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06-2125 Peralta -Taveras v. Gonzales UNITED STATE S COURT OF APPEA LS FOR THE SEC OND CIRC UIT

August Term, 2006 (Argued: May

10, 2007 Decided: May 22, 2007 Amended: June 6, 2007) Docket No. 06-2125-ag

ROBERTOPERAL TA-TAVE RAS, Petitioner ,

– v. – ATTORNEY GENERAL, AL BERTO R. GONZAL

ES, DEPARTMENT OF HOMELAND SECURI TY, TOM RI

DGE, SECRE TARY, US I MMIG RATI ON AND CU STOMS ENFORCEMENT, MI CHAEL GARCI A, ASSI STANT SECRE TARY, I NS DI STRICT DIRECTOR, STEVEN FARQUHARSON, BO STON, DHS DETENTION & REMOVAL OPERATIONS, GEORGE SUL LI VAN, INTERI

M OFFICER I

N CHARGE, Responde nts

.

Before: B.D. PARKER, RAGGI , WESLEY, Circuit Judges

. Petition for review of the BI A’s decision denying

applications for relief under former INA § 212(c) and c

urrent INA § 240A(a

). Denied

.

JUSTIN CONL ON, Nort

h Haven, CT , for Petitioner

. WILL IAM J. NARDINI , Assistant United States Attorney, (Doug las P. Morabito,1 In 2001, the I NS supplemented these allegations and contended that Pera lta’s other convictions also rendered him removable. -2- Assistant United States Attorney, on the brief ) for Kevin O’Connor, United States Attorney for the

District of Connecticut , for Respon dents

.

AMENDED

PER CURI

AM: Petitioner Roberto Peralta-Taveras (“Peralta” ), a native and citizen of the Dominican Republic, seeks review of a July 8, 2004 order of the BI

A affirming the January

16, 2004 decision of Immigration Judge ( “IJ”) Michael W. Straus deny ing Peralta’s applications for waiver of deportation under former § 212(c ) of the INA, 8 U.S.C. § 1182(c) ( repealed 1996), and cancellation of removal under § 240A(a) of the INA, 8 U.S.C. § 1229b(a). In re Rob erto Peralta-Taveras , No. A 34 018 588 (B.I.A. July 8, 2004), aff’g

No. A 34 01 8 588 (I

mmig. Ct. Hartford Jan. 16, 2004). BACKGROUND On January 16, 1996, Peralta wa s convicted of attempted possession of a forged instrument and sale of a controlled substance. On June 9, 1997, he was convicted of attempted possession of marijuana. Peralta pled guilty in both instances. Removal proceedings were initiated in 2000, c hargin

g that Pe ralta wa s subject

to remova

l from the United Sta

tes beca use his 1996 narcotics trafficking offense was an aggrava

ted felony under

8 U.S.C. § 1227(a)(2)(A)(iii),

see 8 U.S.C. § 1101(a)(43)(B), as well as a controlled substanc e offense under 8 U.S.C. § 1227(a)(2)(B)(i). 1 On Januar y 16 , 2004, af

ter Pera lta conc eded re

movability

, the IJ found Pera

lta removable to the Dominican Republic. The IJ denied Peralta’s applications for waiver of deportation under § 212(c) and cance llation of removal under § 240A(a), concluding that ( 1) although Peralta was eligible for for mer § 212(c) relief, the plain langua ge of § 240A(a)(3)-3-

precludes Peralta from receiving cancellation of removal because of his ag gravated felony convictions, and (2) section 240A(c)(6) barr ed simultaneous relief under both § 212(c) and § 240A. The BIA a

ffirmed the IJ’s decision without opinion. Peralta filed a petition for a writ of habeas cor pus in the United States District Court for the District of Connecticut in July 2004, seeking re lief from the order of removal. I n May 2006, the district court transferred the habeas pe tition to us pursuant to the REAL ID Ac t of 2005, Pub. L. No . 109-13, Div. B., § 106, 119 St at. 231, 3 10. Pera

lta seek s a rema

nd to the I

J to obtain simultaneous consideration of his applications for relief under § 212(c) and § 240A(a). We deny the petition. DISCUSSION Prior to 1990, the Attorney Gene ral was authorized to grant discretionary relief from exclusion or deportation under former § 212(c) of the I NA to certain lawful permanent resident aliens who had lawfully

resided in the United States for seven consecutive y ears. See 8 U.S.C. § 1182(c) (repealed 1996). Congr ess amended the INA in 1990 to eliminate § 212( c) relief for any “alien who has been convicted of an ag gravated felony

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

rs.” Immigration Act of 1990 (“IMMACT”), Pub. L . No. 101-649, § 511(a), 104 Stat. 4978, 5052 (Nov. 29, 1990). In 1996, Congress a gain amended § 212(c) to bar re lief to any alien convicted of an agg

ravated felony , regardless of the term of imprisonment. See AntiTerrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. N o. 104-132, § 440(d), 110 Stat. 1214, 1277 (Apr. 24, 1996). Later that y ear, Congress enacted the I llegal Immigr

ation Reform and Immigra

nt Responsibility Act of 1996 (“I IRI RA”), Pub. L. No. 104-208, § 304(b), 110 Stat. 3009-546, 3009-597 (Sept. 30, 1996), which repealed § 212(c) altog ether. Section-4-

240A(a) of the I IRI RA author

izes the At

torney Genera l to “cancel removal” of a n alien wh

o is inadmissib le or dep ortable if the ali en: (1) has been an alien lawfully admitted for permanent residence for not less than 5 ye ars, (2) has resided in the United States continuously for 7 yea rs after having been admitted in any status, and (3) has not been convicted of any aggravated fe lony. 8 U.S.C. § 1229b(a). In 2001, apply

ing retroactivity

principles, the Supreme Court held in United Sta tes v. St. Cyr , 533 U.S. 289, 315 (2001), that if an alien was eligible for a § 212(c ) waiver when he pleaded guilty

prior to the enactment of II RIRA, he remains eligible f or that form of relief. Peralta ’s 1996 ag

grava ted felo ny c onviction s occurr ed prior to the ena

ctment of II RIRA, and his 1997 conv

iction oc curred

after th e passag e of I IRI

RA. Accordingly

, it is undisp

uted that Peralta would have been eligible for waiver of deportation under § 212(c) for his 1996 ag gravated felony convictions despite Congress’s subsequent repeal of that statute. The issue presented here, however , is whethe

r Peralta is also eli gible f

or canc ellation o f remova l under § 2 40A(a) for his 1997 drug conviction through simultaneous consideration of his applications for r elief under § 212(c) and § 240A(a). The I J conclude d that ca

ncellati on of removal was ultimately

not avail able to Pe

ralta because (1) his 1996 agg

ravated felony

convictions rendered him ineligible for cance llation of removal for his 1997 drug conviction under the plain lang uage of § 240A(a)(3); and ( 2) section 240A(c)(6) barred simultaneous relief unde r both § 240A(a) and § 212(c). Peralta arg ues that he is entitled to such relief because Congress’s intention as to the applica tion of § 240A(a) to a petitione r who is al so eligi

ble for § 212(c) r

elief is a mbiguous . This ambi guity , accor ding to2 To the extent Peralta implies that the § 240A(a) bar against elig ibility for agg ravated felons violates due process, there is no improper retroa ctive application of the statute. See Kuhali v. Reno , 266 F.3d 93, 111 (2d Cir. 2001) (holding that retroactive applica tion of II RIRA’s changes to the definition of “agg ravated felony

” does not violate due process); Campbell v. -5- Peralta, should be interpreted in his favor so as to permit him to obtain simultaneous consideration of his applications for waiver under § 212(c ) and cancellation of removal under § 240A(a), which would render him eligible for discretionary r

elief from deportation. We disagree. Where, as here, the BI

A summarily affirms the I J’s decision, we review the IJ’s opinion. See Secaida-Rosa les v. INS , 331 F.3d 297, 305 (2d Cir. 2003). We do not extend Chevron deference to any

statutory construction of the I NA set forth in a summarily a ffirmed IJ opinion. See, e.g. , Shi Liang Lin v. U.S. Dep’t. of Justice , 416 F.3d 184, 190-91 (2d Cir. 2005). Peralta ’s challe

nge to th e IJ’s

decision begins w ith his asse

rtion that because Congre ss repeal ed § 212( c) and r

eplace d it with § 24 0A(a) a nd could not have f

oresee n that the Supreme Court in St. Cyr

would main

tain eligibility for § 212(c ) relief for certain aliens afte r it was repealed, its intention with respect to whether an alien may seek simultaneous relief under § 240A(a) and § 212(c) is necessarily also ambiguous. This argument is contrary to the well-established rules of statutory construction, which instruct that our inquiry begins with the plain language of the statute and “w here the statutory language provides a c lear answer, it ends there as well.” Hughes Aircraft Co. v. Jacobson , 525 U.S. 432, 4 38 (1999) ; see also Ruiz-Almanzar v. Ridge , No. 05-4380, – F.3d –, 2007 U.S. App. LEXI S 10867, *11 -13 (2d Cir . May 8, 2007) (

holding t hat under a plain- langua

ge ana lys is, AEDPA § 440(d) is unambiguous in barring relief to a ll aggravated felons). The text of § 240A(a) is clear and unambiguous – ca ncellation of removal is not available to aliens who have be en co nv ic te d o f a n a ggr av at ed fe lo ny. 2 Legislative h istory is not to be

used to “b eget”Ashcroft, No. 0 4-201 6, 200 4 WL 156 3022, at * 4- 5 (E.D . Pa. J uly 12, 2 004) ( reject ing a

petitioner’s due process challenge to re troactive application of the agg ravated felony

bar in § 240A(a) (3)). Th e deter

mination of

whether a statute is impermis sibly

retroa ctive loo ks to whether applica tion of the

statutory provision

“attaches a new

disability

, in respe ct to transactions or considerations already past” and “should be informed and guided by familiar considerations of fair notice, reasonable re liance, and settled expectations.” St. Cyr , 533 U.S. at 321 (internal quotation marks omitted). At the time of Peralta’s 1997 guilty plea for attempted marijuana possess ion – a con trolled su bstance offense subjectin g him to r emoval un

der 8 U.S. C. § 1227(a)(2)(B)(i) – Peralta w as on notice that his prior convictions would preclude him from seeking § 240A relief if convicted of a nother removable offense. -6- ambiguity in an other

wise unambiguous statute. Callanan v. United States , 364 U.S. 587, 596 (1961). The IJ’s application of § 240A(a) was straightforward: since Peralta ha s been convicted of an ag grava

ted felo ny, he is not e ligible f or canc ellation o f remova l. The IJ co rrectl y conclud ed tha t Pera lta ca nnot obtai n reli ef from depor tati on th rough simultaneous consideration of his applications for cancellation of removal under § 240A and a waiver under § 212(c). The g ranting of a § 212(c) waiver doe s not expunge the underly ing offense or its categorization as an aggravated felony

. See, e.g ., Chan v. Gantner , 464 F.3d 289, 295 (2d Cir. 2006) (observing that “a waiver unde r section 212(c) does not preclude the I NS or the courts from rely

ing on the underly

ing offense to bar other forms of immigr ation relief or benefit s”); Matter of Balderas , 20 I. & N. Dec . 389, 391 (B.I.A. 1991) (“ [S]ince a grant of section 212(c) relief ‘waives’ the finding of . . . deportability rathe r than the basis of the excludability itself, the crimes alleg ed to be grounds for . . . deportability do not disappear from the alien’s record for immigration purposes.” ). Therefore, reg ardless of the availability of a § 212(c) waiver, Peralta’s 1996 ag gravated felony convictions remain and preclude his application for can cellatio n of remo val under § 240A(a

). While we

have not p

reviousl y r uled on thi s question, the Third, Fifth, Eighth, and Ninth Circuits have recently rejected similar claims -- holding that, the granting of § 212(c) relief waives deportability but, under the plain language of-7-

§ 240A(a), the aggra

vated felony c onviction would still bar cancellation of removal. See Becker v. Gonzales , 473 F.3d 1 000, 1003- 04 (9th Cir . 2007); Amouzadeh v. Winfrey , 467 F.3d 451, 458- 59 (5th Cir. 2006); Munoz-Yepez v. Gonzales , 465 F.3d 347, 350 ( 8th Cir. 2006) ; RodriguezMunoz v. Gonzales , 419 F.3d 245, 248 ( 3d Cir. 200 5). We alig n ourselv es with tho se circ uits. Peralta’s reliance on Matter of Gabryelsky , 20 I. & N. Dec . 750 (B.I.A. 1993), whe re the BIA allowed simultaneous applica tions for adjustment of status under § 245(a) and waiver of inadmissibility under § 212(c), is misplaced. I n that case, the BI

A based its conclusion on a regulation permitting combined § 245(a) and § 212( c) applications, and on the fact that gra nting each form of relief made an a lien statutorily eligible for the other form. Id. at 754-56. Gabry elsky , who had b oth a drug convicti on and a w eapons c onviction , could use § 212(c)to waive the inadmissibility finding that ar ose from his drug conviction. Id. at 753. Thus, by obtaining § 212(c) relief, Gabry elsky would remove the

statutory bar to his adjustment of status application. See 8 U.S.C. § 245(a) (requiring that the applicant be “a dmissible to the United States for permanent residence” in order to be eligible for adjustment of status). Crucial to the holding in Gabryelsky

is the fact that the statutory ba r to eligibility for adjustment of status wa s the existence of an inadmissibility ground, which is pre cisely what § 212(c ) waives . In c ontrast, the statutory bar to eligibility in § 240A(a) is the conviction for an aggrava ted felony, which § 212(c) c annot re

move. Thu s, even if

Peralta could wa ive the f inding of inadmissib ility

with regard to his agg

ravated felony

conviction, he would still remain a person who has been “convicted of an agg

ravated felony .” It is that conviction itself that renders Pera lta ineligible for the requested relief.3 Peralta again attempts to inject ambiguity into the plain language of § 240A(c) (6), arguing that, after St. Cyr, the statut e “is amb iguous [a s to] whethe r Congr ess intended for t

his section to apply to post-I

IRI RA § 212(c) waivers.” As discussed above, Pera lta’s assertion does not comport with the rules of statutory c onstruction. Furthermore, Peralta does not claim that application of § 240A(c) to a post-I IRI RA § 212(c) waiver violates his right to due process, a nd “agrees that the provisions of subsection (c) (6) indicate that Congress only wanted to give lawful permanent residents one chance to obtain waive r of removal for criminal convictions.” See Maldonado-Galindo v. Gonzales , 456 F.3d 1064, 1067 (9th Cir. 2 006) (obs erving that “Cong

ress stated unequivocally [throug h § 240A(c)(6)] that an alien may not have more than one bite at the cancellation of removal/waiver of inadmissibility apple”). -8- Moreover, granting one f orm of relief precludes the other, whether or not the applications are simultaneous. See Munoz-Yepez , 465 F.3d at 350 (“[I]t does not matter when the discreti onary

§ 212(c)is gran

ted; it disq

ualifies the alien from 240A

relief f or a sec ond, postII RIRA offense.” (e

mphasis in original)). Section 240A(c)(6) expressly precludes cancellation of removal for aliens who have previously received relief under § 212(c) : The provisions of subsections (a) and (b)(1) of this section shall not apply to any of the following aliens: . . . (6) An alien whose removal has previously been cancelled under this section or whose deportation was suspended under section 1254(a) of this title or who has been granted relief under

section 1182(c) of this title [former INA § 212(c )], as such sections were in effect befor e September 30, 1996. 8 U.S.C. § 1229b(c)(6). 3 As explained above, Peralta contends that, if he first obtains a § 212(c) waiver for his January

1996 convictions, those convictions “cease to be agg ravated felonies that make him removable,” thus making him eligible for ca ncellation of removal under § 240A(a). Under Peralta’s theory

of relief, then, the § 212(c) waiver must be g ranted before cancellation of removal. The plain language of § 240A(c)(6), however, bars a n alien who previously re ceived § 212(c) relief from receiving cancellation of removal. Peralta’s claim thus cannot survive § 240A(c)(6).-9-

Because § 240A(a) unambig uously precludes c ancellation of removal for aliens previously convicted of

an aggravated f

elony or pre

viously gra

nted relief under § 212(c), we do not addre ss Peralta ’s arg

uments tha

t the provision shoul d be inter preted i n confor mity with United States treaties and customary international law. See Hugh es Aircra ft , 525 U.S. at 438; Guaylupo-Moya v. Gonzales , 423 F.3d 121, 133 (2d Cir. 2005) (observing that if Congre ss’s intent is plain from the statute, “then Article II I courts, which can ove

rrule Congressional enactments only whe

n such enactments conflict with the Constitution, must enforce the intent of Congress irrespective of whether the statute conforms to customary international law” (internal quotation marks omitted)). CONCLUSION For the foregoing r

easons, the petition for review is DENI ED. Having completed our review, any

stay of remova

l that the Court previously gr anted in this petition is VACATED, and
any pending motion for

a stay of remov al in this pe

tition is DE

NIED as moot.