Zamora, Francisco C. v. Gonzales, Alberto , 240 F. App'x 150 ( 2007 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued April 17, 2007
Decided July 16, 2007
Before
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 06-2742
FRANCISCO C. ZAMORA, Petition for Review of an Order of the
Petitioner, Board of Immigration Appeals
v. No. A38-884-655
ALBERTO R. GONZALES, Attorney
General of the United States,
Respondent.
ORDER
Francisco Zamora, a permanent resident since 1985, took a brief trip to his
native Mexico in 2001 and was denied readmission based on his prior Illinois
convictions for possessing a stolen car in 1990 and possessing cocaine in 1995. At his
removal hearing, Zamora requested a waiver of inadmissability based on former INA
§ 212(c), 8 U.S.C. § 1182(c) (1994) (repealed), arguing that its repeal should not apply
retroactively. Relying on INS v. St. Cyr, 533 U.S. 289 (2001), in which the Supreme
Court held that an alien who pleaded guilty to an aggravated felony prior to the repeal
of § 212(c) remains eligible for discretionary relief, the IJ denied Zamora’s request
because he had not pleaded guilty to the cocaine charge. The BIA affirmed. Zamora
now petitions for review, arguing that it would be impermissibly retroactive to apply
No. 06-2742 Page 2
the repeal of § 212(c) to him, regardless of whether he actually relied on the prior law.
We deny the petition for review.
Zamora was admitted as a lawful permanent resident in 1985. He has two
United States citizen children, aged 23 and 8, and two grandchildren. He has been
employed as a machinist at Advance Wheel Corporation in Chicago since 1989, and he
serves as an usher for his church. Unfortunately, Zamora also has two criminal
convictions: in 1990 he pleaded guilty to possessing a stolen car, see 95.5 Ill. Comp.
Stat. Ann. 4-103-A(1) (West 1990), and was sentenced to 24 months’ probation; and in
1995 he unsuccessfully contested a charge of possessing less than 15 grams of cocaine,
see 720 Ill. Comp. Stat. Ann. 570/402(c) (West 1994); he was again sentenced to 24
months’ probation.
At his removal hearing, which was delayed until 2005, the IJ found him
removable based on his convictions for a crime of moral turpitude (possessing a stolen
car), see 8 U.S.C. § 1182(a)(2)(A)(i)(I), and a controlled substance offense (possessing
cocaine), see id. § 1182(a)(2)(A)(i)(II). Zamora argued that he should remain eligible for
a discretionary waiver under former INA § 212(c) because his convictions predated the
repeal of that statute. The IJ disagreed, saying that Zamora could not demonstrate
that the elimination of § 212(c) relief is impermissibly retroactive because he pleaded
not guilty and went to trial on the cocaine possession charge. Zamora appealed to the
BIA, contesting, among other things, his ineligibility for a § 212(c) waiver. The BIA
affirmed, explaining that under this and other circuits’ precedent, Zamora’s plea of not
guilty precludes him from establishing impermissible retroactivity. Zamora timely filed
this petition for review.
Zamora now argues that St. Cyr does not require him to demonstrate his
reliance on INA § 212(c) to show that applying the repeal to him is impermissibly
retroactive. He says that the appropriate test for impermissible retroactivity,
established in Landgraf v. USI Film Products, 511 U.S. 244, 280 (1994), is whether the
repeal “would impair rights [he] possessed when he acted” or “increase [his] liability
for past conduct.”
We review de novo an alien’s claim of impermissible retroactivity. See Valere v.
Gonzales, 473 F.3d 757, 761 (7th Cir. 2007). Determining retroactivity is a matter of
statutory interpretation, and “congressional enactments . . . will not be construed to
have retroactive effect unless their language requires this result.” St. Cyr., 533 U.S.
at 315-16 (citation and quotation marks omitted); see Fernandez-Vargas v. Gonzales,
126 S. Ct. 2422, 2428 (2006). Where Congress’s intent is ambiguous, we ask whether
applying the new law would produce an impermissible retroactive effect. St. Cyr, 533
U.S. at 320. That inquiry “demands a commonsense, functional judgment about
whether the new provision attaches new legal consequences to events completed before
its enactment,” and “should be informed and guided by familiar considerations of fair
No. 06-2742 Page 3
notice, reasonable reliance, and settled expectations.” Id. at 321 (citations and
quotation marks omitted).
Prior to the enactment of the Illegal Immigration Reform and Immigrant
Responsibility Act (IIRIRA) and the Antiterrorism and Effective Death Penalty Act
(AEDPA), the Attorney General possessed the authority under § 212(c) of the
Immigration and Nationality Act to grant discretionary waivers of deportation to aliens
who met certain criteria. AEDPA placed new limits on this authority in 1996, and in
1997 IIRIRA repealed § 212(c) altogether, replacing it with a similar form of relief
called “cancellation of removal.” See 8 U.S.C. § 1229b(a). Unlike § 212(c), however, the
new provision makes aliens convicted of an aggravated felony ineligible for relief. See
id. (Zamora notes, and the government does not dispute, that neither of his offenses
are aggravated felonies. See Lopez v. Gonzales, 127 S. Ct. 625 (2006) (simple possession
of a controlled substance is not an aggravated felony); 8 U.S.C. § 1101(a)(43)(G) (theft
offense for which prison sentence is less than one year is not an aggravated felony).)
The new law also requires an alien to have “resided in the United States continuously
for 7 years after having been admitted in any status,” see 8 U.S.C. § 1229b(a), and an
alien’s commission of a crime of moral turpitude ends that continuous residence. See
8 U.S.C. § 1229b(d). (We note that cancellation of removal does not appear to be an
option for Zamora. According to his attorney, he is ineligible for cancellation of removal
because he committed a crime of moral turpitude less than seven years after his
admission (he possessed a stolen car in 1990). Thus, he cannot meet the new
continuous residence requirement. See 8 U.S.C. § 1229b(d). In any event, Zamora did
not apply for cancellation of removal.)
In St. Cyr, the Supreme Court held that Congress did not unambiguously intend
IIRIRA’s repeal of § 212(c) to apply retroactively. See 533 U.S. at 320. The Court then
analyzed whether the repeal of § 212(c) is impermissibly retroactive when applied to
aliens, like St. Cyr, who pleaded guilty to an aggravated felony prior to the repeal. See
id. The Court concluded that because people who pleaded guilty “almost certainly
relied upon [the likelihood of receiving § 212(c) relief] in deciding whether to forgo their
right to a trial, the elimination of any possibility of § 212(c) relief by IIRIRA has an
obvious and severe retroactive effect.” Id. at 325. The Court emphasized the quid pro
quo involved in plea agreements, explaining that, because aliens like St. Cyr gave up
their right to contest charges at trial and the government benefitted from their plea
agreements, “it would surely be contrary to familiar considerations of fair notice,
reasonable reliance, and settled expectations, to hold that IIRIRA’s subsequent
restrictions deprive [them] of any possibility of such relief.” Id. at 323-24 (citation and
quotation marks omitted).
We have since foreclosed the possibility of § 212(c) relief for an alien who did not
plead guilty to an aggravated felony prior to IIRIRA, reasoning that he “did not
abandon any rights or admit guilt in reliance on continued eligibility for § 212(c) relief.”
No. 06-2742 Page 4
Montenegro v. Ashcroft, 355 F.3d 1035, 1036-37 (7th Cir. 2004) (per curiam) (citing
Lara-Ruiz v. INS, 241 F.3d 934, 945 (7th Cir. 2001); LaGuerre v. Reno, 164 F.3d 1035,
1041 (7th Cir. 1998)). And the vast majority of circuits similarly have rejected
arguments for § 212(c) relief brought by aliens who contested at trial the crimes that
now render them ineligible for cancellation of removal. See Hernandez-Castillo v.
Moore, 436 F.3d 516, 519-20 (5th Cir. 2006), cert. denied, 2006 U.S. LEXIS 5697 (Oct.
2, 2006); United States v. Zuniga-Guerrero, 460 F.3d 733, 737-39 (6th Cir. 2006), cert.
denied, 2007 U.S. LEXIS 521 (Jan. 8, 2007); Alexandre v. U.S. Attorney Gen., 452 F.3d
1204, 1207 (11th Cir. 2006) (per curiam); Rankine v. Reno, 319 F.3d 93, 100 (2d Cir.
2003); Dias v. INS, 311 F.3d 456, 458 (1st Cir. 2002) (per curiam), cert. denied, 2003
U.S. LEXIS 4615 (June 16, 2003); Chambers v. Reno, 307 F.3d 284, 293 (4th Cir. 2002);
Armendariz-Montoya v. Sonchik, 291 F.3d 1116, 1121-22 (9th Cir. 2002).
Not all circuits, however, view the existence of a guilty plea as the sina qua non
of a retroactivity claim after St. Cyr. For example, the Second Circuit has said that an
alien can demonstrate reliance, notwithstanding his plea of not guilty, by showing that
he delayed submitting a § 212(c) application to build a stronger case of rehabilitation
from his criminal past. See Restrepo v. McElroy, 369 F.3d 627, 634-35 (2d Cir. 2004).
The Third Circuit has held that aliens who go to trial may nevertheless “have a
reliance interest that renders IIRIRA’s repeal of former § 212(c) impermissibly
retroactive as to them,” if they turned down a plea agreement. See Ponnapula v.
Ashcroft, 373 F.3d 480, 494 (3d Cir. 2004). And the Tenth Circuit has held that the
repeal of § 212(c) does not apply to aliens who contest an aggravated felony charge but
forego their right to appeal. See Hem v. Maurer, 458 F.3d 1185, 1189 (10th Cir. 2006).
Zamora does not argue that any of those exceptions apply to him. Instead he
argues—without addressing our contrary precedent—that we should either reject a
reliance requirement or simply presume that he relied upon the prior state of the law.
But like virtually every circuit that has addressed a post-St. Cyr retroactivity claim,
reliance plays a central role in our retroactivity analysis. See Montenegro, 355 F.3d at
1037. In Montenegro, the alien had unsuccessfully contested the charge that he had
possessed with the intent to deliver more than 900 grams of cocaine, an aggravated
felony. Id. at 1036. Citing Lara-Ruiz, 241 F.3d at 945 (quoting LaGuerre, 164 F.3d at
1041), in which we explained that it would “border on the absurd” to argue that an
alien “would contest criminal charges more vigorously if he knew that after he had
been imprisoned and deported, a discretionary waiver of deportation would no longer
be available to him,” we refused to find impermissible retroactivity because
Montenegro’s plea of not guilty did not demonstrate reliance on his continued eligibility
for § 212(c) relief. Montenegro, 355 F.3d at 1037. Even the Third and Tenth circuits,
which Zamora cites because they reject the notion that actual reliance is required to
show impermissible retroactivity, see Ponnapula, 373 F.3d at 491-94; Hem, 458 F.3d
at 1196, analyzed whether it would have been objectively reasonable for the aliens in
those cases to have relied on continued eligibility for § 212(c) relief, see Ponnapula, 373
No. 06-2742 Page 5
F.3d at 494; Hem, 458 F.3d at 1197. Only the Fourth Circuit has wholly foresworn a
reliance requirement, whether actual or objective. See Olatunji v. Ashcroft, 387 F.3d
383, 396 (4th Cir. 2004).
Zamora argues that the only relevant question is whether IIRIRA impaired the
rights he possessed at the time of his conviction or increased his liability for past
convictions. But under that formulation all aliens convicted of crimes prior to IIRIRA
who otherwise would have been eligible for § 212(c) relief would remain eligible,
regardless of how their convictions were obtained. Thus, Zamora’s retroactivity test
would render moot virtually all of the Supreme Court’s analysis in St. Cyr and require
us to overturn Montenegro. Zamora has not persuaded us to do so, nor has he argued
for an exception to Montenegro that would be consistent with our precedent.
Accordingly, we DENY the petition for review.