IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-60769

RAUL ENRIQUEZ-GUTIERREZ

Petitioner

v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL

Respondent

Petition for Review of an Order of the

Board of Immigration Appeals

Before JONES, Chief Judge, and BENAVIDES and PRADO, Circuit Judges.

FORTUNATO P. BENAVIDES, Circuit Judge:

Raul Enriquez-Gutierrez petitions for review of a decision of the Board of

Immigration Appeals (“BIA” or “Board”) ordering him removed from this

country. The BIA found that Enriquez is removable on the basis of a 2001

conviction for cocaine possession, but Enriquez protests that in an earlier

deportation proceeding, he received a waiver of deportation covering that

conviction under former § 212(c) of the Immigration and Nationality Act (“INA”).

The BIA concluded, however, that Enriquez had stipulated that his 2001 cocaine

conviction would be excluded from coverage under that waiver. At oral

argument before this Court, the government conceded that Enriquez had not

stipulated that his 2001 cocaine conviction would be excluded from the waiver.

United States Court of Appeals

Fifth Circuit

F I L E D

July 16, 2010

Lyle W. Cayce

Clerk

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We find that the transcript of Enriquez’s deportation hearing reveals that the

BIA’s conclusion regarding the stipulation is incorrect. We also conclude that

the BIA’s opinion does not otherwise state a valid rationale for removing

Enriquez from this country. Consequently, we vacate the decision of the BIA

and remand this case for further proceedings.

I.

Enriquez is a citizen of Mexico, but became a lawful permanent resident

of this country in 1976. In 1980, he was convicted of an offense relating to alien

smuggling, and subsequently was convicted in 1990 for felony delivery of

marijuana. After his marijuana conviction, the Immigration and Naturalization

Service (“INS”) commenced deportation proceedings against Enriquez in 1991.

Enriquez conceded that his marijuana conviction rendered him eligible for

deportation, but he sought a waiver of deportation under former § 212(c) of the

INA. Under former § 212(c), the Attorney General had discretion to allow aliens

subject to deportation to remain in this country, so long as they had maintained

“a lawful unrelinquished domicile of seven consecutive years” in the United

States, had not been convicted of “one or more aggravated felonies,” and had not

“served for such felony or felonies a term of imprisonment of at least 5 years.”

See 8 U.S.C. § 1182(c) (1994).

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The immigration judge (“IJ”) refused to grant Enriquez a waiver in May

1991, and the BIA dismissed Enriquez’s appeal of the IJ’s decision in July 1994.

The text of former § 212(c) did not explicitly allow waiver of deportation. Instead, it 1

authorized the Attorney General to waive grounds of inadmissibility for “[a]liens lawfully

admitted for permanent residence who temporarily proceeded abroad voluntarily . . . and who

[were] returning to a lawful unrelinquished domicile of seven consecutive years.” 8 U.S.C.

§ 1182(c) (1994). However, in Francis v. INS, the Second Circuit held that it would violate the

equal protection clause to provide § 212(c) relief to excludable aliens seeking readmission if

such relief were not also available to deportable aliens resident in this country. 532 F.2d 268,

273 (2d Cir. 1976). Soon after, the BIA adopted this view in Matter of Silva, and § 212(c)

waivers became available in deportation proceedings throughout the country. 16 I. & N. Dec.

26, 29-30 (BIA 1976).

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Several months after this dismissal, Enriquez filed a motion seeking

reconsideration and reopening of his case, but the motion remained pending

before the BIA for more than seven years. Finally, in February 2002, the BIA

declined to reconsider its 1994 decision, but agreed to reopen Enriquez’s

deportation proceedings. The BIA remanded Enriquez’s case to an IJ, to allow

Enriquez an opportunity to demonstrate that he now merited § 212(c) relief

given the decade that had passed since his deportation proceedings began.

In the interim, however, several important developments had occurred.

Enriquez had been convicted of two additional crimes in 2001, possession of a

firearm in violation of state law and possession of less than a gram of cocaine.

Additionally, in 1996, Congress had considerably rewritten the nation’s

immigration laws, restricting grants of § 212(c) relief and then repealing the

provision altogether. First, the Antiterrorism and Effective Death Penalty Act

of 1996 (“AEDPA”) placed new restrictions on the eligibility of certain aliens for

waivers of deportation under § 212(c). Pub. L. No. 104-132, § 440(d), 110 Stat.

1214, 1277. Second, shortly after the passage of AEDPA, Congress passed the

Illegal Immigration Reform and Immigrant Responsibility Act of 1996

(“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009-546. IIRIRA repealed § 212(c)

and replaced it with INA § 240A, a more restrictive provision that only allows

the Attorney General to “cancel” the removal of aliens if they have not been

convicted of an aggravated felony. See 8 U.S.C. § 1182(c) (2006) (former INA §

212(c)); § 1229b (new INA § 240A); IIRIRA § 304(a)-(b), 110 Stat. at 3009-594-97.

Although Congress repealed § 212(c) in 1996, it has continued to be applied in

certain deportation and removal proceedings. Notably, in INS v. St. Cyr, the

Supreme Court ruled that IIRIRA’s repeal of § 212(c) could not be applied

retroactively to aliens who had pleaded guilty before the passage of IIRIRA and

whose guilty pleas to deportable offenses may have been entered with the

expectation that they would be eligible for discretionary waiver of deportation.

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533 U.S. 289, 326 (2001).

On remand before a new IJ, the government chose not to bring new

deportation charges against Enriquez for his 2001 convictions, but Enriquez filed

an updated application requesting § 212(c) relief. Since 8 C.F.R. § 1212.3(d)

provides that the approval of an application for § 212(c) relief only covers “those

specific grounds of excludability, deportability, or removability that [are]

described in [an alien’s] application,” Enriquez disclosed that he might be

deportable due to “convictions for controlled substance offenses, 1990 & 1999.”

His disclosure of a 1999 controlled substance offense was actually a reference to

his 2001 conviction for cocaine possession, for which he had been arrested in

1999. However, whatever ambiguity was created by Enriquez’s reference to a

“1999” conviction was cured by his attachment to his application of a record of

his cocaine conviction, showing that the underlying offense occurred in 1999 but

that he was convicted in 2001. Notably, Enriquez did not seek a waiver for his

2001 firearm conviction, as such relief had historically been unavailable under

the former § 212(c). See Chow v. INS, 12 F.3d 34, 38 (5th Cir. 1993).

What next occurred at Enriquez’s deportation hearing in April 2004 is the

primary subject of this appeal. At the hearing, the government announced that

it was willing to stipulate to a grant of § 212(c) relief for Enriquez’s 1980 alien

smuggling conviction and his 1990 marijuana conviction. Enriquez’s counsel and

the IJ agreed to a stipulation of relief for these offenses, but at the close of the

hearing, the following exchange occurred between Enriquez’s counsel and the IJ:

JUDGE FOR THE RECORD

Submitted. 04/29, today. There’s no other issue or fact of law

and the parties have stipulated to the grant of the 212(c) relief for

the offenses that occurred 1990 and before, then nothing else to

resolve. That doesn’t resolve, of course, any future issues

concerning the 2001 [conviction].

MS. BRODYAGA TO JUDGE

Well, we will, we would agree that it does, by law, Judge. The

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Government is . . . not stipulating to that, but we are also not

stipulating that it doesn’t—we will argue . . . that by law it does.

JUDGE TO MS. BRODYAGA

Sure.

MS. BRODYAGA TO JUDGE

But we have no problem with their position and are happy to

accept the grant.

The IJ then proceeded to grant Enriquez’s application for a § 212(c) waiver and

stated in an oral decision that “the Court finds that the parties have stipulated

to the grant of the 212(c) relief on the issues that were remanded by the Board

for consideration, and that is the [1990] conviction and any other crime that

occurred prior to 1990 that brought the respondent into deportation

proceedings.” Thus, although the IJ orally limited his grant of § 212(c) relief to

Enriquez’s 1980 and 1990 convictions, Enriquez’s counsel clearly reserved the

right to argue that the waiver also by law covered his disclosed 2001 cocaine

conviction.

Soon after, in October 2004, the government served a new notice to appear

on Enriquez, alleging that he was eligible for removal from the United States on

the basis of his 2001 cocaine and firearm convictions. The government asserted

removal on the basis of three statutory provisions. It claimed that Enriquez was

removable because he had been convicted of breaking a law “relating to a

controlled substance,” see 8 U.S.C. § 1227(a)(2)(B)(i), and had been convicted of

“possessing, or carrying . . . a firearm . . . in violation of . . . law.” See

§ 1227(a)(2)(C). It also claimed that Enriquez had been convicted of an

“aggravated felony,” see § 1227(a)(2)(A)(iii), as defined at 8 U.S.C.

§ 1101(a)(43)(B) to include “a drug trafficking crime,” which in turn is defined

at 18 U.S.C. § 924(c)(2) to include “any felony punishable under the Controlled

Substances Act (21 U.S.C. § 801 et seq.).” As described above, the significance

of the aggravated felony charge is that permanent resident aliens like Enriquez

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are statutorily ineligible for discretionary cancellation of removal under § 240A

if they have been convicted of an aggravated felony. See 8 U.S.C. § 1229b(a)(3).

The government’s new removal charges against Enriquez were eventually

heard before the same IJ who had initially granted § 212(c) relief in Enriquez’s

earlier deportation proceedings. As expected, Enriquez argued that his § 212(c)

waiver blocked removal on the basis of his 2001 cocaine conviction. He also

argued that although he could be removed due to his firearms conviction, he was

eligible for adjustment of status, which would allow him to remain in the United

States. In November 2005, the IJ rejected these arguments and ordered

2

Enriquez removed to Mexico. The IJ found that, as a matter of law, his previous

grant of § 212(c) relief could not have covered Enriquez’s 2001 cocaine conviction,

since § 212(c) had already been repealed for five years by 2001. The IJ explained

that although the Supreme Court had ruled in INS v. St. Cyr that § 212(c) relief

was available to aliens who had pleaded guilty to crimes before the passage of

AEDPA and IIRIRA, Enriquez’s convictions postdated both, rendering St. Cyr

inapplicable to his case. 533 U.S. at 326. He also found that Enriquez’s 2001

cocaine conviction was an aggravated felony, making him ineligible for

adjustment of status for his firearms offense.

On appeal, the BIA affirmed the IJ’s decision, but under a somewhat

As noted above, historically, § 212(c) waivers were unavailable for aliens eligible for 2

deportation due to firearms convictions. However, such aliens were eligible for adjustment of

status, another form of relief that allowed them to remain in this country, despite any firearms

conviction. Under 8 U.S.C. § 1255(a), “[t]he status of an alien who was inspected and admitted

or paroled into the United States . . . may be adjusted by the Attorney General . . . to that of

an alien lawfully admitted for permanent residence if,” among other requirements, the alien

is “admissible to the United States for permanent residence.” In 1992, prior to the passage

of AEDPA and IIRIRA, the BIA held that even if a firearms offense renders an alien

deportable, it does not make him or her inadmissible to this country, with the result that if

an alien is “granted adjustment of status to lawful permanent resident, the [alien] will no

longer be deportable on the basis of [the firearms] conviction.” In re Rainford, 20 I. & N. Dec.

598, 602 (BIA 1992). Given our remand to the BIA in this case, we express no opinion on

whether this relief would be available to cure Enriquez’s removability for his firearms

conviction, if he could not be removed for his cocaine conviction.

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different rationale. The BIA seemingly agreed with the IJ’s conclusion that

Enriquez’s 2001 cocaine conviction had been ineligible for a § 212(c) waiver

because it postdated the passage of AEDPA and IIRIRA. However, the BIA also

3

expanded on the IJ’s analysis. The Board reviewed the transcript of Enriquez’s

April 2004 deportation hearing, which had apparently not been made part of the

record in Enriquez’s removal proceedings before the IJ. Based on its review of

the transcript, the Board surprisingly found that Enriquez had stipulated to

limit the grant of § 212(c) relief in that proceeding to his 1980 and 1990

convictions, excluding his 2001 cocaine conviction. The BIA explained that

under 8 C.F.R. § 1212.3(d), a § 212(c) waiver only covers the specific grounds of

deportability that were disclosed in the alien’s application, and that therefore it

was permissible for parties like Enriquez to stipulate to limited grants of relief.

The BIA also found that res judicata could not bar the government’s attempt to

remove Enriquez on the basis of his 2001 cocaine conviction, since res judicata

was inapplicable to claims “which were stipulated to as not being covered in

prior immigration proceedings” and since the government had been under no

obligation to bring all available charges against Enriquez in that proceeding.

Thus, the BIA found that Enriquez’s § 212(c) waiver did not cover his 2001

cocaine conviction, and that he therefore could be removed for that conviction.

Having established Enriquez’s removability,the Board next found that his

2001 cocaine conviction was an aggravated felony, making Enriquez ineligible

4

From the wording of the BIA’s decision, it is unclear whether the BIA ruled that 3

§ 212(c) relief is categorically unavailable for post-IIRIRA convictions, or whether it ruled that

such relief is simply unavailable in removal proceedings commenced after IIRIRA’s passage. 

Although the best reading of the decision is the latter reading, for the purposes of this opinion,

we assume that the BIA adopted the broader holding so that on remand there is no confusion

on this issue.

We note that under the Supreme Court’s recent decision in Carachuri-Rosendo v. 4

Holder, this conclusion is likely incorrect. No. 09-60 (U.S. June 14, 2010). The BIA found that

Enriquez’s 2001 conviction under Texas law for cocaine possession qualified as an aggravated

felony because it was his second drug possession offense, and therefore Enriquez “could have

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for discretionary cancellation of removal under § 240A. The Board also noted

that Enriquez was ineligible for § 240A relief because he had already been

granted § 212(c) relief once before. See 8 U.S.C. § 1229b(c)(6). Consequently, it

affirmed the IJ’s order removing Enriquez to Mexico. The BIA did not discuss

Enriquez’s eligibility for adjustment of status for his 2001 firearms conviction,

presumably because the BIA’s determination that Enriquez could be removed for

his 2001 cocaine conviction rendered this issue irrelevant. Enriquez now

petitions for review of the BIA’s order affirming his removal from the United

States.

II.

Our jurisdiction in this case is governed by 8 U.S.C. § 1252. This provision

generally prohibits judicial review of “any final order of removal against an alien

who is removable by reason of having committed” certain criminal offenses,

including controlled substance and firearms offenses like those for which

Enriquez has been convicted. See 8 U.S.C. §§ 1252(a)(2)(C); 1227(a)(2)(B)(i)

(controlled substances offenses); 1227(a)(2)(C) (firearms offenses). However, the

REAL ID Act of 2005, Pub. L. No. 109-13, § 106(a), 119 Stat. 231, 310, amended

§ 1252 to grant judicial review over “constitutional claims or questions of law

raised upon a petition for review filed with an appropriate court of appeals in

been prosecuted” for felony recidivism under federal law. To reach this conclusion, the BIA

relied on its prior decision in In re Carachurri-Rosendo, 24 I. & N. Dec. 382, 387-88 (BIA 2007),

which we affirmed, see 570 F.3d 263, 264 (5th Cir. 2009), but which has now been overturned

by the Supreme Court. In Carachuri-Rosendo, the Supreme Court held that “second or

subsequent simple possession offenses are not aggravated felonies . . . when . . . the state

conviction is not based on the fact of a prior conviction.” No. 09-60, slip op. at 2. Based on the

records of Enriquez’s 2001 cocaine conviction, it appears that he was not charged for

recidivism on the basis of his earlier 1990 marijuana conviction. Nevertheless, since we

remand this case to the BIA, we leave this issue to be resolved definitively on remand. 

Ultimately, this issue may not be dispositive in this case, as Enriquez is already ineligible for

cancellation of removal under § 240A because he previously received relief under former

§ 212(c) of the INA. That said, the Supreme Court’s decision calls into question the IJ’s

determination that Enriquez is ineligible for adjustment of status on the basis of his 2001

cocaine conviction.

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accordance with this section.” 8 U.S.C. § 1252(a)(2)(D). Consequently, to the

extent that Enriquez’s petition raises legal or constitutional issues, we have

jurisdiction to address them. Unless otherwise noted below, we review such

legal and constitutional issues de novo. See Larin-Ulloa v. Gonzales, 462 F.3d

456, 461 (5th Cir. 2006).

In appeals such as this, we generally only have authority to review the

BIA’s decision, although we may also review the IJ’s decision when it has some

impact on the BIA’s decision, as when the BIA has adopted all or part of the IJ’s

reasoning. See Zhu v. Gonzales, 493 F.3d 588, 593 (5th Cir. 2007). In this case,

although the BIA agreed with the IJ’s analysis in certain respects, the BIA’s

decision does not rely on the IJ’s decision, and thus our review is confined to the

BIA’s analysis and reasoning. Additionally, since the BIA is a division of the

Executive Office for Immigration Review (“EOIR”), and a “‘judicial judgment

cannot be made to do service for an administrative judgment,’” see INS v.

Orlando Ventura, 537 U.S. 12, 16 (2002) (per curiam) (quoting SEC v. Chenery

Corp., 318 U.S. 80, 88 (1943)), we may usually only affirm the BIA on the basis

of its stated rationale for ordering an alien removed from the United States. See

Kwon v. INS, 646 F.2d 909, 916 (5th Cir. 1981) (in reviewing BIA decision,

explaining that “we are not permitted to consider reasons [for the BIA’s decision]

other than those it advanced”). However, in certain circumstances, there may

be limited exceptions to this rule. Even if there is a reversible error in the BIA’s

analysis, affirmance may be warranted “where there is no realistic possibility

that, absent the errors, the . . . BIA would have reached a different conclusion.”

Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 401 (2d Cir. 2005).

Enriquez raises a number of challenges to the BIA’s removal order. First,

he asserts that his 2001 cocaine conviction was eligible for a § 212(c) waiver in

his 2004 deportation proceedings, despite the fact that his conviction occurred

after the passage of AEDPA and IIRIRA. Second, he argues that the BIA went

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beyond its authority in reviewing the transcript of his April 2004 deportation

hearing, which was apparently not made part of the record before the IJ in his

later removal proceedings. Third, he contends that the BIA erred in determining

that he stipulated that the § 212(c) waiver granted in his 2004 deportation

proceedings would not cover his 2001 cocaine conviction. Fourth, he asserts that

as a matter of law, his 2001 cocaine conviction was included within the IJ’s 2004

waiver because he disclosed the conviction in his application for § 212(c) relief,

pursuant to 8 C.F.R. § 1212.3(d). We now address these issues in turn.

A.

Although Enriquez’s 2001 cocaine conviction occurred after the passage of

IIRIRA, we conclude that this did not render the conviction ineligible for waiver

under § 212(c) in his 2004 deportation proceedings. As noted above, the BIA’s

decision could be read as holding that the 2001 cocaine conviction could not have

been waived under § 212(c) in Enriquez’s deportation proceedings, as his

conviction postdated the passage of AEDPA and IIRIRA. The BIA noted that

Enriquez was ineligible for relief under St. Cyr, as he had pleaded guilty in 2001

for his cocaine offense long after AEDPA became effective. The BIA also

supported its conclusion by pointing to 8 C.F.R. § 1212.3(h)(3), which provides

that “[s]ection 212(c) relief is not available with respect to convictions arising

from plea agreements made on or after April 1, 1997.” Relying on similar

arguments, the government once asserted during this appeal that Enriquez’s

§ 212(c) waiver could not have covered his 2001 cocaine conviction. However, the

government subsequently abandoned this argument in a Rule 28(j) letter

notifying us of the Second Circuit’s recent opinion in Garcia-Padron v. Holder,

558 F.3d 196 (2d Cir. 2009).

In Garcia-Padron, as in this case, the Second Circuit had to determine

whether an alien who had been in deportation proceedings prior to the passage

of AEDPA and IIRIRA could receive a § 212(c) waiver of deportation for a

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conviction that occurred after the passage of AEDPA and IIRIRA. Id. at 199.

The Second Circuit concluded that such convictions are eligible for § 212(c) relief.

In reaching this conclusion, the Garcia-Padron court relied on two provisions

that clarify that AEDPA and IIRIRA’s limitations on § 212(c) relief do not

generally apply to deportation proceedings commenced before their effective

dates. See id. at 200-201 & n.5. Section 309(c)(1)(A) of IIRIRA establishes that,

subject to certain exceptions not applicable here, “in the case of an alien who is

in exclusion or deportation proceedings as of the . . . effective date [of the Act],

. . . the amendments made by this subtitle shall not apply.” 110 Stat. at 3009-

625. Similarly, 8 C.F.R. § 1212.3(g) provides that AEDPA’s limitations on

§ 212(c) relief are inapplicable to “any applicant for relief . . . whose deportation

proceedings were commenced before the Immigration Court before April 24,

1996.” Therefore, the Second Circuit found that AEDPA and IIRIRA do not

restrict the availability of § 212(c) relief for an alien in deportation proceedings

that began before the effective date of both statutes.

The Second Circuit also explained that 8 C.F.R. § 1212.3(h)(3) is not in

conflict with this conclusion. The court found that § 1212.3(h)(3) merely codifies

the holding in St. Cyr, where the Supreme Court held that the repeal of § 212(c)

could not be applied retroactively to aliens placed into removal proceedings after

passage of IIRIRA, but who had pleaded guilty before the passage of IIRIRA.

See 558 F.3d at 202 (citing St. Cyr, 533 U.S. at 293). The Second Circuit

reasoned that in Garcia-Padron, the alien’s situation was “the reverse of that

present in St. Cyr: his deportation proceeding began under the

pre-AEDPA/IIRIRA regime, and his subsequent conviction occurred under the

post-AEDPA/IIRIRA regime.” Id. Consequently, the court held that because

“§ 1212.3(h) was promulgated to deal with a retroactivity problem not present

in [Garcia-Padron], the regulation cannot supersede the plain language of

IIRIRA section 309(c)(1), which preserves section 212(c) relief for [aliens] whose

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deportation proceedings began under the pre-IIRIRA regime.” Id.

This analysis is supported by the commentary published in the Federal

Register that accompanied the promulgation of § 1212.3(h)(3) and discussed the

regulation’s interaction with § 1212.3(g), the provision that makes AEDPA’s

limitations on § 212(c) relief inapplicable to deportation proceedings commenced

before AEDPA’s effective date. In this commentary, the EOIR explained that:

One commenter expressed concern that [8 C.F.R. § 1212(3)(h)]

would delete a previous rule issued by the Department that created

a procedure for eligible aliens to apply for section 212(c) relief. The

previous rule, sometimes referred to as the “Soriano rule,” . . . is

presently codified at 8 CFR 1212.3(g) [and provides] that the

limitations of section 440(d) of AEDPA are not applicable to section

212(c) applicants whose deportation proceedings commenced prior

to April 24, 1996, the effective date of AEDPA. . . . In [8 C.F.R.

§ 1212(3)(h)], the Department is implementing the Supreme Court’s

ruling in St. Cyr by providing eligibility and procedural

requirements for section 212(c) relief for aliens whose convictions

were entered after a plea agreement. . . . The commenter is correct

in observing that the issue addressed in current § 1212.3(g)

continues to be relevant to aliens whose deportation proceedings

were commenced prior to the enactment of AEDPA. The

Department will therefore leave intact the existing provision of 8

CFR 1212.3(g), which will continue to govern cases falling within its

parameters.

Section 212(c) Relief for Aliens with Certain Criminal Convictions Before April

1, 1997, 69 Fed. Reg. 57,826, 57,832 (Sept. 28, 2004). As this commentary

demonstrates, § 1212.3(h)(3) does not displace § 1212.3(g), much less § 309(c)(1)

5

The EOIR promulgated § 1212.3(g) in 2001, for the purpose of establishing a

5

nationally uniform rule governing the applicability of AEDPA, after a number of courts had

held that Congress did not intend for AEDPA to apply retroactively to proceedings commenced

before its effective date. See Section 212(c) Relief for Certain Aliens in Deportation

Proceedings Before April 24, 1996, 66 Fed. Reg. 6,436, 6,438 (Jan. 22, 2001) (“In the interest

of the uniform and expeditious administration of the immigration laws, the Attorney General

acquiesces on a nationwide basis in those appellate decisions holding that AEDPA section

440(d) is not to be applied in the cases of aliens whose deportation proceedings were

commenced before AEDPA was enacted.”).

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of IIRIRA. Therefore, we agree with the holding of the Second Circuit in GarciaPadron, and find that the fact that Enriquez’s 2001 cocaine conviction occurred

6

after the passage of AEDPA and IIRIRA does not mean it could not have been

waived in his deportation proceedings.

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B.

Enriquez also argues that the BIA impermissibly considered the

transcripts of his 2004 deportation hearing and the oral decision of the IJ that

resulted from that proceeding, which he alleges were not properly made part of

the record in his later removal proceedings. He argues that when the BIA

assessed the scope of his § 212(c) waiver, it should have only considered

documents made part of the record before the IJ. These documents included his

application for § 212(c) relief, which disclosed his 1999 cocaine offense, and the

written order of the IJ, which showed that his application was “granted,” without

further explanation. We find Enriquez’s arguments unpersuasive and conclude

that the BIA did not err in consulting the transcripts, as it had authority to take

administrative notice of them. We review an agency’s decision to take

administrative notice for abuse of discretion. See Rivera-Cruz v. INS, 948 F.2d

962, 966 (5th Cir. 1991).

The BIA is prohibited from engaging “in factfinding in the course of

deciding appeals.” 8 C.F.R. § 1003.1(d)(3)(iv); see also Procedural Reforms To

Improve Case Management, 67 Fed. Reg. 54,878, 54,892 (Aug. 26, 2002)

In Requena-Rodriguez v. Pasquarell, we applied AEDPA’s limits on § 212(c) relief 6

against an alien who had been in deportation proceedings before AEDPA’s passage. 190 F.3d

299, 301-02 (5th Cir. 1999). However, in that case, the alien had not argued that AEDPA

“should not apply to deportation proceedings that were pending on the date it became

effective.” Id. at 306 n.26. Enriquez has now presented this argument.

We also note that Enriquez is presently in removal proceedings, commenced long 7

after AEDPA and IIRIRA became effective. Thus, we have no quarrel with the BIA’s

conclusion that Enriquez is ineligible for further relief under former § 212(c) in the removal

proceedings from which this appeal has been taken.

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(characterizing § 1003.1(d)(3)(iv) as codifying “Board precedent holding that new

facts will not be considered on appeal”). Accordingly, the record in removal

proceedings before the BIA is limited to the “hearing before the immigration

judge, including the testimony, exhibits, applications, proffers, and requests, the

immigration judge’s decision, and all written orders, motions, appeals, briefs,

and other papers filed in the proceedings.” 8 C.F.R. § 1240.9. In this case,

although the jumbled state of the record makes it difficult to be sure, it appears

that the transcripts of the IJ’s 2004 oral decision and the 2004 deportation

hearing were not made part of the record before the IJ in Enriquez’s removal

proceedings. The transcript of the 2004 oral decision is located in the portion

8

of the administrative record that includes materials presented to the IJ in

Enriquez’s 2005 removal proceedings, but it could not have been made part of

the record before the IJ in 2005, as it was not transcribed until October 2006.

It appears that the transcripts first entered the record on appeal before the BIA,

when hearing transcripts from Enriquez’s terminated deportation proceedings

were mistakenly included in the record instead of hearing transcripts from his

later removal proceedings. As such, the transcripts do not seem to be part of the

formal record in this case, as that term is defined in 8 C.F.R. § 1240.9.

9

Nevertheless, even assuming that the transcripts were not properly made

part of the record, the BIA was entitled to take administrative notice of them.

Although the BIA may not engage in factfinding, it may take “administrative

notice of commonly known facts such as current events or the contents of official

This gap in the record before the IJ is hardly surprising, as Enriquez’s 2005 removal 8

proceedings were held before the same IJ that had previously granted his application for §

212(c) relief in 2004.

The government argues that because it cited to the transcript in its briefing before the 9

BIA, the transcript became part of the record before the BIA within the meaning of 8 C.F.R.

§ 1240.9. This argument is meritless, as it would allow parties to introduce new evidence

never considered by the IJ into proceedings before the BIA.

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documents” pursuant to 8 C.F.R. § 1003.1(d)(3)(iv). We find that the transcripts

at issue in this case qualify as “official documents” under § 1003.1(d)(3)(iv).

Usually, when the BIA takes notice of “official documents,” it takes notice of

State Department reports discussing current events in foreign countries. See 67

Fed. Reg. at 54,892 (explaining that § 1003.1(d)(3)(iv) “make[s] clear that the

Board may take administrative notice . . . of the contents of official documents

such as the country condition reports prepared by the Department of State”).

However, the text of § 1003.1(d)(3)(iv) does not limit the BIA to noticing only

country condition reports, and we have previously held in the immigration

context that courts “allow agencies ‘wide latitude in taking official notice.’” See

Rivera-Cruz, 948 F.2d at 966 (quoting Kaczmarczyk v. INS, 933 F.2d 588, 596

(7th Cir.1991)). Consistent with this principle, we note that the Second Circuit

has held that a state court decision disbarring an alien’s counsel was an “official

document” under § 1003.1(d)(3)(iv) that the BIA had to consider in adjudicating

an ineffective assistance of counsel claim. See Yang v. Gonzales, 478 F.3d 133,

142-43 (2d Cir. 2007).

Similarly, as the government has pointed out, in the context of judicial

notice, we have previously held that “[a] court may take judicial notice of the

record in prior related proceedings, and draw reasonable inferences therefrom.”

In re Missionary Baptist Found. of Am., Inc., 712 F.2d 206, 211 (5th Cir. 1983).

Additionally, we have held that district courts have “the right to take notice of

[their] own files and records” in adjudicating cases between the same parties

raising substantially similar issues as those addressed in previous cases. Aloe

Creme Labs., Inc. v. Francine Co., 425 F.2d 1295, 1296 (5th Cir. 1970) (per

curiam). With these precedents in mind, we conclude that the BIA did not abuse

its discretion by taking administrative notice of the transcripts of prior

proceedings involving Enriquez, the authenticity of which has not been

challenged. Enriquez protests that the BIA never stated that it was taking

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administrative notice of the transcripts, but we see no error in the Board’s

failure to recite that it was taking notice of them. Cf. Kona Tech. Corp. v. S. Pac.

Transp. Co., 225 F.3d 595, 613 (5th Cir. 2000) (“Even if a trial judge fails to

make a specific finding on a particular fact, the reviewing court may assume

that the court impliedly made a finding consistent with its general holding so

long as the implied finding is supported by the evidence.”). Consequently, the

transcripts were properly before the BIA and are also properly before us on this

appeal.

C.

Since the transcripts are properly before us, we must now assess whether

the BIA erred in concluding that Enriquez stipulated to exclude his 2001 cocaine

conviction from the reach of the § 212(c) waiver granted in his deportation

proceedings. We find that the BIA’s conclusion is contradicted by the transcript

of Enriquez’s deportation proceeding, and that Enriquez expressly reserved the

right to argue that his cocaine conviction fell under the § 212(c) waiver.

As an initial matter, we find that we have jurisdiction over Enriquez’s

claim regarding the scope of his stipulation. We have already explained that the

REAL ID Act limits our jurisdiction in cases such as this to “constitutional

claims or questions of law.” 8 U.S.C. § 1252(a)(2)(D). Consequently, we may not

review any factual determinations made in Enriquez’s immigration proceedings.

In his briefing, Enriquez seems to assume that the BIA’s determination

regarding the scope of his stipulation qualifies as a question of fact. As such, he

argues that the BIA’s “factual” error is so severe that it establishes a due process

violation, which we could remedy since we retain jurisdiction over criminal

aliens’ constitutional claims. See United States ex rel. Vajtauer v. Commissioner

of Immigration at Port of New York, 273 U.S. 103, 106 (1927) (holding that

“[d]eportation . . . on charges unsupported by any evidence is a denial of due

process”). However, we need not address whether a factual error could ever

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establish a due process violation reviewable under the REAL ID Act, as the

scope of the stipulation reached in Enriquez’s deportation proceedings is a

question of law. The Supreme Court has held that the “[d]etermination of the

meaning and effect of a stipulation . . . is not a factual finding;” instead, courts

review stipulations in the same manner they “review a determination of

meaning and effect of a contract, or consent decree, or proffer for summary

judgment.” Braxton v. United States, 500 U.S. 344, 350 (1991); see also United

States v. Hollis, 506 F.3d 415, 419 (5th Cir. 2007) (explaining that meaning of

stipulation is reviewed de novo). Since the reach of Enriquez’s stipulation

presents a question of law, there is no barrier to our jurisdiction necessitating

Enriquez’s recourse to a due process claim.

Our jurisdiction established, we find that the transcript of Enriquez’s April

2004 deportation hearing unambiguously demonstrates that he did not stipulate

to exclude his 2001 cocaine conviction from his § 212(c) waiver. At the hearing,

the IJ stated that his grant of § 212(c) relief would not “resolve, of course, any

future issues concerning the 2001” cocaine conviction. In response, Enriquez’s

counsel immediately protested, “Well, we will, we would agree that it does, by

law, Judge. The Government is . . . not stipulating to that, but we are also not

stipulating that it doesn’t—we will argue . . . that by law it does.” It is true that

Enriquez then accepted the government’s offer to stipulate to relief for his 1980

and 1990 convictions and stood by as relief was granted for those convictions by

the IJ. But this in no way indicates that Enriquez was forfeiting his opportunity

to argue that the § 212(c) waiver reached further than those convictions. The

hearing transcript flatly contradicts the BIA’s conclusion regarding the scope of

Enriquez’s stipulation; indeed, at oral argument, the government conceded that

Enriquez did not stipulate to exclude his 2001 cocaine conviction from the IJ’s

grant of § 212(c) relief.

That said, if the BIA’s decision provided valid grounds for removing

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Enriquez irrespective of this error, we would be able to affirm the BIA.

However, this is not possible, as the error fundamentally undermines the

Board’s rationale for affirming the IJ’s order removing Enriquez. In its decision,

the BIA’s apparent reasoning was that the government could remove Enriquez

on the basis of his 2001 cocaine conviction because (i) § 212(c) relief was

unavailable for the cocaine conviction because it postdated IIRIRA, (ii) Enriquez

stipulated that the § 212(c) waiver granted in his deportation proceedings would

not cover his 2001 cocaine conviction, (iii) res judicata could not apply to block

removal on the basis of a conviction that, by stipulation, was not covered in prior

proceedings, and (iv) the government had been under no obligation to bring all

available deportation charges against Enriquez in his deportation proceedings,

also barring a claim of res judicata. We have already rejected the claim that

Enriquez was categorically ineligible for § 212(c) relief for his 2001 conviction

because it postdated IIRIRA. We have also now rejected the contention that

Enriquez stipulated that his 2001 cocaine conviction was not covered by his

waiver. After these two conclusions, the BIA’s third point is now invalid. Also,

the BIA’s fourth point is irrelevant—even if the government had been under no

obligation to bring all possible deportation charges against Enriquez in his

deportation proceedings, if the § 212(c) waiver covered his 2001 cocaine

conviction, he could not now be removed on the basis of that conviction. Due to

the BIA’s erroneous conclusion regarding the scope of Enriquez’s stipulation, it

never addressed his argument that, as a matter of law, the § 212(c) waiver had

to include his disclosed 2001 cocaine conviction, notwithstanding the IJ’s failure

to include the cocaine conviction in his oral grant of relief. If Enriquez can

prevail on this issue, he may avoid removal, at least for his 2001 cocaine

conviction.

Of course, none of this resolves Enriquez’s removability on the basis of his

2001 firearms offense, which he has conceded. Even if he cannot be removed for

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his 2001 cocaine conviction because of the § 212(c) waiver, he could still be

removed for his firearms offense. The BIA correctly noted that under 8 U.S.C.

§ 1229b(c)(6), Enriquez is ineligible for cancellation of removal under INA § 240A

because he is a prior recipient of relief under former INA § 212(c). However, the

BIA failed to discuss Enriquez’s claim that he is eligible for adjustment of status

for his firearms offense. Although it is unclear if Enriquez remains eligible for

adjustment of status, since the BIA has not addressed this issue, we are

reluctant to address it at this stage, given our obligation to restrict our review

to the BIA’s stated rationale for its decision. Kwon, 646 F.2d at 916. Enriquez

10

could yet avoid removal, if he can show that his § 212(c) waiver had to cover his

disclosed 2001 cocaine conviction.

D.

Enriquez asks us to rule that, as a matter of law, the IJ’s grant of § 212(c)

relief necessarily had to include Enriquez’s 2001 cocaine conviction, which was

disclosed in his application for relief. Enriquez largely bases this argument on

8 C.F.R. § 1212.3(d), which provides that “the approval [of a § 212(c) waiver]

covers only those specific grounds of excludability, deportability, or removability

that were described in the [alien’s] application.”

The BIA never ruled on this issue because it incorrectly concluded that

Enriquez had stipulated that his 2001 cocaine conviction would not be covered

by the § 212(c) waiver. The Supreme Court has cautioned us that when the BIA

has not yet considered an issue, “a court of appeals should remand a case to an

agency for decision of a matter that statutes place primarily in agency hands.”

Orlando Ventura, 537 U.S. at 16. Since “we will defer to the BIA’s interpretation

Although we only review the BIA’s decision, and not that of the IJ, we note that the 10

IJ ruled that Enriquez was ineligible for adjustment of status because it found that his 2001

cocaine conviction qualified as an aggravated felony. As explained earlier in footnote 4, the

Supreme Court’s recent decision in Carachuri-Rosendo has undermined that conclusion. No.

09-60.

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of immigration regulations if the interpretation is reasonable,” see Lopez-Gomez

v. Ashcroft, 263 F.3d 442, 444 (5th Cir. 2001), and the BIA has not yet spoken on

this question, we find that it would be inappropriate to rule on this issue at this

time. If necessary for the resolution of this case, the BIA or an IJ can address

this issue on remand.

11

III.

Thus, we hold that the BIA erroneously overstated the scope of the

stipulation reached in Enriquez’s deportation proceedings. We also conclude

that this error fatally undermines the BIA’s stated rationale for removing

Enriquez from the United States. However, we remand this case to the BIA, as

we express no opinion on whether Enriquez could yet still be removed under a

different rationale.

Consequently, Enriquez’s petition for review is GRANTED, the decision

of the BIA is VACATED, and this case is REMANDED for further proceedings

consistent with this opinion.

The government argues that if Enriquez was dissatisfied with the IJ’s decision to 11

limit the grant of § 212(c) relief to the 1980 and 1990 convictions, he should have appealed

that decision and may not argue now in these proceedings that the grant covered his 2001

cocaine conviction. Since the BIA found that Enriquez had stipulated to limit the scope of the

§ 212(c) waiver, it did not address this argument in its decision, and thus we also leave this

issue to be addressed on remand.

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