Rubio Alcaraz v. Gonzalez
Docket: No. 03-71310
Court: Court of Appeals for the Ninth Circuit; February 23, 2005; Federal Appellate Court
Roberto Rubio-Alcaraz was found removable due to a February 9, 1999, domestic violence conviction under 8 U.S.C. § 1227(a)(2)(E), to which he conceded removability. The Immigration Judge (IJ) pretermitted his application for cancellation of removal, determining that he did not meet the statutory requirement of seven years of continuous residency as outlined in 8 U.S.C. § 1229b(a). The Board of Immigration Appeals (BIA) upheld this ruling and also denied Rubio-Alcaraz’s claim for relief under former INA § 212(c). The BIA correctly found Rubio-Alcaraz statutorily ineligible for cancellation of removal. Continuous residence begins upon admission in any status, which for Rubio-Alcaraz started on August 8, 1987. However, continuous residence is interrupted if an alien commits a crime of moral turpitude. Rubio-Alcaraz was convicted of corporal injury to a spouse or cohabitant on September 17, 1993, qualifying as a crime of moral turpitude, thus failing the seven-year requirement for cancellation of removal. Additionally, the BIA determined that Rubio-Alcaraz was ineligible for relief under former INA § 212(c) due to the repeal of this provision by the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) in 1996. Rubio-Alcaraz’s Notice to Appear was filed on March 1, 1999, nearly two years post-IIRIRA's implementation, rendering him ineligible for the discretionary relief that was previously available under § 212(c). The BIA's conclusions regarding Rubio-Alcaraz's ineligibility were consistent with established legal principles, and his expectation of no immigration consequences from his earlier guilty plea was undermined by subsequent convictions for domestic violence. The application of IIRIRA’s provisions was not deemed impermissibly retroactive, as he had been made aware of its implications by the time of his 1999 plea. The petition for review was denied, and the disposition is not suitable for publication or citation in this circuit, except as permitted by Ninth Circuit Rule 36-3. Notably, Rubio-Alcaraz had prior convictions, including three instances of the same crime relevant to the analysis of his eligibility for relief from removal, and additional offenses that influenced the BIA’s decision regarding voluntary departure.