Tyson v. Holder , 670 F.3d 1015 ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JACQUELINE TYSON, aka Jacqueline 
M. Ableman,
No. 08-70219
Petitioner,
v.  Agency No.
A022 209 179
ERIC H. HOLDER JR., Attorney
OPINION
General,
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
November 18, 2011—San Francisco, California
Filed January 27, 2012
Before: M. Margaret McKeown and Milan D. Smith, Jr.,
Circuit Judges, and Rudi M. Brewster, District Judge.*
Opinion by Judge Brewster
*The Honorable Rudi M. Brewster, Senior United States District Judge
for the Southern District of California, sitting by designation.
799
802 TYSON v. HOLDER
COUNSEL
Kari E. Hong (argued), Law Offices of Kari E. Hong, Port-
land, Oregon; Kara L. Hartzler, Florence Immigrant and Ref-
ugee Rights Project, Florence, Arizona, for the petitioner-
appellant.
Anna Nelson (argued), Kiley L. Kane, Office of Immigration
Litigation, United States Department of Justice, Washington,
D.C., for the respondent-appellee.
OPINION
BREWSTER, Senior District Judge:
Jacqueline Tyson, a native of Australia, appeals the Board
of Immigration Appeals’ (“BIA”) order of removal as an alien
convicted of a controlled substance offense.1 Tyson argues
that the BIA erred when it decided that she is not eligible to
seek § 212(c) discretionary relief from removal pursuant to
the former Immigration and Nationality Act (“INA”), 8
U.S.C. § 1182(c), which was repealed in 1996 as to aliens
with certain criminal convictions. We agree with Tyson that
the stipulated facts trial in this case is substantially equal to
a guilty plea for the purpose of § 212(c) relief. We hold that
applying the repeal of § 212(c) relief would produce an
impermissible retroactive effect on Tyson, who was convicted
pursuant to a stipulated facts agreement based on a reasonable
expectation that it would not negatively affect her immigra-
tion status. INS v. St. Cyr, 533 U.S. 289, 319 (2001); Land-
graf v. USI Film Prods., 511 U.S. 244, 269-70 (1994).
Because the BIA erred in its legal analysis of the effect of this
1
The notice of removal was addressed to Jacqueline Tyson. After her
divorce from Mr. Tyson in 1980, petitioner remarried in 1982 and changed
her name to Ableman. We follow the lead of the record and briefs, and
also refer to petitioner as Tyson.
TYSON v. HOLDER 803
stipulated facts trial, we reverse and remand with instructions
to consider Tyson’s § 212(c) application on the merits.
I. Background
Tyson was born in Australia in 1952. She entered the
United States in 1973. She married an American citizen and,
in 1977, obtained lawful permanent resident status.
When Tyson’s marriage failed in 1980, she traveled to Aus-
tralia, Hong Kong, and Thailand. In Thailand, she had an
unexpected medical condition that required surgery. To ease
her pain and depression, Tyson turned to heroin. She returned
to the United States with 64.5 grams of heroin and was
arrested at the airport. The two-count indictment charged
importation of a controlled substance in violation of 21 U.S.C.
§ 952, and possession of a controlled substance with intent to
distribute in violation of 21 U.S.C. § 841(a)(1).
Tyson entered into a stipulation with the government. It
stated that Tyson, “after having discussed the matter with
counsel and having been satisfied with the advice received,
hereby agrees to submit the question of her guilt or innocence
of the counts in the above-entitled indictment to the Court on
the basis of the following set of stipulated facts and testimo-
ny.” The stipulation set out the constitutional rights that
Tyson waived; the weight and purity of the heroin; an expert
opinion that the heroin’s street value was over $100,000; and
that Tyson, who paid $350 for the heroin, intended to use it
exclusively for herself. After hearing argument, the district
court held that the facts established beyond a reasonable
doubt that Tyson was guilty of importing heroin; however,
because there was insufficient evidence that she intended to
distribute the drug the court found Tyson not guilty on count
two. The court imposed a term of three years probation.
At the time of Tyson’s 1980 conviction, the INA excluded
admission to the United States of any alien who had been con-
804 TYSON v. HOLDER
victed of “a violation of . . . any law or regulation relating to
the illicit possession of or traffic in narcotic drugs or marihua-
na.” 8 U.S.C. § 1182(a)(23) (1976). Section 212(c) of the INA
further stated, however, that aliens who had been “lawfully
admitted for permanent residence who temporarily proceeded
abroad voluntarily . . . and who are returning to a lawful
unrelinquished domicile of seven consecutive years, may be
admitted in the discretion of the Attorney General” despite the
conviction. 8 U.S.C. § 1182(c) (1976) (repealed 1996).
Twenty-four years later, Tyson departed the United States,
and then sought re-entry in 2005. The Department of Home-
land Security (“DHS”) denied the request based on her 1980
conviction. 8 U.S.C. § 1182(a)(2)(A)(i)(II). Tyson applied for
a waiver of inadmissibility pursuant to former § 212(c). She
relied upon St. Cyr, 533 U.S. at 294, 321-22, in which the
Supreme Court held that § 212(c) relief remained available to
an alien who had entered a plea bargain with the expectation
that she would remain eligible for a waiver. DHS moved to
pretermit her § 212(c) application. Citing Armendariz-
Montoya v. Sonchik, 291 F.3d 1116, 1121-22 (9th Cir. 2002),
DHS argued that Tyson had not entered a guilty plea but
instead elected to have a bench trial, and therefore, she could
not credibly claim the repeal had an impermissible retroactive
effect.
The Immigration Judge (“IJ”) held that St. Cyr “cannot be
extended to [an] alien who pled not guilty and proceeded to
trial.” Consequently, the IJ held that Tyson was not eligible
to seek a waiver under § 212(c). The BIA adopted the IJ’s
decision and affirmed. This timely petition for review fol-
lowed.
II. Discussion
We have jurisdiction to review questions of law in final
orders of removal. 8 U.S.C. § 1252(a)(2)(D). “We review de
novo, and without Chevron deference to the BIA, whether a
TYSON v. HOLDER 805
change to an immigration law is impermissibly retroactive.”
Camins v. Gonzales, 500 F.3d 872, 880 (9th Cir. 2007) (cita-
tions omitted).
[1] Before 1996, the INA allowed a permanent resident
alien who had been convicted of a certain type of crime, but
who had at least seven years of residence, to apply for discre-
tionary relief from deportation pursuant to § 212(c). St. Cyr,
533 U.S. at 294-95 (citing 8 U.S.C. § 1182(c)). In determining
discretionary relief, the BIA considered a wide range of equi-
table factors, including the seriousness of the offense, evi-
dence of rehabilitation or recidivism, and the impact of
deportation on the family. Id. at 296 n.5. “If relief is granted,
the deportation proceeding is terminated and the alien remains
a permanent resident.” Id. at 295. Historically, an extremely
large class of aliens qualified for discretionary relief and “a
substantial percentage of their applications for § 212(c) relief
have been granted.” Id. at 295-96 & n.5.
Over the years, Congress “reduced the size of the class of
aliens eligible for such discretionary relief” by expanding the
class of deportable aliens. Id. at 294-97 & nn.4 & 6 (for
example, the Immigration Act of 1917 excluded aliens who
had committed crimes “involving moral turpitude,” while
1996 amendments “broadened substantially” the definition of
an “aggravated felony”).
[2] In 1996, Congress repealed § 212(c) for any alien with
a drug conviction and many other categories of crimes. Id. at
292-93, 297 & n.7 (citing the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996); Armendariz-Montoya,
291 F.3d at 1118 & n.1 (citing the Antiterrorism and Effective
Death Penalty Act, which “categorically negates § 212(c)
relief for those aliens deportable for having committed a qual-
ifying controlled substance offense or an aggravated felo-
ny.”).
[3] In 2001, the Supreme Court held in St. Cyr that the
repeal did not apply retroactively to “aliens who, in reliance
806 TYSON v. HOLDER
on the possibility of § 212(c) relief, pleaded guilty to aggra-
vated felonies.” 533 U.S. at 315. The Court applied the two-
part test from the landmark decision of Landgraf. The first
question is “whether Congress has expressly prescribed the
statute’s proper reach.” Landgraf, 511 U.S. at 280. In St. Cyr,
533 U.S. at 316, the Supreme Court determined that Congress
did not clearly prescribe the retroactive effect of the repeal of
§ 212(c). There is a presumption against retroactive legisla-
tion based on “[e]lementary considerations of fairness . . . that
individuals should have an opportunity to know what the law
is and to conform their conduct accordingly; settled expecta-
tions should not be lightly disrupted.” Id. (quotation and cita-
tion omitted). The Court held that Congress had not
unambiguously considered the retroactive impact on aliens
who “were convicted pursuant to a plea agreement at a time
when their plea would not have rendered them ineligible for
§ 212(c) relief.” Id. at 320 & n.44. Therefore, we do not re-
visit this settled question.
We address the second question, whether the new statute
“would impair rights a party possessed when he acted,
increase a party’s liability for past conduct, or impose new
duties with respect to transactions already completed.” Land-
graf, 511 U.S. at 280.
[4] Judging the statute “by ‘familiar considerations of fair
notice, reasonable reliance, and settled expectations,’ ” the
Court in St. Cyr held that “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
clearly ‘attaches a new disability, in respect to transactions or
considerations already past.’ ” 533 U.S. at 321-22 (citations
omitted). “In exchange for some perceived benefit, defendants
waive several of their constitutional rights (including the right
to a trial) and grant the government numerous ‘tangible bene-
fits, such as promptly imposed punishment without the expen-
diture of prosecutorial resources.’ ” Id. at 322 (citations
omitted). “There can be little doubt that, as a general matter,
TYSON v. HOLDER 807
alien defendants considering whether to enter into a plea
agreement are acutely aware of the immigration consequences
of their convictions.” Id. (citing Magana-Pizano v. INS, 200
F.3d 603, 612 (9th Cir. 1999) (“That an alien charged with a
crime . . . would factor the immigration consequences of con-
viction in deciding whether to plead or proceed to trial is
well-documented.”)) (footnote and citation to treatise omit-
ted). “Given the frequency with which § 212(c) relief was
granted in the years leading up to [the 1996 amendments],
preserving the possibility of such relief would have been one
of the principal benefits sought by defendants deciding
whether to accept a plea offer or instead proceed to trial.” Id.
at 323 (footnotes omitted). To remedy the “significant and
manifest” injustice, the Court held that the repeal did not
apply to such aliens. Id. at 323-26.
Initially, the Ninth Circuit generally limited the application
of St. Cyr to aliens who had agreed to enter a guilty plea in
reliance on the possibility of a waiver to removal.
Armendariz-Montoya, 291 F.3d at 1121-22; accord Saravia-
Paguada v. Gonzales, 488 F.3d 1122, 1131-34 (9th Cir.
2007); Kelava v. Gonzales, 434 F.3d 1120, 1122-25 (9th Cir.
2006). Here, the IJ held that these cases established a categor-
ical rule. The IJ found that Tyson “was convicted pursuant to
a guilty finding at bench trial.” She “waived her right to jury
trial; however, there is no evidence in the record that [Tyson]
entered into a plea agreement. Under current Ninth Circuit
law, St. Cyr cannot be extended to [an] alien who pled not
guilty and proceeded to trial.” The BIA affirmed without fur-
ther analysis.
A. Trial by Stipulation
[5] We conclude the BIA erred in its conclusion that St.
Cyr is restricted to plea bargains and that Tyson’s stipulated
facts trial rendered her ineligible for discretionary relief. “Al-
though evidence of a guilty plea or other quid pro quo
exchange that could reasonably have been made in reliance on
808 TYSON v. HOLDER
an old law is not the exclusive means of proving reliance, it
is clearly sufficient.” Camins, 500 F.3d at 884 (citations omit-
ted); Hernandez de Anderson v. Gonzales, 497 F.3d 927, 940
(9th Cir. 2007); see Garcia-Ramirez v. Gonzales, 423 F.3d
935, 943-44 & n.1 (9th Cir. 2005) (Fisher, J., and D.W. Nel-
son, J., concurring). “Reasonable reliance may itself be based
upon a quid pro quo, as in St. Cyr . . . or merely on assurances
as to the current status of the law.” Chang v. United States,
327 F.3d 911, 920 n.8 (9th Cir. 2003). Aliens claiming that
the 1996 “repeal of relief from deportation is impermissibly
retroactive as applied to them must demonstrate reasonable
reliance” on the earlier version of the statute. Hernandez de
Anderson, 497 F.3d at 939 (citing Kelava, 434 F.3d at 1124-
25 & n.7; Saravia-Paguada, 488 F.3d at 1134).
[6] We conclude that the stipulated facts trial in Tyson’s
case is similar to a guilty plea in all important respects for
purposes of applying St. Cyr to § 212(c). First, the defendant
in a stipulated facts trial, like the defendant who pleads guilty,
waives the constitutional right to a trial by a jury of her peers
with an unanimous verdict. Tyson’s stipulation with the gov-
ernment contained that specific waiver.
[7] Second, the defendant admits the truth of certain facts
which relieves the government of the burden of proving those
facts beyond a reasonable doubt. Here, Tyson admitted that
she smuggled 64.5 grams of heroin into the United States. Her
admission also waived her privilege against self-
incrimination.
[8] Third, the defendant in a stipulated facts trial waives
the constitutional right to confront the witnesses against her
and the right to cross-examine witnesses. Here, Tyson could
have questioned the expert witness’s conclusion that the
amount indicated an intent to distribute the heroin.
[9] Finally, like a guilty plea, an agreement to a stipulated
facts trial waives the defendant’s right to present evidence on
TYSON v. HOLDER 809
her own behalf. Here, Tyson waived her right to present a
medical-necessity defense.
[10] In conclusion, we hold that the stipulated facts trial in
this case entitles Tyson to invoke the St. Cyr line of cases in
her immigration proceeding even though she did not enter a
traditional guilty plea.
In an attempt to persuade us that a stipulated facts trial is
the equivalent of a bench trial for purposes of § 212(c) relief,
the BIA argues that Tyson “rolled the dice” by “elect[ing] to
go to trial where full acquittal is a realistic possibility.” The
BIA contends that Tyson simply exchanged a jury of twelve
for a judge as the finder of fact in an effort to avoid a convic-
tion. Indeed, the BIA observes, the district court found Tyson
not guilty of the distribution count.
We are not persuaded by this attempt to equate the proce-
dure used in Tyson’s case with a defendant who does not
plead guilty but instead proceeds to a bench trial. The govern-
ment often agrees to dismiss some of the counts in an indict-
ment in exchange for a defendant’s guilty plea to counts
covered by the plea bargain.2 This case is analogous. The
indictment charged two offenses — importation and posses-
sion with intent to distribute. Tyson stipulated that she smug-
gled 64.5 grams of heroin into the country. That admission
essentially guaranteed that she would not be acquitted on the
importation count. Thus, Tyson did not retain the realistic
2
A conviction based on a guilty plea could still be overturned for juris-
dictional or constitutional problems, unless the defendant expressly
waived the right to appeal. Many criminal defendants use stipulated facts
trials to preserve a question for appeal about the legality of a search or the
constitutionality of a statute. In those instances, if the defendants prevailed
on appeal, they would also “avoid criminal liability altogether.” In this
case, Tyson admitted facts which guaranteed conviction of at least impor-
tation of heroin. There would be no opportunity to reverse that count on
appeal unless she had preserved a jurisdictional or constitutional issue.
The same is true for a resolution of a case by a plea of guilty.
810 TYSON v. HOLDER
possibility that she would be acquitted on the first count by
choosing to proceed on stipulated facts trial. Nor was Tyson
guaranteed an acquittal on the distribution count. Tyson
risked a conviction on that count because the facts in the stip-
ulation presented a close call. For example, the substantial
market value of the heroin could be a convincing indication
that Tyson intended to sell it for a significant profit over her
minor investment.
More importantly, “while [Tyson] may have ‘rolled the
dice’ in terms of guilt or innocence at trial, [she] did not do
so with respect to immigration consequences in view of [her]
reasonable expectation that there would be no adverse immi-
gration consequences of going to trial.” Ponnapula v. Ash-
croft, 373 F.3d 480, 500 (3d Cir. 2004). Instead, Tyson “was
(retroactively) deceived as to what was riding on the roll of
the dice” because Congress amended the INA to eliminate
§ 212(c) discretionary relief for an alien convicted of a con-
trolled substance offense. Id.
Next, the BIA contends that there is no evidence to demon-
strate a quid pro quo between Tyson and the prosecution. This
argument fails on the law and the facts. We have held that
quid pro quo is not an essential requirement of the retroactiv-
ity doctrine. Camins, 500 F.3d at 884; Hernandez de Ander-
son, 497 F.3d at 940. In any event, the record establishes that
the government did benefit from Tyson’s agreement to a trial
on stipulated facts. The government was virtually assured a
conviction on the importation charge and it avoided the time
and expense of selecting a jury, preparing witnesses, and par-
ticipating in a trial.3 These are tangible benefits to the govern-
ment. See St. Cyr, 533 U.S. at 322.
3
Although the written stipulation does not cover sentencing issues, the
government apparently benefitted from the prompt imposition of its rec-
ommended sentence. St. Cyr, 533 U.S. at 322. Tyson states in her affidavit
that her defense attorney informed her that if she accepted the govern-
ment’s offer, she would not receive a prison term and would be on proba-
tion for three years. We credit her testimony that the government agreed
to recommend, or at least to not object to, a light sentence.
TYSON v. HOLDER 811
Third, the BIA complains that certain terms of the bargain
were not reduced to writing. A plea agreement, or in this
instance, the stipulated facts agreement, need not expressly
preserve an alien’s eligibility for § 212(c) relief for the 1996
amendments to be impermissibly retroactive. Ponnapula, 373
F.3d at 493, 497-98; e.g., Brown v. Poole, 337 F.3d 1155,
1159 (9th Cir. 2003) (“terms of oral plea agreements are
enforceable”).
Our conclusion is supported by the agency’s own regula-
tion on the availability of § 212(c) relief despite a conviction
before 1996. The regulation states that § 212(c) relief is avail-
able to “aliens who pleaded guilty or nolo contendere,” but
not with respect to “convictions entered after trial.” 8 C.F.R.
§ 1212.3(h) (2005); id. (regulation applies to aliens who made
a “plea agreement” before the effective date of the 1996
amendment). If a nolo contendere plea qualifies an alien for
relief, then a fortiori a stipulated facts trial qualifies. Fed. R.
Crim. P. 11 (same rights, procedures, and duties apply to a
guilty plea as to a nolo contendere plea); Cal. Penal Code
§ 1016(3) (a no contest plea has the same legal effect as a plea
of guilty). A defendant who enters a plea of nolo contendere
stands mute on the question of guilt or innocence and does not
offer any evidence. E.g., United States v. Mancinas-Flores,
588 F.3d 677, 681-83 (9th Cir. 2009). The burden on the gov-
ernment is much greater than the one imposed by Tyson’s
stipulated facts trial where she provided the necessary factual
basis.
B. Reliance, Settled Expectations, and Impaired Rights
Turning to the question of Tyson’s reliance, the BIA argues
it was per se unreasonable for her to rely on the continued
availability of § 212(c) relief.
[11] We conclude that the record establishes objectively
reasonable reliance. Hernandez de Anderson, 497 F.3d at 939.
Tyson submitted an affidavit stating that her criminal defense
812 TYSON v. HOLDER
attorney informed her that any conviction would not automati-
cally result in deportation. She believed that there would be
no irreparable immigration consequences by agreeing to have
her guilt determined based on stipulated facts. Had she known
that a conviction pursuant to a stipulated facts trial would
result in certain deportation, she would have fought to obtain
a complete acquittal by presenting her medical-necessity
defense to a jury.
Like the alien in St. Cyr, 533 U.S. at 314-15, Tyson’s con-
sent to a stipulated facts trial in 1980 created two conse-
quences: (1) she became subject to deportation and (2) she
became eligible for a discretionary waiver of that deportation
under the prevailing interpretation of § 212(c). Congress
changed the second consequence in 1996 by eliminating
Tyson’s eligibility for a waiver. Tyson benefits from the
observation in St. Cyr, 533 U.S. at 322, that “[t]here can be
little doubt that, as a general matter” alien defendants facing
criminal charges “are acutely aware of the immigration conse-
quences.” Accord Hernandez de Anderson, 497 F.3d at 940-
43 (petitioner who implicitly relied on her eligibility for relief
showed plausible and adequate reliance); Magana-Pizano,
200 F.3d at 612. Even though there is no guarantee that the
BIA would grant discretionary relief, the Supreme Court
acknowledged that “[t]here is a clear difference . . . between
facing possible deportation and facing certain deportation.”
St. Cyr, 533 U.S. at 325; accord Camins, 500 F.3d at 883.
Based on the evidence before the BIA, it is objectively rea-
sonable that the immigration consequences were an important
part of Tyson’s decision about how to handle the criminal case.4
4
Though the issue does not arise in this case, notions of basic fairness
and due process suggest that even aliens without actual knowledge of the
law are entitled to rely on the law as it existed. Arguably, an alien does
not need to prove reliance because each person impliedly relies on existing
law — both its benefits and its consequences. Olatunji v. Ashcroft, 387
F.3d 383, 388-95 (4th Cir. 2004). We leave open the question of whether
retroactive application of the repeal offends the Due Process Clause of the
Constitution. Id. at 389 n.2.
TYSON v. HOLDER 813
Significantly, at the time she brought heroin into the United
States, the INA held out a very real possibility that she would
qualify for discretionary relief from removal. St. Cyr, 533
U.S. at 321-22 & n.5; Hernandez de Anderson, 497 F.3d at
936-37.
[12] Even if Tyson had been convicted on both counts of
the indictment by a jury, she would have remained eligible to
seek a § 212(c) waiver in 1980. As Tyson already possessed
the right to apply for a waiver, there was no barrier for her to
overcome when she negotiated the waiver of certain constitu-
tional rights by agreeing to a stipulated facts procedure. None-
theless, Tyson plainly meets the principles and language in
the Landgraf decision. As that lead case frames the question,
applying the 1996 amendment retroactively to Tyson’s 1980
conviction “takes away or impairs vested rights acquired
under existing laws” and “attaches a new disability, in respect
to transactions or considerations already past.” Landgraf, 511
U.S. at 269 & n.23 (noting alternative language, including a
law is retroactive when it “changes the legal consequences of
acts completed before its effective date” or gives “a quality or
effect to acts or conduct which they did not have or did not
contemplate when they were performed”) (quotations and
citations omitted); see, e.g., Lopez-Castellanos v. Gonzales,
437 F.3d 848, 852-54 (9th Cir. 2006) (applying St. Cyr and
Landgraf to an alien who pleaded guilty in 1988 to a crime
that was not then considered an “aggravated felony” that
barred discretionary relief); Chang, 327 F.3d at 920 (Landgraf
asks if the new law imposes negative consequences “without
fair notice, or in a manner that undermines reasonable reliance
or upsets settled expectations”).
Conclusion
[13] We conclude that, for purposes of applying St. Cyr
and Landgraf, the repeal of § 212(c) imposes an impermissi-
ble retroactive effect on aliens like Tyson, who in reliance on
the possibility of discretionary relief, agreed to a stipulated
814 TYSON v. HOLDER
facts trial. The record demonstrates that Tyson reasonably
relied on the law that existed when she faced criminal pro-
ceedings in 1980; therefore, the repeal of § 212(c) may not be
applied retroactively to her conviction. We reverse the BIA’s
decision and remand Tyson’s case with instructions to con-
sider the merits of her § 212(c) application.
PETITION GRANTED.