Hernandez De Anderson v. Gonzales, 05-74132.

• Decision Date: 09 August 2007
• Docket Number: No. 05-74132.,05-74132.
• Parties: Margarita HERNANDEZ DE ANDERSON, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

497 F.3d 927

Margarita HERNANDEZ DE ANDERSON, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.

No. 05-74132.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 19, 2006.

Submission Withdrawn October 20, 2006.

Resubmitted August 3, 2007.

Filed August 9, 2007.

John Ayala and Alma Cobos-Ayala, Law Offices of Cobos & Ayala, Los Angeles, CA, for the petitioner.

James E. Grimes and Mary Jane Candaux, Office of Immigration Litigation, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A19-921-652.

Before: SUSAN P. GRABER, W. FLETCHER, and RICHARD C. TALLMAN, Circuit Judges.

Opinion by Judge WILLIAM A. FLETCHER; Partial Concurrence and Partial Dissent by Judge TALLMAN.

WILLIAM A. FLETCHER, Circuit Judge:

Margarita Hernandez de Anderson petitions for review of the Board of Immigration Appeals' ("BIA") dismissal of her appeal from an order of removal. She contends, first, that the BIA erred in holding that she failed to meet the requirements for termination of her removal proceedings under 8 C.F.R. § 1239.2(f). Second, she contends that the BIA's holding that she was ineligible to apply for suspension of deportation under former Immigration and Nationality Act ("INA") § 244(a)(2), 8 U.S.C. § 1254(a)(2) (repealed 1997), is an impermissibly retroactive application of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. No. 104-208, div. C, 110 Stat. 3009. We agree with Petitioner's second contention and grant her petition.

I. Background

Petitioner is a 64-year-old native and citizen of Mexico. She became a lawful permanent resident of the United States thirty-four years ago, on May 15, 1973, based on her marriage to a United States citizen whom she had met while she was living in Mexico.

On June 3, 1981, Petitioner shot her husband multiple times at close range, but did not kill him. Petitioner was charged under California law with attempted murder and with discharging a firearm at an inhabited dwelling. Petitioner's defense at trial was that she had shot her husband in self-defense. She testified that her husband was a heavy drinker who had subjected her to years of abuse. At the time of the shooting, she was in the process of getting a divorce. She was staying in a women's shelter, but on the day of the shooting came back to the family home to retrieve some of her belongings. Petitioner testified that her husband threatened to "blow her brains out" and that she shot him in the driveway before he could get his gun from his car.

The jury declined to convict Petitioner of attempted murder. Instead, it returned convictions for attempted voluntary manslaughter, Cal.Penal Code § 192, and a firearm charge, id. § 246. Petitioner was sentenced to six years in prison. She was released in 1985 after serving four years. Petitioner successfully completed probation in 1987.

Since shortly after her release from prison, Petitioner has worked as a caregiver to home-bound ill and elderly patients. Her supervisor describes her as "a wonderful Christian person" and "truly a role model for what a good caregiver should be." She states that Petitioner is "so popular with ... clients" that Petitioner is "busy to the point of having to turn work down." A letter from a family with whom Petitioner lived beginning in March 1985 "as part of her rehabilitation process" describes how they came to love and admire her: "We believe that she epitomizes the traits we all admire: trustworthiness, dedication to worthy goals, the ability to learn from experience, industriousness, self-reliance, or whatever else one may choose as attributes of a United States citizen[.]"

Since her release from prison in 1985, Petitioner has annually filed federal income tax returns. She co-owns a house in Hemet, California. She speaks, reads, and writes English. The government does not dispute that she has led a law-abiding life since 1981.

On August 2, 1995, twenty-two years after she became a lawful permanent resident and more than ten years after her release from prison in 1985, Petitioner filed an application for naturalization. In the application she fully disclosed her 1981 criminal convictions. Petitioner had had no contact with the Immigration and Naturalization Service ("INS") either upon her release from prison in 1985 or in the ten years thereafter.¹

Petitioner had been potentially eligible for naturalization as early as 1990. In 1990, a lawful permanent resident was eligible for naturalization after five years of continuous residence if, during that five-year period, the applicant could demonstrate that she "ha[d] been and still [was] a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States." 8 U.S.C. § 1427(a) (1990). Petitioner's 1981 convictions and term of imprisonment did not categorically preclude a finding of good moral character once five years had elapsed after her release from prison in 1985. See 8 U.S.C. § 1101(f) (1990); Lopez-Castellanos v. Gonzales, 437 F.3d 848, 851 & n. 3 (9th Cir.2006).

When Petitioner applied for naturalization in 1995, she had just become eligible to apply for suspension of deportation if the INS sought to deport her based on her convictions. See INA § 244(a)(2), 8 U.S.C. § 1254(a)(2) (1995) (repealed 1997). She had not been eligible to apply for suspension of deportation until ten years after her release from prison. See id. (requiring ten years of continuous presence and good moral character during that period for suspension of deportation); 8 U.S.C. § 1101(f)(7) (1990) (providing that good moral character cannot be established during a period of imprisonment longer than six months).

IIRIRA was enacted on September 30, 1996, more than a year after Petitioner filed her application for naturalization. IIRIRA's effective date was another six months later. See IIRIRA § 309(a). IIRIRA repealed "suspension of deportation" and replaced it with "cancellation of removal," a form of relief not available to Petitioner because she is an alien convicted of an aggravated felony. See 8 U.S.C. § 1229b(a)(3).

On August 3, 2000, five years after Petitioner filed her application for naturalization, the INS commenced removal proceedings against her. On the same day, the INS denied Petitioner's naturalization application based on the pendency of the newly instituted removal proceedings. Petitioner timely petitioned the INS for review of the denial of her naturalization application. One year later, on September 28, 2001, the INS denied the petition, again citing the pending removal proceedings.

In the meantime, on September 26, 2000, Petitioner had asked the immigration judge ("IJ") to terminate her removal proceedings under 8 C.F.R. § 1239.2(f) in order to allow her naturalization application to go forward. Petitioner contended that § 1239.2(f) authorized the IJ to determine that she was prima facie eligible for naturalization but for the pendency of the removal proceedings, even in the absence of a statement from the INS to that effect. Petitioner had requested such a statement from the INS District Director the day before, on September 25, 2000. The record does not contain a response from the District Director.

The IJ denied Petitioner's request to terminate the removal proceedings. On August 17, 2001, Petitioner applied to the IJ for suspension of deportation, arguing that IIRIRA's repeal of that relief was impermissibly retroactive as applied to her, given that she had applied for naturalization in 1995. The IJ held that Petitioner was removable under IIRIRA and that suspension of deportation was not an available form of relief. Cf. Lopez-Urenda v. Ashcroft, 345 F.3d 788, 791-92 (9th Cir. 2003) (as amended) (explaining that cases commenced by the INS after April 1, 1997, are governed by IIRIRA's permanent rules).

The BIA dismissed Petitioner's appeal on December 10, 2003. The BIA rejected Petitioner's argument that the IJ erred in refusing to terminate the removal proceedings under § 1239.2(f), holding that Petitioner was required to establish prima facie eligibility for naturalization with a statement from the Department of Homeland Security ("DHS"), which had assumed the INS's functions earlier in 2003. The BIA also rejected Petitioner's argument that the repeal of suspension of deportation was impermissibly retroactive as applied to her.

Petitioner filed a timely petition for a writ of habeas corpus in the district court challenging her removal. The district court transferred the petition to this court pursuant to the REAL ID Act of 2005, Pub.L. No. 109-13, § 106(c), 119 Stat. 231, 311. We now treat Petitioner's request for relief as a petition for review of the BIA's decision. See Rafaelano v. Wilson, 471 F.3d 1091, 1095-96 (9th Cir.2006). We have jurisdiction to review Petitioner's constitutional claims and other questions of law under 8 U.S.C. § 1252(a)(2)(D).

II. Standards of Review

We defer to an agency's interpretation of its own regulation when that interpretation is neither clearly erroneous nor inconsistent with the regulation. See Singh-Bhathal v. INS, 170 F.3d 943, 945 (9th Cir.1999). We review de novo claims of due process violations in immigration proceedings. See Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir.2004). We also review de novo whether an application of IIRIRA is impermissibly retroactive. See Sinotes-Cruz v. Gonzales, 468 F.3d 1190, 1194 (9th Cir.2006). Because the BIA conducted its own review of the evidence and law rather than simply adopting the IJ's decision, "our review is limited to the BIA's decision, except to the extent the IJ's opinion is expressly adopted." Cordon-Garcia v. INS, 204 F.3d 985, 990 (9th Cir.2000).

III. Discussion

We review two holdings by the BIA. First, we review the BIA's holding that the IJ...