Filed: Mar. 16, 2006
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT March 15, 2006 _ Charles R. Fulbruge III Clerk No. 04-40746 _ FRANCISCO GUERRA-MOYA, Petitioner-Appellant, versus A.G. WINFREY, INTERIM FIELD OFFICE DIRECTOR, BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT and ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL, Respondents-Appellees. _ On Appeal from the United States District Court for the Southern District of Texas No. 1:03-CV-00149 _ Before JONE
Summary: United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT March 15, 2006 _ Charles R. Fulbruge III Clerk No. 04-40746 _ FRANCISCO GUERRA-MOYA, Petitioner-Appellant, versus A.G. WINFREY, INTERIM FIELD OFFICE DIRECTOR, BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT and ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL, Respondents-Appellees. _ On Appeal from the United States District Court for the Southern District of Texas No. 1:03-CV-00149 _ Before JONES..
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United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 15, 2006
_______________________ Charles R. Fulbruge III
Clerk
No. 04-40746
_______________________
FRANCISCO GUERRA-MOYA,
Petitioner-Appellant,
versus
A.G. WINFREY, INTERIM FIELD OFFICE DIRECTOR,
BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT and
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondents-Appellees.
_________________________________________________________________
On Appeal from the United States District Court
for the Southern District of Texas
No. 1:03-CV-00149
________________________________________________________________
Before JONES, Chief Judge, and KING and DENNIS, Circuit Judges.
PER CURIAM:*
Francisco Guerra-Moya appeals the district court’s denial
of his petition for a writ of habeas corpus. Converting Guerra-
Moya’s habeas petition into a timely filed petition for review of
the decision of the Board of Immigration Affairs (“BIA”), we find
that Guerra-Moya is eligible to apply for discretionary relief
under former INA § 212(c), and therefore GRANT his petition and
REMAND his case to the BIA.
I. Background
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
Francisco Guerra-Moya is a citizen and national of Mexico
who entered the United States as a lawful permanent resident
(“LPR”) in 1976. Since 1976, he has not lived in Mexico and has
continuously resided in the United States. On August 23, 1982,
Guerra-Moya was convicted of burglary in Texas; under a plea
agreement, he served a two-year suspended sentence on probation,
after which his conviction was set aside. On March 28, 1997,
Guerra-Moya was convicted of “unlawful carrying of a weapon” in
Texas. On February 3, 2000, the former Immigration and
Naturalization Service (“INS”) issued a notice to appear, charging
Guerra-Moya with removability due to the weapon offense. At his
hearing before an immigration judge (“IJ”), Guerra-Moya sought
relief in the form of cancellation of removal. See INA § 240A(a).
The IJ determined that Guerra-Moya was ineligible for relief
because (1) his 1982 burglary conviction remained valid for
immigration purposes and constituted a disqualifying aggravated
felony under the INA, and (2) Guerra-Moya could not show the
requisite seven-year period of continuous residency required for
relief, as his 1982 conviction had terminated his accrual of
continuous residence under the “stop-time” provisions of the INA.
On appeal, the BIA affirmed the IJ without opinion.
Guerra-Moya then brought a petition for review in this court, which
was dismissed for lack of jurisdiction. He next petitioned for
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habeas relief in the district court. Adopting the recommendation
of the magistrate judge, the district court denied relief for
essentially the same reasons as the IJ, holding inter alia that the
current definition of “aggravated felony” was properly
retroactively applied to Guerra-Moya’s 1982 conviction, and that
the 1982 conviction had cut off Guerra-Moya’s accumulation of
continuous residence time for the purposes of discretionary relief.
Guerra-Moya appealed, and while his appeal was pending, the REAL ID
Act, Pub. L. No. 109-13, 119 Stat. 231 (2005) became law.
II. Discussion
The REAL ID Act divests the district courts of
jurisdiction over the habeas petitions of aliens; instead, REAL ID
Act § 106 states that “a petition for review shall be the sole and
exclusive means for judicial review of an order of removal entered
or issued under any provision of [the INA].” This Court in Rosales
v. Bureau of Immigration & Customs Enforcement, 426 F.3d 733 (5th
Cir. 2005), held that “habeas petitions on appeal as of May 11,
2005 [the effective date of the REAL ID Act] . . . are properly
converted into petitions for review.”
Id. at 736. As Guerra-
Moya’s appeal was pending at the time the REAL ID Act became law,
we thus convert his habeas petition into a petition for review of
the BIA decision.
On a petition for review, we review the factual findings
of the BIA under the substantial evidence standard. Ontunez-
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Tursios v. Ashcroft, 303 F.3d 341, 350 (5th Cir. 2002). The BIA’s
determinations as to purely legal questions are reviewed de novo.
Omagah v. Ashcroft,
288 F.3d 254, 258 (5th Cir. 2002). Although
this Court generally reviews only the decision of the BIA on
petitions for review, we may review an IJ’s decision when, as here,
the BIA affirms without opinion. Thuri v. Ashcroft,
380 F.3d 788,
791 (5th Cir. 2004).
The Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (“IIRIRA”) eliminated discretionary
relief from removal under INA § 212(c)(formerly codified at 8
U.S.C. § 1182(c)), and replaced it with cancellation of removal
under INA § 240A (8 U.S.C. § 1229(b)).1 However, the Supreme Court
held in INS v. St. Cyr, 533 U.S. 289,
121 S. Ct. 2271 (2001) that
Ҥ 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.”
Id. at 325, 121 S. Ct. at 2293. Guerra-Moya’s conviction
for burglary was obtained through a plea agreement, and as
discussed, infra, he would have been eligible to apply for § 212(c)
relief in spite of his burglary conviction. Thus, subsequent
1
Because we conclude that Guerra-Moya is eligible for § 212(c)
relief, we need not address issues raised relating to cancellation of removal.
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limitations on § 212(c) relief cannot be applied retroactively to
Guerra-Moya’s 1982 conviction.
Under the former § 212(c), an alien was permitted to seek
discretionary relief from removal provided that he or she (1) was
a legal permanent resident, and (2) had “maintained a lawful
unrelinquished domicile in the United States for seven consecutive
years.” Ashby v. INS, 961 F.2d 555, 557 (5th Cir. 1992). Guerra-
Moya plainly meets the first requirement for relief, as he has been
an LPR for nearly thirty years. The second requirement is slightly
more complicated. At the time of his burglary conviction, Guerra-
Moya had been an LPR in the United States for a continuous period
of roughly six years, four months. The IJ and the district court
both concluded that Guerra-Moya’s burglary conviction stopped his
accumulation of lawful residency, and prevented him from reaching
the seven years required for relief. However, this conclusion was
erroneous, as “St. Cyr does not require an alien to have accrued
seven years of lawful domicile at the time of his or her plea in
order to qualify for relief under § 212(c).” Alvarez-Hernandez v.
Acosta,
401 F.3d 327, 331 (5th Cir. 2005). As with the petitioner
in Alvarez-Hernandez, Guerra-Moya entered his guilty plea at a time
when circuit law “allowed aliens to accrue additional time towards
their total period of continuous unrelinquished domicile” until the
initiation of removal proceedings against them.
Id. at 332. Thus,
under Alvarez-Hernandez, Guerra-Moya should have been allowed to
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accumulate continuous residency time until 2000.2 By that point,
he would have been continuously residing in the United States for
more than seven years. Thus, Guerra-Moya meets all the basic
requirements to apply for relief under § 212(c), and the BIA erred
in its treatment of his aggravated felony conviction and its
application of the “stop-time” rule.
III. Conclusion
In light of this court’s opinion in Alvarez-Hernandez, we
conclude that Guerra-Moya is eligible to apply for discretionary
relief under former INA § 212(c). Guerra-Moya’s petition for
review is therefore GRANTED, and his case is REMANDED to the BIA,
with instructions that the Board consider his application for
discretionary § 212(c) relief.
2
Such a conclusion is also consistent with the language of 8 C.F.R.
§ 1003.44(b)(3).
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