Cristian Guzman v. Attorney General United States

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 13-3196

_____________

CRISTIAN PANIAGUA GUZMAN,

Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA

Respondent

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No.: A044-875-630)

Immigration Judge: Honorable Dorothy A. Harbeck

Argued on September 8, 2014

BEFORE: RENDELL, GREENAWAY and KRAUSE,

Circuit Judges

(Opinion filed: November 3, 2014)

David G. Katona, Esquire (Argued)

Katona & Mir, LLP

49 West 37th Street, 7th Floor

New York, NY 10018

Counsel for Petitioner

Eric H. Holder, Jr.

Attorney General of the United States

Stuart F. Delery, Esquire

Acting Assistant Attorney General

Civil Division

Jennifer P. Levings, Esquire

Senior Litigation Counsel

Tim Ramnitz, Esquire (Argued)

Trial Attorney

Thomas W. Hussey, Esquire

Trial Attorney

Jason Wisecup, Esquire

Trial Attorney

Office of Immigration Litigation, Civil Division

United States Department of Justice

Ben Franklin Station

P. O. Box 878

Washington, DC 20044

Counsel for Respondent

2

OPINION

RENDELL, Circuit Judge:

Petitioner Cristian Guzman appeals from a ruling by

the Board of Immigration Appeals (“BIA”) that the so-called

“stop-time rule,” as enacted by the Illegal Immigration

Reform and Immigrant Responsibility Act of 1996, Pub. L.

No. 104-208, div. C., 110 Stat. 3009 (1996) (“IIRIRA”)

(effective April 1, 1997), was not impermissibly retroactive

as applied to his 1995 criminal offense. The BIA rejected

Petitioner’s argument that the application of the stop-time

rule poses a “new disability” on his past conduct. For the

reasons set forth below, we will affirm.

I. Background

Petitioner is a 38-year-old citizen of the Dominican

Republic. He was admitted to the United States as a lawful

permanent resident on October 8, 1994 and has continually

resided here since that time. A little more than a year after

his admission, New York City police arrested Petitioner and

charged him with Criminal Possession of a Controlled

Substance, in violation of New York law. Petitioner pled

guilty to a lesser possession charge on December 19, 1995,

and he was sentenced to three years’ probation. In 2005, New

York City police again arrested and charged Petitioner with

Criminal Possession of a Controlled Substance in violation of

3

New York law. Petitioner pled guilty and, on December 1,

2005, was sentenced to time served.1

The Department of Homeland Security (“DHS”) took

custody of Petitioner and served him with a Notice to Appear

(“NTA”) for removal proceedings on March 6, 2012, based

on his 2005 conviction pursuant to Immigration and

Nationality Act (“INA”) § 237(a)(2)(B)(i), which authorized

removal of:

Any alien who at any time after

admission has been convicted of a

violation of (or a conspiracy or

attempt to violate) any law or

regulation of a State, the United

States, or a foreign country

relating to a controlled substance

(as defined in section 802 of Title

21), other than a single offense

involving possession for one's

own use of 30 grams or less of

marijuana, is deportable.

8 U.S.C. § 1227(a)(2)(B)(i). Notably, although IIRIRA made

various changes to the immigration laws, the same basis for

removal appeared in pre-IIRIRA law as well, which would

likewise have rendered Petitioner removable for his 1995

offense. See 8 U.S.C. § 1251(a)(2)(B)(i) (1994) (repealed

1996) (using the term “entry” in place of “admission”).

1

The Government notes several other of Petitioner’s arrests

between 1995 and 2005, but we need not recount them here

as they do not bear on this case.

4

However, the removal proceedings in 2012 were based on his

2005, not his 1995, conviction.

A. Statutory Framework

Prior to the passage of IIRIRA, an alien in removal

proceedings could apply for a discretionary waiver of

deportation, known as a “212(c) waiver” if he could show (1)

seven years continuous presence, and (2) that he had not been

convicted of one or more aggravated felonies for which a

term of imprisonment of at least five years had been imposed.

INA § 212(c), 8 U.S.C. § 1182(c) (1994) (repealed 1996);

Perez v. Elwood, 294 F.3d 552, 556 (3d Cir. 2002). IIRIRA

repealed this provision and replaced it with a similar

procedure known as cancellation of removal. To be eligible

for cancellation of removal, a legal permanent resident alien

must (1) be “lawfully admitted for permanent residence for

not less than 5 years,” (2) have “resided in the United States

continuously for 7 years after having been admitted in any

status,” and (3) “not [have] been convicted of an aggravated

felony.” 8 U.S.C. § 1229b(a).

However, IIRIRA also mandated a new scheme for

calculating an alien’s period of continuous residence,

whereby “any period of continuous residence or continuous

physical presence in the United States shall be deemed to

end . . . when the alien has committed an offense referred to

in section 1182(a)(2) of this title that renders the

alien . . . removable from the United States.” 8 U.S.C. §

1229b(d)(1)(B). This is commonly known as the “stop-time”

rule. Briseno-Flores v. Att’y Gen. of U.S., 492 F.3d 226, 227

(3d Cir. 2007).

5

B. Petitioner’s Removal Proceedings and the

Immigration Judge’s Decision

Petitioner appeared before an immigration judge

(“IJ”), conceded removability as charged, and submitted an

application for cancellation of removal. The Government

argued that he was ineligible for this form of relief due to the

stop-time rule, which stopped his accrual of the requisite

seven years’ presence required for cancellation of removal

upon the commission of his drug offense in 1995. Petitioner

argued that application of the stop-time rule of IIRIRA to

render him ineligible for cancellation of removal due to his

1995 offense would have an impermissibly retroactive effect.

While he acknowledged that the 1995 offense rendered him

immediately deportable with no opportunity for relief because

he had been in the country for only one year at the time,

Petitioner nonetheless argued that he could have tried to delay

his deportation proceedings until he accrued the requisite

seven years’ lawful continuous presence to become eligible

for discretionary waiver under former INA § 212(c).

Petitioner argued that this strategy was available to aliens

prior to the passage of IIRIRA, and the fact that this

opportunity was no longer available to him constituted a “new

disability,” which, under Landgraf v. USI Film Products, 511

U.S. 244, 269 (1994), would make its application to him

impermissibly retroactive. Petitioner also urged that

retroactive application of the stop-time rule was arbitrary and

capricious in that it punished lawful permanent residents who

committed crimes within seven years of their admission,

whereas residents who had accrued seven years’ presence

before committing qualifying offenses were not subject to the

6

rule. Additionally, Petitioner asked to be able to terminate his

removal proceedings in order to pursue naturalization.2

The IJ held a hearing on February 22, 2013, at the

conclusion of which she rendered an oral decision denying

Petitioner’s motion to continue or terminate his proceedings

and finding Petitioner ineligible for cancellation of removal

because his 1995 offense stopped his accrual of continuous

presence pursuant to the stop-time rule. The IJ found that the

stop-time rule itself was not arbitrary and capricious under

Judulang v. Holder, 132 S. Ct. 476, 490 (2011). The IJ

denied Petitioner’s motion to terminate proceedings to pursue

a naturalization application for lack of an affirmative

communication from DHS regarding Petitioner’s prima facie

eligibility for naturalization, as required by the BIA’s

decision in In re Acosta Hidalgo, 24 I. & N. Dec. 103 (BIA

2007).

2

In addition, Petitioner requested a further continuance to

pursue post-conviction relief pursuant to Padilla v. Kentucky,

559 U.S. 356 (2010) (holding that the Sixth Amendment

requires defense counsel to advise their clients whether a

guilty plea carries a risk of deportation). The IJ denied

Petitioner’s request to further continue proceedings to pursue

post-conviction relief under Padilla pursuant to Chaidez v.

United States, 133 S. Ct. 1103, 1113 (2013), which held that

“defendants whose convictions became final prior to Padilla

. . . cannot benefit from its holding.” As this is not an issue on

appeal, we do not address it.

7

A. Petitioner’s Proceedings Before the BIA and the

BIA’s Decision

Petitioner raised the same arguments before the BIA,

and also urged that the IJ erred in not permitting him to

concurrently apply for both a 212(c) waiver and cancellation

of removal. The BIA affirmed the IJ’s decision. It held that

Petitioner’s 1995 controlled substance offense stopped his

accrual of continuous presence short of the requisite seven

years for purposes of cancellation of removal. The BIA

explained that the stop-time rule imposed no “new disability”

on Petitioner because the 1995 offense rendered him

immediately deportable with no possibility of relief had he

been placed in deportation proceedings at that time, prior to

the passage of IIRIRA, because he lacked the requisite seven

years’ continuous presence for a 212(c) waiver. The BIA

reasoned that “[a]t the time of [Petitioner’s] conviction in

1995, he was immediately amenable to deportation from this

country under pre-IIRIRA law.” A.R. 4. Petitioner’s options

pre-and post-IIRIRA were therefore no different, and the

application of IIRIRA’s stop-time rule to him was not

impermissibly retroactive.

The BIA also rejected Petitioner’s contention that he

should have been permitted to simultaneously apply for a

212(c) waiver and cancellation of removal. It observed that 8

U.S.C. § 1229b(c)(6) explicitly precludes an alien from

applying for both 212(c) waiver and cancellation of removal

and that, even if he could obtain a 212(c) waiver

notwithstanding his 1995 conviction, “the conviction would

still be deemed to have ended [Petitioner’s] period of

continuous residence for purposes of cancellation of removal

because the granting of 212(c) relief does not serve to

8

universally pardon, expunge, or eliminate all negative

immigration consequences stemming from an alien’s criminal

conviction.” Id.

In addition, the BIA ruled that the IJ properly declined

to terminate Petitioner’s removal proceedings under 8 C.F.R

§ 1239.2(f) because he failed to attempt to obtain an

affirmative communication from the DHS addressing his

prima facie eligibility for naturalization.

B. Arguments on Appeal

On appeal, Petitioner repeats the same arguments that

the BIA rejected. Relying on I.N.S. v. St. Cyr, 533 U.S. 289

(2001), he argues that an alien making the decision to forego

his right to trial and plead guilty, like the petitioner in St. Cyr,

does so assuming the state of the law of the time: when

Petitioner pled guilty to a deportable offense in 1995, he

expected to retain the possibility of obtaining a 212(c) waiver

from deportation in the future, namely, after being in the

country for an additional six years. He urges that applying

the stop-time rule of IIRIRA to pre-IIRIRA conduct

forecloses that possibility and is therefore impermissibly

retroactive. Petitioner urges that, but for the stop-time rule,

he would have accrued the seven years’ requisite presence

needed for either type of removal—pre- and post-IIRIRA—

prior to his 2005 offense. Accordingly, he contends, the stop-

time rule should not apply to him.

In the alternative, Petitioner argues that the BIA

wrongly affirmed the IJ’s decision not to terminate removal

proceedings to allow him to make a prima facie case of

eligibility for naturalization pursuant to 8 C.F.R. § 1239.2(f),

9

based on the fact that he did not have an affirmative

communication from the DHS indicating such eligibility.3 As

the regulation at issue states that an alien must make a prima

facie case of eligibility for naturalization, the BIA’s decision

in In re Acosta Hidalgo, which interpreted this regulation to

require a communication from the DHS establishing such

eligibility, does not comport with the text of the regulation

and deprives Petitioner of the opportunity to do what the

regulation says—i.e., establish his prima facie eligibility to

the court.

The Government argues that no genuine issue of

retroactivity is presented here, as Petitioner’s removal

3

Section 1239.2(f) provides:

An immigration judge may

terminate removal proceedings to

permit the alien to proceed to a

final hearing on a pending

application or petition for

naturalization when the alien has

established prima facie eligibility

for naturalization and the matter

involves exceptionally appealing

or humanitarian factors; in every

other case, the removal hearing

shall be completed as promptly as

possible notwithstanding the

pendency of an application for

naturalization during any state of

the proceedings.

8 C.F.R. § 1239.2(f).

10

proceedings are predicated on his 2005 offense, which post-

dates IIRIRA. Since cancellation of removal under IIRIRA

did not exist at the time of Petitioner’s 1995 conviction, he

had no right to it then, and since Petitioner does not meet the

requirements for cancellation of removal, he has no right to it

now. In the alternative, the Government argues that we

should follow the Fifth Circuit’s reasoning in Heaven v.

Gonzales, 473 F.3d 167 (5th Cir. 2006), and hold that, even if

the stop-time rule is being applied retroactively here, such

application is not impermissibly retroactive. Petitioner’s

1995 controlled substance offense rendered him immediately

deportable without eligibility for relief under 212(c) and, as

such, application of the stop-time rule created no “new

disability” because “[d]eportation is the consequence he

receives upon retroactive application of the stop-time rule just

as it is the consequence he would have received immediately

[in 1995] following his criminal conduct.” Brief for

Respondent at 23 (quoting Martinez v. I.N.S., 523 F.3d 365,

373-74 (2d Cir. 2008)). The Government adds: “Congress

certainly has never invested [Petitioner] with a substantive

right to purposefully delay his proceedings or created a settled

expectation of benefiting from delays in the administrative

process.” Brief for Respondent at 24 (citing St. Cyr, 533 U.S.

at 321-22).4

4

The Government also argued that this court lacks the

jurisdiction to review a final order of removal under the INA,

while conceding that we retain jurisdiction to review

questions of law and constitutional claims pursuant to 8

U.S.C. § 1252(a)(2)(D). Petitioner has clearly raised a

question of law, the retroactive application of a statute, which

affords jurisdiction here.

11

STANDARD OF REVIEW

We review rulings of the BIA under INA § 242, 8

U.S.C. § 1252(a)(2)(D). Our review is limited to

constitutional claims and questions of law. Id.; see also

Paredes v. Att’y Gen. of the U.S., 528 F.3d 196, 198 (3d Cir.

2008). Where “the BIA adopts and affirms the decision of

the IJ, as well as provides its own reasoning,” we review both

the IJ’s and BIA’s decisions. Hashimi v. Att’y Gen. of the

U.S., 531 F.3d 256, 259 (3d Cir. 2008). We review questions

of law de novo. Silva-Rengifo v. Att’y Gen. of the U.S., 473

F.3d 58, 63 (3d Cir. 2007). However, we will defer to the

BIA’s reasonable interpretations of the statutes it is charged

with administering. I.N.S. v. Aguirre-Aguirre, 526 U.S. 415,

424 (1999).

DISCUSSION

Petitioner has not previously disputed, nor does he

now, that both his 1995 and 2005 offenses rendered him

removable when committed. Rather, he disputes the

application of a provision of IIRIRA, the “stop-time rule,”

which precludes aliens who have committed deportable

offenses from being spared deportation if they have accrued

seven years of continuous presence in the United States, as

that “ability” existed under pre-IIRIRA law. The crux of

Petitioner’s argument—as it was before the IJ and the BIA—

is that the application of the stop-time rule to his 1995 offense

to disqualify him from cancellation of removal relief is

impermissibly retroactive because it imposes a “new

disability” on him for conduct that pre-dates IIRIRA.

Specifically, he has been deprived of the opportunity to delay

deportation proceedings while accumulating the continuous

seven years’ presence required for discretionary relief from

12

removal, an opportunity he had when he pled to his 1995

offense. Applying the stop-time rule of IIRIRA, enacted in

1996, disqualified him from any such relief. As we have

never written precedentially on the issue of whether the stop-

time rule should apply retroactively, we do so here.

A. Statutory Framework Prior and Subsequent to

IIRIRA

As noted above, under the immigration laws in effect

in November 1995, when Petitioner committed his first drug

offense, legal permanent residents who were subject to

deportation, but who had resided in the United States for

seven consecutive years, were eligible to apply for a

discretionary waiver of deportation under INA § 212(c). See

8 U.S.C. § 1182(c) (repealed 1996).5 “The decision of

whether to award section 212(c) relief involved only a

balancing of the adverse factors evidencing an alien’s

undesirability as a permanent resident with the social and

humane considerations presented in his behalf to determine

whether the granting of [a section 212(c) waiver] appear[ed]

in the best interests of this country.” Martinez, 523 F.3d at

368 (internal quotation marks omitted) (alterations in

original) (quoting Kai Tung Chan v. Gantner, 464 F.3d 289,

295 (2d. Cir. 2006). Notably, although the decision to grant a

212(c) waiver was a discretionary one, a “substantial

5

8 U.S.C. § 1182(c) (repealed 1996) provides: “Aliens

lawfully admitted for permanent residence who temporarily

proceeded abroad voluntarily and not under an order of

deportation, and who are returning to a lawful unrelinquished

domicile of seven consecutive years, may be admitted in the

discretion of the Attorney General . . . .”

13

percentage” of applications were granted. St. Cyr, 533 U.S. at

296 (noting that between 1989 and 1995, over 10,000 section

212(c) waiver applications were granted).

A lawful permanent resident in deportation

proceedings could seek a discretionary waiver of deportation

under former INA § 212(c), if he could show (1) seven

consecutive years of lawful continuous physical presence and

(2) that he had not been convicted of one or more aggravated

felonies for which a term of imprisonment of at least five

years had been imposed. Perez, 294 F.3d at 556. Aliens

accrued time toward continuous residence and physical

presence requirements until they applied for relief. Martinez,

523 F.3d at 368. Often, an alien would manage to delay his

removal process in order to accumulate seven years’

presence, which was one of the reasons Congress passed

IIRIRA. Id. This delay strategy was the exact abuse of the

system Congress intended to correct in IIRIRA by eliminating

section 212(c), replacing it with cancellation of removal, and

enacting the stop-time rule. Arca-Pineda v. Att’y Gen. of the

U.S., 527 F.3d 101, 106 (3d Cir. 2008) (citing H.R. Rep. No.

104–469(I) (1996)); In re Mendoza-Sandino, 22 I. & N. Dec.

1236, 1243 (BIA 2000) (same).

IIRIRA, which was enacted on September 30, 1996

and went into effect on April 1, 1997, eliminated the 212(c)

waiver, and replaced it with cancellation of removal,

INA § 240A(a). Under INA § 240A(a), a legal permanent

resident must satisfy three conditions to qualify for

cancellation of removal relief: the alien (1) must have been

“lawfully admitted for permanent residence for not less than 5

years,” (2) must have “resided in the United States

continuously for 7 years after having been admitted in any

14

status,” and (3) must “not [have] been convicted of any

aggravated felony.” 8 U.S.C. § 1229b(a). In addition to

instituting this new cancellation of removal scheme, IIRIRA

established a new stop-time rule in INA § 240A(d)(1) for

calculating an alien’s period of continuous residence or

physical presence. The accrual of continuous presence for

purposes of the seven years terminates when the alien has

committed an offense “that renders the alien inadmissible to

the United States under section 1182(a)(2) of this title or

removable from the United States under section 1227(a)(2) or

1227(a)(4) of this title, whichever is earliest.”

8 U.S.C. § 1229b(d)(1)(B). Once the period of continuous

residence is terminated, it is not restarted by subsequent

events. Briseno-Flores, 492 F.3d at 230.

B. Retroactive Application of the Stop-Time Rule,

INA § 240A(d)

In Landgraf v. USI Film Products, the Supreme Court

confirmed the longstanding presumption against retroactive

legislation, emphasizing that “[e]lementary considerations of

fairness dictate that individuals should have an opportunity to

know what the law is and to conform their conduct

accordingly; settled expectations should not be lightly

disrupted.” 511 U.S. at 265. At the same time, the Court

acknowledged that Congress has the power, within

constitutional limits, to enact laws with retroactive effect.

The Landgraf court articulated a two-step test for determining

when a statute could be applied retroactively. Under the first

step, the court must ascertain “whether Congress has

expressly prescribed the statute’s proper reach.” Id. at 280.

If the answer is yes, the inquiry ends there. If, however, “the

statute contains no such express command,” id., the court

15

must move to the second step and decide whether the

application of the statute would have an impermissibly

“retroactive effect,” that is, the court must assess “whether the

new provision attaches new legal consequences to events

completed before its enactment.” Id. at 269-70. A statute is

impermissibly retroactive if 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 269 (internal quotation marks omitted) (emphasis added).

Congress was silent with respect to the retroactive

application of the stop-time rule, while it expressly mandated

the retroactive application of certain other provisions of

IIRIRA. For example, in the transitional rules, Congress

expressly mandated that the stop-time rule applied

retroactively to applications for suspension of deportation that

were pending at the time of IIRIRA’s enactment. Briseno-

Flores, 492 F.3d at 230. It also expressly mandated the

retroactive application of the expanded definition of

aggravated felony. See IIRIRA § 321(b), 110 Stat. at 3009-

628 (“Notwithstanding any other provision of law (including

any effective date), the term [“aggravated felony”] applies

regardless of whether the conviction was entered before, on,

or after [September 30, 1996].”); see also St. Cyr, 533 U.S. at

318-19. In contrast, the text of § 1229b(d)(1) says nothing

whatsoever about retroactive application. Therefore, we have

no trouble concluding that it is ambiguous, and an analysis of

whether the application of the stop-time rule is impermissibly

retroactive under step two of Landgraf is appropriate here.

We disagree with the Government that this case

presents no issue of retroactivity at all. Our focus is not

16

merely on the date of the offense that served as the basis for

removal and the law in effect at that time. Rather, our focus

is broader. As the Court reasoned in St. Cyr, the fact “that

deportation is not punishment for past crimes does not mean

that we cannot consider an alien’s reasonable reliance on the

continued availability of discretionary relief from deportation

when deciding whether the elimination of such relief has

retroactive effect.” Id. at 324. The application of a post-

IIRIRA provision, namely, the stop-time rule, to alter the

availability of certain relief based on conduct that took place

pre-IIRIRA clearly has a retroactive effect. The issue is

whether such effect is impermissibly retroactive.

This brings us to step two of Landgraf. As noted

above, the stop-time rule is impermissibly retroactive if it

“attaches new legal consequences” to events completed

before the enactment of IIRIRA, that is, if 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.” 511 U.S. at 269-70 (internal quotation marks omitted)

(quoting Soc’y for Propagation of the Gospel v. Wheeler, 22

F. Cas. 756, 767 (No. 13, 156) (C.C.D.N.H. 1814) (Story, J.)).

We note that while the inquiry may be broad, the application

under step two is very fact-specific. In St. Cyr, the Supreme

Court held impermissible the retroactive application of the

stop-time rule to an alien who had accrued seven years

presence prior to IIRIRA but whose removal proceedings did

not commence until after the passage of IIRIRA because his

right to a 212(c) waiver had vested before the passage of the

new law. 533 U.S. at 326. St. Cyr had pled guilty to a

removable offense, foregoing his right to a trial, under the

assumption that the consequence of doing so at the time

17

would not disqualify him from 212(c) relief. Id. at 321-22.

IIRIRA replaced 212(c) waiver with cancellation of removal

and disqualified St. Cyr from removal relief based on the type

of offense he had committed. The Court held that the

application of IIRIRA to St. Cyr created a new disability,

defining it as the “elimination of any possibility of § 212(c)

relief for people who entered into plea agreements with the

expectation that they would be eligible for such relief.” Id. at

321. The Court reasoned that the quid pro quo nature of plea

agreements and the attendant waiver of some constitutional

rights by a defendant, particularly when immigration status is

at stake, dictates that attaching new legal consequences or a

new disability—namely, elimination of the availability of

212(c) relief—would amount to an impermissible retroactive

application. Id. Accordingly, the Court held that the section

212(c) waiver remains available for aliens “whose

convictions were obtained through plea agreements and who,

notwithstanding those convictions, would have been eligible

for § 212(c) relief at the time of their plea under the law then

in effect.” Id. at 326.

Similarly, in Sinotes-Cruz v. Gonzales, the Court of

Appeals for the Ninth Circuit held that the stop-time rule of

IIRIRA was impermissibly retroactive when applied to stop

an alien’s accrual of seven years’ continuous residence when

based on “a conviction, obtained pursuant to a guilty plea, for

a crime that did not render an alien deportable at the time of

the plea.” 468 F.3d 1190, 1201 (9th Cir. 2006). In 1993

Sinotes-Cruz pled guilty to two counts of attempted

aggravated assault. Id. at 1202. The court found it

“undisputed that at the time of his plea, his conviction did not

render him deportable.” Id. (citing 8 U.S.C. §

1251(a)(2)(A)(i) (1993)). IIRIRA reclassified his crime,

18

making him deportable for having been convicted of a crime

involving moral turpitude, committed within five years of

admission, for which a sentence of a year or longer could

have been imposed. Id. Similar to Petitioner’s case, DHS

commenced removal proceedings against Sinotes-Cruz based

on a deportable offense he committed after IIRIRA’s passage.

Id. at 1197. Although Sinotes-Cruz had accrued the requisite

seven years continuous presence before IIRIRA’s passage,

the Government argued that his time should be stopped on the

date of his pre-IIRIRA conviction, which IIRIRA reclassified

as a crime of moral turpitude. The court held that the

retroactive application of the stop-time rule to Sinotes-Cruz’s

pre-IIRIRA conviction was impermissible under the second

step of the Landgraf analysis, reasoning that he had, in

pleading guilty, given up valuable rights, including the right

to go to trial, “in the justifiable expectation that [his] plea[]

would have no effect on [his] immigration status.” Id. at

1202.

St. Cyr and Sinotes-Cruz are different from the instant

case in two important respects. First, while IIRIRA

reclassified the crimes that the petitioners in St. Cyr and

Sinotes-Cruz committed so as to produce harsher effects, no

such reclassification took place here. Petitioner’s 1995

offense rendered him deportable and ineligible for 212(c)

relief, because he had not accrued seven years’ continuous

residence. IIRIRA did not reclassify this offense or change it

in any way. A controlled substance offense rendered an alien

deportable in 1995, just as it would today, and eligible for

removal relief provided the alien has accrued seven years

continuous residence, just as it would today.

19

Second, in both St. Cyr and Sinotes-Cruz, the

petitioners had accrued the requisite seven years’ continuous

presence to be eligible for 212(c) relief prior to the passage of

IIRIRA. They pled guilty to a non-qualifying crime under the

reasonable assumption that doing so would not affect their

immigration status. Their eligibility for 212(c) relief had

vested prior to the time that IIRIRA changed the rules,

replacing 212(c) with the stricter cancellation of removal

procedure. The same is not true in Petitioner’s case. At the

time of his 1995 conviction, Petitioner had been residing in

the United States for only a year. When IIRIRA was passed

in 1996, taking effect in 1997, Petitioner had not come close

to accruing the seven years continuous presence required for

212(c) relief. He had no vested right because he was

ineligible for any form of removal relief when IIRIRA was

passed, and is ineligible for any form of removal relief today

because the stop-time rule disqualifies him. There have been

no “new legal consequences” imposed on Petitioner as a

result of the application of the rule. St. Cyr, 533 U.S. at 321.

Petitioner’s situation is much more akin to that of the

petitioners in Martinez and Heaven. In Martinez, the Court of

Appeals for the Second Circuit held that the stop-time rule

did not have an impermissible retroactive effect when applied

to an alien’s deportable drug offense, committed prior to the

passage of IIRIRA, to prevent him from obtaining

cancellation of removal for a deportable crime committed

after the passage of IIRIRA. 523 F.3d at 377. The court

reasoned that if the alien had been “captured and successfully

prosecuted [for his pre-IIRIRA crime] . . . and the INS had

obtained a deportation order promptly after he committed the

offense, he could have been deported without the possibility

20

of relief because he would not, at the time, have accrued the

seven years required by the repealed INA § 212(c).” Id. at

374. Essentially, “IIRIRA, as applied to petitioner here, did

not change the consequence of [his] criminal act.” Id. at 375.

Similarly in Heaven the Court of Appeals for the Fifth Circuit

applied the stop-time rule retroactively to an alien who had

committed a deportable offense pre-IIRIRA to disqualify him

from cancellation of removal, reasoning also that IIRIRA had

caused no “new legal consequences to events completed

before its enactment.” 473 F.3d at 173.

Petitioner seizes on Vartelas v. Holder as dictating the

outcome in his favor, and specifically its use of the term “new

disability.” 132 S. Ct. 1479, 1482 (2012). But Vartelas does

not help Petitioner. In Vartelas, the Supreme Court refused to

retroactively apply an IIRIRA provision preventing lawful

permanent resident aliens from departing, even briefly, from

the United States without having to seek admission upon

return. Prior to IIRIRA, lawful permanent residents with a

felony conviction were able to briefly travel abroad and return

to the United States without applying for readmission. Id. at

1483. Lawful permanent residents were not regarded as

making an “entry” upon their return “from innocent, casual,

and brief excursion[s] . . . outside this country’s borders.” Id.

at 1484 (internal quotation marks omitted) (alterations in

original) (quoting Rosenberg v. Fleuti, 374 U.S. 449, 461-62

(1963)). IIRIRA § 1101(a)(13)(C)(v) changed this rule.

Under the new law, lawful permanent residents returning

from any trip abroad would be regarded as seeking

“admission” if they had committed an offense identified in

section 1182(a)(2), which included “a crime involving moral

turpitude … or conspiracy to commit such a crime.” Id. at

1485 (citing § 1182(a)(2)(A)(i)). It essentially allowed DHS

21

to refuse entry to legal permanent resident aliens who had

committed certain crimes if they traveled abroad, even

though, prior to IIRIRA, those aliens were not subject to

admission procedures upon their return to the United States.

Id. at 1485. Vartelas pled guilty to a felony in 1994, and in

the years after his conviction and after IIRIRA’s passage, he

regularly traveled to Greece to visit his aging parents. Id. at

1485. In 2003, when he returned from a week-long trip to

Greece, he was classified as an alien seeking “admission”

based on his 1994 conviction. Id. He was placed in removal

proceedings and sought relief on the basis that “IIRIRA’s new

‘admission’ provision . . . did not reach back to deprive him

of lawful resident status based on his pre-IIRIRA conviction.”

Id. at 1486. The Supreme Court held that application of the

new rule to Vartelas was effectively a ban on travel outside

the United States. The Court found that this was most

certainly a “new disability” in that, due to past events,

namely, his pre-IIRIRA guilty plea and conviction, permanent

residents situated as Vartelas would lose “the ability to travel

abroad” and “face potential banishment.” Id. at 1487-88.

The law in effect when Vartelas made the decision to plead

guilty imposed no such restriction. The Court characterized

this change as “a harsh penalty, made all the more devastating

if it means enduring separation from close family members.”

Id. at 1488 (footnote omitted).

Petitioner faces no such harsh penalty. When pleading

guilty, Vartelas did so under the correct assumption that the

law at the time of his plea did not preclude him from short

travels outside of the United States. IIRIRA imposed a new

disability on him by taking from him the ability to travel to

visit his aging parents, something he was clearly able to do

without any adverse consequences when he pled guilty.

22

Petitioner, on the other hand, had no right or ability to seek a

waiver from deportation when he pled guilty in 1995. The

instant he committed his offense before meeting the seven-

year residency requirement for suspension of deportation, he

was deportable. See INA § 237(a)(2)(B)(i), 8 U.S.C. §

1227(a)(2)(B)(i). Petitioner asks us to characterize his

“disability” as losing the opportunity to delay his deportation

proceedings until he reached the seven years’ requisite

presence if, hypothetically, such proceedings had been

brought against him at the time. He focuses on the word

“disability” as if he should have the ability to deliberately

delay proceedings or attempt to evade the authorities, hoping

to accrue seven years without deportation. But “disability”

must mean that one has a present ability which is then lost.

Petitioner had no ability under prior law, only a hope and

speculation. Unlike the petitioner in Vartelas, who accepted a

guilty plea relying on the existing law that did not bar his

right to travel abroad, Petitioner’s rights were no different

when he accepted his plea than they are today. Neither the

opportunity to delay deportation proceedings nor the chance

to evade the authorities, with the goal of avoiding deportation

in order to become eligible for relief, creates a new disability.

Accordingly, the decision to apply the stop-time rule to

Petitioner is not impermissibly retroactive.

C. Petitioner’s Remaining Arguments

1. Whether the BIA’s Decision was Arbitrary and

Capricious

Relying on Judulang, Petitioner argues that retroactive

application of the stop-time rule is arbitrary and capricious

and thus, not entitled to any deference. 132 S. Ct. at 490

23

(“We must reverse and agency policy when we cannot discern

a reason for it.”). In Judulang, the Supreme Court considered

the eligibility of aliens charged with deportability to seek a

waiver under section 212(c), although the statute limited this

relief to aliens charged with inadmissibility. The BIA had

extended relief under section 212(c) to aliens charged with

deportability, but only if the ground of deportation was

comparable to a ground of inadmissibility. Id. at 480-81. In

applying this to aliens who were deportable, the BIA based its

grant of relief on whether the ground for deportation charged

by DHS had a close analogue in the statute’s list of exclusion

grounds. Id. at 481-82. The Court found this approach

arbitrary and capricious because it “hing[ed] a deportable

alien’s eligibility for discretionary relief on the chance

correspondence between statutory categories—a matter

irrelevant to the alien’s fitness to reside in this country.” Id.

at 484.

Petitioner argues that Judulang limits the BIA to

interpreting a statute in a way that is rational, non-arbitrary

and tied to the purposes of the immigration laws. He urges

that the BIA’s decision to apply the stop-time rule to him

conflicts with the purposes of the immigration laws because it

treats legal permanent resident aliens who commit deportable

crimes differently, depending on when they committed the

crime. Those aliens who commit deportable crimes after

seven years’ requisite presence are allowed to apply for

waiver from deportation, while those who commit a crime

before such requisite presence are not. Petitioner’s argument

is markedly different from Judulang in one important respect:

his is an objection to the stop-time rule itself, as enacted by

Congress, not the BIA’s application of it, and “Congress has

plenary power to pass legislation concerning the admission

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and exclusion of aliens.” Acosta v. Ashcroft, 341 F.3d 218,

226 (3d Cir. 2003). Congress may have rationally concluded

that an alien who has resided in the United States for a longer

period of time should have a greater right to stay in the

country than one who has resided here for a shorter period of

time. Because the stop-time rule is one that Congress, and

not the BIA, created, the argument that the BIA acted

arbitrarily in applying it is misplaced.

2. Whether the BIA Erred in Finding that Petitioner

Could Not Apply for 212(c)Waiver and Cancellation of

Removal Concurrently

Petitioner argues that the BIA and IJ should have

allowed him to apply for relief under section 212(c) as well as

cancellation of removal concurrently. He argues that

although section 1229b(c)(6) provides: “[a]n alien whose

removal has previously been canceled under [cancellation of

removal] . . . or who has been granted relief under section

[212(c)]” shall be “ineligible for relief,” 8 U.S.C. §

1229b(c)(6), this provision does not make clear whether

aliens may apply concurrently for both, based on its use of the

word “previously.” Additionally, he points to Munoz-Yepez

v. Gonzales, 465 F.3d 347 (8th Cir. 2006) (denying

concurrent applications based on Congressional intent) and

Garcia-Jimenez v. Gonzales, 488 F.3d 1082 (9th Cir. 2007)

(denying concurrent applications based on statutory

interpretation) to demonstrate that the meaning of this

provision is unclear, and urges this court to resolve this issue.

The BIA believed that there was no ambiguity in 8 U.S.C.

1229b(c)(6), in that it clearly precluded an alien from

applying for both, but noted in addition that even if

Petitioner’s 1995 conviction were waived under section

25

212(c), the conviction would still end his period of

continuous residence, because “the granting of 212(c) relief

does not serve to universally pardon, expunge, or eliminate all

negative immigration consequences stemming from an alien’s

criminal conviction.” A.R. 4. On appeal, Petitioner

continues to assert the right to apply for 212(c) and

cancellation of removal concurrently, acknowledging that he

needs both forms of relief in order to prevail. Petitioner’s

counsel conceded during oral argument that, if we concluded

that the application of the stop-time rule was not

impermissibly retroactive as applied to Petitioner’s pre-

IIRIRA crime, we need not reach the issue of whether

concurrent applications are permitted. As we have so held,

the issue is moot. We note in addition, however, that, as the

BIA observed, Petitioner is also foreclosed from urging that if

a 212(c) waiver were granted, his 1995 conviction would not

serve as a bar to cancellation, because in Rodriguez-Munoz v.

Gonzales, 419 F.3d 245, 248 (3d Cir. 2005), we specifically

held that a grant of 212(c) waiver does not nullify the

underlying conviction and accordingly, it still exists for

purposes of cancellation of removal analysis. Therefore, even

if Petitioner were to somehow be granted a 212(c) waiver, he

would still be barred from cancellation of removal relief

under Rodriguez-Munoz.

3. Whether the BIA Improperly Refused To Dismiss

Petitioner’s Case so He Could Pursue Naturalization

Finally, Petitioner contends that the IJ should have

allowed him to terminate his removal proceedings so that he

could pursue naturalization. In making this argument,

Petitioner urges that the BIA’s interpretation of its regulation

governing the termination of removal proceedings in In re

26

Acosta Hidalgo, 24 I. & N. Dec. 103 (BIA 2007) is

inconsistent with the plain language of the requirements of

the regulation. The regulation at issue provides:

An immigration judge may

terminate removal proceedings to

permit the alien to proceed to a

final hearing on a pending

application or petition for

naturalization when the alien has

established prima facie eligibility

for naturalization and the matter

involves exceptionally appealing

or humanitarian factors . . . .

8 C.F.R. § 1239.2(f). He contends that in In re Acosta

Hidalgo, the BIA improperly added a requirement that is not

set forth in the regulation, namely, that DHS must attest to an

alien’s prima facie eligibility for naturalization, through an

affirmative communication, prior to termination of removal

proceedings. However, petitioner fails to acknowledge our

decision in Zegrean v. Att’y Gen. of the U.S., 602 F.3d 273,

274 (3d Cir. 2010), in which we upheld this interpretation as

reasonable. We decline to revisit that ruling here. Even if we

were to do so, Petitioner’s argument suffers from another

procedural flaw—namely, his failure to ever present his

application to a local USCIS field office. The absence of

evidence demonstrating that Petitioner took any measures to

formally request a prima facie determination from USCIS

undermines his argument that his removal proceedings should

have been terminated pursuant to 8 C.F.R. § 1239.2(f).

27

CONCLUSION

Petitioner’s argument that the loss of opportunity to

delay deportation proceedings creates a “new disability”

under Landgraf is unconvincing. Petitioner was deportable in

1995 with no avenue for relief, just as he is deportable today.

The passage of IIRIRA did not change the legal consequences

that face Petitioner as a result of his 1995 and 2005

convictions. Petitioner’s remaining arguments are far less

compelling, and fail just the same. Accordingly, we affirm

the BIA and deny Petitioner’s petition for review.

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