                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-19-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2985




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006

Recommended Citation
"Evangelista v. Atty Gen USA" (2006). 2006 Decisions. Paper 1243.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1243


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                           NOT PRECEDENTIAL


     UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


                                 No. 05-2985


                          LOUIS EVANGELISTA,
                                          Petitioner

                                      v.

            ATTORNEY GENERAL OF THE UNITED STATES,
                                     Respondent


                ON PETITION FOR REVIEW OF ORDERS
              OF THE BOARD OF IMMIGRATION APPEALS
                        (INS No. A12 352 319)
REAL ID ACT TRANSFER FROM THE UNITED STATES DISTRICT COURT FOR
             THE EASTERN DISTRICT OF PENNSYLVANIA


                 Submitted Under Third Circuit LAR 34.1(a)
                              April 18, 2006

         Before: SLOVITER, AMBRO and MICHEL * , Circuit Judges


                           (Filed: April 19, 2006 )


                                  OPINION




            *
             Hon. Paul R. Michel, Chief Judge of the United States
         Court of Appeals for the Federal Circuit, sitting by
         designation.
MICHEL, Circuit Judge.

      Louis Evangelista petitions for review of the January 19, 2005 decision of the

Board of Immigration Appeals (“BIA” or “Board”), denying his motion for

reconsideration of the Board’s October 14, 2004 decision denying a motion to reopen his

removal case. Because we find that petitioner’s motion for reconsideration was properly

denied pursuant to 8 C.F.R. § 1003.2(c)(2), we deny the petition for review.

      Evangelista immigrated from Italy to the United States on or about October 26,

1961. In December 1994, Evangelista and various members of his family were indicted

in the United States District Court of the Eastern District of New York and charged with

(1) conspiracy to impede the IRS in collection of federal income and payroll taxes in

violation of 18 U.S.C. § 371; (2) failure to pay income/FICA taxes in violation of 26

U.S.C. § 7202; and (3) attempt to evade or defeat tax in violation of 26 U.S.C. § 7201.

He pled not guilty on February 28, 1996. On October 29, 1996, a jury convicted him on

all counts. He was sentenced to a term of imprisonment of 51 months, which he began

serving after his conviction was upheld on appeal, United States v. Evangelista, 122 F.3d

112 (2d Cir. 1997), cert. denied, 522 U.S. 1114 (1998).

      On April 14, 1999, the Immigration and Naturalization Service (now part of the

Department of Homeland Security) filed a Notice to Appear, charging that Evangelista

was subject to removal as an aggravated felon pursuant to Section 237(a)(2)(A)(iii), 8

U.S.C. § 1227(a)(2)(A)(iii), because the revenue lost to the government ($335,830)



                                            2
exceeded $10,000. On April 11, 2000, the Immigration Judge (“IJ”) rendered a decision

finding petitioner removable and not eligible for a waiver of deportability under former

Section 212 (c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c).1 His motion

for reconsideration was denied on June 2, 2000. The BIA affirmed on October 25, 2000.

       On September 13, 2001, Evangelista filed a petition for writ of habeas corpus in

the United States District Court for the Eastern District of New York. On November 22,

2002, his habeas petition was dismissed. Evangelista v. Ashcroft, 232 F. Supp.2d 30

(E.D.N.Y. 2002). Judge Leonard D. Wexler rejected Evangelista’s arguments that he was

not an aggravated felon within the meaning of the statute and that he remained eligible for

discretionary relief under former Section 212(c). Judge Wexler distinguished petitioner’s

situation from a case where an individual accepted a plea agreement in reliance on his

continued eligibility for relief from deportation under Section 212(c). Id. at 36. Compare



                 1
                   Under former Section 212(c), an alien who had been a
              lawful permanent resident for at least seven years could
              request discretionary relief from deportation, even if
              convicted of an aggravated felony, as long as the term of
              imprisonment served was less than five years. On April 24,
              1996, the passage of Section 440(d) of the Antiterrorism and
              Effective Death Penalty Act (“AEDPA”) rendered all
              aggravated felons ineligible for relief under Section 212(c),
              regardless of the length of time served. Shortly thereafter, on
              September 30, 1996, Section 212(c) was repealed by Section
              304 of the Illegal Immigration Reform and Immigrant
              Responsibility Act of 1996 (“IIRIRA”) and replaced with
              “cancellation of removal” proceedings, which are not
              available to aggravated felons, as set forth in Section 240A, 8
              U.S.C. § 1229b.

                                             3
St. Cyr v. INS, 229 F.3d 406, 418 (2d Cir. 2000) (finding it impermissible to retroactively

apply the bars to Section 212(c) relief to individuals who pled guilty or nolo contendere

before the enactment of Section 440(d) of AEDPA and Section 304 of IIRIRA), aff’d.,

533 U.S. 289 (2001), with Domond v. INS, 244 F.3d 81 (2d Cir. 2001) (finding an

individual whose criminal conduct took place prior to the statutory changes, but pled

guilty afterwards, not entitled to a Section 212(c) hearing).

       On February 23, 2004, the United States Court of Appeals for the Second Circuit

affirmed, finding Rankine v. Reno, 319 F.3d 93, 102 (2d Cir. 2003) – which held that the

repeal of Section 212(c) did not have an impermissibly retroactive effect when applied to

an alien who pled not guilty, proceeded to trial and was convicted of an aggravated felony

before the passage of AEDPA or IIRIRA, but was facing removal proceedings initiated

thereafter – directly on point. Evangelista v. Ashcroft, 359 F.3d 145 (2d Cir. 2004), cert.

denied, 543 U.S. 1145 (2005). The court reasoned that, unlike a guilty plea, which would

have immediately rendered the petitioner deportable, going to trial was “a decision that,

standing alone, had no impact on [his] immigration status,” such that he could not have

been acting in reliance on any anticipated discretionary relief that could have been

available under Section 212(c). Id. at 155. Indeed, because Evangelista was convicted

after the passage of AEDPA and IIRIRA, the court found the reasoning of Rankine even

more applicable. Id. at 155, n.3.




                                              4
       In August 2004, Evangelista filed a motion asking the BIA to reopen his case in

light of the recent holdings in Restrepo v. McElroy, 369 F.3d 627 (2d Cir. 2004) and

Ponnapula v. Ashcroft, 373 F.3d 480 (3d Cir. 2004). On October 14, 2004, his motion

was denied as untimely pursuant to 8 C.F.R. § 1003.2(c)(2). The Board also found that

reopening the case on its own motion was not warranted because, on the merits,

Evangelista had failed to establish that he would have been eligible to file an

“affirmative” application for Section 212(c) relief or that he had rejected a misdemeanor

plea agreement in reasonable reliance that he would thereby be eligible for relief from

deportation, even if convicted.

       On November 10, 2004, Evangelista filed a motion to reconsider, submitting

various affidavits as evidence that he had rejected a plea agreement. On January 19,

2005, the Board denied the motion because, although labeled a motion to reconsider, it

failed to allege any errors of law or fact in the prior decision based on the evidence that

was previously presented. Indeed, since new evidence was presented, it was more

properly characterized as a motion to reopen. As only one such motion was allowed

under 8 C.F.R. § 1003.2(c)(2) and Evangelista had already filed one earlier, the Board

denied the motion on this basis as well.

       On May 6, 2005, Evangelista filed another petition for writ of habeas corpus, this

time in the United States District Court for the Eastern District of Pennsylvania, seeking




                                              5
review of the Board’s decisions of October 14, 2004 and January 19, 2005. On June 9,

2005, the action was transferred to this court pursuant to the REAL ID Act.

       The parties focus exclusively on the merits of whether Evangelista is (or should

be) eligible for Section 212(c) relief, including the subsidiary question of whether his

current habeas petition is barred by the Second Circuit’s denial of his earlier habeas

petition under the doctrines of res judicata or collateral estoppel. They completely ignore

the dispositive issue.

       The BIA denied Evangelista’s motion to reopen as untimely pursuant to 8 C.F.R.

§ 1003.2(c)(2). Petitioner does not dispute that his August 2004 motion was not filed

within 90 days of the final administrative decision rendered in the proceeding sought to

be reopened. Thus, insofar as the Board was denying a motion filed under this section,

we must affirm its order of October 14, 2004. Because 8 C.F.R. § 1003.2(c)(2) further

provides that “a party may file only one motion to reopen deportation or exclusion

proceedings,” Evangelista’s second motion to reopen was also properly rejected by the

Board’s order of January 19, 2005.

       To the extent that Evangelista was requesting a sua sponte reopening or

reconsideration of the case, the decision to grant or deny such a request is “within the

discretion of the Board.” 8 C.F.R. § 1003.2(a). No abuse of discretion has been shown.

The Board correctly noted that, even if it were to reconsider the case in light of Restrepo

and Ponnapula, Evangelista had failed to establish that his factual circumstances were



                                             6
similar. Even the newly-submitted affidavits appended to his November 2004 motion do

not demonstrate that, like the petitioner in Ponnapula, he rejected a misdemeanor plea

agreement (which would have carried no immigration consequences) in reliance of his

anticipated eligibility for relief under Section 212(c) if he was later convicted of a felony.

       For the aforementioned reasons, we deny the petition.




                                              7
