Cordes v. Gonzales

• Decision Date: 24 August 2005
• Docket Number: No. 04-15988.,04-15988.
• Citation: 421 F.3d 889
• Parties: Patricia Ann CORDES, Petitioner-Appellant, v. Alberto R. GONZALES,<SMALL><SUP>*</SUP></SMALL> Attorney General; Michael Chertoff,<SMALL><SUP>**</SUP></SMALL> Secretary of the Department of Homeland Security; Nancy Alcantar, Interim Director of the San Francisco District Office for the Bureau of Immigration and Customs Enforcement, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

421 F.3d 889

Patricia Ann CORDES, Petitioner-Appellant, v. Alberto R. GONZALES,^* Attorney General; Michael Chertoff,^** Secretary of the Department of Homeland Security; Nancy Alcantar, Interim Director of the San Francisco District Office for the Bureau of Immigration and Customs Enforcement, Respondents-Appellees.

No. 04-15988.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 11, 2005.

Filed August 24, 2005.

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Jagdip Singh Sekhon (argued), Sekhon & Sekhon, San Francisco, CA; Scott Mossman (briefed), Sekhon & Sekhon, San Francisco, CA, for the petitioner-appellant.

James Hunolt (argued), Department of Justice, Washington, DC; Audrey B. Hemesath (briefed), Office of the United States Attorney, Sacramento, CA, for the respondents-appellees.

Appeal from the United States District Court for the Eastern District of California; Oliver W. Wanger, District Judge, Presiding. D.C. No. CV-03-05580-OWW/LJO.

Before FERGUSON, NOONAN, and RYMER, Circuit Judges.

FERGUSON, Circuit Judge.

Patricia Ann Cordes ("Cordes"), a native and citizen of the United Kingdom, appeals the District Court's denial of her 28 U.S.C. § 2241 habeas petition challenging the constitutionality of her final order of removal. Cordes pled guilty to dissuading a witness with threat of force and to inducing false testimony, in violation of sections 136.1(c)(1) and 137(c) of the California Penal Code, respectively. The Board of Immigration Appeals ("BIA") determined that Cordes's conviction constituted an aggravated felony under the amended definition of aggravated felony in section 321 of the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), Pub.L. No. 104-208, 110 Stat. 3009-546 (Sept. 30, 1996), and ordered her removed.

On appeal, Cordes contends that the District Court erred when it (1) applied retroactively the amended definition of aggravated felony under sections 321(a)(3) and 321(a)(11) of IIRIRA; (2) rejected her due process challenge to the retroactive application of the amended aggravated felony definition; and (3) denied her equal protection challenge to the unavailability of relief from removal under section 212(c) of the Immigration and Nationality Act ("INA"), Pub.L. No. 82-414, 66 Stat. 163 (June 27, 1952) (hereinafter, "section 212(c)").¹

We find that like the petitioner in United States v. Velasco-Medina, 305 F.3d 839 (9th Cir.2002), cert. denied, 540 U.S. 1210, 124 S.Ct. 1488, 158 L.Ed.2d 136 (2004), Cordes does not fit within the exception to section 304(b) of IIRIRA set forth in INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). Cordes could not have had settled expectations as to the continued availability of section 212(c) relief at the time she entered her guilty plea for non-deportable offenses because the passage of section 440(d) of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub.L. No. 104-32, 110 Stat. 1214 (April 24, 1996), predated her conviction. In addition, we conclude that the retroactive application of the amended aggravated felony definition under section 321 of IIRIRA is supported by a rational basis, and therefore does not violate the Due Process Clause of the Constitution.

Nevertheless, we sustain Cordes's equal protection challenge because the current judicially defined limits to the availability of section 212(c) relief post-IIRIRA, as applied by the Bureau of Immigration and Customs Enforcement,² create an irrational result, namely affording discretionary relief from removal to legal permanent residents who have committed worse crimes than similarly situated permanent residents like Cordes.

I. JURISDICTION

While this case was pending, Congress enacted the Real ID Act of 2005, Pub.L. No. 109-13, 199 Stat. 231, 310-11 (amending 8 U.S.C. § 1252) (May 11, 2005). The Act amends the INA by eliminating federal habeas jurisdiction in favor of petitions for review that raise "constitutional claims or questions of law." Id. at § 106(a)(1). In accordance with Alvarez-Barajas v. Gonzales, 418 F.3d 1050 (9th Cir. Aug. 11, 2005), we construe Cordes's habeas petition as if it were a timely filed petition of review with this court.³ We therefore review the BIA's decision, not the District Court's order. Id.

II. BACKGROUND AND PROCEDURAL HISTORY

Cordes was born on May 9, 1952 in Scotland. She entered the United States legally at the age of eighteen and became a permanent resident on February 3, 1972. Since then, she has lawfully resided in the United States and has raised four U.S. citizen children. In the over thirty years that she has been in the United States, she has left the country only a handful of times to visit her mother in Scotland.

On May 30, 1996, Cordes pled guilty to dissuading a witness from testifying with threat of force and inducing false testimony. The circumstances of Cordes's offenses involved attempting to persuade her daughter — a victim of molestation — to retract allegations against Cordes's former boyfriend. Cordes was sentenced to two years in prison followed by probation. As of her conviction date, Cordes's offenses were misdemeanors and did not constitute an aggravated felony or subject her to deportation. Accordingly, Cordes was ineligible for section 212(c) relief since it was only available for permanent residents who faced deportation.

On April 24, 1996, one month before Cordes's conviction, Congress passed section 440(d) of AEDPA, which made all persons designated as aggravated felons ineligible for section 212(c) relief. On Cordes's conviction date, May 30, 1996, section 440(d) of AEDPA had no effect on her deportability because the offenses to which she pled guilty did not constitute an aggravated felony and, thereby, posed no deportation consequences.

On September 30, 1996, four months after Cordes's conviction, Congress passed IIRIRA. Section 321 of IIRIRA expanded the definitions of aggravated felonies in 8 U.S.C. §§ 1101(a)(43)(F) and 1101(a)(43)(S). For crimes of violence, the required minimum term of imprisonment imposed was lowered from 5 years to 1 year. IIRIRA § 321(a)(3). Similarly, an "offense relating to obstruction of justice, perjury, or subornation of perjury, or bribery of a witness," which formerly required a potential sentence of 5 years imprisonment or more to qualify as an aggravated felony, was changed to require a term of imprisonment of "at least one year." IIRIRA § 321(a)(11). Moreover, section 304(b) of IIRIRA repealed section 212(c) relief altogether and replaced it with cancellation of removal, a more limited form of discretionary waiver from removal, which was also made unavailable to aggravated felons. See 8 U.S.C. § 1229b(a).

On December 17, 1996, having been released from custody, Cordes was arrested for violating section 23152(a) of the California Vehicle Code, driving under the influence of alcohol. She was convicted of the offense on February 19, 1997, and her probation was reinstated. On October 10, 2000, Cordes again violated probation for driving under the influence of alcohol. This time her probation was revoked and she was returned to state custody.

On January 31, 2001, the INS brought removal proceedings against Cordes, charging her as an aggravated felon under the new IIRIRA reclassification of aggravated felony. The INS contended that (1) her offenses at the time of her May 30, 1996 guilty plea now could be recharacterized as constituting an aggravated felony, (2) she was consequently ineligible for section 212(c) relief under section 440(d) of AEDPA since she was an aggravated felon, and (3) she was further ineligible for cancellation of removal under section 304(b) of IIRIRA as an aggravated felon.

On October 10, 2001, an Immigration Judge ("IJ") ordered Cordes removed from the United States but granted her section 212(c) relief because, in the IJ's view, she fit within an exception to section 304(b) of IIRIRA that the Supreme Court carved out in St. Cyr. 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347. There, the Supreme Court held that section 212(c) relief was available for aliens who were eligible for such relief at the time of their convictions and who relied on this relief in entering guilty pleas. The INS timely appealed the IJ's order, and on February 21, 2003, the BIA overruled the IJ's decision and found Cordes deportable and ineligible for section 212(c) relief in accordance with this Circuit's decision in Velasco-Medina. 305 F.3d 839.

When Cordes challenged the BIA's decision, 8 U.S.C. § 1252(a)(2)(C) precluded direct appellate review of a BIA's removal decision for "a crime involving moral turpitude." 8 U.S.C. § 1182(a)(2)(A)(i)(I). Cordes, therefore, had filed a 28 U.S.C. § 2241 habeas petition in the District Court on May 10, 2004 asking for a stay of removal. Specifically, she had challenged the retroactive application of sections 321(a)(3) and 321(a)(11) of IIRIRA and raised an equal protection challenge. The District Court had denied her petition on April 8, 2004, and this timely appeal had followed.

III. DISCUSSION

We review de novo the BIA's decision regarding purely legal questions. Simeonov v. Ashcroft, 371 F.3d 532, 535(9th Cir.2004). We proceed to decide the constitutional claims raised in Cordes's habeas petition, which is now construed as a timely filed petition for review.

A. Retroactivity

Cordes first challenges the retroactive application of sections 321(a)(3) and 321(a)(11) of IIRIRA and the resulting unavailability of section 212(c) relief under St. Cyr. 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347.

Sections 321(a)(3) and 321(a)(11) of IIRIRA reduced the sentencing requirement for an "aggravated felony" from "at least 5 years" to "at least one year." Section 321(b) of IIRIRA made the amended definition of aggravated felony retroactive, "appl[ying] regardless of whether the conviction was entered before, on, or after [September 30, 1996]." This Circuit subsequently upheld the...