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Garcia-Padron v. Holder

February 26, 2009

EMIGDO LOOESKY GARCIA-PADRON, PETITIONER,
v.
ERIC H. HOLDER, JR., UNITED STATESATTORNEY GENERAL,*FN1 RESPONDENT.



SYLLABUS BY THE COURT

Petition for review of a judgment of the Board of Immigration Appeals dismissing an appeal from an Immigration Judge's order denying petitioner waiver of inadmissibility under former section 212(c) of the Immigration and Nationality Act, on the ground that petitioner's conviction of petit larceny after the effective date of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") rendered him ineligible for such relief.

We conclude that section 309(c) of IIRIRA preserves petitioner's eligibility for relief under former section 212(c) because petitioner's deportation proceeding commenced prior to the effective date of IIRIRA.

The opinion of the court was delivered by: Reena Raggi, Circuit Judge

Argued: December 8, 2008

Before: KEARSE, RAGGI, and LIVINGSTON, Circuit Judges.

Petition GRANTED, judgment VACATED, and case REMANDED for further proceedings.

Emigdo Looesky Garcia-Padron petitions for review of the March 20, 2008 order of the Board of Immigration Appeals ("BIA"), which dismissed Garcia-Padron's appeal from the April 13, 2006 written decision of Immigration Judge ("IJ") Margaret McManus, in which the IJ denied petitioner's request for waiver of inadmissibility under former section 212(c) of the Immigration and Naturalization Act ("INA"), 8 U.S.C. § 1182(c) (repealed 1996). See In re Garcia-Padron, No. A30 868 457 (B.I.A. Mar. 20, 2008), aff'g No. A30 868 457 (Immig. Ct. New York City Apr. 13, 2006). Because we identify legal error in the BIA's failure to apply the law as it existed before the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L. No. 104-208, § 304(b), 110 Stat. 3009-546, 3009-597, to petitioner's request for section 212(c) relief, we grant the petition, vacate the BIA judgment, and remand this case to the agency for further proceedings consistent with this opinion.

I. Background

Petitioner Garcia-Padron is a citizen of the Dominican Republic who has been a lawful permanent resident of the United States since August 21, 1972. He has been convicted of numerous crimes in New York, and it is the timing of his most recent convictions that give rise to the legal issue presented by his petition.For purposes of addressing Garcia-Padron's claim, we observe that on October 14, 1992, petitioner was convicted upon a guilty plea of two counts of second-degree attempted robbery in violation of New York Penal Law § 160.10 and was sentenced to one-to-three years in prison. While incarcerated, Garcia-Padron was served with an Order to Show Cause charging him with deportability under former section 241(a)(2)(A)(ii) of the INA for having been convicted of multiple crimes of moral turpitude not arising out of a single course of conduct. GarciaPadron was paroled on August 24, 1993, and released into the custody of the Immigration and Naturalization Service ("INS"), from which he was released after posting an $8,000 bond.

Garcia-Padron thereafter violated his state parole by striking and grabbing the driver of an ambulance, which caused the ambulance to crash into a parked car, ejecting the driver from the ambulance. Following this parole violation, Garcia-Padron was returned to prison to serve the remainder of his three-year sentence for attempted robbery. Meanwhile, the INS requested that Garcia-Padron's deportation proceedings be administratively closed during his incarceration, and on February 22, 1994, the IJ granted the unopposed request.

On March 3, 1994, Garcia-Padron pleaded guilty to reckless endangerment in the second degree in violation of New York Penal Law § 120.20 and was sentenced to time served. He was subsequently released from prison on September 7, 1995, having completed the remainder of the three-year sentence on his 1992 attempted robbery convictions.

Garcia-Padron's absence from the New York state penal system was short-lived. On December 15, 1998, he was convicted following a bench trial of petit larceny in violation of New York Penal Law § 155.25 and third-degree menacing in violation of New York Penal Law § 120.15. He was sentenced to time served and three years' probation.

Approximately three years later, on December 19, 2001, the INS reopened GarciaPadron's deportation proceeding and, on August 7, 2002, the agency amended the charges of deportability to include Garcia-Padron's 1998 conviction for petit larceny. Garcia-Padron appeared before the IJ on January 29, 2003, and conceded deportability under INA section 237(a)(2)(A)(ii) in light of his convictions for "two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct," 8 U.S.C. § 1227(a)(2)(A)(ii),*fn2 specifically, his 1992 attempted robbery convictions and his 1998 petit larceny conviction. He applied for a waiver of inadmissibility under former section 212(c) of the INA, which the IJ denied on the ground that petitioner's 1998 petit larceny conviction rendered him ineligible for such relief. The BIA dismissed the appeal, concluding that the ...


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