United States Court of Appeals
For the First Circuit
Nos. 08-1537, 08-1972
RAMON ARCADIO GUTIERREZ-CASTILLO,
Petitioner,
v.
ERIC H. HOLDER, JR.,* ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Boudin, John R. Gibson,** and Howard,
Circuit Judges.
John E. MacDonald, Allan M. Tow, Larochelle & MacDonald, Inc.,
John R. Grasso and Law Office of John R. Grasso, Inc. on brief for
petitioner.
Shahrzad Baghai, Office of Immigration and Litigation,
Department of Justice, Civil Division, Gregory G. Katsas, Assistant
Attorney General, and Terri J. Scadron, Assistant Director, on
brief for respondent.
June 4, 2009
*
Pursuant to Fed. R. App. P. 43(c)(2), Attorney General Eric
H. Holder, Jr. has been substituted for former Attorney General
Michael B. Mukasey as respondent.
**
Of the Eighth Circuit, sitting by designation.
BOUDIN, Circuit Judge. Ramon Arcadio Gutierrez-Castillo
is a native and citizen of the Dominican Republic, but he has
resided in the United States since he immigrated in 1967 at age
thirteen. He has been married to Barbara Gutierrez, a U.S.
citizen, for twenty-four years, and the couple has two teenage
children who are American citizens.
In March 1979, Gutierrez's brother was shot to death.
Gutierrez confronted the man he thought was responsible and killed
him, purportedly in self-defense. Thereafter, Gutierrez was
convicted in New York state court of assault in the first degree
and criminal possession of a weapon, and he also pled guilty to
first degree manslaughter. He spent eleven years in prison, was
released in November 1990 and received an early discharge from
parole in January 1994. He had no prior criminal record and has
not been in trouble with the law since.
On August 30, 1994, the Immigration and Naturalization
Service ("INS")1 issued an order to show cause charging Gutierrez
with deportability (now called removability) as an alien convicted
of a firearms offense designated under former section 241(a)(2)(C)
of the Immigration and Nationality Act (currently section
237(a)(2)(C), 8 U.S.C. § 1227(a)(2)(C) (2006)). In January 1995,
Gutierrez requested an adjustment of status; the immigration judge
1
INS was abolished in 2002 and its functions were transferred
to the Department of Homeland Security. Homeland Security Act of
2002, Pub. L. 107-296, § 471, 116 Stat. 2135, 2205.
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("IJ") granted him a continuance to allow Gutierrez's wife to file
an I-130 (immediate relative) visa petition. As the law then
existed, Gutierrez could apply for adjustment of status and a
section 212(h) waiver of inadmissibility (thus avoiding the bar
worked by his convictions) upon approval of the I-130 petition.
As the statute stood in 1995, a waiver could potentially
have been granted to Gutierrez, at the Attorney General's
discretion, on two different bases.2 Gutierrez' wife filed the I-
130 in February 1995, it was approved in May 1996, and Gutierrez
reported this to the IJ at a hearing on August 14, 1996. The IJ
then gave him a month to apply for adjustment of status and a
section 212(h) waiver and set a hearing date of November 14, 1996.
Gutierrez filed both his application for adjustment of status and
waiver on time.
Before the scheduled date of the hearing, Congress
enacted the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 ("IIRIRA"), Pub. L. 104-208, 110 Stat. 3009-546, on
September 30, 1996. IIRIRA expanded the definition of "aggravated
felony" to include crimes of violence for which there was a term of
2
One was a showing that the criminal activities rendering the
applicant inadmissible occurred more than fifteen years before the
date of his application for adjustment of status, that he was not
a threat to the United States, and that he had been rehabilitated;
the other was a showing that the applicant was the spouse, parent,
son or daughter of a U.S. citizen or lawful permanent resident and
that his citizen or resident family member would suffer extreme
hardship were he denied admission. 8 U.S.C. § 1182(h) (1996).
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imprisonment of one year or more and applied that definition
retroactively, Pub. L. 104-208, 110 Stat. at 3009-627-28, § 321
(codified at 8 U.S.C. § 1101(a)(43)), thus encompassing Gutierrez's
assault offense. It also amended section 212(h) by adding that
No waiver shall be granted under this
subsection in the case of an alien who has
previously been admitted to the United States
as an alien lawfully admitted for permanent
residence if . . . since the date of such
admission the alien has been convicted of an
aggravated felony . . . .
This amendment applied to "any alien who is in exclusion or
deportation proceedings as of the date of enactment." Pub. L. 104-
208, 110 Stat. at 3009-639, § 348.
The INS then added the charge that Gutierrez was
deportable as an aggravated felon based on his assault conviction.
Recognizing that the change in the law would likely preclude
relief, the IJ went ahead with the hearing on November 14, 1996,
and then issued an oral decision. He said that if he could do so
he would have granted the adjustment of status and the waiver but
he found that the waiver was now barred by IIRIRA. He called the
retroactive application of the new restrictions unfair, saying that
he could have advanced Gutierrez's application if he had
anticipated the changes, but that he was bound to apply the law and
could not pass on its constitutionality.
Gutierrez appealed to the Board of Immigration Appeals
("BIA") on various grounds, and his counsel indicated he would file
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a brief. After receiving one extension of time and filing for
another, his counsel filed the brief on October 29, 1997, twenty-
one days after his extended deadline. The next day the BIA denied
the second motion for the extension and, on May 23, 1998, denied
Gutierrez's motion to accept the untimely brief. On August 20,
2001, the BIA dismissed Gutierrez's appeal. For reasons that are
not explained, Gutierrez was not then deported.
On October 3, 2007, Gutierrez filed a motion to reopen to
the proceeding, claiming that his prior counsel's failure to file
a timely brief constituted ineffective assistance of counsel. The
untimely brief had raised arguments not addressed in the BIA's
opinion, including the claim that Gutierrez should be permitted to
apply for a section 212(h) waiver on a nunc pro tunc basis.
Gutierrez also claimed that the BIA's decision had been sent to an
incorrect address for his former counsel and that he had therefore
never received notice of the decision.
On November 30, 2007, the BIA issued a decision denying
the motion to reopen. It found the motion untimely and declined to
toll the deadline for the motion, which had long since expired. It
said that although the opinion had been sent to the wrong address,
neither Gutierrez nor his former counsel had attempted to check its
status until almost eleven years after the appeal was filed.
Gutierrez does not press the issue in this court.
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Addressing the merits of the ineffective assistance
claim, the BIA found that Gutierrez suffered no prejudice from his
prior counsel's failure to file a brief and so had no basis for
relief, Zeru v. Gonzales, 503 F.3d 59, 72 (1st Cir. 2007), because
IIRIRA precluded Gutierrez's obtaining a section 212(h) waiver.
This court dismissed Gutierrez's petition for review after the
Board granted his motion to reconsider on April 22, 2008.
On reconsideration, the BIA vacated its November 2007
order but again denied the motion to reopen. It conceded that the
fact that Gutierrez would not now be eligible for a section 212(h)
waiver "has no bearing on his eligibility for a nunc pro tunc
section 212(h) waiver"; the purpose of such relief is to avoid the
now-existing bar. However, the BIA denied the motion to reopen
because Gutierrez had failed to show prejudice from his prior
counsel's failure, this time because it found Gutierrez was not
entitled to nunc pro tunc relief.
First, the Board said that the record did not show that
Gutierrez had departed and returned to the United States since his
1980 convictions as (according to the Board) required by its
precedent to grant the relief sought by Gutierrez.3 Second, the
3
As to this ground, Gutierrez says that the Board misread its
precedents in suggesting that he had to leave and return in order
to be eligible for relief and that anyhow he had left and returned
after his conviction. The Board said that the latter assertion
should have been presented earlier. Given our ground of
disposition, this leave-and-return issue is moot.
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Board said that there had been no error, a prerequisite for nunc
pro tunc relief, such as improper delay in the administrative
process due to bad faith, inadvertence or clerical mistakes.
Gutierrez filed a petition for review in this court on
April 30, 2008, but also filed another motion to reconsider--this
time challenging the April 22, 2008 decision. The BIA rejected his
attack on its first ground (failure to depart and reenter) as
belated and repeated its ruling on the second (lack of bad faith or
inadvertence in the administrative process). Gutierrez filed a
petition for review of that decision, which we consolidated with
his petition to review the earlier order.
Our jurisdiction to review claims of aliens subject to
deportation for an aggravated felony conviction is confined to
legal and constitutional issues, 8 U.S.C. §§ 1252(a)(2)(C), (D),
assuming that (as here) the alien does not challenge the fact of
the underlying conviction. Sousa v. INS, 226 F.3d 28, 31 (1st Cir.
2000). Gutierrez claims that the IJ and BIA erred in finding that
the applicable IIRIRA provisions had retroactive effect. He also
says the BIA's denial of his request for a section 212(h) waiver
nunc pro tunc was erroneous and failed to follow its own precedent,
thereby denying him due process.
Whether the IIRIRA's pertinent provisions apply
retroactively is a legal question reviewed de novo. Lattab v.
Ashcroft, 384 F.3d 8, 14 (1st Cir. 2004); see Fustaguio Do
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Nascimento v. Mukasey, 549 F.3d 12, 15 (1st Cir. 2008). Whether a
civil statute applies retroactively depends on Congress' intent so
long as it is clearly expressed. Landgraf v. USI Film Prods., 511
U.S. 244, 280 (1994). Only if Congress' intent is not expressed
directly does the court consider "whether [retroactive application]
would impair rights a party possessed when he acted, increase a
party's liability for past conduct, or impose new duties with
respect to transactions already completed." Id.4
Under Landgraf, the IIRIRA provisions here do apply to
Gutierrez because Congress expressly provided that they should.
The definition of "aggravated felony" applies "regardless of
whether the conviction was entered before, on, or after the date of
enactment." Pub. L. 104-208, 110 Stat. at 3009-627-28, § 321;
Seale, 323 F. 3d at 159; Sousa, 226 F.3d at 34-35. Similarly, the
bar on section 212(h) waivers for anyone convicted of aggravated
felonies applies to "any alien who is in exclusion or deportation
proceedings as of the date of enactment." Pub. L. 104-208, 110
Stat. at 3009-639, § 348; INS v. St. Cyr, 533 U.S. 289, 319 & n.43
(2001).
Gutierrez ably argues that the nunc pro tunc doctrine
should have been used to afford him relief or at least that the
4
This is subject, of course, to constitutional constraints,
id. at 266-67, but Gutierrez does not argue that retroactive
application of the statute is unconstitutional, nor could such an
argument succeed under our precedent. Seale v. INS, 323 F.3d 150,
159-60 (1st Cir. 2003).
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agency erred by not squaring its refusal with prior decisions. He
says, in substance, that the new statutory bar would have been
avoided if the agency had completed its proceedings before the
statute came into effect (which the government does not dispute);
and he argues that nunc pro tunc precedent would allow the agency
in substance to retroactively grant the necessary waiver after the
bar went into effect.
Nunc pro tunc, a Latin phrase meaning "now for then,"
refers to the power of a court to treat something done now--
typically a court order--as effective as of an earlier date. See
Mahabir v. Ashcroft, 387 F.3d 32, 33 (1st Cir. 2004). As with many
legal terms or phrases (e.g., res judicata, jurisdiction, proximate
cause, res gestae), nunc pro tunc denotes an outcome; but to
determine whether and when the outcome is proper depends on often
intricate rules derived from precedents, and an orderly or complete
summary of the doctrine is not easy to provide.
The problem for Gutierrez in this instance is the
precision and unqualified character of Congress' intent as
expressed in the statute: that individuals in Gutierrez' position,
fully qualified for waiver under pre-existing law and partway
through the deportation process prior to enactment, should
nevertheless be subject to the new bar--even though it existed
neither at the time of the offense nor at the later time that the
waiver was first sought. Unfair it may seem; unclear it is not.
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Nunc pro tunc relief is often granted where a court has
itself made an error such as failing to sign an order on an
intended date, which it rectifies by labeling the order "nunc pro
tunc" and making it effective as of the earlier date. See, e.g.,
United States v. Yeje-Cabrera, 430 F.3d 1, 16 (1st Cir. 2005). The
agency here regards itself as in the same position and has
regularly made use of nunc pro tunc relief in situations of
administrative error, including waiver cases. E.g., Matter of P,
8 I. & N. Dec. 302, 303-05 (BIA 1959).
No such administrative error occurred here. On the
contrary, the IJ postponed hearing Gutierrez' application for
adjustment of status--doomed to failure absent a waiver--so
Gutierrez' wife could obtain the visa that was a predicate for a
waiver request. When the visa was finally obtained, a hearing was
scheduled. It is sheer bad luck that before the scheduled hearing
Congress intervened by passing the statute and making it effective
even where the proceeding was underway.
Gutierrez' brief is persuasive that the IJs and the Board
have not always insisted on an administrative error in order to
provide nunc pro tunc relief. His counsel has provided examples
where, for all that appears, the Board has granted such relief in
sympathetic cases, seemingly avoiding bars that would otherwise
apply. E.g., In re Alamutu, 2005 WL 952470 (BIA 2005)
(unpublished). None of these cases is on all fours with
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Gutierrez'; but neither do the Board decisions seem to form a fully
consistent pattern.
Be that as it may, nunc pro tunc relief in this case
cannot be squared with Congress' language or evident intent. The
only basis would be disagreement with Congress' policy of applying
its new ban in pending deportations. The IJ posed the dilemma,
favored relief and understood that he did not have power to grant
it. Closely on point is Fernandes Pereira v. Gonzales, 417 F.3d
38, 45 (1st Cir. 2005), where we said of a nunc pro tunc request,
"[f]or 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."
Perhaps in a situation where nunc pro tunc relief is
traditionally well established, the statute would not automatically
foreclose it. If the IJ had carelessly forgotten to schedule the
hearing and the bill passed in the meantime, there might be an
argument in Gutierrez' favor; as with equitable tolling in statutes
of limitations, Congress might be taken to have acted within the
context of existing background law. See, e.g., Trapp v. Spencer,
479 F.3d 53, 59-60 (1st Cir. 2007). We need not decide the issue.
But whatever the possible tensions in Board precedent,
there is no systematic or avowed practice of using nunc pro tunc
relief to evade Congress' policy decisions in cases where the
deportee or his situation happens to be sympathetic. Congress
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knows how to create discretionary relief for draconian immigration
restrictions; that is the function of the discretionary waiver
sought by Gutierrez. But Congress expressly withdrew that
discretion in the present class of cases, underscoring its firmness
by making the new restrictions effective in pending cases.
What Congress has taken away categorically it can
presumably give back in an individual case through a special bill.
That, or possibly some less obvious form of executive relief
unknown to us, is about all that remains available to Gutierrez.
The petitions for review must be denied.
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