Salvador Robles Lopez v. Jefferson Sessions, III , 901 F.3d 1071 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SALVADOR ROBLES LOPEZ, AKA No. 15-72747
Salvador Robles,
Petitioner, Agency No.
A38-817-213
v.
JEFFERSON B. SESSIONS III, Attorney OPINION
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted May 18, 2018
San Francisco, California
Filed August 22, 2018
Before: N. Randy Smith and Michelle T. Friedland, Circuit
Judges, and Barbara M. G. Lynn,* Chief District Judge.
Opinion by Chief District Judge Lynn;
Dissent by Judge Friedland
*
The Honorable Barbara M.G. Lynn, Chief United States District
Judge for the Northern District of Texas, sitting by designation.
2 LOPEZ V. SESSIONS
SUMMARY **
Immigration
The panel denied Salvador Robles Lopez’s petition for
review from a decision of Board of Immigrations Appeals,
holding that: 1) Lopez’s conviction for possession for sale of
cocaine salt in violation of California Health & Safety Code
§ 11351 was an aggravated felony; 2) his conviction
remained a valid ground of deportation despite its
expungement; 3) he was ineligible for a waiver of
deportation under former Immigration and Nationality Act
§ 212(c); and 4) the BIA did not err in denying relief under
the Convention Against Torture.
The panel held that Lopez’s conviction under California
Health & Safety Code § 11351 qualified as an aggravated
felony, applying the three-step process for determining
whether his violation would be punishable as a felony under
the Controlled Substance Act (CSA), and therefore an
aggravated felony under 8 U.S.C. § 1101(a)(43)(B). First,
the panel explained that possession of a controlled substance
with intent to distribute is a felony under the CSA. Second,
the panel explained that, although § 11351 is categorically
broader than the federal offense, this court has held that
§ 11351 is divisible as to the type of controlled substance.
Third, applying the modified categorical approach, the panel
concluded that the indictment and minute order indicated
that Lopez pleaded no contest to possession for sale of
cocaine salt, which is a controlled substance under the CSA.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
LOPEZ V. SESSIONS 3
Next, the panel held that Lopez’s conviction remained a
valid ground of deportation despite its expungement under
California Penal Code § 1203.4. The panel noted that a
conviction generally remains valid for immigration purposes
after expungement under § 1203.4, but that an exception
exists for certain petitioners who satisfy the requirements of
the Federal First Offender Act. However, the panel
explained that the exception did not apply to Lopez because
the Federal First Offender Act only applies to convictions
for simple possession, and Lopez had been convicted of
possession for sale of a controlled substance.
The panel also held that Lopez was not eligible for a
waiver of deportation under former § 212(c). The BIA held
that Lopez was ineligible for § 212(c) relief because he was
convicted of an aggravated felony after the effective date of
§ 440(d) of the Antiterrorism and Effective Death Penalty
Act (AEDPA), which made § 212(c) relief unavailable to
any lawful permanent resident who was deportable for an
aggravated felony. Lopez argued that § 440(d) had an
impermissible retroactive effect because the commission of
his offense predated the effective date.
The panel held that § 440(d) did not attach new legal
consequences to the commission of an aggravated felony; it
only attached new legal consequences to the conviction. The
panel observed that this court has repeatedly held that the
proper date to be used in determining the applicability of
§ 440(d) is the date of conviction, not the date of the
commission of the offense. Accordingly, the panel held that
Lopez was ineligible for § 212(c) relief because he was
convicted after the effective date of § 440(d).
The panel also rejected Lopez’s argument that applying
§ 440(d) to bar his eligibility for § 212(c) relief was an equal
4 LOPEZ V. SESSIONS
protection violation, concluding that he failed to establish
that his treatment differed from that of similarly situated
persons.
Finally, the panel held that the BIA did not err in denying
deferral of deportation under CAT, explaining that his
contentions regarding his fears of returning to Mexico were
not sufficiently particularized. The panel noted Lopez’s
testimony concerning crime and gangs, as well as his fear
that he would be perceived as having money as a returnee
from the United States, but concluded that such evidence did
not establish that any harm to Lopez would rise to the level
of torture.
Judge Friedland dissented from the majority’s
conclusion that Lopez was ineligible for a § 212(c) waiver.
Judge Friedland would conclude that applying AEDPA’s
version of § 212(c) here would be impermissibly retroactive
because it would impose new consequences on the
commission of Lopez’s offense. Judge Friedland reasoned
that the conviction itself is not the only relevant event for the
purposes of the retroactivity analysis, observing that in
Vartelas v. Holder, 566 U.S. 257 (2012), the Supreme Court
recognized that a newly amended immigration provision
created new consequences for multiple past events—
including the commission of an offense—thereby making
such an application impermissibly retroactive.
LOPEZ V. SESSIONS 5
COUNSEL
Thomas D. Pamilla (argued), Law Offices of Thomas D.
Pamilla APC, Fremont, California, for Petitioner.
Victor M. Lawrence (argued) Assistant Director; Jennifer A.
Singer, Trial Attorney; Jennifer P. Levings, Senior
Litigation Counsel; Office of Immigration Litigation, Civil
Division, United States Department of Justice, Washington,
D.C.; for Respondent.
OPINION
LYNN, Chief District Judge:
After Salvador Robles Lopez was convicted of
possession for sale of cocaine salt, an immigration judge
ordered his deportation, and the Board of Immigration
Appeals (“BIA”) affirmed. We deny Lopez’s petition for
review of the BIA’s decision.
I. BACKGROUND
Lopez is a citizen of Mexico who was admitted to the
United States as a lawful permanent resident (“LPR”) on
October 7, 1984. On September 23, 1996, after entering a
plea of no contest, he was convicted of possession for sale of
cocaine salt in violation of California Health & Safety Code
(“CHSC”) § 11351. On January 18, 2008, the conviction
was expunged pursuant to California Penal Code § 1203.4.
On September 21, 2009, the Department of Homeland
Security (“DHS”) initiated deportation proceedings against
Lopez. The DHS cited two grounds for deportation:
8 U.S.C. § 1227(a)(2)(A)(iii), as an alien convicted of an
6 LOPEZ V. SESSIONS
aggravated felony, and 8 U.S.C. § 1227(a)(2)(B)(i), as an
alien convicted of a controlled substance violation. Lopez
conceded that he was deportable, having been convicted of
a controlled substance violation, but denied that he was
deportable based on the aggravated felony ground.
The immigration judge held that Lopez’s violation of
CHSC § 11351 constituted an aggravated felony, and that his
expunged conviction remained a valid ground for
deportation. Furthermore, the judge concluded that Lopez
was ineligible for a discretionary waiver under the former
Immigration and Nationality Act (“INA”) § 212(c) and
denied deferral under the Convention Against Torture
(“CAT”). The judge ordered his deportation, and the BIA
affirmed.
II. STANDARDS OF REVIEW
We have jurisdiction under 8 U.S.C. § 1252. We review
legal conclusions de novo, such as whether Lopez was
convicted of a crime that constitutes an aggravated felony,
Flores-Miramontes v. INS, 212 F.3d 1133, 1135 (9th Cir.
2000), whether his expunged conviction remains a valid
ground for deportation, de Jesus Melendez v. Gonzales,
503 F.3d 1019, 1023 (9th Cir. 2007), and whether he is
eligible for § 212(c) relief, Cervantes-Gonzales v. INS,
244 F.3d 1001, 1004 (9th Cir. 2001).
We review factual findings made as to Lopez’s CAT
claim for substantial evidence. Haile v. Holder, 658 F.3d
1122, 1130–31 (9th Cir. 2011). “Substantial evidence”
means the determination is supported by “reasonable,
substantial, and probative evidence on the record.” Id. at
1131 (quoting Morales v. Gonzales, 478 F.3d 972, 983 (9th
Cir. 2007)).
LOPEZ V. SESSIONS 7
III. DISCUSSION
A. Lopez Is Deportable as an Alien Convicted of an
Aggravated Felony
Any alien who is “convicted of an aggravated felony at
any time after admission is deportable.” 8 U.S.C.
§ 1227(a)(2)(A)(iii). Lopez argues that his violation of
CHSC § 11351 does not constitute an aggravated felony.
We disagree.
Any state crime that is a categorical match to an offense
under the Controlled Substances Act (“CSA”) constitutes an
aggravated felony. See 8 U.S.C. § 1101(a)(43)(B);
18 U.S.C. § 924(c)(2). There is a three-step process for
determining whether Lopez’s violation of CHSC § 11351 is
punishable as a felony under the CSA:
At the first step, we ask whether the statute of
conviction is a categorical match to the
generic predicate offense; that is, if the statute
of conviction criminalizes only as much (or
less) conduct than the generic offense. If so,
the inquiry ends, because the conviction
categorically constitutes a predicate offense.
If not, we move on to step two and ask if the
statute of conviction's comparatively
“overbroad” element is divisible. If not, then
our inquiry ends, because a conviction under
an indivisible, overbroad statute can never
serve as a predicate offense. But if the
overbroad element (or elements) is divisible,
we then continue to the third step, an
application of the modified categorical
approach.
8 LOPEZ V. SESSIONS
Medina-Lara v. Holder, 771 F.3d 1106, 1112 (9th Cir. 2014)
(citations and footnote omitted).
There is no dispute about the first two steps. First,
possession of a controlled substance with intent to distribute
is a felony under the CSA. See 21 U.S.C. § 841(a)(1),
(b)(1)(C). CHSC § 11351 is categorically broader than this
federal offense because “California’s list of controlled
substances includes one or more substances not controlled
by federal law.” Medina-Lara, 771 F.3d at 1112. Second,
CHSC § 11351 is “divisible with respect to the type of
controlled substance.” United States v. Torre-Jimenez,
771 F.3d 1163, 1167 (9th Cir. 2014).
The third step, the modified categorical approach,
requires us to determine “whether the facts proven at trial or
admitted by the defendant as part of his guilty plea establish
that the defendant was convicted of all the elements of the
relevant federal generic offense.” Torre-Jimenez, 771 F.3d
at 1167 (quoting Sanchez-Avalos v. Holder, 693 F.3d 1011,
1014–15 (9th Cir. 2012)). For a plea, we look to “the terms
of the charging document, the terms of a plea agreement or
transcript of colloquy between judge and defendant in which
the factual basis for the plea was confirmed by the defendant,
or to some comparable judicial record of this information.”
Shepard v. United States, 544 U.S. 13, 26 (2005). The
indictment and the minute order indicate that Lopez pleaded
no contest to possession for sale of cocaine salt. Cocaine salt
is a controlled substance found in schedule II of the CSA.
See 21 U.S.C. § 812. Because Lopez’s violation of CHSC
§ 11351 encompasses all of the elements of a felony
LOPEZ V. SESSIONS 9
punishable under the CSA, it qualifies as an aggravated
felony. 1
Furthermore, Lopez’s conviction remains a valid ground
for deportation, despite its expungement. For immigration
purposes, a person generally “continues to stand convicted
of an offense notwithstanding a later expungement” under
California Penal Code § 1203.4. Ramirez-Castro v. INS,
287 F.3d 1172, 1174 (9th Cir. 2002). We have recognized
one exception. If a petitioner could have satisfied the
requirements of the Federal First Offender Act (“FFOA”),
18 U.S.C. § 3607, then the expungement of the petitioner’s
conviction under state law eliminates the immigration
consequences of the offense. See Lujan-Armendariz v. INS,
222 F.3d 728, 749 (9th Cir. 2000), overruled by Nunez-Reyes
v. Holder, 646 F.3d 684 (9th Cir. 2011). 2 However, the
FFOA only applies to first time drug offenders convicted of
simple possession of a controlled substance. Id. (citing
18 U.S.C. § 3607). Because Lopez was convicted of
possession for sale of a controlled substance, the exception
does not apply. See Lopez-Vasquez v. Holder, 706 F.3d
1072, 1075 (9th Cir. 2013) (“[P]ossession for sale is not a
first-time simple possession offense that would qualify for
treatment under the FFOA.”).
1
We need not reach Lopez’s arguments regarding his eligibility for
withholding of removal. He has conceded that a conviction for an
aggravated felony would make him ineligible.
2
Lujan-Armendariz is still applicable here. See Nunez-Reyes,
646 F.3d at 694 (“For those aliens convicted before the publication date
of this decision, Lujan-Armendariz applies. For those aliens convicted
after the publication date of this decision, Lujan-Armendariz is
overruled.”).
10 LOPEZ V. SESSIONS
B. Lopez Is Not Eligible for Waiver of Deportation
Under § 212(c)
Any LPR with “a lawful unrelinquished domicile of
seven consecutive years” was originally eligible to apply for
a discretionary waiver from deportation under § 212(c). See
INS. v. St. Cyr, 533 U.S. 289, 295 (2001) (quoting 8 U.S.C.
§ 1182(c) (1994)). Congress later modified eligibility for
§ 212(c) relief through the Antiterrorism and Effective
Death Penalty Act (“AEDPA”), Pub. L. No. 104-132, 110
Stat. 1214, 1277 (1996). Under § 440(d) of AEDPA, which
became effective April 24, 1996, a LPR who was
“deportable by reason of having committed” an aggravated
felony became ineligible for § 212(c) relief. Id. On April 1,
1997, § 212(c) was repealed altogether. See Illegal
Immigration Reform and Immigrant Responsibility Act,
Pub. L. No. 104-208, § 304(b), 110 Stat. 3009-546, 3009-
597 (1996). However, this relief remains available to an
alien “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.” St. Cyr, 533 U.S. at
290.
The BIA held that Lopez was ineligible for § 212(c)
relief because he was convicted of an aggravated felony after
the effective date of § 440(d). Lopez argues that § 440(d)
has an impermissible retroactive effect because the conduct
underlying his aggravated felony conviction predates the
effective date. 3 We disagree.
3
Petitioner committed the acts underlying his CHSC § 11351
conviction on or about September 13, 1995.
LOPEZ V. SESSIONS 11
The Supreme Court has outlined a two-step process for
determining whether a civil statute may apply retroactively:
[First,] the court must determine whether
Congress expressly provided that the statute
should apply retroactively. If the answer is
yes, then the inquiry is complete and the
statute applies retroactively. If the answer is
no, then the court must proceed to the second
step and determine whether the statute would
have a retroactive effect. If the statute would
operate retroactively, then the court must
apply the traditional presumption against
retroactivity and prohibit retroactive
application of the statute.
Cardenas-Delgado v. Holder, 720 F.3d 1111, 1115 (9th Cir.
2013) (citing Landgraf v. USI Film Products, 511 U.S. 244,
280 (1994)) (internal quotation marks and citations omitted).
The parties agree that Congress did not expressly provide for
application of § 440(d) to those whose conduct underlying
an aggravated felony conviction predates AEDPA’s
effective date. We therefore focus on the second step of the
Landgraf framework.
A statute does not impermissibly operate retroactively
“merely because it is applied in a case arising from conduct
antedating the statute’s enactment.” Landgraf, 511 U.S. at
269. A determination of whether a statute impermissibly
operates retroactively turns on “whether the new provision
attaches new legal consequences to events completed before
its enactment.” Id. at 270. We hold that § 440(d) did not
attach new legal consequences to the commission of an
aggravated felony.
12 LOPEZ V. SESSIONS
Under § 440(d), a LPR who is deportable by reason of
having committed an aggravated felony is ineligible for
§ 212(c) relief. The LPR is not deportable until he or she is
convicted. 8 U.S.C. § 1227(a)(2)(A)(iii); see also St. Cyr,
533 U.S. at 314–15 (“[I]mportant legal consequences ensued
from respondent’s entry of a guilty plea in March 1996:
(1) He became subject to deportation . . . .”); Padilla v.
Kentucky, 559 U.S. 356, 364 (2010) (“[D]eportation is an
integral part—indeed, sometimes the most important part—
of the penalty that may be imposed on noncitizen defendants
who plead guilty to specified crimes.”). § 440(d) thus
attached new legal consequences to the conviction for an
aggravated felony, not to its commission. Indeed, we have
repeatedly held that the proper date to be used in determining
the applicability of § 440(d) is the date of conviction. 4 See
Cardenas-Delgado, 720 F.3d at 1115 (noting that after its
effective date, the AEDPA “rendered all aliens convicted of
aggravated felonies ineligible for discretionary relief from
deportation”); Alvarez-Barajas v. Gonzales, 418 F.3d 1050,
1051 (9th Cir. 2005); United States v. Velasco-Medina,
305 F.3d 839, 849 (9th Cir. 2002).
4
Other circuit courts addressing the issue have held the same. See
United States v. Zuniga-Guerrero, 460 F.3d 733, 737 (6th Cir. 2006)
(“We conclude that AEDPA is permissibly applied to bar discretionary
waiver to aliens who committed criminal conduct before AEDPA’s
enactment.”); Khan v. Ashcroft, 352 F.3d 521, 525 (2d Cir. 2003)
(“AEDPA § 440(d) is not impermissibly retroactive as applied to aliens
such as Khan who pleaded guilty following AEDPA's effective date,
even if the criminal conduct underlying their convictions took place
before AEDPA's effective date.”); Lawrence v. Gonzales, 446 F.3d 221,
225 (1st Cir. 2006) (rejecting that “availability of section 212(c) relief
should be determined based upon when the conduct underlying his
conviction took place”); Atkinson v. Att’y Gen., 479 F.3d 222, 231 n.8
(3d Cir. 2007) (“[A]bsent a legal determination of guilt, the alien is not
subject to deportation or in need of section 212(c) relief.”).
LOPEZ V. SESSIONS 13
As discussed above, the structure and text of the statute
indicate that the fact of conviction (not the underlying
conduct) is the relevant transaction for purposes of the
retroactivity analysis. Although § 212(c) refers to the
“commission” of the offense, we must construe the scope of
the statute by examining “the statute’s text in light of
context, structure, and related statutory provisions.” Exxon
Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 547
(2005). We do not read a “single word . . . in isolation,” but
instead we look to the statutory scheme for clarification and
contextual reference. Smith v. United States, 508 U.S. 223,
233–34 (1993). Here, the structure of the statute requires an
alien to be in removal proceedings, which occurs only when
he or she has pleaded guilty and has been “convicted of an
aggravated felony at any time after admission,” 8 U.S.C.
§ 1227(a)(2)(A)(iii), before he or she may request relief
under § 212(c). See Pascua v. Holder, 641 F.3d 316, 320
(9th Cir. 2011). Second, the text of the statute indicates that
being “convicted” renders a person removable. 8 U.S.C.
§ 1227(a)(2)(A)(iii). By contrast, where Congress intends to
attach consequences to the underlying criminal conduct, it
has done so. For example, Congress attached legal
consequences to “[a]ny alien who has engaged, is engaged,
or at any time after admission engages in” terrorist activities.
8 U.S.C. § 1227(a)(4)(B). Congress did not require that an
alien plead guilty or be convicted in order to be deportable
for this offense. See id.; see also Kelava v. Gonzales,
434 F.3d 1120, 1124–25 (9th Cir. 2006) (noting that for a
LPR found deportable under 8 U.S.C. § 1227(a)(4)(B),
“there is no special immigration significance to his guilty
plea” because the LPR is deportable based on the conduct,
not the conviction). Where Congress employs different
language in related sections of a statute we presume these
“differences in language . . . convey differences in
meaning.” See Wisconsin Cent. Ltd. v. United States, 138 S.
14 LOPEZ V. SESSIONS
Ct. 2067 (2018) (quoting Henson v. Santander Consumer
USA Inc., 137 S. Ct. 1718, 1723 (2017)).
Because Lopez was convicted of an aggravated felony
after the effective date of § 440(d), he is ineligible for
§ 212(c) relief.
Finally, Lopez argues that applying § 440(d) to bar his
eligibility is an equal protection violation. To succeed on
that argument, Lopez must establish that his treatment
differed from that of similarly situated persons. Cleburne v.
Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985)
(explaining that the guarantee of equal protection directs that
“all persons similarly situated be treated alike”). His
argument fails “because [he] was convicted . . . after the
effective date of [AEDPA] and is therefore not similarly
situated to those permanent residents who could have relied
upon the availability of 212(c) relief because they entered
pleas prior to” the effective date. Cardoza-Fuentes v.
Holder, 362 F. App’x 799, 800 (9th Cir. 2010).
C. The BIA Did Not Err in Denying Deferral of
Deportation Under CAT
To qualify for deferral, an alien must establish that he “is
more likely than not to be tortured.” 8 C.F.R. § 1208.17.
Torture is defined as “an extreme form of cruel and inhuman
treatment” that is “specifically intended to inflict severe
physical or mental pain or suffering.” Id. § 1208.18(a). The
BIA did not err in denying Lopez deferral under CAT.
Lopez’s contentions regarding his fears of returning to
Mexico are not sufficiently particularized. See also
Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir.
2010) (“Petitioners’ generalized evidence of violence and
crime in Mexico is not particular to Petitioners and is
LOPEZ V. SESSIONS 15
insufficient to . . . establish prima facie eligibility for
protection under the CAT.”); Dhital v. Mukasey, 532 F.3d
1044, 1051–52 (9th Cir. 2008) (“[Evidence] do[es] not
indicate that [petitioner] would face any particular threat of
torture beyond that of which all citizens of Nepal are at
risk.”). Evidence indicates that, in Mexico, inhumane
treatment and torture are directed against certain groups of
people, like journalists and mental health patients. However,
that evidence is not particular to Lopez, and he provides no
evidence that he would be subject to such treatment if he
returned to Mexico. See Wakkary v. Holder, 558 F.3d 1049,
1068 (9th Cir. 2009) (noting that the petitioner failed to
“provide some reason to think that he is likely to be tortured
by the actors he fears”).
Lopez also testified that there are “a lot of robberies” in
Mexico, that he has heard from “a lot of people” that
business owners in Mexico are forced to pay protection
money to gangs, and that as a returnee from the United
States, people will perceive him as “ha[ving] money.” Such
evidence does not provide a sufficient basis to conclude that
any harm to Lopez would rise to the level of torture.
Accordingly, the record does not compel reversal of the
BIA’s decision.
PETITION DENIED.
16 LOPEZ V. SESSIONS
FRIEDLAND, Circuit Judge, dissenting:
Although I join most of the majority’s opinion, I disagree
with its conclusion that Petitioner was ineligible for a
§ 212(c) waiver. Rather, I believe that AEDPA’s
amendment to § 212(c) cannot be applied to Petitioner
because such an application would be impermissibly
retroactive. I therefore dissent from Part III(B).
As the majority describes, the pre-AEDPA version of
§ 212(c) allowed any lawful permanent resident who had
resided in the United States for “‘seven consecutive years’
to apply for a discretionary waiver from deportation.” INS
v. St. Cyr, 533 U.S. 289, 295 (2001) (quoting 8 U.S.C.
§ 1182(c) (1994)). AEDPA § 440(d) amended § 212(c) to
provide that a petitioner who is deportable because he has
committed an aggravated felony is ineligible to apply for that
waiver. See Antiterrorism and Effective Death Penalty Act,
Pub. L. No. 104-132, § 440(d), 110 Stat. 1214, 1277 (1996).
That amendment was effective April 24, 1996. See id.Petitioner committed his offense in September 1995,
before the effective date of the amendment, but he pleaded
nolo contendere to that offense after § 440(d) took effect.
Although previous cases have held that § 440(d)’s
amendment to § 212(c) applies in cases where a petitioner
pleaded guilty after § 440(d)’s effective date, we have not
addressed the effect of a petitioner’s having committed the
offense before that date. See United States v. Velasco-
Medina, 305 F.3d 839, 849 (9th Cir. 2002); see also Alvarez-
Barajas v. Gonzales, 418 F.3d 1050, 1054 (9th Cir. 2005).
Petitioner thus presents us with a question of first
impression: whether § 440(d) would be impermissibly
retroactive as applied to him because it would attach new
consequences to the commission of his offense.
LOPEZ V. SESSIONS 17
As the majority explains, “the first step in determining
whether a statute has an impermissible retroactive effect is
to ascertain whether Congress has directed with the requisite
clarity that the law be applied retrospectively.” St. Cyr,
533 U.S. at 316. It is undisputed that Congress did not direct
that § 440(d) should be retroactive. We must therefore
“proceed to the second step and determine whether the
statute would have a retroactive effect” if applied to
Petitioner. Cardenas-Delgado v. Holder, 720 F.3d 1111,
1115 (9th Cir. 2013). “If the statute would operate
retroactively, then [we] must apply the traditional
presumption against retroactivity and prohibit retroactive
application of the statute.” Id. “A statute does not operate
‘retrospectively’ merely because it is applied in a case
arising from conduct antedating the statute’s enactment.”
Landgraf v. USI Film Prods., 511 U.S. 244, 269 (1994).
“Rather, the court must ask whether the new provision
attaches new legal consequences to events completed before
its enactment.” Id. at 269–70. I agree with the majority that
this case hinges on that second step.
At step two, however, I would conclude that applying
AEDPA’s version of § 212(c) here would be impermissibly
retroactive because it would impose new consequences on
Petitioner’s commission of his offense. Indeed, at the time
Petitioner committed his offense, he was eligible for a
waiver allowing him to stay in the United States
notwithstanding his conduct. But under AEDPA’s version
of § 212(c), Petitioner is no longer eligible for that waiver
because of that same conduct.
The fact that the consequence that § 212(c) can prevent
(deportation) does not kick in until a petitioner is convicted
does not make the conviction itself the only relevant event
for the purposes of the retroactivity analysis. In Vartelas v.
18 LOPEZ V. SESSIONS
Holder, 566 U.S. 257 (2012), the Supreme Court recognized
that a newly amended immigration provision created new
consequences for multiple past events—including the
commission of an offense—thereby making such an
application impermissibly retroactive. See id. at 261(refusing to apply the version of a different immigration
statute that became effective only after the petitioner
committed and was convicted for his crime because doing so
would “attach[] a new disability (denial of reentry) in respect
to past events,” specifically his “offense, plea, and
conviction” (emphasis added)); see also id. at 272 (“That
new disability rested not on any continuing criminal activity,
but on a single crime committed years before [the statute’s]
enactment.” (emphasis added)). 1 And, in fact, AEDPA’s
1
Because Vartelas makes clear that a retroactive law can attach new
consequences to multiple past events, I do not find the majority’s appeal
to Lawrence v. Gonzales, 446 F.3d 221 (1st Cir. 2006), and Atkinson v.
Attorney General, 479 F.3d 222 (3d Cir. 2007), persuasive. Indeed,
those cases appear to presuppose that consequences can attach to one
event only and that the relevant event is the conviction. See Lawrence,
446 F.3d at 225 (holding that “the date of the criminal conduct is
irrelevant” under St. Cyr’s retroactivity analysis); see also Atkinson,
479 F.3d at 231 n.8 (holding that, for the purposes of the retroactivity
analysis, “the relevant past event [is] the conviction [because] absent a
legal determination of guilt, the alien is not subject to deportation or in
need of [§] 212(c) relief”).
Similarly, although the reasoning in Kelava v. Gonzales, 434 F.3d
1120 (9th Cir. 2006), would support the majority’s position, I do not
believe we are bound by that decision because it was abrogated by
Vartelas. See Miller v. Gammie, 335 F.3d 889, 899–900 (9th Cir. 2003)
(en banc). Kelava held that to invoke the presumption against retroactive
applications of law, the petitioner would have “to demonstrate reliance
or any sort of ‘settled expectations’ on the existing immigration laws.”
434 F.3d at 1125. But Vartelas has since explicitly rejected the idea that
reliance is “a necessary predicate for invoking the antiretroactivity
principle.” 566 U.S. at 273–74. And Cardenas-Delgado reaffirmed
LOPEZ V. SESSIONS 19
version of § 212(c) speaks of “having committed” an
aggravated felony, not of conviction for an aggravated
felony, which further suggests that the retroactivity analysis
of AEDPA’s amendment to § 212(c) should be concerned
with the timing of the offense. See Vartelas, 566 U.S. at 272(reviewing a provision that also used the language
“committed an offense”).
I believe that applying AEDPA’s amendment to § 212(c)
here would be impermissibly retroactive because Petitioner
committed his offense before that amendment. See
Cardenas-Delgado, 720 F.3d at 1119 (a statute is
impermissibly retroactive if it “attaches new legal
consequences to events completed before the enactment of
the statute”). I would therefore hold that § 440(d)’s
amendment does not apply here, and that Petitioner is
therefore eligible for a § 212(c) waiver.
Vartelas’s holding in the context of § 212(c) waivers. See 720 F.3d at
1119 (“[A]fter Vartelas, it is clear that someone seeking to show that a
civil statute is impermissibly retroactive is not required to prove any type
of reliance and that the essential inquiry is whether the new statute
attaches new legal consequences to events completed before the
enactment of the statute.”). For the same reason that I do not believe
Kelava guides our decision here, I do not find the majority’s appeal to
United States v. Zuniga-Guerrero, 460 F.3d 733 (6th Cir. 2006), or to
Khan v. Ashcroft, 352 F.3d 521 (2d Cir. 2003), persuasive, as both turned
on the absence of reliance. Compare Zuniga-Guerrero, 460 F.3d at 737(“[I]n fact, our sister circuits have uniformly noted ‘the absurdity of
arguing that one would not have committed a crime in the first place . . .
if he had known he could not ask for a § 212(c) waiver.’” (quoting
Kelava, 434 F.3d at 1125)), and Khan, 352 F.3d at 522–25 (similar), with
Vartelas, 566 U.S. at 272 (rejecting as “doubly flawed” the reasoning
that, because it would be “absurd” to suppose that a noncitizen
committed a crime “in reliance on the immigration laws,” a law is not
retroactive).
20 LOPEZ V. SESSIONS
Because the majority holds otherwise, I respectfully
dissent.