2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-28-2013

Jorge Lupera-Espinoza v. Attorney General United

States

Precedential or Non-Precedential: Precedential

Docket No. 12-2007

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 PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

No. 12-2007

_______________

JORGE ROBERTO LUPERA-ESPINOZA,

 Petitioner

v.

ATTORNEY GENERAL OF THE 

UNITED STATES OF AMERICA,

 Respondent

________________

On Petition for Review from an

Order of the Board of Immigration Appeals

(Board No. A023-301-750)

Immigration Judge: Hon. Walter A. Durling

_________________

Argued February 13, 2013

Before: HARDIMAN and ALDISERT, Circuit Judges. 
2

and STARK*, District Judge

(Filed: May 28, 2013)

Gregory F. Laufer [Argued]

Paul, Weiss, Rifkind, Wharton & Garrison LLP

1285 Avenue of the Americas

New York, NY 10019

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

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

Attorneys for Respondent

Nancy Morawetz

Washington Square Legal Services, Inc.

Immigrant Rights Clinic

245 Sullivan Street

 

 

*

 The Honorable Leonard P. Stark, District Judge for the 

United States District Court for the District of Delaware, 

sitting by designation.
3

5th Floor

New York, NY 10012-0000

Attorney for Amicus Petitioner

_____________________

OPINION OF THE COURT

_____________________

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.

I

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 
4

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 
5

to do so. On May 31, 2011, Judge Durling ordered Espinoza 

removed from the United States to Ecuador.1

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 was ineligible 

for relief under § 212(c) and entered a second order of 

deportation.2

 

1 Because Espinoza contended at the September 28, 

2010, hearing that he is a citizen of the United States, Judges 

Clemente and Durling conducted a number of further 

hearings between December 6, 2010, and May 31, 2011, to 

permit Espinoza to obtain evidence to support his claim. He 

was unable to do so.

2 Because the Government filed its memorandum on 

November 2, 2011, it is likely that Espinoza did not have time 
6

Once again, Espinoza appealed to the BIA, this time 

arguing: (1) he was eligible for § 212(c) relief; (2) his due 

process rights had been violated because he neither received 

the Government‘s § 212(c) memorandum nor had an 

opportunity to present his argument prior to the IJ‘s decision; 

and (3) he had been denied his right to counsel. In a March 

15, 2012, opinion, the BIA agreed with Judge Durling‘s 

interpretation of relevant precedent addressing § 212(c) 

before ultimately ―find[ing] no error in the Immigration 

Judge‘s legal conclusion that the respondent‘s 2007 

aggravated felony conviction is not subject to waiver under 

section 212(c) under controlling Third Circuit law.‖ App. 17. 

Alternatively, the BIA found that Espinoza was ineligible for 

§ 212(c) relief because, by March 15, 2012, he had served 

five years in prison for his 2007 conviction, dating back to 

February 22, 2007. Finally, the BIA found Espinoza‘s due 

process and citizenship claims unpersuasive and dismissed his 

appeal, thereby affirming the IJ‘s November 4, 2011, 

deportation order. Espinoza petitioned for review of the 

BIA‘s August 30, 2011, and March 15, 2012, decisions.3

 

to review the memorandum and respond to it before Judge 

Durling‘s November 4 decision.

3

Espinoza was released from the custody of the United 

States Bureau of Prisons on or about March 15, 2013, and 

was transferred to the custody of United States Immigration 

and Customs Enforcement. He was deported from the United 

States to Ecuador on or about March 26, 2013.
7

II

In support of his petition for review Espinoza claims: 

(1) he is eligible for discretionary relief from deportation 

under former INA § 212(c) and (2) his due process rights 

were violated when he was prevented from presenting his 

case prior to Judge Durling‘s November 4 decision and 

because the IJs failed to ascertain whether he had received the 

required list of attorneys.4

The BIA had jurisdiction under 8 C.F.R. §§ 

1003.1(b)(3) and 1240.15, which confer appellate jurisdiction 

over decisions of immigration judges in removal 

proceedings.5 Federal courts generally lack jurisdiction to 

 

4

Espinoza also challenges the BIA‘s conclusion that 

he is not a ―national‖ of the United States within the meaning 

of 8 U.S.C. § 1101(a)(22) because he is not a United States 

citizen. Under the INA, the Attorney General‘s removal 

power is limited to ―deportable aliens.‖ See 8 U.S.C. § 

1227(a). An alien is defined as ―any person not a citizen or 

national of the United States.‖ 8 U.S.C. § 1101(a)(3). 

Espinoza argues that even though he is not a citizen of the 

United States, he might still be considered a ―national‖ under 

a ―disjunctive‖ reading of the statutory provision that defines 

the term. See 8 U.S.C. § 1101(a)(22) (―The term  ̳national of 

the United States‘ means (A) a citizen of the United States, or 

(B) a person who, though not a citizen of the United States, 

owes permanent allegiance to the United States.‖). This 

argument is foreclosed by our decision in Salim v. Ashcroft, 

350 F.3d 307, 310 (3d Cir. 2003) (per curiam).

5 Before the Illegal Immigration Reform and 

Immigrant Responsibility Act of 1996 (IIRIRA), ―individuals 
8

review final orders of removal based on an alien‘s conviction 

for an aggravated felony. 8 U.S.C. § 1252(a)(2)(C). 

Nevertheless, because Espinoza‘s appeal presents only 

constitutional claims and questions of law relating to the 

BIA‘s final removal order, we have jurisdiction under 8 

U.S.C. § 1252(a)(2)(D). See Papageorgiou v. Gonzalez, 413 

F.3d 356, 358 (3d Cir. 2005) (holding that ―all aliens, 

including criminal aliens‖ are permitted ―to obtain review of 

constitutional claims and questions of law upon the filing of a 

petition for review with an appropriate court of appeals‖).

―When, as here, the BIA affirms an IJ‘s decision and 

adds analysis of its own, we review both the IJ‘s and the 

BIA‘s decisions.‖ Martinez v. Att’y Gen., 693 F.3d 408, 411 

(3d Cir. 2012) (citing Dia v. Ashcroft, 353 F.3d 228, 243 (3d 

Cir. 2003) (en banc); Abdulai v. Ashcroft, 239 F.3d 542, 549 

(3d Cir. 2001)). We review questions of law de novo. 

Fadiga v. Att’y Gen., 488 F.3d 142, 153–54 (3d Cir. 2007).

 

who were ineligible for admission into the United States and 

were never admitted into the United States were referred to as 

 ̳excludable,‘ while aliens who had gained admission, but 

later became subject to expulsion from the United States, 

were referred to as  ̳deportable.‘ After IIRIRA, aliens who 

were previously referred to as  ̳excludable‘ are termed 

 ̳inadmissible,‘ and the term  ̳removal proceedings‘ covers 

proceedings applicable to both inadmissible and deportable 

aliens. Thus, a reference to an order of removal would 

encompass an order of deportation.‖ Avila-Macias v. 

Ashcroft, 328 F. 3d 108, 111 (3d Cir. 2003) (internal 

quotation marks and citations omitted).
9

III

A

We begin our evaluation of the impact of the five-year 

bar by exploring the evolution of the Attorney General‘s 

authority to grant aliens discretionary relief from deportation. 

Section 212 of the INA of 1952, codified at 8 U.S.C. § 1182, 

excludes certain classes of aliens from the United States, 

including those convicted of offenses involving moral 

turpitude or illicit narcotics trafficking. See Pub. L. No. 82-

414, 66 Stat. 163, 182–87 (1952). That section was subject to 

a waiver provision, § 212(c), which was codified at 8 U.S.C. 

§ 1182(c). The first sentence of § 212(c) provided: ―Aliens 

lawfully admitted for permanent residence who temporarily 

proceeded abroad voluntarily and not under an order of 

deportation, and who are returning to a lawful unrelinquished 

domicile of seven consecutive years, may be admitted in the 

discretion of the Attorney General . . . .‖ 66 Stat. at 187, 8 

U.S.C. § 1182(c) (repealed). Although § 212(c) ―was literally 

applicable only to exclusion proceedings, . . . it . . . has been 

interpreted by the Board of Immigration Appeals . . . to 

authorize any permanent resident alien with  ̳a lawful 

unrelinquished domicile of seven consecutive years‘ to apply 

for a discretionary waiver from deportation.‖ INS v. St. Cyr, 

533 U.S. 289, 295 (2001) (citing Matter of Silva, 16 I. & N. 

Dec. 26, 30 (1976)).

A few decades after passing the INA, Congress began 

to narrow the class of permanent resident aliens who may 

apply for discretionary relief under § 212(c). Of critical 

significance to this appeal, Congress in 1990 amended § 

212(c) to bar discretionary relief to any alien who has ―been 

convicted of an aggravated felony and has served a term of 
10

imprisonment of at least 5 years.‖ See Immigration Act of 

1990 § 511(a), Pub. L. No. 101-649, 104 Stat. 4978, 5052 

(1990) (1990 Amendment).6 When Congress enacted the 

Antiterrorism and Effective Death Penalty Act of 1996 

(AEDPA), it barred § 212(c) relief to those aliens who were 

convicted of a broad set of offenses, including ―aggravated 

felonies, drug convictions, certain weapons or national 

security violations, and multiple convictions involving crimes 

of moral turpitude.‖ Perez v. Elwood, 294 F.3d 552, 556–57 

(3d Cir. 2002); see AEDPA, Pub. L. No. 104-132, 110 Stat. 

1214, 1277–79 (1996) (amending 8 U.S.C. § 1182(c)). Later 

that same year, Congress passed IIRIRA, which repealed INA 

§ 212(c), and replaced it with a new section, IIRIRA § 240A, 

codified at 8 U.S.C. § 1229b. Perez, 294 F.3d at 557. Under 

§ 240A, the Attorney General does not have discretion to 

cancel removal for anyone previously ―convicted of any 

 

6

The 1990 Amendment reads: ―Section 212(c) (8 

U.S.C. 1182(c)) is amended by adding at the end the 

following:  ̳The first sentence of this subsection shall not 

apply to an alien who has been convicted of an aggravated 

felony and has served a term of imprisonment of at least 5 

years.‘.‖ This language was subsequently clarified ―by 

striking  ̳an aggravated felony and has served‘ and inserting 

 ̳one or more aggravated felonies and has served for such 

felony or felonies‘.‖ See Miscellaneous and Technical 

Immigration and Naturalization Amendments of 1991 § 

306(a)(10), Pub. L. No. 102-232, 105 Stat. 1733, 1751 

(1991). ―This technical change is of no significance to the 

issues presented here either in its text or its effective date . . . 

.‖ Scheidemann v. INS, 83 F.3d 1517, 1519 n.1 (3d Cir. 

1996) (citing 105 Stat. at 1759).
11

aggravated felony.‖ 8 U.S.C. § 1229b(a)(3); Perez, 294 F.3d 

at 557. IIRIRA also contains transitional rules that instruct 

courts not to apply the statute to deportation proceedings 

initiated before the statute‘s effective date of April 1, 1997. 

IIRIRA § 309(c)(1), Pub. L. No. 104-208, 110 Stat. 3009 

(1996).7

In light of this statutory scheme, we consider 

Espinoza‘s criminal and immigration proceedings to 

determine whether he may seek discretionary withholding of 

deportation under § 212(c). Using all ―traditional tools of 

statutory construction,‖ we first ask ―whether Congress has 

directly spoken to the precise question at issue.‖ Chevron, 

U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 

842, 843 n.9 (1984). ―If Congress has done so, [our] inquiry 

is at an end; [we]  ̳must give effect to the unambiguously 

expressed intent of Congress.‘‖ FDA v. Brown & Williamson 

Tobacco Corp., 529 U.S. 120, 132 (2000) (quoting Chevron, 

467 U.S. at 843). 

B

Espinoza argues that because he was placed into 

deportation proceedings before IIRIRA became law, the 

transitional rules of § 309(c)(1) enable him to seek 

discretionary relief from deportation under former INA 

 

7

IIRIRA § 309(c)(1) states: ―[I]n the case of an alien 

who is in exclusion or deportation proceedings as of the title 

III-A effective date—(A) the amendments made by this 

subtitle shall not apply, and (B) the proceedings (including 

judicial review thereof) shall continue to be conducted 

without regard to such amendments.‖
12

§ 212(c). We need not address this argument because the 

1990 Amendment bars Espinoza from seeking § 212(c) relief 

irrespective of IIRIRA. 

At the time Espinoza filed his first application for § 

212(c) relief in 1994, Congress had already amended the 

statute in 1990 to bar discretionary relief to those convicted of 

an ―aggravated felony‖ who had served a term of 

imprisonment of at least five years. The language of the 1990 

Amendment is unequivocal: ―The first sentence of [§ 212(c)] 

shall not apply to an alien who has been convicted of an 

aggravated felony and has served a term of imprisonment of 

at least 5 years.‖ 104 Stat. at 5052 (internal quotation marks 

omitted). As we have stated, ―§ 212(c) plainly bars 

discretionary relief to aliens who have served at least five 

years‘ imprisonment for one or more  ̳aggravated felonies.‘‖ 

Scheidemann, 83 F.3d at 1518. Where, as here, the initial § 

212(c) application was filed after 1990, the only date that 

matters is when the petitioner began serving his criminal 

sentence. See id. at 1526 (―If an alien has served at least five 

years‘ imprisonment for a felony conviction, as petitioner 

here has, the only limitations on the applicability of the § 

212(c) bar are two: (1) that the application for relief must 

have been submitted after the date of the bar‘s enactment, and 

(2) that the conviction must have been for an  ̳aggravated 

felony‘ as defined in the Act.‖).

Espinoza concedes that his conviction for conspiracy 

to possess with intent to distribute cocaine constitutes an 

aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. § 

1101(a)(43)(B). By the time the BIA issued its final order of 

deportation on March 15, 2012, Espinoza had served more 
13

than five years for his 2007 conviction and thus, as the BIA 

correctly held, he was ineligible for § 212(c) relief.8

Espinoza‘s sole rejoinder is that equity demands that 

he be relieved from the operation of the statute as written. He 

argues that ―[b]ecause he had not served five years‘ 

imprisonment for an aggravated felony prior to his 

[September 1994] application [for § 212(c) relief], his 

application should not have been denied under the five-year 

bar.‖ Espinoza Br. 25. Espinoza cites our decision in 

Caroleo v. Gonzales, 476 F.3d 158 (3d Cir. 2007), abrogated 

on other grounds by Judulang v. Holder, 132 S. Ct. 476 

(2011), as support for the proposition that he was entitled to 

seek § 212(c) relief as a matter of equity. 

In Caroleo, the BIA issued a final order of removal 

denying § 212(c) relief based on an arguably incorrect 

interpretation of the Supreme Court‘s holding in St. Cyr. 

Caroleo, 476 F.3d at 160–61. At the time of the order, 

Caroleo had not yet served five years in prison for his 

underlying aggravated felony conviction. Id. at 160. A few 

years later, he filed a special motion with the BIA, again 

seeking § 212(c) relief, and again arguing that he deserved 

relief under St. Cyr. Id. at 161. By this point, however, 

Caroleo had served more than eight years in prison. Id. He 

argued that we should, nunc pro tunc, consider his § 212(c) 

application retroactive to April 2001—the time when he first 

raised the St. Cyr issue before the IJ and BIA and before he 

had served five years in prison. Id. at 162. Because we held 

 

8 Because Espinoza is ineligible for § 212(c) relief due 

to the five-year bar, we do not reach the BIA‘s alternative 

holding that Espinoza was also ineligible under IIRIRA 

§ 240A.
14

that Caroleo was ineligible for § 212(c) relief on grounds 

unrelated to his St. Cyr argument, we did not determine 

whether he could seek § 212(c) relief. Id. at 162–63. 

Nevertheless, we stated:

Were we to reach the [St. Cyr issue], we would 

hold that Caroleo should be permitted, on 

equitable grounds, to apply for § 212(c) relief 

despite having now served more than five years 

in prison . . . . 

Id. at 162. Espinoza argues that this dictum applies to his 

petition for review. We disagree. 

As we have noted, the 1990 Amendment 

unambiguously states that an aggravated felon who has 

served more than five years for his crime is ineligible for 

§ 212(c) relief. Scheidemann, 83 F.3d at 1518; see also 

Fernandes Pereira v. Gonzales, 417 F.3d 38, 47 (1st Cir. 

2005) (―[T]he language of § 212(c) seems to us utterly 

clear—the relief sought simply does not exist for an 

aggravated felon who has served five years of his felony 

term.‖). A court may not award equitable relief in 

contravention of the expressed intent of Congress. See INS v. 

Pangilinan, 486 U.S. 875, 883–85 (1988) (―[I]t is well 

established that  ̳[c]ourts of equity can no more disregard 

statutory and constitutional requirements and provisions than 

can courts of law,‘‖ id. at 883 (quoting Hedges v. Dixon 

Cnty., 150 U.S. 182, 192 (1893) (alteration in original)). 

Because Espinoza has now spent more than five years in 

prison for an aggravated felony, he is statutorily precluded 

from seeking relief under § 212(c). 
15

In addition, the facts of Caroleo are readily 

distinguishable from the facts of Espinoza‘s case. There, 

Caroleo had not yet served five years in prison at the time the 

BIA issued its arguably erroneous final order of removal.9 

Caroleo, 476 F.3d at 162. For Espinoza, however, the fiveyear period lapsed during the pendency of the administrative 

proceedings. By the time the BIA issued its final order of 

deportation on March 15, 2012, Espinoza had served more 

than five years in prison following his February 22, 2007, 

aggravated felony conviction. Unlike in Caroleo, where the 

BIA‘s decision to deny § 212(c) relief was arguably based on 

legal error alone, the BIA denied Espinoza‘s § 212(c) claim 

 

9 At least one of our sister courts has held that nunc 

pro tunc relief should be granted to an alien who became 

statutorily ineligible for § 212(c) relief based on the five-year 

bar subsequent to a legally erroneous denial of the alien‘s 

original application. See Edwards v. INS, 393 F.3d 299, 304, 

312 (2d Cir. 2004). But see Romero-Rodriguez v. Gonzales, 

488 F.3d 672, 679 (5th Cir. 2007) (―[T]his court‘s equitable 

nunc pro tunc authority cannot be used to fix the type of error 

that occurred when the BIA erroneously denied Romero‘s 

initial application for a § 212(c) waiver.‖); Pereira, 417 F.3d 

at 47 (―declin[ing] the [Second Circuit‘s] invitation‖ in 

Edwards because ―the language of § 212(c) seems to us 

utterly clear—the relief sought simply does not exist for an 

aggravated felon who has served five years of his felony 

term‖). The Second Circuit was careful to note, however, that 

it ―express[ed] no views on whether an award of nunc pro 

tunc relief would be similarly warranted where the alien 

accrued more than five years imprisonment during the 

pendency of the administrative appeals.‖ Edwards, 393 F.3d 

at 312 n.18 (emphasis added).
16

on two independent grounds: (1) a rejection of his § 212(c) 

argument based on IIRIRA and (2) the five-year bar. Even if 

we assume, arguendo, that the BIA erred in its interpretation 

of how IIRIRA affected Espinoza‘s § 212(c) claim, the fiveyear bar still prevented the BIA from granting Espinoza § 

212(c) relief. Thus, Caroleo is inapposite. Simply put, we 

hold that the BIA correctly held that Espinoza was ineligible 

to seek § 212(c) relief because he had served more than five 

years for an aggravated felony by the time the BIA affirmed 

the IJ‘s deportation order.

IV

Espinoza also argues that he suffered two due process 

violations during the course of his deportation proceedings. 

We disagree.

First, Espinoza contends that we should remand the 

case because the IJs failed to comply with regulations 

promulgated by the Attorney General to protect his right to 

counsel. Section 1240.10(a)(2)-(3) of Title 8 of the Code of 

Federal Regulations directs that ― ̳[i]n a removal proceeding, 

the immigration judge shall‘  ̳[a]dvise the respondent of the 

availability of free legal services provided by organizations 

and attorneys . . . located in the district where the removal 

hearing is being held‘ and shall  ̳[a]scertain that the 

respondent has received a list of such programs[.]‘‖ Leslie v. 

Att’y Gen., 611 F.3d 171, 175 (3d Cir. 2010) (quoting 8 

C.F.R. § 1240.10(a)(2)-(3)) (alterations in original). A review 

of the record indicates that the IJs satisfied these 

requirements.

A few minutes into the April 2010 hearing, Espinoza 

requested a list of attorneys to contact and Judge Durling 
17

agreed to send Espinoza the list. The IJs then postponed 

Espinoza‘s hearing twice more—for a total of three 

postponements—thereby giving Espinoza more than five 

months to secure counsel. At the start of Espinoza‘s fourth 

hearing, the following exchange occurred:

[IJ Clemente:] Now, sir, I gave you time to get 

an attorney. Were you able to get an attorney?

[Espinoza:] I wrote letters to the attorneys that 

you guys provided me with, the list. And I 

haven‘t received anything in response yet. . . .

App. 147–48 (emphasis added). The record indicates that the 

IJs advised Espinoza of the availability of free legal services 

and provided him with a list of such programs in compliance 

with 8 C.F.R. § 1240.10(a)(2)-(3).

Espinoza‘s claim that Judge Durling denied him due 

process by rendering a decision on the § 212(c) issue on 

November 4 without first giving Espinoza the opportunity to 

present his arguments on November 8 is also unavailing. 

―Where an alien claims a denial of due process because he 

was prevented from making his case to the BIA or the IJ, he 

must show (1) that he was  ̳prevented from reasonably 

presenting his case‘ and (2) that  ̳substantial prejudice‘ 

resulted.‖ Fadiga, 488 F.3d at 155 (quoting Khan v. Att’y 

Gen., 448 F.3d 226, 236 (3d Cir. 2006)) (internal quotation 

marks, citation, and footnote omitted). Espinoza posits that 

―[h]ad [he] been given the opportunity to respond to the 

government‘s position, the IJ might well have . . . declined to 

order [his] removal.‖ Espinoza Br. 32. But Espinoza fails to 

cite any evidence that suggests the outcome would have been 
18

different had the IJ waited until after November 8 to issue his 

legal ruling.

When the BIA remanded Espinoza‘s case to Judge 

Durling on August 30, 2011, it explicitly noted that it was 

doing so because ―recent decisions from the Second, Fifth, 

and Ninth Circuits support the conclusion that the respondent 

is not barred from obtaining 212(c) relief as a result of his 

2007 conviction.‖ App. 12 (citing Pascua v. Holder, 641 

F.3d 316 (9th Cir. 2011); Enriquez-Gutierrez v. Holder, 612 

F.3d 400 (5th Cir. 2010); Garcia-Padron v. Holder, 558 F.3d 

196 (2d Cir. 2009)). Then, during the hearing following 

remand, Judge Durling and the Government attorney engaged 

in an extended colloquy about relevant caselaw. App. 69–73. 

When the Government attorney attempted to argue that 

Espinoza was precluded from § 212(c) relief based on Third 

Circuit precedent, Judge Durling pushed back based on the 

caselaw the BIA cited in its remand order. App. 71 

(―Actually, the circuit courts out there . . . [p]ermit postIIRIRA convictions if it‘s subject to 212(c). . . . So his 2007 

federal drug trafficking offense, in those circuits they would 

say he is eligible for 212(c) for that.‖).

In the end, Judge Durling was persuaded by the 

Government‘s argument that relevant Third Circuit precedent 

precluded Espinoza from seeking § 212(c) relief. Though he 

ultimately ruled against Espinoza, Judge Durling exhibited a 

deft familiarity with the relevant caselaw and, in fact, noted 

the same argument during the hearing that Espinoza presented 

in his January 25, 2012, letter to the BIA explaining his 

grounds for appeal. Compare App. 69–73, with App. 45–47. 

The BIA also considered these arguments, which it had 

already cited in its previous remand order, and, after 

reviewing Judge Durling‘s decision de novo, issued its own 
19

opinion rejecting them. Even now, Espinoza‘s § 212(c) 

arguments remain fundamentally unchanged from what Judge 

Durling posited during the remand hearing. The proceedings 

did not require additional factfinding and turned on a discrete 

question of law that Judge Durling understood and carefully 

considered. Judge Durling acknowledged Espinoza‘s best 

arguments during the September 27, 2011, hearing and 

Espinoza was able to present those arguments fully, first to 

the BIA and now to this Court. Therefore, Espinoza suffered 

no prejudice and was not deprived of due process.

V

Because Espinoza has served more than five years in 

prison for an aggravated felony, he may not seek 

discretionary relief from deportation under INA § 212(c). 

Furthermore, he suffered no due process violations during the 

pendency of his administrative proceedings. Therefore, we 

will affirm the BIA‘s decision ordering Espinoza deported 

from the United States.10

 

10 Mr. Espinoza was represented pro bono by Gregory 

F. Laufer. The Court is grateful for Mr. Laufer‘s work on this 

case, which was consistent with the highest standards of the 

Third Circuit Bar.