Herbert Salvador Romero-Rodriguez sought a waiver of removal under the Immigration and Nationality Act (INA) § 212(c), which allows the U.S. Attorney General discretion to waive removal for permanent residents who have been in the U.S. for over seven years and have not served more than five years in prison. Romero's eligibility was challenged after the Board of Immigration Appeals (BIA) denied his application twice: first in 2000, when he had served less than five years, and then again in 2004, when he had served more than five years.
The BIA's 2004 denial was based on its assertion that eligibility should be assessed at the time of the second decision, while Romero contended it should be based on the erroneous denial in 2000. The case raises conflicting precedents from other circuits regarding the interpretation of eligibility timing. Romero, a legal permanent resident since 1989, had a conviction for aggravated assault, which led to removal proceedings initiated by the INS. His initial request for a § 212(c) waiver was denied due to the statutory revocation of such waivers in 1996, which restricted eligibility to cases pending at that time. Ultimately, Romero's request was denied on March 31, 2000, the date of the BIA's decision.
The BIA's decision regarding Romero's eligibility for 212(c) relief was erroneous. Following the Supreme Court's 2001 ruling in INS v. St. Cyr, which broadened 212(c) eligibility to include aliens with plea agreement convictions, the BIA was required to consider Romero's request for 212(c) relief based on his 1994 guilty plea prior to the revocation of 212(c). After Romero's 2002 motion to reopen was granted, both the IJ and BIA denied his application, citing his incarceration of over five years, rendering him statutorily ineligible. The BIA issued a second denial on March 10, 2004.
Romero's appeal raises a question of statutory interpretation, granting jurisdiction under 8 U.S.C. 1252. The review of the BIA’s legal conclusions is conducted de novo, but substantial deference is given to the agency’s interpretation of the statutes it administers, as established by Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. The key issue is determining the relevant date for assessing Romero's time served in prison: Romero argues for the date of his initial 2000 denial, while the government cites the 2004 denial following the reopening. The statute, 8 U.S.C. 1182(c), does not clearly specify which date should be used for this determination, complicating the interpretation. The statutory language permits discretion for the Attorney General regarding the admission of aliens with certain felony convictions, but lacks clarity on the time served requirement.
Romero did not present arguments nor did any case law suggest that regulations for reopening cases necessitate treating them as if considered at the time of the initial hearing (referencing 8 C.F.R. 1003.2). There is a disagreement with the First Circuit's interpretation, which asserted that the relevant date for assessing eligibility is the date of the BIA's denial following the reopening, as seen in Pereira v. Gonzales. The Second Circuit avoided addressing whether Chevron deference applies in similar circumstances (Edwards v. INS). While the statute has been interpreted to apply to the deportation of lawful permanent residents in the U.S., it appears to primarily address aliens returning from abroad, indicating that section 212(c) does not provide relief for those who have never left the country. This creates ambiguity regarding eligibility determinations for individuals currently in the U.S., particularly those imprisoned. The statute does not clarify whether the time served should be assessed at the date of the initial denial or the subsequent denial. The government's stance that the relevant date is when the BIA issues its final decision is complicated by the existence of two final decisions: one from 2000 and another from 2004 after reopening. The ambiguity prevents a definitive ruling on which date is pertinent for determining time served. Consequently, the analysis proceeds to evaluate whether the BIA's interpretation—that the relevant date is the date of subsequent denial—constitutes a permissible construction under Chevron. Although the BIA's interpretation may create inequitable outcomes for Romero, it aligns with the statute and policy framework, which allows the agency to prioritize the removal of aggravated felons over protecting their equities. Administrative agencies are granted the authority to develop policies and rules to address legislative gaps within their purview.
Simply highlighting potential hardships under the BIA's interpretation does not suffice to prove its unreasonableness. The BIA's interpretation that the relevant date for assessing whether an alien's imprisonment exceeds five years is the date of the BIA's denial after reopening the case is upheld. Romero seeks relief through the equitable doctrine of nunc pro tunc, which allows for backdating actions to correct errors made by an adjudicating body, not by the party seeking relief. The BIA's initial denial of Romero's 212(c) eligibility is acknowledged as erroneous, but the core issue is whether this error qualifies for nunc pro tunc remedy. While this court cannot compel the BIA to consider Romero’s application nunc pro tunc, it may remand the case for proper consideration.
The complexity arises from the distinct nunc pro tunc authorities of the court and the BIA. Courts traditionally apply nunc pro tunc to rectify clerical or record-keeping errors. Such a judgment amends the record to reflect what was genuinely done by the judge to ensure accuracy. However, a court cannot use nunc pro tunc to remedy failures or incorrect actions. Conversely, the BIA has historically employed nunc pro tunc for backdating orders even without clerical errors. The BIA can justify a nunc pro tunc order to fulfill the INA’s objectives, regardless of errors by the DHS.
The First Circuit has rejected requests for nunc pro tunc applications for 212(c) waivers, limiting its use to clerical errors and not for correcting judgments that represent the agency's intentions. In contrast, the Second Circuit has allowed broader applications of nunc pro tunc in immigration cases. Nevertheless, this court aligns with the First Circuit, affirming that its nunc pro tunc authority does not extend beyond correcting clerical errors and cannot be used to remedy the BIA's erroneous denial of Romero's 212(c) waiver application.
The court found that it lacks the equitable authority to order nunc pro tunc proceedings but noted that the Board of Immigration Appeals (BIA) has discretionary power to allow such proceedings in two specific situations: (1) when they would eliminate the sole ground for deportability or inadmissibility, and (2) when the alien could receive a grant of adjustment of status with any applicable waivers. The BIA failed to determine whether Romero qualified for either situation in its 2004 denial, neglecting his specific request for nunc pro tunc relief and erroneously adopting the Immigration Judge’s (IJ) decision, which incorrectly applied nunc pro tunc considerations. The IJ asserted that nunc pro tunc could not change Romero’s current status due to his prior six-year prison sentence for an aggravated felony, a conclusion deemed a legal error. The BIA's acceptance of this mistaken view led to an improper application of its nunc pro tunc authority. Consequently, the court remanded the case to the BIA to evaluate the availability of nunc pro tunc authority for Romero's situation and to determine if he can submit a nunc pro tunc application for a 212(c) waiver. Additionally, the court clarified that while it cannot order Romero's application to be accepted nunc pro tunc, the BIA has historically exercised broader authority in this area. The court refrained from expressing an opinion on the appropriateness of applying nunc pro tunc in Romero's case, only noting that if permitted, it could reinstate his eligibility.
