Petition for Review of an Order of the United States Department of Justice Board of Immigration Appeals. (BIA No. A45-867-307).
The opinion of the court was delivered by: Rendell, Circuit Judge.
Before: RENDELL and AMBRO, Circuit Judges, and SHAPIRO, District Judge*fn1
Jose Cruz, a citizen of the Dominican Republic, was ordered removed from the United States based on his conviction for a "crime involving moral turpitude," as defined by the Immigration and Nationality Act ("INA"). The New Jersey Superior Court subsequently vacated the conviction supporting Cruz's removal order, and Cruz sought to reopen his immigration proceedings. The Board of Immigration Appeals ("BIA") denied his motion to reopen on the grounds that it was untimely and this petition for review followed.
Normally, we could easily affirm a discretionary decision of the BIA denying a motion to reopen based upon untimeliness. In this case, there is no question that Cruz filed his motion out of time. Nor is there any question that the BIA treated Cruz's motion to reopen as a routine one in which the only issue was lateness. We find, however, that the current situation presents anything but a normal motion to reopen that lends itself to a straightforward analysis.
Cruz's motion to reopen is based on a single argument: because his conviction has been vacated, he is no longer subject to removal for committing a crime involving moral turpitude. The BIA has adopted, and we have previously upheld, specific guidelines for considering whether an alien remains "convicted" under the INA even after a court has vacated the alien's conviction. Pinho v. Gonzales, 432 F.3d 193, 209-10 (3d Cir. 2005); In re Pickering, 23 I. & N. Dec. 621, 624 (BIA 2003). In cases where the BIA has found an alien's conviction vacated for purposes of the INA, it has routinely considered this fact to be an "exceptional situation" that provides the basis for granting a motion to reopen sua sponte, without regard to the timing of the filing. Curiously, in this case, the BIA did not refer in any way to the distinctive aspect of Cruz's motion, namely, that a court had vacated his conviction. Nor did it refer to Pickering, let alone conduct an analysis under it as to whether Cruz remained "convicted" under the INA.
We conclude that the BIA should not have ignored the question of whether Cruz is still removable by virtue of his vacated conviction. Furthermore, we are not certain that we can address this issue ourselves because, under the INA, our jurisdiction to review a final order of the BIA is restricted when an alien is removable by virtue of a conviction for moral turpitude. 8 U.S.C. § 1252(a)(2)(C). Thus, the scope of our jurisdiction depends on whether Cruz remains removable due to his vacated conviction. This case includes a further analytical wrinkle because the government contends that, even if Cruz is not "convicted" for immigration purposes, and our jurisdiction therefore not limited by § 1252(a)(2)(C), we lack the power to review the BIA's unfettered discretion to decline to reopen proceedings sua sponte. This last argument presents an additional layer of difficulty, but it is one that we ultimately need not explore.
Our jurisdiction is the threshold issue in this case, and it is one beyond which the BIA's opinion, by virtue of its failure to consider whether Cruz remains convicted for immigration purposes, prevents us from moving. Without the BIA's view as to whether Cruz still has the requisite "conviction" under the INA for his removal, we cannot determine our own jurisdiction. Principles of administrative law require us to remand this case to the BIA to give it the opportunity to apply Pickering in the first instance and to decide, based on the outcome of this analysis, whether it should exercise its sua sponte authority to reopen Cruz's case. Nonetheless, we write precedentially because we believe our analysis to be instructive.
I. Facts and Procedural History
Jose Cruz is a native and citizen of the Dominican Republic who became a lawful permanent resident of the United States on June 15, 1997. On September 4, 1998, Cruz was arrested in Union County, New Jersey for promoting prostitution. He pled guilty to the offense in 1999 and was sentenced to two years of probation, which he served without incident.
Near the end of 2001, Cruz traveled to the Dominican Republic to visit his family. Upon his return to the United States at Newark International Airport on March 4, 2002, immigration officials placed Cruz in removal proceedings, charging that he was inadmissible due to his conviction. Because there was no question that promoting prostitution is a crime of moral turpitude under the INA, or that Cruz had been validly convicted for this offense, the Immigration Judge ("IJ") ordered Cruz removed from the United States at a merits hearing on January 23, 2003. The sole basis for the removal order was Cruz's 1999 conviction. Cruz timely appealed the IJ's decision to the BIA.
Less than a month after the IJ issued its removal order, Cruz filed a petition for post-conviction relief in New Jersey Superior Court. Cruz alleged that the attorney who represented him in his 1999 criminal proceedings provided ineffective assistance of counsel. Specifically, Cruz claimed that his attorney failed to advise him that a guilty plea could lead to his deportation, though he was fully aware of Cruz's status as a non-citizen of the United States. Moreover, Cruz alleged that his attorney did not suggest that he apply for New Jersey's Pre-Trial Intervention program ...