In the

United States Court of Appeals

For the Seventh Circuit

No. 11-2346

NOURREDINE KHODJA,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General

of the United States,

Respondent.

Petition for Review of Orders of

the Board of Immigration Appeals.

No. A038-672-573

ARGUED OCTOBER 27, 2011—DECIDED DECEMBER 12, 2011

Before FLAUM, KANNE, and WOOD, Circuit Judges.

KANNE, Circuit Judge. Petitioner Nourredine Khodja

became a lawful permanent resident of the United

States on February 11, 1984. In 1990, Khodja was convicted of aggravated battery and armed violence

and sentenced to four years’ imprisonment. After his

sentencing hearing, Khodja moved for a judicial recommendation against deportation (“JRAD”). An assistant

attorney for the Immigration and Naturalization Service
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(“INS”) stated that the motion should be denied because

Khodja could seek a § 212(c) waiver in a subsequent

immigration proceeding. On this basis, the trial judge

denied the motion. Congress repealed § 212(c) in 1996. In

2003, following a vacation to the Dominican Republic, the

INS charged Khodja as being inadmissible for having been

convicted of a crime involving moral turpitude. Khodja

sought a waiver under §§ 212(c) and (h). The immigration

judge denied both waivers, and the Board of Immigration

Appeals affirmed. Because we find that the repeal of

§ 212(c) does not apply retroactively to Khodja’s case, the

petition will be granted.

I. BACKGROUND

Nourredine Khodja is a sixty-one-year-old Tunisian

native and dual citizen of Tunisia and Canada. In 1969,

Khodja met his wife, a United States citizen, while she

was a summer exchange student in Canada. They

married in 1977 and have two children, ages thirty-two

and twenty-four. Khodja became a lawful permanent

resident of the United States on February 11, 1984.

On October 14, 1988, Khodja was charged in Illinois state

court with aggravated battery, armed violence, and

attempted murder after he repeatedly stabbed James W.

Bevan in the back and side. During the bench trial, expert

testimony established that Khodja suffered from major

depression with psychotic features at the time he committed the crime. On March 14, 1990, the trial judge

found Khodja “guilty but mentally ill” on the aggravated

battery and armed violence counts. Khodja was found
No. 11-2346 3

The trial judge did not sentence Khodja on the aggravated 1

battery count because the aggravated battery conviction

arose from the same offense as his armed violence conviction.

not guilty of attempted murder. On May 18, 1990, Khodja

was sentenced to four years’ imprisonment for his

armed violence conviction. He did not receive a sentence on the aggravated battery conviction.1

Following his sentencing hearing, Khodja moved for

a judicial recommendation against deportation, or JRAD.

At the time of Khodja’s hearing, a sentencing judge

could issue a JRAD, which provided that the defendant’s

conviction could not be used as a basis for deportation

by immigration authorities. See 8 U.S.C. § 1251(b)(2)

(repealed 1990). “Although called a ‘recommendation,’

the command of a JRAD was mandatory.” Solis-Chavez

v. Holder, Nos. 10-1354 & 11-1243, 2011 WL 5041916, at *2

(7th Cir. Oct. 25, 2011). At Khodja’s hearing, Seth Fitter,

an assistant attorney for the former INS, urged the court to

deny the JRAD motion because Khodja could seek a waiver

before an immigration judge. He stated as follows:

Basically, Judge, this is a highly unusual type of

relief for the Defendant here.

There is an Immigration Judge who handles immigration cases. He is apart from the Immigration Service.

He would make a ruling on a case like this to determine whether the Defendant is deportable. And then

after that, if that’s correct, then there is a separate

portion in which the Defendant would testify, bring
4 No. 11-2346

2 The trial judge at first denied the JRAD motion, stating “I am

going to deny the motion. I feel that this is a matter for the

federal government to be concerned with. Motion denied.”

(R. at 535.) Khodja’s counsel then queried whether the judge

was denying the motion on its face or in deference to the

federal courts, to which the trial judge responded that it

would be more appropriately heard in the proper tribunal.

Khodja’s counsel moved to withdraw the motion, which the

judge granted, explaining, “I didn’t make a ruling. I said

motion denied, but if [counsel] wants to withdraw the

motion, she may do so. This is a matter which has to be

handled by the immigration authorities.” (R. at 536.)

in his wife, and the Judge has—could grant a waiver

of this conviction.

But if the Court grants this motion, it’s as if you are

usurping the role of the Immigration Judge in

making that ruling.

And I don’t believe in this type of case the Immigration Judge should be taken out of the picture, so to

speak.

(R. at 534-35.) The Illinois state trial judge then denied

the JRAD motion, stating “it’s more appropriate to be

heard in the proper tribunal” and “[t]his is a matter

which has to be handled by the immigration authorities.” (R. at 536.) Khodja’s counsel moved to withdraw

the JRAD motion, which the trial judge granted.2

Khodja appealed his conviction to the Illinois Appellate Court. On September 13, 1991, the Illinois Appellate

Court denied Khodja’s appeal. Khodja served eighteen
No. 11-2346 5

months of his four-year sentence. He was released from

custody in July of 1993 and discharged from parole on

September 8, 1994.

On December 22, 2002, Khodja and his wife returned

to the United States from a vacation to the Dominican

Republic. Khodja presented himself to officials at the

airport and applied for admission. Rather than admit

Khodja, immigration officials deferred his inspection

and ordered him to appear before the Chicago immigration office. On April 24, 2003, immigration officials

served Khodja with a Notice to Appear. The government

alleged that Khodja was subject to removal under

8 U.S.C. § 1182(a)(2)(A)(i)(I) as an alien convicted of a

crime involving moral turpitude.

On May 29, 2003, Khodja appeared before an immigration judge. Khodja acknowledged that he was not a

United States citizen and had presented himself for inspection as a returning lawful resident on December 22,

2002. He denied factual allegations relating to his

prior convictions for armed violence and aggravated

battery. On February 26, 2004, Khodja indicated to the

immigration judge that he would seek a § 212(c) waiver

and a § 212(h) waiver. Prior to its repeal, § 212(c) granted

discretion to the Attorney General to admit certain

aliens despite their inadmissible status. See 8 U.S.C.

§ 1182(c) (repealed 1996). Section 212(h), which is still

in effect, grants the Attorney General broad discretion

to admit an alien under various circumstances, including

if denial of admission would result in extreme hardship

to the alien’s family. See 8 U.S.C. § 1182(h). This relief
6 No. 11-2346

is unavailable to any alien convicted of an aggravated

felony following his or her previous admittance into

the United States. Id.

Khodja’s final removal hearing was held on June 15,

2005. The immigration judge determined that Khodja

was removable, denied Khodja’s applications for

waivers under §§ 212(c) and (h), and ordered Khodja

deported to Canada. Khodja timely appealed the immigration judge’s decision to the Board of Immigration

Appeals. The Board held that Khodja was ineligible for

a § 212(c) waiver but agreed with Khodja that the immigration judge erred in its analysis of his § 212(h)

waiver application. The Board remanded to the immigration judge for a proper determination of whether

Khodja had been convicted of an “aggravated felony” for

purposes of § 212(h).

On remand, the immigration judge found that

Khodja had been convicted of an aggravated felony as

defined in 8 U.S.C. § 1101(a)(43)(F). Accordingly, the

immigration judge again denied Khodja’s application

for a § 212(h) waiver. Khodja appealed this decision to

the Board, which affirmed the immigration judge’s decision, although on different grounds. Khodja filed his

petition for review with this court on June 14, 2011.

II. ANALYSIS

We have jurisdiction to review constitutional claims

and questions of law raised in a petition for review.

Frederick v. Holder, 644 F.3d 357, 362 (7th Cir. 2011), petition
No. 11-2346 7

for cert. filed, 80 U.S.L.W. 3078 (U.S. Aug. 1, 2011) (No. 11-

135); 8 U.S.C. §§ 1252(a)(2)(C), (D). Khodja challenges

the Board’s decision based on legal error and due

process grounds. We review these claims de novo.

Frederick, 644 F.3d at 362.

A. Section 212(c) Waiver

Khodja was charged as inadmissible under 8 U.S.C.

§ 1182(a)(2)(A)(i)(I), which provides that “any alien

convicted of . . . a crime involving moral turpitude

(other than a purely political offense) or an attempt or

conspiracy to commit such a crime . . . is inadmissible.”

Khodja does not challenge that he was convicted of a

crime involving moral turpitude. Instead, Khodja asserts

that he is entitled to a hearing on his application for

a § 212(c) waiver. Section 212(c) of the Immigration

and Nationality Act of 1952 provided that

[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) (repealed 1996); INS v. St. Cyr, 533 U.S.

289, 295 (2001). This section was amended in 1990 to

preclude relief for anyone convicted of an aggravated

felony who served a term of at least five years’ imprisonment. St. Cyr, 533 U.S. at 297. In 1996, Congress passed

the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”), Pub. L. No. 104-132, § 440(d), 110 Stat.
8 No. 11-2346

1214, 1277. The AEDPA amended § 212(c) to preclude

relief for convictions based on a broad set of offenses,

including all aggravated felonies. St. Cyr, 533 U.S. at 297;

Frederick, 644 F.3d at 361 n.2. Later that same year, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub. L. No.

104-208, 110 Stat. 3009. This statute repealed § 212(c),

replacing it with “a new section that gives the Attorney

General the authority to cancel removal for a narrow

class of inadmissible or deportable aliens.” St. Cyr, 533

U.S. at 297 (citing 8 U.S.C. § 1229b). This section also

precludes relief for any alien convicted of an aggravated

felony. Id. Prior to its repeal, aliens who applied for

equitable relief under § 212(c) had an approximately

fifty percent chance of success. Canto v. Holder, 593

F.3d 638, 642 (7th Cir.), cert. denied, 131 S. Ct. 85 (2010).

In 2001, the Supreme Court addressed the retroactive

application of the IIRIRA’s repeal of § 212(c) in INS v. St.

Cyr, 533 U.S. 289 (2001). “The St. Cyr Court concluded

that Congress did not provide a sufficiently clear command with respect to the temporal reach of the repeal

of former § 212(c) by IIRIRA section 304(b), such that

the Court could not unambiguously conclude that Congress intended it to apply retroactively.” Canto, 593 F.3d

at 642. The Supreme Court then held that retroactive

application of the IIRIRA’s repeal of § 212(c) “would

have an impermissible retroactive effect on aliens who

had pled guilty prior to the repeal of section 212(c)

because the repeal fundamentally changed the rights

they had at the time of their convictions.” Id. The

Supreme Court noted the quid pro quo involved in
No. 11-2346 9

plea agreements and held that aliens who entered

into plea agreements “ ‘almost certainly relied upon [the]

likelihood of receiving discretionary relief under

section 212(c) in deciding whether to forgo their right to

a trial . . . .’ ” Id. (quoting St. Cyr, 533 U.S. at 325).

St. Cyr failed to address whether aliens who pled

not guilty and were convicted following a trial are also

entitled to relief under § 212(c). A circuit split exists as

to whether such relief is available outside the guiltyplea context. See Solis-Chavez, 2011 WL 5041916, at *8.

“The rule in this circuit remains that relief under § 212(c)

is not available to any alien whose removal proceeding

began after repeal except to those who affirmatively

abandoned rights or admitted guilt in reliance on § 212(c)

relief.” United States v. De Horta Garcia, 519 F.3d 658,

661 (7th Cir. 2008). Previously we have recognized that

those who pled guilty prior to the repeal of § 212(c)

and those who conceded deportability based on the

expectation that they could seek relief under § 212(c) are

entitled to St. Cyr relief. Id. “In both cases, we required a

showing of specific facts demonstrating actual reliance.” Id.

Although Khodja did not plead guilty and was

instead convicted at trial, we find that he has

demonstrated actual reliance on the availability of a

§ 212(c) waiver such that he affirmatively abandoned

his right to pursue a JRAD. In Solis-Chavez, we noted

that although a JRAD is a purely discretionary form

of relief, it can serve as “a complete defense to removal.”

2011 WL 5041916, at *6. Thus, in Solis-Chavez’s case, he

had a due process interest in protecting “a previously
10 No. 11-2346

entered JRAD against the government’s claim that it is

untimely and therefore invalid.” Id. at *6 n.1.

In this case, INS assistant attorney Fitter specifically

referenced the availability of a waiver at Khodja’s hearing

on his JRAD motion. He stated: “[T]here is a separate

portion in which the Defendant would testify, bring in

his wife, and the [Immigration] Judge . . . could grant a

waiver of this conviction.” (R. at 534-35.) Immediately

following Fitter’s statement, the trial judge preliminarily denied Khodja’s JRAD motion. Khodja then

withdrew his request for a JRAD. The facts indicate that

Khodja chose to forgo a possible benefit in reliance on

Fitter’s statement that he would be eligible for § 212(c)

relief. See Esquivel v. Mukasey, 543 F.3d 919, 922 (7th

Cir. 2008) (requiring a showing of specific facts demonstrating actual reliance). If the state trial court had

granted Khodja’s motion for a JRAD, Khodja would

have a complete defense to deportation. But because of

Fitter’s statement, Khodja withdrew his motion and

chose not to appeal the denial of his JRAD motion,

even though he appealed his conviction. We find that

Khodja has demonstrated actual reliance in forgoing a

possible benefit such that the repeal of § 212(c) does

not apply retroactively in this case. Accordingly, we

will remand to the agency for further proceedings to

address Khodja’s § 212(c) waiver application.

B. Section 212(h) Waiver

Khodja also applied for a § 212(h) waiver during his

deportation proceedings. Under § 212(h), the Attorney
No. 11-2346 11

General has broad discretion to waive the inadmissibility of an alien in a variety of circumstances. See 8

U.S.C. § 1182(h). No waiver may be provided, however,

if the alien has been convicted of an “aggravated felony.”

Id. “Aggravated felony” includes a “crime of violence,”

as defined in 18 U.S.C. § 16, for which the term of imprisonment is at least one year. 8 U.S.C. § 1101(a)(43)(F).

A “crime of violence” has two definitions. The first

uses a categorical approach and applies to “an offense

that has as an element the use, attempted use, or threatened use of physical force against the person or property

of another.” 18 U.S.C. § 16(a). Our review under § 16(a) is

strictly limited to the elements of the crime. LaGuerre

v. Mukasey, 526 F.3d 1037, 1039 (7th Cir. 2008) (per

curiam). The second definition includes “any other

offense that is a felony and that, by its nature, involves

a substantial risk that physical force against the person

or property of another may be used in the course of

committing the offense.” 18 U.S.C. § 16(b). The Board

determined that Khodja’s armed violence offense, based

on the predicate felony of aggravated battery, satisfies

this second definition.

The Board applied a modified categorical approach

in determining that the armed violence conviction met

the definition of “crime of violence” under § 16(b),

looking beyond the elements of the offense to the

charging documents. Relying upon this court’s reasoning in United States v. Fife, 624 F.3d 441 (7th Cir.

2010), cert. denied, 131 S. Ct. 1536 (2011), the Board held

that Khodja’s predicate felony of aggravated battery
12 No. 11-2346

involved a greater risk of physical force than the

predicate felony of possession with intent to deliver

cocaine that was at issue in Fife. Moreover, the Board

noted that the indictment referenced Khodja’s acts of

knowingly causing bodily harm to the victim by

stabbing him in the back and side. This was enough for

the Board to conclude that Khodja had been convicted

of a “crime of violence” under § 16(b).

Khodja argues that the Board erred in using a modified categorical approach or, in the alternative, that the

Board improperly considered Khodja’s actual conduct in

determining whether his offense satisfied the modified

categorical approach. Khodja’s first argument is without

merit. The statutory language for armed violence states:

“A person commits armed violence when, while armed

with a dangerous weapon, he commits any felony

defined by Illinois law . . . .” 720 ILCS 5/33A-2(a). The

term “any felony” encompasses a broad range of underlying acts which may or may not constitute crimes

of violence. The modified categorical approach

applies when “analysis of the elements reveals that a

statute may be violated in several ways, such as a

statute which creates more than one crime or one that

defines one crime with multiple enumerated modes of

commission.” Fife, 624 F.3d at 445; cf. Gaiskov v. Holder, 567

F.3d 832, 836 n.2 (7th Cir. 2009) (based on the statutory

language, all prohibited conduct was reasonably understood as “sexual abuse of a minor”; therefore, it was

unnecessary to apply the modified categorical approach

in determining whether the defendant’s offense met

the definition of “sexual abuse”). In Fife, we held that
No. 11-2346 13

Illinois’s armed violence statute “creates multiple modes

of commission, defined by the felony committed while

armed with a dangerous weapon.” 624 F.3d at 446. The

same armed violence statute is at issue in this case and

the Board was correct in applying a modified categorical

approach.

Under the modified categorical approach, “we look at

the conviction’s judicial record to determine whether it

qualifies as a crime of violence, but we will still not examine the particular facts of the conviction.” United States

v. Curtis, 645 F.3d 937, 940 (7th Cir. 2011). “[T]he point

of the expanded inquiry is not to consider what the

defendant in fact did but to determine which category

of crime the defendant committed.” United States v.

Dismuke, 593 F.3d 582, 589 (7th Cir. 2010), cert. denied,

131 S. Ct. 3018 (2011). In this case, the Board considered

the underlying felony of aggravated battery as well as

Khodja’s actual conduct in stabbing the victim. Because

the modified categorical approach prohibits consideration of a defendant’s actual conduct, the Board erred

in considering what Khodja did. But this error is

harmless because a proper examination of Khodja’s

conviction under the modified categorical approach,

considering only the underlying felony of aggravated

battery, still leads to the conclusion that Khodja was

convicted of a “crime of violence.”

In Illinois, “[a] person commits aggravated battery

when, in committing a battery . . . he or she

knowingly . . . [c]auses great bodily harm or permanent

disability or disfigurement.” 720 ILCS 5/12-3.05(a)(1).

The nature of this crime is such that a victim suffers
14 No. 11-2346

physical harm at the hands of a willing perpetrator.

To establish that a defendant committed the underlying

felony of aggravated battery, a prosecutor would have

to demonstrate that the defendant caused bodily harm.

We have interpreted similar statutes as having as an

element the use of physical force against another. See

LaGuerre, 526 F.3d at 1039 (discussing Illinois’s domestic

battery statute).

We hold that a person who commits an aggravated

battery in Illinois presents “a substantial risk that

physical force against the person or property of another

may be used in the course of committing the offense.” 18

U.S.C. § 16(b). The addition of a dangerous weapon

increases this risk. Under the modified categorical approach, therefore, Khodja was convicted of a “crime of

violence” under § 16(b). In addition, Khodja was imprisoned for more than one year. Accordingly, his conviction fits the definition of an “aggravated felony” and

§ 212(h) relief is unavailable.

III. CONCLUSION

For the foregoing reasons, we GRANT the petition and

REMAND this case for a full hearing on Khodja’s § 212(c)

waiver application.

12-12-11