Cristian Guzman v. Attorney General United States , 770 F.3d 1077 ( 2014 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 13-3196
_____________
CRISTIAN PANIAGUA GUZMAN,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
Respondent
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No.: A044-875-630)
Immigration Judge: Honorable Dorothy A. Harbeck
Argued on September 8, 2014
BEFORE: RENDELL, GREENAWAY and KRAUSE,
Circuit Judges
(Opinion filed: November 3, 2014)
David G. Katona, Esquire (Argued)
Katona & Mir, LLP
49 West 37th Street, 7th Floor
New York, NY 10018
Counsel for Petitioner
Eric H. Holder, Jr.
Attorney General of the United States
Stuart F. Delery, Esquire
Acting Assistant Attorney General
Civil Division
Jennifer P. Levings, Esquire
Senior Litigation Counsel
Tim Ramnitz, Esquire (Argued)
Trial Attorney
Thomas W. Hussey, Esquire
Trial Attorney
Jason Wisecup, Esquire
Trial Attorney
Office of Immigration Litigation, Civil Division
United States Department of Justice
Ben Franklin Station
P. O. Box 878
Washington, DC 20044
Counsel for Respondent
2
OPINION
RENDELL, Circuit Judge:
Petitioner Cristian Guzman appeals from a ruling by
the Board of Immigration Appeals (“BIA”) that the so-called
“stop-time rule,” as enacted by the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996, Pub. L.
No. 104-208, div. C., 110 Stat. 3009 (1996) (“IIRIRA”)
(effective April 1, 1997), was not impermissibly retroactive
as applied to his 1995 criminal offense. The BIA rejected
Petitioner’s argument that the application of the stop-time
rule poses a “new disability” on his past conduct. For the
reasons set forth below, we will affirm.
I. Background
Petitioner is a 38-year-old citizen of the Dominican
Republic. He was admitted to the United States as a lawful
permanent resident on October 8, 1994 and has continually
resided here since that time. A little more than a year after
his admission, New York City police arrested Petitioner and
charged him with Criminal Possession of a Controlled
Substance, in violation of New York law. Petitioner pled
guilty to a lesser possession charge on December 19, 1995,
and he was sentenced to three years’ probation. In 2005, New
York City police again arrested and charged Petitioner with
Criminal Possession of a Controlled Substance in violation of
3
New York law. Petitioner pled guilty and, on December 1,
2005, was sentenced to time served.1
The Department of Homeland Security (“DHS”) took
custody of Petitioner and served him with a Notice to Appear
(“NTA”) for removal proceedings on March 6, 2012, based
on his 2005 conviction pursuant to Immigration and
Nationality Act (“INA”) § 237(a)(2)(B)(i), which authorized
removal of:
Any alien who at any time after
admission has been convicted of a
violation of (or a conspiracy or
attempt to violate) any law or
regulation of a State, the United
States, or a foreign country
relating to a controlled substance
(as defined in section 802 of Title
21), other than a single offense
involving possession for one's
own use of 30 grams or less of
marijuana, is deportable.
8 U.S.C. § 1227(a)(2)(B)(i). Notably, although IIRIRA made
various changes to the immigration laws, the same basis for
removal appeared in pre-IIRIRA law as well, which would
likewise have rendered Petitioner removable for his 1995
offense. See 8 U.S.C. § 1251(a)(2)(B)(i) (1994) (repealed
1996) (using the term “entry” in place of “admission”).
1
The Government notes several other of Petitioner’s arrests
between 1995 and 2005, but we need not recount them here
as they do not bear on this case.
4
However, the removal proceedings in 2012 were based on his
2005, not his 1995, conviction.
A. Statutory Framework
Prior to the passage of IIRIRA, an alien in removal
proceedings could apply for a discretionary waiver of
deportation, known as a “212(c) waiver” if he could show (1)
seven years continuous presence, and (2) that he had not been
convicted of one or more aggravated felonies for which a
term of imprisonment of at least five years had been imposed.
INA § 212(c), 8 U.S.C. § 1182(c) (1994) (repealed 1996);
Perez v. Elwood, 294 F.3d 552, 556 (3d Cir. 2002). IIRIRA
repealed this provision and replaced it with a similar
procedure known as cancellation of removal. To be eligible
for cancellation of removal, a legal permanent resident alien
must (1) be “lawfully admitted for permanent residence for
not less than 5 years,” (2) have “resided in the United States
continuously for 7 years after having been admitted in any
status,” and (3) “not [have] been convicted of an aggravated
felony.” 8 U.S.C. § 1229b(a).
However, IIRIRA also mandated a new scheme for
calculating an alien’s period of continuous residence,
whereby “any period of continuous residence or continuous
physical presence in the United States shall be deemed to
end . . . when the alien has committed an offense referred to
in section 1182(a)(2) of this title that renders the
alien . . . removable from the United States.” 8 U.S.C. §
1229b(d)(1)(B). This is commonly known as the “stop-time”
rule. Briseno-Flores v. Att’y Gen. of U.S., 492 F.3d 226, 227
(3d Cir. 2007).
5
B. Petitioner’s Removal Proceedings and the
Immigration Judge’s Decision
Petitioner appeared before an immigration judge
(“IJ”), conceded removability as charged, and submitted an
application for cancellation of removal. The Government
argued that he was ineligible for this form of relief due to the
stop-time rule, which stopped his accrual of the requisite
seven years’ presence required for cancellation of removal
upon the commission of his drug offense in 1995. Petitioner
argued that application of the stop-time rule of IIRIRA to
render him ineligible for cancellation of removal due to his
1995 offense would have an impermissibly retroactive effect.
While he acknowledged that the 1995 offense rendered him
immediately deportable with no opportunity for relief because
he had been in the country for only one year at the time,
Petitioner nonetheless argued that he could have tried to delay
his deportation proceedings until he accrued the requisite
seven years’ lawful continuous presence to become eligible
for discretionary waiver under former INA § 212(c).
Petitioner argued that this strategy was available to aliens
prior to the passage of IIRIRA, and the fact that this
opportunity was no longer available to him constituted a “new
disability,” which, under Landgraf v. USI Film Products, 511
U.S. 244, 269 (1994), would make its application to him
impermissibly retroactive. Petitioner also urged that
retroactive application of the stop-time rule was arbitrary and
capricious in that it punished lawful permanent residents who
committed crimes within seven years of their admission,
whereas residents who had accrued seven years’ presence
before committing qualifying offenses were not subject to the
6
rule. Additionally, Petitioner asked to be able to terminate his
removal proceedings in order to pursue naturalization.2
The IJ held a hearing on February 22, 2013, at the
conclusion of which she rendered an oral decision denying
Petitioner’s motion to continue or terminate his proceedings
and finding Petitioner ineligible for cancellation of removal
because his 1995 offense stopped his accrual of continuous
presence pursuant to the stop-time rule. The IJ found that the
stop-time rule itself was not arbitrary and capricious under
Judulang v. Holder, 132 S. Ct. 476, 490 (2011). The IJ
denied Petitioner’s motion to terminate proceedings to pursue
a naturalization application for lack of an affirmative
communication from DHS regarding Petitioner’s prima facie
eligibility for naturalization, as required by the BIA’s
decision in In re Acosta Hidalgo, 24 I. & N. Dec. 103 (BIA
2007).
2
In addition, Petitioner requested a further continuance to
pursue post-conviction relief pursuant to Padilla v. Kentucky,
559 U.S. 356 (2010) (holding that the Sixth Amendment
requires defense counsel to advise their clients whether a
guilty plea carries a risk of deportation). The IJ denied
Petitioner’s request to further continue proceedings to pursue
post-conviction relief under Padilla pursuant to Chaidez v.
United States, 133 S. Ct. 1103, 1113 (2013), which held that
“defendants whose convictions became final prior to Padilla
. . . cannot benefit from its holding.” As this is not an issue on
appeal, we do not address it.
7
A. Petitioner’s Proceedings Before the BIA and the
BIA’s Decision
Petitioner raised the same arguments before the BIA,
and also urged that the IJ erred in not permitting him to
concurrently apply for both a 212(c) waiver and cancellation
of removal. The BIA affirmed the IJ’s decision. It held that
Petitioner’s 1995 controlled substance offense stopped his
accrual of continuous presence short of the requisite seven
years for purposes of cancellation of removal. The BIA
explained that the stop-time rule imposed no “new disability”
on Petitioner because the 1995 offense rendered him
immediately deportable with no possibility of relief had he
been placed in deportation proceedings at that time, prior to
the passage of IIRIRA, because he lacked the requisite seven
years’ continuous presence for a 212(c) waiver. The BIA
reasoned that “[a]t the time of [Petitioner’s] conviction in
1995, he was immediately amenable to deportation from this
country under pre-IIRIRA law.” A.R. 4. Petitioner’s options
pre-and post-IIRIRA were therefore no different, and the
application of IIRIRA’s stop-time rule to him was not
impermissibly retroactive.
The BIA also rejected Petitioner’s contention that he
should have been permitted to simultaneously apply for a
212(c) waiver and cancellation of removal. It observed that 8
U.S.C. § 1229b(c)(6) explicitly precludes an alien from
applying for both 212(c) waiver and cancellation of removal
and that, even if he could obtain a 212(c) waiver
notwithstanding his 1995 conviction, “the conviction would
still be deemed to have ended [Petitioner’s] period of
continuous residence for purposes of cancellation of removal
because the granting of 212(c) relief does not serve to
8
universally pardon, expunge, or eliminate all negative
immigration consequences stemming from an alien’s criminal
conviction.” Id.
In addition, the BIA ruled that the IJ properly declined
to terminate Petitioner’s removal proceedings under 8 C.F.R
§ 1239.2(f) because he failed to attempt to obtain an
affirmative communication from the DHS addressing his
prima facie eligibility for naturalization.
B. Arguments on Appeal
On appeal, Petitioner repeats the same arguments that
the BIA rejected. Relying on I.N.S. v. St. Cyr, 533 U.S. 289
(2001), he argues that an alien making the decision to forego
his right to trial and plead guilty, like the petitioner in St. Cyr,
does so assuming the state of the law of the time: when
Petitioner pled guilty to a deportable offense in 1995, he
expected to retain the possibility of obtaining a 212(c) waiver
from deportation in the future, namely, after being in the
country for an additional six years. He urges that applying
the stop-time rule of IIRIRA to pre-IIRIRA conduct
forecloses that possibility and is therefore impermissibly
retroactive. Petitioner urges that, but for the stop-time rule,
he would have accrued the seven years’ requisite presence
needed for either type of removal—pre- and post-IIRIRA—
prior to his 2005 offense. Accordingly, he contends, the stop-
time rule should not apply to him.
In the alternative, Petitioner argues that the BIA
wrongly affirmed the IJ’s decision not to terminate removal
proceedings to allow him to make a prima facie case of
eligibility for naturalization pursuant to 8 C.F.R. § 1239.2(f),
9
based on the fact that he did not have an affirmative
communication from the DHS indicating such eligibility.3 As
the regulation at issue states that an alien must make a prima
facie case of eligibility for naturalization, the BIA’s decision
in In re Acosta Hidalgo, which interpreted this regulation to
require a communication from the DHS establishing such
eligibility, does not comport with the text of the regulation
and deprives Petitioner of the opportunity to do what the
regulation says—i.e., establish his prima facie eligibility to
the court.
The Government argues that no genuine issue of
retroactivity is presented here, as Petitioner’s removal
3
Section 1239.2(f) provides:
An immigration judge may
terminate removal proceedings to
permit the alien to proceed to a
final hearing on a pending
application or petition for
naturalization when the alien has
established prima facie eligibility
for naturalization and the matter
involves exceptionally appealing
or humanitarian factors; in every
other case, the removal hearing
shall be completed as promptly as
possible notwithstanding the
pendency of an application for
naturalization during any state of
the proceedings.
8 C.F.R. § 1239.2(f).
10
proceedings are predicated on his 2005 offense, which post-
dates IIRIRA. Since cancellation of removal under IIRIRA
did not exist at the time of Petitioner’s 1995 conviction, he
had no right to it then, and since Petitioner does not meet the
requirements for cancellation of removal, he has no right to it
now. In the alternative, the Government argues that we
should follow the Fifth Circuit’s reasoning in Heaven v.
Gonzales, 473 F.3d 167 (5th Cir. 2006), and hold that, even if
the stop-time rule is being applied retroactively here, such
application is not impermissibly retroactive. Petitioner’s
1995 controlled substance offense rendered him immediately
deportable without eligibility for relief under 212(c) and, as
such, application of the stop-time rule created no “new
disability” because “[d]eportation is the consequence he
receives upon retroactive application of the stop-time rule just
as it is the consequence he would have received immediately
[in 1995] following his criminal conduct.” Brief for
Respondent at 23 (quoting Martinez v. I.N.S., 523 F.3d 365,
373-74 (2d Cir. 2008)). The Government adds: “Congress
certainly has never invested [Petitioner] with a substantive
right to purposefully delay his proceedings or created a settled
expectation of benefiting from delays in the administrative
process.” Brief for Respondent at 24 (citing St. Cyr, 533 U.S.
at 321-22).4
4
The Government also argued that this court lacks the
jurisdiction to review a final order of removal under the INA,
while conceding that we retain jurisdiction to review
questions of law and constitutional claims pursuant to 8
U.S.C. § 1252(a)(2)(D). Petitioner has clearly raised a
question of law, the retroactive application of a statute, which
affords jurisdiction here.
11
STANDARD OF REVIEW
We review rulings of the BIA under INA § 242, 8
U.S.C. § 1252(a)(2)(D). Our review is limited to
constitutional claims and questions of law. Id.; see also
Paredes v. Att’y Gen. of the U.S., 528 F.3d 196, 198 (3d Cir.
2008). Where “the BIA adopts and affirms the decision of
the IJ, as well as provides its own reasoning,” we review both
the IJ’s and BIA’s decisions. Hashimi v. Att’y Gen. of the
U.S., 531 F.3d 256, 259 (3d Cir. 2008). We review questions
of law de novo. Silva-Rengifo v. Att’y Gen. of the U.S., 473
F.3d 58, 63 (3d Cir. 2007). However, we will defer to the
BIA’s reasonable interpretations of the statutes it is charged
with administering. I.N.S. v. Aguirre-Aguirre, 526 U.S. 415,
424 (1999).
DISCUSSION
Petitioner has not previously disputed, nor does he
now, that both his 1995 and 2005 offenses rendered him
removable when committed. Rather, he disputes the
application of a provision of IIRIRA, the “stop-time rule,”
which precludes aliens who have committed deportable
offenses from being spared deportation if they have accrued
seven years of continuous presence in the United States, as
that “ability” existed under pre-IIRIRA law. The crux of
Petitioner’s argument—as it was before the IJ and the BIA—
is that the application of the stop-time rule to his 1995 offense
to disqualify him from cancellation of removal relief is
impermissibly retroactive because it imposes a “new
disability” on him for conduct that pre-dates IIRIRA.
Specifically, he has been deprived of the opportunity to delay
deportation proceedings while accumulating the continuous
seven years’ presence required for discretionary relief from
12
removal, an opportunity he had when he pled to his 1995
offense. Applying the stop-time rule of IIRIRA, enacted in
1996, disqualified him from any such relief. As we have
never written precedentially on the issue of whether the stop-
time rule should apply retroactively, we do so here.
A. Statutory Framework Prior and Subsequent to
IIRIRA
As noted above, under the immigration laws in effect
in November 1995, when Petitioner committed his first drug
offense, legal permanent residents who were subject to
deportation, but who had resided in the United States for
seven consecutive years, were eligible to apply for a
discretionary waiver of deportation under INA § 212(c). See
8 U.S.C. § 1182(c) (repealed 1996).5 “The decision of
whether to award section 212(c) relief involved only a
balancing of the adverse factors evidencing an alien’s
undesirability as a permanent resident with the social and
humane considerations presented in his behalf to determine
whether the granting of [a section 212(c) waiver] appear[ed]
in the best interests of this country.” Martinez, 523 F.3d at
368 (internal quotation marks omitted) (alterations in
original) (quoting Kai Tung Chan v. Gantner, 464 F.3d 289,
295 (2d. Cir. 2006). Notably, although the decision to grant a
212(c) waiver was a discretionary one, a “substantial
5
8 U.S.C. § 1182(c) (repealed 1996) provides: “Aliens
lawfully admitted for permanent residence who temporarily
proceeded abroad voluntarily and not under an order of
deportation, and who are returning to a lawful unrelinquished
domicile of seven consecutive years, may be admitted in the
discretion of the Attorney General . . . .”
13
percentage” of applications were granted. St. Cyr, 533 U.S. at
296 (noting that between 1989 and 1995, over 10,000 section
212(c) waiver applications were granted).
A lawful permanent resident in deportation
proceedings could seek a discretionary waiver of deportation
under former INA § 212(c), if he could show (1) seven
consecutive years of lawful continuous physical presence and
(2) that he had not been convicted of one or more aggravated
felonies for which a term of imprisonment of at least five
years had been imposed. Perez, 294 F.3d at 556. Aliens
accrued time toward continuous residence and physical
presence requirements until they applied for relief. Martinez,
523 F.3d at 368. Often, an alien would manage to delay his
removal process in order to accumulate seven years’
presence, which was one of the reasons Congress passed
IIRIRA. Id. This delay strategy was the exact abuse of the
system Congress intended to correct in IIRIRA by eliminating
section 212(c), replacing it with cancellation of removal, and
enacting the stop-time rule. Arca-Pineda v. Att’y Gen. of the
U.S., 527 F.3d 101, 106 (3d Cir. 2008) (citing H.R. Rep. No.
104–469(I) (1996)); In re Mendoza-Sandino, 22 I. & N. Dec.
1236, 1243 (BIA 2000) (same).
IIRIRA, which was enacted on September 30, 1996
and went into effect on April 1, 1997, eliminated the 212(c)
waiver, and replaced it with cancellation of removal,
INA § 240A(a). Under INA § 240A(a), a legal permanent
resident must satisfy three conditions to qualify for
cancellation of removal relief: the alien (1) must have been
“lawfully admitted for permanent residence for not less than 5
years,” (2) must have “resided in the United States
continuously for 7 years after having been admitted in any
14
status,” and (3) must “not [have] been convicted of any
aggravated felony.” 8 U.S.C. § 1229b(a). In addition to
instituting this new cancellation of removal scheme, IIRIRA
established a new stop-time rule in INA § 240A(d)(1) for
calculating an alien’s period of continuous residence or
physical presence. The accrual of continuous presence for
purposes of the seven years terminates when the alien has
committed an offense “that renders the alien inadmissible to
the United States under section 1182(a)(2) of this title or
removable from the United States under section 1227(a)(2) or
1227(a)(4) of this title, whichever is earliest.”
8 U.S.C. § 1229b(d)(1)(B). Once the period of continuous
residence is terminated, it is not restarted by subsequent
events. Briseno-Flores, 492 F.3d at 230.
B. Retroactive Application of the Stop-Time Rule,
INA § 240A(d)
In Landgraf v. USI Film Products, the Supreme Court
confirmed the longstanding presumption against retroactive
legislation, emphasizing that “[e]lementary considerations of
fairness dictate that individuals should have an opportunity to
know what the law is and to conform their conduct
accordingly; settled expectations should not be lightly
disrupted.” 511 U.S. at 265. At the same time, the Court
acknowledged that Congress has the power, within
constitutional limits, to enact laws with retroactive effect.
The Landgraf court articulated a two-step test for determining
when a statute could be applied retroactively. Under the first
step, the court must ascertain “whether Congress has
expressly prescribed the statute’s proper reach.” Id. at 280.
If the answer is yes, the inquiry ends there. If, however, “the
statute contains no such express command,” id., the court
15
must move to the second step and decide whether the
application of the statute would have an impermissibly
“retroactive effect,” that is, the court must assess “whether the
new provision attaches new legal consequences to events
completed before its enactment.” Id. at 269-70. A statute is
impermissibly retroactive if it “takes away or impairs vested
rights acquired under existing laws, or creates a new
obligation, imposes a new duty, or attaches a new disability,
in respect to transactions or considerations already past.” Id.
at 269 (internal quotation marks omitted) (emphasis added).
Congress was silent with respect to the retroactive
application of the stop-time rule, while it expressly mandated
the retroactive application of certain other provisions of
IIRIRA. For example, in the transitional rules, Congress
expressly mandated that the stop-time rule applied
retroactively to applications for suspension of deportation that
were pending at the time of IIRIRA’s enactment. Briseno-
Flores, 492 F.3d at 230. It also expressly mandated the
retroactive application of the expanded definition of
aggravated felony. See IIRIRA § 321(b), 110 Stat. at 3009-
628 (“Notwithstanding any other provision of law (including
any effective date), the term [“aggravated felony”] applies
regardless of whether the conviction was entered before, on,
or after [September 30, 1996].”); see also St. Cyr, 533 U.S. at
318-19. In contrast, the text of § 1229b(d)(1) says nothing
whatsoever about retroactive application. Therefore, we have
no trouble concluding that it is ambiguous, and an analysis of
whether the application of the stop-time rule is impermissibly
retroactive under step two of Landgraf is appropriate here.
We disagree with the Government that this case
presents no issue of retroactivity at all. Our focus is not
16
merely on the date of the offense that served as the basis for
removal and the law in effect at that time. Rather, our focus
is broader. As the Court reasoned in St. Cyr, the fact “that
deportation is not punishment for past crimes does not mean
that we cannot consider an alien’s reasonable reliance on the
continued availability of discretionary relief from deportation
when deciding whether the elimination of such relief has
retroactive effect.” Id. at 324. The application of a post-
IIRIRA provision, namely, the stop-time rule, to alter the
availability of certain relief based on conduct that took place
pre-IIRIRA clearly has a retroactive effect. The issue is
whether such effect is impermissibly retroactive.
This brings us to step two of Landgraf. As noted
above, the stop-time rule is impermissibly retroactive if it
“attaches new legal consequences” to events completed
before the enactment of IIRIRA, that is, if it “takes away or
impairs vested rights acquired under existing laws, or creates
a new obligation, imposes a new duty, or attaches a new
disability, in respect to transactions or considerations already
past.” 511 U.S. at 269-70 (internal quotation marks omitted)
(quoting Soc’y for Propagation of the Gospel v. Wheeler, 22
F. Cas. 756, 767 (No. 13, 156) (C.C.D.N.H. 1814) (Story, J.)).
We note that while the inquiry may be broad, the application
under step two is very fact-specific. In St. Cyr, the Supreme
Court held impermissible the retroactive application of the
stop-time rule to an alien who had accrued seven years
presence prior to IIRIRA but whose removal proceedings did
not commence until after the passage of IIRIRA because his
right to a 212(c) waiver had vested before the passage of the
new law. 533 U.S. at 326. St. Cyr had pled guilty to a
removable offense, foregoing his right to a trial, under the
assumption that the consequence of doing so at the time
17
would not disqualify him from 212(c) relief. Id. at 321-22.
IIRIRA replaced 212(c) waiver with cancellation of removal
and disqualified St. Cyr from removal relief based on the type
of offense he had committed. The Court held that the
application of IIRIRA to St. Cyr created a new disability,
defining it as the “elimination of any possibility of § 212(c)
relief for people who entered into plea agreements with the
expectation that they would be eligible for such relief.” Id. at
321. The Court reasoned that the quid pro quo nature of plea
agreements and the attendant waiver of some constitutional
rights by a defendant, particularly when immigration status is
at stake, dictates that attaching new legal consequences or a
new disability—namely, elimination of the availability of
212(c) relief—would amount to an impermissible retroactive
application. Id. Accordingly, the Court held that the section
212(c) waiver remains available for aliens “whose
convictions were obtained through plea agreements and who,
notwithstanding those convictions, would have been eligible
for § 212(c) relief at the time of their plea under the law then
in effect.” Id. at 326.
Similarly, in Sinotes-Cruz v. Gonzales, the Court of
Appeals for the Ninth Circuit held that the stop-time rule of
IIRIRA was impermissibly retroactive when applied to stop
an alien’s accrual of seven years’ continuous residence when
based on “a conviction, obtained pursuant to a guilty plea, for
a crime that did not render an alien deportable at the time of
the plea.” 468 F.3d 1190, 1201 (9th Cir. 2006). In 1993
Sinotes-Cruz pled guilty to two counts of attempted
aggravated assault. Id. at 1202. The court found it
“undisputed that at the time of his plea, his conviction did not
render him deportable.” Id. (citing 8 U.S.C. §
1251(a)(2)(A)(i) (1993)). IIRIRA reclassified his crime,
18
making him deportable for having been convicted of a crime
involving moral turpitude, committed within five years of
admission, for which a sentence of a year or longer could
have been imposed. Id. Similar to Petitioner’s case, DHS
commenced removal proceedings against Sinotes-Cruz based
on a deportable offense he committed after IIRIRA’s passage.
Id. at 1197. Although Sinotes-Cruz had accrued the requisite
seven years continuous presence before IIRIRA’s passage,
the Government argued that his time should be stopped on the
date of his pre-IIRIRA conviction, which IIRIRA reclassified
as a crime of moral turpitude. The court held that the
retroactive application of the stop-time rule to Sinotes-Cruz’s
pre-IIRIRA conviction was impermissible under the second
step of the Landgraf analysis, reasoning that he had, in
pleading guilty, given up valuable rights, including the right
to go to trial, “in the justifiable expectation that [his] plea[]
would have no effect on [his] immigration status.” Id. at
1202.
St. Cyr and Sinotes-Cruz are different from the instant
case in two important respects. First, while IIRIRA
reclassified the crimes that the petitioners in St. Cyr and
Sinotes-Cruz committed so as to produce harsher effects, no
such reclassification took place here. Petitioner’s 1995
offense rendered him deportable and ineligible for 212(c)
relief, because he had not accrued seven years’ continuous
residence. IIRIRA did not reclassify this offense or change it
in any way. A controlled substance offense rendered an alien
deportable in 1995, just as it would today, and eligible for
removal relief provided the alien has accrued seven years
continuous residence, just as it would today.
19
Second, in both St. Cyr and Sinotes-Cruz, the
petitioners had accrued the requisite seven years’ continuous
presence to be eligible for 212(c) relief prior to the passage of
IIRIRA. They pled guilty to a non-qualifying crime under the
reasonable assumption that doing so would not affect their
immigration status. Their eligibility for 212(c) relief had
vested prior to the time that IIRIRA changed the rules,
replacing 212(c) with the stricter cancellation of removal
procedure. The same is not true in Petitioner’s case. At the
time of his 1995 conviction, Petitioner had been residing in
the United States for only a year. When IIRIRA was passed
in 1996, taking effect in 1997, Petitioner had not come close
to accruing the seven years continuous presence required for
212(c) relief. He had no vested right because he was
ineligible for any form of removal relief when IIRIRA was
passed, and is ineligible for any form of removal relief today
because the stop-time rule disqualifies him. There have been
no “new legal consequences” imposed on Petitioner as a
result of the application of the rule. St. Cyr, 533 U.S. at 321.
Petitioner’s situation is much more akin to that of the
petitioners in Martinez and Heaven. In Martinez, the Court of
Appeals for the Second Circuit held that the stop-time rule
did not have an impermissible retroactive effect when applied
to an alien’s deportable drug offense, committed prior to the
passage of IIRIRA, to prevent him from obtaining
cancellation of removal for a deportable crime committed
after the passage of IIRIRA. 523 F.3d at 377. The court
reasoned that if the alien had been “captured and successfully
prosecuted [for his pre-IIRIRA crime] . . . and the INS had
obtained a deportation order promptly after he committed the
offense, he could have been deported without the possibility
20
of relief because he would not, at the time, have accrued the
seven years required by the repealed INA § 212(c).” Id. at
374. Essentially, “IIRIRA, as applied to petitioner here, did
not change the consequence of [his] criminal act.” Id. at 375.
Similarly in Heaven the Court of Appeals for the Fifth Circuit
applied the stop-time rule retroactively to an alien who had
committed a deportable offense pre-IIRIRA to disqualify him
from cancellation of removal, reasoning also that IIRIRA had
caused no “new legal consequences to events completed
before its enactment.” 473 F.3d at 173.
Petitioner seizes on Vartelas v. Holder as dictating the
outcome in his favor, and specifically its use of the term “new
disability.” 132 S. Ct. 1479, 1482 (2012). But Vartelas does
not help Petitioner. In Vartelas, the Supreme Court refused to
retroactively apply an IIRIRA provision preventing lawful
permanent resident aliens from departing, even briefly, from
the United States without having to seek admission upon
return. Prior to IIRIRA, lawful permanent residents with a
felony conviction were able to briefly travel abroad and return
to the United States without applying for readmission. Id. at
1483. Lawful permanent residents were not regarded as
making an “entry” upon their return “from innocent, casual,
and brief excursion[s] . . . outside this country’s borders.” Id.
at 1484 (internal quotation marks omitted) (alterations in
original) (quoting Rosenberg v. Fleuti, 374 U.S. 449, 461-62
(1963)). IIRIRA § 1101(a)(13)(C)(v) changed this rule.
Under the new law, lawful permanent residents returning
from any trip abroad would be regarded as seeking
“admission” if they had committed an offense identified in
section 1182(a)(2), which included “a crime involving moral
turpitude … or conspiracy to commit such a crime.” Id. at
1485 (citing § 1182(a)(2)(A)(i)). It essentially allowed DHS
21
to refuse entry to legal permanent resident aliens who had
committed certain crimes if they traveled abroad, even
though, prior to IIRIRA, those aliens were not subject to
admission procedures upon their return to the United States.
Id. at 1485. Vartelas pled guilty to a felony in 1994, and in
the years after his conviction and after IIRIRA’s passage, he
regularly traveled to Greece to visit his aging parents. Id. at
1485. In 2003, when he returned from a week-long trip to
Greece, he was classified as an alien seeking “admission”
based on his 1994 conviction. Id. He was placed in removal
proceedings and sought relief on the basis that “IIRIRA’s new
‘admission’ provision . . . did not reach back to deprive him
of lawful resident status based on his pre-IIRIRA conviction.”
Id. at 1486. The Supreme Court held that application of the
new rule to Vartelas was effectively a ban on travel outside
the United States. The Court found that this was most
certainly a “new disability” in that, due to past events,
namely, his pre-IIRIRA guilty plea and conviction, permanent
residents situated as Vartelas would lose “the ability to travel
abroad” and “face potential banishment.” Id. at 1487-88.
The law in effect when Vartelas made the decision to plead
guilty imposed no such restriction. The Court characterized
this change as “a harsh penalty, made all the more devastating
if it means enduring separation from close family members.”
Id. at 1488 (footnote omitted).
Petitioner faces no such harsh penalty. When pleading
guilty, Vartelas did so under the correct assumption that the
law at the time of his plea did not preclude him from short
travels outside of the United States. IIRIRA imposed a new
disability on him by taking from him the ability to travel to
visit his aging parents, something he was clearly able to do
without any adverse consequences when he pled guilty.
22
Petitioner, on the other hand, had no right or ability to seek a
waiver from deportation when he pled guilty in 1995. The
instant he committed his offense before meeting the seven-
year residency requirement for suspension of deportation, he
was deportable. See INA § 237(a)(2)(B)(i), 8 U.S.C. §
1227(a)(2)(B)(i). Petitioner asks us to characterize his
“disability” as losing the opportunity to delay his deportation
proceedings until he reached the seven years’ requisite
presence if, hypothetically, such proceedings had been
brought against him at the time. He focuses on the word
“disability” as if he should have the ability to deliberately
delay proceedings or attempt to evade the authorities, hoping
to accrue seven years without deportation. But “disability”
must mean that one has a present ability which is then lost.
Petitioner had no ability under prior law, only a hope and
speculation. Unlike the petitioner in Vartelas, who accepted a
guilty plea relying on the existing law that did not bar his
right to travel abroad, Petitioner’s rights were no different
when he accepted his plea than they are today. Neither the
opportunity to delay deportation proceedings nor the chance
to evade the authorities, with the goal of avoiding deportation
in order to become eligible for relief, creates a new disability.
Accordingly, the decision to apply the stop-time rule to
Petitioner is not impermissibly retroactive.
C. Petitioner’s Remaining Arguments
1. Whether the BIA’s Decision was Arbitrary and
Capricious
Relying on Judulang, Petitioner argues that retroactive
application of the stop-time rule is arbitrary and capricious
and thus, not entitled to any deference. 132 S. Ct. at 490
23
(“We must reverse and agency policy when we cannot discern
a reason for it.”). In Judulang, the Supreme Court considered
the eligibility of aliens charged with deportability to seek a
waiver under section 212(c), although the statute limited this
relief to aliens charged with inadmissibility. The BIA had
extended relief under section 212(c) to aliens charged with
deportability, but only if the ground of deportation was
comparable to a ground of inadmissibility. Id. at 480-81. In
applying this to aliens who were deportable, the BIA based its
grant of relief on whether the ground for deportation charged
by DHS had a close analogue in the statute’s list of exclusion
grounds. Id. at 481-82. The Court found this approach
arbitrary and capricious because it “hing[ed] a deportable
alien’s eligibility for discretionary relief on the chance
correspondence between statutory categories—a matter
irrelevant to the alien’s fitness to reside in this country.” Id.
at 484.
Petitioner argues that Judulang limits the BIA to
interpreting a statute in a way that is rational, non-arbitrary
and tied to the purposes of the immigration laws. He urges
that the BIA’s decision to apply the stop-time rule to him
conflicts with the purposes of the immigration laws because it
treats legal permanent resident aliens who commit deportable
crimes differently, depending on when they committed the
crime. Those aliens who commit deportable crimes after
seven years’ requisite presence are allowed to apply for
waiver from deportation, while those who commit a crime
before such requisite presence are not. Petitioner’s argument
is markedly different from Judulang in one important respect:
his is an objection to the stop-time rule itself, as enacted by
Congress, not the BIA’s application of it, and “Congress has
plenary power to pass legislation concerning the admission
24
and exclusion of aliens.” Acosta v. Ashcroft, 341 F.3d 218,
226 (3d Cir. 2003). Congress may have rationally concluded
that an alien who has resided in the United States for a longer
period of time should have a greater right to stay in the
country than one who has resided here for a shorter period of
time. Because the stop-time rule is one that Congress, and
not the BIA, created, the argument that the BIA acted
arbitrarily in applying it is misplaced.
2. Whether the BIA Erred in Finding that Petitioner
Could Not Apply for 212(c)Waiver and Cancellation of
Removal Concurrently
Petitioner argues that the BIA and IJ should have
allowed him to apply for relief under section 212(c) as well as
cancellation of removal concurrently. He argues that
although section 1229b(c)(6) provides: “[a]n alien whose
removal has previously been canceled under [cancellation of
removal] . . . or who has been granted relief under section
[212(c)]” shall be “ineligible for relief,” 8 U.S.C. §
1229b(c)(6), this provision does not make clear whether
aliens may apply concurrently for both, based on its use of the
word “previously.” Additionally, he points to Munoz-Yepez
v. Gonzales, 465 F.3d 347 (8th Cir. 2006) (denying
concurrent applications based on Congressional intent) and
Garcia-Jimenez v. Gonzales, 488 F.3d 1082 (9th Cir. 2007)
(denying concurrent applications based on statutory
interpretation) to demonstrate that the meaning of this
provision is unclear, and urges this court to resolve this issue.
The BIA believed that there was no ambiguity in 8 U.S.C.
1229b(c)(6), in that it clearly precluded an alien from
applying for both, but noted in addition that even if
Petitioner’s 1995 conviction were waived under section
25
212(c), the conviction would still end his period of
continuous residence, because “the granting of 212(c) relief
does not serve to universally pardon, expunge, or eliminate all
negative immigration consequences stemming from an alien’s
criminal conviction.” A.R. 4. On appeal, Petitioner
continues to assert the right to apply for 212(c) and
cancellation of removal concurrently, acknowledging that he
needs both forms of relief in order to prevail. Petitioner’s
counsel conceded during oral argument that, if we concluded
that the application of the stop-time rule was not
impermissibly retroactive as applied to Petitioner’s pre-
IIRIRA crime, we need not reach the issue of whether
concurrent applications are permitted. As we have so held,
the issue is moot. We note in addition, however, that, as the
BIA observed, Petitioner is also foreclosed from urging that if
a 212(c) waiver were granted, his 1995 conviction would not
serve as a bar to cancellation, because in Rodriguez-Munoz v.
Gonzales, 419 F.3d 245, 248 (3d Cir. 2005), we specifically
held that a grant of 212(c) waiver does not nullify the
underlying conviction and accordingly, it still exists for
purposes of cancellation of removal analysis. Therefore, even
if Petitioner were to somehow be granted a 212(c) waiver, he
would still be barred from cancellation of removal relief
under Rodriguez-Munoz.
3. Whether the BIA Improperly Refused To Dismiss
Petitioner’s Case so He Could Pursue Naturalization
Finally, Petitioner contends that the IJ should have
allowed him to terminate his removal proceedings so that he
could pursue naturalization. In making this argument,
Petitioner urges that the BIA’s interpretation of its regulation
governing the termination of removal proceedings in In re
26
Acosta Hidalgo, 24 I. & N. Dec. 103 (BIA 2007) is
inconsistent with the plain language of the requirements of
the regulation. The regulation at issue provides:
An immigration judge may
terminate removal proceedings to
permit the alien to proceed to a
final hearing on a pending
application or petition for
naturalization when the alien has
established prima facie eligibility
for naturalization and the matter
involves exceptionally appealing
or humanitarian factors . . . .
8 C.F.R. § 1239.2(f). He contends that in In re Acosta
Hidalgo, the BIA improperly added a requirement that is not
set forth in the regulation, namely, that DHS must attest to an
alien’s prima facie eligibility for naturalization, through an
affirmative communication, prior to termination of removal
proceedings. However, petitioner fails to acknowledge our
decision in Zegrean v. Att’y Gen. of the U.S., 602 F.3d 273,
274 (3d Cir. 2010), in which we upheld this interpretation as
reasonable. We decline to revisit that ruling here. Even if we
were to do so, Petitioner’s argument suffers from another
procedural flaw—namely, his failure to ever present his
application to a local USCIS field office. The absence of
evidence demonstrating that Petitioner took any measures to
formally request a prima facie determination from USCIS
undermines his argument that his removal proceedings should
have been terminated pursuant to 8 C.F.R. § 1239.2(f).
27
CONCLUSION
Petitioner’s argument that the loss of opportunity to
delay deportation proceedings creates a “new disability”
under Landgraf is unconvincing. Petitioner was deportable in
1995 with no avenue for relief, just as he is deportable today.
The passage of IIRIRA did not change the legal consequences
that face Petitioner as a result of his 1995 and 2005
convictions. Petitioner’s remaining arguments are far less
compelling, and fail just the same. Accordingly, we affirm
the BIA and deny Petitioner’s petition for review.
28