                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 11-1447


ERWIN TOBAR-BARRERA,

                Petitioner,

           v.

ERIC H. HOLDER, JR., Attorney General,

                Respondent.



On Petition for Review of an Order of the Board of Immigration
Appeals.


Argued:   September 17, 2013                 Decided:   October 29, 2013


Before GREGORY, DAVIS, and KEENAN, Circuit Judges.


Petition granted in part and denied in part by unpublished
opinion. Judge Davis wrote the opinion, in which Judge Gregory
joined. Judge Keenan wrote a dissenting opinion.


ARGUED: Timothy William Davis, LAW OFFICE OF TIMOTHY W. DAVIS,
LLC, Baltimore, Maryland, for Petitioner.         Jonathan Aaron
Robbins, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for Respondent.   ON BRIEF: Stuart F. Delery, Acting Assistant
Attorney General, William C. Peachey, Assistant Director,
Matthew Allan Spurlock, Office of Immigration Litigation, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.


Unpublished opinions are not binding precedent in this circuit.
DAVIS, Circuit Judge:

      Petitioner Erwin Tobar-Barrera (“Tobar-Barrera”), a native

and     citizen    of    Guatemala,    seeks   review     of     the   Board    of

Immigration Appeals’ (“Board”) order dismissing his appeal of

the     decision    by    an   Immigration     Judge    (“IJ”)     finding     him

ineligible for discretionary relief from removal under Section

203 of the Nicaraguan Adjustment and Central American Relief Act

(“NACARA”). 1 The IJ found Tobar-Barrera ineligible because he had

been convicted of a disqualifying aggravated felony and ordered

him removed. For the reasons that follow, we grant in part and

deny in part the petition for review. We vacate the Board’s

order and remand for further proceedings consistent with this

opinion.

                                        I.

      The record reveals that the then-operative Immigration and

Naturalization Service (“INS”) initiated removal proceedings on

April     27,   1990.    But   those   proceedings     were    administratively

closed on September 6, 1991 to allow Tobar-Barrera to join a

class of Guatemalans who had been offered special process for




      1
       Pub. L. No. 105-100, 111 Stat. 2160, 2193-2201 (1997),
amended by Pub. L. No. 105-139, 111 Stat. 2644, 2644-45 (1997),
(codified as amended in scattered sections of 8 U.S.C.).



                                        2
seeking asylum in the United States. 2 For the fourteen years that

followed,   there    was    no    appreciable   change      in   Tobar-Barrera’s

immigration status. Tobar-Barrera filed his asylum application

in May 2005. His application remained pending for two years,

awaiting review by the U.S. Citizenship and Immigration Service

(“USCIS”), the agency that now reviews such applications. The

application was denied.

     According      to    USCIS,    Tobar-Barrera     was    not   entitled   to

relief   because     he     had    a   disqualifying        aggravated   felony

conviction,   manslaughter.         USCIS   applied      the     definition   of

aggravated felony found in the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110

     2
       While Tobar-Barrera’s removal proceedings were pending,
the landmark settlement in American Baptist Churches v.
Thornburgh, 760 F. Supp. 796 (N.D. Cal. 1991) (“ABC Settlement”)
was reached. The ABC Settlement involved a class action
settlement among various government agencies (including the INS)
and a plaintiff class of Salvadorans and Guatemalans who had
fled their countries. The suit alleged that the United States
government had politicized its asylum policy by discriminatorily
denying refugee status to persons fleeing repressive regimes
supported by the United States.

     The ABC Settlement, entered in January 1991, stipulated
that the INS would give de novo, unappealable hearings to most
Salvadoran and Guatemalan asylum applicants who were present in
the United States as of September 19, 1990, for Salvadorans, or
October 1, 1990, for Guatemalans. Id. at 799-800. This right
extended to all those who had previously been denied asylum, as
well as those who had not yet filed for asylum or whose cases
were still pending. Id. at 800. The settlement required the INS
to stay pending deportation proceedings against class members.
Id. at 805.



                                        3
Stat. 3009-546 (1996) (“IIRIRA”). IIRIRA broadened the kinds of

offenses       that      qualified      as    “crime       of     violence”    aggravated

felonies by decreasing the requisite imprisonment term from five

years to one year. See IIRIRA § 321(a)(3). Under the pre-IIRIRA

definition,        Tobar-Barrera’s           manslaughter        conviction       is    not    a

disqualifying aggravated felony.

       Tobar-Barrera’s           immigration            proceedings      languished       for

another      two   years       until   the     Department        of    Homeland    Security

(“DHS”)        moved     to     re-calendar        his      removal      proceedings          in

September 2009 because USCIS had found Tobar-Barrera ineligible

for     relief.     In    the     interim,        Tobar-Barrera        attacked        USCIS’s

adverse        ruling     by     filing      an     action       for     declaratory      and

injunctive relief in the United States District Court for the

District of Maryland. Tobar-Barrera v. Napolitano, No. 09-3064,

2010    WL     972557     (D.    Md.   Mar.       12,    2010).    The    district       court

ordered the government to provide Tobar-Barrera with a de novo

asylum       adjudication         because         USCIS     erroneously        found       him

ineligible for relief. Id. at *8. There was no appeal from that

ruling.

       Tobar-Barrera filed a new application for relief in July

2010.     He     argued        that    the    record        of    conviction       did     not

conclusively show that he had committed an aggravated felony and

asked the IJ to consider new evidence – his own live testimony –

as further proof that he was not convicted of an aggravated

                                               4
felony.    The   IJ   ruled   that     such    testimony     was   inadmissible

extrinsic evidence, and therefore could not be considered. She

further ruled that Tobar-Barrera’s conviction was an aggravated

felony under IIRIRA, making him ineligible for relief. For these

reasons, she ordered him removed to Guatemala.

     Tobar-Barrera appealed to the Board, asserting that the IJ

erroneously applied the IIRIRA-amended definition of aggravated

felony; that she also erred in failing to consider his live

testimony; and that his due process rights were violated by the

near twenty-year delay in the Attorney General’s prosecution of

his removal proceedings. The Board affirmed the IJ’s order and

dismissed the appeal.

     Tobar-Barrera filed a timely petition for review in this

Court.    He   contends   that   the   Board    erred   in    concluding   that

IIRIRA’s definition of “aggravated felony” applied to him. 3

     3
       Tobar Barrera’s second contention, that the Board erred in
affirming the IJ’s decision to exclude testimonial evidence
offered to satisfy his burden of proving that his manslaughter
conviction was not an “aggravated felony,” is no longer at
issue. We recently held, in Mondragon v. Holder, 706 F.3d 535
(4th Cir. 2013), that when a statute of conviction is divisible,
an alien is limited to presenting Shepard-approved sources to
resolve any “ambiguity of his conviction.” Id. at 547 (citing
Shepard v. United States, 544 U.S. 13 (2005)). In the absence of
such documents, the non-citizen is prohibited from relying on
“extrinsic evidence about his conduct” to establish that his
conviction did not qualify as an aggravated felony. Mondragon,
706 F.3d at 548. As Tobar-Barrera concedes, in light of
Mondragon, the exclusion of his testimony is not a ground for
relief.


                                        5
      We have carefully reviewed the record and fully considered

the oral arguments of counsel.

                                   II.

      Because the Board adopted the findings and reasoning of the

IJ, we review her decision as supplemented by the Board. Niang

v. Gonzales, 492 F.3d 505, 511 n.8 (4th Cir. 2007). The Board’s

determination that Tobar-Barrera’s conviction is an aggravated

felony is a legal issue we review de novo. See Mbea v. Gonzales,

482 F.3d 276, 279 (4th Cir. 2004). For reasons that follow, we

grant, in part, the petition for review, finding as we do that

the Board erroneously applied the IIRIRA-amended definition to

the particular facts and circumstances of Tobar-Barrera’s case.

                                    A.

      There is no question that the definition of “aggravated

felony” changed while Tobar-Barrera’s case was pending before

the   agency.   In   1996,   Congress,   through   IIRIRA,   amended   the

definition of “aggravated felony” set forth in the Immigration

and Nationality Act (“INA”), 8 U.S.C § 1101 (a)(43)(F) (2013).

IIRIRA modified the INA’s definition of aggravated felony in a

way that would make it more difficult for an alien to obtain

relief in future removal proceedings. 4 In enacting the IIRIRA


      4
       Members of the ABC Settlement class were particularly
affected   because  IIRIRA   replaced  the   process  previously
available to class members with a more restrictive scheme. Solis
(Continued)
                                    6
amendments,     Congress   provided    that       “[t]he     amendments     made    by

this section shall apply to actions taken on or after the date

of the enactment of this Act [September 30, 1996], regardless of

when the conviction occurred.” IIRIRA § 321(c) (emphasis added).

      Thus, the interpretation of IIRIRA section 321(c) is the

source of the present dispute. See Garrido-Morato v. Gonzales,

485 F.3d 319, 323 (5th Cir. 2007) (“‘Actions taken,’ . . . is

not   defined   anywhere   in   IIRIRA      and    it   is    thus   unclear     what

actions   are   contemplated    by    the    statute,        and   who    must   take

them.”). The Board, in affirming the IJ’s ruling, found that the

IJ properly applied the IIRIRA-amended definition of aggravated

felony to conclude that Tobar-Barrera’s conviction rendered him

ineligible for NACARA relief. The Attorney General agrees, of

course, relying primarily on Third and Fifth Circuit rulings

that the term “actions taken” under section 321(c) refers to the

Attorney General’s efforts to give effect to that particular

section of IIRIRA (i.e., determining the meaning of “aggravated

felony”   to     assess    whether    an      ex-felon        is     eligible      for

discretionary     relief).      Garrido-Morato,            485     F.3d    at    324;

Biskupski v. Att’y Gen., 503 F.3d 274, 283 (3d Cir. 2007). In



v. Holder, 490 F. App'x 744, 746 (6th Cir. 2012) (unpublished).
Congress repealed these restrictions through NACARA and returned
to class members the less restrictive, pre-IIRIRA conditions for
relief. Id.



                                      7
effect, these circuits found that Congress intended that section

321(c) apply retroactively to all adjudications occurring on and

after the date of enactment. Garrido-Morato, 485 F.3d at 324;

Biskupski, 503 F.3d at 281-283. See also Valderrama-Fonseca v.

I.N.S., 116 F.3d 853, 856-57 (9th Cir. 1997); Xiong v. I.N.S.,

173 F.3d 601, 607 (7th Cir. 1999); Choeum v. I.N.S., 129 F.3d

29, 36-37 (1st Cir. 1997).

       Tobar-Barrera,         however,        argues    for         a     more    narrow

interpretation of the term and contends that “actions taken”

refers to the point at which the Attorney General began its

initial removal proceedings which, in this case, was in April

1990. For support, Tobar-Barrera cites to the Sixth Circuit’s

decision    in   Saqr    v.    Holder,    holding      that    “the       term    ‘action

taken’ . . . derive[s] from the point at which the removal

action begins for purposes of determining whether the pre- or

post-IIRIRA definition of aggravated felony applies.” 580 F.3d

414, 422 (6th Cir. 2009). Tobar-Barrera has the better argument.

       We reject the Attorney General’s contention that we should

take the approach of the Fifth and Third Circuits in this case.

This   is   because     we    decline    to    interpret      the       statute   to   say

something that Congress chose not to say. There is no question

that   Congress   intended       the    amended    definition           of   “aggravated

felony” to have some retroactive effect, in the sense that the

new definition of “aggravated felony” would apply no matter when

                                          8
such convictions become final. But Congress did not say, as it

well    knows      how     to    say    when       it        chooses,     that    the    amended

definition would apply in all proceedings “‘pending on or after

the    date   of     enactment         of    the       Act.’”     Cf.,    e.g.,       Mueller    v.

Angelone, 181 F.3d 557, 566 n.4 (4th Cir. 1999)(discussing §

107(c) of the Antiterrorism and Effective Death Penalty Act of

1996, Pub. L. No. 104–132, § 105, 110 Stat. 1214, 1220); Sanders

v.    Allison      Engine       Co.,    Inc.,          703    F.3d   930,     934     (6th     Cir.

2012)(discussing § 4(f)(1) of the Fraud Enforcement and Recovery

Act of 2009, Pub. L. No. 111–21, 123 Stat. 1617, 1625). Rather,

Congress      limited      the     retroactive            application       of    the    amended

definition of “aggravated felony” by saying, instead, that the

new definition would apply to “actions taken” on and after the

date of enactment. The question posed, then, is what does the

limitation enacted by Congress mean?

       If we give conclusive effect to post-enactment decisions of

an IJ or of the Board as “actions taken” to long-pending removal

proceedings, as in this case, then we would be reading out of

the    statute       the    very       limitation            on    retroactivity        Congress

intended.       We    simply       do       not        believe     that     is    a    plausible

interpretation        of    Congress’s            manifest        intention      to    limit    the

application of the expanded definition of “aggravated felony” so

that the new definition applies to fewer than all proceedings

“pending on . . . the date of enactment,” Mueller, 181 F.3d at

                                                   9
566 n.4, a provision that Congress could have mandated but chose

not to mandate. Surely Congress was aware that its failure to do

so would be of consequence. Cf. I.N.S. v. Cardoza-Fonseca, 480

U.S. 421, 449 (1987) (affirming, before IIRIRA’s 1996 effective

date, “the longstanding principle of construing any lingering

ambiguities in deportation statutes in favor of the alien”).

      We   find    the     Sixth    Circuit’s      interpretation    to   be   the

better-reasoned         approach.   It   accounts     for   the   statutory    and

regulatory scheme that governs removal proceedings. Saqr, 580

F.3d at 421-22. And, it makes section 321(c) analysis consistent

with the approach that other circuits have used to determine

eligibility       for     other     discretionary       relief      provided    by

immigration officers. Id. at 422; see also Tran v. Gonzales, 447

F.3d 937, 941 (6th Cir. 2006) (“We need not go through a lengthy

statutory analysis to conclude that § 321(c) is not retroactive

since the language of the section speaks for itself. Section

321(c) explicitly limits the expanded definition of ‘aggravated

felony’ to prospective deportation proceedings.”).

      Further, this interpretation aligns with the basic notions

of fairness that are implicated when the rules concerning relief

are   changed     in     the   middle    of   an    alien’s   ongoing     removal

proceedings. We have previously explained the importance of this

principle to preserving the intended function of NACARA itself,

and its attendant provisions for relief.               Appiah v. U.S. I.N.S.,

                                         10
202   F.3d    704,    710    (4th    Cir.    2000)    (“NACARA      was     intended   to

correct a provision in the IIRIRA that would have had the effect

of ‘changing the rules in the middle of the game for thousands

of Central Americans and others who came to the United States

because their lives and families had been torn apart by war and

oppression.’”). 5 Those concerns are particularly pointed in this

case because it is unlikely that Tobar-Barrera knew his legal

rights had changed while his case sat dormant for more than

twenty years.

      We     are     persuaded       that    the     post-IIRIRA       definition      of

“aggravated        felony”     was       improperly      invoked      in    the   unique

circumstances         of     this        case.     Tobar-Barrera’s          deportation

proceedings commenced in 1990, upon proper service of an order

to show cause that was also filed with the Immigration Court.

See Toora v. Holder, 603 F.3d 282, 286 n.3 (5th Cir. 2010)

(“Pursuant     to    8     U.S.C.    §   1229(a)(1),       immigration      proceedings

initiate     on      the    date     the    alien     receives      his     [Notice    to

Appear].”)     (citations          omitted).     Since     that    time,    the    record

indicates     that       Tobar-Barrera      has     been    subject    to    a    single,


      5
       See also Saqr, 580 F.3d at 422 (quoting Alanis-Bustamante
v. Reno, 201 F.3d 1303, 1310 (11th Cir. 2000) (“Considerations
of fairness convince us that for purposes of deciding which law
applies, the removal proceedings in this case should be viewed
as commencing at least on that date . . . when the show cause
order had been served and the warrant of detainer lodged.”)).



                                            11
ongoing, deportation proceeding. Tobar-Barrera’s case number has

remained the same; so has the underlying controversy regarding

his removability and the dispute regarding his eligibility for

special relief. Although the Immigration Court administratively

closed this proceeding in 1991, the closure carried no legal

effect. See Matter of Amico, 19 I&N Dec. 652, 654 n.1 (BIA 1988)

(“The administrative closure of a case does not result in a

final order. It is merely an administrative convenience that

allows the removal of cases from the calendar in appropriate

situations.”)). Thus, no triggering “action” was “taken” under

these circumstances after the statutory amendment. Instead, the

Attorney       General’s   motion       to     recalendar     merely     terminated      a

hiatus    in    proceedings       already      underway.      Because      the   relevant

“action taken” against Tobar-Barrera occurred in 1990, the pre-

IIRIRA definition must apply.

                                             B.

       Tobar-Barrera       also       contends     that   review     “of    his    NACARA

application in the Immigration Court should have been conducted

under the same eligibility rules that were employed by USCIS.”

Pet.    Br.    at   20.   To    that    end,      Tobar-Barrera      claims      that   the

“divergent NACARA eligibility rules in USCIS and the Immigration

Court” violate due process. Id. at 20-21.

       Under 8 U.S.C. § 1252(d)(1), this Court may review a final

order    of     removal        only    if    “the     alien    has      exhausted       all

                                             12
administrative remedies available to the alien as of right.” Any

particular claim that is not properly exhausted is barred from

review by this Court. See Massis v. Mukasey, 549 F.3d 631, 638

(4th Cir. 2008). This prohibition against reviewing unexhausted

claims is jurisdictional. Id.

      The record clearly establishes that Tobar-Barrera did not

present this particular argument to the Board. 6 Although we have

recognized    an    exception   to   the    exhaustion   requirement   for

certain constitutional claims, see Farrokhi v. U.S. I.N.S., 900

F.2d 697, 700-01 (4th Cir. 1990); Gallanosa v. United States,

785   F.2d   116,   120-21   (4th    Cir.   1986),   Tobar-Barrera’s   due

process challenge to the allegedly disparate standards does not

fall within the narrow confines of this exception. Therefore,

the exception to the general exhaustion rule is inapplicable in

this instance. See Kurfees v. I.N.S., 275 F.3d 332, 337 (4th

Cir. 2001). Because the exhaustion requirement is not excused

and the issue has not been administratively exhausted, we lack

jurisdiction to consider this particular argument.




      6
       Tobar-Barrera, however, did raise a different due process
claim below. That claim related to the more than twenty-year
delay in prosecuting his removal. J.A. 33-35. Nonetheless,
Tobar-Barrera has declined to raise that issue before this Court
on appeal. See generally Pet. Br. at i, 18-21.



                                     13
                                        III.

       For the foregoing reasons, we grant in part and deny in

part       the    petition   for   review.     Specifically,     we    vacate   the

Board’s order and instruct the Board to return this case to the

IJ   for     de   novo   NACARA    proceedings    that   apply   the    pre-IIRIRA

definition of aggravated felony. We deny as moot the pending

motion to remand this case to the Board. 7

                                                     PETITION GRANTED IN PART
                                                           AND DENIED IN PART




       7
       While the petition for review was pending, the Attorney
General filed a motion to remand this case to the Board for
reconsideration in light of Salem v. Holder, 647 F.3d 111 (4th
Cir. 2011), cert. denied, 132 S. Ct. 1000 (2012), and to correct
a defect in the Certified Administrative Record. The Court
deferred action on the motion, which, in view of our decision on
the merits, is denied as moot.



                                         14
BARBARA MILANO KEENAN, Circuit Judge, dissenting:

      I   disagree     with      the    majority’s       interpretation       of    IIRIRA

§ 321(c).     Therefore, I respectfully dissent from Section II(A).

      The   provisions        in      IIRIRA    § 321(b)       make   clear     that   the

revised     definition      of     the    term     “aggravated        felony”      applies

“regardless of whether the conviction was entered before, on, or

after” IIRIRA’s enactment.                See Mondragón v. Holder, 706 F.3d

535, 542-43 (4th Cir. 2013).                   In IIRIRA § 321(c), the statute

provides:

      EFFECTIVE DATE. – The amendments made by this section
      shall apply to actions taken on or after the date of
      the enactment of this Act [September 30, 1996],
      regardless of when the conviction occurred.

(emphasis added).

      The majority acknowledges that the term “actions taken” is

not   defined    and   is     ambiguous.          Yet,    the   majority      “eschew[s]

critical analysis of the meaning of the phrase ‘actions taken,’

instead     substituting         in    its     place     the    phrase    ‘proceedings

initiated.’”      Biskupski v. Att’y Gen., 503 F.3d 274, 283 (3d

Cir. 2007) (discussing the analysis in Tran v. Gonzales, 447

F.3d 937 (6th Cir. 2006)).

      In my view, the majority of circuit courts to consider the

meaning of “actions taken” have properly concluded that the term

refers to actions and decisions by the Attorney General acting

through     an   IJ    or     BIA.        See     generally,      Garrido-Morato        v.


                                             15
Gonzales, 485 F.3d 319, 324 (5th Cir. 2007); Biskupski, 503 F.3d

at 283; Xiong v. I.N.S., 173 F.3d 601, 607 (7th Cir. 1999);

Choeum      v.      I.N.S.,      129     F.3d        29,    36-37      (1st      Cir.      1997);

Valderrama-Fonseca v. I.N.S., 116 F.3d 853, 856-57 (9th Cir.

1997).

       I    am      persuaded    by     the     analysis         employed       by   the   Fifth

Circuit in Garrido-Morato.                    See 485 F.3d at 324.                   There, the

court observed that because IIRIRA § 321(c) is “an effective

date provision for § 321,” the term “‘actions taken’ must refer”

to actions “taken under the statute, such as determining the

meaning       of    ‘aggravated        felony’       and    thus    the    availability       of

discretionary hardship relief to such felons.”                            Id.

       In     the    present     case,    the     IJ       and   BIA   applied       the   INA’s

definition for “aggravated felony” in the petitioner’s case in

2010    and      2011,   after    IIRIRA’s       effective         date.         Therefore,    I

would affirm the decision that the petitioner is ineligible for

relief under NACARA because he was convicted of a disqualifying

aggravated felony and would deny the petition for review in this

case.




                                                16
