Cardenas-Delgado v. Holder

• Decision Date: 26 June 2013
• Docket Number: No. 11–72057.,11–72057.
• Citation: 720 F.3d 1111
• Parties: Francisco CARDENAS–DELGADO, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

720 F.3d 1111

Francisco CARDENAS–DELGADO, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 11–72057.

United States Court of Appeals, Ninth Circuit.

Submitted Aug. 29, 2012.^*

Filed June 26, 2013.

Stephen Coghlan, San Francisco, CA, and Saad Ahmad, Fremont, CA, for Petitioner.

Stuart F. Delery, Acting Assistant Attorney General, Richard M. Evans, Assistant Director, and Andrew Oliveira, Trial Attorney, United States Department of Justice, Office of Immigration Litigation, Washington, D.C., for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A036–224–865.

Before: PROCTOR HUG, JR., JEROME FARRIS, and EDWARD LEAVY, Circuit Judges.

OPINION

HUG, Circuit Judge:

Francisco Cardenas–Delgado, a legal permanent resident of the United States since 1976, appeals from the Board of Immigration Appeals' (“BIA”) decision affirming an immigration judge's (“IJ”) decision that he is ineligible for relief from removal under former Immigration and Naturalization Act § 212(c), 8 U.S.C. § 1182(c) (1988), because his conviction for an aggravated felony was the result of a trial. Cardenas–Delgado argues that this was error because it is impermissibly retroactive to apply the repeal of § 212(c) relief to him. We grant Cardenas–Delgado's petition for review.

The Supreme Court's recent decision in Vartelas v. Holder, ––– U.S. ––––, 132 S.Ct. 1479, 182 L.Ed.2d 473 (2012), makes it clear that the essential inquiry of retroactivity analysis is to determine whether the new law attaches new legal consequences to completed conduct and that evidence regarding reliance is not required to prove that a new law is impermissibly retroactive. The repeal of § 212(c) relief impermissibly attaches new legal consequences to the trial convictions of aliens like Cardenas–Delgado by rendering these aliens ineligible for relief as a result of convictions that pre-dated the repeal of § 212(c).

BACKGROUND

Cardenas–Delgado is a native and citizen of Mexico who was admitted to the United States in 1976 as a lawful permanent resident. He is married and has three children.

In February 1991, Cardenas–Delgado was convicted, as a result of a jury trial, of sale of cocaine, in violation of California Health and Safety Code § 11352. He was sentenced to three years in prison for that conviction.¹

As a result of this conviction, over fifteen years later, on June 6, 2006, Cardenas–Delgado was charged in a Notice to Appear with being removable under § 237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii), based on a conviction for illicit trafficking in a controlled substance, which is an aggravated felony under8 U.S.C. § 1101(a)(43)(B). At a hearing on September 7, 2006, Cardenas–Delgado admitted the factual allegations and conceded that he was removable, but said that he would seek a § 212(c) waiver.

On September 7, 2006, Cardenas–Delgado submitted an application for a § 212(c) waiver. The IJ ordered that Cardenas–Delgado's application for § 212(c) relief be pretermitted on the grounds that he was ineligible for § 212(c) relief because his conviction for the sale of cocaine was the result of a jury trial. The IJ therefore ordered the removal of Cardenas–Delgado.

On appeal to the BIA, Cardenas–Delgado argued that he was eligible for relief under § 212(c) at the time of his trial conviction and that it was impermissibly retroactive to deny him eligibility for such relief after the repeal of § 212(c). On June 23, 2011, the BIA affirmed the IJ's decision without an opinion.

STANDARD OF REVIEW

Where, as here, the BIA affirms the IJ's decision without opinion, we review the decision of the IJ as if it were that of the BIA. See Ge v. Ashcroft, 367 F.3d 1121, 1124 (9th Cir.2004). “We review de novo, and without Chevron deference to the BIA, whether a change to an immigration law is impermissibly retroactive.” Camins v. Gonzales, 500 F.3d 872, 880 (9th Cir.2007).

DISCUSSION

Cardenas–Delgado contends that, at the time of his trial for the aggravated felony, he would have been eligible for discretionary relief under § 212(c) because he served less than five years in prison, and he argues that the IJ and BIA erred by retroactively applying the 1996 repeal of § 212(c) to him. The key issue is whether electing to go to trial instead of pleading guilty precludes the defendant from establishing that the denial of § 212(c) relief was retroactively applied to him. In order to fully understand these issues, it is first important to understand the history of § 212(c) and the fundamental legal principles governing retroactivity analysis for civil statutes.

I. The Statutory Framework and History of § 212(c)

Section 212 of the Immigration and Nationality Act of 1952 excluded from the United States several classes of aliens, including those convicted of offenses involving moral turpitude or the illicit traffic in narcotics. 66 Stat. 182–87; INS v. St. Cyr, 533 U.S. 289, 294, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). However, § 212(c) contained a provision granting the Attorney General broad discretion to admit excludable aliens. It stated: “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.” 8 U.S.C. § 1182(c) (1988) (repealed).

In 1988, Congress expanded the pool of aliens who were deportable, establishing that an alien would be deportable upon conviction for any aggravated felony. See Anti–Drug Abuse Act of 1988, 102 Stat. 4469–4470, 8 U.S.C. § 1227(a)(2)(A)(iii). Congress subsequently enacted three statutes that reduced the size of the class of aliens eligible for discretionary relief from deportation.

First, in 1990, Congress amended § 212(c) to prohibit discretionary relief for anyone convicted of an aggravated felony who had served a term of imprisonment of at least five years. § 511, 104 Stat. 5052 (amending 8 U.S.C. § 1182(c)). It is significant that, at that time, even an alien deportable because he had been convicted of an aggravated felony was eligible for discretionary relief if he served a term of imprisonment of less than five years. See8 U.S.C. § 1182(c). Cardenas–Delgado was convicted of his aggravated felony the following year, 1991, and served less than five years in prison.

Second, in 1996 Congress adopted § 440(d) of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), Pub.L. No. 104–132, 110 Stat. 1214 (codified in relevant part at 8 U.S.C. § 1182 (1996)). This act rendered all aliens convicted of aggravated felonies ineligible for discretionary relief from deportation under § 212(c). See 110 Stat. 1277 (amending 8 U.S.C. § 1182(c)).

Third, also in 1996, Congress passed the Illegal 8Immigration Reform and Immigrant Responsibility Act (“IIRIRA”), Pub.L. No. 104–208, 110 Stat. 3009–546. This act repealed § 212(c) entirely, see § 304(b), 110 Stat. 3009–597, and replaced it with “cancellation of removal,” which is not available to any alien convicted of an aggravated felony regardless of the term of imprisonment imposed or served. See8 U.S.C. § 1229b (1996).

II. Retroactivity Jurisprudence Established by the Supreme Court in Landgraf and St. Cyr

In Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), a landmark retroactivity case, the Supreme Court recognized that a “presumption against retroactive legislation is deeply rooted in our jurisprudence, and embodies a legal doctrine centuries older than our Republic.” Landgraf, 511 U.S. at 265, 114 S.Ct. 1483. The Court noted that the “presumption against statutory retroactivity has consistently been explained by reference to the unfairness of imposing new burdens on persons after the fact.” Id. at 270, 114 S.Ct. 1483. The Court further noted that, “[s]ince the early days of this Court, we have declined to give retroactive effect to statutes burdening private rights unless Congress had made clear its intent.” Id.

The Court therefore established a two-step procedure for determining whether a civil statute may apply retroactively. First, when a statute is enacted after the events at issue in a suit, the court must determine whether Congress expressly provided that the statute should apply retroactively. Landgraf, 511 U.S. at 280, 114 S.Ct. 1483. If the answer is yes, then the inquiry is complete and the statute applies retroactively. Id. If the answer is no, then the court must proceed to the second step and determine whether the statute would have a retroactive effect. Id. If the statute would operate retroactively, then the court must apply the traditional presumption against retroactivity and prohibit retroactive application of the statute. Id.

The Landgraf Court also explained that a determination of whether a statute operates retroactively turns on “whether the new provision attaches new legal consequences to events completed before its enactment.” Id. at 269–70, 114 S.Ct. 1483. This assessment “comes at the end of a process of judgment concerning the nature and extent of the change in the law and the degree of connection between the operation of the new rule and a relevant past event.” Id. at 270, 114 S.Ct. 1483. The Court also highlighted Justice Story's classic explication of when legislation is retroactive: “ ‘every statute, which 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, must be deemed retrospective.’ ” ²Id. at 269, 114 S.Ct. 1483(quoting Society for Propagation of the Gospel v. Wheeler, 22 F.Cas. 756 (No. 13,156) (C.C.N.H.1814)). The Court noted that, in hard cases, “familiar considerations of fair notice, reasonable reliance, and settled expectations offer sound guidance” in applying the test...