Argued February 13, 2013
On Petition for Review from an Order of the Board of Immigration Appeals (Board No. A023-301-750) Immigration Judge: Hon. Walter A. Durling.
Gregory F. Laufer [Argued] Paul, Weiss, Rifkind, Wharton & Garrison LLP Attorneys for Petitioner.
David V. Bernal Lauren Fascett [Argued] Eric H. Holder, Jr. Thomas W. Hussey John J. W. Inkeles Jennifer P. Williams United States Department of Justice Office of Immigration Litigation, Civil Division Attorneys for Respondent.
Nancy Morawetz Washington Square Legal Services, Inc. Immigrant Rights Clinic Attorney for Amicus Petitioner.
Before: HARDIMAN and ALDISERT, Circuit Judges and STARK, District Judge. [*]
HARDIMAN, Circuit Judge.
The question presented is whether an alien who has spent more than five years in prison for an aggravated felony is eligible for a waiver of deportation under former Immigration and Nationality Act (INA) § 212(c). We hold that he is not.
A native and citizen of Ecuador, Jorge Espinoza became a lawful permanent resident of the United States in 1980. In January 1994, he was served with an order to show cause charging him with deportability on the basis of a February 1993 New York conviction for selling cocaine. In response, Espinoza filed an application for a waiver of deportation under former INA § 212(c). Prior to his deportation hearing, however, Espinoza was paroled into the custody of the Immigration and Naturalization Service (INS) and his proceedings were administratively closed on December 5, 1994. As a result, Espinoza's application for § 212(c) relief was never adjudicated by the agency.
After his release from INS custody, Espinoza lived and worked in the New York City area until June 2004, when he was arrested again. On February 22, 2007, Espinoza was convicted of conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A), and was sentenced to 120 months' imprisonment. After his 2007 conviction, the Department of Homeland Security (DHS) reopened Espinoza's 1994 deportation proceedings. In February 2010, DHS served Espinoza with an additional charge of deportability based on the 2007 conviction, which supplemented the charges that had been lodged in 1994.
In February 2010, Espinoza's first deportation hearing was held in York, Pennsylvania. At Espinoza's request, Immigration Judge (IJ) Walter Durling postponed the proceedings to give Espinoza time to seek an attorney. In April 2010, Judge Durling again postponed the hearing after Espinoza requested a list of attorneys to contact. Although he agreed to provide the list, Judge Durling told Espinoza that "the list is essentially worthless" because "[n]o organization on the list will agree to represent any individual who is still serving the terms of imprisonment." Three months later, Immigration Judge Jesus Clemente took over the proceedings and postponed Espinoza's hearing for a third time after Espinoza expressed uncertainty as to whether his family had retained counsel for him. Finally, on September 28, 2010, Espinoza's deportation hearing proceeded, although he still had not obtained counsel. Espinoza told Judge Clemente that he had reached out to attorneys on the list the court had provided him, but that he had not received any responses. Judge Clemente asked Espinoza if he was ready to proceed notwithstanding the absence of counsel, and Espinoza agreed to do so. On May 31, 2011, Judge Durling ordered Espinoza removed from the United States to Ecuador.
In July 2011, Espinoza appealed to the Board of Immigration Appeals (BIA), arguing, inter alia, that: (1) the Government had failed to prove that he was not an American citizen or national; and (2) he was eligible for a waiver of deportability under former INA § 212(c). On August 30, 2011, the BIA affirmed Judge Durling's determination that Espinoza was not an American citizen or national, but remanded the case so the Immigration Court could consider whether Espinoza might be eligible for § 212(c) relief.
During a September 27, 2011, hearing following remand, Judge Durling requested that the Government provide Espinoza with a "short memorandum" detailing the Government's argument for why Espinoza was ineligible for § 212(c) relief and continued the hearing until November 8. Before the scheduled hearing was conducted, however, on November 4 Judge Durling held that Espinoza ...