05-4194-ag
Cyrus v. Keisler

                                   UNITED STATES COURT OF APPEALS
                                      FOR THE SECOND CIRCUIT
                                                     August Term, 2006

(Argued: May 22, 2007                                                                     Decided: October 19, 2007)
                                                  Docket No. 05-4194-ag

GEORGE DESMOND CYRUS,

                   Petitioner,

                   v.

PETER D. KEISLER,1 Attorney General of the United States,

                   Respondent.

Before: WALKER and CABRANES, Circuit Judges, and PAULEY,2 District Judge.

         Petitioner seeks review of an order of the Board of Immigration Appeals (“BIA”) denying his

motion to reopen removal proceedings so that he could apply for a waiver of inadmissability under

former section 212(c) of the Immigration and Nationality Act (“INA”), in conjunction with an

application for adjustment of status under section 245(a) of the INA. We conclude (1) that the BIA

was correct in determining that petitioner is not eligible for a waiver of inadmissibility and is therefore

not entitled to reopening pursuant to 8 C.F.R. § 1003.44, and (2) that we lack jurisdiction to review the

BIA’s decision not to sua sponte reopen petitioner’s removal proceedings pursuant to 8 C.F.R. §

1003.2(a).

         Petition for review is (1) denied in part insofar as it seeks to reopen removal proceedings so that

petitioner can apply for waiver of inadmissibility under former section 212(c) of the INA, and (2)

         1
         Pursuant to F ederal Rule of A ppellate P rocedure 43(c)(2), Acting Attorney G eneral Peter D. K eisler is
automatically substituted for former Attorney General Alberto R. Gonzales as a respondent in this case.

         2
            The Honorable William H. Pauley III, of the United States District Court for the Southern District of New
York, sitting by designation.

                                                               1
dismissed in part insofar as it seeks review of the BIA’s decision not to reopen sua sponte the removal

proceedings.

                                                MATTHEW L. GUADAGNO (Kerry W. Bretz and Jules E. Coven,
                                                     on the brief), Bretz & Coven, LLP, New York, NY, for
                                                     Petitioner.

                                                DIONE M. ENEA , Special Assistant United States Attorney
                                                      (Roslynn R. Mauskopf, United States Attorney, and Scott
                                                      Dunn, Assistant United States Attorney, on the brief),
                                                      United States Attorney’s Office for the Eastern District
                                                      of New York, Brooklyn, NY, for Respondent.
PER CURIAM:

         Petitioner George Desmond Cyrus, a native and citizen of Trinidad & Tobago, seeks review of

an order of the Board of Immigration Appeals (“BIA” or “Board”) denying his motion to reopen

removal proceedings. In re George Desmond Cyrus, No. A 34 341 763 (B.I.A. July 7, 2005). Cyrus lawfully

entered the United States in 1975 and became a lawful permanent resident. On November 4, 1991,

Cyrus was convicted in the Supreme Court of the State of New York for criminal possession of a

firearm.3 On September 29, 1998, the then-Immigration and Naturalization Service charged Cyrus with

deportability under section 237(a)(2)(C) of the INA, 8 U.S.C. § 1227(a)(2)(C),4 on the basis of his 1991

conviction for criminal firearm possession, and began removal proceedings. During the removal

proceedings before the IJ, Cyrus conceded deportability on the basis of his firearm conviction, but


         3
             In 1988, Cyrus had pleaded guilty to one misdemeanor count of sexual misconduct and one misdemeanor
count of assault. He served a sentence of sixty days’ incarceration in jail for each of these offenses. In 1989, Cyrus
pleaded guilty to one misdem eanor cou nt for the criminal sale of marijuana. In 1991, he pleaded guilty to felony firearm
possession charges for which he received a sentence of one year’s imprisonment. Finally, in August 1996, he was found
guilty, following a bench trial, of felony assault and was senten ced to imprisonme nt for three to six years.

         4
            Pursuant to section 2 37(a)(2)(C ), an alien shall be removed “if the alien is within one or more of the following
classes of dep ortable aliens,” including:

                   Any alien who at any time after admission is convicted under any law of purchasing, selling, offering
                   for sale, exchanging, using, owning, possessing, or carrying, or of attem pting or conspiring to
                   purchase, sell, offer for sale, exchange, use, ow n, possess, or carry, any weap on, part, or accessory
                   which is a firearm or destructive device (as defined in section 921(a) of Title 18) in violation of any
                   law is deportable.

8 U.S.C. § 1227(a)(2)(C).

                                                                2
Cyrus sought cancellation of removal under section 240A(a) of the INA, 8 U.S.C. § 1229b(a). 5 In these

so-called “removal” proceedings, the IJ found on April 22, 1999 that Cyrus was deportable on the basis

of the firearms conviction. Cyrus had been convicted of other crimes, but only his firearm conviction

resulted in a finding of inadmissability. The IJ further found that Cyrus was ineligible for cancellation

of removal pursuant to section 240A(a) on the basis of his prior conviction for the criminal sale of

marijuana, which would be classified as an aggravated felony under the INA.

          Cyrus filed a timely appeal from the IJ’s decision on April 28, 1999, in which he did not

challenge the IJ’s finding of inadmissibility but argued that he should be permitted to file for a waiver

of inadmissibility under former section 212(c) of the INA, 8 U.S.C. § 1182(c) (repealed 1996) (“section

212(c)”).6 On September 10, 1999, the BIA concluded that it lacked jurisdiction to hear Cyrus’s


          5
              Sec tion 240A (a) of th e IN A, 8 U.S.C. § 1229b(a), provides in pertinent part:

                     The Attorney G eneral m ay cancel rem oval in the case of an alien who is inadm issible or deportable
                     from the United States if the alien—

                               (1) has been an alien lawfu lly admitted for perm anent residence for not less than 5 years,

                               (2) has resid ed in the United S tates c ontinuou sly for 7 ye ars after having been adm itted in
                               any status, and

                               (3) has not been convicted of any aggravated felony .

          6
            Form er IN A sec tion 212 (c) granted the A ttorney General d iscretion to grant w aiver of inadm issibility relief to
certain legal permanent residents. Section 212(c) was repealed in 1996 by the Illegal Imm igration Reform and Immigrant
Respon sibility A ct of 1 996 (“IIRIRA ”), but sectio n 212(c) relief rem ains available to aliens who pleade d gu ilty to certain
crim es prior to th e enactm ent of IIRIRA and who otherw ise would have been eligible for that relief. See INS v. St. Cyr,
533 U.S. 289, 326 (2001). Regulations of the Department of Homeland Security provide that section 212(c) relief
rem ains available fo r those who plead ed guilty prior to N ovember 29, 1990. See 8 C.F.R. § 1212.3(f)(4)(i). The tortured
history of the availability of this form of relief is recounted in Blake v. Carbone, 489 F.3d 88, 93–98 (2d C ir. 2007).

          Section 212(c) provides:

                     Aliens lawfully admitted for permanent resident 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) of this section (other than paragraphs (3) and (9)(C)). Nothing contained
                     in this su bsec tion sh all limit the autho rity of the A ttorney G eneral to exercise th e discretion vested in
                     him under section 1181(b) of this title. The first sentence of this subsection shall not apply to an alien
                     who has been convicted of one or more aggravated felonies and has served for such felony or felonies
                     a term of im prisonme nt of at least 5 years.



                                                                    3
arguments because “relief under section 212(c) [was] not available in removal proceedings.” In re George

Desmond Cyrus, No. A 34 341 763 (B.I.A. July 7, 2005). He filed a motion to reopen removal

proceedings on May 18, 20007 and, on May 27, 2000, filed a petition for a writ of habeas corpus in the

United States District Court for the Eastern District of New York. On September 5, 2000, the BIA

denied his motion to reopen as untimely. On March 8, 2002, the District Court denied his petition for

a writ of habeas corpus on the ground that he was ineligible for relief from removal under section

212(c). Cyrus v. Ashcroft, No. 00-CV-3621, 2002 WL 377050, *2 (E.D.N.Y Mar. 8, 2002). The District

Court concluded that Cyrus’s conviction for possession of a firearm rendered section 212(c) relief

unavailable to him. Id. Cyrus did not appeal the District Court’s decision.

         On April 26, 2005, almost six years after the BIA’s initial adverse ruling, Cyrus filed a second

motion to reopen the removal proceedings pursuant to 8 C.F.R. § 1003.44,8 which permits reopening in

order to apply for section 212(c) relief, and 8 C.F.R. § 1003.2(a),9 which authorizes sua sponte reopening


         8 U.S.C. § 118 2(c) (repealed 1996).

         7
           The record indicates a discrepancy between the date on which Cyrus claims to have filed the motion, April 18,
2000, and the date it was received by the BIA, May 18, 2000. Because the motion to reopen had to be filed by
December 9, 1999 to be timely pursuant to 8 C.F.R. § 1003.2(c)(2), this discrepancy is not significant, inasmuch as the
motion w as over four m onths overdue as of the earlier of the two d ates.

         8
             That regulation prov ides in pe rtinent part:

                     This section applies to certain aliens who formerly were lawful permanent residents, who are subject
                     to an administratively final order of deportation or removal, and who are eligible to apply for relief
                     und er form er section 212(c) of the [Im migration and N aturalization] Ac t and 8 C.F.R . § 1212.3 with
                     respect to convictions obtained by plea agreements reached prior to a verdict at trial prior to April 1,
                     1997. A special motion to seek relief under section 212(c) of the Act will be adjudicated under the
                     stand ards of this section and 8 C.F.R. § 1212.3. This section is not applicable with respect to any
                     conviction entered after trial.

8 C.F .R. § 1003.44(a).

         9
              Pursuant to 8 C.F.R. § 1003.2(a), the BIA may
                   at any tim e reo pen or reconsider on its own m otion any case in wh ich it has rendered a d ecision. A
                   request to reopen or reconsider any case in which a decision has been made by the Board, which
                   request is made by the [United States Citizenship and Imm igration] Service, or by the party affected
                   by the decision, must be in the form of a written motion to the Board. The decision to grant or deny a
                   motion to reo pen or reconsider is with in the discretion of th e Board, subject to the restric tions o f this
                   section. T he Board has discretion to d eny a motion to reopen even if the party m oving h as made out a


                                                                  4
by the BIA. His motion described his intent to seek adjustment of status under section 245(a) of the

INA, 8 U.S.C. § 1255(a),10 in conjunction with a waiver of inadmissibility under section 212(c), see note

6, ante. The BIA denied Cyrus’s motion to reopen the removal proceedings in a decision of July 7,

2005. In order to reopen the removal proceedings pursuant to 8 C.F.R. § 1003.44, the BIA concluded,

Cyrus must establish that he was eligible for waiver of inadmissibility under section 212(c). Section

212(c) relief, in turn, depends on Cyrus’s showing that section 212(a) contains a comparable ground of

inadmissibility to that ground for which he is removable, namely his 1993 firearms conviction.11

Because Cyrus conceded that his firearms conviction does not have a statutory counterpart under

section 212(a), the BIA concluded that he is ineligible for 212(c) relief. The BIA observed that 8 C.F.R.

§ 1003.44 provides for reopening “solely for the purpose of adjudicating the application for section

212(c) relief” and accordingly denied the motion. Id. (referencing former INA § 212(c), 8 U.S.C. §

1182(c) (repealed 1996)). The BIA decision did not address Cyrus’s request for a sua sponte reopening

pursuant to 8 C.F.R. § 1003.2(a).

          On appeal, Cyrus argues that the BIA erred in concluding that he was not entitled to reopening

based on the BIA’s purported misinterpretation of the “spirit” of 8 C.F.R. § 1003.44. In the alternative,

he asks for a remand in order for the BIA to determine whether to reopen the proceedings sua sponte.


                    prima facie ca se for relief.

8 C.F .R. § 1003.2(a).

          10
            Under section 245(a), the Attorney General has discretion to adjust the status of “an alien who was
inspected and adm itted or paroled into the U nited States” to that of lawful perm anent resident if:

                    (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant
                    visa and is adm issible to the United S tates for perm anent residence, and (3) an imm igrant visa is
                    immediately available to him at the time his application is filed.

8 U.S.C. § 1255(a).

          11
             Pursuan t to regulations enacted after St. Cyr, a petitioner is ineligible for section 212(c) relief if “[t]he alien
is deportable under former section 241 of the Act or removable under section 237 of the Act on a ground which does
not have a statu tory counterpart in section 212 of the A ct.” 8 C .F.R. § 121 2.3(f)(5); see Blake, 489 F.3d at 99 (upholding
application of statutory counterpart rule in similar context). Here, there is no dispute that Cyrus’s firearm conviction
renders him dep ortable under former section 241(a)(2)(C ) of the INA.
                                                                  5
The Government asserts that the BIA’s decision not to reopen removal proceedings pursuant to 8

C.F.R. § 1003.44 was correct. The Government further contends that Cyrus could not move to reopen

under 8 C.F.R. § 1003.44 for any other purpose and that the BIA properly declined to reopen

proceedings sua sponte.

                                                     DISCUSSION

         We write briefly to clarify two points. First, we observe that, as a matter of law, reopening on

the basis of 8 C.F.R. § 1003.44 is not available to a petitioner who is not eligible for section 212(c)

relief. Second, we reaffirm that we lack jurisdiction to review the BIA’s decision not to reopen removal

proceedings sua sponte.

A.       The BIA’s Denial of the Motion to Reopen pursuant to 8 C.F.R. § 1003.44

         We review the denial of a motion to reopen for abuse of discretion. See Jie Chen v. Gonzales, 436

F.3d 76, 77 (2d Cir. 2006); Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005).

         As an initial matter, we note that Cyrus does not contest that the ground on which he was

ordered removed, his 1991 weapons possession conviction, is not subject to waiver under section

212(c).12 Therefore, as the BIA properly concluded, he is ineligible for section 212(c) relief pursuant to

8 C.F.R. § 1212.3(f)(5). While that should end the matter, we write to underscore what should be an

obvious proposition—namely, that reopening removal proceedings on the basis of 8 C.F.R. § 1003.44

is not available to a petitioner ineligible for section 212(c) relief because 8 C.F.R. § 1003.44 by its terms

allows reopening “solely for the purpose of adjudicating the application for section 212(c) relief.” 8

C.F.R. § 1003.44(e). In addition, section 1003.44(b) states clearly that a motion for reopening “to seek

section 212(c) relief must establish that the alien . . . [i]s otherwise eligible to apply for section 212(c)

relief under the standards that were in effect at the time the alien’s plea was made, regardless of when


         12
             Cyrus argues that he should be permitted to reopen removal proceedings in order to pursue section 212(c)
relief on the basis of his other convictions; however, the removal order was based solely on his firearm conviction and,
thus, 212(c) relief is unavailable on those grou nds.


                                                              6
the plea was entered by the court.” 8 C.F.R. § 1003.44(b). Thus, by its own terms, the text of the

regulation clearly limits motions for reopening to those petitioners who, upon reopening, could or

would be eligible to pursue section 212(c) relief.

        This commonsense reading comports with the purpose of the regulation, which was designed

to permit certain lawful permanent residents to apply for section 212(c) relief in response to the

Supreme Court’s decision in INS v. St. Cyr, 533 U.S. 289 (2001). St. Cyr held that certain provisions of

AEDPA and IIRIRA, which narrowed and then eliminated section 212(c) discretionary relief, did not

apply retroactively. Id. The Court held that “section 212(c) relief remains available for [those] . . . who

. . . would have been eligible for § 212(c) relief at the time of their plea under the law then in effect.”

Id. at 326. In response, 8 C.F.R. § 1003.44(e) was proposed in order to “codify the Supreme Court’s

holding” and permit aliens to reopen proceedings where they had been eligible for section 212(c) relief

“at the time of their pleas[.]” Section 212(c) Relief for Aliens With Certain Criminal Convictions

Before April 1, 1997, 67 Fed. Reg. 52627, 52628 (proposed Aug. 13, 2002) (later codified at 8 C.F.R.

pts. 2, 212, and 240) (citation omitted). When proposed, the agency’s comments on the rule restricted

eligibility for relief thereunder to those who “at a minimum, meet [certain] criteria to be considered for

a waiver under section 212(c).” Id. Those criteria include that “[t]he alien is deportable or removable

on a ground that has a corresponding ground of exclusion or inadmissibility.” Id. at 52628–29

(referencing the eligibility requirements of section 212(c)). Having conceded that his firearm

conviction, the sole basis for the finding of inadmissibility, has no statutory counterpart, Cyrus is not

only ineligible for section 212(c) relief but also ineligible, by definition, for reopening his removal

proceedings on the basis of 8 C.F.R. § 1003.44.

        Permitting a petitioner who would be ineligible for section 212(c) relief to reopen the

proceedings pursuant to 8 C.F.R. § 1003.44 is inconsistent with the text and purpose of the regulation.

Accordingly, the BIA did not err, or “abuse its discretion,” in concluding that Cyrus was not entitled to


                                                      7
reopen removal proceedings for the purpose of seeking section 212(c) relief under 8 C.F.R. § 1003.44.

Cf. Zervos v. Verizon N.Y., Inc., 252 F.3d 163, 169 (2d Cir. 2001) (“error of law” constitutes “abuse of

discretion”).



B.      The BIA’s Decision Not to Reopen Removal Proceedings Sua Sponte

        Cyrus also seeks review of the BIA’s decision declining to reopen his removal proceedings sua

sponte pursuant to 8 C.F.R. § 1003.2(a). The BIA’s decision not to reopen removal proceedings sua

sponte is an “entirely discretionary” decision for which “we lack jurisdiction to review.” Ali v. Gonzales,

448 F.3d 515, 518 (2d Cir. 2006). Challenges to discretionary decisions, like the one raised here,

“essentially dispute[] the correctness of an IJ’s fact-finding or the wisdom of his exercise of discretion.”

Barco-Sandoval v. Gonzales, 496 F.3d 132, 136 (2d Cir. 2007). As we have stated repeatedly, such

discretionary decisions are beyond our review. See id.; Camara v. Dep’t of Homeland Sec., 497 F.3d 121,

124 (2d Cir. 2007); Carcamo v. U.S. Dep’t of Justice, 498 F.3d 94, 97 (2d Cir. 2007). We are therefore

without jurisdiction to review the BIA’s decision to not reopen sua sponte the removal proceedings.

                                             CONCLUSION

        For the reasons stated above, (1) the petition is denied in part insofar as it seeks to reopen

removal proceedings so that he can apply for waiver of inadmissibility under former section 212(c) of

the INA; and (2) the petition is dismissed in part insofar as it seeks review of the BIA’s decision not to

reopen sua sponte the removal proceedings.




                                                     8
