turpitude (and meets the other statutory
conditions for removability on this ground), but he says that the
BIA erred in ruling that, as a matter of law, section 212(c) relief
is unavailable to him. Read literally, section 212(c) appears to
be limited solely to persons seeking to reenter the United States,
but it has been judicially enlarged to cover persons already inside
the United States who are similarly situated.5
Lawrence's problem is that this waiver authority was
itself repealed in 1996--before his application. But in INS v. St.
Cyr, 533 U.S. 289 (2001), the Supreme Court held that because
5
Wallace v. Reno, 194 F.3d 279, 281 (1st Cir. 1999). See
generally Francis v. INS, 532 F.2d 268 (2d Cir. 1976). The waiver
authority, whether for reentrants or residents, is limited to those
with "a lawful unrelinquished domicile [in the U.S.] of seven
consecutive years," 8 U.S.C. § 1182(c) (1994); Lawrence falls
within this category.
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Congress was unclear as to retroactive application of the repeal,
application for such relief could still be made even after repeal
by those 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." Id. at 326.
The Court's rationale for this prudential line-drawing
was that "[p]lea agreements involve a quid pro quo between a
criminal defendant and the government," id. at 321--that is, the
availability of potential section 212(c) relief might have been
relied on by the defendant, id. at 322-23. To implement St. Cyr,
the Justice Department provides that withholding relief may be
sought if the alien "[a]greed to plead guilty or nolo contendere to
an offense rendering the alien deportable or removable, pursuant to
a plea agreement made before April 1, 1997." 8 C.F.R. §
1003.44(b)(2) (2006).
Although the Attorney General's decision whether to grant
withholding remains discretionary,6 the BIA's refusal to entertain
Lawrence's request is based on a ruling of law--namely, that the
1998 conviction and plea represent the pertinent date for judging
6
As a discretionary decision, it would be only doubtfully
reviewable under the standard provisions of the Administrative
Procedure Act, 5 U.S.C. § 701(a)(2) (2000), but in any event 8
U.S.C. § 1252(a)(2)(B) makes it crystal clear that we would be
without authority to review this discretionary decision except for
a mistaken premise of law, id. § 1252(a)(2)(D).
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whether the exception in St. Cyr and the regulation apply. This
ruling is itself reviewable under the venerable principle of
Service v. Dulles, 354 U.S. 363, 372 (1957), even though the
Attorney General would thereafter be free to deny withholding on
discretionary grounds.
The BIA's decision that Lawrence is ineligible for
section 212(c) relief is correct. St. Cyr allows section 212(c)
relief to be sought, despite the repeal of the section, by those
who would have been eligible "at the time of their plea under the
law then in effect." 533 U.S. at 326 (emphasis added). The
regulation, which applies St. Cyr, refines this language, stating
that the alien must have pled guilty "pursuant to a plea agreement
made before April 1, 1997." 8 C.F.R. § 1003.44(b)(2) (emphasis
added).
The potential discrepancy between the two tests does not
matter here. Lawrence's currently effective plea and conviction
occurred in July 1998, well after the April 1997 cutoff date. At
the time he pled guilty, section 212(c) had been repealed. He had
no basis for assuming (as part of his plea or otherwise) that
section 212(c) relief would be potentially available as part of the
quid pro quo for the plea.
Lawrence says that the availability of section 212(c)
relief should be determined based upon when the conduct underlying
his conviction took place. This is the test used in an ex post
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facto analysis where punishment is increased for a pre-existing
crime, Harisiades v. Shaughnessy, 342 U.S. 580, 594 (1952), but ex
post facto principles do not apply to removal proceedings, Galvan
v. Press, 347 U.S. 522, 531 (1954). Instead, St. Cyr and the
regulations control, and, for their tests, the date of the criminal
conduct is irrelevant.
Lawrence also argues that his 1995 conviction should fix
the pertinent date because the superceding 1998 conviction was
obtained solely for strategic purposes--i.e., to avoid the expanded
aggravated felony definition. St. Cyr's concern is with whether an
alien entering a plea could be relying in his plea on the
availability of section 212(c) relief--not with why an alien was
interested in entering a plea in the first place. By 1998, section
212(c) was repealed, and under St. Cyr, a post-repeal plea bars an
alien from seeking relief under that provision.
This brings us to Lawrence's habeas petition, in which he
collaterally attacked the removal proceeding. He claimed inter
alia that the IJ took inappropriate judicial notice of certain
facts, that the IJ did not conduct the hearings in accordance with
statutory and regulatory requirements, and that Lawrence's counsel
was ineffective. Citing the REAL ID Act, the district court
transferred the petition to us.
The REAL ID Act did not give us habeas jurisdiction.
Rather, the statute says (with an exception not here relevant) that
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"a petition for review filed with an appropriate court of appeals
. . . shall be the sole and exclusive means for judicial review of
an order of removal." 8 U.S.C. § 1252(a)(5) (emphasis added). At
most, a habeas petition seeking to attack such an order becomes
upon transfer a petition for review, REAL ID Act, tit. I, § 106(c),
119 Stat. at 311, allowing us to consider whatever claims might be
reviewable by ordinary petition to review a BIA removal order.
However, Lawrence's entire brief in this court is devoted
to arguing the section 212(c) claim already discussed. The single
reference in his brief to arguments presented in the habeas
proceeding is this: "On all other issues raised before the District
Court in Petitioner's Petition for a Writ of Habeas Corpus (as
amended Sept. 20, 2004), Petitioner rests on his filings before the
District Court." There is no discussion whatsoever in the brief in
this court of the quite different attacks on the removal order made
in the district court.
Such an attempt to incorporate by cross-reference does
not comport with our ordinary rule that claims made to this court
must be presented fully in an appellate brief and not by cross-
reference to claims made in the district court. Fed. R. App. P.
28(a)(9)(A); R.I. Dep't of Envtl. Mgmt. v. United States, 304 F.3d
31, 48 n.6 (1st Cir. 2002). Indeed, because the statute now makes
the petition for review process the exclusive method of review for
removal orders, there is no warrant for this kind of habeas filing.
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In the future, claims presented by cross-reference to a
transferred habeas petition are likely to be summarily disregarded.
But the notion of transferring a habeas petition under the REAL ID
Act is relatively new. Possibly Lawrence's counsel thought that
the petition, having been transferred, could itself be regarded as
the equivalent of an appellate brief, even though it complies with
none of the formalities specified in the Federal Rules of Appellate
Procedure or our own local rules.
In any case, this court may review a final removal order
only as to claims that have been properly exhausted through the
administrative process. 8 U.S.C. § 1252(d)(1). Lawrence never
presented to the BIA his claims that the IJ took inappropriate
judicial notice of certain facts and did not properly conduct the
hearings. As for any claim of ineffective assistance of counsel,
Lawrence failed to comply with the procedures required by Matter of
Lozada, 19 I&N Dec. 637, 639 (BIA 1988).
The fact that Lawrence had filed a separate habeas
petition at some point after the BIA proceedings does not affect
the application of the statutory exhaustion provision governing
petitions for review. See, e.g., Bonhometre v. Gonzales, 414 F.3d
442, 445-48 (3d Cir. 2005), cert. denied, 126 S. Ct. 1362 (2006).
Lawrence had the opportunity to raise before the BIA the claims now
made in his habeas petition, yet he failed to do so.
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There is one loose end. Lawrence included in his habeas
petition a further claim of a different kind: he argued that,
having been detained for longer than 90 days, he should be released
from detention as he awaits deportation. The statute prescribes 90
days as the presumptive period of detention pending deportation, 8
U.S.C. § 1231(a)(1)(A), but allows for extension of this period
under certain circumstances, id. § 1231(a)(6). This challenge to
detention is arguably not governed by the exclusive review
provision of the REAL ID Act.
In any case, Lawrence's argument would fail on the
merits. Because Lawrence was found to be removable under the
"crime involving moral turpitude" provision, 8 U.S.C. §
1227(a)(2)(A)(i), the statute explicitly states that he "may be
detained beyond the [90-day] removal period," id. § 1231(a)(6).
While the statute on its face provides no limits for this detention
power, the Supreme Court has read the statute as "limit[ing] an
alien's post-removal-period detention to a period reasonably
necessary to bring about that alien's removal from the United
States." Zadvydas v. Davis, 533 U.S. 678, 689 (2001).
Lawrence's continued detention here occurred pursuant to
his own procuring of stays incident to his legal challenges to the
removal order; it is beyond dispute that this period of time was
necessary to bring about Lawrence's removal, which--now that the
current litigation is resolved--is presumably imminent. A remand
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on the issue of the length of detention, which has not been
requested, would be wholly fruitless.
The petition for review is denied. The stays of removal
previously entered will be vacated automatically and without
further order upon issuance of the mandate.
It is so ordered.
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