                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-16-2005

Rodriguez-Munoz v. Atty Gen USA
Precedential or Non-Precedential: Precedential

Docket No. 05-1732




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                                      PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT

                    NO. 05-1732
                 ________________

      RICHARD JOSE RODRIGUEZ-MUNOZ,

                      Appellant,

                          v.

*ALBERTO GONZALES, U.S. ATTORNEY GENERAL;
  U.S. DEPARTMENT OF HOMELAND SECURITY;
 EDMOND C. CICCHI, Warden of Middlesex County
              Correctional Center

           (*Pursuant to F.R.A.P. 43(c))
     ____________________________________

    On Petition for Review from the United States
  Department of Justice Board of Immigration Appeals
               (BIA No. A34 204 757)

           Initially filed as a Notice of Appeal
                  from D NJ 04-cv-04846
   Prior to the Enactment of the Real ID Act of 2005
        Submitted Under Third Circuit LAR 34.1(a)
                    August 5, 2005

     Before: VAN ANTWERPEN, GREENBERG AND
               NYGAARD, Circuit Judges

                    (Filed: August 16, 2005 )

Richard Jose Rodriguez-Munoz
1196 Eastern Parkway
Apartment A10
Brooklyn, NY 11213

Appellant, Pro Se

Pamela R. Perron, Esq.
Assistant U. S. Attorney
970 Broad Street, Suite 700
Newark, NJ 07102

Counsel for Appellees
                    _________________

                          OPINION
                      _________________

VAN ANTWERPEN, Circuit Judge

        Richard Jose Rodriguez-Munoz petitions for review of
a final order of the Board of Immigration Appeals (“BIA”).


                               2
For the reasons that follow, we will deny the petition.1

       Rodriguez-Munoz is a native and citizen of the
Dominican Republic. He was admitted to the United States as
a lawful permanent resident (“LPR”) in 1976. In 1992, he
pled guilty to four drug offenses in New York state court,
including third degree criminal sale of a controlled substance
(crack cocaine), a class B felony. See N.Y. Penal Law §
220.39. In 1994, the Immigration and Naturalization Service
(“INS”) charged Rodriguez-Munoz with deportability as an
alien convicted of an aggravated felony and as being
convicted of a violation relating to a controlled substance.2
See Immigration and Nationality Act (“INA”) §§
241(a)(2)(A)(iii); 241(a)(2)(B)(i) [8 U.S.C. §§




  1
    This case was originally filed as an appeal of an order of the
United States District Court for the District of New Jersey
denying Rodriguez-Munoz’s petition for a writ of habeas
corpus. We recently held, however, that habeas appeals, such as
Rodriguez-Munoz’s, “that were pending before this Court on the
effective date of the Real ID Act of 2005 [Pub. L. 109-13, 119
Stat. 231] are properly converted to petitions for review and
retained by this Court.” See Bonhometre v. Gonzales, -- F.3d --,
2005 WL 1653641, at *2 (3d Cir. July 15, 2005).
  2
    We recognize, of course, that the Department of Homeland
Security has taken over the responsibilities of the former INS.
See Ambartsoumian v. Ashcroft, 388 F.3d 85, 95 n.6 (3d
Cir.2004).

                                3
1231(a)(2)(A)(iii); 1231(a)(2)(B)(i)].3 While the immigration
proceedings were pending, Rodriguez-Munoz pled guilty in
New York to two additional offenses: fifth degree criminal
possession of marijuana (September 21, 1999) and seventh
degree criminal possession of a controlled substance
(November 3, 2000).

        In October 2003, Rodriguez-Munoz appeared before
an Immigration Judge (“IJ”) and asked that the government
“repaper” the proceedings so that he could simultaneously
apply for a waiver of removal (based on the 1992 conviction)
under former INA § 212(c) [8 U.S.C. § 1182(c)], and for
cancellation of removal (based on the 1999 and 2000
convictions) under INA § 240A [8 U.S.C. § 1229b].4 The IJ
ordered the deportation proceedings administratively closed to
allow Rodriguez-Munoz to be repapered. The government
filed an interlocutory appeal which the BIA sustained, finding
that administrative closure is inappropriate where one of the


         3
        These provisions have been redesignated INA §§
237(a)(2)(A)(iii) and 237(a)(2)(B)(i) [8 U.S.C. §§
1227(a)(2)(A)(iii) and 1227(a)(2)(B)(i)], respectively.
     4
        Repapering is a process whereby the deportation or
exclusion proceedings are administratively closed and the
government initiates removal proceedings to allow aliens to
apply for cancellation of removal under INA § 240A, a form of
relief that was not available when they were charged with
deportation or exclusion. See Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (“IIRIRA”) § 309(c)(3).

                              4
parties (in this case, the government) opposes it.

        On remand, the IJ denied Rodriguez-Munoz’s
applications for relief and ordered him deported. The BIA
dismissed Rodriguez-Munoz’s appeal, concluding that even if
he were repapered and eligible for a § 212(c) waiver, he
would not be entitled to cancellation of removal because his
1992 conviction for criminal sale of a controlled substance, an
aggravated felony, would still exist for purposes of evaluating
his eligibility for § 240A relief.

       Rodrizuez-Munoz then filed a habeas corpus petition
under 28 U.S.C. § 2241, arguing that his constitutional rights
were violated by the refusal to repaper him so that he could
simultaneously apply for both waiver of removal under §
212(c) and cancellation of removal under § 240A. The
District Court denied the petition on the merits and
Rodriguez-Munoz filed a notice of appeal, which has been
converted to a petition for review. See fn.1, supra.
Rodriguez-Munoz was deported on March 23, 2005. See
Appellant’s Brief, 7 n.8.

        Rodriguez-Munoz does not dispute that he is
deportable based on his 1992 conviction for criminal sale of a
controlled substance. In addition, his 1999 and 2000
convictions render him removable pursuant to INA §
237(a)(2)(B)(i) (alien convicted of a controlled substance
offense). He argues, however, that he would be entitled to
relief if permitted to simultaneously apply for a waiver of
removal under § 212(c) and for cancellation of removal under
§ 240A. We disagree.

                               5
        When Rodriguez-Munoz was convicted of drug
crimes in 1992, § 212(c) allowed a lawful permanent resident
with seven years of consecutive residence in the United States
to apply for a discretionary waiver of deportation. See INS v.
St. Cyr, 533 U.S. 289, 295 (2001). The IIRIRA, which
became effective in April 1997, repealed § 212(c) and
replaced it with § 240A. Under the current provision, the
Attorney General may cancel removal of an alien who has
been an LPR for not less than five years, has resided
continuously in the United States for seven years after having
been admitted, and “has not been convicted of any aggravated
felony.” INA § 240A(a); see Ponnapula v. Ashcroft, 373 F.3d
480, 486 (3d Cir. 2004). In addition, an alien “who has been
granted relief under section 212(c)” is ineligible for
cancellation of removal. § 240(c)(6) [8 U.S.C.
§ 1229b(c)(6)].

        The government acknowledges that “[t]here is no
question that Rodriguez-Munoz is eligible to apply for a
[§212(c)] waiver of deportation concerning” his 1992
conviction. See Appellee’s Brief, 11. Indeed, under INS v.
St. Cyr, 533 U.S. 289 (2001), “§ 212(c) relief remains
available for aliens whose convictions were obtained through
plea agreements and who, notwithstanding those convictions,
would have been eligible for § 212(c) relief at the time of
their plea under the law then in effect.” 533 U.S. at 326.
According to St. Cyr, “the elimination of any possibility of §
212(c) relief by IIRIRA has an obvious and severe [and
impermissible] retroactive effect.” Id. at 325.

       Importantly, however, Rodriguez-Munoz would not be

                              6
eligible for cancellation of removal, which he also needs to
prevail. The language of § 240A(a) is clear: The Attorney
General may cancel removal only if an LPR “has not been
convicted of any aggravated felony.” Rodriguez-Munoz
apparently did not argue before the BIA that his 1992
conviction is not an aggravated felony, nor does he raise such
an argument on appeal. See Miah v. Ashcroft, 346 F.3d 434,
439 n.2 (3d Cir. 2003). Instead, he contends that his 1992
conviction, once waived under § 212(c), could not be
considered when evaluating whether he was eligible for
cancellation of removal under § 240A.

       As the BIA has explained, however, “[t]he grant of a
section 212(c) relief merely waives the finding of
deportability rather than the basis of the deportability itself.
Therefore, the crimes alleged to be grounds for deportability
do not disappear from the alien’s record for immigration
purposes.” Matter of Balderas, 20 I. & N. Dec. 389, 391
(BIA 1991); see Molina-Amezcua v. I.N.S., 6 F.3d 646, 647
(9th Cir. 1993) (“A waiver of deportation gives the alien a
chance to stay in the United States despite his misdeed, but it
does not expunge the conviction.”). Thus, even if Rodriguez-
Munoz’s deportation based on his 1992 conviction were
waived under § 212(c), that conviction would nonetheless
remain an aggravated felony for purposes of precluding his
application for cancellation of removal under § 240A.

        Rodriguez-Munoz relies on Matter of Gabryelsky, 20 I.
& N. Dec. 750 (BIA 1993), in which the BIA permitted the
alien to simultaneously apply for adjustment of status under §
245(a) and for waiver of deportation under § 212(c). See

                               7
Gabryelsky, 20 I. & N. Dec. at 756. In that case, however, the
BIA based its conclusion on a regulation permitting combined
§ 245(a) and § 212(c) applications, and on the fact that the
granting of each form of relief made the alien statutorily
eligible for the other form. Id. at 754-56. Here, by contrast, a
waiver of deportation under § 212(c) would not make
Rodriguez-Munoz eligible for § 240A relief.

       For the reasons that we have given, we will deny the
petition for review.




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