Fontes v. Gonzales, No. 05-1755 (3/30/07). Revised. I looked at my old writeup and realized that it was the product of more cough-syrup than legal analysis. So here we go again. It is big.
In 1985 the petitioner, who moved to the US when he was three, committed a sexual assault. He was convicted of it in 1993. Therefore, on
May 21, 1994, Fontes was found not deportable as the charged crime was not an aggravated felony under the then-applicable law. Pursuant to § 501(b) of the Immigration Act of 1990 ("IMMACT") (which added "crimes of violence" to the category of aggravated felony offenses), only crimes of violence committed after the November 1990 effective date of IMMACT would qualify as aggravated felonies. Because Fontes's offense conduct occurred prior to 1990, the IMMACT amendments did not apply. The deportation proceedings were accordingly terminated. The government waived appeal to the Board, and the decision was final.
Then, the Illegal Immigration Reform and Responsibility Act ("IIRIRA") was passed, unlike the IMMACT, there was a retroactivity provision. So, the the government tried again to deport him. The IJ and the BIA agreed. In 1998, he tried to appeal to the First, but the First dismissed the appeal because the “Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (April 24, 1996), amended the INA to preclude judicial review of final deportation orders involving aliens convicted of certain crimes, including aggravated felonies. See INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C).”
Meanwhile, the same time he filed a motion to reopen with the board, arguing that he never received a “transcript or briefing schedule for the appeal and arguing that the case was improperly decided without briefing or argument.” Surprisingly, he won both the motion to reopen, and achieved a partial victory. Although most of his claims were rejected, the board “found that the record was insufficient for it to evaluate Fontes's argument that his removal was barred by res judicata, because nothing pertaining to the 1993 deportation proceeding had been included in the record. The Board thus remanded for "reconstruction" of the record relating to the 1993 proceeding.” So, an IJ supplemented the record. The BIA, found that “res judicata was not a bar because the current removal proceeding was a change in the law brought about by Congress's 1997 amendment of the INA's aggravated felony definition, causing it to apply retroactively to all convictions within its ambit..” and “such a change in the law, the Board ruled, ‘is generally considered an exception to the doctrine of res judicata.’" He didn’t immediately seek review or file a petition for habeas. Instead, he tried to reopen under INS v. St. Cyr, 533 U.S. 289 (2001), citing new regulations and the hardships he would suffer if deported back to the land (Cape Verde) that he had never known. This was denied.
So, he appealed. The First rules that he can’t raise his res judicata claim again because it is time-barred, and therefore jurisdictionally barred. (See discussions of this issue here.)
But, he makes another argument that is more interesting. He argues that his failure to file on time should be excused because “when the Board handed down its adverse ruling on res judicata and dismissed his administrative ...appeal, he had no legal remedy in our court for the bringing of a petition for review.” Then, the First goes off on a bit of a limb and says “any review process in our court, is that Congress was under no obligation to have provided him with one.... Congress's power to fashion immigration procedures is virtually unlimited; only constitutional considerations, not present here, would warrant a court's overriding Congress's carefully-crafted review provisions.” The Fist rejects the idea that Rogers v. United States, 180 F.3d 349, 354 (1st Cir. 1999) (one year grace period in for petitions after effective date of AEDPA) applies because Congress’s control over immigration proceedings is “plenary.” So, he doesn’t get a grace period.
Secondly, and somewhat less interestingly, the First affirms the denial of the motion to reopen. Citing Kim v. Gonzales, 468 F.3d 58, 62-63 (1st Cir. 2006) (our coverage here). Essentially, the First rejects an equal protection “finding that for purposes of comparability analysis, the proper inquiry concerned whether "[t]he specific category of aggravated felony at issue" had a statutory counterpart in section 212(a)attack on the “comparability” doctrine in which “...for purposes of comparability analysis, the proper inquiry concerned whether ‘[t]he specific category of aggravated felony at issue’ had a statutory counterpart in section 212(a)”
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