Rendon v. U.S. Attorney Gen., No. 19-10197

• Decision Date: 26 August 2020
• Docket Number: No. 19-10197
• Citation: 972 F.3d 1252
• Parties: Carlos Eduardo RENDON Petitioner, v. UNITED STATES ATTORNEY GENERAL, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

972 F.3d 1252

Carlos Eduardo RENDON Petitioner,

v.UNITED STATES ATTORNEY GENERAL, Respondent.

No. 19-10197

United States Court of Appeals, Eleventh Circuit.

August 26, 2020

Anthony Richard Dominguez, Prada Urizar, PLLC, Miami, FL, for Petitioner

Sara J. Bayram, Jesse David Lorenz, Assistant Attorney General, U.S. Department of Justice, Civil Division, Office of Immigration Litigation, Washington, DC, Michelle M. Ressler, District Counsel's Office, USICE, Miami, FL, for Respondent

Petition for Review of a Decision of the Board of Immigration Appeals, Agency No. AXXX-XX4-298

Before MARTIN, NEWSOM, and BALDOCK,^* Circuit Judges.

MARTIN, Circuit Judge:

The Government's "Unopposed Motion to Amend the Decision" is GRANTED. The opinion issued in this case on July 14, 2020 is VACATED, and this opinion, amended in accordance with the Government's request, is issued in its stead.

Carlos Rendon began living in the United States as a lawful permanent resident in 1991. Then in 1995, he pled guilty to resisting a police officer with violence. Under immigration law this offense qualifies as a crime involving moral turpitude ("CIMT"). At the time, Mr. Rendon's sentence of 364 days in state custody did not affect his status as a lawful permanent resident. But Congress later changed the law. In 1996, the Antiterrorism and Effective Death Penalty Act ("AEDPA") made him deportable based on his CIMT conviction. And in 1997, the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA") created the "stop-time rule," which meant people convicted of certain crimes were no longer eligible for a discretionary form of relief known as cancellation of removal. Approximately 25 years after his guilty plea, an immigration judge found Mr. Rendon removable and ruled he was no longer eligible for cancellation of removal on account of the stop-time rule. On appeal, Mr. Rendon now argues that it was error to retroactively apply the stop-time rule to his pre-IIRIRA conviction. After careful review, we conclude that Mr. Rendon is right. We reverse the decision of the Board of Immigration Appeals and remand for further proceedings.

I.

Mr. Rendon is a native and citizen of Colombia who was admitted to the United States as a lawful permanent resident on June 5, 1991. On February 15, 1995, Mr. Rendon was arrested and charged under Florida law with one count of burglary with assault; three counts of battery on a law enforcement officer; two counts of battery; and one count of resisting an officer with violence. On July 17, 1995, Mr. Rendon pled guilty to all charges and was sentenced to 364-days imprisonment. On February 3, 1995, Mr. Rendon was arrested for possession of cannabis. He was convicted of that possession offense on January 10, 1996.

On July 19, 2013, the Department of Homeland Security served Mr. Rendon with a notice to appear ("NTA"). The NTA charged him with being removable based on his conviction for a CIMT within five years of his admission, 8 U.S.C. § 1227(a)(2)(A)(i), and his conviction for possessing a controlled substance, 8 U.S.C. § 1227(a)(2)(B)(i). Mr. Rendon conceded removability as to his controlled substance offense and denied removability as to his CIMT conviction.

On January 14, 2016, the immigration judge ("IJ") sustained the charge of removability for Mr. Rendon's CIMT conviction. Mr. Rendon then told the IJ he was seeking cancellation of removal under 8 U.S.C. § 1229b(a). The government opposed Mr. Rendon's request for cancellation of removal, arguing that he was ineligible for this relief because, under the stop-time rule, 8 U.S.C. § 1229b(d)(1), his convictions terminated his accrual of the continuous presence required for him to be eligible for this relief. On September 8, 2016, the IJ issued an oral decision ordering Mr. Rendon removed to Colombia. Mr. Rendon appealed to the Board of Immigration Appeals ("BIA"). He argued that applying the stop-time rule to his 1995 convictions was an impermissible retroactive application of IIRIRA, which did not come into effect until April 1, 1997.

The BIA remanded Mr. Rendon's case to the IJ for a full written decision. On January 29, 2018, the IJ issued a written decision denying Mr. Rendon's application for cancellation of removal. The IJ found Mr. Rendon's conviction for resisting an officer with violence was a CIMT which, under the stop-time rule, prevented him from accruing the seven years of continuous presence required to be eligible for cancellation of removal. Mr. Rendon again appealed to the BIA, challenging only the IJ's application of the stop-time rule to his 1995 conviction. The BIA affirmed the ruling of the IJ and dismissed Mr. Rendon's appeal. Mr. Rendon timely petitioned this Court for review.

II.

We review de novo our jurisdiction to review a petition for review of a BIA decision. See Amaya-Artunduaga v. U.S. Att'y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006) (per curiam). We review de novo legal and constitutional questions. Cole v. U.S. Att'y Gen., 712 F.3d 517, 523 (11th Cir. 2013), abrogated on other grounds by Nasrallah v. Barr, 590 U.S. ––––, 140 S. Ct. 1683, 207 L.Ed.2d 111 (2020).

III.

This case presents a single legal question. That is whether applying the stop-time rule to Mr. Rendon's conviction from before the rule was enacted would be impermissibly retroactive. But before turning to that question, we must first address whether we have jurisdiction to consider Mr. Rendon's petition for review. The government says 8 U.S.C. § 1252(a)(2)(C) strips us of jurisdiction to review Mr. Rendon's petition. Despite the government's argument, we conclude that we do have jurisdiction over the issues raised in Mr. Rendon's petition.

Section 1252(a)(2)(C) strips appellate courts of jurisdiction to review any final order of removal against a noncitizen who is removable for a controlled substance offense. See Lopez v. U.S. Att'y Gen., 914 F.3d 1292, 1297 (11th Cir. 2019) ; Jeune v. U.S. Att'y Gen., 810 F.3d 792, 799 (11th Cir. 2016). Mr. Rendon conceded removability based on his controlled substance conviction, so the government is correct to say that § 1252(a)(2)(C) narrows our review of his removal order.

But the government is wrong to say that § 1252(a)(2)(C) limits our review only to legal questions that implicate constitutional rights. This limitation has not existed since the enactment of the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231. In relevant part, the REAL ID Act amended 8 U.S.C. § 1252 by adding § 1252(a)(2)(D). Real ID Act § 106(a)(1)(A)(iii). That subsection restored the jurisdiction of appellate courts to review "constitutional claims or questions of law," even where review would otherwise be barred by § 1252(a)(2)(C). See id.; Malu v. U.S. Att'y Gen., 764 F.3d 1282, 1289 (11th Cir. 2014) ; Chacon-Botero v. U.S. Att'y Gen., 427 F.3d 954, 957 (11th Cir. 2005) (per curiam).¹ And for Mr. Rendon's case, the question of whether a statute should be given retroactive effect is a question of law. Goldsmith v. City of Atmore, 996 F.2d 1155, 1159 (11th Cir. 1993). For that reason, under § 1252(a)(2)(D) we retain jurisdiction over Mr. Rendon's petition for review. See Malu, 764 F.3d at 1289 (explaining that under § 1252(a)(2)(D), this Court retains jurisdiction to review "the application of an undisputed fact pattern to a legal standard" in cases governed by § 1252(a)(2)(C) (quotation marks omitted)).

IV.

Mr. Rendon challenges the BIA's holding that the stop-time rule makes him ineligible for cancellation of removal. He argues that because he pled guilty before the stop-time rule was enacted, applying the stop-time rule retroactively to his conviction is impermissible. To begin, we find no clear congressional statement that the stop-time rule should be applied retroactively to pre-IIRIRA plea agreements like Mr. Rendon's. And we hold that in the circumstances presented here—specifically, where Mr. Rendon's pre-IIRIRA plea agreement did not render him immediately deportable—applying the stop-time rule to Mr. Rendon's 1995 conviction would have an impermissibly retroactive effect. For these reasons, we conclude that the BIA erred by applying the stop-time rule to Mr. Rendon's pre-IIRIRA conviction.

A.

We find it helpful at the outset to briefly review the development of the law governing cancellation of removal. Permanent residents who, like Mr. Rendon, are found to be removable may apply for and be eligible to receive cancellation of their removal, which allows them to remain in the United States despite being removable. See 8 U.S.C. § 1229b(a). Congress created cancellation of removal in IIRIRA, replacing similar forms of relief known as waiver of deportation and suspension of deportation. See Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L. No. 104-208, § 304(a)(3), 110 Stat. 3009; Innab v. Reno, 204 F.3d 1318, 1319 & n.1 (11th Cir. 2000). But in substance, cancellation of removal is little more than "a new name for essentially unchanged discretionary relief from immigration sanctions." Jeudy v. Holder, 768 F.3d 595, 604 (7th Cir. 2014). And this type of discretionary relief has "been a fixture of immigration law in different forms since 1917." Id. (citing INS v. St. Cyr, 533 U.S. 289, 293–96, 121 S. Ct. 2271, 2275–77, 150 L.Ed.2d 347 (2001) ); see also 143 Cong. Rec. S12,266 (daily ed. Nov. 9, 1997) (explanatory memorandum submitted by Sens. Mack, Graham, Abraham, Kennedy, and Durbin) (noting that the standards for cancellation of removal "generally echo the standards for suspension of deportation that had been in effect until IIRIRA").

A permanent resident can qualify for cancellation of removal by showing (1) that he has been lawfully admitted to the United States for permanent residence for at least five years; (2) that he has resided in the United States continuously for seven years after having been admitted in any status; and (3) that he has not been convicted of an aggravated felony. 8 U.S.C. § 1229b(a)....