                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 08a0404n.06
                                Filed: July 7, 2008

                                            No. 06-4513

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT

 ELISEO CAYABYAB BELTRAN,                             )
                                                      )
            Petitioner-Appellant,                     )
                                                      )       ON PETITION FOR REVIEW
                  v.                                  )       FROM THE BOARD OF
                                                      )       IMMIGRATION APPEALS
 MICHAEL MUKASEY,                                     )       AFTER REMAND BY THE
                                                      )       SIXTH CIRCUIT
       Respondent-Appellee.                           )
 _______________________________________              )
                                                      )
                                                      )

BEFORE:          GILMAN and COOK, Circuit Judges; and COHN*, District Judge.

AVERN COHN, District Judge. This is an immigration case that began almost fifteen years ago.

Appellant Eliseo Cayabyab Beltran (“Beltran”) now appeals from a final order of deportation issued

against him by the Board of Immigration Appeals (“BIA”). Beltran contends that he is eligible for

discretionary relief from deportation under former § 212(c) of the Immigration and Nationality Act,

8 U.S.C. § 1182(c), and that his case should be remanded to the immigration court to consider the

merits of this claim. The government argues that Beltran is ineligible for relief under the terms of

the statute.

        For the reasons discussed below, we reverse the decision of the BIA and remand for

consideration of the merits of Beltran’s petition for relief under § 1182(c).


        *
       The Honorable Avern Cohn, United States District Judge for the Eastern District of
Michigan, sitting by designation.
                             I. Background and Procedural History

       Beltran originally entered the United States as an immigrant in 1977, when he was fourteen

years old, along with his parents and siblings. Prior to that time Beltran lived in the Philippines.

       Since entering the United States, Beltran his been convicted of three crimes. He was first

convicted of larceny of a building, Mich. Comp. Laws Ann. § 750.360, in 1981. He was sentenced

to six months in jail and five years of probation. In 1984, Beltran was found to have violated his

probation by (1) leaving Michigan without permission to care for an ill relative and (2) failing to

make certain court-ordered payments. As a result, Beltran’s probation was revoked and he was

sentenced to a year in jail, with credit for the six months that he had previously served.

       In 1992, Beltran was convicted of first-degree retail fraud, Mich. Comp. Laws Ann. §

750.356c, after attempting to steal a television and VCR from a store at which he worked. He was

sentenced to three years’ probation.

       Finally, in 2000, Beltran pled no contest to fourth-degree criminal sexual conduct, Mich.

Comp. Laws Ann. § 750.520e, a misdemeanor. The record does not disclose the nature of the

underlying conduct. He was sentenced to time served as a pretrial detainee (about 120 days) and

released.

       As a result of his first two convictions, Beltran was served with an order to show cause in

August 1994, initiating what has turned out to be a long and tortuous series of deportation

proceedings. The order to show cause charged Beltran with deportability under former 8 U.S.C. §

1251(a)(2)(A)(ii) because he had been convicted of two crimes involving moral turpitude not arising

out of a single scheme of criminal misconduct.




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                         A. Original Proceedings in Immigration Court

       Beltran appeared pro se before an immigration judge in October 1995. He admitted the

factual allegations and conceded deportability as charged. To avoid deportation, he petitioned for

a waiver under former 8 U.S.C. § 1182(c),1 which allowed an immigration judge to provide

discretionary relief from deportation for legal permanent residents. Following a hearing in February

1996, the immigration judge issued a decision finding Beltran deportable under § 1251(a)(2)(A)(ii)

and denying his application for a § 1182(c) waiver on the merits. The judge ordered Beltran

deported to the Philippines.




       1
           Former Section 1182(c) provided:

                Aliens lawfully admitted for permanent residen[ce] 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 paragraph (other than subsection (A), (B),
                (C), or (E) of paragraph (3)). Nothing contained in this subsection
                shall limit the authority of the Attorney General to exercise the
                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 an aggravated felony and has served a term of
                imprisonment of at least 5 years.

8 U.S.C. § 1182(c) (1991). The last sentence of the section, pertaining to aliens convicted of
aggravated felonies who have served five years in prison, does not apply to Beltran; it applies
only to aliens admitted after the date of enactment of the Immigration Act of 1990 (November
29, 1990). Pub. L. No. 101-649, § 511(b). Section 1182(c) was subsequently amended by the
Anti-Terrorism and Effective Death Penalty Act, Pub. L. No. 104-132, 110 Stat. 1214 (1996),
and repealed by the Illegal Immigration Reform and Immigrant Responsibility Act, Pub. L. 104-
208, 110 Stat. 3009-546 (1996). As discussed below, however, these laws do not apply to the
proceedings in this case, since the proceedings commenced prior to 1996.

                                                 4
                                       B. The First Appeal

        Beltran appealed to the BIA, arguing that the immigration judge should have granted his

application for a § 1182(c) waiver. In October 1998, the BIA vacated the deportation order, finding

that the immigration judge had not adequately advised Beltran of the free legal services available to

him, and remanded the case to the immigration court for further proceedings. The BIA also held that

Beltran was statutorily eligible for a § 1182(c) waiver.

                        C. Remanded Proceedings in Immigration Court

        An immigration judge held a new hearing in January 1999. Beltran failed to appear because,

as the parties agree, he was never served with the necessary papers due to a change of address. The

immigration judge issued an in absentia order of deportation, finding that Beltran had abandoned

any application for relief.

        Beltran filed a motion to reopen the case and rescind the in absentia order of deportation in

March 2001. The immigration judge denied the motion, finding that Beltran had failed to comply

with the regulations concerning notification of an address change during deportation proceedings.

                                      D. The Second Appeal

        Beltran again appealed to the BIA. The BIA dismissed the appeal in February 2002.

        Beltran then petitioned for review in this Court. We reversed, holding that Beltran had

complied with the statutory requirements for notification of a change of address, and remanded the

case to the immigration court with instructions to grant Beltran’s motion to reopen his deportation

hearing. Beltran v. INS, 332 F.3d 407 (6th Cir. 2003).




                                                 5
                E. Second Set of Remanded Proceedings in Immigration Court

       Following the remand to the immigration court, the Department of Homeland Security

(“DHS”) lodged an additional charge of deportability against Beltran, supported by additional factual

allegations. DHS said that, because of the one-year sentence imposed after Beltran’s probation

violation, his larceny conviction was an “aggravated felony” as defined in 8 U.S.C. §

1101(a)(43)(G). Consequently, Beltran was subject to deportation under former 8 U.S.C. §

1251(a)(2)(A)(iii). In addition, DHS argued that, because Beltran’s 2000 conviction for fourth-

degree criminal sexual conduct occurred after the repeal of § 1182(c),2 that section could not provide

Beltran with relief from deportation.

       In June 2004, an immigration judge sustained the additional factual allegations and the

additional charge of deportability. The immigration judge found that the 1981 larceny conviction

was an “aggravated felony” as defined in 8 U.S.C. § 1101(a)(43)(G). The judge also found that the

aggravated felony conviction did not bar Beltran from relief under § 1182(c), since the conviction

occurred prior to September 30, 1996, and thus fell within the rule articulated by the Supreme Court

in INS v. St. Cyr, 533 U.S. 289 (2001).

       However, the immigration judge determined that, despite Beltran’s statutory eligibility for

§ 1182(c) relief, that provision would not provide relief from Beltran’s 2000 conviction for fourth-

degree criminal sexual conduct. The immigration judge held that the conviction for fourth-degree

criminal sexual conduct involved “moral turpitude” and that in order to avoid deportation Beltran

would require an additional waiver issued under 8 U.S.C. § 1229b(a). Finally, the immigration judge



       2
       Section 1182(c) was repealed in 1996 by § 309(c)(1) of the Illegal Immigration Reform
and Immigrant Responsibility Act, Pub. L. 104-208, 110 Stat. 3009-546.

                                                  6
concluded that Beltran was barred from § 1229b(a) relief because he had been convicted of an

aggravated felony (the 1981 larceny conviction and subsequent probation violation) and therefore

declined to consider Beltran’s application for a waiver under § 1182(c), reasoning that even if the

waiver were granted, Beltran would remain subject to deportation under 8 U.S.C. §

1251(a)(2)(A)(ii). The immigration judge again ordered Beltran deported to the Philippines.

                                        F. The Third Appeal

        Beltran again appealed from the immigration judge’s order of deportation. In October 2004,

the BIA issued a decision affirming the immigration judge’s order without a separate opinion.

Beltran filed a motion for reconsideration with the BIA, which was denied. He then petitioned for

review in this Court.

        In March 2005, DHS moved to remand the proceedings “in view of the lengthy and complex

history of this deportation matter [to] allow the [BIA] to clarify in the first instance the applicability

of 8 U.S.C. § 1229b (cancellation of removal) in the case of an alien in deportation proceedings, and

8 C.F.R. §§ 1212.3(g) and 1212.3(h)(3) in the case of an alien whose proceedings commenced prior

to 1996, but who suffered an additional criminal conviction after April 1, 1997.” Beltran did not

oppose the motion, and in June 2005 we issued an order remanding the case to the BIA.

                                 G. The BIA’s Decision on Remand

        Following the remand, the BIA issued a new decision dismissing the appeal. During the

remanded proceedings, DHS reiterated its earlier argument that § 1182(c) would not provide Beltran

with complete relief and that it was therefore unnecessary to consider the merits of Beltran’s petition

for relief under that statutory provision. DHS also argued an additional theory that it had not

previously raised, specifically that under 8 C.F.R. § 1212.3(f)(5), Beltran is statutorily ineligible for



                                                    7
§ 1182(c) relief because one of the two claimed grounds of deportability (8 U.S.C. §

1251(a)(2)(A)(iii) (conviction of an aggravated felony)) does not have a “statutory counterpart” in

former 8 U.S.C. § 1182(a). Beltran argued that DHS should be foreclosed from raising the “statutory

counterpart” argument due to collateral estoppel, law of the case, or some related doctrine. He

further argued that § 1182(c) would provide him with relief from deportation despite his conviction

for fourth-degree criminal sexual conduct in 2000.

       The BIA dismissed the appeal, holding first that Beltran was not eligible for cancellation of

removal under 8 U.S.C. § 1229b. The BIA noted that Beltran was subject to “deportation

proceedings” that commenced prior to the enactment of the Illegal Immigration Reform and

Immigrant Responsibility Act (“IIRIRA”), Pub. L. 104-208, 110 Stat. 3009-546 (1996). IIRIRA

replaced “deportation proceedings” with “removal proceedings” under a new set of statutory

provisions and regulations. Section 1229b, which provides for “cancellation of removal,” was

enacted as an amendment to IIRIRA. As such, § 1229b is not applicable to cases, like Beltran’s,

proceeding under the old law of “deportation proceedings.”

       The BIA further held that Beltran was not eligible for § 1182(c) relief because his 1981

larceny conviction lacks a “statutory counterpart” of inadmissibility under 8 U.S.C. § 1182(a), as

required by 8 C.F.R. § 1212.3(f)(5). Rejecting Beltran’s contention that collateral estoppel or law

of the case should bar consideration of the statutory counterpart argument, the BIA noted that “the

current issue has never before been resolved or adjudicated by any governing body that has issued

a decision in this case, and is crucial in deciding whether or not the respondent is eligible for a

waiver” under § 1182(c).




                                                8
                                     III. Standard of Review

       In immigration appeals, we ordinarily review questions of law de novo, but we defer to the

BIA’s reasonable interpretations of the immigration statutes. Singh v. Gonzalez, 451 F.3d 400, 403

(6th Cir. 2006); see also INS v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999). The BIA’s factual

findings may be reversed only where “any reasonable adjudicator would be compelled to conclude

to the contrary.” 8 U.S.C. § 1252(b)(4)(B).

                                           IV. Analysis

       A. The BIA Erred in Allowing DHS to Raise a New Argument on Remand

       In June 2005, we granted DHS’s unopposed motion to remand the case to the BIA “to clarify

in the first instance the applicability of 8 U.S.C. § 1229b (cancellation of removal) in the case of

alien in deportation proceedings, and 8 C.F.R. §§ 1212.3(g) and 1212.3(h)(3) in the case of an alien

whose proceedings commenced prior to 1996, but who suffered an additional criminal conviction

after April 1, 1997.” After the remand, the BIA issued an opinion holding that Beltran was ineligible

for relief under 8 U.S.C. § 1182(c) because there was no “statutory counterpart” to his 1981 larceny

conviction under 8 U.S.C. § 1182(a), as required by 8 C.F.R. § 1212.3(f)(5). The record does not

show that either Beltran, the government, or the immigration courts had previously raised the

“statutory counterpart” issue even in passing.

       We hold that DHS waived the “statutory counterpart” issue by failing to raise it in

administrative proceedings prior to Beltran’s appeal to this Court and that the BIA’s consideration

of the issue after the remand for clarification impermissibly exceeded the scope of the mandate.

Prior to the 2005 remand, the government had consistently taken the affirmative position that Beltran

was statutorily eligible for relief under § 1182(c). Counsel for DHS explicitly conceded the point



                                                 9
during the June 2004 hearing before the immigration judge. Furthermore, the immigration judge

stated in her opinion that Beltran was eligible for § 1182(c) relief, and DHS successfully moved for

summary affirmance of that opinion.        Therefore, DHS could not have made the “statutory

counterpart” argument for the first time before this Court. “It is a well-established rule that this

Court will not consider claims that are presented for the first time on appeal nor arguments that are

not properly raised below.” Berryman v. Rieger, 150 F.3d 561, 568 (6th Cir. 1998).

       The fact that the case was remanded to the BIA for clarification does not change this result.

In accordance with DHS’s motion, the remand was granted to allow the BIA (which had not issued

a separate opinion) to clarify the application of 8 U.S.C. § 1229b and 8 C.F.R. §§ 1212.3(g) and

1212.3(h)(3), issues which were essential to the immigration court’s disposition of the case. The

remand was not license for the BIA to consider wholly new legal arguments that could not have been

raised in this Court absent the remand. “[U]pon remand of a case for further proceedings after a

decision by the appellate court, the trial court must proceed in accordance with the mandate and the

law of the case as established on appeal. The trial court must implement both the letter and the spirit

of the mandate, taking into account the appellate court's opinion and the circumstances it embraces.”

Brunet v. City of Columbus, 58 F.3d 251, 254 (6th Cir. 1995) (internal quotation marks omitted).

Here, the BIA exceeded the scope of the mandate in allowing DHS to raise an issue that was not

discussed in the immigration court’s opinion and that could not have been raised in this Court.

       B. Beltran Is Not Otherwise Foreclosed From Seeking Relief Under § 1182(c)

       Once the “statutory counterpart” bar to § 1182(c) has been lifted, Beltran is not otherwise

foreclosed from seeking relief from deportation under that provision. The only suggestion to the

contrary comes in the 2004 opinion of the immigration court. That opinion held that § 1182(c)



                                                  10
would not provide Beltran with relief from his 2000 conviction for fourth-degree criminal sexual

conduct because the conviction occurred after § 1182(c) was repealed. In its decision after the

remand, the BIA rejected the immigration court’s position:

              However, just as cancellation of removal, which replaced the now
              repealed waiver of inadmissibility under section 212(c) of the Act,
              was explicitly enacted for those aliens in removal proceedings, former
              section 212(c) of the Act was preserved for those aliens in deportation
              proceedings subject to its [sic] Antiterrorism and Effective Death
              Penalty Act (“AEDPA”), which took effect on April 24, 1996, and
              IIRIRA amendments. Thus, under section 309(c) of the IIRIRA, the
              respondent, who is not eligible to seek cancellation of removal for his
              2000 conviction because he is in deportation proceedings, is
              technically eligible to seek section 212(c) relief as to his post-AEDPA
              and IIRIRA convictions because section 309(c) of the IIRIRA
              specifically makes the repeal of the pre-IIRIRA deportation laws,
              including repeal of section 212(c) of the Act, inapplicable to those
              aliens in deportation proceedings.

              Moreover, the regulation at 8 C.F.R. § 1212.3(g), was retained at the
              time that the new regulations pertaining to relief under former section
              212(c) of the Act were enacted in accordance with the United States
              Supreme Court’s decision in INS v. St. Cyr, 533 U.S. 289 (2001). As
              a result, while the AEDPA changes to the old deportation laws should
              apply to bar the respondent from eligibility for a section 212(c)
              waiver for his 2000 conviction, the regulation at 8 C.F.R. § 1212.3(g)
              bars that result. Thus, the respondent’s case is governed by the pre-
              AEDPA versions of former section 212(c) of the Act as those
              versions relate to his various convictions unless the regulation at 8
              C.F.R. 1212.3(h)(3) bars that outcome. In this regard, we find that 8
              C.F.R. § 1212.3(h)(3) should not be read to automatically bar relief
              under former section 212(c) of the Act for an alien who remains in
              old-law deportation proceedings because to do so would countermand
              section 309(c) of the IIRIRA which specifically preserved relief under
              former section 212(c) of the Act for aliens in old-law deportation
              proceedings such as the respondent in this case.

JA 4. The BIA’s reasoning is persuasive; Beltran’s deportation proceedings are governed by pre-

AEDPA law, and he remains eligible for relief under § 1182(c).




                                                11
       In its brief, DHS adopts the BIA’s position that Beltran’s case is governed by pre-AEDPA

law and that he remains eligible for § 1182(c) relief. Respondent’s Br. at 28-32. Further, DHS

agrees with Beltran that if the BIA is reversed on the “statutory counterpart” issue, the case should

be remanded to the immigration court for consideration of the merits of Beltran’s petition for §

1182(c) relief. Respondent’s Br. at 53-54.

                                           V. Conclusion

       For the reasons stated above, we REVERSE the decision of the BIA and REMAND the case

to the immigration court with instructions to consider the merits of Beltran’s petition for relief from

deportation under § 1182(c).




                                                  12
