Camins v. Gonzales ( 2007 )


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  •                      FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    RODOLFO CAMINS,                            
    Petitioner,           No. 05-70291
    v.
            Agency No.
    A92-868-926
    ALBERTO R. GONZALES, Attorney
    General,                                             OPINION
    Respondent.
    
    On Petition for Review of an Order of the
    Board of Immigration Appeals
    Argued and Submitted
    January 12, 2007—San Francisco, California
    Filed August 28, 2007
    Before: Procter Hug, Jr. and William A. Fletcher,
    Circuit Judges, and H. Russel Holland,* District Judge.
    Opinion by Judge William A. Fletcher
    *The Honorable H. Russel Holland, Senior United States District Judge
    for the District of Alaska, sitting by designation.
    10721
    10724                CAMINS v. GONZALES
    COUNSEL
    Zachary Miller Nightingale, Beth Feinberg, Van Der Hout,
    Brigagliano & Nightingale, LLP, San Francisco, California,
    for the petitioner.
    Allen W. Hausman, U.S. Department of Justice, Washington,
    D.C., for the respondent.
    OPINION
    W. FLETCHER, Circuit Judge:
    Prior to passage of § 301(a)(13) of the Illegal Immigration
    Reform and Immigrant Responsibility Act of 1996
    (“IIRIRA”), a lawful permanent resident (“LPR”) who pled
    guilty to an offense making him “inadmissible” retained the
    right under former § 101(a)(13) of the Immigration and
    Nationality Act (“INA”), as interpreted by Rosenberg v.
    Fleuti, 
    374 U.S. 449
     (1963), to make “innocent, casual, and
    brief” overseas trips without being classified as seeking
    “entry” upon return and thus being exposed to a charge of
    being inadmissible. In this petition for review, we must decide
    two questions. First, we must decide whether IIRIRA
    § 301(a)(13) abrogated the old INA § 101(a)(13) and the
    Fleuti doctrine. If so, an LPR who has been convicted of, or
    who has admitted to, commission of an offense making him
    CAMINS v. GONZALES                  10725
    inadmissible cannot travel overseas, even for an innocent,
    casual, and brief trip, without being exposed to a charge of
    inadmissibility upon return to the United States. Second, if
    IIRIRA § 301(a)(13) did abrogate the old INA § 101(a)(13)
    and the Fleuti doctrine, we must decide whether this provision
    may be applied retroactively to LPRs who acted in reasonable
    reliance on the old INA § 101(a)(13), as interpreted by Fleuti.
    We hold that IIRIRA § 301(a)(13) did abrogate the old INA
    § 101(a)(13) and the Fleuti doctrine, but that the new law can-
    not be applied retroactively to LPRs who acted in reasonable
    reliance on the old law prior to IIRIRA’s effective date.
    I.   Background
    Rodolfo Camins is a fifty-five-year-old national of the Phil-
    ippines who has lived in the United States since 1978. Camins
    was granted temporary resident status in 1988 and has been
    an LPR since 1991. He resides in California with his wife and
    seventeen-year-old daughter, who are both United States citi-
    zens. Camins has a steady job, pays taxes, and provides finan-
    cial support and health insurance for his family.
    In January 1996, Camins pled guilty to sexual battery under
    California Penal Code § 243.4. He was convicted and sen-
    tenced to a term of one year, of which he served eight months.
    Following his release from prison, Camins was given sex
    offender treatment for three and a half years.
    On January 2, 2001, Camins was taken into custody by
    agents of the Immigration and Naturalization Service (now
    the Department of Homeland Security) at the San Francisco
    International Airport, when he returned with his wife and
    daughter from a three-week trip to visit his ailing mother in
    the Philippines. While in custody, Camins was served with a
    Notice to Appear placing him in removal proceedings as an
    LPR seeking admission under INA § 101(a)(13)(C)(v), 
    8 U.S.C. § 1101
    (a)(13)(C)(v). The Notice to Appear charged
    that he was inadmissible under INA § 212(a)(2)(A)(i)(I), 8
    10726                 CAMINS v. GONZALES
    U.S.C. § 1182(a)(2)(A)(i)(I), because his conviction was for
    a crime involving moral turpitude.
    At a hearing in September 2001, Camins conceded remov-
    ability, designated the Philippines as the country of removal,
    and requested relief from removal under former INA § 212(c),
    
    8 U.S.C. § 1182
    (c) (repealed 1996). The Immigration Judge
    (“IJ”) denied Camins’ application for § 212(c) relief. Camins
    appealed to the Board of Immigration Appeals (“BIA”), con-
    tending that his order of removal was invalid because he
    should not have been charged with inadmissibility. He
    pointed out that under the old INA § 101(a)(13), 
    8 U.S.C. § 1101
    (a)(13), and Rosenberg v. Fleuti, 
    374 U.S. 449
     (1963),
    an LPR who travels outside the United States for a brief
    period for a legitimate purpose could not be classified as seek-
    ing “entry,” and thus subjected to a charge of inadmissibility,
    upon his return. He contended that the old INA § 101(a)(13),
    and the Fleuti doctrine, should be applied to him. Camins also
    argued that the IJ had applied an incorrect legal standard for
    relief from removal. The BIA affirmed the IJ’s order of
    removal and denial of relief from removal. Camins now peti-
    tions for review by this court.
    We have jurisdiction pursuant to 
    8 U.S.C. § 1252
    (a)(2)(D),
    as amended by the REAL ID Act of 2005, to review the con-
    stitutional claims and questions of law raised in Camins’ peti-
    tion. See Fernandez-Ruiz v. Gonzales, 
    410 F.3d 585
    , 586-87
    (9th Cir. 2005), adopted by 
    466 F.3d 1121
    , 1124 (9th Cir.
    2006) (en banc). We review questions of law de novo. See
    Sinotes-Cruz v. Gonzales, 
    468 F.3d 1190
    , 1194 (9th Cir.
    2006); see also Toro-Romero v. Ashcroft, 
    382 F.3d 930
    , 935
    (9th Cir. 2004).
    II.   Discussion
    Under the immigration laws, individuals coming into the
    United States must undergo inspection by immigration offi-
    cials before entering the country. See 
    8 C.F.R. § 1235.1
    . In
    CAMINS v. GONZALES                  10727
    the case of an alien seeking “admission” (that is, “lawful
    entry”) to the United States, an immigration official may (1)
    authorize admission, (2) determine the alien is inadmissible,
    or (3) if the alien cannot “establish to the satisfaction of the
    examining immigration officer that he or she” is not subject
    to removal, charge the alien as inadmissible and detain or
    parole him. 
    Id.
     § 1235.3; see also 
    8 U.S.C. § 1101
    (a)(13)(A).
    When Camins returned from the Philippines in January 2001,
    immigration officials concluded, based on his January 1996
    conviction, that he was an alien seeking admission, detained
    him, and charged him with inadmissibility. Invoking the so-
    called Fleuti doctrine, Camins contends that as an LPR who
    made only a short trip outside the country for a legitimate pur-
    pose he should not have been classified as seeking admission,
    and thus subjected to a charge of inadmissibility, upon his
    return.
    A.   Fleuti Doctrine
    [1] Prior to the effective date of IIRIRA, 
    110 Stat. 3009
    (1996), April 1, 1997, INA § 101(a)(13) provided:
    The term “entry” means any coming of an alien
    into the United States, from a foreign port or place
    or from an outlying possession, whether voluntarily
    or otherwise, except that an alien having a lawful
    permanent residence in the United States shall not be
    regarded as making an entry into the United States
    for the purposes of the immigration laws if the alien
    proves to the satisfaction of the Attorney General
    that his departure to a foreign port or place or to an
    outlying possession was not intended or reasonably
    to be expected by him or his presence in a foreign
    port or place or in an outlying possession was not
    voluntary[.]
    
    8 U.S.C. § 1101
    (a)(13) (repealed 1996). In Rosenberg v.
    Fleuti, 
    374 U.S. 449
     (1963), the Supreme Court held that an
    10728                  CAMINS v. GONZALES
    LPR who made an “innocent, casual, and brief” trip across an
    international border did not “intend[ ]” a “departure” within
    the meaning of INA § 101(a)(13). Id. at 461. Because the LPR
    was thus not an alien seeking “entry” to the United States
    upon his return, he was not subject to a charge of inadmissi-
    bility. Id.
    Fleuti, a Swiss national who had attained LPR status in
    October 1952, visited Mexico for about two hours in August
    1956. In 1959, Fleuti was ordered deported on the ground that
    at the time he returned from Mexico in 1956, he was exclud-
    able (now “inadmissible”) based on his homosexuality. Id. at
    450-51. The Supreme Court vacated Fleuti’s deportation
    order, holding that Congress did not intend “to exclude aliens
    long resident in this country after lawful entry who have
    merely stepped across an international border and returned in
    ‘about a couple hours.’ ” Id. at 461. The Court explained that
    under INA § 101(a)(13), only a resident alien who “inten[ds]
    to depart in a manner which can be regarded as meaningfully
    interruptive of the alien’s permanent residence” is subject to
    entry requirements, and possible exclusion, when he returns
    to the United States. Id. at 462. In contrast, an alien who
    makes “an innocent, casual, and brief excursion . . . outside
    this country’s borders may not have . . . ‘intended’ . . . a
    departure disruptive of his resident alien status and therefore
    may not [be] subject . . . to the consequences of an ‘entry’ into
    the country on his return.” Id. The Court articulated three non-
    exclusive factors for deciding whether a trip is innocent,
    casual, and brief: first, “the length of time the alien is absent”;
    second, “the purpose of the visit” and whether it is to “accom-
    plish some object” contrary to the policy of the immigration
    laws; and third, whether the alien had to “procure any travel
    documents in order to make [the] trip,” a fact that might
    “cause the alien to consider more fully the implications
    involved in . . . leaving the country.” Id.
    [2] Applying the Fleuti doctrine, we held, in Jubilado v.
    United States, 
    819 F.2d 210
     (9th Cir. 1987), that an LPR who
    CAMINS v. GONZALES                  10729
    visited the Philippines for more than three months for the pur-
    pose of bringing his family to the United States did not intend
    departure, and therefore was not subject to exclusion proceed-
    ings upon his return. 
    Id. at 214
    . In Kamheangpatiyooth v. INS,
    
    597 F.2d 1253
     (9th Cir. 1979), a case involving the continu-
    ous presence requirement for suspension of deportation rather
    than entry under the old INA § 101(a)(13), we considered the
    Fleuti factors in holding that an LPR who left the United
    States for a month during the “Christmas semester ‘break’ ”
    to visit his “gravely ill” mother in Thailand did not intend to
    relinquish “the attachment to this country demonstrated by
    [his] 12 years of residence.” Id. at 1255, 1258. In both
    Jubilado and Kamheangpatiyooth, we relied on Itzcovitz v.
    Selective Service, 
    447 F.2d 888
     (2d Cir. 1971). There, the
    Second Circuit decided in favor of an LPR from Argentina
    who sought a declaratory judgment that a three-week trip for
    a training course in Israel conducted by his employer, El Al
    Israel Airlines, would not subject him to entry and “the threat
    of being declared an excludable alien upon his return.” 
    Id. at 889
    . The court in that case reasoned that Congress did not
    intend to subject to exclusion an LPR making a “temporary”
    trip for an “entirely bona fide, honorable and lawful” purpose.
    
    Id. at 893-94
    .
    B.   Survival of Fleuti Doctrine After IIRIRA
    The government does not dispute that Camins’ three-week
    trip to visit his ailing mother in the Philippines would qualify
    as an innocent, casual, and brief trip under Fleuti and subse-
    quent case law. It argues instead that, in enacting IIRIRA in
    1996, Congress abrogated the innocent, casual, and brief trip
    exception to entry for LPRs and replaced Fleuti’s subjective
    intent inquiry with a general presumption that LPRs are not
    seeking entry, subject to enumerated exceptions. As revised
    by § 301(a) of IIRIRA, INA § 101(a)(13) now reads:
    (A) The terms “admission” and “admitted” mean,
    with respect to an alien, the lawful entry of the alien
    10730                 CAMINS v. GONZALES
    into the United States after inspection and authoriza-
    tion by an immigration officer.
    ...
    (C) An alien lawfully admitted for permanent resi-
    dence in the United States shall not be regarded as
    seeking an admission into the United States for pur-
    poses of the immigration laws unless the alien —
    (i) has abandoned or relinquished that status,
    (ii) has been absent from the United States for a
    continuous period in excess of 180 days,
    (iii) has engaged in illegal activity after having
    departed the United States,
    (iv) has departed from the United States while
    under legal process seeking removal of the alien
    from the United States, including removal proceed-
    ings under this chapter and extradition proceedings,
    (v) has committed an offense identified in section
    1182(a)(2) of this title, unless since such offense the
    alien has been granted relief under section 1182(h)
    or 1229b(a) of this title, or
    (vi) is attempting to enter at a time or place other
    than as designated by immigration officers or has not
    been admitted to the United States after inspection
    and authorization by an immigration officer.
    
    8 U.S.C. § 1101
    (a)(13) (emphasis added). If the government’s
    argument about IIRIRA is correct, we assume that Camins
    could be classed as seeking “admission” (formerly “entry”)
    under subsection (v) of the new § 101(a)(13)(C), 
    8 U.S.C. § 1101
    (a)(13)(C)(v), because he has been convicted of a
    CAMINS v. GONZALES                  10731
    crime involving moral turpitude, “an offense identified in [8
    U.S.C.] section 1182(a)(2),” notwithstanding the fact that his
    trip was innocent, casual, and brief.
    [3] The question whether IIRIRA abrogated the Fleuti doc-
    trine appears to be one of first impression in this circuit. Cf.
    Toro-Romero, 
    382 F.3d at 935-36
     (applying INA as revised
    by IIRIRA without considering role of Fleuti); see also
    Sinotes-Cruz, 
    468 F.3d at 1203
     (recognizing limited holding
    of Toro-Romero). However, the BIA and three other circuits
    have held that the Fleuti doctrine has not survived IIRIRA’s
    revision of INA § 101(a)(13). See Matter of Collado-Munoz,
    
    21 I. & N. Dec. 1061
    , 1064-65 (BIA 1998) (en banc) (as
    amended); Malagon de Fuentes v. Gonzales, 
    462 F.3d 498
    ,
    501 (5th Cir. 2006); Olatunji v. Ashcroft, 
    387 F.3d 383
    , 395-
    96 (4th Cir. 2004); Tineo v. Ashcroft, 
    350 F.3d 382
    , 395-96
    (3d Cir. 2003).
    [4] In Matter of Collado-Munoz, the BIA vacated an IJ’s
    holding that an LPR who “return[ed] to the United States after
    a 2-week visit to his native country” could not be “properly
    charged as an arriving alien who was inadmissible” because
    he “had made only a ‘brief, casual, and innocent’ departure.”
    21 I. & N. Dec. at 1062. The BIA concluded that IIRIRA,
    enacted “[s]hortly before the respondent’s return to the United
    States,” had changed the INA so that the Fleuti doctrine no
    longer applied. Id. at 1063. Looking first at the plain language
    of INA § 101(a)(13), as revised, the BIA observed that it “no
    longer defines the term ‘entry’ and no longer contains the
    term ‘intended,’ which formed the central basis for the
    Supreme Court’s reasoning in [Fleuti]. Instead, the amended
    section specifically defines the circumstances under which a
    returning [LPR] will be deemed to be seeking admission into
    the United States.” Id. at 1065. Based on these general
    changes, and on the enumerated exception in the new section
    for travel “for a continuous period in excess of 180 days,” the
    BIA concluded that “Congress . . . amended the law to
    10732                 CAMINS v. GONZALES
    expressly preserve some, but not all, of the Fleuti doctrine.”
    Id. According to the BIA,
    The plain reading of this amended law is that Con-
    gress has directed that a returning [LPR] who is
    described in section 101(a)(13)(C)(i)-(vi) of the Act
    shall be regarded as “seeking an admission” into the
    United States, without regard to whether the alien’s
    departure from the United States might previously
    have been regarded as “brief, casual, and innocent”
    under the Fleuti doctrine.
    Id. at 1066.
    In reaching this conclusion, the majority in Matter of
    Collado-Munoz rejected the arguments of dissenting Board
    Member Rosenberg, who pointed out that “the statute is
    utterly silent as to the continued vitality of the Fleuti doc-
    trine,” 21 I. & N. Dec. at 1075 (Rosenberg, Board Member,
    dissenting), and that the plain language of INA § 101(a)(13),
    as revised by IIRIRA, could be read to “mean that those fall-
    ing into the six categories may be treated as seeking to be
    admitted despite their lawful resident status” rather than “that
    they must be treated as seeking to be admitted.” Id. at 1067
    (emphasis in original). Board Member Rosenberg argued that
    the Fleuti factors should still play a role in a discretionary
    determination whether an LPR who, in her view, “may be
    treated as an arriving alien” because he falls within one of the
    six exceptions in the new INA § 101(a)(13), “will be treated
    as such.” Id. at 1075.
    When the BIA explicitly adopts in a published opinion a
    particular interpretation of an ambiguous provision of the
    INA, we apply Chevron deference to its interpretation and
    adopt the agency’s view “so long as it is reasonable.” Garcia-
    Quintero v. Gonzales, 
    455 F.3d 1006
    , 1012 (9th Cir. 2006)
    (citing Chevron U.S.A., Inc. v. Natural Res. Def. Council,
    Inc., 
    467 U.S. 837
    , 844 (1984)). The Third Circuit applied this
    CAMINS v. GONZALES                   10733
    rule to the new INA § 101(a)(13) in Tineo. Tineo was
    detained and charged with inadmissibility based on prior drug
    convictions upon returning from a trip of “a few weeks” to his
    native country. Tineo, 
    350 F.3d at 388
    . Considering whether
    to apply the BIA’s interpretation of the new INA § 101(a)(13)
    in Matter of Collado-Munoz to Tineo’s case, the court
    acknowledged that Board Member Rosenberg’s arguments
    had “some force,” and stated that, based on the plain language
    of the new INA § 101(a)(13) alone, it “would tend to agree
    that the ‘shall not . . . unless’ construction is sufficiently
    ambiguous to permit the consideration of other factors” —
    such as the Fleuti factors — “even if a returning alien falls
    into one of the six enumerated exceptions.” Id. at 390.
    However, the court in Tineo emphasized that “Congress not
    only altered the grammatical structure by enacting [IIRIRA]
    § 301(a)(13), it also eliminated the key terms ‘entry’ and
    ‘intended’ from § 101(a)(13) and replaced the former statute
    with a comprehensive scheme for determining the classifica-
    tion of returning aliens.” Id. at 391. Further, the court noted
    that the House Judiciary Committee had stated, with regard to
    a former version of IIRIRA § 301(a)(13), that it intended to
    “preserve[ ] a portion of the Fleuti doctrine . . . [but] overturn
    certain interpretations of Fleuti.” Id. at 392 (quoting H.R.
    Rep. No. 104-469, at 225-26 (1996)). Finally, the court
    observed that while Congress had “retain[ed] the language of
    Fleuti,” namely “the operative terms intent, innocent, casual,
    or brief,” in other immigration law provisions, it had drafted
    the new INA § 101(a)(13) to “delineat[e] six specific scenar-
    ios under which a returning alien would be considered an
    alien seeking admission.” Id. at 392-93. These changes, the
    court reasoned, were consistent with “a complete makeover of
    § 101(a)(13) . . . specifically intended to supplant the subjec-
    tive intent inquiry that was a feature of the old law.” Id. at
    393. Given the ambiguity of the new INA § 101(a)(13), and
    the BIA’s undisputed authority to interpret the immigration
    laws, the Third Circuit elected to follow the BIA’s holding in
    10734                 CAMINS v. GONZALES
    Matter of Collado-Munoz. Id. at 396-97; see also Malagon de
    Fuentes, 
    462 F.3d at 501-02
    .
    [5] For the reasons given by the Third Circuit, we cannot
    conclude that the BIA’s interpretation in Matter of Collado-
    Munoz is unreasonable. We therefore hold, in light of the def-
    erence owed the BIA, that IIRIRA § 301(a)(13) abrogated the
    Fleuti doctrine.
    C.   Retroactivity
    Camins argues that even if IIRIRA abrogated the Fleuti
    doctrine, the new INA § 101(a)(13) cannot be applied to his
    case. Doing so, he contends, would retroactively attach a new
    disability to his pre-IIRIRA guilty plea: the inability to make
    an innocent, casual, and brief trip abroad without being
    exposed to a charge of inadmissibility upon return. We review
    de novo, and without Chevron deference to the BIA, whether
    a change to an immigration law is impermissibly retroactive.
    Sinotes-Cruz, 
    468 F.3d at 1194, 1198
    ; see also Valencia-
    Alvarez v. Gonzales, 
    469 F.3d 1319
    , 1326 (9th Cir. 2006).
    The application of a statute is retroactive “if it alters the
    legal consequences of acts completed before its effective
    date.” Chang v. United States, 
    327 F.3d 911
    , 920 (9th Cir.
    2003). Such “[r]etroactive application of statutes is disfavored
    in the absence of clear contrary Congressional intent.” 
    Id.
    This is true because “[e]lementary considerations of fairness
    dictate that individuals should have an opportunity to know
    what the law is and to conform their conduct accordingly; set-
    tled expectations should not be lightly disrupted.” Landgraf v.
    USI Film Prods., 
    511 U.S. 244
    , 265 (1994).
    The Supreme Court in Landgraf articulated a two-step test
    for determining whether a federal statute applies retroactively.
    A court first must “determine whether Congress has expressly
    prescribed the statute’s proper reach.” 
    Id. at 280
    . If Congress
    has clearly provided that a statute will apply retroactively, the
    CAMINS v. GONZALES                  10735
    court’s work ends. However, “absent clear congressional
    intent favoring” retroactive application, 
    id.,
     the court must
    move to the second step of the Landgraf test, under which it
    determines whether “the new provision attaches new legal
    consequences to events completed before its enactment” such
    that it interferes with “familiar considerations of fair notice,
    reasonable reliance, and settled expectations.” 
    Id. at 270
    ; see
    also Chang, 
    327 F.3d at
    920 & n.8.
    Courts frequently describe this analysis as an inquiry into
    whether the application of a statute is “impermissibly” retro-
    active. See, e.g., I.N.S. v. St. Cyr, 
    533 U.S. 289
    , 316 (2001)
    (“[T]he first step in determining whether a statute has an
    impermissible retroactive effect is to ascertain whether Con-
    gress has directed with the requisite clarity that the law be
    applied retrospectively.”); Saravia-Paguada v. Gonzales, 
    488 F.3d 1122
    , 1130 (9th Cir. 2007) (“Absent an unmistakable
    congressional directive, we may determine that a statute is
    impermissibly retroactive if it ‘takes away or impairs vested
    rights acquired under existing laws, or creates a new obliga-
    tion, imposes a new duty, or attaches a new disability, in
    respect to transactions or considerations already past.’ ”)
    (quoting Landgraf, 
    511 U.S. at 269
    ). To be precise, however,
    the Landgraf framework merely creates a presumption about
    the meaning, rather than the permissibility, of statutory text.
    Cf. Landgraf, 
    511 U.S. at 272
     (“Because it accords with
    widely held intuitions about how statutes ordinarily operate,
    a presumption against retroactivity will generally coincide
    with legislative and public expectations.”). Thus, the term
    “impermissibly” is a bit of a misnomer. There is no question
    of Congress’ power to require, within constitutional limits,
    that a statute operate retroactively. What courts really mean
    when they say that a statute has an “impermissibly retroactive
    effect” under Landgraf is that there has been no clear expres-
    sion of congressional intent that the statute should operate
    retroactively to disrupt a settled reliance interest.
    Applying the Landgraf test, the Court held in St. Cyr that
    IIRIRA’s repeal of former INA § 212(c), which allowed the
    10736                 CAMINS v. GONZALES
    Attorney General to waive deportation, did not apply retroac-
    tively to aliens who pled guilty, prior to IIRIRA’s effective
    date, to criminal offenses making them eligible for deporta-
    tion. 
    533 U.S. at 294-95, 326
    . In St. Cyr, an LPR from Haiti
    pled guilty on March 8, 1996, to the sale of a controlled sub-
    stance in violation of Connecticut law. 
    Id. at 293
    . While the
    conviction made St. Cyr deportable, he remained eligible for
    waiver under § 212(c) at the time he pled guilty. By the time
    the INS commenced proceedings against St. Cyr, on April 10,
    1997, however, IIRIRA had replaced § 212(c) waiver of
    deportation with cancellation of removal, for which resident
    aliens convicted of aggravated felonies, including certain drug
    offenses, are ineligible. Id. at 293, 297. St. Cyr argued that the
    repeal of § 212(c) did not apply retroactively to his case.
    [6] Under the first step of the Landgraf test, the Court in
    St. Cyr rejected the government’s arguments that IIRIRA
    “provide[d] a clear statement of congressional intent to apply
    IIRIRA’s repeal of § 212(c) retroactively.” Id. at 317. As evi-
    dence that the “demanding” “standard for finding such unam-
    biguous direction” was not met, the Court noted that Congress
    had included language in IIRIRA expressly stating that other
    provisions would apply retroactively, but had failed to include
    similar language with respect to the section repealing
    § 212(c). Id. at 316, 318-19. Turning to the second step of the
    Landgraf test, the Court concluded that the repeal of § 212(c)
    did attach “new legal consequences” to LPRs’ pre-IIRIRA
    plea agreements. Id. at 321. It reasoned that, although relief
    under § 212(c) had been discretionary, IIRIRA caused LPRs
    convicted of certain offenses to face “certain deportation,”
    rather than merely “possible deportation.” Id. at 325. The
    Court held that retroactive application of this change of law
    would interfere with plea-convicted LPRs’ “reasonable reli-
    ance on the continued availability of discretionary relief from
    deportation.” Id. at 324. According to the Court, “as a general
    matter, alien defendants considering whether to enter into a
    plea agreement are acutely aware of the immigration conse-
    quences of their convictions,” and “in the years leading up to
    CAMINS v. GONZALES                       10737
    . . . IIRIRA, preserving the possibility of such relief [from
    deportation] would have been one of the principal benefits
    sought by defendants deciding whether to accept a plea offer
    or instead to proceed to trial.” Id. at 322-23. Therefore, the
    Court concluded that Ҥ 212(c) relief remains available for
    aliens, like [St. Cyr], whose convictions were obtained
    through plea agreements and who . . . would have been eligi-
    ble for § 212(c) relief at the time of their plea under the law
    then in effect.” Id. at 326.
    [7] Since the Court’s decision in St. Cyr, we have applied
    its holding to other provisions of the immigration laws that
    affect plea-convicted aliens. See, e.g., Sinotes-Cruz, 
    468 F.3d at 1202-03
     (“[P]art B of the stop-time rule of § 1229b(d)(1)
    does not apply retroactively to the seven-year continuous resi-
    dence requirement of § 1229b(a)(2) for an alien who pled
    guilty before the enactment of IIRIRA and was eligible for
    discretionary relief at the time IIRIRA became effective.”);
    Kankamalage v. INS, 
    335 F.3d 858
    , 860, 863 (9th Cir. 2003)
    (immigration regulation promulgated in 1990, which made
    aliens convicted of “a particularly serious crime” ineligible
    for asylum, did not apply retroactively to an alien who pled
    guilty to robbery in 1988). However, we have not reached the
    question presented here: whether the new INA § 101(a)(13)
    may be applied retroactively to LPRs who pled guilty prior to
    the enactment of IIRIRA.
    We are aware of only one appellate case, Olatunji v. Ash-
    croft, 
    387 F.3d 383
     (4th Cir. 2004), that has dealt directly
    with this question.1 There, the Fourth Circuit held that the new
    INA § 101(a)(13) did not apply retroactively to an LPR from
    Nigeria who had pled guilty to the federal offense of “theft of
    government property” in 1994, prior to IIRIRA, and was
    1
    As discussed above, the BIA and the Third and Fifth Circuits have
    addressed the issue of whether IIRIRA abrogated Fleuti, but they have not
    reached the additional question of whether this change may be retroac-
    tively applied to LPRs in Camins’ circumstance.
    10738                 CAMINS v. GONZALES
    detained and “classified as a lawful permanent resident seek-
    ing ‘admission’ ” when he returned from a nine-day trip to
    London in 1998, after IIRIRA. Id. at 386, 396. Today, we join
    the Fourth Circuit in holding that the pre-IIRIRA law of entry,
    as it existed under the old INA § 101(a)(13) as interpreted by
    Fleuti, continues to be available to LPRs who pled guilty,
    prior to IIRIRA’s effective date, to offenses that would other-
    wise cause them to be treated as seeking admission under the
    new INA § 101(a)(13).
    [8] We begin with the first step of the Landgraf test, which
    requires us to determine whether “Congress has expressly pre-
    scribed the . . . proper reach” of IIRIRA § 301(a)(13), the new
    INA § 101(a)(13). Landgraf, 
    511 U.S. at 280
    . The Fourth Cir-
    cuit held in Olatunji, and the government concedes here, that
    there is no evidence of “clear congressional intent” that
    IIRIRA § 301(a)(13) apply retroactively. Olatunji, 
    387 F.3d at 389, 393
    . We note that insofar as the BIA suggested in its
    order that the general effective date of Title III-A of IIRIRA,
    April 1, 1997, is sufficient evidence of Congress’ intent that
    the sections in that title, including § 301(a)(13), apply retroac-
    tively, the Supreme Court rejected the identical argument in
    St. Cyr. See St. Cyr, 
    533 U.S. at 317
     (holding that IIRIRA
    § 309(a), 
    110 Stat. 3009
    -625 (1996), does not establish Title
    III-A’s retroactive reach).
    Where congressional intent is unclear, we move to the sec-
    ond step of the Landgraf test, asking whether retroactive
    application would “attach[ ] new legal consequences to events
    completed before its enactment” such that it would interfere
    with “familiar considerations of fair notice, reasonable reli-
    ance, and settled expectations.” Landgraf, 
    511 U.S. at 270
    .
    Camins argues that the new INA § 101(a)(13) does attach a
    new legal consequence to his guilty plea because, based on
    his conviction, it classifies him as seeking entry and exposes
    him to a charge of inadmissibility upon return from travel out-
    side the United States, no matter how innocent, casual, and
    brief the travel. We agree.
    CAMINS v. GONZALES                   10739
    [9] Camins’ guilty plea made him inadmissible, and
    affected his ability to travel outside the United States, even
    under the old law. But whereas the old INA § 101(a)(13), as
    interpreted by Fleuti, allowed Camins to take innocent,
    casual, and brief trips outside the United States without sub-
    jecting him to a charge of inadmissibility, the new INA
    § 101(a)(13) would effectively prohibit him from making any
    overseas travel. Because the ability to make innocent, casual,
    and brief overseas trips is often critical to LPRs’ ability to ful-
    fill family and business obligations, this new legal conse-
    quence is significant. See, e.g., Jubilado, 
    819 F.2d at 213
    ;
    Kamheangpatiyooth, 
    597 F.2d at 1257-59
    ; Itzcovitz, 
    447 F.2d at 893-94
    . By classifying as seeking admission LPRs who
    would not previously have been so classified, and thus expos-
    ing them to charges of inadmissibility they would not previ-
    ously have faced, the new INA § 101(a)(13) clearly affects
    their substantive rights. See Landgraf, 
    511 U.S. at 278
    ;
    Republic of Austria v. Altmann, 
    541 U.S. 677
    , 695 (2004)
    (“statutes that create jurisdiction where none otherwise exists
    speak not just to the power of a particular court but to the sub-
    stantive rights of the parties as well” (internal quotation
    marks, alterations, and citations omitted)).
    The government argues that Camins could have avoided
    any negative legal consequence imposed by the new INA
    § 101(a)(13) simply by choosing not to travel outside the
    United States. But this suggestion only emphasizes the
    strength of Camins’ argument. Before the passage of the new
    INA § 101(a)(13), Camins’ guilty plea did not deprive him of
    the right to visit family members or conduct business outside
    the United States, so long as the travel was innocent, casual,
    and brief. Now, if the new INA § 101(a)(13) may properly be
    applied to him, he is effectively confined to the United States,
    with no ability to visit his ailing mother or otherwise travel
    abroad. The argument that Camins “should have discontinued
    all foreign travel after IIRIRA’s enactment merely confirms
    its retroactive effect on his guilty plea.” Olatunji, 
    387 F.3d at 398
    .
    10740                 CAMINS v. GONZALES
    The government also argues that the new INA § 101(a)(13)
    does not attach any new legal consequence to Camins’ plea
    because “[e]ven if Camins had been allowed to return to the
    United States . . . the Government could still have com-
    menced removal proceedings against him.” The Supreme
    Court rejected a similar argument in St. Cyr. The government
    had argued that because the discretionary waiver under
    § 212(c) did not guarantee that LPRs like St. Cyr could stay
    in the country, its repeal had no legal consequence for pur-
    poses of retroactivity. The Court reasoned that “[t]here is a
    clear difference, for the purposes of retroactivity analysis,
    between facing possible deportation and facing certain depor-
    tation.” St. Cyr, 
    533 U.S. at 325
    ; see also Garcia-Ramirez v.
    Gonzales, 
    423 F.3d 935
    , 941, 945 (9th Cir. 2005) (Fisher, J.,
    concurring); Kankamalage, 335 F.3d at 863. Similarly, there
    is a clear difference between a removal proceeding brought
    against an LPR legally inside the country and a removal pro-
    ceeding against an LPR seeking admission. Whereas the sin-
    gle crime of moral turpitude charged in Camins’ Notice to
    Appear constituted sufficient grounds for inadmissibility if
    Camins were classified as seeking admission, that crime may
    or may not support a charge of removal against him as an
    LPR legally in the country. Compare 
    8 U.S.C. § 1182
    (a)(2)(A)(i)(I) (“Inadmissible Aliens”) (making a sin-
    gle crime of moral turpitude a ground for inadmissibility
    regardless of when it was committed), with 
    8 U.S.C. § 1227
    (a)(2)(A)(i)(I) (“Deportable Aliens”) (making a single
    crime of moral turpitude a ground for removal only if it was
    committed within five years of lawful entry).
    Even assuming, arguendo, that Camins is removable as a
    legally present LPR based on a charge that immigration offi-
    cials have not brought, a charge of inadmissibility is more dis-
    advantageous to Camins than such a charge of removal. As a
    general matter, it is the alien who bears the burden of proving
    admissibility, while it is the government that must prove
    removability by “clear and convincing evidence.” See Toro-
    Romero, 
    382 F.3d at
    936 n.9. Moreover, the Supreme Court
    CAMINS v. GONZALES                   10741
    and this court have held, as a matter of constitutional law, that
    inadmissible aliens need not be afforded the same protections
    as removable aliens. See Landon v. Plasencia, 
    459 U.S. 21
    ,
    32-34 (1982); Armendariz-Montoya v. Sonchik, 
    291 F.3d 1116
    , 1123 (9th Cir. 2002) (“[E]xclusion proceedings provide
    fewer procedural protections than deportation proceed-
    ings[.]”). Indeed, in Jubilado, we recognized that whether an
    overseas trip by a plea-convicted LPR fell within the Fleuti
    doctrine mattered precisely because if his “return to the
    United States did not amount to an entry,” he “had a right to
    have the effect of his conviction determined in a deportation
    proceeding with its greater procedural safeguards” rather than
    in an exclusion proceeding. 
    819 F.2d at 214
    ; see also 
    id. at 212
    .
    In determining whether the attachment of new legal conse-
    quences to past actions conflicts with “familiar considerations
    of fair notice, reasonable reliance, and settled expectations,”
    Landgraf, 
    511 U.S. at 270
    , we require that reliance on the
    prior law “would have been objectively reasonable under the
    party’s circumstances.” Hernandez de Anderson v. Gonzales,
    ___ F.3d ___, No. 05-74132, 
    2007 WL 2264698
    , at *10 (9th
    Cir. Aug. 9, 2007); see also Kelava v. Gonzales, 
    434 F.3d 1120
    , 1124-25 & n.7 (9th Cir. 2006) (as amended) (rejecting
    claim of non-retroactivity because no reliance interest was
    implicated by statutory change), cert. denied, 
    127 S. Ct. 43
    (2006). “We have formulated this rule in the negative: Aliens
    making a Landgraf retroactivity argument cannot prevail if
    they cannot plausibly claim that they would have acted . . .
    differently if they had known about the elimination of [the]
    relief.” Hernandez de Anderson, 
    2007 WL 2264698
    , at *10
    (internal quotations omitted) (alteration in original).
    [10] Although evidence of a guilty plea or other quid pro
    quo exchange that could reasonably have been made in reli-
    ance on an old law is not the exclusive means of proving reli-
    ance, see id.; Chang, 
    327 F.3d at
    920 n.8, it is clearly
    sufficient. See Garcia-Ramirez, 
    423 F.3d at 944
     (Fisher, J.,
    10742                 CAMINS v. GONZALES
    concurring). As the Supreme Court stated in St. Cyr, “as a
    general matter, alien defendants considering whether to enter
    into a plea agreement are acutely aware of the immigration
    consequences of their convictions.” 
    533 U.S. at 322
    . The
    Court reasoned that it would be fundamentally unfair, after
    alien defendants had weighed these consequences and
    accepted a guilty plea, to attach new consequences to the
    attendant conviction. 
    Id. at 323-24
    . We agree with Camins,
    and with the Fourth Circuit, that limitation on the ability to
    travel outside the United States is one of the “immigration
    consequences” of which LPR defendants considering whether
    to enter into a plea agreement would be acutely aware, and
    that “aliens who accepted a plea agreement prior to IIRIRA
    could reasonably have relied on their continuing ability to
    take brief trips abroad.” Olatunji, 
    387 F.3d at 397
    . The new
    INA § 101(a)(13) and its abrogation of the Fleuti doctrine,
    when applied to aliens convicted pursuant to a guilty plea
    prior to IIRIRA, therefore disrupts precisely the sort of settled
    reliance interests that, in the absence of a clear statement to
    the contrary, Landgraf presumes Congress intended to leave
    intact.
    Conclusion
    [11] We hold that IIRIRA § 301(a)(13) abrogated the Fleuti
    doctrine developed under the old INA § 101(a)(13). Under the
    new INA § 101(a)(13), LPRs who have been convicted of, or
    who have admitted to, commission of certain crimes cannot
    travel outside the country — even for innocent, casual, and
    brief trips previously allowed — without facing charges of
    inadmissibility upon their return. Retroactive application of
    the new INA § 101(a)(13) thus attaches a new legal conse-
    quence to the convictions of LPRs who pled guilty to these
    crimes prior to its enactment. Because the ability to travel
    abroad is one of the important “immigration consequences”
    that LPRs would take into account, and because LPRs who
    pled guilty to such offenses prior to IIRIRA would have rea-
    sonably relied on the continuing ability to travel abroad under
    CAMINS v. GONZALES                   10743
    the old INA § 101(a)(13), as interpreted by Fleuti, we hold
    that the new INA § 101(a)(13) may not be applied retroac-
    tively to them.
    In light of our holding that Camins is entitled to rely on the
    old INA § 101(a)(13), as interpreted by Fleuti, we do not
    reach his argument that the new INA § 101(a)(13) violates
    equal protection by distinguishing between LPRs who briefly
    leave the United States and those who remain here. Nor need
    we consider Camins’ argument that the IJ applied an incorrect
    legal standard for relief from removal.
    We remand for further proceedings consistent with our
    opinion.
    Petition for review GRANTED and REMANDED.
    

Document Info

Docket Number: 05-70291

Filed Date: 8/28/2007

Precedential Status: Precedential

Modified Date: 10/14/2015

Authorities (21)

Diego Ricardo Itzcovitz, a Permanent Resident Alien ... , 447 F.2d 888 ( 1971 )

carlos-tineo-v-john-ashcroft-attorney-general-usa-james-w-ziglar , 350 F.3d 382 ( 2003 )

Victor Saravia-Paguada v. Alberto R. Gonzales, Attorney ... , 488 F.3d 1122 ( 2007 )

Pedro Garcia-Quintero v. Alberto R. Gonzales, Attorney ... , 455 F.3d 1006 ( 2006 )

Malagon De Fuentes v. Gonzales , 462 F.3d 498 ( 2006 )

Clifford K. Olatunji v. John Ashcroft, Attorney General of ... , 387 F.3d 383 ( 2004 )

Bozo Kelava v. Alberto R. Gonzales, Attorney General , 434 F.3d 1120 ( 2006 )

Jose Roberto Fernandez-Ruiz v. Alberto R. Gonzales , ... , 410 F.3d 585 ( 2005 )

Hugo Armendariz-Montoya v. Roseanne C. Sonchik, District ... , 291 F.3d 1116 ( 2002 )

Joaquin Sinotes-Cruz v. Alberto R. Gonzales, Attorney ... , 468 F.3d 1190 ( 2006 )

Daniel Valencia-Alvarez v. Alberto R. Gonzales, Attorney ... , 469 F.3d 1319 ( 2006 )

Rodolfo Jubilado v. United States , 819 F.2d 210 ( 1987 )

Luis Toro-Romero v. John Ashcroft, Attorney General , 382 F.3d 930 ( 2004 )

Sombat Kamheangpatiyooth v. Immigration and Naturalization ... , 597 F.2d 1253 ( 1979 )

Margarita Garcia-Ramirez v. Alberto R. Gonzales, Attorney ... , 423 F.3d 935 ( 2005 )

wen-wan-chang-tsung-ming-chang-chiao-ying-chang-yi-yuan-chiang-hsien-ming , 327 F.3d 911 ( 2003 )

Immigration & Naturalization Service v. St. Cyr , 121 S. Ct. 2271 ( 2001 )

Rosenberg v. Fleuti , 83 S. Ct. 1804 ( 1963 )

Landgraf v. USI Film Products , 114 S. Ct. 1483 ( 1994 )

Republic of Austria v. Altmann , 124 S. Ct. 2240 ( 2004 )

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