Hem v. Maurer

• Decision Date: 18 August 2006
• Docket Number: No. 05-9555.,05-9555.
• Citation: 458 F.3d 1185
• Parties: Bovy HEM, Petitioner, v. Douglass MAURER, Interim Field Director, United States Immigration and Customs Enforcement, United States Immigration and Customs Enforcement, Respondents.
• Court: U.S. Court of Appeals — Tenth Circuit

458 F.3d 1185

Bovy HEM, Petitioner, v. Douglass MAURER, Interim Field Director, United States Immigration and Customs Enforcement, United States Immigration and Customs Enforcement, Respondents.

No. 05-9555.

United States Court of Appeals, Tenth Circuit.

August 18, 2006.

Laura L. Lichter, Lichter & Associates, Denver, CO, for the Petitioner.

Donald E. Keener, Deputy Director, United States Department of Justice, Civil Division, Office of Immigration Litigation (Alison Marie Igoe, Senior Litigation Counsel, with him on the brief), Washington, D.C., for the Respondents.

Before HENRY, HOLLOWAY, and LUCERO, Circuit Judges.

LUCERO, Circuit Judge.

Bovy Hem first entered this country as a Cambodian refugee in 1981 and has been a legal resident ever since. In 1990, Hem was involved in a car accident which left him a paraplegic. Four years later, he was convicted of assaulting a police officer when he refused to let go of a traffic sign and grabbed the officer's shirt, tearing it as he fell from his wheelchair to the ground. In 1999, the Immigration and Naturalization Service ("INS") began removal proceedings against him. Hem protested his removal and sought relief under § 212(c) of the Immigration and Nationality Act ("INA"). 8 U.S.C. 1182(c). Section 212(c), which has since been repealed, granted the Attorney General discretion to stay deportation proceedings brought to remove an alien who has been convicted of an "aggravated felony." An Immigration Judge ("IJ") granted Hem a waiver of inadmissibility under § 212(c), but was subsequently reversed by the Board of Immigration Appeals ("BIA").

In the interim of Hem's conviction and the removal proceedings, Congress passed the Illegal Immigrant Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"). Section 304(b) of IIRIRA repealed § 212(c) discretionary relief. Shortly thereafter, the Attorney General interpreted § 304(b) to apply retroactively, and authorized the INS to institute removal proceedings against aliens like Hem, whose aggravated assault convictions pre-dated IIRIRA's effective date. This was followed by I.N.S. v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), in which the Supreme Court held that application of IIRIRA § 304(b) would be impermissibly retroactive to aliens whose aggravated felony convictions followed from guilty pleas.

St. Cyr left unanswered a key question: is § 304(b) impermissibly retroactive to aliens whose aggravated felony convictions followed from jury trials? This issue has now been addressed by numerous lower courts. These courts have diverged on whether, and to what extent, litigants must show they relied on pre-IIRIRA law to sustain an IIRIRA retroactivity claim. The Third, Fourth, and Sixth Circuits require that a reasonable litigant could have "objectively relied" on the availability of § 212(c) in a given situation. The First, Second, and Eleventh Circuits demand that litigants demonstrate they actually relied on the availability of such relief. Because the former interpretation is a far more persuasive reading of the Supreme Court's retroactivity cases, we conclude that an objective showing of reliance is the appropriate rule. Applying that rule, we disagree with the majority of circuits that have concluded that litigants who proceed to trial have not suffered retroactive effects under IIRIRA's repeal of § 212(c). Instead, we conclude that a defendant who proceeds to trial but foregoes his right to appeal when § 212(c) relief was potentially available has suffered retroactive effects under IIRIRA. We therefore REVERSE the BIA's determination that St. Cyr is inapplicable to Hem because he did not plead guilty and REMAND.

I

Hem is a native of Cambodia who was admitted to the U.S. as a refugee in 1981 when he was seven years old and thereafter became a permanent resident. On April 26, 1994, Hem, a paraplegic, was approached by a police officer as he was "horsing around" with a traffic sign. After being told that he would be ticketed if he did not let go of the traffic sign, Hem wheeled away from the officer, but the officer chased Hem and pulled him from his wheel chair. While Hem was being pulled from his chair, he grabbed the officer's shirt to steady himself, ripping his uniform in the process. He was thereafter indicted on two counts of aggravated assault in South Dakota. Each count carried a maximum sentence of fifteen years. S.D. Codified Laws § 22-6-1. Following a jury trial, Hem was convicted of one count of aggravated assault in violation of S.D. Codified Laws § 22-18-1.1(3).¹ He received a suspended sentence of three years, but violated the conditions of suspension, and served almost three years in prison. Had Hem been convicted on either count, he faced a maximum sentence of fifteen years. Hem did not appeal his conviction.

On September 22, 1999, the INS began removal proceedings against Hem, charging him as being subject to removal under 8 U.S.C. § 1227(a)(2)(iii), which mandated removal of aliens who have been convicted of an "aggravated felony" (a "crime of violence" for which the term of imprisonment was at least one year).

Hem appeared before an immigration judge and conceded that his aggravated assault conviction qualified him for removal. He sought relief on several grounds: withholding of (now "restriction on") removal under 8 U.S.C. § 1231(b)(3); relief from removal under the Convention against Torture ("CAT"); and a "§ 212(c) waiver" of inadmissability under 8 U.S.C. § 1182(c).²

The IJ ruled that Hem's offense did not involve a crime which was "particularly serious," thus establishing Hem's eligibility for § 1231(b)(3) withholding, and relief from removal under CAT. In denying the application for withholding of removal under § 1231(b)(3), the IJ found that the harm Hem suffered did not rise to the level of persecution. Hem's application for relief from removal under CAT was also denied by the IJ on the basis that Hem had not shown that it was more likely than not he would be tortured if returned to Cambodia.

In addressing the § 212(c) waiver, which was available to Hem at the time he was convicted, the IJ noted that although such relief was eliminated by IIRIRA in 1996, the Supreme Court had held that application of IIRIRA to defeat an alien's preexisting eligibility for a § 212(c) waiver would be impermissibly retroactive under the principles of Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), and its progeny. See I.N.S. v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). Crediting that St. Cyr involved an alien who had pled to the underlying removable offense rather than being found guilty at trial (as Hem was), the IJ nevertheless refused to rule the distinction dispositive due to constitutional misgivings about making unfavorable distinctions based on a defendant's exercise of his right to jury trial. After considering Hem's extensive family ties to the U.S., his long residence in the country, and his physical circumstances, the IJ granted the § 212(c) waiver, allowing Hem to stay in the U.S.

On appeal of the § 212(c) determination to the BIA, the INS argued that because the underlying conviction was obtained by trial rather than by plea, St. Cyr was inapplicable, and thus that Hem's case raised no retroactivity concerns. The BIA agreed, reversed the IJ's grant of § 212(c) relief, and ordered Hem removed to Cambodia. Hem sought review of the BIA's decision by way of a 28 U.S.C. § 2241 petition filed in district court. That court, however, did not rule on the petition. Instead, it transferred the petition to this court in accord with the recent REAL ID Act amendments eliminating habeas review of BIA removal decisions.³

In his habeas petition before the district court, Hem argued that St. Cyr controls his case, and thus, he is entitled to seek § 212(c) relief. Under former § 212(c) of the INA, deportable aliens who had accrued seven years of lawful permanent residence in the United States could request discretionary relief from deportation by arguing that the equities weighed in favor of their remaining in the United States. Even an alien deportable because he had been convicted of an aggravated felony, see 8 U.S.C. § 1227(a)(2)(A)(iii), was eligible for this discretionary relief if he served a term of imprisonment less than five years. See 8 U.S.C. § 1182(c). There was also a strong likelihood that this relief would be granted; indeed, the Attorney General granted it in over half of all cases in which it was sought. See St. Cyr, 533 U.S. at 296, 121 S.Ct. 2271 & n. 5. Factors deemed favorable for granting relief include family ties within the United States, residence of long duration in this country, evidence of hardship to the immigrant's family as a result of deportation, and a stable history of employment. See In re Marin, 16 I & N Dec. 581, 584-85 (BIA 1978).

Section 304(b) of IIRIRA repealed § 212(c) relief entirely, replacing it with a procedure called "cancellation of removal." See 8 U.S.C. § 1229b. This narrower form of relief is not available to an alien convicted of any aggravated felony. IIRIRA also retroactively expanded the definition of "aggravated felony" to include dozens more offenses, including misdemeanor and low-level felony offenses. See 8 U.S.C. § 1101(a)(43).

In its opposition to Hem's petition for relief under § 212(c), the government argues that St. Cyr's bar against retroactive application of § 304(b) of IIRIRA does not apply to petitioners who, like Hem, had been convicted in a jury trial and not pursuant to a guilty plea. We ordered supplemental briefing on the role of reliance on prior law in the Landgraf retroactivity analysis. In his supplemental brief, Hem urges that we follow the Fourth Circuit in Olatunji v. Ashcroft, 387 F.3d 383 (4th Cir.2004), and conclude that no reliance on prior law is necessary for a statute to have an impermissible retroactive effect. Hem argues...