Richards-Diaz v. Gonzales - Opposition

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No. 06-66

In the Supreme Court of the United States

MARIO ALBERTO RICHARDS-DIAZ, PETITIONER

v.

ALBERTO R. GONZALES, ATTORNEY GENERAL

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

PAUL D. CLEMENT
Solicitor General
Counsel of Record

PETER D. KEISLER
Assistant Attorney General

DONALD E. KEENER
FRANCIS W. FRASER
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

Whether petitioner was eligible for "simultaneous" relief from removal under Sections 212(c) and 240A of the Immigration and Nationality Act, 8 U.S.C. 1182(c) (1994) (repealed 1996) and 8 U.S.C. 1229b.

No. 06-66

MARIO ALBERTO RICHARDS-DIAZ, PETITIONER

v.

ALBERTO R. GONZALES, ATTORNEY GENERAL

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The memorandum of the court of appeals (Pet. App. 2a-4a) is not published in the Federal Reporter but is reprinted in 171 Fed. Appx. 10. The order of the Board of Immigration Appeals (Pet. App. 5a) and the opinion and order of the immigration judge (Pet. App. 6a-12a) are unreported. Prior opinions of the court of appeals are reported at 233 F.3d 1160 and 273 F.3d 916. Prior orders of the Board of Immigration Appeals (Pet. App. 18a-19a, 22a-23a) and a prior decision of the immigration judge (Pet. App. 13a-17a) are unreported.

JURISDICTION

The judgment of the court of appeals was entered on February 28, 2006. A petition for rehearing was denied on April 17, 2006 (Pet. App. 1a). The petition for a writ

of certiorari was filed on July 12, 2006. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. Section 212(c) of the Immigration and Nationality Act (INA), 8 U.S.C. 1182(c) (1988), which was repealed in 1996, authorized a permanent resident alien domiciled in the United States for seven consecutive years to apply for discretionary relief from exclusion. Although, by its terms, Section 212(c) applied only to exclusion proceed ings, it was construed to apply to deportation proceed ings as well. See INS v. St. Cyr, 533 U.S. 289, 295 (2001).

In the Immigration Act of 1990, Congress amended Section 212(c) to make ineligible for discretionary relief any alien previously convicted of an aggravated felony who had served a prison term of at least five years. Pub. L. No. 101-649, § 511, 104 Stat. 5052. Subsequently, in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Congress amended Section 212(c) to make ineligible for discretionary relief any alien previ ously convicted of certain types of offenses, including an aggravated felony or a controlled-substance offense, without regard to the amount of time spent in prison. Pub. L. No. 104-132, § 440(d), 110 Stat. 1277. Later that same year, in the Illegal Immigration Reform and Immi grant Responsibility Act of 1996 (IIRIRA), Congress repealed Section 212(c), Pub. L. No. 104-208, § 304(b), 110 Stat. 3009-597, and replaced it with Section 240A of the INA, 8 U.S.C. 1229b, which provides for a form of discretionary relief known as cancellation of removal. Like Section 212(c) as amended by AEDPA, Section 240A makes ineligible for relief any alien who has been convicted of an aggravated felony. 8 U.S.C. 1229b(a)(3). Section 240A also makes ineligible for relief any alien who has previously obtained relief under Section 240A or Section 212(c). 8 U.S.C. 1229b(c)(6).

2. Petitioner is a native and citizen of Mexico. In April 1975, he entered the United States as an immi grant. In February 1996, he pleaded guilty in California court to transportation of methamphetamine. He was sentenced to 270 days of imprisonment. In June 1997, the Immigration and Naturalization Service (INS) com menced removal proceedings against petitioner.1 It al leged that he was removable under 8 U.S.C. 1227(a)(2)(A)(iii) because transportation of methamphet amine is an aggravated felony. Admin. R. 330, 363; Gov't C.A. Br. 4-5; Pet. App. 14a.

3. In October 1997, an immigration judge (IJ) found petitioner removable as charged, denied his applications for relief from removal, and ordered him removed to Mexico. Pet. App. 13a-17a. The IJ ruled that petitioner was ineligible for discretionary relief from removal un der Section 212(c) of the INA, 8 U.S.C. 1182(c) (1994), because that provision was repealed before removal pro ceedings were commenced, and that petitioner was ineli gible for cancellation of removal under Section 240A of the INA because he had been convicted of an aggravated felony. Pet. App. 16a. The Board of Immigration Ap peals (BIA) reached the same conclusion and dismissed petitioner's appeal. Id. at 18a-19a.

Petitioner thereafter filed a petition for a writ of ha beas corpus in the United States District Court for the Southern District of California. Gov't C.A. Br. 6. The district court denied the petition. Ibid. The court of appeals vacated the district court's decision in part, however, and remanded for a determination of whether petitioner had specifically relied on the availability of discretionary relief from removal when he entered his guilty plea in February 1996, four months before AEDPA's effective date. Richards-Diaz v. Fasano, 233 F.3d 1160 (9th Cir. 2000). This Court then granted the government's petition for a writ of certiorari, vacated the judgment of the court of appeals, and remanded the case for further consideration in light of St. Cyr, supra. Fasano v. Richards-Diaz, 533 U.S. 945 (2001). St. Cyr held, based on principles of non-retroactivity, that IIRIRA's repeal of Section 212(c) should not be con strued to apply to an alien convicted of an aggravated felony through a plea agreement at a time when the con viction would not have rendered the alien ineligible for relief under Section 212(c). 533 U.S. at 314-326.

On remand, the court of appeals held that, in light of St. Cyr, petitioner was eligible to apply for discretionary relief from removal under Section 212(c). Richards- Diaz v. Fasano, 273 F.3d 916 (9th Cir. 2001). It there fore vacated the judgment of the district court and re manded the case with directions to remand the case to the BIA for consideration of petitioner's application for Section 212(c) relief. Ibid. The BIA subsequently re opened the proceedings and remanded the case to the IJ so that petitioner could apply for relief under Section 212(c). Pet. App. 22a-23a.

While the case was pending before the IJ, the gov ernment became aware that, in March 1997, petitioner had pleaded guilty in California court to using and being under the influence of methamphetamine, for which he served 120 days in jail. In October 2002, the INS filed an additional charge of removability on the basis of that conviction. It alleged that petitioner was removable under 8 U.S.C. 1227(a)(2)(B)(i) because using and being under the influence of methamphetamine is a controlled- substance offense. Admin. R. 66, 71; Gov't C.A. Br. 5, 7; Pet. App. 8a-9a.

4. Following the remand and the filing of the addi tional charge, the IJ again found petitioner removable, again denied his applications for relief from removal, and again ordered him removed to Mexico. Pet. App. 6a- 12a. The IJ ruled that petitioner was ineligible for dis cretionary relief from removal under Section 212(c) of the INA because he had pleaded guilty to using and be ing under the influence of methamphetamine after the effective date of AEDPA, which made ineligible for Sec tion 212(c) relief any alien convicted of a controlled-sub stance offense. Id. at 10a. The IJ rejected petitioner's contention that, under the BIA's decision in In re Gabryelsky, 20 I. & N. Dec. 750 (1993), he "could com bine the Section 212(c) waiver with a cancellation of re moval under Section 240A[] relief and have all the con victions waived." Pet. App. 10a. The IJ reasoned that Gabryelsky "dealt with adjustment of status and Section 212(c)," not cancellation of removal and Section 212(c). Ibid. The IJ also explained that, for two reasons, Sec tion 240A "precludes using the cancellation remedy to cancel the ground of removability based on the 1997 con viction": first, the remedy is not available to aliens who have been convicted of an aggravated felony, and peti tioner was convicted of the aggravated felony of trans portation of methamphetamine in 1996; second, the rem edy is not available to aliens who have been granted Sec tion 212(c) relief, and petitioner's Gabryelsky argument depends on his obtaining Section 212(c) relief with re spect to his 1996 conviction. Id. at 10a-11a.

The BIA affirmed the IJ's decision without opinion. Pet. App. 5a.

5. The court of appeals denied petitioner's petition for review in an unpublished memorandum. Pet. App. 2a-4a. The court held that, even if petitioner was eligi ble for Section 212(c) relief in connection with his 1996 conviction, he was ineligible for Section 212(c) relief in connection with his 1997 conviction and was ineligible for cancellation of removal under Section 240A. Id. at 3a. The court concluded that petitioner was ineligible for Section 212(c) relief in connection with his 1997 con viction because the conviction postdated AEDPA's effec tive date, AEDPA made aliens convicted of a controlled- substance offense ineligible for Section 212(c) relief, and petitioner's 1997 conviction was for a controlled-sub stance offense. Id. at 3a-4a. The court concluded that petitioner was ineligible for cancellation of removal un der Section 240A because aliens previously convicted of an aggravated felony are ineligible for such relief and petitioner's 1996 conviction was for an aggravated fel ony. Id. at 4a.

ARGUMENT

Relying on In re Gabryelsky, 20 I. & N. Dec. 750 (B.I.A. 1993), petitioner contends (Pet. 6-15) that he was eligible for "simultaneous" relief from removal under Sections 212(c) and 240A of the INA. The IJ, BIA, and court of appeals all correctly rejected that contention, and further review is unwarranted.

1. In re Gabryelsky involved an alien who had been convicted of two offenses-a drug offense and a firearms offense-and wished to obtain two types of re lief-discretionary relief from deportation under Section 212(c) of the INA and adjustment of status under Sec tion 245 of the INA, 8 U.S.C. 1255. The problem for the alien was this: On the one hand, Section 212(c) "may be used to waive [deportation] for * * * drug offenses," but Section 212(c) relief "is barred where the applicant has a firearms conviction." Drax v. Ashcroft, 178 F. Supp. 2d 296, 304 (E.D.N.Y. 2001) (Weinstein, J.). That is because Section 212(c) applies only when "the ground of deportability charged is * * * also a ground of [ex clusion]," Gabryelsky, 20 I. & N. Dec. at 754, and, while a conviction of a drug offense is listed as a ground of exclusion in Section 212(a) of the INA, 8 U.S.C. 1182(a)(2)(A)(i)(II), "there is no exclusion ground corre sponding to the deportation ground for conviction of a firearms offense," Gabryelsky, 20 I. & N. Dec. at 753- 754. On the other hand, Section 245 "may be used to adjust the status of a lawful permanent resident, remov ing [firearms] offenses from their record for purposes of immigration hearings," but Section 245 "may not be used where the applicant has a record of drug offenses." Drax, 178 F. Supp. 2d at 304. That is because Section 245 requires that an alien be "admissible," 8 U.S.C. 1255(a), and, while an alien convicted of a firearms of fense is admissible, In re Rainford, 20 I. & N. Dec. 598 (B.I.A. 1992), an alien convicted of a drug offense is "in admissible," 8 U.S.C. 1182(a)(2)(A)(i)(II).

As Judge Weinstein has explained, the solution adopted by the BIA was this:

Gabryelsky allows the [alien] to consolidate both the 212(c) and 245 discretionary hearings into a single hearing. This creates the assumption that the two hearings happen at the same moment. Because of this simultaneous determination, the immigration judge can consider the section 212(c) hearing as not barred by the weapons conviction, since the judge is at that exact moment deciding also whether to waive the weapons conviction. And he can consider the sec tion 245 hearing as not barred by the drug convic tion, since he is also concurrently determining whether to waive the drug charge. Only if the judge decides to waive both charges is the petitioner not deported.

178 F. Supp. 2d at 304.

In adopting that rule in Gabryelsky, the BIA relied on two regulations. See 20 I. & N. Dec. at 754-756. The first was 8 C.F.R. 242.17(a) (1993) (since redesignated as 8 C.F.R. 1240.49(a)), which provided, in part, that,

[i]n conjunction with any application for creation of status of an alien lawfully admitted for permanent residence made to an immigration judge, if the re spondent is inadmissible under any provision of sec tion 212(a) of the Act and believes he meets the eligi bility requirements for a waiver of the ground of in admissibility, he may apply to the immigration judge for such waiver.

The second regulation was 8 C.F.R. 245.1(e) (1993), ti tled "Concurrent applications to overcome exclusionary grounds," which provided, in part, that "[a]ny applicant for adjustment under this part" (which governs adjust ment of status) "may also apply for the benefits of sec tion 212(c) of the [INA]." The BIA reasoned that, under Section 245.1(e), "there is no requirement that section 212(c) of the [INA] separately and independently waive all grounds of deportability in order for an applicant for adjustment of status to concurrently apply for relief under sections 245 and 212(c)." 20 I. & N. Dec. at 755. The BIA also reasoned that "such a reading would ren der the regulation * * * meaningless, for there would be no need to concurrently apply for adjustment of sta tus to overcome exclusionary grounds if a section 212(c) waiver would independently waive all grounds of inad missibility." Ibid.

2. The regulations on which the BIA relied in In re Gabryelsky are not applicable to the situation here, and there are no comparable regulations that are. Gabryelsky therefore provides no basis for concluding that petitioner was eligible for "simultaneous" relief from removal under Sections 212(c) and 240A of the INA. Indeed, unlike the type of relief at issue in Gabryelsky (adjustment of status), which was inherently related to Section 212(c) relief, both by statute and by regulation, the type of relief at issue here (cancellation of removal) has replaced Section 212(c) relief.

Petitioner places considerable weight (Pet. 7-12) on the BIA's decision in In re Azurin, 23 I. &. N. Dec. 695 (2005). But that case merely reaffirmed that an alien may simultaneously apply for relief under Sections 212(c) and 245 despite a change in the regulations. The BIA observed that Gabryelsky had relied on the state ment in 8 C.F.R. 245.1(e) (1993) that "[a]ny applicant for adjustment of status * * * may also apply for the ben efits of section 212(c)," and that that language had been eliminated as of April 1, 1997, when Section 245.1(e) was redesignated as 8 C.F.R. 245.1(f). In re Azurin, 23 I. & N. Dec. at 697-698. The BIA explained, however, that that regulation "was not the exclusive basis for [its hold ing] in Gabryelsky," and that it had "also relied on lan guage in former 8 C.F.R. § 242.17(a) (1993)," which "still exists in the current version of the regulation." Id. at 698. That language, the BIA said, "clearly indicates that the various waivers of inadmissibility are intended to accompany an adjustment application." Ibid. As al ready mentioned, 8 C.F.R. 242.17(a) (1993) is not appli cable to the situation here, and there are no comparable regulations that are.

3. Even if In re Gabryelsky applied beyond the con text of adjustment of status, petitioner still would not be eligible for "simultaneous" relief from removal. As peti tioner acknowledges (Pet. 7), the holding of Gabryelsky is that

an alien * * * who

(i) on his drug conviction, is eligible for § 212(c) relief from deportation but ineligible for § 245(a) adjustment of status; yet

(ii) on his weapons conviction, is eligible for § 245(a) adjustment of status but ineligible for § 212(c) relief from deportation,

can simultaneously apply for both forms of relief.

Drax v. Reno, 338 F.3d 98, 111 (2d Cir. 2003). By anal ogy, petitioner would have to show that, on his 1996 con viction for transportation of methamphetamine, he is eligible for Section 212(c) relief but ineligible for cancel lation of removal, and that, on his 1997 conviction for using and being under the influence of methamphet amine, he is eligible for cancellation of removal but ineli gible for Section 212(c) relief. Petitioner could not make that showing. As the court of appeals correctly held (Pet. App. 3a-4a), even if petitioner is eligible for Section 212(c) relief with respect to his 1996 conviction, he is not eligible for Section 212(c) relief or cancellation of re moval with respect to his 1997 conviction.

As to Section 212(c) relief: Petitioner pleaded guilty to using and being under the influence of methamphet amine in March 1997, after AEDPA's effective date (April 24, 1996), see Pub. L. No. 104-132, 110 Stat. 1214. Under Section 212(c) as amended by AEDPA, an alien convicted of a controlled-substance offense is ineligible for discretionary relief from removal, Pub. L. No. 104- 132, § 440(d), 110 Stat. 1277, and using and being under the influence of methamphetamine is a controlled-sub stance offense for those purposes, see 8 U.S.C. 1227(a)(2)(B)(i) (excluding from category of offense "re lating to a controlled substance" only "a single offense involving possession for one's own use of 30 grams or less of marijuana").

As to cancellation of removal: An alien is ineligible for cancellation of removal if he has been "convicted of any aggravated felony." 8 U.S.C. 1229b(a)(3). Because petitioner was convicted of transportation of metham phetamine in 1996, and because the definition of "aggra vated felony" includes "illicit trafficking in a controlled substance," 8 U.S.C. 1101(a)(43)(B), petitioner has been convicted of an aggravated felony. Indeed, he does not contend otherwise. See, e.g., Pet. App. 4a (decision be low) (noting that petitioner "does not dispute" that he was convicted of an aggravated felony in 1996).

The 1996 conviction would be a bar to cancellation of removal even if one assumed that petitioner would be granted Section 212(c) relief with respect to that convic tion. As the BIA has explained, "a grant of section 212(c) relief 'waives' the finding of excludability or deportability [but not] the basis of the excludability it self," such that "the crimes alleged to be grounds for excludability or deportability do not disappear from the aliens' record for immigration purposes." In re Bal deras, 20 I. & N. Dec. 389, 391 (1991). The Ninth Circuit has reached the same conclusion. See Molina-Amezcua v. INS, 6 F.3d 646, 647 (1993) (per curiam) ("A waiver of deportation gives the alien a chance to stay in the United States despite his misdeed, but it does not ex punge the conviction. The blemish remains on his re cord, to be considered if and when the alien again gives the Attorney General cause to examine his depor tability.").

4. No court of appeals has held that In re Gab ryelsky applies to a case of this type. And the only court of appeals to address the question has held that it does not. In Rodriguez-Munoz v. Gonzales, 419 F.3d 245 (2005), the Third Circuit rejected the contention that an alien convicted of sale of drugs in 1992 and possession of drugs in 2000 "would be entitled to relief if permitted to simultaneously apply for a waiver of removal under § 212(c) and for cancellation of removal under § 240A." Id. at 247. The court found Gabryelsky inapposite, be cause, among other things, the BIA's holding in that case was based on "a regulation permitting combined § 245(a) and § 212(c) applications." Id. at 248. The court also found that the alien would not be entitled to "simultaneous" relief even if Gabryelsky applied outside the context of adjustment of status. The court reasoned that, even if the alien were eligible for Section 212(c) relief with respect to his 1992 conviction, he would be ineligible for cancellation of removal with respect to his 2000 conviction, because the 1992 conviction was for an aggravated felony, thereby disqualifying him from seek ing cancellation of removal with respect to the 2000 con viction. Ibid.

Petitioner suggests (Pet. 14-15) that the Second Cir cuit and Seventh Circuit have extended the holding of Gabryelsky to the situation at issue here. But the deci sions on which he relies, Drax, 338 F.3d at 111-119, and Snajder v. INS, 29 F.3d 1203, 1208 (7th Cir. 1994), ap plied Gabryelsky to "simultaneous" applications for Sec tion 212(c) relief and adjustment of status, the circum stances that were present in Gabryelsky itself. Those circumstances are not present here.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General

PETER D. KEISLER
Assistant Attorney General

DONALD E. KEENER
FRANCIS W. FRASER
Attorneys

NOVEMBER 2006

1 The INS's immigration-enforcement functions have since been transferred to United States Immigration and Customs Enforcement in the Department of Homeland Security. See 6 U.S.C. 251 (Supp. IV 2004).