On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A038-466-143
The opinion of the court was delivered by: W. Fletcher, Circuit Judge:
October 14, 2011-San Francisco, California
Before: Procter Hug, Jr., Andrew J. Kleinfeld, and William A. Fletcher, Circuit Judges.
Opinion by Judge William A. Fletcher;
Dissent by Judge Kleinfeld
Petitioner James Baria Corpuz petitions for review of a Board of Immigration Appeals ("BIA") decision declaring him ineligible for relief under former § 212(c) of the Immigration and Nationality Act ("INA") on the ground that he had served a "term of imprisonment" of over five years for conviction of an aggravated felony. Corpuz contends that the BIA improperly included in his "term of imprisonment" the entire period that he spent in psychiatric pre-trial civil confinement pending a determination of his competence to stand trial. We grant Corpuz's petition and remand for further proceedings.
Corpuz is a Philippine citizen. He entered the United States on an immigrant visa in Honolulu, Hawaii, in 1983. He was then 16 years old. He and his family moved to Las Vegas, Nevada, where he completed two years of college with a major in biochemistry.
Suffering from mental illness, Corpuz killed his mother on Mother's Day, May 14, 1989, by striking her with a hammer. He was arrested and initially held in police custody in the psychiatric unit of the Clark County Detention Center. On July 14, 1989, he was transferred to Lake's Crossing Center ("Lake's Crossing"), a secure psychiatric facility in Nevada, pending a determination of his competence to stand trial. He was civilly confined at Lake's Crossing for slightly over a year. Corpuz was found incompetent to stand trial in December 1989. The following summer, he was found competent. He was released from Lake's Crossing on August 10, 1990, and transferred back to law enforcement custody.
On September 7, 1990, Corpuz was charged in Nevada state court with first-degree murder. On January 18, 1991, an amended information reduced the charge to voluntary manslaughter. Corpuz pled guilty to the reduced charge. He was sentenced on February 27, 1991, to eight years (2,922 days) in the Nevada State Penitentiary "with credit for time served of 654 days." Of those 654 days, 392 had been spent in civil confinement at Lake's Crossing. With 654 days credit for time served subtracted from his 2,922-day sentence, Corpuz's post-conviction sentence was 2,268 days.
An Immigration and Naturalization Service "Memorandum of Investigation" in the record, dated April 4, 1991, states:
SUBJECT was convicted on 2/27/91 in Las Vegas for the offense of Voluntary Manslaughter. He was sentenced to eight (8) years in the Nevada State Prison. SUBJECT immigrated to the United States on 12/22/83 through POE-HHW as a P5-3. SUBJECT committed the above act on 5/14/89. No other criminal history could be found on SUBJECT. SUBJECT is not amenable to deportation proceedings at this time.
Corpuz was released from prison on August 1, 1994, after having served 1,251 days of post-conviction imprisonment, approximately 55 percent of his 2,268-day post-conviction sentence. Good time credit accounts for the reduced time that Corpuz actually served on his sentence, though it is unclear from the record whether Corpuz received good time credit only for the period he spent in post-conviction imprisonment or whether he also received constructive good time credit for the period he spent detained in jail and at Lake's Crossing. Corpuz was not charged with deportability upon his release from prison.
Corpuz married Carolyn Dubry, an American citizen, on January 4, 1997. He and his wife have two citizen children: Alexander, born on December 11, 1997, and Amelia, born on September 22, 2000. Corpuz has worked steadily as an electrician since at least September 2000. His wife has worked steadily as a hair stylist since at least December 2000. (The forms in the record do not ask about their employment prior to 2000.) Corpuz and his wife own their own home in Las Vegas.
Corpuz was served with a Notice to Appear ("NTA") in September 2003. In his brief to the BIA, Corpuz recounted that the NTA was served shortly after he "inquired of a member of his church, a Department of Homeland Security employee, . . . about becoming a U.S. citizen, conveying his criminal history."
The NTA alleged that Corpuz was removable pursuant to INA § 237(a)(2)(A)(iii) for having been convicted of an aggravated felony as defined by INA § 101(a)(43)(F). At a master hearing on October 9, 2003, Corpuz admitted the factual allegations in the NTA, conceded removability, and requested relief under former INA § 212(c). The Immigration Judge ("IJ") found Corpuz removable and continued the hearing to a later date. The government initially agreed that Corpuz was eligible to apply for a § 212(c) waiver, but later changed its view.
Section 212(c) provided, at the time relevant to Corpuz's case, that relief under the section was not available to "an[y] alien who has been convicted of one or more aggravated felonies and has served for such felony or felonies a term of imprisonment of at least 5 years." 8 U.S.C. § 1182(c) (1992). The disputed question before the IJ was whether Corpuz had served a "term of imprisonment" of at least five years for his voluntary manslaughter conviction.
The IJ concluded that all of the 392 days Corpuz had spent in civil detention at Lake's Crossing counted toward his "term of imprisonment." Based on this conclusion, the IJ held that Corpuz served approximately five years and two months of "imprisonment." The IJ therefore held that Corpuz was a "re-movable alien without access to relief from removal" and ordered him removed.
The BIA dismissed Corpuz's appeal in a per curiam order. The BIA found Corpuz ineligible for a § 212(c) waiver because he had not established that § 212(c) contained "a ground of inadmissibility that is comparable to the ground upon which he [was] removable." (The Supreme Court has since abrogated the comparable-grounds approach employed by the BIA, finding it arbitrary and capricious under the Administrative Procedure Act, 5 U.S.C. § 706(2)(A). See Judulang v. Holder, 132 S. Ct. 476, 487, 490 (2011).) Corpuz filed a Petition for Review with this court.
Meanwhile, Corpuz's wife submitted a Form I-130 Petition for Alien Relative. Corpuz then filed a Form I-485 Application to Adjust Status, followed by a Motion to Reopen with the BIA. The BIA denied Corpuz's motion on the ground that Corpuz had not presented any previously unavailable evidence. Corpuz filed a second Petition for Review with this court.
We consolidated Corpuz's two Petitions for Review. In a memorandum disposition, we granted the petitions and remanded to the BIA for consideration of Corpuz's "claim of eligibility for Gabryelsky relief," including his "twin contentions that he [is] eligible for adjustment of status and eligible for a § 212(c) waiver." See In re Gabryelsky, 20 I. & N. Dec. 750 (BIA 1993) (holding that an ...