Kelava v. Gonzales, 03-73689.

• Decision Date: 07 June 2005
• Docket Number: No. 03-73689.,03-73689.
• Citation: 434 F.3d 1120
• Parties: Bozo KELAVA, Petitioner, v. Alberto R. GONZALES,<SMALL><SUP>*</SUP></SMALL> Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1120

434 F.3d 1120

Bozo KELAVA, Petitioner, v. Alberto R. GONZALES,^* Attorney General, Respondent.

No. 03-73689.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 9, 2005.

Opinion Filed June 7, 2005.

Amended January 12, 2006.

Michael Aaron Harwin, Tucson, AZ, for the petitioner.

Andrew C. MacLachlan (argued) and Russell J.E. Verby (briefed), Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals.

Before: KLEINFELD, HAWKINS, and GRABER, Circuit Judges.

ORDER AND AMENDED OPINION

MICHAEL DALY HAWKINS, Circuit Judge:

ORDER

The Opinion filed on June 7, 2005, and appearing at 410 F.3d 625 (9th Cir.2005), is hereby amended, and the amended Opinion will be filed concurrently with this Order.

With the Opinion as amended, the panel has voted to deny Petitioner's Petition for Rehearing and Petition for Rehearing En Banc.

The full court has been advised of the Petition for Rehearing En Banc and no Judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.

The Petition for Rehearing and the Petition for Rehearing En Banc are DENIED.

No further petitions for rehearing or for rehearing en banc will be entertained by this court.

OPINION

Bozo Kelava, a Croatian national, seeks review of a decision by the Board of Immigration Appeals ("BIA"). The BIA concluded Kelava was ineligible for a discretionary waiver of inadmissibility or cancellation of removal for having engaged in terrorist activity. In an issue of first impression, Kelava argues it is impermissibly retroactive to deny him eligibility for previously available discretionary relief, relying on the Supreme Court's decision in INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). We deny his petition.

FACTS AND PROCEDURAL HISTORY

Kelava, an anti-communist dissident, came to the United States from the Croatian region of the former Yugoslavia as a refugee in 1969. He became a legal permanent resident in 1972.

In the late 1970's, the Federal Republic of Germany ("West Germany") began deporting and extraditing Croatian dissidents to Yugoslavia where they were allegedly being tortured and executed. In April 1978, Kelava and another man entered the West German Consulate in Chicago, armed with handguns, ropes and a phony bomb. United States v. Kelava, 610 F.2d 479, 480 (7th Cir.1979). They seized several employees (including a Consular Officer), demanding that West Germany refuse to extradite Stepan Bilandzic, a prominent Croatian dissident, to Yugoslavia. After being permitted to speak with Bilandzic, Kelava and his cohort released the hostages unharmed. Id.

Kelava and his companion were initially indicted and convicted in federal court of conspiracy and kidnapping of foreign officials, but the district court judge later determined that he had erred in instructing the jury on a lesser included offense and ordered a new trial. The government then obtained a new indictment charging the defendants with armed imprisonment, based on the same facts. On appeal, the Seventh Circuit determined that the defendants could be retried, but only for simple (unarmed) imprisonment, because this was a lesser included offense of the original kidnapping indictment. Id.

In January 1980, Kelava pled guilty to one charge of unarmed imprisonment of a foreign national, and was sentenced to two and a half years in prison. Nearly 20 years later — shortly after Kelava applied for naturalization a third time — the INS¹ commenced removal proceedings against Kelava, alleging he was removable for having been convicted of an aggravated felony pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii). In June 2000, the INS filed an additional charge, alleging Kelava was removable for having engaged in terrorist activity under 8 U.S.C. § 1227(a)(4)(B).²

The immigration judge ("IJ") sustained both allegations and determined that, as a result, Kelava was precluded from seeking a waiver of inadmissibility under former § 212(c) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(c), commonly referred to as a "§ 212(c) waiver."³ On appeal, the BIA failed to address the IJ's determination that Kelava had been convicted of an aggravated felony, and instead affirmed the removal under the terrorist activity charge. The BIA also rejected Kelava's argument that he could nonetheless seek § 212(c) relief. Kelava timely petitioned this court for review.

DISCUSSION

I. Jurisdiction

We begin by noting that, although the IJ found Kelava removable for being convicted of an aggravated felony, we are not deprived of jurisdiction to hear his appeal under 8 U.S.C. § 1252(a)(2)(C), because the BIA chose not to address the aggravated felony conviction in its decision, basing its decision solely on the terrorist activity charge.

We addressed a similar situation in Toro-Romero v. Ashcroft, 382 F.3d 930 (9th Cir.2004). There, the IJ found Toro-Romero removable for having been convicted of a crime involving moral turpitude and for falsely representing himself as a United States citizen. While § 1252(a)(2)(C) would have prohibited this court's jurisdiction over the moral turpitude removal, the BIA affirmed Toro-Romero's removal only on the false representation ground, expressly declining to decide any other issues raised by Toro-Romero on appeal. Id. at 932-33. We explained that our review is limited to the BIA's decision, and the sole ground for the final order of removal was therefore Toro-Romero's false representation. Id. at 934-35. Thus, we concluded we did have jurisdiction over the petition for review. Id. at 935.

Likewise, in this case, although the IJ found Kelava removable on both reviewable and nonreviewable grounds, the BIA affirmed only the terrorist activity charge, expressly declining to reach the other issues presented. Even if the BIA could have found Kelava removable as an aggravated felon, it did not. Accordingly, we have jurisdiction over Kelava's petition, at least with respect to the continued availability of § 212(c) relief for those who engaged in a terrorist activity prior to the elimination of such relief.⁴

II. Availability of § 212(c) relief

The BIA agreed with the IJ that Kelava was removable because he had engaged in terrorist activity following his admission to the United States. Kelava does not contest his removability, but contends that the BIA erred by holding that, as a result, he is ineligible for a § 212(c) waiver.⁵ He relies by analogy on INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001).

In St. Cyr, the Supreme Court addressed the retroactive effect of IIRIRA § 304(b), which repealed INA § 212(c), on aliens who were otherwise eligible for such relief but had pled guilty to an aggravated felony prior to IIRIRA's enactment. The Court first considered whether Congress clearly directed the law to be applied retrospectively, concluding that it had not. 533 U.S. at 316-20, 121 S.Ct. 2271.

The Court then determined whether the application of the statute would result in a retroactive effect. Id. at 320, 121 S.Ct. 2271. The Court noted that a statute 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." Id. at 321, 121 S.Ct. 2271 (internal quotation marks omitted). The Court went on to conclude that the elimination of § 212(c) relief for those who entered into plea agreements prior to the enactment of IIRIRA attached such a new disability to considerations already past. Id. at 321, 121 S.Ct. 2271.

The Court explained that "[t]here can be little doubt that, as a general matter, alien defendants considering whether to enter into a plea agreement are acutely aware of the immigration consequences of their convictions." Id. at 322, 121 S.Ct. 2271. The Court noted that § 212(c) waivers were granted rather frequently leading up to IIRIRA, and that preserving eligibility for such relief was "one of the principal benefits sought by defendants deciding whether to accept a plea offer or instead to proceed to trial." Id. at 323, 121 S.Ct. 2271. The Court thus concluded that § 304(b) was not retroactive, and that therefore § 212(c) relief remained available to aliens whose convictions were obtained through plea agreements and who would have otherwise been eligible for § 212(c) relief at the time of their plea. Id. at 326, 121 S.Ct. 2271.

Relying on St. Cyr, Kelava argues that because he pled guilty in 1980, IIRIRA § 304(b) should not preclude him from seeking relief under § 212(c) either.⁶ What Kelava fails to recognize is that his removability does not hinge on a "conviction." To prove removability, the government need only establish that Kelava "engaged in" a terrorist activity "at any time after admission"; there is no requirement that he be "convicted of" engaging in such actions. 8 U.S.C. § 1227(a)(4)(B).

In St. Cyr, on the other hand, the guilty plea supplied the conviction necessary for removal. The Court thus focused on the considerations present when the alien decided to plea instead of going to trial, noting that competent defense counsel would have advised the alien of the immigration consequences of a plea. 533 U.S. at 322-23 & n. 50, 121 S.Ct. 2271. The Court seemed concerned that the alien had detrimentally relied on the availability of § 212(c) relief in entering the plea, giving rise to "settled expectations" that would be disrupted by the retroactive application of IIRIRA § 304(b). Id. at 323-24, 121 S.Ct. 2271.

In Kelava's case, however, there is no independent significance to his plea — he is undisputedly removable based on his actions in 1978, regardless of his later decision to plead guilty. This does not end the inquiry, but shifts the focus from the guilty plea to the actual...