                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                    No. 11-4367
                                   _____________

                             OSCAR GENAO GUZMAN,

                                                        Petitioner

                                          v.

                ATTORNEY GENERAL OF THE UNITED STATES,

                                                       Respondent



                     On Petition for Review of an Order of the
                           Board of Immigration Appeals
                             (Board No. A043-628-243)
               Immigration Judge: Honorable Margaret R. Reichenberg


                       Submitted under Third Circuit LAR 34.1(a)
                                on September 11, 2012

               BEFORE: SCIRICA, ROTH and BARRY, Circuit Judges

                           (Opinion filed: October 4, 2012 )


                                    OPINION


ROTH, Circuit Judge:

      Oscar Genao Guzman filed a petition for review of a final order of dismissal

issued by the Board of Immigration Appeals (BIA). For the reasons that follow, we will
deny the petition.

       I. Background

       Guzman, a citizen of the Dominican Republic, entered the United States as a

lawful permanent resident on August 28, 1992. He was arrested in Rhode Island on

December 2, 1993, and charged with possession of cocaine with intent to deliver.

Guzman left the state for thirteen years and did not answer the charges until he returned

in 2006. On October 5, 2006, the state court dismissed the charge of possession with

intent to deliver a controlled substance, and Guzman pled nolo contendere to an amended

charge of frequenting a narcotics nuisance. He was sentenced to one year probation.

       On May 16, 2010, Guzman arrived at Newark Liberty International Airport after a

trip to the Dominican Republic and attempted to enter the United States as a lawful

permanent resident. He was detained and subsequently served with a Notice to Appear,

charging that he was subject to removal under 8 U.S.C. § 1182(a)(2)(A)(i)(II). On

November 15, 2010, he filed a motion with the Superior Court in Rhode Island to amend

the date of his criminal conviction. The court granted the motion and entered the

judgment and disposition nunc pro tunc to March 29, 1996.

       In his removal proceedings, Guzman requested relief under former Immigration

and Nationality Act § 212(c), 8 U.S.C. § 1182(c) (repealed 1996). The Immigration

Judge (IJ) denied his section 212(c) application and found him removable. The BIA

dismissed Guzman‟s appeal of this decision on November 29, 2011, issuing a final order

of removal.

       Guzman filed a timely petition for review in this Court and moved to stay

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removal. The government moved to dismiss the petition for lack of jurisdiction. We

denied the motion to dismiss and the motion for a stay of removal.

       II. Jurisdiction and Standard of Review

       The government contests our jurisdiction to hear this petition for review, arguing

that 8 U.S.C. § 1252(a)(2)(C) deprives us of “jurisdiction to review any final order of

removal against an alien who is removable by reason of having committed a criminal

offense covered in section 1182(a)(2).” 8 U.S.C. § 1252(a)(2)(C). Because Guzman was

convicted of a controlled substance violation covered under section 1182(a)(2), section

1252(a)(2)(C) would divest us of jurisdiction over this petition.

       However, section 1252(a)(2)(D) permits judicial review of constitutional claims

and questions of law raised in petitions otherwise not reviewable under section

1252(a)(2)(C). We have interpreted questions of law to encompass “pure questions of

law” and “issues of application of law to fact, where the facts are undisputed and not the

subject of challenge.” Kamara v. Att’y Gen., 420 F.3d 202, 211 (3d Cir. 2005) (internal

quotation marks and citations omitted). Guzman raises one issue in his petition: whether

the BIA and IJ erred as a matter of law in holding that an amended date of conviction

entered nunc pro tunc to March 29, 1996, did not render him eligible for a section 212(c)

waiver. Because this is an issue of application of law to fact and the facts are undisputed,

we have jurisdiction under section 1252(a)(2)(D).

       We “review the BIA‟s legal decisions de novo . . . but will afford Chevron

deference to the BIA‟s reasonable interpretations of statutes which it is charged with

administering.” Id. (citations omitted).

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       III. Discussion

       Guzman argues that he should be eligible for a discretionary waiver of deportation

under former section 212(c) because his date of conviction was entered nunc pro tunc to

March 29, 1996, which precedes the date when the repeal of section 212(c) became

effective. We find that Guzman is not eligible for this waiver.

       Section 212(c), prior to its repeal by the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996 (IIRIRA) (effective April 1, 1997), gave the

Attorney General discretion to grant a waiver of deportation for lawful permanent

residents under certain circumstances. INA § 212(c), 8 U.S.C. § 1182(c) (repealed 1996).

Since its repeal, section 212(c) relief has remained available for those aliens “whose

convictions were obtained through plea agreements and who, notwithstanding these

convictions, would have been eligible for section 212(c) relief at the time of their plea

under the law in effect.” INS v. St. Cyr, 533 U.S. 289, 326 (2001); see also 8 C.F.R. §

1212.3(h).

       Because Guzman entered his plea on October 5, 2006, more than nine years after

the repeal of section 212(c), he was not eligible for section 212(c) relief at the time of his

plea and is not eligible now. In St. Cyr, the Supreme Court declined to apply the repeal

of section 212(c) retroactively “[b]ecause respondent, and other aliens like him, almost

certainly relied upon th[e] likelihood [of receiving § 212(c) relief] in deciding whether to

forgo their right to a trial,” and thus eliminating the availability of this relief would have

an impermissible retroactive effect. St. Cyr, 533 U.S. at 325. Unlike the respondent in St.

Cyr, however, Guzman could not have relied upon the possibility of section 212(c) relief

                                               4
when he made his plea. Therefore, applying the repeal of section 212(c) in this case

would not have an impermissible retroactive effect.

       Guzman argues that the date of his conviction governs whether he is eligible for

section 212(c) relief and that his date of conviction is 2006. However, we conclude that

the changing of the date of his conviction from 2006 to 1996 nunc pro tunc should be

considered in the same light as the vacating of a conviction. The BIA has addressed the

immigration consequences of a vacatur of conviction, holding that “[i]f . . . a court

vacates a conviction for reasons unrelated to the merits of the underlying criminal

proceedings, the respondent remains „convicted‟ for immigration purposes.” In re

Pickering, 23 I&N Dec. 621, 625 (BIA 2003), rev’d on other grounds, Pickering v.

Gonzales, 465 F.3d 263 (6th Cir. 2006). The state court‟s amended judgment in this case

should be treated similarly. There is no dispute that the state court granted Guzman‟s

motion to change the date of conviction nunc pro tunc solely for immigration purposes.

Because the judgment was amended for reasons unrelated to the merits of the underlying

criminal proceedings, 2006 remains the date of conviction for immigration purposes, and

he is not eligible for a section 212(c) waiver.

       IV. Conclusion

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




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