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Centurion v. Sessions

United States Court of Appeals, Second Circuit

June 21, 2017

Charles William Centurion, Petitioner,
v.
Jefferson B. Sessions III, United States Attorney General, Respondent.

          Argued: February 28, 2017

         Petitioner Charles William Centurion, a lawful permanent resident of the United States, was placed in removal proceedings after a brief 2007 trip to the Dominican Republic because of a drug offense he committed in Texas in 1990. The drug offense was not finally adjudicated until 2007. Between the date of the commission of Centurion's crime and the date of its final adjudication, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"). Prior to IIRIRA's passage, lawful permanent residents who left the United States for brief trips were not subject to formal admission procedures upon their return to the United States. After IIRIRA's passage, certain lawful permanent residents returning to the United States from a brief trip abroad must seek formal admission to the United States. Invoking Vartelas v. Holder, 566 U.S. 257 (2012), and the presumption against retroactive legislation, Centurion claims that because he committed his drug offense prior to IIRIRA's passage, he should not have been forced to seek admission to the United States after his brief vacation to the Dominican Republic in 2007. We agree and conclude that the Board of Immigration Appeals ("BIA") should evaluate Centurion's motions to reopen his removal proceedings and to stay his removal under the law in effect at the time of the commission of Centurion's 1990 drug offense.

         Accordingly, we GRANT the petition for review, VACATE the BIA's January 27, 2015 order, and REMAND the case to the BIA for further proceedings consistent with this opinion.

          Alina Charniauskaya (Theodore N. Cox, on the brief), Law Office of Theodore N. Cox., New York, NY for Petitioner.

          Sabatino F. Leo, Trial Attorney (Benjamin C. Mizer, Principal Deputy Assistant Attorney General, and Anthony P. Nicastro, Assistant Director, Office of Immigration Litigation, on the brief), United States Department of Justice, Civil Division, Washington, DC for Respondent.

          Before: Katzmann, Chief Judge, Pooler and Lynch, Circuit Judges.

          Katzmann, Chief Judge:

         In this case, we are called on to determine whether the presumption against retroactive legislation bars the application of an immigration statute. After Petitioner Charles William Centurion committed a drug crime but before Centurion's crime was adjudicated, Congress passed a statute with immigration consequences for any lawful permanent resident who "has committed" a drug crime. 8 U.S.C. § 1101(a)(13)(C)(v). The question is whether the statute can be given effect with respect to Centurion's crime, even though Centurion committed the crime before the statute's passage. We conclude that the presumption against retroactive legislation bars such an application because the plain text of the statute attaches legal consequences at the time a lawful permanent resident commits a crime, rather than at the time of conviction.

         Background

         Petitioner Charles William Centurion is a native and citizen of Peru. On November 4, 1989, he became a lawful permanent resident of the United States. In 1990, Centurion was arrested and charged in the Criminal District Court for Dallas County, Texas with conspiracy to possess cocaine. Centurion posted bail and fled the state. His Texas criminal case remained unresolved for seventeen years.

         During Centurion's years as a fugitive, Congress took two legislative actions material to his case. To fully describe the import of these actions on Centurion's case, it is necessary to explain some general principles of immigration law. First, the Attorney General formerly enjoyed the discretion, under certain circumstances, to waive the deportation of aliens under § 212(c) of the Immigration and Nationality Act ("INA"). An alien subject to deportation could apply for such a waiver, which was generally known as "212(c) relief." See INA § 212(c), 8 U.S.C. § 1182(c) (repealed 1996). The first Congressional action material to Centurion's case was the repeal of INA § 212(c): in 1996, through the passage of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, § 440(d), 110 Stat. 1214, 1276-77, and then IIRIRA, Pub.L. No. 104-208, § 304(b), 110 Stat. 3009, 3009-597, Congress narrowed and ultimately eliminated § 212(c) relief and replaced it with cancellation of removal, 8 U.S.C. § 1229b(a).

         The second Congressional action material to Centurion's case concerned the Fleuti doctrine. Under Rosenberg v. Fleuti, 374 U.S. 449 (1963), a lawful permanent resident of the United States was not subject to exclusion proceedings, the pre-IIRIRA analogue to removal proceedings for an alien seeking entry into the United States, if the lawful permanent resident's departure from the United States was "an innocent, casual, and brief excursion." Id. at 462. In other words, lawful permanent residents could come and go from the United States on short trips without formally seeking admission. Through the passage of IIRIRA in 1996, Congress ended the Fleuti doctrine. See Vartelas v. Holder, 620 F.3d 108, 116-18 (2d Cir. 2010) ("Vartelas I"), rev'd on other grounds, 566 U.S. 257 (2012).[1]Thus, "lawful permanent residents returning post-IIRIRA . . . may be required to seek an admission into the United States, without regard to whether the alien's departure from the United States might previously have been ranked as brief, casual, and innocent under the Fleuti doctrine." Vartelas v. Holder, 566 U.S. 257, 262-63 (2012) ("Vartelas II") (internal quotation marks and brackets omitted). In other words, under 8 U.S.C. § 1101(a)(13)(C)(v), a lawful permanent resident must seek formal admission-even if returning from a brief trip abroad-if he has committed a drug offense or a crime of moral turpitude. In turn, a lawful permanent resident who has been convicted of or who admits committing a drug offense or a crime of moral turpitude is inadmissible. 8 U.S.C. § 1182(a)(2)(A)(i).

         Because of these two changes-the elimination of § 212(c) relief and the end of the Fleuti doctrine-Centurion faced a significantly different immigration law landscape when, in 2005, he was arrested in Puerto Rico on an outstanding warrant from his 1990 Texas drug offense. After his release from custody, Centurion went to Texas to resolve his criminal case. On April 10, 2007, he pleaded nolo contendere to conspiracy to possess cocaine in violation of Texas Health and Safety Code § 481.115 and received six months of community supervision. After Centurion complied with the terms of his probation, the proceedings against him in Texas criminal court were dismissed.

         On September 25, 2007, the Department of Homeland Security ("DHS") questioned Centurion as he attempted to enter the United States after a brief vacation in the Dominican Republic. During this questioning, Centurion admitted that he was an alien and informed DHS of his 1990 arrest in Texas and his 2005 arrest in Puerto Rico. On January 18, 2008, Centurion was served with a Notice to Appear stating he was subject to removal pursuant to INA § 212(a)(2)(A)(i)(II), 8 U.S.C. § ...


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