The U.S. Court of Appeals for the Third Circuit held that a noncitizen was not eligible for relief under former Lupera-Espinoza v. Attorney General, No. 12-2007, slip op. (3d Cir. May 28, 2013) (Hardiman, Aldisert, and Stark, JJ.). Judge Hardiman wrote the panel’s opinion.
This case involved an LPR who was convicted of selling cocaine in 1993. A year later he was placed in deportation proceedings during which he sought § 212(c) relief. At that time, § 212(c) relief was available to individuals who had been convicted of an aggravated felony only if they had not served five years or more in prison. Rather than adjudicate the § 212(c) application, however, the immigration court administratively closed the deportation proceedings and Lupera-Espinoza was paroled into the United States.
Thirteen years later, in 2007, he was convicted of conspiracy to possess with intent to distribute cocaine, an offense that he conceded is an aggravated felony. Lupera-Espinoza, No. 12-2007, slip op. at 4, 12. He was sentenced to 120 months imprisonment. Lupera-Espinoza, No. 12-2007, slip op. at 4. Soon his immigration case was reopened and an IJ ordered him removed. After a remand from the BIA to determine whether Lupera-Espinoza was eligible for § 212(c), the IJ concluded that the 2007 conviction and sentence barred him from receiving relief and ordered him removed once more. Lupera-Espinoza, No. 12-2007, slip op. at 5. The BIA agreed. Lupera-Espinoza, No. 12-2007, slip op. at 6.
On appeal to the Third Circuit, the federal court had little difficult siding with the BIA. Congress, it noted, amended § 212(c) in 1990 to bar people convicted of an aggravated felony who served a term of imprisonment of at least 5 years. Lupera-Espinoza, No. 12-2007, slip op. at 9-10. Lupera-Espinoza, the court concluded, falls into this category. Lupera-Espinoza, No. 12-2007, slip op. at 12-13. It does not matter that his conviction didn’t exist at the time he applied for § 212(c). Instead, “the only date that matters is when the petitioner began serving his criminal sentence.” Lupera-Espinoza, No. 12-2007, slip op. at 12. That interpretation proved fatal for Lupera-Espinoza because he had served more than 5 years imprisonment by the time that the BIA affirmed his removal order in 2012.
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