Garcia-Ramirez v. Gonzales

• Decision Date: 26 August 2005
• Docket Number: No. 02-73546.,02-73546.
• Citation: 423 F.3d 935
• Parties: Margarita GARCIA-RAMIREZ, Petitioner, v. Alberto R. GONZALES, Attorney General,<SMALL><SUP>*</SUP></SMALL> Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 935

423 F.3d 935

Margarita GARCIA-RAMIREZ, Petitioner, v. Alberto R. GONZALES, Attorney General,^* Respondent.

No. 02-73546.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 9, 2004.

Filed August 26, 2005.

Manuel F. Rios, Rios Cantor, P.S., Seattle, WA, for the petitioner.

Anthony P. Nicastro, Office of Immigration Counsel, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A75-268-464.

Before: D.W. NELSON, FISHER and GOULD, Circuit Judges.

Concurrence by Judge FISHER; Concurrence by Judge GOULD.

PER CURIAM:

Petitioner Margarita Garcia-Ramirez, a native and citizen of Mexico, petitions for review of a decision of the Board of Immigration Appeals ("BIA"), affirming without opinion an Immigration Judge ("IJ") decision denying her application for cancellation of removal because of her failure to establish 10 years of continuous physical presence in the United States. Garcia-Ramirez asserts that the BIA and IJ impermissibly applied the continuous presence requirement of 8 U.S.C. § 1229b(d)(2) (the "90/180-day rule")¹ retroactively to find her automatically ineligible for cancellation of removal because she departed the United States for five months between April and September 1989. Our prior decisions governing similar claims under the transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. No. 104-208, § 309(c), compel us to reject her claim.

I.

Garcia-Ramirez entered the United States illegally in May 1988 and has, but for one absence, lived in the country continuously since then. In April 1989, Garcia-Ramirez left the United States to visit family in Mexico. She returned to the United States in September 1989. It is the effect of this five-month absence on her accrual of time of continuous presence in the United States that is the crux of this appeal.

On April 10, 1997, the Immigration and Naturalization Service ("INS")² initiated removal proceedings against Garcia-Ramirez as an alien present in the United States without being admitted or paroled. The parties agree that Garcia-Ramirez's accrual of physical presence time ended on October 7, 1998, when she was served with a notice to appear before an IJ.³ On March 1, 1999, Garcia-Ramirez appeared in immigration court, admitted to the allegations in the notice to appear and requested that the IJ grant her cancellation of removal relief under § 1229b(b)(1) or, in the alternative, voluntary departure.

The IJ found Garcia-Ramirez removable as charged and denied her request for cancellation of removal. In order to be eligible for cancellation of removal, Garcia-Ramirez had to demonstrate continuous physical presence in the United States of not less than 10 years. § 1229b(b)(1)(A). Applying the 90/180-day rule of § 1229b(d)(2), the IJ found that Garcia-Ramirez's five-month absence in 1989 had interrupted her otherwise continuous presence between May 1988 and the service of her notice to appear in October 1998. Because Garcia-Ramirez's trip lasted more than 90 days, and less than 10 years had elapsed between her reentry in September 1989 and service of the notice to appear, the IJ determined that Garcia-Ramirez was ineligible for cancellation of removal. The IJ granted Garcia-Ramirez's alternative request for voluntary departure.

Garcia-Ramirez appealed to the BIA, which affirmed the IJ's decision without an opinion. Garcia-Ramirez thereafter filed her petition for review with our court. We have jurisdiction under § 1252(a) and deny the petition for review.

II.

Garcia-Ramirez asserts that the 90/180-day rule in § 1229b(d)(2) cannot be applied to her because that provision did not become law until 1997, and she left and reentered the United States in 1989. She maintains that because she would have remained eligible for cancellation of removal under the law in effect at the time of her departure and reentry, § 1229b(d)(2) retroactively eliminates her preexisting right to relief from removal and thereby offends due process. We first address the government's argument that we do not have jurisdiction to review the petition and then turn to the merits of Garcia-Ramirez's claim.

A. Jurisdiction

The government challenges our jurisdiction to review Garcia-Ramirez's petition, asserting that she failed to exhaust administrative remedies because she did not present her retroactivity claim to the BIA. Under § 1252(d)(1) we "may review a final order of removal only if the alien has exhausted all administrative remedies available to the alien as of right." Bagues-Valles v. INS, 779 F.2d 483, 484 (9th Cir.1985); see also id. ("As a general rule, issues not raised before an administrative tribunal cannot be raised on appeal from that tribunal."). Because the BIA does not have jurisdiction to resolve constitutional challenges, however, due process claims — other than those alleging only "procedural errors" within the BIA's power to redress — are exempt from this administrative exhaustion requirement. Vargas v. U.S. Dept. of Immigration and Naturalization, 831 F.2d 906, 908 (9th Cir.1987).

Garcia-Ramirez's claim is properly viewed as an assertion that application of the 90/180-day rule of § 1229b(d)(2) to her violates due process because of impermissible retroactivity. See INS v. St. Cyr, 533 U.S. 289, 316, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (recognizing that Congress has the power to enact retroactive legislation, but confirming that there are constitutional limits on retroactivity). Retroactivity challenges to immigration laws implicate legitimate due process considerations that need not be exhausted in administrative proceedings because the BIA cannot give relief on such claims. See Bagues-Valles, 779 F.2d at 484. Accordingly, we have jurisdiction to review Garcia-Ramirez's retroactivity claim even though it was not raised before the BIA.

B. Retroactivity

We turn to the merits of Garcia-Ramirez's claim that the IJ should not have applied the 90/180-day rule of § 1229b(d)(2) to find that her five-month absence in 1989 terminated continuous physical presence. Section 1229b(d)(2) provides a bright-line rule that an alien "shall be considered to have failed to maintain continuous physical presence in the United States" if the alien "has departed from the United States for any period in excess of 90 days or for any periods in the aggregate exceeding 180 days." Garcia-Ramirez does not contest that if § 1229b(d)(2) applies retroactively, her five-month absence in 1989 would violate the 90/180-day rule.

From 1986 until IIRIRA's effective date in April 1997, however, the relevant statute provided that a departure from the United States did not break continuous presence if it was "brief, casual, and innocent and did not meaningfully interrupt the [alien's] continuous physical presence" in the United States. § 1254(b)(2) (1995). "The evident statutory purpose [of this standard was] to recognize that a person who lives for [the requisite number of years] in the United States does not destroy [her] eligibility by actions that do not affect [her] commitment to living in this country." Castrejon-Garcia v. INS, 60 F.3d 1359, 1362 (9th Cir.1995). Under this pre-IIRIRA rule, "[f]or purposes of evaluating whether an absence is brief, single absences in excess of 90 days . . . will be evaluated on a case-by-case basis." 8 C.F.R. § 240.64(b)(1); 8 C.F.R. § 1240.64(b)(1). Garcia-Ramirez contends that the more flexible § 1254 standard must be used to evaluate her continuous presence because applying § 1229b(d)(2) would be impermissibly retroactive.

1.

In its landmark decision in Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), the Supreme Court set forth the principles we must consider in determining whether a statute should be applied retroactively. Noting that "the presumption against retroactive legislation is deeply rooted in our jurisprudence, and embodies a legal doctrine centuries older than our Republic," the Court stated in plain terms 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. For that reason, the "principle that the legal effect of conduct should ordinarily be assessed under the law that existed when the conduct took place has timeless and universal appeal."

Id. at 265, 114 S.Ct. 1483 (quoting Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827, 855, 110 S.Ct. 1570, 108 L.Ed.2d 842 (1990) (Scalia, J., concurring)); see INS v. St. Cyr, 533 U.S. at 316, 121 S.Ct. 2271.

In light of these principles, the Court articulated a two-step approach for evaluating when the normal presumption against retroactivity should not apply. Our "first task" under Landgraf is to "determine whether Congress has expressly prescribed the statute's proper reach." Landgraf, 511 U.S. at 280, 114 S.Ct. 1483. If Congress has clearly expressed that a law should be applied to conduct occurring before its enactment, our inquiry ends and we must defer to Congress' command. Otherwise, we proceed to Landgraf's second step and ask "whether the new statute would have retroactive effect, i.e., whether it 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." Id. If the new law would have such a retroactive effect, the "traditional presumption teaches that [the new statute] does not govern. . . ." Id.

2.

The first step of Landgraf requires us to "ascertain whether Congress has directed with the requisite clarity that the law be applied retrospectively." St. Cyr, 533 U.S. at 316, 121 S.Ct. 2271. The Supreme Court has cautioned that "[t]he standard for finding such unambiguous direction is a demanding one." Id. "[C]ases...