                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-11-2008

Francois v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4757




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                                                              NOT PRECEDENTIAL


                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                 __________

                                     No. 06-4757
                                     __________

                                 ROGER FRANCOIS,
                                          Petitioner,

                                          vs.

                             ATTORNEY GENERAL OF
                              THE UNITED STATES,
                                          Respondent.
                                  __________

                       On Petition for Review of an Order of the
                            Board of Immigration Appeals
                                 BIA No. A35-420-265
                         Immigration Judge: Robert P. Owens
                                     ___________

                     Submitted Under Third Circuit L.A.R. 34.1(a)
                                 January 14, 2008
                                   ___________

      Before: FUENTES and JORDAN, Circuit Judges, and RUFE, District Judge *
                       (Opinion Filed: February 11, 2008)
                                 ___________

                                      OPINION
                                     ___________




      *
       The Honorable Cynthia M. Rufe, District Judge for the Eastern District of
Pennsylvania, sitting by designation.
FUENTES, Circuit Judge:

      Roger Francois (“Francois”) petitions for review of an order of the Board of

Immigration Appeals (“BIA”), which affirmed an order of an Immigration Judge (“IJ”),

finding him removable and denying his application for a waiver of removability under

former § 212(c) of the Immigration and Nationality Act (“INA”), codified at 8 U.S.C. §

1182(c) (repealed 1996). For the following reasons, the petition will be denied.

                                            I.

      Francois is a 42 year old citizen of Trinidad and Tobago and a lawful permanent

resident of the United States. He was admitted to this country in 1976. In 1983,

Francois was convicted in the state of New York for first degree robbery, first degree

burglary, and third degree larceny. See N.Y. Penal § 160.15 (McKinney 1983)

(pertaining to robbery in the first degree); N.Y. Penal § 140.30 (McKinney 1983)

(pertaining to burglary in the first degree); N.Y. Penal § 155.35 (McKinney 1983)

(pertaining to grand larceny in the third degree). In 2002, Francois was convicted in the

state of Connecticut of fourth degree larceny and possession of a shoplifting device.1 See

Conn. Gen. Stat. Ann. § 53a-125 (West 2002) (pertaining to larceny); Conn. Gen. Stat.

Ann. § 53a-127f (West 2002) (pertaining to possession of a shoplifting device).


      1
       It should be noted that, for reasons discussed below, Francois’s counsel disputes
whether Francois was actually convicted of these offenses and, if so, whether those
convictions were obtained illegally. See infra note 3.

                                           -2-
      In 2006, Francois was served with a Notice to Appear charging him with being

removable as an aggravated felon for committing a “crime of violence” under 8 U.S.C. §

1101(a)(43)(F) and a “theft offense” under 8 U.S.C. § 1101(a)(43)(G). See also 8 U.S.C.

§ 1227(a)(2)(A)(iii) (providing that an alien convicted of an aggravated felony is

removable from the United States). Francois was also charged with removability for the

commission of two crimes involving moral turpitude. See 8 U.S.C. § 1227(a)(2)(A)(ii)

(providing that aliens convicted of two or more crimes involving moral turpitude, not

arising out of a single scheme of criminal misconduct, are removable).

      At his hearing before the IJ, Francois admitted the existence of his New York

convictions, but declined to admit the Connecticut convictions because they were subject

to a collateral attack. (Administrative Record (“A.R.”) 48, 257.) Francois conceded,

though, that he was convicted of an aggravated felony under both the “crime of violence”

and “theft offense” definitions. (A.R. 48-49, 257.) He denied, however, that he was

convicted of two crimes involving moral turpitude based upon the New York and

Connecticut convictions. (A.R. 49.)

      The IJ then addressed Francois’s application for a waiver of removal under former

§ 212(c). Citing two BIA decisions, Matter of Blake, 23 I. & N. Dec. 722 (BIA 2005)

and Matter of Brieva, 23 I. & N. 766 (BIA 2005), the IJ found Francois ineligible for §

212(c) relief. (A.R. 98-100.) Accordingly, the IJ ordered Francois removed to Trinidad

and Tobago. (A.R. 116.) On appeal, the BIA, relying on Brieva, affirmed the IJ’s order


                                            -3-
of removal. (A.R. 2-5.) Francois now petitions this Court for review.



                                              II.

       In his petition, Francois challenges the legal basis for the BIA’s denial of his

application for § 212(c) relief. Because Francois’s petition raises a question of law, we

have jurisdiction to review his petition under 8 U.S.C. § 1252(a)(2)(D) (providing that

we retain the jurisdiction to review “constitutional claims and questions of law”). See

Papageorgiou v. Gonzales, 413 F.3d 356, 358 (3d Cir. 2006). Where, as here, the BIA

issued a separate decision and did not adopt any portion of the IJ’s decision, we review

only the BIA’s decision. See Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir. 2006)

(citations omitted). The BIA’s legal conclusions are reviewed de novo. See Smriko v.

Ashcroft, 387 F.3d 279, 282 (3d Cir. 2004).

                                            III.

       Under former § 212(c) of the INA, the Attorney General possessed the discretion

to waive the exclusion of certain lawful permanent residents who sought reentry into the

United States. This section was repealed in 1996 when Congress passed the Illegal

Immigration Reform and Immigrant Responsibility Act (“IIRIRA”), Pub. L. 104-208

(1996). The Supreme Court later held that Congress did not intend for IIRIRA to apply

retroactively to lawful permanent residents who pled guilty to crimes prior to its passage.

See INS v. St. Cyr, 533 U.S. 289, 326 (2001). In response to St. Cyr, the Immigration


                                             -4-
and Naturalization Service (now, the Department of Homeland Security) allows lawful

permanent residents with convictions entered before April 1, 1997 to apply for relief

under § 212(c). See 8 C.F.R. 1212(h)(3).

       On the face of the statute, § 212(c) only applied to aliens who were returning from

a temporary journey overseas and were facing exclusion from admission to the United

States under § 212(a) of the INA, 8 U.S.C. § 1182(a).2 As such, cases initially applying

§ 212(c) did not extend its benefits to aliens who never left this country. See Matter of

Arias-Uribe, 13 I. & N. Dec. 696, 699-700 (BIA 1971); Matter of M - - - , 5 I. & N. 642,

647 (BIA 1954). In Francis v. INS, 532 F.2d 268, 272 (2d Cir. 1976), the Second Circuit

determined that this result “create[d] two classes of aliens identical in every respect

except for the fact that members of one class have departed and returned to this country

at some point after they became deportable.” The Second Circuit held that this disparate

treatment was not rationally related to any legitimate purpose and therefore violated the

petitioner’s Fifth Amendment equal protection rights. Id. The BIA and our Circuit



       2
           At the time of its repeal, § 212(c) stated:

                 Aliens 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 without regard to the provisions of subsection (a)
                 [(establishing classes of aliens to be excluded from admission to the
                 United States)]....

8 U.S.C. § 1182(c) (repealed 1996).

                                                 -5-
eventually adopted this holding. see In re Silva, 16 I. & N. Dec. 26, 30 (BIA 1976);

Katsis v. INS, 997 F.2d 1067, 1070 (3d Cir. 1993).

       After Francis extended § 212(c) to aliens who never left the United States, the

BIA granted such relief only where the alien’s ground for removability had a comparable

ground of inadmissibility under § 212(a). See Matter of Meza, 20 I. & N. Dec. 257, 258-

59 (BIA 1991); Matter of Wadud, 19 I. & N. Dec. 182, 184-85 (BIA 1984); Matter of

Grenados, 16 I. & N. Dec. 726, 728 (BIA 1979). However, after the Supreme Court’s

decision in St. Cyr, the Department of Justice (“DoJ”) promulgated amendments to its

regulations intended to govern the application of former § 212(c). In one of those

amendments, the DoJ noted that the discretionary waiver available under § 212(c) is not

available “if the alien is deportable ... or removable ... on a ground which does not have a

statutory counterpart in section 212 of the [INA].” 8 C.F.R. § 1212.3(f)(5).

       A spate of decisions from the BIA applying this rule followed. Two of those

decisions initially became the touchstone for courts to apply when faced with a statutory

counterpart analysis under § 212(c). In Matter of Blake, 23 I. & N. Dec. at 723, the BIA

held that an alien removable for the aggravated felony of “sexual abuse of a minor” was

ineligible for § 212(c) relief because no comparable grounds for inadmissibility existed

under § 212(a). The petitioner in Blake argued that his conviction was comparable to the

ground rendering inadmissible those aliens convicted of crimes involving moral turpitude

under § 212(a), 8 U.S.C. § 1182(a)(2)(A)(i)(I). Id. The BIA disagreed, holding that


                                            -6-
while “the coverage of the offenses described [in the removal and inadmissibility

provisions] need not be a perfect match in order to be ‘statutory counterparts’ ....

Congress [must have] employed similar language to describe substantially equivalent

categories of offenses,” id. Because the moral turpitude ground of inadmissibility under

§ 212(a) addressed a “much broader category of offenses than the aggravated felony

sexual abuse of a minor charge,” the BIA held that the grounds were not statutorily

equivalent. Id. at 728. In Matter of Brieva, 23 I. & N. Dec. at 770-73, the BIA used the

same analysis to hold that the ground of removability for the aggravated felony of “crime

of violence” was not statutorily equivalent to the ground of inadmissibility for

committing a crime of moral turpitude.

                                            IV.

       Francois argues that the rule created by Blake and Brieva, upon which the BIA

based its holding, is incorrect. He claims that Blake and Brieva conflict with settled

precedent and represent an incorrect statement of law. Francois contends that the BIA

must look, instead, to the actual offenses he was convicted of – e.g., burglary and robbery

– and not the offenses charged by the Government – e.g., “crime of violence” and “theft

offense” – in determining whether the ground of removability has a comparable ground

of inadmissibility. If the BIA did so, Francois concludes, it would have found the

convictions underlying his grounds for removability were also crimes involving moral

turpitude, which is a ground of inadmissibility under § 212(a). Francois further argues


                                             -7-
that the BIA’s interpretation of Blake and Brieva actually create the same equal

protection problem identified in Francis by denying an alien in removal proceedings the

same § 212(c) relief available to an alien in inadmissibility proceedings.

       After Francois submitted his brief in this matter, this Circuit squarely addressed

his arguments in Caroleo v. Gonzales, 476 F.3d 158 (3d Cir. 2007). The petitioner in

Caroleo was charged as removable for being convicted of a crime of violence. He

sought a § 212(c) waiver because his underlying conviction, attempted murder, was also

a crime of moral turpitude. We rejected this request, holding that the aggravated felony

of crime of violence had no statutory counterpart in the grounds for inadmissibility under

§ 212(a). In doing so, we held that “while it is true that the underlying crime of

attempted murder can be characterized as a crime involving moral turpitude for the

purposes of determining removability ... the statutory counterpart prerequisite for

§ 212(c) relief from removal focuses, quite differently, upon the statutory ground for

removal – here an aggravated felony ‘crime of violence.’” Id. at 164-65 (emphasis in

original) (internal citations omitted). We held that “the underlying crime for which

[petitioner] was convicted plays no role” in determining a lawful permanent resident’s

eligibility for § 212(c) relief. Id. at 168.

       In Caroleo, we further rejected the notion that Blake and Brieva raise any

additional equal protection concerns such as those addressed in Francis. We held that

whether a petitioner’s underlying criminal conviction would qualify him for


                                               -8-
inadmissibility under § 212(a) is irrelevant for equal protection purposes. Id. at 165.

What mattered, we held, “was the statutory ground in the INA under which the removal

was sought.” Id. This focus on the statutory ground for removal, instead of the

petitioner’s underlying criminal conviction, is intended to combat the “arbitrary

distinction that violates equal protection” that would inhere where “‘the only distinction

between the two classes of persons the statute created was that one class of individuals

had traveled abroad and returned, and the other had not.’” Id. at 165 (quoting Komarenko

v. INS, 35 F.3d 432, 435 (9th Cir. 1994)). Furthermore, we stated that, if we were to

look at the underlying conviction, “‘we would extend discretionary review to every

ground for deportation that could constitute the essential elements of a crime involving

moral turpitude.’” Id. at 166 (quoting Komarenko, 35 F.3d at 435) (internal citation and

quotation omitted).

       Francois also raises an additional argument. He contends that the analysis in

Blake and Brieva is incorrect because it fails to account for the definition of “crime of

violence” found in 18 U.S.C. § 16. This section defines a crime of violence as:

              (a)     an offense that has as an element the use, attempted use,
                      or threatened use of physical force against the person or
                      property of another, or

              (b)     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. Francois argues that the BIA erred in relying on the rule in Brieva

                                              -9-
because that decision involved § 16(b), while his crime, he contends, falls under § 16(a).

Additionally, Francois argues that any crime that falls under the definition of § 16(a) is

inherently a crime of moral turpitude and, therefore, his convictions have a statutory

counterpart in § 212(a).

       This argument must be rejected because it merely reiterates Francois’s contention,

which we rejected above, that we must consider the facts underlying his convictions.

Francois was convicted of first degree robbery in New York, a charge which he does not

dispute constitutes a “crime of violence.” That statutory ground has no counterpart in

§ 212(a), as we expressly noted in Caroleo. See 476 F.3d at 165 (“[T]he aggravated

felony ‘crime of violence’ ground for removal is not a statutory counterpart of INA §

212(a)'s ‘crime involving moral turpitude.’” (emphasis in original)). We must therefore

deny his request for a waiver of removability under § 212(c). Accordingly, we will deny

Francois’s petition.3




       3
         Francois also challenges the sufficiency of evidence produced by the government
to the IJ to prove the 2002 convictions in Connecticut. He also claims that the
convictions were obtained improperly because state officials failed to advise him of the
immigration consequences of pleading guilty to those offenses. Since we hold that
Francois is removable for his New York conviction for first degree robbery, we need not
address the issues he raises regarding the Connecticut convictions.

                                            -10-
