THE COURT OF APPEALS FOR THE THIRD CIRCUIT SUSTAINS THE APPEAL OF THE DENIAL TO SUA SPONTE REOPEN THE CASE OF ARISTY-ROSA V. ATTORNEY GENERAL UNITED STATES

Washington D.C. – On March 15, 2021, the Court of Appeals for the Third Circuit sustained the appeal of the denial to sua sponte reopen the case of Aristy-Rosa v. Attorney General United States, holding that the full and unconditional gubernatorial pardon issued by New York Governor Andrew Cuomo failed to extinguish the basis for removal where the underlying conviction was for a controlled substance offense.

 

Jose Arcenio Aristy-Rosa, a foreign national from the Dominican Republic, was admitted to the United States as a legal permanent resident in 1993. While maintaining this status, Mr. Aristy-Rosa was convicted of attempted criminal sale of a controlled substance which is considered to be a felony in the state of New York. As a result, he was sentenced to five years of probation and a six-month suspension of his driver’s license.

 

The Department of Homeland Security (“DHS”) then charged Mr. Aristy-Rosa with removability under Section 237 of the Immigration and Nationality Act (“INA”) which renders any foreign national convicted of an aggravated felony at any time after admission deportable for three (3) reasons:

1. Aristy-Rosa had committed a crime relating to a controlled substance, in violation of 8 U.S.C. § 1227(a)(2)(B)(i);
2. Aristy-Rosa’s controlled substance conviction constituted an aggravated felony, in violation of 8 U.S.C. § 1227(a)(2)(A)(iii); and
3. Aristy-Rosa was a foreign national who was inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(II) at the time of his application for adjustment of status, in violation of 8 U.S.C. § 1227(a)(1)(A).

 

During his appearance in Immigration Court, Mr. Aristy-Rosa was ordered removed after conceding removability on grounds of 8 U.S.C. § 1227(a)(2)(B)(i) and 8 U.S.C. § 1227(a)(2)(A)(iii). Mr. Aristy-Rosa did not appeal the order at the time but later filed two motions to reopen his case, which were denied.

 

In 2017, Mr. Aristy-Rosa was granted clemency in the form of a full and unconditional gubernatorial pardon from New York Governor Andrew Cuomo. A gubernatorial pardon provides relief for those who have completed their sentences but remain disadvantaged by their criminal history and are often granted to prevent deportation from the United States. Mr. Aristy-Rosa thus filed a motion to sua sponte reopen his removal proceedings but the motion was denied by the IJ for two (2) reasons:

1. Arista-Rosa had exceeded both the number of motions to reopen that can be filed and the ninety-day deadline from when the order for removal became final; and
2. Under the plain text of the INA, the gubernatorial pardon issued by New York Governor Andrew Cuomo failed to eliminate the basis for Mr. Arista-Rosa’s removal because the underlying conviction was for a controlled substance offense.

 

On appeal, the BIA concluded that Mr. Aristy-Rosa’s argument was unfounded, citing In re Suh, 23 I. & N. Dec. 626 (B.I.A. 2003) which states that “removable offenses, such as controlled substance violations under section 237(a)(2)(B)…are…not covered by the pardon waiver of section 237(a)(2)(A)(v) of Act.” The BIA also referred to the Department of Justice Office of Legal Counsel (“OLC”) memorandum, Effects of a Presidential Pardon, 19 Op. O.L.C. 160 (1995), holding that only a presidential pardon holds the authority to extinguish the immigration consequence of a controlled substance offense.

 

Mr. Aristy-Rosa petitioned this decision for review by the Court of Appeals for the Third Circuit, who confirmed that under the plain text of 8 U.S.C. § 1227(a)(2)(B), no pardon waiver exists for foreign nationals “convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State . . . relating to a controlled substance.” Therefore, Aristy-Rosa’s gubernatorial pardon eliminated the aggravated felony ground for his removal under 8 U.S.C. § 1227(a)(2)(A)(vi) but not the controlled substance ground. Because it is generally presumed that Congress acts intentionally and purposely when it includes particular language in one section of a statute but omits it in another, it remains that the gubernatorial pardon from New York Governor Andrew Cuomo does not have the authority to eliminate the basis for Mr. Aristy-Rosa’s removal as would a presidential pardon. Based on the foregoing, The Third Circuit denied the petition for review in the case of Aristy-Rosa v. Attorney General US.

 

After being admitted to the United States, it is important that legal permanent residents obey all laws of the United States and localities. If you have been charged or convicted of a crime that may have put your immigration status in jeopardy, please schedule a free, 10-minute consultation with The Law Office of Eric M. Mark for legal guidance.

 

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