PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS.
Linda Kenepaske and Law Offices of Linda Kenepaske, PLLC on brief for petitioner.
Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, Cindy S. Ferrier, Assistant Director, and Lindsay M. Murphy, Trial Attorney, Office of Immigration Litigation, U.S. Department of Justice, on brief for respondent.
Before Lynch, Stahl, and Barron, Circuit Judges.
BARRON, Circuit Judge.
Sohiel Omar is a native and citizen of Pakistan. He was ordered removed more than a decade ago, and he appealed that order to the Board of Immigration Appeals (" BIA" ) in a timely manner. After that appeal failed, he then filed a timely motion to reconsider, but the BIA rejected that motion as well. More than a decade later, Omar filed a second motion to reconsider. That motion, too, was denied. He now petitions for review of the BIA's denial of his second motion to reconsider. We deny the petition for review.
We begin by recounting the somewhat lengthy procedural history that led to the BIA's ruling that is at issue here. On January 26, 1998, the former Immigration and Naturalization Service charged Omar with removability based on a set of 1994 convictions that rendered him an aggravated felon.
At his removal hearing, Omar sought relief under § 212(c) of the Immigration and Nationality Act of 1952, Pub. L. No. 82-414, 66 Stat. 163, 187,, as amended by Immigration Act of 1990, § 511(a), Pub. L. No. 101-649, 104 Stat. 4978, 5052, as amended by Miscellaneous and Technical Immigration and Naturalization Amendments of 1991, § 306(a)(10), Pub. L. No. 102-232, 105 Stat. 1733, 1751. Under that provision, the Attorney General had relatively broad discretion to grant relief to aliens otherwise deemed inadmissible or removable if they had established a lawful, unrelinquished domicile in the United States of seven consecutive years. Id.
The Immigration Judge (" IJ" ) rejected Omar's request for § 212(c) relief on August 26, 2002. The IJ ruled that the passage of the Illegal Immigration Reform and Immigrant Responsibility Act (" IIRIRA" ), § 304(b), Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-597, in September 1996 barred Omar from obtaining such relief, notwithstanding that Omar's 1994 convictions pre-dated the IIRIRA's enactment.
The IJ reasoned that the IIRIRA applied retroactively to Omar based on the IJ's interpretation of the Supreme Court's decision in I.N.S. v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). There, the Supreme Court held that the provision of the IIRIRA that eliminated § 212(c) relief did not apply retroactively to aliens who, in reliance on the availability of § 212(c) relief, pleaded guilty (or nolo contendere) to offenses with admissibility or removability consequences prior to September 30, 1996. But the IJ concluded that because Omar's convictions resulted from a trial -- rather than a plea -- the IIRIRA did, consistent with St. Cyr, apply retroactively to bar Omar from seeking § 212(c) relief.
Omar timely appealed that ruling to the BIA. He argued, among other things, that the IJ had ...