Corpuz

MEMORANDUM ***

James Baria Corpuz, a native and citizen of the Philippines, petitions for review of the BIA’s denial of his motion to reopen and of the BIA order affirming the decision of the IJ ordering him removed. These two petitions have been consolidated for our consideration.

Petitioner seeks relief from the deportation order because of the IJ’s failure to advise him of his potential eligibility to adjust status and seek relief pursuant to Matter of Gabryelsky, 20 I. & N. Dec. 750, 756 (B.I.A.1993). He contends he is eligible for such relief because he married a U.S. citizen and did not serve a term of five years in prison. There is no question that he is an aggravated felon, for in 1989 he committed the crime of murder and was sentenced to eight years in prison. Because of his mental condition, he served a considerable amount of his sentence in a psychiatric facility.

In 1997, Corpuz married a United States citizen. He was charged with removability as an aggravated felon on September 9, 2003. At his hearing the IJ denied his request for waiver of removability under former § 212(c) of the Immigration and Nationality Act pursuant to INS v. St. Cyr, 533 U.S. 289 , 121 S.Ct.…