NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT 

_____________

No. 11-4367

_____________

OSCAR GENAO GUZMAN,

 Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent

On Petition for Review of an Order of the 

Board of Immigration Appeals

(Board No. A043-628-243)

Immigration Judge: Honorable Margaret R. Reichenberg

 

Submitted under Third Circuit LAR 34.1(a)

on September 11, 2012

BEFORE: SCIRICA, ROTH and BARRY, Circuit Judges

(Opinion filed: October 4, 2012 ) 

O P I N I O N

 

ROTH, Circuit Judge:

Oscar Genao Guzman filed a petition for review of a final order of dismissal

issued by the Board of Immigration Appeals (BIA). For the reasons that follow, we will 
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deny the petition.

I. Background

Guzman, a citizen of the Dominican Republic, entered the United States as a 

lawful permanent resident on August 28, 1992. He was arrested in Rhode Island on 

December 2, 1993, and charged with possession of cocaine with intent to deliver. 

Guzman left the state for thirteen years and did not answer the charges until he returned 

in 2006. On October 5, 2006, the state court dismissed the charge of possession with 

intent to deliver a controlled substance, and Guzman pled nolo contendere to an amended 

charge of frequenting a narcotics nuisance. He was sentenced to one year probation.

On May 16, 2010, Guzman arrived at Newark Liberty International Airport after a 

trip to the Dominican Republic and attempted to enter the United States as a lawful 

permanent resident. He was detained and subsequently served with a Notice to Appear,

charging that he was subject to removal under 8 U.S.C. § 1182(a)(2)(A)(i)(II). On 

November 15, 2010, he filed a motion with the Superior Court in Rhode Island to amend 

the date of his criminal conviction. The court granted the motion and entered the 

judgment and disposition nunc pro tunc to March 29, 1996. 

In his removal proceedings, Guzman requested relief under former Immigration 

and Nationality Act § 212(c), 8 U.S.C. § 1182(c) (repealed 1996). The Immigration 

Judge (IJ) denied his section 212(c) application and found him removable. The BIA 

dismissed Guzman‟s appeal of this decision on November 29, 2011, issuing a final order 

of removal.

Guzman filed a timely petition for review in this Court and moved to stay 
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removal. The government moved to dismiss the petition for lack of jurisdiction. We

denied the motion to dismiss and the motion for a stay of removal.

II. Jurisdiction and Standard of Review 

The government contests our jurisdiction to hear this petition for review, arguing 

that 8 U.S.C. § 1252(a)(2)(C) deprives us of “jurisdiction to review any final order of 

removal against an alien who is removable by reason of having committed a criminal 

offense covered in section 1182(a)(2).” 8 U.S.C. § 1252(a)(2)(C). Because Guzman was 

convicted of a controlled substance violation covered under section 1182(a)(2), section

1252(a)(2)(C) would divest us of jurisdiction over this petition. 

However, section 1252(a)(2)(D) permits judicial review of constitutional claims 

and questions of law raised in petitions otherwise not reviewable under section

1252(a)(2)(C). We have interpreted questions of law to encompass “pure questions of 

law” and “issues of application of law to fact, where the facts are undisputed and not the 

subject of challenge.” Kamara v. Att’y Gen., 420 F.3d 202, 211 (3d Cir. 2005) (internal 

quotation marks and citations omitted). Guzman raises one issue in his petition: whether 

the BIA and IJ erred as a matter of law in holding that an amended date of conviction 

entered nunc pro tunc to March 29, 1996, did not render him eligible for a section 212(c) 

waiver. Because this is an issue of application of law to fact and the facts are undisputed,

we have jurisdiction under section 1252(a)(2)(D).

We “review the BIA‟s legal decisions de novo . . . but will afford Chevron 

deference to the BIA‟s reasonable interpretations of statutes which it is charged with 

administering.” Id. (citations omitted).
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III. Discussion

Guzman argues that he should be eligible for a discretionary waiver of deportation 

under former section 212(c) because his date of conviction was entered nunc pro tunc to 

March 29, 1996, which precedes the date when the repeal of section 212(c) became 

effective. We find that Guzman is not eligible for this waiver.

Section 212(c), prior to its repeal by the Illegal Immigration Reform and 

Immigrant Responsibility Act of 1996 (IIRIRA) (effective April 1, 1997), gave the 

Attorney General discretion to grant a waiver of deportation for lawful permanent 

residents under certain circumstances. INA § 212(c), 8 U.S.C. § 1182(c) (repealed 1996). 

Since its repeal, section 212(c) relief has remained available for those aliens “whose 

convictions were obtained through plea agreements and who, notwithstanding these 

convictions, would have been eligible for section 212(c) relief at the time of their plea 

under the law in effect.” INS v. St. Cyr, 533 U.S. 289, 326 (2001); see also 8 C.F.R. § 

1212.3(h).

Because Guzman entered his plea on October 5, 2006, more than nine years after 

the repeal of section 212(c), he was not eligible for section 212(c) relief at the time of his 

plea and is not eligible now. In St. Cyr, the Supreme Court declined to apply the repeal 

of section 212(c) retroactively “[b]ecause respondent, and other aliens like him, almost 

certainly relied upon th[e] likelihood [of receiving § 212(c) relief] in deciding whether to 

forgo their right to a trial,” and thus eliminating the availability of this relief would have 

an impermissible retroactive effect. St. Cyr, 533 U.S. at 325. Unlike the respondent in St. 

Cyr, however, Guzman could not have relied upon the possibility of section 212(c) relief
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when he made his plea. Therefore, applying the repeal of section 212(c) in this case 

would not have an impermissible retroactive effect. 

Guzman argues that the date of his conviction governs whether he is eligible for 

section 212(c) relief and that his date of conviction is 2006. However, we conclude that 

the changing of the date of his conviction from 2006 to 1996 nunc pro tunc should be 

considered in the same light as the vacating of a conviction. The BIA has addressed the 

immigration consequences of a vacatur of conviction, holding that “[i]f . . . a court 

vacates a conviction for reasons unrelated to the merits of the underlying criminal 

proceedings, the respondent remains „convicted‟ for immigration purposes.” In re

Pickering, 23 I&N Dec. 621, 625 (BIA 2003), rev’d on other grounds, Pickering v. 

Gonzales, 465 F.3d 263 (6th Cir. 2006). The state court‟s amended judgment in this case 

should be treated similarly. There is no dispute that the state court granted Guzman‟s

motion to change the date of conviction nunc pro tunc solely for immigration purposes. 

Because the judgment was amended for reasons unrelated to the merits of the underlying 

criminal proceedings, 2006 remains the date of conviction for immigration purposes, and 

he is not eligible for a section 212(c) waiver. 

IV. Conclusion

For the foregoing reasons, we will deny the petition for review.