2014 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-27-2014

Roberto Castanon-Orbegoso v. Attorney General

United States

Precedential or Non-Precedential: Non-Precedential

Docket No. 13-3398

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Recommended Citation

"Roberto Castanon-Orbegoso v. Attorney General United States" (2014). 2014 Decisions. Paper 634.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 13-3398

___________

ROBERTO FELIPE CASTANON-ORBEGOSO,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A036-370-143)

Immigration Judge: Honorable Walter A. Durling

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

June 25, 2014

Before: RENDELL, GREENAWAY, JR., and ALDISERT, Circuit Judges

(Filed: June 27, 2014 )

___________

OPINION

___________

PER CURIAM

Roberto Felipe Castanon-Orbegoso, a native and citizen of Peru, entered the 

United States as a lawful permanent resident in 1977. In 2010, he was convicted in the 

United States District Court for the District of New Jersey of conspiracy to commit mail 

fraud, in violation of 18 U.S.C. § 1349. He was sentenced to 37 months of imprisonment. 
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We affirmed on appeal. See United States v. Castanon, 476 F. App’x 503 (3d Cir. 2012). 

In light of that conviction, the Department of Homeland Security initiated removal 

proceedings against Castanon-Orbegoso, charging him with being removable for having 

been convicted of an aggravated felony, see 8 U.S.C. § 1227(a)(2)(A)(iii). Following an 

administrative hearing, the Immigration Judge (“IJ”) determined that Castanon-Orbegoso

was removable based upon his criminal conviction. He also determined that CastanonOrbegoso’s aggravated felony conviction rendered him ineligible for a waiver of 

inadmissibility under INA § 212(h) [8 U.S.C. § 1182(h)]. On appeal, the Board of 

Immigration Appeals (“BIA”) remanded the case for review in light of this Court’s ruling 

in Hanif v. Att’y Gen., 694 F.3d 479, 487 (3d Cir. 2012) (holding that § 212(h) precludes 

a waiver only for those persons who, at the time they lawfully entered into the United 

States, had attained the status of lawful permanent residents). As the Government noted 

on remand, however, the BIA appears to have been confused about whether CastanonOrbegoso had been admitted to the United States as a lawful permanent resident. 

On remand, the IJ determined that Hanif did not alter his previous determination 

that Castanon-Orbegoso was statutorily ineligible to seek a waiver under § 212(h) as a 

result of his aggravated felony conviction. The IJ determined that Hanif did not establish 

Castanon-Orbegoso’s eligibility because, unlike the petitioner in that case, CastanonOrbegoso had been admitted to the United States as a lawful permanent resident. The IJ 

also rejected Castanon-Orbegoso’s additional argument that the aggravated felony bar 

had an impermissible retroactive effect because he had been admitted to the United States 

prior to its enactment. In a July 2013 decision, the BIA dismissed Castanon-Orbegoso’s 
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appeal, determining that the IJ correctly concluded that Castanon-Orbegoso was 

ineligible to apply for a waiver under § 212(h). The BIA further noted that CastanonOrbegoso had not challenged the IJ’s determination that he is removable for having 

committed an aggravated felony. This petition for review followed.

We have authority to review final orders of removal. See 8 U.S.C. § 1252(a). 

However, jurisdiction in this case is limited by 8 U.S.C. § 1252(a)(2)(C).

1

 We also lack 

jurisdiction, pursuant to 8 U.S.C. § 1252(a)(2)(B), to review discretionary denials of 

waivers of removal under INA § 212(h) unless the petition raises a cognizable legal or 

constitutional question concerning that determination. See Romanishyn v. Att’y Gen., 

455 F.3d 175, 180 (3d Cir. 2006). 

To the extent that Castanon-Orbegoso raises a legal question--whether he is 

statutorily eligible for a waiver of removal under INA § 212(h)--we exercise jurisdiction. 

We review the BIA’s legal decisions de novo. Id. After reviewing the record and 

arguments on appeal, we agree with the IJ and BIA that, despite his argument to the 

contrary, Castanon-Orbegoso is statutorily ineligible for a section 212(h) waiver. INA

 

1

(“No court shall have jurisdiction to review any final order of removal against an alien 

who is removable by reason of having committed a criminal offense covered in this 

section . . . 1227(a)(2)(A), [or] (B) . . . of this title”) to considering only legal and 

constitutional claims under 8 U.S.C. § 1252(a)(2)(D). 
4

§ 212(h) provides the Attorney General discretion to waive the inadmissibility of certain 

aliens if the alien establishes that inadmissibility would cause hardship to a family 

member who is a United States citizen or lawful resident. See 8 U.S.C. § 1182(h)(1)(B). 

Congress amended this waiver provision in 1996 to prohibit eligibility if an alien 

previously has been admitted as a permanent resident and has then either (a) been 

convicted of an aggravated felony, or (b) not resided in the United States for seven 

continuous years. See Illegal Immigration Reform and Immigrant Responsibility Act of 

1996 (“IIRIRA”), Pub.L. No. 104–208, div. C, § 348, 110 Stat. 3009 (amending 8 U.S.C. 

§ 1182(h)). 

Castonon-Orbegoso does not dispute that he was admitted as a lawful permanent 

resident in 1977. Nor does he dispute that he was convicted of an aggravated felony in 

2010. He argues, however, that the aggravated felony bar in § 212(h) has an 

impermissible retroactive effect because he was admitted to the United States prior to the 

enactment of the aggravated felony bar in 1996. To support his argument, CastanonOrbegoso relies primarily upon the Supreme Court’s ruling in Vartelas v. Holder, 132

S. Ct. 1479 (2012). In Vartelas, the Supreme Court held that a lawful permanent resident 

with a criminal conviction that predated the enactment of the IIRIRA was not subject to 

the travel restriction imposed by the IIRIRA. 132 S. Ct. at 1483-84. At the time Vartelas 

pleaded guilty to conspiring to make a counterfeit security, the law permitted him “to

travel abroad for brief periods without jeopardizing his resident alien status.” Id. at 1483. 

The IIRIRA, which was enacted after Vartelas entered his plea and received his sentence, 

precluded foreign travel “by lawful permanent residents who had a conviction like
5

Vartelas’.” Id. The Supreme Court determined that Vartelas’ travel abroad did not 

involve any additional criminal infraction, and therefore, as applied to Vartelas, the 

IIRIRA-imposed travel restriction would have “rested not on any continuing criminal

activity, but on a single crime committed years before IIRIRA’s enactment.” Id. at 1490. 

Vartelas is thus distinguishable from Castanon-Orbegoso’s case because Vartelas dealt 

with a restriction that was based solely on the lawful permanent resident’s pre-IIRIRA 

conduct, whereas here, Castanon-Orbegoso’s conviction post-dated the passage of the 

IIRIRA. 

We also agree with the Government that to the extent Castanon-Orbegoso argues 

that the 1996 amendments have an impermissible retroactive effect in his case because 

the bar to eligibility rests upon his admission date and not his conviction, the claim is not 

persuasive. Questions of retroactivity arise “[w]hen a case implicates a federal statute 

enacted after the events in suit.” Landgraf v. USI Film Prods., 511 U.S. 244, 280 (1994). 

Here, the past event which triggered Castanon-Orbegoso’s bar to relief was his 2010 

conviction for an aggravated felony, which occurred long after the passage of the 

IIRIRA. See Atkinson v. Att’y Gen., 479 F.3d 222, 230-31 (3d Cir. 2007) (focusing on 

the date of conviction as the important event for a retroactivity analysis). Given that the 

aggravated felony bar was in effect at the time of Castanon-Orbegoso’s conviction, the 

question of retroactivity is not implicated here.

Finally, to the extent that Castanon-Orbegoso also argues that the IJ and BIA erred 

in concluding that our ruling in Hanif precluded his eligibility for a § 212(h) waiver, we 

find the argument meritless. As noted above, in Hanif, this Court determined that the 
6

restriction on section 212(h) relief for aggravated felons does not apply to aliens who 

adjusted their status to lawful permanent residents while in the United States, as opposed 

to aliens, like Castanon-Orbegoso, who were admitted to the United States as lawful 

permanent residents. 694 F.3d at 487. This result was required because of the plain 

language of the statute. Id. at 484. As Castanon-Orbegoso does not dispute that he was 

admitted as a lawful permanent resident, the agency correctly determined that the 

aggravated felony bar applies to him.

For these reasons, we will deny the petition for review.