Cristian Guzman v. Attorney General United States ( 2014 )


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  •                                     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