Jose M. Zambrano-Reyes, also known as Jose Manuel Zambrano-Reyes, Petitioner,
Eric H. Holder, Jr., Attorney General of the United States, Respondent
Argued February 15, 2013
Petition for Review of an Order of the Board of Immigration Appeals. No. a090-933-006
Before Flaum, Wood, and Hamilton, Circuit Judges.
Hamilton, Circuit Judge
This petition for judicial review presents questions affecting aliens who were lawful permanent residents and were removed because of criminal conduct, and especially those who then reentered the United States unlawfully. Petitioner Jose Zambrano-Reyes was a lawful permanent resident of the United States, but he was ordered removed in 2000 on account of two felony convictions. Shortly after his removal, he reentered the United States unlawfully. In 2011, he was arrested by immigration officers and his removal order from 2000 was reinstated. He then asked the Board of Immigration Appeals to reopen his original removal proceedings. He argued that his initial removal was in error because he was prevented from seeking discretionary relief from removal in 2000, while intervening Supreme Court decisions show that discretionary relief should have been available to him back in 2000.
The Board denied his motion to reopen, finding that it was untimely and that the 90-day statutory deadline should not be equitably tolled to permit Zambrano-Reyes to reopen his removal eleven years later. The Board also found that the discretionary relief he sought was not available to him, despite the changes in the law, because he had reentered the country unlawfully. Zambrano-Reyes seeks review of the denial of his motion to reopen. We have jurisdiction to review his petition under 8 U.S.C. § 1252(a)(2)(D), but we agree with the Board that Zambrano-Reyes's unlawful reentry means he is not eligible for the relief he seeks. See 8 U.S.C. § 1231(a)(5) (barring reopening of removal proceedings); 8 C.F.R. § 1003.44(k)(2) (barring discretionary relief from removal).
I. Factual, Legal, and Procedural Background
Zambrano-Reyes is a citizen of Mexico who entered the United States in 1979 and was granted lawful permanent resident status in 1989. In 1993, he pled guilty to two felony counts of aggravated sexual abuse of a minor. He was sen- tenced to six months in prison and four years of probation. These convictions set the stage for the legal troubles that followed.
A. Relevant Legal Background
To understand the legal issues Zambrano-Reyes presents, we must begin with a brief history of the discretionary relief from removal that he seeks. Under section 212(c) of the Immigration and Nationality Act of 1952 (INA), if a lawful permanent resident left the United States and would have been excluded from reentering the country on one of the grounds listed in the statute, he or she could seek discretionary relief from that exclusion from the Attorney General. Pub. L. No. 82-414, § 212(c), 66 Stat. 163, 187. The Board of Immigration Appeals made that discretionary relief available to lawful permanent residents who were subject to being deported, in addition to those subject to exclusion. See Matter of S—, 6 I. & N. Dec. 392, 396 (BIA 1954); Matter of Silva, 16 I. & N. Dec. 26, 27 (BIA 1976).
In 1996 Congress twice amended the relevant portions of the INA. The first amendment barred discretionary relief under section 212(c) for those who had committed certain criminal offenses. See Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, § 440(d), 110 Stat. 1214, 1277. Congress then eliminated section 212(c) relief altogether, replacing it with another form of discretionary relief—"cancellation of removal"—which is not available to permanent residents who have been convicted of an "aggravated felony." Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, § 304(a), 110 Stat. 3009-546, -594; cancellation of removal codified at 8 U.S.C. § 1229b(a).
AEDPA and IIRIRA did not specify whether or how their new bars to discretionary relief under section 212(c) would apply to someone in Zambrano-Reyes's position—permanent residents who were convicted of disqualifying felonies before the new laws took effect. The Attorney General issued an opinion in 1997 stating that discretionary relief under former section 212(c) was not available in any removal proceedings occurring after AEDPA became effective. Matter of Soriano, 21 Op. OLC 1 (Op. Att'y Gen. 1997). Under the Attorney General's view in Soriano, even if a permanent resident had pled guilty to a disqualifying crime before AEDPA was passed, as Zambrano-Reyes had done, he was ineligible for section 212(c) discretionary relief. Id. at 6.
In 2000, though, five weeks before the Board affirmed the order to remove Zambrano-Reyes, we issued an opinion that departed from the Attorney General's view. We held that a permanent resident who had pled guilty to crimes in reliance upon the old section 212(c) discretionary relief could not be barred from that relief. Jideonwo v. I.N.S., 224 F.3d 692, 700 (7th Cir. 2000). The next year, after Zambrano-Reyes had been removed and then returned illegally, the Supreme Court similarly held that section 212(c) relief was available to permanent residents who pled guilty to crimes before AEDPA and IIRIRA that would have disqualified them from such relief under those new laws. I.N.S. v. St. Cyr, 533 U.S. 289, 326 (2001). Thus, St. Cyr meant that permanent residents who were removable on account of certain crimes could still seek discretionary relief if they pled guilty to the relevant crimes before AEDPA and IIRIRA became effective.
In evaluating such applications for relief in the wake of St. Cyr, the Board faced a further question. Though the text of the original section 212(c) applied only as relief from exclusion but not from deportation, it had been applied to both. Yet exclusion and deportation have separate statutory lists of grounds for those respective consequences. Compare 8 U.S.C. § 1182(a) with § 1227(a). The Board needed a way to determine if a permanent resident ...