On Petition for Review from the United States Department of Justice Board of Immigration Appeals. (BIA No. A34 204 757). Initially filed as a Notice of Appeal from D NJ 04-cv-04846. Prior to the Enactment of the Real ID Act of 2005.
The opinion of the court was delivered by: Van Antwerpen, Circuit Judge
Submitted Under Third Circuit LAR 34.1(a) August 5, 2005
Before: VAN ANTWERPEN, GREENBERG AND NYGAARD, Circuit Judges
Richard Jose Rodriguez-Munoz petitions for review of a final order of the Board of Immigration Appeals ("BIA"). For the reasons that follow, we will deny the petition.*fn1
Rodriguez-Munoz is a native and citizen of the Dominican Republic. He was admitted to the United States as a lawful permanent resident ("LPR") in 1976. In 1992, he pled guilty to four drug offenses in New York state court, including third degree criminal sale of a controlled substance (crack cocaine), a class B felony. See N.Y. Penal Law § 220.39. In 1994, the Immigration and Naturalization Service ("INS") charged Rodriguez-Munoz with deportability as an alien convicted of an aggravated felony and as being convicted of a violation relating to a controlled substance.*fn2 See Immigration and Nationality Act ("INA") §§ 241(a)(2)(A)(iii); 241(a)(2)(B)(i) [8 U.S.C. §§ 1231(a)(2)(A)(iii); 1231(a)(2)(B)(i)].*fn3 While the immigration proceedings were pending, Rodriguez-Munoz pled guilty in New York to two additional offenses: fifth degree criminal possession of marijuana (September 21, 1999) and seventh degree criminal possession of a controlled substance (November 3, 2000).
In October 2003, Rodriguez-Munoz appeared before an Immigration Judge ("IJ") and asked that the government "repaper" the proceedings so that he could simultaneously apply for a waiver of removal (based on the 1992 conviction) under former INA § 212(c) [8 U.S.C. § 1182(c)], and for cancellation of removal (based on the 1999 and 2000 convictions) under INA § 240A [8 U.S.C. § 1229b].*fn4 The IJ ordered the deportation proceedings administratively closed to allow Rodriguez-Munoz to be repapered. The government filed an interlocutory appeal which the BIA sustained, finding that administrative closure is inappropriate where one of the parties (in this case, the government) opposes it.
On remand, the IJ denied Rodriguez-Munoz's applications for relief and ordered him deported. The BIA dismissed Rodriguez-Munoz's appeal, concluding that even if he were repapered and eligible for a § 212(c) waiver, he would not be entitled to cancellation of removal because his 1992 conviction for criminal sale of a controlled substance, an aggravated felony, would still exist for purposes of evaluating his eligibility for § 240A relief.
Rodrizuez-Munoz then filed a habeas corpus petition under 28 U.S.C. § 2241, arguing that his constitutional rights were violated by the refusal to repaper him so that he could simultaneously apply for both waiver of removal under § 212(c) and cancellation of removal under § 240A. The District Court denied the petition on the merits and Rodriguez-Munoz filed a notice of appeal, which has been converted to a petition for review. See fn.1, supra. Rodriguez-Munoz was deported on March 23, 2005. See Appellant's Brief, 7 n.8.
Rodriguez-Munoz does not dispute that he is deportable based on his 1992 conviction for criminal sale of a controlled substance. In addition, his 1999 and 2000 convictions render him removable pursuant to INA § 237(a)(2)(B)(i) (alien convicted of a controlled substance offense). He argues, however, that he 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. We disagree.
When Rodriguez-Munoz was convicted of drug crimes in 1992, § 212(c) allowed a lawful permanent resident with seven years of consecutive residence in the United States to apply for a discretionary waiver of deportation. See INS v. St. Cyr, 533 U.S. 289, 295 (2001). The IIRIRA, which became effective in April 1997, repealed § 212(c) and replaced it with § 240A. Under the current provision, the Attorney General may cancel removal of an alien who has been an LPR for not less than five years, has resided continuously in the United States for seven years after having been admitted, and "has not been convicted of any aggravated felony." INA § 240A(a); see Ponnapula v. Ashcroft, 373 F.3d 480, 486 (3d Cir. 2004). In addition, an alien "who has been granted relief under section 212(c)" is ineligible for cancellation of removal. § 240(c)(6) [8 U.S.C. § 1229b(c)(6)].
The government acknowledges that "[t]here is no question that Rodriguez-Munoz is eligible to apply for a [§212(c)] waiver of deportation concerning" his 1992 conviction. See Appellee's Brief, 11. Indeed, under INS v. St. Cyr, 533 U.S. 289 (2001), "§ 212(c) relief remains available for aliens whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for § 212(c) relief at the time of their plea under the law then in effect." 533 U.S. at 326. According to St. Cyr, "the elimination of any possibility of § 212(c) relief by IIRIRA has an obvious and severe [and impermissible] retroactive effect." Id. at 325.
Importantly, however, Rodriguez-Munoz would not be eligible for cancellation of removal, which he also needs to prevail. The language of § 240A(a) is clear: The Attorney General may cancel removal only if an LPR "has not been convicted of any aggravated felony." Rodriguez-Munoz apparently did not argue before the BIA that his 1992 conviction is not an aggravated felony, nor does he raise such an argument on appeal. See Miah v. Ashcroft, 346 F.3d 434, 439 n.2 (3d Cir. 2003). Instead, he contends that his 1992 conviction, once ...