United States Court of Appeals
Immigration — removal
The repeal of sec. 212(c) does not apply retroactively, where the alien relied on its availability.
“In this case, INS assistant attorney Fitter specifically referenced the availability of a waiver at Khodja’s hearing on his JRAD motion. He stated: ‘[T]here is a separate portion in which the Defendant would testify, bring in his wife, and the [Immigration] Judge . . . could grant a waiver of this conviction.’ (R. at 534-35.) Immediately following Fitter’s statement, the trial judge preliminarily denied Khodja’s JRAD motion. Khodja then withdrew his request for a JRAD. The facts indicate that Khodja chose to forgo a possible benefit in reliance on Fitter’s statement that he would be eligible for § 212(c) relief. See Esquivel v. Mukasey, 543 F.3d 919, 922 (7th Cir. 2008) (requiring a showing of specific facts demonstrating actual reliance). If the state trial court had granted Khodja’s motion for a JRAD, Khodja would have a complete defense to deportation. But because of Fitter’s statement, Khodja withdrew his motion and chose not to appeal the denial of his JRAD motion, even though he appealed his conviction. We find that Khodja has demonstrated actual reliance in forgoing a possible benefit such that the repeal of § 212(c) does not apply retroactively in this case. Accordingly, we will remand to the agency for further proceedings to address Khodja’s § 212(c) waiver application.”
Petition for Review of Orders of the Board of Immigration Appeals, Kanne, J.