United States Court of Appeals

For the First Circuit

No. 05-1960

No. 05-2147

UWAGBOE ORUMWENSE LAWRENCE,

Petitioner,

v.

ALBERTO R. GONZALES, ATTORNEY GENERAL,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER OF

THE BOARD OF IMMIGRATION APPEALS AND ON PETITION

FOR A WRIT OF HABEAS CORPUS

Before

 Boudin, Chief Judge,

Stahl, Senior Circuit Judge,

and Howard, Circuit Judge.

William P. Joyce and Joyce & Associates, P.C. on consolidated

brief for petitioner.

Robbin K. Blaya, Office of Immigration Litigation, Civil

Division, United States Department of Justice, Peter Keisler,

Assistant Attorney General, Civil Division, and Terri J. Scadron,

Assistant Director, on consolidated brief for respondent.

May 5, 2006
Retroactive applications of the immigration laws are 1

permissible if Congress clearly intends such applications, INS v.

St. Cyr, 533 U.S. 289, 316 (2001), as deportation is treated as

part of Congress' power to regulate immigration civilly and not as

punishment for crime, INS v. Lopez-Mendoza, 468 U.S. 1032, 1038

(1984). Here, the broadened definition was to be applied

"regardless of whether the conviction was entered before, on, or

after" the statute's enactment date. 8 U.S.C.A. § 1101(a)(43).

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BOUDIN, Chief Judge. On July 6, 1995, Uwagboe Orumwense

Lawrence--a Nigerian citizen who was a lawful permanent resident of

the United States--pled guilty in the South Boston District Court

to a charge of larceny in the amount of roughly $18,000, apparently

based on the writing of bad checks. He received a two-year

sentence, which was suspended, and completed probation without

incident. What followed were the federal government's efforts to

deport Lawrence, leading to the proceedings now before us.

In May 1998, the former Immigration and Naturalization

Service ("INS") began removal proceedings against Lawrence as an

alien convicted of an aggravated felony under 8 U.S.C.A. §

1227(a)(2)(A)(iii) (West Supp. 1998). As that provision stood in

1995, Lawrence's offense had not been an aggravated felony, because

the term of imprisonment imposed was less than five years. 8

U.S.C. § 1101(a)(43)(G) (1994). By 1998, Congress had broadened

the definition to include theft convictions involving sentences of

one year or more. 8 U.S.C.A. § 1101(a)(43)(G) (West Supp. 1998).1

Seeking to avoid deportation under this expanded

definition, Lawrence asked the South Boston District Court to
The I-130 petition allows a citizen or permanent resident of 2

the United States to establish a connection with certain eligible

non-citizen relatives (for example, a spouse or a child) so that

these relatives may seek a visa or adjustment of status.

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revise and revoke his prior sentence, or, in the alternative, to

order a new trial. The court granted a new trial, and on July 30,

1998, it accepted Lawrence's new guilty plea and sentenced him to

338 days of probation--just below the one-year floor established by

the new definition. The apparent basis for the new trial was that

his original guilty plea was made without warning of the possible

deportation consequences. See Mass. Gen. Laws ch. 278, § 29D

(1994).

The INS then amended its charge against Lawrence,

alleging that he was in any event removable as an alien convicted

of a crime involving moral turpitude for which a sentence of one

year or longer may be imposed. 8 U.S.C.A. § 1227(a)(2)(A)(i) (West

Supp. 1998). After a hearing, an Immigration Judge ("IJ") found

that Lawrence was removable under this provision, but granted

Lawrence time so he could file an asylum petition (which Lawrence

subsequently submitted and then later withdrew).

Proceedings were then delayed pending the INS's

adjudication of an I-130 petition filed on Lawrence's behalf by his

wife, who is a United States citizen. After the INS approved the 2

petition on February 2, 2000--which is merely a first step--

Lawrence submitted an application for an adjustment of status and
This provision allows the Attorney General to waive 3

deportation in certain cases if, among other things, an alien is

"the spouse, parent, son, or daughter" of a citizen or permanent

resident and "it is established to the satisfaction of the Attorney

General that the alien's denial of admission would result in

extreme hardship to the United States citizen or lawfully resident

spouse, parent, son, or daughter of such alien." 8 U.S.C. §

1182(h) (2000).

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an application for a discretionary waiver of a ground of

inadmissibility under section 212(h) of the Immigration and

Nationality Act ("INA"). 8 U.S.C. § 1182(h) (2000). Section

212(h), which is not at issue in this appeal, permits waivers in

certain situations involving family hardship.3

On October 24, 2001, after a hearing, the IJ ordered

Lawrence to be deported to Nigeria and denied his applications for

an adjustment of status and for a discretionary waiver under

section 212(h). The IJ's removal order rested solely on the ground

that Lawrence had been convicted of a crime involving "moral

turpitude" within five years of his admission into the United

States. Lawrence filed a motion to reopen and reconsider these

denials, but the IJ denied the motion, noting that Lawrence's

criminal history, false statements in aid of his asylum

application, and fraudulent activity outweighed competing claims of

hardship.

Lawrence then appealed to the Board of Immigration

Appeals ("BIA"), which, on July 2, 2002, affirmed the IJ's decision
This section, prior to its repeal in 1996, provided that 4

"[a]liens 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." 8 U.S.C. § 1182(c) (1994).

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without opinion. An initial motion to reopen and reconsider was

denied, and a second one rejected as untimely.

Thereafter, Lawrence was detained pending his removal in

North Dartmouth, Massachusetts, by the Bureau of Immigration and

Customs Enforcement. In April 2003, he petitioned for a writ of

habeas corpus in the district court in Massachusetts and sought a

stay of deportation, which the district court granted. On June 24,

2005, while Lawrence's habeas petition was still pending, the

district court ordered it to be transferred to this court pursuant

to section 106(c) of the REAL ID Act of 2005, Pub. L. No. 109-13,

Div. B, 119 Stat. 302, 311 (codified at 8 U.S.C. § 1252(a)(5)).

On April 26, 2005, Lawrence filed a special motion with

the BIA to reopen his case in order to seek relief under former

section 212(c) of the INA (codified at 8 U.S.C. § 1182(c) (1994)).4

The BIA denied Lawrence's motion on June 30, 2005, finding that he

was ineligible for the requested relief. Lawrence then filed the

present petition for judicial review of the BIA's decision. We

consolidated the petition for review with Lawrence's habeas

proceeding, which had already been transferred to this court by the

district court.
Wallace v. Reno, 194 F.3d 279, 281 (1st Cir. 1999). See 5

generally Francis v. INS, 532 F.2d 268 (2d Cir. 1976). The waiver

authority, whether for reentrants or residents, is limited to those

with "a lawful unrelinquished domicile [in the U.S.] of seven

consecutive years," 8 U.S.C. § 1182(c) (1994); Lawrence falls

within this category.

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In his petition for review, Lawrence challenges the BIA's

denial of his April 2005 motion to reopen his case. Review of such

a denial is for "abuse of discretion," but this rubric includes

errors of law, Wang v. Ashcroft, 367 F.3d 25, 26-27 (1st Cir.

2004), which are reviewed de novo, "according due weight to the

BIA's expertise in construing the statutory framework that it

administers." Orehhova v. Gonzales, 417 F.3d 48, 52 (1st Cir.

2005) (quoting Radkov v. Ashcroft, 375 F.3d 96, 98 (1st Cir.

2004)). 

Lawrence does not dispute that he is removable because

his crime was one of moral turpitude (and meets the other statutory

conditions for removability on this ground), but he says that the

BIA erred in ruling that, as a matter of law, section 212(c) relief

is unavailable to him. Read literally, section 212(c) appears to

be limited solely to persons seeking to reenter the United States,

but it has been judicially enlarged to cover persons already inside

the United States who are similarly situated.5

Lawrence's problem is that this waiver authority was

itself repealed in 1996--before his application. But in INS v. St.

Cyr, 533 U.S. 289 (2001), the Supreme Court held that because
As a discretionary decision, it would be only doubtfully 6

reviewable under the standard provisions of the Administrative

Procedure Act, 5 U.S.C. § 701(a)(2) (2000), but in any event 8

U.S.C. § 1252(a)(2)(B) makes it crystal clear that we would be

without authority to review this discretionary decision except for

a mistaken premise of law, id. § 1252(a)(2)(D).

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Congress was unclear as to retroactive application of the repeal,

application for such relief could still be made even after repeal

by those aliens "whose convictions were obtained through plea

agreements and who, notwithstanding those convictions, would have

been eligible for § 212(c) relief at the time of their plea under

the law then in effect." Id. at 326.

The Court's rationale for this prudential line-drawing

was that "[p]lea agreements involve a quid pro quo between a

criminal defendant and the government," id. at 321--that is, the

availability of potential section 212(c) relief might have been

relied on by the defendant, id. at 322-23. To implement St. Cyr,

the Justice Department provides that withholding relief may be

sought if the alien "[a]greed to plead guilty or nolo contendere to

an offense rendering the alien deportable or removable, pursuant to

a plea agreement made before April 1, 1997." 8 C.F.R. §

1003.44(b)(2) (2006).

Although the Attorney General's decision whether to grant

withholding remains discretionary, the BIA's refusal to entertain 6

Lawrence's request is based on a ruling of law--namely, that the

1998 conviction and plea represent the pertinent date for judging
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whether the exception in St. Cyr and the regulation apply. This

ruling is itself reviewable under the venerable principle of

Service v. Dulles, 354 U.S. 363, 372 (1957), even though the

Attorney General would thereafter be free to deny withholding on

discretionary grounds.

The BIA's decision that Lawrence is ineligible for

section 212(c) relief is correct. St. Cyr allows section 212(c)

relief to be sought, despite the repeal of the section, by those

who would have been eligible "at the time of their plea under the

law then in effect." 533 U.S. at 326 (emphasis added). The

regulation, which applies St. Cyr, refines this language, stating

that the alien must have pled guilty "pursuant to a plea agreement

made before April 1, 1997." 8 C.F.R. § 1003.44(b)(2) (emphasis

added).

The potential discrepancy between the two tests does not

matter here. Lawrence's currently effective plea and conviction

occurred in July 1998, well after the April 1997 cutoff date. At

the time he pled guilty, section 212(c) had been repealed. He had

no basis for assuming (as part of his plea or otherwise) that

section 212(c) relief would be potentially available as part of the

quid pro quo for the plea.

Lawrence says that the availability of section 212(c)

relief should be determined based upon when the conduct underlying

his conviction took place. This is the test used in an ex post
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facto analysis where punishment is increased for a pre-existing

crime, Harisiades v. Shaughnessy, 342 U.S. 580, 594 (1952), but ex

post facto principles do not apply to removal proceedings, Galvan

v. Press, 347 U.S. 522, 531 (1954). Instead, St. Cyr and the

regulations control, and, for their tests, the date of the criminal

conduct is irrelevant.

Lawrence also argues that his 1995 conviction should fix

the pertinent date because the superceding 1998 conviction was

obtained solely for strategic purposes--i.e., to avoid the expanded

aggravated felony definition. St. Cyr's concern is with whether an

alien entering a plea could be relying in his plea on the

availability of section 212(c) relief--not with why an alien was

interested in entering a plea in the first place. By 1998, section

212(c) was repealed, and under St. Cyr, a post-repeal plea bars an

alien from seeking relief under that provision.

This brings us to Lawrence's habeas petition, in which he

collaterally attacked the removal proceeding. He claimed inter

alia that the IJ took inappropriate judicial notice of certain

facts, that the IJ did not conduct the hearings in accordance with

statutory and regulatory requirements, and that Lawrence's counsel

was ineffective. Citing the REAL ID Act, the district court

transferred the petition to us.

The REAL ID Act did not give us habeas jurisdiction.

Rather, the statute says (with an exception not here relevant) that
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"a petition for review filed with an appropriate court of appeals

. . . shall be the sole and exclusive means for judicial review of

an order of removal." 8 U.S.C. § 1252(a)(5) (emphasis added). At

most, a habeas petition seeking to attack such an order becomes

upon transfer a petition for review, REAL ID Act, tit. I, § 106(c),

119 Stat. at 311, allowing us to consider whatever claims might be

reviewable by ordinary petition to review a BIA removal order.

However, Lawrence's entire brief in this court is devoted

to arguing the section 212(c) claim already discussed. The single

reference in his brief to arguments presented in the habeas

proceeding is this: "On all other issues raised before the District

Court in Petitioner's Petition for a Writ of Habeas Corpus (as

amended Sept. 20, 2004), Petitioner rests on his filings before the

District Court." There is no discussion whatsoever in the brief in

this court of the quite different attacks on the removal order made

in the district court.

Such an attempt to incorporate by cross-reference does

not comport with our ordinary rule that claims made to this court

must be presented fully in an appellate brief and not by crossreference to claims made in the district court. Fed. R. App. P.

28(a)(9)(A); R.I. Dep't of Envtl. Mgmt. v. United States, 304 F.3d

31, 48 n.6 (1st Cir. 2002). Indeed, because the statute now makes

the petition for review process the exclusive method of review for

removal orders, there is no warrant for this kind of habeas filing.
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In the future, claims presented by cross-reference to a

transferred habeas petition are likely to be summarily disregarded.

But the notion of transferring a habeas petition under the REAL ID

Act is relatively new. Possibly Lawrence's counsel thought that

the petition, having been transferred, could itself be regarded as

the equivalent of an appellate brief, even though it complies with

none of the formalities specified in the Federal Rules of Appellate

Procedure or our own local rules.

In any case, this court may review a final removal order

only as to claims that have been properly exhausted through the

administrative process. 8 U.S.C. § 1252(d)(1). Lawrence never

presented to the BIA his claims that the IJ took inappropriate

judicial notice of certain facts and did not properly conduct the

hearings. As for any claim of ineffective assistance of counsel,

Lawrence failed to comply with the procedures required by Matter of

Lozada, 19 I&N Dec. 637, 639 (BIA 1988).

 The fact that Lawrence had filed a separate habeas

petition at some point after the BIA proceedings does not affect

the application of the statutory exhaustion provision governing

petitions for review. See, e.g., Bonhometre v. Gonzales, 414 F.3d

442, 445-48 (3d Cir. 2005), cert. denied, 126 S. Ct. 1362 (2006).

Lawrence had the opportunity to raise before the BIA the claims now

made in his habeas petition, yet he failed to do so.
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There is one loose end. Lawrence included in his habeas

petition a further claim of a different kind: he argued that,

having been detained for longer than 90 days, he should be released

from detention as he awaits deportation. The statute prescribes 90

days as the presumptive period of detention pending deportation, 8

U.S.C. § 1231(a)(1)(A), but allows for extension of this period

under certain circumstances, id. § 1231(a)(6). This challenge to

detention is arguably not governed by the exclusive review

provision of the REAL ID Act.

In any case, Lawrence's argument would fail on the

merits. Because Lawrence was found to be removable under the

"crime involving moral turpitude" provision, 8 U.S.C. §

1227(a)(2)(A)(i), the statute explicitly states that he "may be

detained beyond the [90-day] removal period," id. § 1231(a)(6).

While the statute on its face provides no limits for this detention

power, the Supreme Court has read the statute as "limit[ing] an

alien's post-removal-period detention to a period reasonably

necessary to bring about that alien's removal from the United

States." Zadvydas v. Davis, 533 U.S. 678, 689 (2001).

Lawrence's continued detention here occurred pursuant to

his own procuring of stays incident to his legal challenges to the

removal order; it is beyond dispute that this period of time was

necessary to bring about Lawrence's removal, which--now that the

current litigation is resolved--is presumably imminent. A remand
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on the issue of the length of detention, which has not been

requested, would be wholly fruitless.

The petition for review is denied. The stays of removal

previously entered will be vacated automatically and without

further order upon issuance of the mandate.

It is so ordered.