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Zamora-Mallari v. Mukasey

January 24, 2008

ERNESTO ZAMORA-MALLARI, GERARDO MEDINA-MUNOZ, AND JOSE L. BARRAZA-IBARRA, PETITIONERS,
v.
MICHAEL B. MUKASEY, ATTORNEY GENERAL OF THE UNITED STATES, RESPONDENT.



Petitions for Review of Orders of the Board of Immigration Appeals. Agency Nos. A43-221-786, A90-312-769 & A90-942-606.

The opinion of the court was delivered by: Manion, Circuit Judge.

ARGUED SEPTEMBER 6, 2007

Before FLAUM, MANION, and KANNE, Circuit Judges.

This opinion resolves three separate appeals challenging orders of the Board of Immigration Appeals ("Board"). The petitioners, Ernesto Zamora-Mallari ("Mallari"), Gerardo Medina-Munoz ("Munoz"), and Jose Luis Barraza-Ibarra ("Ibarra"), all sought waivers of removability under §212(c) of the Immigration and Nationality Act ("INA"). The Board denied their requests for §212(c) waivers, as well as other motions brought by the petitioners. The petitioners appeal. We deny the petitions for review.

I.

A. Petitioner Mallari

In 1991, Mallari, a citizen of the Philippines, entered the United States on an immigrant visa as an unmarried son of a United States citizen. Less than three years later, Mallari was indicted in Illinois state court on charges of criminal sexual abuse, aggravated criminal sexual abuse, and sexual exploitation of a child. In 1995, Mallari pleaded guilty to criminal sexual abuse and was sentenced to one year probation and community service.

In September 1999, the government served Mallari with a Notice to Appear ("NTA") in immigration court, charging him with removal as an alien convicted of criminal sexual abuse, an aggravated felony. Mallari requested a waiver from removal under § 212(c). An Immigration Judge ("IJ") denied Mallari's request and ordered him removed to the Philippines; the IJ concluded that Mallari was not eligible for a § 212(c) waiver because at the time of his guilty plea he lacked seven years of lawful domicile, as required by statute. Mallari appealed to the Board, arguing that he should have been permitted to present his application for § 212(c) relief. The government moved to remand Mallari's case to allow him to apply for § 212(c) relief. The Board agreed that remand was appropriate, noting that Mallari now possessed the seven years residency required for a § 212(c) waiver. Accordingly, the Board remanded the case to the IJ "for further proceedings consistent with this opinion."

On remand to the IJ, Mallari submitted numerous documents in support of his § 212(c) waiver application. The government, however, responded that Mallari was not eligible for the requested relief based on the Board's recent decision in Matter of Blake, 23 I & N Dec. 722 (BIA 2005). In Blake, the Board held that aliens charged with deportability for having committed the aggravated felony of sexual abuse of a minor are ineligible for relief under § 212(c) because there is no ground of inadmissibility corresponding to that ground of deportability. The IJ denied Mallari's request for § 212(c) relief and Mallari again appealed to the Board.

On July 20, 2006, in lieu of a brief, Mallari filed a motion to remand, seeking to pursue adjustment of status on the basis of an approved relative visa petition filed by his adult son who is a citizen of the United States. The government opposed Mallari's motion to remand. On September 21, 2006, the Board dismissed Mallari's appeal, concluding that Mallari was ineligible for a waiver under § 212(c). The Board further concluded that while Mallari might be eligible for an adjustment of status on the basis of a relative visa petition, he had failed to establish any discretionary considerations favoring remand and therefore he had not met his heavy burden of proving that reopening the proceedings was warranted. Mallari appeals.

B. Petitioner Munoz

Munoz, a citizen of Mexico, was admitted into the United States as a lawful permanent resident on October 27, 1989. In 1990, Munoz pleaded guilty in Illinois state court to the crime of aggravated criminal sexual abuse of a minor. Munoz was sentenced to probation for four years, but he violated his probation order by returning to Mexico. Following Munoz's probation violation, the Illinois state court sentenced him to three years of imprisonment.

Based on his conviction, the government served Munoz with an NTA in immigration court, charging him with removal as an alien convicted of sexual abuse of a minor, an aggravated felony. In May 2005, an IJ determined that Munoz was removable, and that he was not entitled to a § 212(c) waiver of removability. Munoz appealed to the Board. In September 2006, the Board dismissed his appeal, holding that Munoz was not entitled to a § 212(c) waiver. Munoz filed an appeal with this court.

The day before oral argument, Munoz filed an Emergency Motion to Hold Petition for Review in Abeyance to allow the Board to adjudicate a motion to reopen he had filed one week earlier with the Board. The motion to hold in abeyance is now also before this court. In support of his motion, Munoz attested that on August 28, 2007, he filed a Motion to Reopen his immigration case with the Board, seeking adjustment of status as the spouse of a United States citizen. The government objected to Munoz's request to hold this appeal in abeyance, noting that proceeding with Munoz's appeal would have no effect on Munoz's motion to reopen. Given that Munoz's appeal was fully briefed and argued, and that we are considering a purely legal question, there is no reason to further delay adjudication of the issue presented on appeal. Accordingly, we deny Munoz's Motion to Hold Petition for Review in Abeyance.

C. Petitioner Ibarra

In 1981, Ibarra, a citizen of Mexico, "entered the United States at or near El Paso, Texas . . . without being admitted or paroled into the United States." IJ Decision at 2. However, he later became a lawful permanent resident on May 18, 1990. Less than one month later, Ibarra pleaded guilty in Illinois state court to two counts of aggravated criminal sexual assault "based on his sexual penetration of a child under the age of 13."

On May 4, 1999, the Immigration and Naturalization Service "INS" (now the Department of Homeland Security, "DHS") served Ibarra with an NTA. The NTA charged Ibarra with removability from the United States as an alien convicted of criminal sexual assault, an aggravated felony. An IJ ordered Ibarra deported to Mexico, determining that he was statutorily ineligible for a § 212(c) waiver. Ibarra appealed to the Board. While his appeal was pending, the Supreme Court decided INS v. St. Cyr, 533 U.S. 289 (2001). In St. Cyr, the Supreme Court held that aliens whose criminal convictions were obtained through plea agreements, and who would have been eligible for § 212(c) relief at the time of their pleas, remained eligible for § 212(c) relief notwithstanding the fact that § 212(c) had been repealed prior to the initiation of their removal proceedings. Id. at 326. Based on St. Cyr, the Board remanded Ibarra's case to the INS to allow Ibarra to apply for § 212(c) relief. On remand, an IJ determined that Ibarra was not eligible for a § 212(c) waiver based on the offense for which he was found removable. Ibarra appealed to the Board. The Board dismissed Ibarra's appeal, agreeing with the IJ that Ibarra was not entitled to § 212(c) relief. Ibarra appealed to this court.

While his appeal was pending before this court, Ibarra filed a motion to reopen his case to present an application for adjustment of status based on his marriage to a United States citizen and his wife's approved visa petition. The Board denied Ibarra's motion to reopen and Ibarra appealed that decision to this court. He also filed a motion to reconsider both the Board's denial of his request for § 212(c) relief and its denial of his motion to reopen. The Board denied Ibarra's motion to reconsider and Ibarra appeals from that denial as well.

II.

On appeal, all three petitioners argue that they are entitled to seek a waiver from removability pursuant to § 212(c). Mallari and Ibarra also present other issues related solely to their individual cases. We address the § 212(c) issue first, as to ...


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