Kankamalage v. I.N.S., 02-71415.

• Decision Date: 08 July 2003
• Docket Number: No. 02-71415.,02-71415.
• Citation: 335 F.3d 858
• Parties: Jayantha Edirsinghe KANKAMALAGE, Petitioner, v. IMMIGRATION and NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

335 F.3d 858

Jayantha Edirsinghe KANKAMALAGE, Petitioner, v. IMMIGRATION and NATURALIZATION SERVICE, Respondent.

No. 02-71415.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 9, 2003.

Filed July 8, 2003.

COPYRIGHT MATERIAL OMITTED

Robert B. Jobe, San Francisco, CA, for the petitioner-appellant.

Ethan B. Kanter and Earle B. Wilson, United States Department of Justice, Office of Immigration Litigation, Civil Division, Washington, D.C., for the respondent-appellee.

On Petition for Review of an Order of the Board of Immigration Appeals. INS No. A29-545-842.

Before BROWNING, B. FLETCHER, and SILVERMAN, Circuit Judges.

OPINION

SILVERMAN, Circuit Judge:

In 1988, when petitioner Jayantha Kankamalage pleaded guilty to robbery, a conviction for that offense did not categorically disqualify him from consideration for asylum. In 1990, a new regulation was promulgated that changed that; he became categorically ineligible for a discretionary grant of asylum. In accordance with INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), we hold that the 1990 regulation cannot be applied retroactively to categorically exclude Kankamalage from consideration for asylum.

I. Background

Kankamalage, a citizen of Sri Lanka, entered the United States in 1982. He pleaded guilty to robbery in 1988 and was sentenced to two years in prison. After serving one year in prison, Kankamalage was released and turned over to the INS. The INS initiated deportation proceedings against him in March 1989 with an Order to Show Cause charging that Kankamalage overstayed his nonimmigrant visitor visa, and therefore, was subject to deportation under former INA § 241(a)(2), 8 U.S.C. § 1251(a)(2). Kankamalage filed an application for asylum and withholding of deportation.

In a November 1991 hearing before the Immigration Judge, Kankamalage conceded deportability for remaining in the United States longer than permitted. The IJ denied withholding of deportation, ruling that Kankamalage had not established that persecution was clearly probable if he were to be returned to Sri Lanka. As for asylum, the IJ found that Kankamalage was, indeed, statutorily eligible for that relief: Kankamalage had shown a well-founded fear of future persecution; his 1988 robbery conviction did not disqualify him. However, as a matter of discretion, the IJ denied asylum to Kankamalage, citing Kankamalage's conviction and prior drug use.

Kankamalage appealed the IJ's decision to the Board of Immigration Appeals. Almost eight years later, the BIA dismissed the appeal on grounds different from those relied on by the IJ. Kankamalage petitioned this Court for review of the BIA's decision in September 1999. The INS conceded that the BIA applied the incorrect legal standards in its decision and moved to remand the case to the BIA. In May 2000, we remanded Kankamalage's case to the BIA.

On remand, the BIA recognized the error in its earlier decision, but again dismissed the appeal on different grounds. The BIA analyzed Kankamalage's 1988 robbery conviction and concluded that Kankamalage had been convicted of a "particularly serious crime," and therefore, that he was statutorily ineligible for withholding under 8 U.S.C. § 1253(h)(2)(B) (1994) and ineligible for asylum under 8 C.F.R. § 208.13(c)(2)(i)(A) (2002).¹

At the time Kankamalage pleaded guilty to robbery in 1988, a conviction for a particularly serious crime did not bar a grant of asylum. Back then, the INS regulations allowed the INS to exercise its discretion by weighing a number of equitable factors, none of which was controlling. Yang v. INS, 79 F.3d 932, 935 (9th Cir. 1996). Therefore, a conviction for a particularly serious crime was only one factor considered in the exercise of discretion. See id. However, the INS promulgated regulations that took effect on October 1, 1990, that added categorical bars to asylum for aliens in certain categories. Id. One of these barred asylum for aliens convicted of a particularly serious crime. That regulation provides the following:

Mandatory denials. ... An immigration judge or asylum officer shall not grant asylum to any applicant ... if the alien[, h]aving been convicted by a final judgment of a particularly serious crime in the United States, constitutes a danger to the community.²

8 C.F.R. § 208.13(c)(2)(i)(A) (2002). This is the regulation applied in Kankamalage's case that is at the center of this appeal. Kankamalage petitions this court for review of the BIA's decision and argues that application in his case of this regulation is impermissibly retroactive.

II. Jurisdiction and Standard of Review

Because Kankamalage was placed in deportation proceedings before April 1, 1997, and a final order of deportation was entered after October 30, 1996, the Illegal Immigration Reform and Immigrant Responsibility Act's ("IIRIRA") transitional rules apply. Hose v. INS, 180 F.3d 992, 994 (9th Cir.1999). We have jurisdiction to review final orders of deportation under 8 U.S.C. § 1105a(a), repealed by Section 309(c)(4) of IIRIRA, Pub.L. No. 104-208, 110 Stat. 3009-546 (Sept. 30, 1996).

When the BIA conducts a de novo review of the IJ's decision, rather than adopting the IJ's decision as its own, we review the BIA's decision. Salazar-Paucar v. INS, 281 F.3d 1069, 1073 (9th Cir.2002). We review the BIA's determination of purely legal questions regarding the Immigration and Nationality Act de novo. Chowdhury v. INS, 249 F.3d 970 972 (9th Cir.2001). The BIA's interpretation of immigration laws is entitled to deference. Id. However, we are not obligated to accept an interpretation clearly contrary to the plain and sensible meaning of the statute. Id. We must first determine if there is any ambiguity in the statute using traditional tools of statutory interpretation. Id. (citing Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 n. 9, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). Only after we determine that a statute is ambiguous do we defer to the agency's interpretation. Id.

III. Discussion

Under Landgraf v. USI Film Prods., 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), determination of whether a regulation or statute is impermissibly retroactive requires a two-step analysis. First, we must determine whether the statute or regulation clearly expresses that the law is to be applied retroactively. Landgraf, 511 U.S. at 280, 114 S.Ct. 1483. If it does, then the statute or regulation may be applied as such. Id. However, if the statute or regulation does not contain an express command that it be applied retroactively, we must go to the second step which requires us to determine whether the statute or regulation would have a retroactive effect. Id.

A. Clear Expression of Retroactivity

The standard for finding that a statute or regulation unambiguously directs retroactive application is a demanding one. St. Cyr, 533 U.S. at 316, 121 S.Ct. 2271. The language must be "so clear that it could sustain only one interpretation." Id. at 316-17, 121 S.Ct. 2271.

The regulation at issue expressly states that it applies to asylum applications filed before April 1, 1997. 8 C.F.R. § 208.13(c)(2)(i)(A) (2002). However, the regulation does not clearly express that the regulation also applies to convictions rendered before the effective date of the regulation (October 1, 1990). See St. Cyr, 533 U.S. at 317-318, 121 S.Ct. 2271.

The government argues that the regulation "unambiguously" applies retroactively because it could not be applied to an alien who filed an application before April 1, 1997 absent a conviction predating April 1, 1997. This is incorrect. Due to the pace at which many asylum cases are resolved, it is entirely possible that an asylum application filed before April 1, 1997 may not be resolved until many years later. If the applicant is convicted of a particularly serious crime while the application is pending, the regulation could apply to the applicant.

Because 8 C.F.R. § 208.13(c)(2)(i)(A) (2002) does not clearly express that it is to be applied retroactively to convictions rendered prior to the regulation's effective date (October 1, 1990), we must proceed to the second step in the Landgraf retroactivity analysis and determine whether application of the regulation has an impermissible retroactive effect on aliens who, like Kankamalage, were convicted by plea agreement before the effective date of the regulation. St. Cyr, 533 U.S. at 320, 121 S.Ct. 2271.

B. Retroactive Effect

"A [regulation] has retroactive effect when it `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.'" St. Cyr, 533 U.S. at 321, 121 S.Ct. 2271 (citations omitted). "[T]he judgment whether a particular [regulation] acts retroactively `should be informed and guided by "familiar considerations of fair notice, reasonable reliance, and settled expectations."'" Id.

Kankamalage asserts that application of the new regulation that mandates denial of asylum for a conviction of a particularly serious crime "attaches a new disability, in respect to transactions or considerations already past." We agree and find the Supreme Court's decision in St. Cyr controlling.

St. Cyr, an alien, pleaded guilty to selling a controlled substance in violation of Connecticut law in March 1996. St. Cyr, 533 U.S. at 293, 121 S.Ct. 2271. This conviction rendered St. Cyr deportable. Id. Under the law applicable at the time of St. Cyr's guilty plea and conviction, he would have been eligible for a waiver of deportation at the discretion of the Attorney General. Id. However, removal proceedings were not initiated against St. Cyr until April 10, 1997, after both the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") and IIRIRA became effective. Id. Under AEDPA and IIRIRA, waiver of deportation under § 212(c) was...