DOMINGO SANTIAGO NUÑEZ PEÑA, AKA DOMINGO S. NUÑEZ, AKA DOMINGO NUÑEZ, AKA MINGO NUÑEZ, AKA DOMINGO SANTIAGO MUÑEZ, AKA DOMINGO S. MUÑEZ, AKA DOMINGO SANTIAGO NUÑEZ, Petitioner,
LORETTA E. LYNCH, UNITED STATES ATTORNEY GENERAL, Respondent
May 13, 2016
Petition for Review of a Decision of the Board of Immigration
Petitioner Domingo Santiago Nuñez Peña, a
native and citizen of the Dominican Republic, seeks review of
a December 16, 2014 decision of the Board of Immigration
Appeals affirming a September 2, 2014 decision of an
Immigration Judge denying his applications for a waiver of
deportation under former Immigration and Nationality Act
§ 212(c), 8 U.S.C. § 1182(c) (repealed 1996), and
cancellation of removal under current INA § 240A(a), 8
U.S.C. § 1229b(a). Nuñez Peña acknowledges
that our decision in Peralta-Taveras v. Attorney
General, 488 F.3d 580 (2d Cir. 2007), appears to
preclude him from obtaining relief, but argues that
Peralta-Taveras did not survive the Supreme Court's
decision in Vartelas v. Holder, 132 S.Ct. 1479, 182
L.Ed.2d 473 (2012). Finding nothing in Vartelas that casts
doubt on the continuing validity of Peralta-Taveras, we DENY
the petition for review.
K. BOROWSKI, Law Office of Matthew Borowski, Buffalo, NY, for
BAYRAM, Trial Attorney (Benjamin C. Mizer, Principal Deputy
Assistant Attorney General, and Leslie McKay, Assistant
Director, Office of Immigration Litigation, on the brief),
U.S. Department of Justice, Civil Division, Washington, D.C.,
CABRANES, STRAUB, and LOHIER, Circuit Judges.
A. CABRANES, Circuit Judge
Domingo Santiago Nuñez Peña ("
Nuñez Peña" ), a native and citizen of the
Dominican Republic, seeks review of a December 16, 2014
decision of the Board of Immigration Appeals ("
BIA" ) affirming a September 2, 2014 decision of an
Immigration Judge (" IJ" ) denying his applications
for a waiver of deportation under former Immigration and
Nationality Act (" INA" ) § 212(c), 8 U.S.C.
§ 1182(c) (repealed 1996), and cancellation of removal
under current INA § 240A(a), 8 U.S.C. § 1229b(a).
See In re Domingo Santiago Nuñez Peña,
No. A014 818 653 (B.I.A. Dec. 16, 2014), aff'g
No. A014 818 653 (Immig. Ct. Buffalo Sept. 2, 2014).
Nuñez Peña was ordered removed on the basis of
three aggravated-felony convictions dating from 1991 and four
controlled-substance convictions dating from 1997, 1999, and
2011; our review is therefore limited to constitutional
claims and questions of law. See 8 U.S.C. §
1252(a)(2)(C), (D). Nuñez Peña's submission
raises questions of law, see Centurion v.
Holder, 755 F.3d 115, 118 (2d Cir. 2014); Richmond
v. Holder, 714 F.3d 725, 728 (2d Cir. 2013), but we
resolve none of them in his favor.
avoid removal, Nuñez Peña requires two forms of
relief. As of 1991, when he was convicted of three aggravated
felonies, " the Attorney General was authorized to grant
discretionary relief from exclusion or deportation under
former § 212(c) of the INA."
Peralta-Taveras, 488 F.3d at 583. With the passage
of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (" IIRIRA" ), §
212(c) was repealed and effectively replaced with §
240A(a), which empowers the Attorney General to " cancel
removal . . . of an alien who is inadmissible or deportable .
. . if the alien" has (1) been " lawfully admitted
for permanent residence for not less than 5 years," (2)
" resided in the United States continuously for 7 years
after having been admitted in any status," and (3) never
" been convicted of any aggravated felony." 8
U.S.C. § 1229b(a).
INS v. St. Cyr, a case decided on the basis of the
presumption against retroactivity, Nuñez Peña
remains eligible for § 212(c) relief with respect to his
1991 convictions to the extent that such relief was available
to him at the time he entered his guilty pleas. See
533 U.S. 289, 326, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001).
But Nuñez Peña's 1997, 1999, and 2011
convictions occurred after the enactment of IIRIRA; as a
result, relief from the consequences of those convictions
must be had, if at all, under § 240A(a). See
Peralta-Taveras, 488 F.3d at 583. Accordingly,
Nuñez Peña may avoid removal only by
demonstrating that he is entitled to relief under both §
212(c) and § 240A(a).
made clear in our decision in Peralta-Taveras, two
independent barriers stand in his way. First, " [t]he
text of § 240A(a) is clear and unambiguous--cancellation
of removal is not available to aliens who have been convicted
of an aggravated felony." Id. at 584. This bar
would prevent Nuñez Peña from securing
cancellation of removal even if he were to obtain a §
212(c) waiver, because the granting of such a waiver "
does not expunge the underlying offense or its categorization
as an aggravated felony." Id. Second, "
Section 240A(c)(6) [of the INA] expressly precludes
cancellation of removal for aliens who have previously
received relief under § 212(c)," a prohibition that
applies " whether or not the applications [under each
provision] are simultaneous." Id. at 585. On
two fronts, then, Nuñez Peña's petition
fails under our case law.
as much, Nuñez Peña argues that
Peralta-Taveras did not survive the Supreme
Court's 2012 decision in Vartelas. Vartelas,
like St. Cyr, was a retroactivity case. It concerned
a petitioner who had, prior to the enactment of IIRIRA,
pleaded guilty to a counterfeiting offense. See
Vartelas, 132 S.Ct. at 1485. Before IIRIRA, this
conviction did not affect the petitioner's ability to
make a brief trip outside the United States, because--under
the Supreme Court's decision in Rosenberg v.
Fleuti, 374 U.S. 449, 461-62, 83 S.Ct. 1804, 10 L.Ed.2d
1000 (1963)--a lawful permanent resident's return from
such a trip did not qualify as " entry" into this
country. See Vartelas, 132 S.Ct. at 1484.
But IIRIRA superseded Fleuti by subjecting one
returning from a jaunt abroad to " admission"
procedures and, with them, potential removal from the United
States on the ground of inadmissibility. See
id. at 1484-85. In Vartelas, the Court
concluded that, if applied to the petitioner, IIRIRA's
" admission" provision--by attaching a new
disability, in the form of an effective bar on foreign
travel, to his pre-IIRIRA conviction--would operate with
retroactive effect. See id. at 1486-88.
Congress having failed to make clear that it desired
retroactive application of the provision in question, the
Court held that it applied only prospectively. See
id. at 1491-92.
on Vartelas, Nuñez Peña argues that
§ 240A(a)'s bar on eligibility for aggravated felons
would operate retroactively if applied to preclude
cancellation of removal for a person (like him) convicted of
an aggravated felony prior to IIRIRA's enactment. We are
Peña's attempt to liken his post-IIRIRA
convictions to the post-IIRIRA conduct at issue in
Vartelas (i.e., taking a short trip outside the
United States) falls flat. In determining that IIRIRA imposed
a " new disability" on old conduct through its
" effective[ ] . . . ban on travel outside the United
States," the Vartelas Court emphasized that the
" [l]oss of the ability to travel abroad is . . . a
harsh penalty." Id. at 1487-88. Nuñez
Peña--who never enjoyed, in the sense relevant ...