The opinion
In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-2281
SAMUEL BARASEINDE JOHNSON,
Petitioner,
v.
ALBERTO R. GONZALES,
Respondent.
____________
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A91 405 136
____________
ARGUED JANUARY 3, 2007—DECIDED FEBRUARY 28, 2007
____________
Before KANNE, ROVNER, and EVANS, Circuit Judges.
EVANS, Circuit Judge. Samuel Baraseinde Johnson is a
Nigerian who came to this country in 1984 as a student. In
1989 he was granted temporary resident status, and in
1991 he became a permanent resident. He is married to a
United States citizen and has two sons who are also
citizens of this country. One of his sons is in grade school.
The other is a student at Dartmouth College. Johnson
himself has a bachelor’s degree in business. With his wife,
he owns and operates a business which employs eight
people. The Johnsons also own their own home. His seems
to be an American success story, but, unfortunately, there
is a dark side: Johnson is also a convicted felon, having
2 No. 06-2281
entered a guilty plea in 1992 in a Chicago federal court-
room to a charge of conspiracy to possess heroin with
intent to distribute. In 1993, he was sentenced to serve a
term of 5 years in prison. The record does not show the
length of time Johnson was actually imprisoned.
Soon after he began serving his sentence, Johnson found
himself in the crosshairs of the former Immigration and
Naturalization Service (INS). Formal proceedings com-
menced in 1995 when the INS filed an order to show cause
why Johnson should not be deported (the former name of
removal) because he was an aggravated felon who commit-
ted a drug trafficking crime.
A decade has passed since the INS got this ball rolling,
and now the case has landed here. The issue before us
involves whether Johnson can somehow obtain relief in the
form of a waiver from deportation under now-repealed
§ 212(c) of the Immigration and Nationality Act, 8 U.S.C.
§ 1182(c).
At the time of Johnson’s guilty plea, § 212(c) allowed the
Attorney General to waive deportation for aliens under
certain circumstances. At least for purposes of this appeal,
the parties seem to agree that at the time of his plea,
Johnson was eligible to apply for a waiver. And, in fact, his
chances of obtaining one might have been pretty
good: between 1989 and 1995, § 212(c) relief was granted
to over 10,000 aliens—or 51 percent of those who applied.1
But times change, and in 1996 Congress enacted the
Antiterrorism and Effective Death Penalty Act (AEDPA)
(110 Stat. 1214); § 440(d) of that Act amended § 212(c) by
identifying a broad set of offenses for which convictions
1
Rannik, The Anti-Terrorism and Effective Death Penalty Act of
1996: A Death Sentence for the 212(c) Waiver, 28 U. Miami Inter-
Am. L. Rev. 123, 150 n.80 (1996).
No. 06-2281 3
would preclude a waiver, including Johnson’s drug convic-
tion. Then, 5 months later that same year, Congress
passed the Illegal Immigration Reform and Immigrant
Responsibility Act (IIRIRA) (110 Stat. 3009). IIRIRA,
which became effective in April 1997, repealed § 212(c) and
replaced it with a new section giving the Attorney General
authority to cancel removal only for a very narrow class of
aliens. 8 U.S.C. § 1229(b). Johnson does not qualify for
§ 1229(b) relief.
During this time of flux, Johnson was before an immigra-
tion judge on charges of deportability. In a decision on July
3, 1996, the judge denied Johnson the opportunity to apply
for a waiver of deportation. Johnson appealed to the Board
of Immigration Appeals, and in a decision dated April 23,
1997, the Board dismissed his appeal based on In re
Soriano, 21 I & N Dec. 516 (BIA 1996). Soriano held that
§ 440(d) of AEDPA (expanding the list of offenses which
prevent a waiver of deportation) was effective upon
enactment and that Congress intended the section to apply
to aliens already in proceedings on that date—April 24,
1996. In other words, the Board found that the statute had
retroactive effect. Johnson was out of luck.
His prospects took a turn for the better, though, when
the Supreme Court considered the situation of another
alien seeking § 212(c) relief. Enrico St. Cyr entered a
guilty plea in March 1996, before either Act was effective.
Under pre-AEDPA and pre-IIRIRA law, he would have
been eligible for § 212(c) relief, but proceedings against
him were not begun until April 10, 1997, at which time the
Attorney General contended that he no longer had discre-
tion to grant a waiver. Both the district court and the
Court of Appeals for the Second Circuit rejected that view
and sided with St. Cyr.
As did the Supreme Court. In INS v. St. Cyr, 533 U.S.
289 (2001), the Court noted that a guilty plea is a quid pro
4 No. 06-2281
quo and that aliens like St. Cyr might very well have
factored into their decision to plead guilty based on the
belief that they would be eligible for § 212(c) relief. In
other words, eligibility for relief was part of what they
were receiving in return for the guilty plea. The Court
found that § 212(c) relief 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.” At 326.
St. Cyr was a reprieve for Johnson. But he did not act
fast enough to take advantage of it. He was taken into the
custody of the Department of Homeland Security in
January of 2006. It was not until after being detained that
he filed a motion to reopen his case to present his § 212(c)
claim.
Meanwhile, faced with the St. Cyr decision, the Execu-
tive Office for Immigration Review (EOIR), pursuant to its
authority delegated by the Attorney General, published a
proposed rule on August 13, 2002, setting forth how
requests for § 212(c) relief would be handled. The final rule
was published 2 years later. As relevant here, the
rule—8 C.F.R. § 1003.44(h)—provides that an “alien
subject to a final administrative order of deportation or
removal must file a special motion to seek section 212(c)
relief on or before April 26, 2005,” which was 180 days
from the October 28, 2004, effective date of the rule.
Johnson’s motion to reopen and remand for consideration
of his application for § 212(c) relief was not filed until
February 24, 2006—too late. The Board denied the motion
as untimely. He appeals from that decision. Our jurisdic-
tion to review the case comes from yet another congressio-
nal foray into immigration reform, the Real ID Act of
2005—119 Stat. 231 (May 11, 2005), 8 U.S.C. § 1252.
Johnson argues that § 1003.44(h) has an impermissible
retroactive effect. He says enacting the rule was beyond
No. 06-2281 5
the authority of the agency, that it violated his due process
rights, that it should be subject to equitable tolling in
his case, and that the Board’s decision is an abuse of
discretion.
Some of the issues Johnson raises are easily disposed of.
There are at least two problems with his due process
claim. First, as we said in United States v. Roque-
Espinoza, 338 F.3d 724, 729 (7th Cir. 2003), it is hard to
show that “the loss of a chance at wholly discretionary
relief from removal is the kind of deprivation of liberty or
property that the due process clause is designed to pro-
tect.” See also United States v. Lopez-Ortiz, 313 F.3d 225
(5th Cir. 2002). On the other hand, Roque-Espinoza also
stated that there was a significant difference between
saying one has a right to obtain discretionary relief and
saying that one has a right to seek discretionary relief. We
allowed for the possibility that the latter might state a
constitutional claim. We saw no need in that case to decide
whether it did or not; nor do we here.
Even were we to find that he had a liberty interest,
however, Johnson’s claim would fail. He argues that his
due process rights were violated because he did not receive
notice that he had to file his request for discretionary relief
by April 26, 2005. He seems to assert that personal notice
of the new deadline was required. We reject that conten-
tion. The proposed rule was published more than 2 years
before the cutoff date. An agency cannot reasonably be
required to personally notify every alien who might be
affected by a rule change. Johnson might as well say that
he should have been personally served with a copy of the
St. Cyr decision. His due process claim cannot stand.
Nor can we find that the Board abused its discretion in
not equitably tolling the time limits and in not reopening
his case sua sponte. It is a rare occasion that we reverse a
decision on the basis that a time limit should have been
6 No. 06-2281
equitably tolled. Equitable tolling requires the exercise of
due diligence. Patel v. Gonzales, 442 F.3d 1011 (7th Cir.
2006). And it must be shown that the claimant could not
have been expected to file earlier. Pervaiz v. Gonzales, 405
F.3d 488 (7th Cir. 2005). The time period alone between
the St. Cyr decision and Johnson’s motion prevents us
from finding an abuse of discretion on this point. As to sua
sponte reopening, we have found that the failure of the
Board to reopen a case sua sponte “is a discretionary
decision that is unreviewable . . . .” Pilch v. Ashcroft, 353
F.3d 585, 586 (7th Cir. 2003). See also Calle-Vujiles v.
Ashcroft, 320 F.3d 472 (3d Cir. 2003), and cases cited
therein.
The most significant issue Johnson presents involves the
authority of the EOIR to promulgate this particular rule.
That the EOIR has authority to make certain rules
governing its procedures is not in doubt. The Attorney
General has authority to “establish such regulations . . . as
the Attorney General determines to be necessary . . . .”
8 U.S.C. § 1103(g)(2). But does 8 C.F.R. § 1003.44(h) fall
within bounds? Is it procedural or substantive? Is it an
impermissible end-run around St. Cyr? Does it have an
impermissible retroactive effect? Johnson says it suffers
from all these infirmities. This argument is not without
force but is ultimately unsuccessful.
In St. Cyr the impact of the retroactive effect of the
amendments on conduct that occurred before their enact-
ment and on the availability of discretionary relief was
seen as affecting substantive rights. It “[swept] away
settled expectations suddenly and without individualized
consideration.” At 315. That is essentially what Johnson
says § 1003.44(h) does. But the rule does not eliminate
relief; it simply imposes a deadline for requesting relief,
the sort of procedural limitation that is commonly found in
the law. The deadline does not directly contravene St. Cyr.
No. 06-2281 7
St. Cyr says nothing about how long requests for waivers
must be entertained. It is hard to conclude that St. Cyr
requires that requests for waivers can be made into
perpetuity.
But the question remains: are the time limits valid and,
if so, is the Attorney General the proper entity to impose
the limits? In other words, is the rule procedural and
within the Attorney General’s grant of authority?
We conclude that it is. Section 1003.44(h) is similar to
time limits imposed in the Federal Rules of Civil Proce-
dure, Appellate Procedure, and even Criminal Procedure.
And, in general, the formulation of procedures is left to the
discretion of the agencies with responsibility for substan-
tive judgments. Vermont Yankee Nuclear Power Corp. v.
NRDC, 435 U.S. 519 (1978). We grant deference to agency
interpretations of the law it administers. Chevron U.S.A.
Inc. v. NRDC, 467 U.S. 837 (1984). That deference has
been seen as particularly appropriate in the immigration
context. INS v. Aguirre-Aguirre, 526 U.S. 415 (1999).
An analogous situation was faced by the Court of
Appeals for the First Circuit in a case based on the
Convention Against Torture (CAT). A regulation was
promulgated to require that when a deportation order had
become final before March 22, 1999, a petition to reopen
had to be filed by June 21, 1999 (8 C.F.R. § 208(b)(2)
(2000)). The court noted that nothing in CAT precluded the
setting of reasonable time limits and pointed out that even
“in criminal cases, constitutional and other rights must be
asserted in a timely fashion.” Foroglou v. Reno, 241 F.3d
111, 113 (1st Cir. 2001).
Also, by its own terms, § 1003.44(h) applies to aliens
“subject to a final administrative order of deportation or
removal.” It governs “special motions” for relief and is
clearly a response to St. Cyr. The rule affects those who
were unable to present a request for a waiver between
8 No. 06-2281
1996, when the statutes were amended and Soriano was
decided, and 2001, when St. Cyr reinstated § 212(c) relief.
Anyone in proceedings after St. Cyr was decided should
have presented the request at the time of the hearing, as
it is likely that anyone in proceedings before 1996 did. And
the rule does not affect a person who was eligible for relief,
and who for some reason was placed in removal proceed-
ings only after April 26, 2005. In effect, then, persons
affected by the rule had almost 4 years to present their
request for the waiver. We cannot find that the rule falls
outside the reasonable rule-making authority of the
Attorney General.
Accordingly, the petition for review is DENIED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-28-07