1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 15a0180p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

A RTURO V ELASCO -T IJERO , Petitioner ,

v

.

L ORETTA E. L YNCH , Attorney General, Respondent

. ┐ │ │ │ │ │ │ │ ┘ No. 14-3803

On Petition for Review from the Board of Immigration Appeals. No. A200 872 898. Argued: June 17, 2015 Decided and Filed: August 6, 2015
Before: GUY, GIBBONS, a nd ROGERS, Circuit Judges.

_________________ COUNSEL

ARGUED: Douglas S. Weigle, BARTLETT & WEIG LE CO., L.P.A., Cincinnati, Ohio, for Petitioner. Jennifer A. Singe r, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Mauricio A. Herrera, LEGAL CENTER OF NWA, Lowell, Arkansas, for Petitioner. Laura Halliday Hickein, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

_________________ OPINION

_________________ ROGERS, Circuit Judge. Pe titioner is an undocumented a lien. In 1995, an Arkansas court convicted him, on a guilty plea, of shoplif ting. Under the law then in effect, petitioner’s conviction and the resulting sentence did not foreclose him from seeking suspension of 

### >No. 14-3803 Velasco-Tijero v. Lynch Page 2

deportation in the event the Government sought to deport him. In 1996, however, Congress
enacted the Anti-Terrorism and Effective D eath Penalty Act (AEDPA) and the Illegal Immigration Reform and Immigrant Responsib ility Act of 1996 (IIRIRA), which, among other things, barred someone with petitioner’s crimin al history from petitio ning for cancellation of removal. In 2010, the Government initiated proceed ings to remove petitioner from this country. Petitioner conceded removability, but sought to petition the Attorn ey General for cancellation of removal. The Government denied his petition on the ground that it was foreclosed by AEDPA and IIRIRA. In this appeal, petitioner contends th at the otherwise applicable AEDPA and IIRIRA amendments do not apply to undocumented al iens who, like petitione r, pled guilty to a predicate offense before 1996, but were ordere d removed after 1996. Petitioner’s argument is foreclosed by AEDPA § 435(b), which clearly indi cates Congress’s intent with respect to the temporal reach of provisions in AEDPA and IIRIRA relating to aliens’ eligibility for cancellation of removal. Petitioner’s argumen t that the Board of Immigration Appeals abused its discretion in refusing to remand his case on other grounds is also without merit.

Petitioner is a native and citizen of Mexico w ho arrived illegally in the United States in 1988. Since then, he has four times been convicted of driving under the influence, most recently in 2010. On June 7, 1995, an Arkansas court convic ted him, upon a guilty plea, of property theft. The maximum punishment for petitioner’ s crime was one year in prison, see Ark. Code Ann. §§ 5-36-103, & 5-4-401, but the sentencing court ga ve petitioner only a suspended sentence of 30 days in jail and ordered him to pay a fi ne and court costs to taling $257.25. Petitioner’s sentence meant he remained eligible, under th en-existing immigration laws, to petition the Attorney General for susp ension of deportation. See 8 U.S.C. § 1254(a)(2) (1994); 8 U.S.C. § 1251(a)(2) (1994). In 1996, however, Congress enacted AEDPA, Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996), and IIRIRA, Pub. L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996). Those acts made several major amendments to United States immigration laws , a few of which are particularly relevant here. First, IIRIRA me rged deportation proceedings into the broader category of “removal proceedings.” See IIRIRA § 304, codified at 8 U.S.C. § 1229b. As part of that change, the discretionary relief that had been known as “suspension of deportation” was replaced with a similar form of discretionary relief known as “cancellatio n of removal.” AEDPA
and IIRIRA also narrowed the class of aliens e ligible to petition the Attorney General forNo. 14-3803 Velasco-Tijero v. Lynch Page 3

cancellation of removal. Pr ior to AEDPA and IIRIRA, an alien who, like petitioner, had committed a crime involving moral turpitude could petition the Attorney General for suspension of deportation so long as the alien (1) had not been sentenced to a year or more in confinement for the crime involving moral turpitude, and (2 ) had not actually spent a year or more in
confinement for the crime involving moral turpitude. See 8 U.S.C. § 1254(a)(2) (1994); 8 U.S.C. § 1251(a)(2) (1994). Section 435(a) of AEDPA, codified in 8 U.S. C. § 1227(a)(2), and § 304(b) of IIRIRA, codified at 8 U.S.C. § 1229b(b)(1)(C), combined to ma ke ineligible for cancellation of removal any alien convicted of a crime i nvolving moral turpitude punishable by a year or more in prison, regardless of the pu nishment actually imposed. Petiti oner admits he is ineligible
for cancellation of removal under this new standard.
In November of 2010, Immigration and Custom s Enforcement agents detained petitioner and served him with a Notice to Appear before the Harlingen Immigration Court. The Notice charged petitioner with being “an alien present in the United States who has not been admitted or paroled.” Petitioner, accompanied by counsel, a ppeared before the court and admitted to the factual allegations and the charge of removability in the Notice. He noted, however, that he
would seek cancellation of remova l on the ground that his remova l would cause “exceptional and extremely unusual hardship” to his mother—a legal permanent resident—and his daughter—a U.S. citizen. Petitioner later appeared before an Immigration Judge (IJ) and formally requested cancellation of removal. In response, the Gove rnment suggested that pe titioner’s property theft conviction made him ineligible for cancellation of removal unde r 8 U.S.C. § 1229b(b)(1)(C). The IJ thereupon ordered petitioner to file a statement of law expl aining why he was eligible for
cancellation of removal and se t a hearing on the matter.
At the hearing, the Government moved to pretermit petitioner’s application—based on petitioner’s property theft convi ction—and expressly declined to exercise prosecutorial discretion in the matter. The IJ granted the Government’s motion, ruling that, under 8 U.S.C. § 1229b(b)(1)(C), petitioner’s propert y theft conviction rendered hi m ineligible for cancellation of removal. The IJ expressly re jected petitioner’s argument that his eligibility for cancellation of removal should be determined by pre-AEDPA and pre-IIRIRA law— i.e. , by the law that was in effect at the time petitioner pled guilty and received his sentence. That argument, the IJ said,No. 14-3803 Velasco-Tijero v. Lynch Page 4

was foreclosed by language in AEDPA § 435(b) , Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996), which provided that 8 U.S.C. § 1227(a)(2) appl ied to any alien “again st whom deportation proceedings are initiated after the date of the enactment of this Ac t,” regardless of the date of any underlying offense. 1 Because 8 U.S.C. § 1229b(b)(1)(C) prohibited cancellation of removal for
aliens convicted of “offenses under” 8 U.S.C. § 1227(a)(2), and because petitioner had been convicted of an “offense under” 8 U.S.C. § 1227( a)(2), the IJ concluded that petitioner was ineligible for cancellation of removal. The IJ thereupon pretermitted petitioner’s application and
ordered him removed to Mexico.
Petitioner sought review of the IJ’s deci sion by the Board. While that appeal was pending, petitioner’s daughter—alrea dy a United States citizen—turne d 21 years old and filed an alien relative visa petition on pe titioner’s behalf. Petitioner pr omptly filed a motion requesting that the Board remand his case to allow him the oppor tunity to pursue adjustme nt of status relief in conjunction with hi s daughter’s petition.

The Board affirmed the IJ’s decision and denied petitioner’s motion for remand. In affirming the IJ’s decision, the Board adopted the IJ’s reasoning point-by- point. In a paragraph at the end of the opinion, the Board denied petit ioner’s motion to remand as an “exercise of discretion.” The Board concluded that petiti oner’s “extensive criminal record”—including his shoplifting conviction and four convictions for dr iving under the influence—“and the lack of any evidence of rehabilitation precl udes him from meeting his heavy burden to justify remand, with all its attendant delays.” Petitioner peti tions for review of the Board’s order.
Petitioner’s retroactivity argument is fo reclosed by the plai n language of AEDPA § 435(b). In deciding whether a particular statute operates re troactively, “We first look to whether Congress has expressly pr escribed the statute’s proper reach, and in the absence of language as helpful as that we try to draw a comparably firm conclusion about the temporal

1 The full text of AEDPA § 435 reads as follows:
SEC. 435. EXPANSION OF CRITERIA FOR DE PORTATION FOR CRIMES OF MORAL TURPITUDE. (a) I N G ENERAL .—Section 241(a)(2)(A)(i)(II) of the Immigration and Nationality Act (8 U.S.C. 1251(a)(2)(A)(i)(II)) is amended to read as follows: “(II) is convicted of a crime for which a sent ence of one year or longer may be imposed,”. (b) E FFECTIVE D ATE .—The amendment made by subsection (a) shall apply to aliens against whom deportation proceedings are initiated after the date of the enactment of this Act.No. 14-3803 Velasco-Tijero v. Lynch Page 5

reach specifically intended by applying our normal rules of statutory construction.” FernandezVargas v. Gonzalez , 548 U.S. 30, 37 (2006). Congress expre ssly prescribed th e temporal reach of 8 U.S.C. § 1227(a)(2) in AEDPA § 435(b), whic h provides that § 1227( a)(2) “shall apply to aliens against whom deportation proceedings are initiated after the date of the enactment of [AEDPA].” Pub. L. No. 104-132, 110 Stat. 121 4 (Apr. 24, 1996). AEDPA § 435(b) clearly makes commencement of removal proceedings—not some other date—the key point for ascertaining whether an alien’s conviction is subject to AEDPA-amended 8 U.S.C. § 1227(a)(2). Petitioner is an alien against wh om deportation proceedings were initiated after Congress enacted AEDPA. According to the plain language of AE DPA § 435(b), that makes him “an alien . . . convicted of an offense under [8 U.S.C. § 1227(a)(2)],” meaning that, under 8 U.S.C. § 1229b(b)(1)(C), he is ineligible for cancellation of removal.
Petitioner’s argument that AEDP A § 435(b) “is silent as to what crimin al convictions it should be applied to” is without merit. When C ongress specifies that a st atute applies to a class of people within a particular window of time— e.g., aliens placed in rem oval proceedings after AEDPA’s enactment—Congress need not further speci fy that the statute also applies to all subclasses defined by other time windows— e.g., aliens placed in rem oval proceedings after
AEDPA’s enactment who committed crimes i nvolving moral turpitude before AEDPA’s enactment. Indeed, most of the aliens placed in removal proceedings soon after the effective
date must have been convicted of their crimes be fore the effective date. It would be anomalous to read § 435(b) not to apply the new law to those aliens.

Other courts have read AEDP A § 435(b) as a paradigm exam ple of a clear statement of retroactivity. One court, for instance, obs erved that AEDPA § 435(b) reflects Congress’s
determination
that the deportability-expanding provisi on in section 435(a) (expanding the types of offenses that make an alien deportab le under category of crimes of moral turpitude) applied to an alien even if the alleged criminal conduct and conviction pre-dated AEDPA as long as the indi vidual was not placed in deportation proceedings before AEDPA’s enactment.
Mojica v. Reno , 970 F. Supp. 130, 172 (E.D.N.Y. 1997). A nother court noted that, by making AEDPA § 435(a) “applicable to proceedings init iated on or after the date of [AEDPA’s]No. 14-3803 Velasco-Tijero v. Lynch Page 6

enactment,” AEDPA § 435(b) “clearly provid[ed] that the proceedings could be based on conduct or events occurring befo re the AEDPA took effect.” Yesil v. Reno , 973 F. Supp. 372, 379–80 (S.D.N.Y. 1997); see also Rogowski v. Reno , 94 F. Supp. 2d 177, 180 (D. Conn. 1999).

Petitioner otherwise relies on cases in wh ich Congress was not clear about a statute’s temporal reach. See Landgraf v. USI Film Prods. , 511 U.S. 244 (1994); INS v. St. Cyr. , 533 U.S. 289 (2001). Those cases are not applicab le here because of the clarity of Congress’s retroactivity determination in § 435(b). 2 Petitioner does not argue that statutory retroactivity in
this instance would somehow be unconstitutional. Thus, none of petitioner’s arguments refutes the plain meaning of AEDPA § 435(b) that AE DPA-amended 8 U.S.C. § 1227(a)(2) applies to aliens convicted of crimes involving moral turp itude before AEDPA’s enactment, so long as removal proceedings were not initiated agains t those aliens prior to AEDPA’s enactment.
With respect to petitioner’s second contention, the Board also did not abuse its discretion in denying petitioner’s motion to remand so that he coul d request termination of removal proceedings and apply for adjustment of status. “In determining whether the Board abused its discretion, this Court must d ecide whether the denial . . . was made without a rational explanation, inexplicably departed from established policies, or re sted on an impermissible basis
such as invidious discrimination.” Abu-Khaliel v. Gonzales , 436 F.3d 627, 634 (6th Cir. 2006). Petitioner does not suggest that the Board’s denial rested on an impermissible basis. He argues only that the Board: (1) departed from establis hed procedures by denying him the opportunity to present evidence to countervail the Government’s evidence about eligibility for adjustment of status; and (2) failed to explain its decision in light of certain e quities, such as petitioner’s time of residence in the United States, his family ties, and the hardship his removal would cause. The
record in this case undermines both contentions.
Petitioner was not precluded from presenti ng evidence that he warranted a favorable exercise of discretion. In part icular, nothing prevented petitioner from identifying such evidence

2 Petitioner does not argue that AEDPA § 435(b), or any analogous provision, applied in St. Cyr . AEDPA § 435 pertains only to what qualifies as a crime involving moral turpitude. See supra n.1. AEDPA § 435 did not apply in St. Cyr because St. Cyr was ordered re moved, not for having committed a crime involving moral turpitude, but for having committed an aggravated felony. See St. Cyr , 533 U.S. at 315. The mean ing of “aggravated felony” is the subject of a different AEDPA amendment, AEDPA § 440(d), the temporal scope of which is not governed by AEDPA § 435(b).No. 14-3803 Velasco-Tijero v. Lynch Page 7

in his motion to remand—where, in fact, he did identify several facts supporting his petition for adjustment of status. Among other things, petitioner’s motion for remand emphasized that petitioner’s daughter is a U.S. citizen and that, apart from his property theft conviction, petitioner “has not been convicted of any aggravated cr ime or any other crimes that would make him
inadmissible.”
Petitioner suggests he was entitled to an oppor tunity to counter the Board’s reasons for denying his adjustment of status, but he has identified no legal authority sugge sting that an alien seeking adjustment of status is entitled not just to an opportunity to present evid ence supporting his petition, but also to a se parate opportunity to counter a ny evidence on which the Board ultimately relies in denying his petition. In particular, the Board’s decision in Matter of Arai , 13 I. & N. Dec. 494 (BIA 1970), does not support pe titioner’s argument. In the first place, the
Board in Arai expressly stated that mere eligibility for adjustment of status will not automatically result in a grant of relief. Id. at 495. Even if it were possible to read Arai as establishing a presumption of entitlement to adjustment of status in certain circumstances, moreover, Arai makes clear that any such presumption would appl y only “[i]n the absence of adverse factors.”
Id. at 496. That language excludes petitio ner because, throughout petitioner’s removal proceedings, the Government and the Board repeatedly identified specific adverse factors— petitioner’s property theft conviction and multiple DUI convictions—warranting denial of relief. The Board did not violate the precedent it set in Arai when it declined to remand petitioner’s petition.
Finally, the Board adequately explained it s decision to deny petitioner’s motion to remand, summarizing its rationale as follows:

The record reflects that th e respondent was convicted of a shoplifting offense in 1995 and four DUIs, with the most recent such crime occurring in 2011. The respondent’s motion to remand is based on his assertion that he is now eligible to apply for adjustment of status, since his child has reached the age of 21. The respondent’s extensive criminal record and the lack of any evidence of rehabilitation precludes hi m from meeting his heavy burden to justify remand, with all its attendant delays.
That explanation satisfies the standard we have set for the Board when it comes to explaining its reasons for denying a motion to reopen a petition to adjust status. See Scorteanu v. I.N.S. ,No. 14-3803 Velasco-Tijero v. Lynch Page 8

339 F.3d 407, 412 (6th Cir. 2003) (collecting and summ arizing relevant pre cedents). Petitioner alleges that the Board’s order failed to addre ss certain equities—such as petitioner’s time of residence in the United States, his family tie s, and the hardship his removal would cause— supporting adjustment of status. But the Board cannot be faulted for failing to discuss those considerations when peti tioner never mentioned them in his mo tion. Furthermore, as the Board’s order made clear, it was petitioner’s “extensive cr iminal record and the lack of any evidence of
rehabilitation” that drove the Bo ard’s decision. Neither of those considerations is rebutted by the evidence petitioner wished to put before the immigration court.
The petition is denied.