On Appeal from the United States District Court for the District of New Jersey (Dist. Ct. No. 01-cv-03181) District Judge: Hon. William G. Bassler
Before: BECKER,*fn1 Chief Judge, McKEE and HILL,*fn2 Circuit Judges
The opinion of the court was delivered by: McKEE, Circuit Judge
The Immigration and Naturalization Service appeals the district court's determination that § 212(h) of the Immigration and Nationality Act ("INA")*fn3 violates the equal protection component of the 5th Amendment's Due Process Clause. In her cross-appeal, Rita Dipeppe challenges the District Court's ruling that she is not entitled to seek relief from removal under INA § 212(c).*fn4 For the reasons that follow, we will reverse the District Court's order as to § 212(h) and affirm it as to § 212(c).
I. INA §§ 212(h) AND 212(c)
INA § 212(h) previously gave the Attorney General the discretion to waive an alien's inadmissibility for crimes of moral turpitude if an alien was a spouse, parent, or child of a United States citizen or permanent resident alien, and the alien seeking the waiver could demonstrate that denial of admission would cause extreme hardship to the citizen or permanent resident alien. INA § 212(h)(1)(B). However, Congress amended § 212(h) in 1996. That provision of the INA now removes this discretion in the case of aliens who were previously admitted as permanent residents and had either been convicted of an aggravated felony or had not resided in the United States for seven continuous years. INA § 212(h).*fn5 The statute applies only to aliens who have the status of legal permanent resident ("LPR"), it does not apply to non-legal permanent resident aliens ("non-LPR").*fn6
Thus, an alien who is a non-LPR may still attempt to have the Attorney General waive eligibility for removal. See DeLeon-Reynoso v. Aschroft, 293 F.3d 633, 637 (3d Cir. 2002) (describing statutory distinction); and In re Michel, 21 I & N Dec. 1101, 1104 (B.I.A. 1998)(same).
Prior to repeal, § 212(c) also gave the Attorney General the authority to waive inadmissibility of otherwise deportable or excludable legal aliens. INS v. St. Cyr, 533 US 289, 294 (2001). Although § 212(c) only applied to exclusion proceedings on its face, the Board of Immigration Appeals ("BIA") also allowed any permanent resident alien with lawful unrelinquished domicile of seven consecutive years to apply for a discretionary waiver from deportation. Id. at 295. If the application was granted, deportation proceedings were terminated and the alien could remain in the United States as a permanent resident. As might be expected, the number of aliens relying upon eligibility for § 212(c) waivers began to increase as Congress broadened the definition of deportable offenses. Id. at 295-96.
In 1990, Congress amended § 212(c) to preclude relief for anyone convicted of an aggravated felony who had served a term of imprisonment of at least five years. INS v. St. Cyr, 533 U.S. 289, 295-96 (2001). In 1996, Congress repealed § 212(c) in its entirety by enacting certain provisions of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), and the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"). Section 212(c) was replaced with a new § 240A which "permits the Attorney General... in her discretion to cancel removal in certain circumstances, but not when the alien has been convicted of an aggravated felony as defined by the INA." Xu Cheng v. INS, 206 F.3d 308, 312 (3rd Cir. 2000) (emphasis added). IIRIRA § 304(b), 110 Stat. 3009-597 (repealing § 212(c)); see also IIRIRA § 304(b), 110 Stat. 3009-594 (creating 8 U.S.C. § 1229(b)).*fn7
Rita DiPeppe is a native and citizen of Italy who was admitted to the United States on September 21, 1955 as an LPR. On August 5, 1992 she pled guilty to aggravated manslaughter after fatally shooting her husband with a handgun.*fn8 She was sentenced to a term of twenty-seven years imprisonment with nine years of parole ineligibility. Based on her conviction, the INS issued and served upon DiPeppe an Order to Show Cause ("OSC") and Notice of Hearing dated September 24, 1992. Those documents informed DiPeppe that the INS was leveling deportation charges against her under former INA § 241(a)(2)(iii), 8 U.S.C. § 1251(a)(2)(A)(iii) based upon her conviction for a crime defined as an "aggravated felony" under the INA.
However, the INS never filed its OSC or Notice of Hearing with the Immigration Court.*fn9
Thereafter, DiPeppe attempted to obtain a waiver of deportation under INA § 212(c) by filing Form I-191 (Application for Advance Permission to Return to Unrelinquished Domicile) with the INS. On November 29, 1995, the New Jersey District Director of the INS denied DiPeppe's application on the merits. The Director concluded that DiPeppe's conviction for aggravated manslaughter precluded the Attorney General's favorable exercise of discretion. DiPeppe's counsel subsequently made several attempts to schedule a hearing with the INS so that her waiver application could be considered by an ...