Ledezma-galicia v. Holder
| Decision Date | 29 March 2010 |
| Docket Number | No. 04-35048,No. 03-73648,03-73648,04-35048 |
| Citation | 599 F.3d 1055 |
| Parties | Ramon LEDEZMA-GALICIA, Petitioner, v. Eric H. HOLDER, Jr.,* Attorney General, Respondent. Ramon Ledezma-Galicia, Petitioner-Appellant, v. Phillip C. Crawford; Eric H. Holder, Jr.,* Attorney General; Janet Napolitano,** Secretary of Homeland Security, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Editor's Note: The opinion of the United States Court of Appeals, Ninth Circuit, in United States v. Castro published in the advance sheet at this citation, 599 F.3d 1050, was withdrawn from the bound volume because it was amended. For amended opinion, see 2010 WL 2220598.
Argued and Submitted March 7, 2005.
Submission Withdrawn March 9, 2005.
Resubmitted March 22, 2010.
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Stephen W. Manning and Jessica M Boell, Immigrant Law Group LLP, Portland, OR, for the petitioner/petitioner-appellant.
Peter D. Keisler, Assistant Attorney General, Civil Division, and David V. Bernal, Assistant Director, Ernesto H. Molina Jr., Senior Litigation Counsel, and Leslie McKay, Office of Immigration Litigation Civil Division, U.S. Department of Justice, Washington, D.C., for the respondent/respondent-appellee.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A38-883-099.
Appeal from the United States District Court for the District of Oregon, Robert E. Jones, District Judge, Presiding. D.C. No. CV-03-01316-REJ.
Before STEPHEN REINHARDT, MARSHA S. BERZON, and JAY S. BYBEE, Circuit Judges.
Opinion by Judge BERZON; Dissent by Judge Bybee.
Ramon Ledezma-Galicia, a lawful permanent resident alien, was convicted in an Oregon state court in September 1988 of sodomy, for sexually molesting a minor. Current law provides that "sexual abuse of a minor" is an "aggravated felony" as defined by 8 U.S.C. § 1101(a)(43)(A), and therefore grounds for removal under 8 U.S.C. § 1227(a)(2)(A)(iii).1 Ledezma-Galicia does not dispute that his crime is an aggravated felony. Instead, the question before us is whether Ledezma-Galicia may now be removed from the country based on his 1988 conviction, even though he would not have been deportable for that crime—or for any aggravated felony—at the time of his conviction. We conclude that he may not be removed, because (1) the 1988 law that made aliens deportable for aggravated felony convictions did not apply to convictions prior to November 18 1988; and (2) neither Congress's overhaul of the grounds for deportation in 1990 nor its rewrite of the definition of aggravated felony in 1996 erased that temporal limitation.
Ledezma-Galicia entered the United States in 1979 and became a lawful permanent resident on February 12, 1985. In June 1987, Ledezma-Galicia molested a ten-year-old girl. He was subsequently charged with sodomy in the first degree, in violation of Or.Rev.Stat. § 163.405, and rape in the first degree, in violation of Or.Rev.Stat. § 163.375. In exchange for dismissal of the rape charge, LedezmaGalicia pleaded guilty to the sodomy count and admitted in his guilty plea that he had sexual intercourse with a minor. On September 16, 1988, he was sentenced to eight months in custody.
In April of 2003, the Bureau of Immigration and Customs Enforcement charged Ledezma-Galicia with removability because of his 1988 conviction. See Ledezma Galicia v. Crawford, 294 F.Supp.2d 1191 1193 (D.Or.2003) (). Under current law, sexual abuse of a minor is an aggravated felony, 8 U.S.C. § 1101(a)(43)(A), and a conviction for an aggravated felony renders an alien removable, 2 8 U.S.C. § 1227(a)(2)(A)(iii). But that was not the case when LedezmaGalicia was convicted. See 8 U.S.C. § 1251(a) (1982) (). To determine whether LedezmaGalicia can now be deported because of his 1988 conviction requires a journey through the last twenty years of immigration law reform.
Three laws are relevant to our inquiry, all of which amended the Immigration and Nationality Act ("INA"): the Anti-Drug Abuse Act of 1988 ("ADAA" or "1988 Act"), Pub.L. No. 100-690, 102 Stat. 4181; the Immigration Act of 1990 ("IMMAct" or "1990 Act"), Pub.L. No. 101-649, 104 Stat. 4978; and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA" or "1996 Act"), Pub.L. No. 104-208, div. C, 110 Stat. 3009-546. Because Ledezma-Galicia's conviction occurred before all three enactments, the retroactivity of the currently applicable aggravated felony removal ground, 8 U.S.C. § 1227(a)(2)(A)(iii), 3 to pre-ADAA convictions is central to our inquiry. That inquiry focuses, in turn, on the interplay between the current aggravated felony removal provision, a temporal limitation in the 1988 ADAA, a savings clause in the 1990 IMMAct, and an effective date provision in the 1996 IIRIRA.
Ledezma-Galicia argues that the ADAA, which limited aggravated felony deportations to post-ADAA convictions, protects him from being deported based on his preADAA conviction. The Attorney General maintains, in contrast, that the ADAA is not relevant to Ledezma-Galicia's circumstances, because its temporal limitation on the aggravated felony ground of deportation did not survive the later passage of the IMMAct in 1990 and of IIRIRA in 1996. Applying the heavy presumption against repeals by implication, see Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 662-64, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007); Radzanower v. Touche Ross & Co., 426 U.S. 148, 15354, 96 S.Ct. 1989, 48 L.Ed.2d 540 (1976), we agree with Ledezma-Galicia that the ADAA's temporal limitation remains in effect as an exception to other temporal provisions enacted later, and precludes his deportation.
The ADAA of 1988 made a series of amendments to the INA. In it, Congress, for the first time, both created the category of crimes denominated "aggravated felonies, " ADAA § 7342, 102 Stat. at 4469-70, and provided that any alien who was convicted of an "aggravated felony" at any time after entering the United States was subject to deportation. Id. at § 7344(a), 102 Stat. at 4470-71 ();4 see also Leocal v. Ashcroft, 543 U.S. 1, 4 n. 1, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004) ().
At the time it was enacted in 1988, the ADAA did not make Ledezma-Galicia deportable, for two reasons: First, the ADAA defined only murder, illegal drug trafficking, and firearm and destructive device trafficking offenses—not sexual abuse of a minor—as aggravated felonies. See ADAA § 7342.5 Second, the ADAA was enacted on November 18, 1988, just over two months after Ledezma-Galicia was convicted of the underlying sodomy offense at issue here. A temporal limitation in the ADAA expressly constrained the applicability of the new aggravated felony removal ground, providing:
The amendments made by L§ 7344(a) to INA § 241(a)(4)] shall apply to any alien who has been convicted, on or after the date of the enactment of this Act, of an aggravated felony.
ADAA § 7344(b), 102 Stat. at 4471.
So, at the time of Ledezma-Galicia's conviction for sexually molesting a minor, there was as yet no provision in the INA making aliens removable as a result of aggravated felony convictions. And when Congress, just over two months later, enacted the ADAA, created the category of "aggravated felonies, " and made conviction of an aggravated felony a ground for deportation, that ground for deportation (a) was expressly made inapplicable to individuals who, like Ledezma-Galicia, were convicted before the ADAA's enactment, and (b) did not cover sexual abuse crimes such as Ledezma-Galicia's.
Two years after it enacted the ADAA Congress overhauled deportation law by passing the IMMAct. Like the ADAA, the IMMAct alone did not change LedezmaGalicia's immigration status, because it did not define Ledezma-Galicia's crime, sexual abuse of a minor, as a deportable offense. The Attorney General maintains, however, that § 602 of the IMMAct did affect the temporal reach of ADAA § 7344(a), which had created the aggravated felony ground of deportation.
IMMAct § 602(a) replaced the INA's list of grounds for deportation with a revised list. As recited in the text of IMMAct § 602(a) and codified at 8 U.S.C. § 1251(a), that revised list reiterated the aggravated felony ground and many of the other pre-IMMAct grounds for deportation, only redesignating them at new locations in the U.S.Code. IMMAct § 602(a) also altered or deleted certain other grounds of deportation, and added several new ones. See 104 Stat. at 5077-81; compare 8 U.S.C. § 1251(a) (1988) with 8 U.S.C. § 1251(a) (1988 Supp. II).
In addition, subject to certain exceptions, IMMAct §§ 602(c) and (d) stated that the revised list of grounds for deportation applied to all aliens regardless of their date of entry into the United States or the date of the "facts" that rendered them deportable. Specifically, § 602(c), titled a "Savings Provision, " provided that:
Notwithstanding the amendments made by this section, any alien who was deportable because of a conviction (before the date of the enactment of this Act) of an offense referred to in paragraph (15), (16), (17), or (18) of section 241(a) of the Immigration and Nationality Act, [6] as in effect before the date of the enactment of this Act, shall be considered to remain so deportable. Except as otherwise specifically provided in such section and subsection (d), the provisions of such section, as amended by this section, shall apply to all aliens described in subsection (a) thereof notwithstanding that (1) any such alien entered the United States before the date of enactment of this Act, or (2) the facts, by reason of which an alien is described in such subsection, occurred before the date of the enactment of this Act.
104 Stat. ...
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